Sunday, 8 December 2019

Duty of court while deciding bail application of accused in serious offences

Merely recording ―having perused the record‖ and ―on the facts and
circumstances of the case‖ does not sub-serve the purpose of a reasoned judicial
order. It is a fundamental premise of open justice, to which our judicial system is
committed, that factors which have weighed in the mind of the judge in the
rejection or the grant of bail are recorded in the order passed. Open justice is
premised on the notion that justice should not only be done, but should manifestly
and undoubtedly be seen to be done. The duty of judges to give reasoned
decisions lies at the heart of this commitment. Questions of the grant of bail
concern both liberty of individuals undergoing criminal prosecution as well as the
interests of the criminal justice system in ensuring that those who commit crimes
are not afforded the opportunity to obstruct justice. Judges are duty bound to
explain the basis on which they have arrived at a conclusion.

24 In Kalyan Chandra Sarkar v Rajesh Ranjan13, a two judge Bench of this
Court was required to assess the correctness of a decision of a High Court
enlarging the accused on bail. Justice Santosh Hegde, speaking for the Court,
discussed the law on the grant of bail in non-bailable offences and held:
―11. The law in regard to grant or refusal of bail is very well
settled. The court granting bail should exercise its discretion
in a judicious manner and not as a matter of course. Though
at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merit of the
case need not be undertaken, there is a need to indicate in
such orders reasons for prima facie concluding why bail
was being granted particularly where the accused is
charged of having committed a serious offence. Any
order devoid of such reasons would suffer from nonapplication
of mind.‖
(Emphasis supplied)
25 Where an order refusing or granting bail does not furnish the reasons that
inform the decision, there is a presumption of the non-application of mind which
may require the intervention of this Court. Where an earlier application for bail
has been rejected, there is a higher burden on the appellate court to furnish
specific reasons as to why bail should be granted.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1843 of 2019

Mahipal Vs  Rajesh Kumar @ Polia 

Dated:December 5, 2019.
Dr Dhananjaya Y Chandrachud, J

1 Leave granted.
2 This batch of appeals arises from a judgment of a learned Single Judge of
the High Court of Rajasthan at its Jaipur Bench dated 10 May 2019. Allowing the
bail application filed under Section 439 of the Code of Criminal Procedure 19731,
the High Court enlarged the first respondent on bail subject to certain conditions
therein. The original complainant is in appeal before this Court.
3 By similar orders, the learned Single Judge granted bail to the other four
accused – Anil Kumar, Ajay Kumar, Vikas Kumar and Vijay Kumar. The appeals
filed by the appellant against those orders have been tagged with the present
appeal. Since the facts in all these matters and the questions involved are similar,
they have been heard together and are being disposed of by this common
judgment. For the sake of convenience, the facts in SLP (Crl.) No. 6339 of 2019
are discussed.
4 A First Information Report2 was lodged by the appellant on 3 December
2018 stating that his now deceased nephew – Akhilesh had visited town on leave
for a month for his marriage. It was stated that at about 7.00 pm on 2 December
1 CrPC
2 FIR No. 347/2018

2018, the deceased and his friend Aashish left the matrimonial home to run an
errand. At about 7.30 pm, the deceased and Aashish stopped their bike on the
road which caused a quarrel with two accused persons – Vijay and Anil, who then
hurled abuses at the deceased. At that time, five to six boys armed with dandas
assaulted the deceased who was rescued by near-by villagers. It was stated that
the deceased left the scene on his motorcycle only to be confronted a short
distance thereafter by the accused – Anil, Ajay, Rajesh (the first respondent),
Vikas and Vijay. It was alleged that the accused used rods to beat the deceased
with an intention to kill him. It was alleged that after beating the deceased, the
accused fled from the scene of the incident. The deceased was rushed to
Jhunjhunu R & R Hospital at Chirawa. However, owing to the serious nature of
the injuries, he was referred to Fortis Hospital at Jaipur where he was declared
dead.
5 The post-mortem report was recorded on 3 December 2018. Twenty-seven
ante-mortem injuries on the body of the deceased were noted. The first
respondent was arrested on 3 December 2018. The statements under Section
161 of the CrPC of the appellant and Aashish were recorded. A charge-sheet
was filed against the five accused on 10 March 2019 under Sections 147, 148,
149, 302 and 397 of the Indian Penal Code 1908.3 Cognizance was taken by the
Judicial Magistrate, Pilani on 27 March 2019. As the accused were charged
under Section 302, the case was committed to the Additional Sessions Judge,
Jhunjhunu for trial.
3 Penal Code

6 The bail application filed by the first respondent before the Additional
Sessions Judge was rejected on 10 April, 2019. Thereafter, the first respondent
filed a bail application before the High Court of Rajasthan, which was allowed.
The appellant has filed the present appeal before this Court assailing the order of
the High Court enlarging the first respondent on bail. Notice was issued by this
Court on 12 July 2019.
7 Assailing the judgment of the High Court, the learned counsel appearing
on behalf of the appellant submits:
(i) A prima facie involvement of the accused has emerged upon
investigation, in a case involving a gruesome murder. There was no
reason for the High Court to exercise its power to grant bail;
(ii) The High Court has not passed a reasoned order justifying the grant of
bail to the accused;
(iii) The High Court failed to appreciate the statement of the sole injured
eye-witness Aashish who was present at the spot of the incident that
the accused were responsible for the death of the deceased;
(iv) The post-mortem report observes twenty-seven ante-mortem injuries
and opines that the injuries causing death were inflicted within six hours
of death; and
(v) The phone of the deceased was recovered from one of the accused
Anil, while the bike involved in the incident was recovered from the first
respondent.

8 The second respondent – the State of Rajasthan has filed a counteraffidavit
assailing the order of the High Court on grounds similar to those urged
by the appellant. It was also stated that another FIR4 had been registered against
the friends of the accused alleging an intention to kill the friend of the deceased –
Ashish.
9 On the other hand, the learned counsel appearing on behalf of the first
respondent contended that:
(i) On the date of the incident, there was an altercation between the
deceased and the first respondent, in which the deceased was the
aggressor. Thereafter, the deceased fell off his bike and suffered
injuries which caused his eventual death;
(ii) The first respondent has been in custody for five months on the basis of
a false allegation in the FIR;
(iii) Even on a reading of the allegations in the FIR and the charge sheet,
no prime facie case has been made out against the accused justifying
the setting aside of bail; and
(iv) The registration of an FIR against the friends of the accused has no
bearing on the present case.
A common counter affidavit was filed by all the five accused before this Court
reaffirming the above contentions.
10 These rival submissions fall for our consideration.
4 FIR No. 52/2019

11 Essentially, this Court is required to analyse whether there was a valid
exercise of the power conferred by Section 439 of the CrPC to grant bail. The
power to grant bail under Section 439 is of a wide amplitude. But it is well settled
that though the grant of bail involves the exercise of the discretionary power of
the court, it has to be exercised in a judicious manner and not as a matter of
course. In Ram Govind Upadhyay v Sudarshan Singh5, Justice Umesh
Banerjee, speaking for a two judge Bench of this Court, laid down the factors that
must guide the exercise of the power to grant bail in the following terms:
“3. Grant of bail though being a discretionary order — but,
however, calls for exercise of such a discretion in a judicious
manner and not as a matter of course. Order for bail bereft of
any cogent reason cannot be sustained. Needless to record,
however, that the grant of bail is dependent upon the
contextual facts of the matter being dealt with by the court
and facts, however, do always vary from case to case...The
nature of the offence is one of the basic considerations for the
grant of bail — more heinous is the crime, the greater is the
chance of rejection of the bail, though, however, dependent
on the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed
to be relevant considerations may also be noticed at this
juncture, though however, the same are only illustrative and
not exhaustive, neither there can be any. The considerations
being:
(a) While granting bail the court has to keep in mind not
only the nature of the accusations, but the severity of the
punishment, if the accusation entails a conviction and the
nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being
tampered with or the apprehension of there being a threat for
the complainant should also weigh with the court in the matter
of grant of bail.
(c) While it is not expected to have the entire evidence
establishing the guilt of the accused beyond reasonable doubt
but there ought always to be a prima facie satisfaction of the
court in support of the charge.
(d) Frivolity in prosecution should always be considered
and it is only the element of genuineness that shall have to be
5 (2002) 3 SCC 598

considered in the matter of grant of bail, and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail.‖
12 The determination of whether a case is fit for the grant of bail involves the
balancing of numerous factors, among which the nature of the offence, the
severity of the punishment and a prima facie view of the involvement of the
accused are important. No straight jacket formula exists for courts to assess an
application for the grant or rejection of bail. At the stage of assessing whether a
case is fit for the grant of bail, the court is not required to enter into a detailed
analysis of the evidence on record to establish beyond reasonable doubt the
commission of the crime by the accused. That is a matter for trial. However, the
Court is required to examine whether there is a prima facie or reasonable ground
to believe that the accused had committed the offence and on a balance of the
considerations involved, the continued custody of the accused sub-serves the
purpose of the criminal justice system. Where bail has been granted by a lower
court, an appellate court must be slow to interfere and ought to be guided by the
principles set out for the exercise of the power to set aside bail.
13 The principles that guide this Court in assessing the correctness of an
order passed by the High Court granting bail were succinctly laid down by this
Court in Prasanta Kumar Sarkar v Ashis Chatterjee6. In that case, the accused
was facing trial for an offence punishable under Section 302 of the Penal Code.
Several bail applications filed by the accused were dismissed by the Additional
6 (2010) 14 SCC 496

Chief Judicial Magistrate. The High Court in turn allowed the bail application filed
by the accused. Setting aside the order of the High Court, Justice DK Jain,
speaking for a two judge Bench of this Court held:
―9. … 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.

12. It is manifest that if the High Court does not advert to
these relevant considerations and mechanically grants bail,
the said order would suffer from the vice of non-application
of mind, rendering it to be illegal…‖
14 The provision for an accused to be released on bail touches upon the
liberty of an individual. It is for this reason that this Court does not ordinarily
interfere with an order of the High Court granting bail. However, where the
discretion of the High Court to grant bail has been exercised without the due

application of mind or in contravention of the directions of this Court, such an
order granting bail is liable to be set aside. The Court is required to factor,
amongst other things, a prima facie view that the accused had committed the
offence, the nature and gravity of the offence and the likelihood of the accused
obstructing the proceedings of the trial in any manner or evading the course of
justice. The provision for being released on bail draws an appropriate balance
between public interest in the administration of justice and the protection of
individual liberty pending adjudication of the case. However, the grant of bail is to
be secured within the bounds of the law and in compliance with the conditions
laid down by this Court. It is for this reason that a court must balance numerous
factors that guide the exercise of the discretionary power to grant bail on a case
by case basis. Inherent in this determination is whether, on an analysis of the
record, it appears that there is a prima facie or reasonable cause to believe that
the accused had committed the crime. It is not relevant at this stage for the court
to examine in detail the evidence on record to come to a conclusive finding.
The decision of this Court in Prasanta has been consistently followed by this
Court in Ash Mohammad v Shiv Raj Singh,7 Ranjit Singh v State of Madhya
Pradesh8, Neeru Yadav v State of U.P.9, Virupakshappa Gouda v State of
Karnataka10, and State of Orissa v Mahimananda Mishra11.
15 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
7 (2012) 9 SCC 446
8 (2013) 16 SCC 797
9 (2014) 16 SCC 508
10 (2017) 5 SCC 406
11 (2018) 10 SCC 516

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. In Neeru Yadav v State of Uttar
Pradesh,12 the accused was granted bail by the High Court. In an appeal against
the order of the High Court, a two judge Bench of this Court surveyed the
precedent on the principles that guide the grant of bail. Justice Dipak Misra (as
the learned Chief Justice then was) held:
―…It is well settled in law that cancellation of bail after it is
granted because the accused has misconducted himself or of
some supervening circumstances warranting such
cancellation have occurred is in a different compartment
altogether than an order granting bail which is unjustified,
illegal and perverse. If in a case, the relevant factors which
should have been taken into consideration while dealing with
the application for bail and have not been taken note of bail or
it is founded on irrelevant considerations, indisputably the
superior court can set aside the order of such a grant of bail.
Such a case belongs to a different category and is in a
separate realm. While dealing with a case of second nature,
the Court does not dwell upon the violation of conditions by
the accused or the supervening circumstances that have
happened subsequently. It, on the contrary, delves into the
justifiability and the soundness of the order passed by the
Court…‖
16 Where a court considering an application for bail fails to consider relevant
factors, an appellate court may justifiably set aside the order granting bail. An
appellate court is thus required to consider whether the order granting bail suffers
12 (2015) 15 SCC 422

from a non-application of mind or is not borne out from a prima facie view of the
evidence on record. It is thus necessary for this Court to assess whether, on the
basis of the evidentiary record, there existed a prima facie or reasonable ground
to believe that the accused had committed the crime, also taking into account the
seriousness of the crime and the severity of the punishment. The order of the
High Court in the present case, in so far as it is relevant reads:
―2. Counsel for the petitioner submits that the petitioner has
been falsely implicated in this matter. Counsel further submits
that, the deceased was driving his motorcycle, which got
slipped on a sharp turn, due to which he received injuries on
various parts of body including ante-mortem head injuries on
account of which he died. Counsel further submits that the
challan has already been presented in the court and
conclusion of trial may take long time.
3. Learned Public Prosecutor and counsel for the complainant
have opposed the bail application.
4. Considering the contentions put-forth by the counsel for the
petitioner and taking into account the facts and circumstances
of the case and without expressing opinion on the merits of
the case, this court deems it just and proper to enlarge the
petitioner on bail.‖
17 In assessing the rival submissions, it is necessary to advert to the findings
of the post-mortem report dated 3 December 2018.
On the basis of the injuries, the post-mortem report concluded:
―All above mentioned injuries are ante mortem in nature.
Duration within about 6 hrs prior to death.
We the members of medical board are of the opinion that
cause of death is COMA brought about as a result of ante
mortem head injuries mentioned in this PMR, sufficient to
cause death in ordinary course of nature. However final
opinion will be given after receiving FSL reports of above sent
samples.‖

A total of twenty-seven ante-mortem injuries were recorded of which seven were
found to be inflicted on the head. This led the members of the medical board to
conclude that the cause of death was coma brought about by the result of the
head injuries. The learned counsel for the first respondent contended that the
deceased fell from the bike and sustained injuries which led to his death.
However, it is not for the court to assess in detail the evidence on record to come
to a conclusive finding on a chain of causation. A court assessing a plea of bail is
required to find a prima facie view of the possibility of the commission of the
crime by the accused and not conclude that the alleged crime was in fact
committed by the accused beyond reasonable doubt.
18 The statement of Aashish Kumar who was allegedly present with the
deceased at the time of the incident was recorded under Section 161. The
statement details the alleged incident and names all five accused, attributing to
them the common intention to kill the deceased. It was stated that the accused
thereafter drove away with the bike of the deceased.
19 The following extract from the charge-sheet dated 10 March 2019 is
relevant:
―…Thereafter, in compliance to the Order No.
Complaint/2018/4899-4900 dated 28.12.18 of the Hon’ble
Superintendent of Police of the District, further investigations
of the case were started by the Circle Officer, Smt. Mamta
Saraswat, R.P.S. Circle, Jhunjhunu City. During investigation
proceedings, Circle Officer Smt. Mamta Saraswat, R.P.S.
Circle Jhunjhuna City conducted investigations of all the
accused persons arrested in the present case namely Vijay
Kumar, Ajay Kumar alias Sheodan, Vikas Kumar, Anil Kumar
alias Bhirriya and Rajesh Kumat alias Pauliya. Mobile of
deceased was recovered from accused Anil Kumar alias
Bhirriya according to his disclosure memo under Section

277 of the Evidence Act. Seizure memo of mobile was
concluded and attached at the case file. Motorcycle used
in the incident, according to the disclosure memo, was
recovered from accused Rajesh Kumar alias Pauliya.

Thereafter, friends of Anil Kumar namely Ajay Kumar, Rajesh
and Vikas, all the three came at the place of occurrence
Garakhera Tiraha and immediately on coming there, they
started giving beatings to deceased Akhilesh and Monu with
lathies and thereafter, Anil Kumar and Vijay Kumar also
started giving beatings to deceased Akhilesh and Monu.

…however, it has been mentioned that seven injuries have
been caused at the head of the deceased.This makes clear
that the accused persons caused many serious injuries on the
head of the deceased at the place of occurrence Mark A at
the time of occurrence on the head of the deceased, due to
which, deceased after running from there went in Coma and
collided with the Tank, due to which, Akhilesh has died due to
the injuries sustained by him.‖
(Emphasis supplied)
20 Without expressing any finding or opinion on the merits of the case, a case
has been made out for setting aside the bail granted by the High Court. The High
Court has manifestly erred in not taking note of the material which has been
adverted to above. The order passed by the High Court fails to notice material
facts and shows a non-application of mind to the seriousness of the crime and
the circumstances referred to earlier which ought to have been taken into
consideration.
21 The High Court has erred in not considering material relevant to the
determination of whether the accused were to be enlarged on bail. The order of

the High Court enlarging the accused on bail is erroneous and liable to be set
aside.
22 There is another reason why the judgment of the learned Single Judge has
fallen into error. It is a sound exercise of judicial discipline for an order granting or
rejecting bail to record the reasons which have weighed with the court for the
exercise of its discretionary power. In the present case, the assessment by the
High Court is essentially contained in a single paragraph which reads:
―4. Considering the contentions put-forth by the counsel for
the petitioner and taking into account the facts and
circumstances of the case and without expressing opinion on
the merits of the case, this court deems it just and proper to
enlarge the petitioner on bail.‖
23 Merely recording ―having perused the record‖ and ―on the facts and
circumstances of the case‖ does not sub-serve the purpose of a reasoned judicial
order. It is a fundamental premise of open justice, to which our judicial system is
committed, that factors which have weighed in the mind of the judge in the
rejection or the grant of bail are recorded in the order passed. Open justice is
premised on the notion that justice should not only be done, but should manifestly
and undoubtedly be seen to be done. The duty of judges to give reasoned
decisions lies at the heart of this commitment. Questions of the grant of bail
concern both liberty of individuals undergoing criminal prosecution as well as the
interests of the criminal justice system in ensuring that those who commit crimes
are not afforded the opportunity to obstruct justice. Judges are duty bound to
explain the basis on which they have arrived at a conclusion.

24 In Kalyan Chandra Sarkar v Rajesh Ranjan13, a two judge Bench of this
Court was required to assess the correctness of a decision of a High Court
enlarging the accused on bail. Justice Santosh Hegde, speaking for the Court,
discussed the law on the grant of bail in non-bailable offences and held:
―11. The law in regard to grant or refusal of bail is very well
settled. The court granting bail should exercise its discretion
in a judicious manner and not as a matter of course. Though
at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merit of the
case need not be undertaken, there is a need to indicate in
such orders reasons for prima facie concluding why bail
was being granted particularly where the accused is
charged of having committed a serious offence. Any
order devoid of such reasons would suffer from nonapplication
of mind.‖
(Emphasis supplied)
25 Where an order refusing or granting bail does not furnish the reasons that
inform the decision, there is a presumption of the non-application of mind which
may require the intervention of this Court. Where an earlier application for bail
has been rejected, there is a higher burden on the appellate court to furnish
specific reasons as to why bail should be granted.
26 The perfunctory analysis by the High Court in the present case cannot be
sustained. For the reasons indicated above, the appeal is allowed and the order
of the High Court enlarging the first respondent on bail is set aside.
27 The connected appeals also are allowed in terms of the judgment recorded
above.
13 (2004) 7 SCC 528

28 Since the accused have been released on bail during the pendency of
these proceedings, we order that the bail bonds shall stand cancelled and the five
accused shall be taken into custody forthwith. A copy of this judgment shall be
forwarded to the Additional Sessions Judge, Chirawa District, Jhunjhunu and the
police station concerned to secure compliance.
29 We clarify that the present judgment shall not be construed as the
expression of any opinion on the merits of the case at the trial.
.……......................................................J
[Dr Dhananjaya Y Chandrachud]
.……......................................................J
[Hrishikesh Roy]
New Delhi;
December 5, 2019.

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