Somesh Chaurasia vs State Of M.P. on 22 July, 2021


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Supreme Court of India

Somesh Chaurasia vs State Of M.P. on 22 July, 2021

Author: Hon’Ble Dr. Chandrachud

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

                                                                                         Reportable


                                       IN THE SUPREME COURT OF INDIA
                                      CRIMINAL APPELLATE JURISDICTION


                                       Criminal Appeal Nos 590-591 of 2021
                                       @ SLP (Crl) Nos. 4998-4999 of 2021



          Somesh Chaurasia                                                       .... Appellant


                                                      Versus



          State of M.P. & Anr.                                                 .... Respondents




                                                  JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 This appeal arises from an order by a Division Bench of the High Court of

Madhya Pradesh dated 23 July 2019. The High Court declined to entertain two
Signature Not Verified

applications
Digitally signed by
Chetan Kumar
– IA 6837 of 2019 filed by the State
Date: 2021.07.22
17:22:47 IST

of Madhya Pradesh and IA 5781 of 2019 filed by the appellant – seeking a
Reason:

1
revocation of the suspension of sentence and bail granted to the second

respondent.

2 The second respondent has been convicted of an offence punishable under

Section 302 of the Indian Penal Code (“IPC”) and sentenced to suffer imprisonment

for life. By an order dated 3 February 2016, the High Court directed that the

sentence shall, during the pendency of the appeal, remain suspended under the

provisions of Section 389(1) of the Code of Criminal Procedure 1973 (“CrPC”).

3 Two applications were moved before the Division Bench of the High Court (IA

6837 of 2019 and IA 5781 of 2019) for cancellation of bail and revocation of the

order dated 3 February 2016 suspending the sentence of the second respondent.

These applications for bail were filed by the appellant and by the State of Madhya

Pradesh. The appellant sought cancellation of bail on the ground that after the

sentence was suspended, FIR No 143 of 2019 was registered against the second

respondent at Police Station Hata, District, Damoh, in which he is implicated in the

murder of the appellant’s father. The State of Madhya Pradesh sought cancellation

of bail on the ground that:

(i) The second respondent has two other convictions against him on a charge

of murder;

(ii) The second respondent has been convicted of another crime for offences

punishable under Section 399 and 402 of the IPC and Section 25 (1)

(1B)(a) of the Arms Act; and

2

(iii) An FIR has been registered at the behest of the appellant alleging that the

second respondent is involved in the murder of his father during the period

when he was on bail.

4 The application for cancellation of bail which was moved by the State of

Madhya Pradesh sets out the criminal antecedents of the second respondent.

Paragraph 8 reads as follows:

“8. At this stage, it would be relevant to detail the three
convictions suffered by the appellant. The same are detailed
hereunder:

(a) It is submitted that in the first crime, the appellant
committed the murder of the deceased Rajendra Pathak on
13.10.1998 who was going on his scooter and was confronted
by the appellant and co-accused Chandu Thakur who were
coming on a motorcycle from the opposite direction. At the
relevant point of time the appellant Govind Singh fired
through Katta on the deceased Rajendra Pathak which hit the
deceased on his chest. After receiving the said shot the
deceased ran to save his life and on noticing the same co-
accused Chandu Thakur fired a shot which hit the deceased
on his back. The deceased Rajendra Pathak succumbed to
the said injuries. Based on the said incident, session trial was
instituted and appellant was convicted for the murder of
Rajendra Pathak and sentenced to life imprisonment by
judgment dated 30.09.2008. It is thereafter Cr.A
No.2353/2008 was filed by the appellant before this Hon’ble
Court. It is also relevant to mention herein that the similarity of
the present case with a case relating to deceased Rajendra
Pathak is that the deceased in the present case Pappu
@Ramakant Pathak and Kailash Pathak were all belonging to
the same family.

(b) It is submitted that in the second crime, the appellant
along with others committed the murder of Munna
Vishwakarma. Based on the said incident, Sessions Trial No.
113/2005 was instituted and the appellant was convicted for
the murder of Munna vide Judgment dated 27.10.2015. It is
thereafter, Criminal Appeal No. 3108/2015 was filed by the
appellant before this Hon’ble Court.

3

(c) To put it differently, it can thus be seen that the appellant
committed two crimes punishable under Section 302 IPC on
the same date i.e. 11.5.2004 viz. the present case in which
Ramakant Pathak and Kailash Pathak were killed and Munna
Vishwakarma in respect to which Criminal Appeal No.
3108/2015 is pending.

(d) It would also be relevant to mention herein that the
appellant committed another crime for offences punishable
under Section 399 and 402 of the Indian Penal Code and
Section 25 (1) (1B)(a) of the Arms Act. In the said case too,
the appellant was convicted and thereafter filed a Criminal
Appeal No. 1984 /2011, in which case also his sentence was
suspended. It is thus clear that the appellant has been a
serious threat to the society and that has been continuously
committing criminal offences.”

Paragraph 10 contains a reference to the FIR lodged on 15 March 2019 at the

behest of the appellant alleging that the second respondent has committed the

murder of his father:

“10 It is also relevant to mention herein that after grant of bail
in the said criminal appeals, the appellant has again
committed murder of one Devendra Chaurasiva on
15.03.2019 and an F.I.R. to that respect has been registered
against the appellant on 15.03.2019 itself for offences
punishable U/s 294. 323, 324, 307, 147, 148, 149, 506 of
I.P.C. Pertinently, since the deceased died after registration
of F.I.R., offence U/s 302 has been added in the present
crime. Copy of the F.I.R dated 15.03.2019 bearing crime No.
143/2019 is filed herewith as ANNEXURE-R/1.”

5 By its order dated 23 July 2019, the High Court declined to entertain the

application for revocation of the suspension of sentence/ grant of bail. The grounds

which weighed with the High Court appear in the following extract:

“…we are of the considered opinion that I.A.No.6837/2019 &
I.A.No.5781/2019 can be disposed of as per the statement

4
made at bar by Shri Ajay Gupta, Additional Advocate General
for the State that the State Government is further investigating
the issue on an application filed on behalf of appellant Govind
Singh inter alia stating that he has been falsely implicated. We,
therefore, direct that the investigation may be completed as far
as possible within three months but not later than 90 days. On
completion of the investigation, if the appellant is found
involved in commission of the crime, he be immediately taken
into custody and the procedure as prescribed be followed. It is
also observed that neither appellant Govind Singh shall
threaten nor influence the witnesses and the complainant
side.”

6 After notice was issued in these proceedings on 18 November 2020, counsel

for the State of Madhya Pradesh was granted an adjournment on 11 January 2021

to file a counter affidavit. In the meantime, on 12 February 2021, counsel for the

appellant apprised this Court of the fact that on 8 January 2021, the Additional

Sessions Judge (“ASJ”) at Aurangabad, issued summons to the second respondent

under Section 319 of the CrPC in the course of the sessions trial arising out of the

charge sheet filed in FIR 143 of 2019. The Court was apprised that though a warrant

of arrest has been issued against the second respondent, he was resisting arrest.

The order of the ASJ summoning the second respondent to stand trial has been

placed on the record.

7 Subsequently, when the proceedings were listed before this Court on 12

March 2021, the Court took note of an order dated 8 January 2021 passed by the

ASJ, Hata District, Damoh in Sessions Trial No 30 of 2019 (Addl. No. 143 of 2019).

5
8 The order dated 8 January 2021 passed by the ASJ specifically refers to the

criminal record of the second respondent, and is extracted below:

“Details of criminal records of accused Govind Singh are
accordingly:-

PS-Damoh Dehat
S.No. Crime Case No. Under Sections

1. 150/93 147, 148, 149, 302, 34 of

IPC.

                  2.       173/94               393, 365, 34 of IPC.

                  3.       169/04               395, 396, 397, of IPC.

                  4.       170/04               147, 148, 149, 302, 324 of
                                                IPC, and under section 3/5
                                                and under section 25/27
                                                Arms Act.
                  5.       414/06               399, 402 of IPC, and under

                                                section 25/27 Arms Act.

                  6.       68/07                364, 34 of IPC.

                  7.       390/07               384 of IPC.

                  8.       S.No. 01/10          Under section 3(2) of the

                                                MP Protection Act, 1980.

                  9.       S.No. 02/19          Under section 3(2) of the

                                                MP Protection Act, 1980.

                 10.       S.No. 08/19          Under section 110 Jaa.fau.

                 11.       S.No. 160/19         Under section 107, 116 (3)

                                               Jaa.fau.


                                           6
12.   203/95                396, 386, 365 of IPC.

13.   241/96                384, 34 of IPC.

14.   44/99                 384 of IPC.

15.   168/2000              341, 294, 506B, 34 of IPC.

16.   80/04                 307, 34 of IPC.

17.   171/04                394 of IPC.

18.   S.No. 01/13           Under section 6 of the MP
                            Protection Act, 1980.
19.   S.No. 01/19           Under section 3(2) of the

                            MP Protection Act, 1980.

20.   S.No. 07/19           Under section 110 jaa faa.

21.   S.No. 159/19          Under section 107, 116(3)

                            jaa faa.

                     PS-Patharia,
                       Damoh
22.   56/92                 294, 323, 34 of IPC, under

                            section 3(1-10) SC ST Act.

23.   93/92                 436, 34 of IPC, under section

                            3(1-10) SC ST Act.

24.   31/10                 147, 341, 307, 506 of IPC.

25.   157/93                295, 397 of IPC.

26.   169/90                294, 506, 427 of IPC.

                 PS-Kotwali Damoh

27.   578/98                307, 302, 34, 120 of IPC and

                            Arms Act.

28.   214/16                147, 452, 294, 506, 34 of
                            IPC.”




                       7

The ASJ provided reasons in his order for taking steps in pursuance of the

provisions of Section 319 of CrPC to arraign the second respondent as an accused.

9 Thereafter, in his order dated 8 February 2021, the ASJ noted that though he

was taking action in compliance with the directions of this Court for ensuring service

on the second respondent, the process of the court was being obstructed. The ASJ

expressed a serious apprehension that the accused and the Superintendent of

Police (“SP”), Damoh had colluded with the subordinates of the latter “to frame

serious charges” against the judge. The accused, the trial judge noted, is a “highly

influential political person” and though false allegations had been made against the

judge for transfer of the case, the application for transfer had been dismissed by the

District Judge. The relevant extract from the order dated 8 February 2021 reads as

follows:

“The action in this case is being taken in compliance with the
directions given by Hon. Supreme Court expeditiously. But
accused persons are highly influential political persons and
have raised false allegations against me and made
application for transfer of case before Hon. District Judge
which was found false and Hon. District Judge had dismissed
the application with cost and being contemptuous. But like
accused persons, now Police Superintendent Damoh had
connived with his subordinates and made false and fabricated
pressure on me. From the above such acts it is clear and I am
confident that accused persons with Police Superintendent
Damoh had colluded with his subordinates to frame serious
charges against me in future or any unpleasant incident can
be done with me.”

8
10 Adverting to these developments, this Court took serious note of the anguish

expressed by the ASJ on 8 February 2021 and noted in its order dated 12 March

2021 that:

“8. The order of the learned Additional Sessions Judge dated
8 February 2021 indicates that he is being pressurized by the
Superintendent of Police, Damoh, who, together with his
subordinates, is attempting to pressurize the judicial officer.

The judicial officer has expressed the apprehension that the
accused who are “highly influential political persons” have
raised false allegations against him and applied for transfer of
the pending case which was dismissed by the District Judge
after it was found to be false. The learned Additional Sessions
Judge has apprehended that he may be subjected to an
“unpleasant incident” in the future.”

11 The order of this Court dated 12 March 2021 took note of the fact that:

(i) Despite the registration of an FIR on 15 March 2019 where the appellant

had alleged that the second respondent was complicit in the murder of his

father no steps were being taken by the investigating authorities to arrest

him;

(ii) In this backdrop, it was the ASJ who was constrained to issue summons to

the second respondent under Section 319 of the CrPC to face trial;

(iii) Despite the issuance of warrants against him, the second respondent

continued to abscond; and

(iv) It had been stated during the course of the proceedings that the spouse of

the second respondent is an MLA and “all possible steps are, therefore,

being adopted to shield the second respondent from the coercive arm of

the law”.

9

Taking note of the apprehension expressed by the ASJ that he was being targeted,

this Court observed:

“10. We take serious note of the manner in which the
Additional Sessions Judge, Hata who is in charge of the
criminal case has been harassed by the law enforcement
machinery in Damoh. We have no reason to disbelieve a
judicial officer who has made an impassioned plea that he
was being pressurized as a result of his orders under
Section 319 of the CrPC. The State which had moved the
High Court for cancellation of the bail which was granted to
the second respondent as an incident of the suspension of
sentence on 3 February 2016, has failed to apprehend the
second respondent who continues to evade arrest. A
warrant of arrest was issued against the second
respondent. Mr Saurabh Mishra, Additional Advocate
General appearing for the State, states that a proclamation
has been issued against the second respondent under
Section 82 of the CrPC on 4 March 2021 with an award of
Rs 10,000. Yet the second respondent continues to evade
arrest. The rule of law must be preserved.”

12 In this backdrop, the Director General of Police (“DGP”) of Madhya Pradesh

was directed “to immediately ensure the arrest of the second respondent and report

compliance by filing a personal affidavit in this Court”. The DGP was also directed to

enquire into the allegations levelled by the second respondent against the SP by the

ASJ in his order dated 8 February 2021.

13    Notice was issued to the SP, Damoh.


14    In pursuance of the order dated 12 March 2021, the DGP filed an affidavit

stating that despite efforts to secure the presence of the second respondent, the

10
police were unable to apprehend and arrest him. The affidavit provided the following

details:

(i) After the ASJ by his order dated 8 January 2021, arraigned the second

respondent as an accused, an arrest warrant was issued against him. Steps

were taken by the Damoh Police to arrest the second respondent from 8

January 2021. However, the second respondent was absconding and evading

arrest. As a result, an award of Rs. 10,000 was announced for giving

information on the whereabouts of the accused;

(ii) The DGP directed the formation of a “special team” under the Additional

Superintendent of Police (“ASP”), Damoh, to arrest the second respondent to

comply with this Court’s order dated 12 March 2021. The Special Task Force,

Bhopal (“STF”) was also tasked to apprehend the accused. The affidavit

details the steps taken by Damoh police and the STF;

(iii) Provision of security was made for the ASJ Hata; and

(iv) An enquiry into the allegations levelled by the ASJ against the SP in his order

dated 8 February 2021 was entrusted to the Additional Director General of

Police (“ADGP”), STF, Police headquarters, Bhopal.

15 Finding the explanation provided by the DGP for the failure of the police to

arrest the second respondent to be unacceptable, this Court in its order dated 26

March 2021 observed:

“2 We find the affidavit of the Director General of Police to
be completely unacceptable. It defies reason as to how an

11
accused who is the spouse of a sitting Member of the
Legislative Assembly has not been arrested despite being
arraigned in pursuance of the provisions of Section 319 of
the Code of Criminal Procedure 1973 to face trial for an
offence under Section 302 of the Indian Penal Code 1860.

An effort is being made to shield the accused from the due
process of criminal law. The Court was informed that
earlier, the accused was even given security by the police
though it is stated by Counsel for the State that it is now
withdrawn.”

16 Accordingly, the DGP was directed to ensure that the previous order of this

Court dated 12 March 2021 is complied with, failing which this Court would be

constrained to take coercive steps in accordance with law. At that stage, this Court

was also apprised by counsel for the appellant that though the second respondent

had been summoned under Section 319 of the CrPC to face trial for an offence

punishable under Section 302, he continued to abscond. On the other hand, security

had been provided to him by the State of Madhya Pradesh. Accordingly, a further

affidavit was directed to be filed by the DGP stating:

(i) The date on which and the cause on the basis of which security was granted

to the accused;

(ii) Whether the security continues to be provided as on date; and

(iii) If the answer to (ii) above is in the negative, the date on which the security

was withdrawn.

12

17 A further affidavit dated 3 April 2021 was filed by the DGP in compliance with

this Court’s order dated 26 March 2021 explaining that:

(i) Pursuant to the steps taken by the Damoh Police and the STF, the second

respondent was arrested from a bus stand in Bhind District on 28 March

2021. The second respondent was presently in the judicial custody at Sub-

Jail, Hata District, Damoh; and

(ii) The SP had recommended grant of security to the second respondent in view

of his enmity with several persons and his political background. On the basis

of the recommendation, the second respondent was provided security of one

officer on 11 July 2020. This was ratified by State Security Committee on 25

September 2020. The security was withdrawn on 9 January 2021.

18 On 6 April 2021, another affidavit was filed by the DGP detailing the reasons

for grant of security to the second respondent. The affidavit stated that:

(i) Smt. Rambai Govind Singh, who is an MLA, made an application dated 3

July 2020 for providing security to her spouse (the second respondent)

“on the basis of his political background and enmity with several

persons”;

(ii) A security officer was detailed to the second respondent on 11 July

2020;

13

(iii) A threat assessment report was sought from the SP who recommended

grant of security on 24 September 2020. The recommendation of the SP

was ratified by the State Security Committee on 25 September 2020;

(iv) Thereafter, a final order for grant of security was passed on 7 October

2020; and

(v) The ASP by an order dated 10 January 2021 directed the removal of the

security provided to the second respondent on the issuance of a warrant

of arrest by the ASJ on 8 January 2021.

19 Mr Varun Thakur, learned counsel appearing on behalf of the appellant has,

during the course of his submissions, outlined the basis on which cancellation of bail

granted pursuant to the order suspending sentence is sought. Learned counsel

urged that the second respondent has been implicated in a serious offence

punishable under section 302 of the Penal Code after he was enlarged on bail. It

has been urged that the sequence of events indicates that despite the order under

Section 319 of the CrPC, the second respondent evaded the due course of law

despite a warrant against him and a proclamation. It has been submitted that the

investigating authorities were complicit in this and continued to protect the second

respondent whose spouse is an MLA. Despite the order of this court, the DGP

reported initially that the second respondent could not be apprehended. The state

had provided security to him despite the conviction of an offence under Section 302.

The order of the ASJ is a clear indicator of the police attempting to pressurize the

trial judge. Hence a cancellation of bail is warranted.

14
20 These submissions have been contested on behalf of the State and its

authorities by Mr Saurabh Mishra, learned Additional Advocate General. Mr Mishra

submitted that the following sequence of events may be borne in mind:

(i) 15 March 2019 – an FIR was registered against certain accused including

the second respondent;

(ii) 13 June 2019 – a chargesheet was submitted to the competent court.

Though, the second respondent was named as an accused in the FIR, the

charge sheet did not name the second respondent as further investigation

was pending against him under Section 173(8) of the CrPC;

(iii) 23 July 2019 – the impugned order was passed by the High Court;

(iv) 7 September 2019 – a closure report was submitted before the competent

court absolving the second respondent;

(v) 24 March 2020 – a new government was formed in the State of MP

following a floor test in the legislative assembly on 18 March 2020; and

(vi) 8 January 2021 – an application was filed by the appellant under Section

319 of the CrPC for the issuance of summons to the second respondent to

face trial. The State did not oppose the application.

It was urged on behalf of the State that there is no substance in the charge of

collusion since as a matter of fact, the State had not opposed the application under

Section 319 of the CrPC.

15
21 The second limb of the submission is that pursuant to the directions issued by

this Court on 12 March 2021, an enquiry was conducted by the ADGP and STF,

Bhopal. The ADGP in his report dated 22 March 2021 to the DGP stated that no

substance was found in the observations of the ASJ in his order dated 8 February

2021. The conclusions in the enquiry indicate:

“24. Upon analyzing the whole incident the following
conclusions are drawn :

(a) Ms. Bhawna Dangi, SDOP, had joined her new
posting, 6 days prior to appearance before
Hon’ble Court and it was her first field posting.

(b) Ms. Bhawna Dangi, SDOP informed the incident
with herself in the court to her senior officers.

(c) Superintendent of Police, Damoh, immediately
apprised of the incident happened with Ms.
Bhawna Dangi to the senior most Judge of the
District i.e. Hon’ble District and Session Judge,
Damoh on 06.02.21.

(d) For coordination at the district level between
judiciary and executive, the District and Additional
Session Judge and Superintendent of Police
remain in touch. Under the same protocol, the
Superintendent of Police informed about the
incident to the District and Session Judge.

(e) During the enquiry, the Hon’ble Additional Session
Judge, Hata and both the JMFC, Hata were
contacted but they showed their inability to give
any statement unless permitted by the Hon’ble
High Court of Jabalpur. In this context on 17.03.21
an application was filed before the Hon’ble
Registrar General, Madhya Pradesh High Court,
Jabalpur.

(f) The application dated 12.02.21 filed by Ms.
Bhawna Dangi is pending in the office of Hon’ble
Registrar General, Madhya Pradesh High Court,
Jabalpur and only after its inquiry any comment
can be given on the application filed by SOOP,
Ms. Dangi.

25. It is proved from the facts came in inquiry that the
Superintendent of Police has endorsed the

16
grievance of his subordinate to his senior officers
which is a part of his duty. No evidence of
Superintendent of Police intention in connivance
with accuseds to level false charges is found out.”

Based on the above report, it has been submitted that the SDOP had joined at her

new place of posting on 31 January 2021. On 6 February 2021, she appeared

before the ASJ and explained the efforts which were made to arrest the second

respondent. It is alleged that the ASJ was not satisfied with the explanation and had

made her stand in the court for over four hours and had insulted her. The SDOP had

expressed her desire to the ASP to resign from service. This incident was narrated

by the ASP to the JMFC, Hata who has attempted to sort out the matter.

Subsequently, the SDOP had submitted a complaint to the High Court and had met

the Registrar General on 12 February 2021. The order dated 8 February 2021 was

made known for the first time when it was published in the newspapers on 20

February 2021.

22 In this context, it has been submitted that the enquiry against the SP has

been conducted in pursuance of the orders of this Court and no substance has been

found in the allegations leveled by the judicial officer.

23 The report of the ADGP states that though the ASP had denied

communicating to the JMFC that, “it is an order of the … Superintendent of Police

that the Magistrate …of Hata should be informed that SDOP Dangi is disturbed, she

is resigning, Sonkar Sahab to show some leniency”, he had communicated with the

17
JMFC “to maintain better coordination between the Hon’ble Court and the Executive”

on his own accord. The relevant extract of the report is as follows:

“21. In this entire incident, the Additional
Superintendent of Police, Damoh communicated with
the Hon’ble JMFC’s, Hata to maintain the better
coordination between the Hon’ble Court and the
Executive. During his statement, Addl.

Superintendent of Police admitted some comments
mentioned in the order sheet and denied some other
comments. In his statement, the Additional
Superintendent of Police, absolutely denied some
references came in between the Hon’ble JMFC, Hata
about the Superintendent of Police, Damoh. He
further states that Superintendent of Police, Damoh
didn’t instruct him to communicate with JMFC, Hata.

He had discussed the matter with both the Hon’ble
JMFCs’ on his own to maintain better coordination
between the parties.”

24 Mr Sidharth Luthra, learned senior counsel appearing on behalf of the SP

submitted that on 6 February 2021, the SDOP had made a complaint about being

humiliated by the judicial officer in court and the SP had informed the District and

Sessions Judge about the incident on the same date. On 7 February 2021, the

Registrar General of the High Court was informed on phone. On 8 February 2021,

the ASJ passed an order expressing his apprehension that he was being targeted in

the discharge of his duties. However, on the same day, the ASJ addressed a

communication to the SP making no such allegations. On 12 February 2021, the

Registrar General of the High Court was furnished with the application of the SDOP

and met her. The order dated 8 February 2021, it has been submitted, was

published in the newspapers on 20 February 2021. In this backdrop, Mr Luthra

18
urged that there is no substance in the allegation which have been leveled against

the SP.

25 Mr Shakeel Ahmed, learned Counsel appearing on behalf of the second

respondent has submitted that no adverse order may be passed against the second

respondent. At this stage, it may be necessary to note that an application for bail

was moved before this Court on behalf of the second respondent in IA No 50800 of

2021 in SLP (Crl) Diary No 21783 of 2020. On 1 June 2021, the following order was

passed by this Court:

“1 After arguing the application for bail, the learned counsel
appearing on behalf of the applicant (the second respondent
in the Special Leave Petitions) seeks the permission of the
Court to withdraw the application for bail.

2 The application for bail is accordingly dismissed as
withdrawn.”

The IA was accordingly dismissed as withdrawn.

26 Before we deal with the rival contentions, it is necessary at the outset to

advert to the correctness of the order passed by the High Court on 23 July 2019.

FIR No 143 of 2019 was registered on 15 March 2019 for offences under Sections

294, 323, 324, 307, 147, 148, 149 and 506 of the IPC against several accused

including the second respondent. It was alleged in the FIR that the accused had

assaulted the victim, Devendra Chaurasia, by rods and sticks. The injured

victim having succumbed to his injuries, an offence under Section 302 was added.

Among other accused, the FIR named the second respondent. On 13 June 2019, a

19
charge sheet was filed before the competent court, which did not name the second

respondent. Investigation under Section 173(8) of the CrPC was kept pending

against the second respondent.

27 In another case, the second respondent was convicted under Section 302 by

the Sessions Court on 27 October 2015 against which he had filed Criminal Appeal

No 3107 of 2015 before the High Court. During the pendency of the appeal, the

sentence was suspended on 3 February 2016. In view of the allegation that the

second respondent had committed offence of murder when his sentence was

suspended, the State government filed an application before the High Court for the

revocation of the order suspending the sentence/ granting bail to the second

respondent. Another application was filed by the appellant. The High Court disposed

of the two applications by noting the statements of the Additional Advocate General

that the State government is further investigating the application filed by the second

respondent stating that he has been falsely implicated. The High Court directed that

the investigation may be completed as far as possible within three months but not

later, and if upon investigation the second respondent is involved in the commission

of the crime, he should be taken into custody immediately and “the procedure as

prescribed be followed”.

28 On 7 September 2019, the police filed a closure report in relation to the

second respondent before the competent court in FIR No 143 of 2019 dated 15

March 2019. An application under Section 319 of the CrPC was filed before the ASJ

for summoning the second respondent. By an order dated 8 January 2021, the

20
application was allowed and the second respondent was arraigned as an accused. A

warrant of arrest was issued against the second respondent. Despite the issuance of

the warrant of arrest and a proclamation, the second respondent was not arrested.

The order of this Court dated 12 March 2021 speaks for itself.

29 The High Court by its impugned order dated 23 July 2019 allowed the second

respondent, who allegedly committed murder during the period when his sentence

was suspended, to continue on bail until his claim that he was being falsely

implicated was first investigated in ninety days. In adopting such a procedure, the

High Court has clearly transgressed into an unusual domain. The High Court has in

effect stultified the administration of criminal justice.

30 Section 389 (1) 1 of the CrPC allows the court to release a convicted person

on bail. The second proviso to Section 389 (1) of CrPC provides that where a

convicted person has been released on bail, it is open to the public prosecutor to file

an application for the cancellation of bail. However, the grant of bail post-conviction

is governed by well-defined procedures and parameters. The factors that govern the

grant of suspension of sentence under Section 389 (1) have been discussed by this

1
“Section 389. Suspension of sentence pending the appeal; release of Appellant on bail.–(1) Pending any
appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that
the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that
he be released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is
convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less
than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such
release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public
Prosecutor to file an application for the cancellation of the bail.”

21
Court (speaking through Justice Kurian Joseph) in Atul Tripathi vs. State of U.P. 2

in the following terms:

“It may be seen that there is a marked difference between
the procedure for consideration of bail under Section 439,
which is pre conviction stage and Section 389 Code of
Criminal Procedure, which is post-conviction stage. In case
of Section 439, the Code provides that only notice to the
public prosecutor unless impractical be given before granting
bail to a person who is accused of an offence which is triable
exclusively by the Court of Sessions or where the
punishment for the offence is imprisonment for life; whereas
in the case of post-conviction bail under Section 389 Code of
Criminal Procedure, where the conviction in respect of a
serious offence having punishment with death or life
imprisonment or imprisonment for a term not less than ten
years, it is mandatory that the appellate court gives an
opportunity to the public prosecutor for showing cause in
writing against such release.

15. Service of a copy of the appeal and application for bail
on the public prosecutor by the Appellant will not satisfy the
requirement of first proviso to Section 389 Code of Criminal
Procedure. The appellate court may even without hearing
the public prosecutor, decline to grant bail. However, in case
the appellate court is inclined to consider the release of the
convict on bail, the public prosecutor shall be granted an
opportunity to show cause in writing as to why the Appellant
be not released on bail. Such a stringent provision is
introduced only to ensure that the court is apprised of
all the relevant factors so that the court may consider
whether it is an appropriate case for release having
regard to the manner in which the crime is committed,
gravity of the offence, age, criminal antecedents of the
convict, impact on public confidence in the justice
delivery system, etc. Despite such an opportunity being
granted to the public prosecutor, in case no cause is shown
in writing, the appellate court shall record that the State has
not filed any objection in writing. This procedure is intended
to ensure transparency, to ensure that there is no allegation
of collusion and to ensure that the court is properly assisted
by the State with true and correct facts with regard to the

2
(2014) 9 SCC 177

22
relevant considerations for grant of bail in respect of serious
offences, at the post conviction stage.”

31 This Court in Ramji Prasad vs. Rattan Kumar Jaiswal and Anr. 3 has

observed that in cases involving conviction under Section 302 of the IPC, the

sentence should be suspended only in exceptional cases.

32 In Masood Ali Khan vs. State of U.P. and Ors. 4, this Court has held that the

mere fact that the accused, who were on bail during the period of trial, did not

misuse their liberty is not a sufficient reason for the grant of suspension of sentence

post-conviction. This Court by placing reliance on Vijay Kumar vs Narendra 5

reiterated that all the relevant factors including “nature of accusation made against

the accused, the manner in which the crime was alleged to have been committed,

the gravity of the offence, desirability of releasing the accused on bail after they

have committed the serious offence of murder” must be looked into.

33 The High Court had suspended the sentence. We are not in these

proceedings called upon to consider whether the order of the High Court granting a

suspension of sentence was valid in the first place.

34 There are distinct doctrinal concepts in criminal law namely (i) the grant of bail

before trial or, what is described as the ‘pre-conviction’ stage; (ii) setting aside an

order granting bail when the principles which must weigh in the decision on whether

bail should be granted have been overlooked or wrongly applied; (iii) the post-

3
(2002) 9 SCC 366
4
(2009) 3 SCC 492
5
(2002) 9 SCC 364

23
conviction suspension of sentence under the provisions of Section 389(1); and (iv)

the cancellation of bail on the ground of supervening events, such as the conduct of

the accused during the period of bail, vitiating the continuance of bail.

35 The present case falls in the last of the above genres where bail was sought

to be cancelled on the ground that the second respondent was implicated in an

offence under section 302 during the period when his sentence was suspended.

36 This Court in Abdul Basit vs. Abdul Kadir Choudhary6, while discussing the

powers of the High Court to cancel bail granted to an accused under Section 439 (2)

of the CrPC, has observed that typically the following conduct of the accused would

result in the cancellation of bail – (i) misuse of liberty by engaging in similar criminal

activity; (ii) interference with the course of investigation; (iii) tampering of evidence or

witnesses; (iv) threatening of witnesses or engaging in similar activities which would

hinder the investigation; (v) possibility of fleeing to another country; (vi) attempts to

become scarce by becoming unavailable for investigation or going underground; and

(vii) being out of the reach of their surety. Similar considerations govern the

cancellation of bail at the post-conviction stage under the second proviso to Section

389 (1) of the CrPC. This Court in Pampapathy vs. State of Mysore 7, had held that

the High Court had the power to revoke the suspension of sentence granted under

sub-Sections (1) and (2) of Section 426 8 of the erstwhile Code of Criminal

6
(2014) 10 SCC 754
7
1966 Supp SCR 477
8
“426. (1) Pending any appeal by a convicted person, the Appellate court may, for reasons to be recorded by it
in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in
confinement, that he be released on bail or on his own bond.

24
Procedure, 1898 (“CrPC, 1898”) using its inherent powers under Section 561-A of

the CrPC, 1898. The accused were alleged to have misused their liberty while their

sentence was suspended. Sub-Sections (1) and (2) of Section 426 of the CrPC,

1898 are similar to Section 389 (1) of the present CrPC. It may be noted that in

Pamapathy (supra), the issue of cancellation of bail of a convict, by taking recourse

to Section 561-A of the CrPC, 1898, arose because the second proviso, which, now,

has been added to sub-Section (1) of Section 389 CrPC, did not exist under the

earlier legal framework. However, since the second proviso to sub-Section (1) of

Section 389 CrPC., now, deals with the cancellation of bail, no inherent power,

would be required for revocation of suspension of sentence and bail granted to a

convicted person during the pendency of appeal at the appellate court. This Court in

its order passed in Ramesh Kumar Singh vs. Jhabbar Singh & Ors. 9, has held

that if the accused misuses their liberty by committing other offences during the

suspension of sentence under Section 389 (1) of the CrPC, they are not entitled to

the privilege of being released on bail. In that case, the accused was convicted

under Section 302 of the IPC for killing the father of the complainant and during the

suspension of his sentence, when he was out on bail, he had committed the murder

of the brothers of the complainant. This Court set aside the bail that was granted to

the accused by the High Court.

(2) The power conferred by this section on an appellate court may be exercised also by the High Court in the
case of any appeal by a convicted person to a court subordinate thereto.”
9
(2003) 10 SCC 195

25
37 The present case was a fit case for the cancellation of bail by the High Court.

The narration in the earlier part of the judgment highlights the following facets:

(i) The registration of FIR 143 of 2019 implicating the second respondent in

the murder of the appellant’s father during the period when the sentence of

the second respondent was suspended after his conviction of a prior

offence under Section 302.

(ii) The criminal antecedents of the second respondent;

(iii) The strong likelihood of the second respondent using his political clout to

prevent a fair investigation of FIR 143 of 2019;

(iv) The truth in the apprehensions of the appellant having become evident by

the abject failure of the police to properly investigate the FIR lodged

against the second respondent on the allegation that he had committed

the murder of the appellant’s father on 15 March 2019 after his sentence

was suspended by the High Court;

(v) The submission of a closure report by the police against the second

respondent absolving him;

(vi) The order of the ASJ dated 8 January 2021 summoning the second

respondent under Section 319 of the CrPC;

(vii) The second respondent having evaded arrest despite the issuance of a

warrant of arrest and a proclamation;

(viii) The failure of the law enforcement authorities to effectuate the arrest of the

second respondent in spite of the order of this Court dated 12 March 2021;

26

(ix) The peremptory directions issued by this Court on 26 March 2021

requiring the DGP to take necessary steps for compliance with the

previous order failing which the Court would be constrained to take

coercive steps in accordance with law;

(x) The eventual arrest of the second respondent on 28 March 2021

ostensibly from a bus stand;

(xi) The apprehension expressed by the ASJ in his order dated 8 February

2021 that he was being targeted at the behest of a politically influential

accused; and

(xii) The provision of security to the second respondent by the State

government at the behest of his spouse who is an MLA despite a prior

conviction under Section 302 of the IPC.

38 The High Court mis-applied itself to the legal principles which must govern

such a case. The serious error by the High Court in its impugned order can be

considered from two perspectives. First, the High Court by simply disposing of the

IAs seeking cancellation of bail ignored material considerations which ought to have

weighed in the decision. Some of the events which we have narrated above have

undoubtedly transpired after the order of the High Court. However, taking the

position as it stood when the High Court considered the issue, a clear case for

cancellation of bail was established. The second aspect which is also of significance

is the impact of the order of the High Court. The High Court was apprised of the fact

that FIR No 143 of 2019 had been lodged against the second respondent. The

27
investigation into the FIR had to proceed according to law. Instead, the High Court

gave a period of ninety days to the police to enquire into the complaint of the second

respondent that he was being targeted and allowed the police to thereafter proceed

in accordance with law. This order had the effect of obstructing a fair investigation

into the FIR at the behest of the accused despite the nature and gravity of the

allegations against him. The events which have transpired since go to emphasize

the fact that the High Court was in grievous error in passing its directions which were

misused to defeat the investigation. The police submitted a closure report absolving

the second respondent. Thereafter, despite the order under section 319, the second

respondent evaded arrested in contravention of the warrant of arrest which was

issued by the ASJ. The facts which have been narrated in the earlier part of this

judgment indicate that the police have been complicit in shielding the second

respondent. The criminal antecedents of the second respondent and the prior

conviction on a charge of murder have been adverted to earlier. The second

respondent, whose spouse is an MLA was provided security by the State. The DGP

was sanguine in informing this court that the second respondent could not be

arrested despite the directions issued by this Court. It was only after this Court

issued a peremptory direction indicating recourse to the coercive arm of law that the

second respondent was arrested, ostensibly from a bus-stand. The material on the

record indicates that an effort has been made to shield the accused from the

administration of criminal justice. The apprehensions expressed by the ASJ in his

order dated 8 February 2021 of the machinations of a highly influential accused

evading the process of law are amply borne out by the facts which have been
28
revealed before this Court. There is no reasonable basis to doubt the anguish and

concern of a judicial officer. That the state did not oppose the application under

section 319 is a feeble attempt to justify the inaction of the police. Unfortunately, the

High Court failed in its duty to ensure that the sanctity of the criminal justice process

is preserved. This court has had to step in to ensure that the rule of law is

preserved.

39 We accordingly order and direct that the order of the High Court dated 23 July

2019 shall stand set aside. IA Nos 6837 and 5781 of 2019 shall in the circumstances

stand allowed. The bail granted to the second respondent shall stand cancelled. We

also direct that the second respondent shall be moved under the directions of the

DGP to another jail in Madhya Pradesh to ensure that the fair course of the criminal

proceedings is not deflected.

40 During the course of this proceeding, an enquiry was directed to be made into

the apprehensions expressed by the ASJ in his order dated 8 February 2021. An

independent and impartial judiciary is the cornerstone of democracy. Judicial

independence of the district judiciary is cardinal to the integrity of the entire system.

The courts comprised in the district judiciary are the first point of interface with

citizens. If the faith of the citizen in the administration of justice has to be preserved,

it is to the district judiciary that attention must be focused as well as the ‘higher’

judiciary. Trial judges work amidst appalling conditions – a lack of infrastructure,

inadequate protection, examples of judges being made targets when they stand up

for what is right and sadly, a subservience to the administration of the High Court for

29
transfers and postings which renders them vulnerable. The colonial mindset which

pervades the treatment meted out to the district judiciary must change. It is only then

that civil liberties for every stakeholder – be it the accused, the victims or civil society

– will be meaningfully preserved in our trial courts which are the first line of defense

for those who have been wronged.

41 The functioning of the judiciary as an independent institution is rooted in the

concept of separation of powers. Individual judges must be able to adjudicate

disputes in accordance with the law, unhindered by any other factors. Thus, “for that

reason independence of judiciary is the independence of each and every judge”.

The independence of individual judges also encompasses that they are independent

of their judicial superiors and colleagues. 10 This Court in Madras Bar Association

v. Union of India & Anr. 11 speaking through Justice L. Nageswara Rao has

observed:

“29. Impartiality, independence, fairness and
reasonableness in decision-making are the hallmarks of the
judiciary. If “impartiality” is the soul of the judiciary,
“independence” is the lifeblood of the judiciary. Without
independence, impartiality cannot thrive. Independence is
not the freedom for Judges to do what they like. It is the
independence of judicial thought. It is the freedom from
interference and pressures which provides the judicial
atmosphere where he can work with absolute commitment to
the cause of justice and constitutional values. It is also the
discipline in life, habits and outlook that enables a Judge to
be impartial. Its existence depends however not only on
philosophical, ethical or moral aspects but also upon several
mundane things—security in tenure, freedom from ordinary
monetary worries, freedom from influences and pressures

10
M.P. Singh, Securing the Independence of the Judiciary – The Indian Experience, Indiana International and
Comparative Law Review 10, No. 2 (2000): 245-292.

11

2021 SCC OnLine SC 463

30
within (from others in the judiciary) and without (from the
executive). The independence of an individual Judge, that is,
decisional independence; and independence of the judiciary
as an institution or an organ of the State, that is, functional
independence are the broad concepts of the principle of
independence of the judiciary/ tribunal.”

42 Our Constitution specifically envisages the independence of the district

judiciary. This is implicit in Article 50 of the Constitution which provides that the State

must take steps to separate the judiciary from the executive in the public services of

the State. The district judiciary operates under the administrative supervision of the

High Court which must secure and enhance its independence from external

influence and control. This compartmentalization of the judiciary and executive

should not be breached by interfering with the personal decision-making of the

judges and the conduct of court proceedings under them.

43 There is no gainsaying that the judiciary should be immune from political

pressures and considerations. A judiciary that is susceptible to such pressures

allows politicians to operate with impunity and incentivizes criminality to flourish in

the political apparatus of the State.

44 India cannot have two parallel legal systems, “one for the rich and the

resourceful and those who wield political power and influence and the other for the

small men without resources and capabilities to obtain justice or fight injustice.” The

existence of a dual legal system will only chip away the legitimacy of the law. The

duty also falls on the State machinery to be committed to the rule of law and

31
demonstrate its ability and willingness to follow the rules it itself makes, for its

actions to not transgress into the domain of “governmental lawlessness”.12

45 At the same time, we believe that judges, while being undeterred in their

commitment to follow the law and do justice, should be wary of launching into a

diatribe against the State authorities without due care and reflection.

46 The apprehensions expressed by the ASJ should be duly enquired into by the

High Court of Madhya Pradesh on its administrative side so that if they are found to

be true, necessary action should be taken in order to secure the fair administration

of justice. We have already taken note of the fact that the SDOP Hata had submitted

a complaint to the Registrar General. The complaint by the SDOP as well the the

order of the ASJ dated 8 February 2021 shall be placed before the Chief justice of

the Madhya Pradesh High Court on the administrative side by the Registrar General

within two weeks. The Chief Justice of the High Court of Madhya Pradesh is

requested to cause an enquiry to be made on the administrative side so that an

appropriate decision in that regard is taken. Having regard to this direction we are

not expressing any views on the report which has been submitted by the ADGP and

STF, Bhopal. The enquiry as directed above should be concluded expeditiously and

preferably within a period of one month from the date of the receipt of a certified

copy of this judgment. A copy of this order shall be communicated by the Registrar

(Judicial) of this court to the Registrar General of the High Court for compliance. The

appeals shall stand disposed of in the above terms.

12

Upendra Baxi, The Crisis of Legitimation of Law in The Crisis of the Indian Legal System: Alternative
Developments in Law (Vikas Publishing House, 1982).

32
47 Pending application(s), if any, stand disposed of.

……….………………………………………………..J.
[Dr Dhananjaya Y Chandrachud]

..…..….………………………………………………..J.
[Hrishikesh Roy]

New Delhi;

July 22, 2021

33



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