Supreme Court's Division Bench sets aside order by Justices Rajeev Ranjan Prasad, Partha Sarthy, gnoring Court's 3-Judge Bench decision in Union of India vs. K.A. Najeeb?

In Dhan Jee Pandey vs. The State of Bihar & Anr. (2026), Supreme Court's Division Bench of Justices R. Mahadevan and A. Amanullah delivered a 21-page long judgment dated April 10, 2026, wherein, it concluded:"...The impugned order granting suspension of sentence to Respondent No. 2 is set aside. Consequently, the bail bond furnished by Respondent No. 2 stands cancelled. He is directed to surrender before the concerned trial Court within a period of two weeks from today, failing which the trial Court shall take necessary steps to secure his custody in accordance with law....The impugned order granting suspension of sentence to Respondent No. 2 is set aside. Consequently, the bail bond furnished by Respondent No. 2 stands cancelled. He is directed to surrender before the concerned trial Court within a period of two weeks from today, failing which the trial Court shall take necessary steps to secure his custody in accordance with law." The judgement was authored by Justice Mahadevan. The impugned 5-page long order dated order dated November 22, 2024 in Shekhar Pandey @ Shekhar Suman Pandey @ Sintu Pandey @ Situ vs. The State of Bihar (2024) was authored by High Court's Division Bench of Justices Rajeev Ranjan Prasad and Partha Sarthy. The case had arisen out of PS. Case No.-4/2016.  

Justice Prasad had authored the High Court's order. His reasoning appears defensible in the light of the decision in Union of India v. KA Najeeb AIR 2021 SC 712, 3-Judge Bench of the Supreme Court delivered on February 1, 2021. The relevant part of para 18 of the judgement reads:

“... at the commencement of proceedings, courts are expected to appreciate the legislative position against grant of bail but the rigours of such provision melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence…”

The decision in Najeeb's case “lays down the constitutional approach arising from Article 21, whereas Watali (supra) explains the statutory approach arising out of Section 4-3(D)(5) of UAPA” (para 21 of Mohamad Hakim v. State (NCT of Delhi) 2021 SCC Online Del 4623. In its decision in National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, delivered by the Supreme Court on April 2, 2019.

 

The judgement by Justice Mahadevan reads: "A perusal of the record indicates that the prosecution case is founded on ocular evidence, which has been duly appreciated and accepted by the trial Court. Without considering the same in a proper perspective, the High Court erred in granting suspension of sentence to Respondent No. 2 and released him on bail. 19. The reliance placed by the High Court on the circumstance that the fatal shot was attributed to a co-accused, while Respondent No. 2 has been convictedwith the aid of Section 34 IPC, is wholly misconceived. The doctrine of constructive liability under Section 34 IPC is well settled; where an offence is committed in furtherance of a common intention, each participant is equally liable for the act done in execution thereof. The absence of a specific overt act cannot, at this stage, dilute the culpability of the convict, particularly in the face of a finding of common intention. 20. It is further evident that the High Court has embarked upon a selective consideration of certain aspects of the prosecution case, which in substance amounts to a premature reappreciation of evidence. Such an approach is directly contrary to the law laid down by this Court in Om Prakash Sahni (supra). 21. As held in State of Haryana v. Hasmat (supra), undue weight cannot be accorded to the period of incarceration or the pendency of the appeal in isolation, particularly where the conviction is founded on credible evidence. 22. The criminal antecedents of Respondent No. 2 also assume significance. The prosecution has brought on record multiple prior cases registered against him, including offences involving violence and use of arms. Though it has been contended that such cases arose out of political rivalry and have culminated in acquittal, such a contention cannot, at this stage, efface the relevance of antecedents as a factor in assessing the propriety of granting suspension of sentence. 23. Additionally, material has been placed to indicate that Respondent No. 2 has allegedly attempted to intimidate the appellant by issuing threats and initiating false cases. The explanation offered on behalf of Respondent No. 2 that such allegations are motivated, does not inspire confidence of this Court, particularly at this interlocutory stage. 24. Having regard to the seriousness of the offence, the nature of the evidence as accepted by the trial Court, the absence of any apparent infirmity in the judgment of conviction, and the settled legal position governing suspension of sentence, this Court is of the considered view that the High Court was not justified in granting suspension of sentence to Respondent No. 2. The impugned order, therefore, warrants interference by this Court." 

 

Notably, Supreme Court's Division Bench of Justices V.R. Krishnaiyer and N.L. Untwalia in State of Rajasthan vs. Balchand (1977) 4 SCC 308 held:"The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court." Justice Mahadevan's judgement has taken note of  

Justice Mahadevan relied on Supreme Court's decision in State of Haryana vs. Hasmat (2004) 6 SCC 175, wherein, the Court held that suspension of sentence in serious offences must not be granted as a matter of routine, and that the appellate court must apply its mind to the nature of the offence, the manner of its commission, and the gravity of the findings recorded by the trial Court. The relevant paragraphs are: “6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.….9. In Vijay Kumar v. Narendra [(2002) 9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan Kumar Jaiswal [(2002) 9 SCC 366 : 2003 SCC (Cri) 1197] it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case [(2002) 9 SCC 364 : 2003 SCC (Cri) 1195] it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court while passing the impugned order." Notably, Justice Mahadevan's judgement does not refer to the subsequent decision of 2021 in Najeeb's case.  

It is crystal clear from the decision in Najeeb's case that the settled position of law is that the restriction on grant of bail will hold at the initial stages, but as time progresses the statutory restrictions, which “draw this justification on the premise that trial in such cases would be concluded expeditiously” gets diluted. It has been underlined by the Bombay High Court in Vinay Vivek Aranha vs. Union of India and another, (BA 2641/2021).

Significantly, a judgement delivered in ignorance of a relevant statutory position is deemed to be per incuriam. In para 183 of the Supreme Court's decision in AR Antulay v. RS Nayak (1988) 2 SCC 602) held that a decision set aside would “demand the decision of its precedent value”. In para 41 of its decision in State of UP and Anr. v. Synthetics and Chemicals Ltd. & Anr. (1991 4 SCC 139) cited from page no. 153 of Salmond on Jurisprudence, 12th Ed. that a “decision passes sub-silentio when the particular point of law involved in the decision is not perceived by the court or present in its mind”. In Punjab Land Development and Reclamation Corporation Ltd. v. Labour Court (1980) 3 SCC 682), it held that the “Supreme Court may not be said to declare the law on these subjects if the relevant provisions were not really present to its mind”.

The criminal appeal was filed in the Supreme Court by the appellant/informant challenging the judgment and order dated November 22, 2024 passed by Patna High Court in Criminal Appeal (DB) No. 1180 of 2018, whereby, the High Court, during the pendency of the appeal, had suspended the sentence of life imprisonment awarded to Respondent No. 2, Shekhar Pandey @ Shekhar Suman Pandey @ Sintu Pandey @ Situ and released him on bail. The prosecution case was that on the basis of the written information (fardbayan) of the appellant /informant, namely Dhan Jee Pandey, Buxar P. S. case dated January 4, 2016 was registered under Sections 302, 307, 120B and 34 of the Indian Penal Code, 1860 and Section 27 of the Arms Act, 1959 against Respondent No. 2 and other accused persons. It was alleged that on January 4, 2016 at about 04.15 p.m., the appellant, along with his elder brother (deceased), Ramashankar Pandey @ Jhamman Pandey, was proceeding towards his village on a motorcycle. On the way, they stopped at a betel shop located at the village chatti. At that time, the appellant’s father-in-law, Mukteshwar Mishra, also arrived and engaged in conversation with the appellant at a short distance from the shop. In the meantime, Respondent No. 2 along with other accused persons reached the spot and began abusing the deceased. Immediately thereafter, two accused persons, namely Shiv Jee Pandey and Ghanshyam Pandey, caught hold of the deceased, while the others took out firearms. Shiv Jee Pandey then fired a gunshot at the head of the deceased, causing fatal injuries. The other accused persons also fired at the appellant, who narrowly escaped. Thereafter, all the accused fled the scene on motorcycles. The deceased succumbed to the injuries and died on the spot.

Upon hearing the interlocutory application, the appellant Shekhar Pandey @ Shekhar Suman Pandey @ Sintu Pandey @ Situ wherein he had renewed his prayer for suspension of sentence and release on bail during pendency of the appeal, in his order, Justice Prasad had concluded: "....we are of the opinion that in the kind of the allegations against the appellant and the materials in which he has been convicted showing that he along with other had caught hold of the deceased, the allegation being general in nature and he has already spent six years seven months in incarceration but the appeal has not been listed for hearing, we direct suspension of sentence and release of the appellant on bail, during pendency of the appeal, on furnishing bail bond of Rs.25,000/-(Rupees Twenty Five Thousand Only) with two sureties of the like amount each to the satisfaction of learned A.D.J.-II-cum-Special Judge, Excise Court, Buxar in connection with Sessions Trial No.265 of 2016 arising out of Buxar (I) P.S. Case No.4 of 2016. 10. The fine, if any, imposed as a part of sentence shall remain suspended during pendency of the appeal. 11. It is made clear that the observations made hereinabove are only prima- facie and tentative for the purpose of suspension of sentence and bail only which would not cause prejudice to the either parties."

 

While rejecting the prayer for bail of the appellant on earlier occasion, the High Court in it’s order dated January 21, 2020 had observed that the Court was not inclined to grant bail to the appellant at this stage. But at the subsequent stage, the appellant had already remained in incarceration for over six years seven months and since the rejection of his prayer for bail more than 4½ years had gone past but the appeal had not yet been listed for hearing. 

 

The Supreme Court "emphasised that reasons must be recorded in writing, reflecting due consideration of relevant factors, and that orders granting suspension of sentence should not be passed mechanically." 

 

In Prem Prakash vs. Union of India through Directorate of Enforcement (2024) SLP (Crl.) 5416/2024, Supreme Court in its decision dated August 28, 2024 upheld the principle laid down in Balchand of bail being the rule and jail being the exception--- through which it can be deduced that in cases of arrest by ED as well, the natural bail principle is to follow. It referred to the Supreme Court's decision in a PMLA matter in the case of Vijay Madanlal Choudhary (2022). Notably, the decision in the case of Prem Prakash relied upon a decision by three justices in Raja Ram Jaiswal AIR 1964 SC 828 but failed to mention that after the decision in the case of Raja Ram Jaiswal came the Constitution Bench's decision in Badku Joti Savant AIR 1966 SC 1746.