Code of Criminal Procedure, 1973 – Section 439 – Principles governing grant of bail – Grounds for cancellation of bail – Explained – For grant or denial of bail, the “nature of crime” has a huge relevancy – Importance of assigning reasoning for grant or denial of bail can never be undermined. AIR 2022 SC 2514 : JT 2022 (5) SC 451
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 crystalised 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. 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. Thus, while elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum. Manoj Kumar Khokhar v. State of Rajasthan, JT 2022 (1) SC 208 : 2022 (1) SCALE 368
While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence/s alleged against an accused. Brijmani Devi v. Pappu Kumar, JT 2021 (12) SC 287
The Apex Court made observations with respect to the exercise of appellate power to determine whether bail has been granted for valid reasons as distinguished from an application for cancellation of bail. i.e. the Court distinguished between setting aside a perverse order granting bail vis-a-vis cancellation of bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. Bhoopendra Singh v. State of Rajasthan, AIR 2021 SC 5514 : 2021 (4) RCR (Criminal) 664 : JT 2021 (10) SC 434 : 2021 (13) SCALE 38
A court granting bail could not obviate its duty to apply its judicial mind and indicate reasons as to why bail has been granted or refused. Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Makwana (Koli), 2021 (222) AIC 91 : AIR 2021 SC 2011 : 2021 (2) ALD (Cri) 233 : 2021 (4) BLJ 80 : 2021 (4) GLR 2716 : 2021 (2) PLJR 430 : 2021 (3) MWN (Cr) 289 : 2021 (3) RCR (Criminal) 60 : (2021) 6 SCC 230
Elaborate reasons need not be assigned for the grant of bail. What is of essence is that the record of the case ought to have been perused by the court granting bail. Myakala Dharmarajam v. State of Telangana, AIR 2020 SC 317 : 2020 (2) ALD (Cri) 10 : 2020 (110) AllCC 623 : 2020 (1) ALT (Cri) 299 : 2020 (129) CLT 776 : 2020 (1) Crimes 106 : 2020 CriLJ 1457 : 2020 (1) RCR (Criminal) 540 : (2020) 2 SCC 743
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. Mahipal v. Rajesh Kumar @ Polia, AIR 2020 SC 670 : 2020 (110) AllCC 221 : 2020 (2) ALT (Cri) 180 : 2019 (4) Crimes 321 : 2019 (4) JKJ 169 : 2020 (2) Mh.L.J. (Cri.) 341 : (2020) 2 SCC 118 : 2020 (1) SCJ 11 : 2020 (1) UC 225
The Apex Court, while considering an appeal from an order of cancellation of bail, has spelt out some of the significant considerations of which a court must be mindful, in deciding whether to grant bail. In doing so, Apex Court has stated that while it is not possible to prescribe an exhaustive list of considerations which are to guide a court in deciding a bail application, the primary requisite of an order granting bail, is that it should result from judicious exercise of the court’s discretion. While granting bail, the relevant considerations are: (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. No doubt, this list is not exhaustive. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court. Anil Kumar Yadav v. State (NCT of Delhi), 2018 (102) ACrC 910 : 2018 (183) AIC 51 : AIR 2017 SC 5398 : AIR 2017 SCW) 5398 : 2018 (1) ACJ 279 : 2018 (1) Cri.CC 850 : 2017 (4) Crimes 525 : 2018 (Supp.1) CutLT (Cri) 617 : 2017 (244) DLT 204 : 2018 (1) JBCJ 305 : 2017 (6) JKLT 132 : JT 2017 (11) SC 522 : 2017 (3) PCCR 457 : 2018 (1) RCR (Criminal) 90 : 2017 (6) RAJ 310 : 2017 (13) Scale 448 : (2018) 12 SCC 129 : 2018 SCR (Cri) 44 : 2017 (8) SLT 145 : 2018 (1) Supreme 109
It is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order. Dipak Misra, J. Neeru Yadav v. State of U.P., 2015 (3) ACR 3470 : AIR 2015 SC 3703 : AIR 2015 SCW 5416 : 2016 (1) ALT (Cri) 210 : 2015 (4) Crimes 101 : 2015 CriLJ 4862 : 2015 (4) JCC 2668 : 2015 (3) JIC 765 : JT 2015 (9) SC 61 : 2015 (4) PLJR 420 : 2015 (10) Scale 234 : (2016) 15 SCC 422 : 2015 (7) SLT 640 : 2015 (7) Supreme 196
Another factor which should guide the courts’ decision in deciding a bail application is the period of custody. However, the period of custody has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents of the accused, if any. Further, the circumstances which may justify the grant of bail are to be considered in the larger context of the societal concern involved in releasing an accused, in juxtaposition to individual liberty of the accused seeking bail. Ash Mohammad v. Shiv Raj Singh @ Lalla Bahu, AIR 2012 SCW 5243 : 2012 All.M.R.(Cri.) 3756 : 2012 (4) Crimes 144 : 2012 CriLJ 4670 : JT 2012 (9) SC 155 : 2013 (1) RCR (Criminal) 277 : 2012 (9) Scale 165 : (2012) 9 SCC 446 : 2012 (3) SCC (Cri) 1172 : 2012 (7) SLT 286 : 2012 (6) Supreme 722
Where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. It is trite that the Apex 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 the Apex 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. Prasanta Kumar Sarkar v. Ashis Chaterjee, AIR 2011 SC 274 : AIR 2010 SCW 6699 : 2010 (4) Crimes 297 : 2011 CriLJ 302 : JT 2010 (12) SC 45 : 2011 (1) RLW 949 : 2010 (11) Scale 408 : (2010) 14 SCC 496 : 2010 (8) SLT 44 : 2010 (7) Supreme 674
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. Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, AIR 2004 SC 1866 : AIR 2004 SCW 1581 : 2004 (2) Bom.C.R. (Cri.) 404 : 2004 (3) Crimes 63 : 2004 CriLJ 1796 : JT 2004 (3) SC 442 : 2004 (3) Scale 257 : (2004) 7 SCC 528 : 2004 (4) Supreme 84
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. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. 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. Banerjee, J. Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 : AIR 2002 SCW 1342 : 2002 CriLJ 1849 : JT 2002 (3) SC 185 : 2002 (3) Scale 12 : (2002) 3 SCC 598 : 2002 (2) Supreme 457
The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. Prahlad Singh Bhati v. NCT of Delhi, AIR 2001 SC 1444 : AIR 2001 SCW 1263, 2001 Bom.C.R.(Cri.) 727 : 2001 (2) Crimes 87 : 2001 CriLJ 1730 : JT 2001 (4) SC 116 : 2001 (2) Scale 572 : (2001) 4 SCC 280 : 2001 SCC (Cri) 674 : 2001 (2) Supreme 550
A court deciding a bail application should avoid elaborate discussion on merits of the case as detailed discussion of facts at a pretrial stage is bound to prejudice fair trial. Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785 : 1980 CriLJ 426 : (1980) 2 SCC 559 : 1980 SCC (Cri) 508 : 1980 (3) SCR 15 : 1980 UJ 428
It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further about the criminal record of a defendant, is therefore not an exercise in irrelevance. Krishna Iyer, J. Gudikanti Narasimhulu v. Public Prosecutor, AIR 1978 SC 429 : 1978 CriLJ 502 : (1978) 1 SCC 240 : 1978 SCC (Cri) 115 : 1978 (2) SCR 371
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. Gurcharan Singh v. State (Delhi Admn.), AIR 1978 SC 179 : 1978 CriLJ 129 : (1978) 1 SCC 118 : 1978 (1) SCC (Cri) 41 : 1978 (2) SCR 358
Code of Criminal Procedure, 1973 – Ss. 362 & 482 – High Court is vested with the power to modify any condition imposed by a Magistrate while passing an order of bail.
Code of Criminal Procedure, 1973 – S. 439 – Where a Court while considering an application for bail fails to consider the relevant factors, an Appellate Court may justifiably set aside the order granting bail. Appellate Court is thus required to consider whether the order granting bail suffers from a non-application of mind or a prima facie view from the evidence available on record.
Bail – While elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum. JT 2022 (1) SC 208 : 2022 (1) SCALE 368
Bail – While elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail.
Penal Code, 1860 – Ss. 384, 386, 387 r/w. 34 – After investigation a charge sheet was submitted under the provisions of the IPC as well as under the Maharashtra Control of Organised Crime Act (MCOCA) – Question of quashing and setting aside the wrong order passed by the court releasing the accused on bail.
Anticipatory Bail – Cancellation of – Difference in the approach that the Court must adopt while considering a challenge to an order which has granted bail and an application for cancelling the bail granted – Explained. AIR 2021 SC 5004 : JT 2021 (10) SC 150 : 2021 (12) SCALE 214
Bail – Claim of Parity – Bail was granted to the co-accused primarily and substantially on the ground that she had a child of eleven months with her in jail. This cannot be the basis to a claim of parity on the part of the other accused. The accused cannot claim parity with the co-accused since the allegations in the FIR and the material that has emerged from the investigation indicate that a major role has been attributed to him in the murder of the deceased. AIR 2021 SC 4547 : JT 2021 (9) SC 512
Juvenile Justice (Care and Protection of Children) Act, 2015 – Whether in a revision under Section 102 of the JJ Act, in a matter relating to consideration of bail to a ‘child in conflict with law’, the complainant/victim is to be afforded an opportunity of being heard ? Held, Complainant / Victim to be afforded opportunity of hearing before passing any order in a matter relating to bail of juvenile.
Narcotic Drugs and Psychotropic Substances Act 1985 – Under Section 37(1)(b)(ii), the limitations on the grant of bail for offences punishable under Sections 19, 24 or 27A and also for offences involving a commercial quantity are : (i) The Prosecutor must be given an opportunity to oppose the application for bail; and (ii) There must exist ‘reasonable grounds to believe’ that (a) the person is not guilty of such an offence; and (b) he is not likely to commit any offence while on bail. The standard prescribed for the grant of bail is ‘reasonable ground to believe’ that the person is not guilty of the offence.