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Factors to be considered while granting bail to the accused: Supreme Court

The Supreme Court in the instant appeal set aside the order of the High Court after finding that the High Court by a very cryptic and casual order, de hors coherent reasoning has granted bail to the accused.

The Court referred to the judgment in Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr. – (2004) 7 SCC 528, wherein this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, the court is required to indicate the prima facie reasons justifying the grant of bail.

In the instant case, an appeal was preferred by the informant/appellant against the order of the High Court whereby bail was granted to the respondent/accused. The appellant pleaded that the High Court has not assigned reasons for grant of bail in the instant case wherein commission of a heinous crime has been alleged against the accused, for which, the accused, if convicted, could be sentenced to life imprisonment or even death penalty.

He further pleaded that the High Court in a very cryptic order, de hors any reasoning has granted bail to the respondent/­accused. It was urged that the grant of bail to the respondent/­accused was contrary to the settled principles of law and the judgments of this Court.

It was submitted on behalf of the appellant, who is the son of the deceased, that this appeal may be allowed by setting aside the impugned order.

Brief Facts of the Case:

The appellant had lodged an FIR against the second respondent/accused for the commission of offence under Section 302 of the Indian Penal Code, 1980. In the FIR he had stated that his father, aged about 55 years, was attacked by the respondent­ accused, at the Lalpura Pachar bus stand, with the intention of killing him.

The respondent­/accused pinned the deceased to the ground, sat on his chest and forcefully strangled him, thereby causing his death. Some associates of the respondent­ accused who were present at the spot of the incident, helped him in attacking and killing the deceased.

The respondent/accused had applied twice for bail before the trial Court but both the applications came to be rejected. Thereafter the accused/respondent had preferred another bail application before the High Court and by way of impugned order the High Court had granted bail to the respondent/accused. Aggrieved of the impugned order the appellant filed the instant appeal.

Observations of the Court:

The Court referred to the judgment in Prasanta Kumar Sarkar vs. Ashis Chaterjee ­­ (2010) 14 SCC 496 wherein this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non­- application of mind, rendering it illegal.

This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court’s decision to grant bail have also been detailed as under:

“It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point.

It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.”

The Court also referred to judgments elaborating the scope of the appellate Courts in determining the order granting bail distinguished from cancellation of bail.

In Mahipal vs. Rajesh Kumar ­ (2020) 2 SCC 118, it has been observed as under:

16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail.

The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted.”

The Court after referring to various judgments observed that it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage and the allegations of the offences by the accused would not have been crystalized as such.

There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail.

However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.

The Court further observed as under;

Ultimately, the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other.

The Court also referred to the decision in Gurcharan Singh vs. State (Delhi Admn.) ­ 1978 CriLJ 129 and observed that when bail has been granted to an accused, the State may, if new circumstances have arisen following the grant of such bail, approach the High Court seeking cancellation of bail under section 439 (2) of the CrPC.

However, if no new circumstances have cropped up since the grant of bail, the State may prefer an appeal against the order granting bail, on the ground that the same is perverse or illegal or has been arrived at by ignoring material aspects which establish a prima­ facie case against the accused.

Ultimately the Court allowed the appeal and while setting aside the order of the High Court held that the High Court granted bail to the accused by passing a cryptic and casual order de hors coherent reasoning. The Court further directed the accused to surrender before the concerned Jail authorities within a period of two weeks.

Cases referred by the Court:
Gudikanti Narasimhulu & Ors. vs. Public Prosecutor, High Court of Andhra Pradesh ­­ (1978) 1 SCC 240
In Prahlad Singh Bhati vs. NCT of Delhi & ORS – (2001) 4 SCC 280
Ram Govind Upadhyay vs. Sudarshan Singh – (2002) 3 SCC 598
In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr. – (2004) 7 SCC 528
In Prasanta Kumar Sarkar vs. Ashis Chaterjee ­­ (2010) 14 SCC 496
Ash Mohammad vs. Shiv Raj Singh @ Lalla Bahu & Anr. – (2012) 9 SCC 446
In Neeru Yadav vs. State of UP & Anr. – (2016) 15 SCC 422
In Anil Kumar Yadav vs. State (NCT of Delhi) – (2018) 12 SCC 129
In Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana Makwana (Koli) and Ors. (2021) 6 SCC 230

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Case Details:
Manoj Kumar Khokhar vs The State Of Rajasthan
Case No Criminal Appeal no. 36 of 2022
Coram: Justice M.R. Shah and Justice B.V. Nagarathna