Bail:
Grant of bail – By trial court imposing certain conditions – Application by the complainant u/s. 439(2) Cr.P.C. before High Court challenging the exercise of discretion in granting bail – High Court relegated the matter to trial court holding that the application was for cancellation of bail – Application “speaking to minutes” in respect of the order of the High Court was dismissed – Appeal to Supreme Court – Held: Though the application before High Court was u/s. 439(2) Cr.P.C. i.e. an application for cancellation of bail, but the grounds raised in the application show that it was only challenging the order of grant of bail on the ground that it was an arbitrary exercise of discretion – The considerations applicable for cancellation of bail and for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different – Matter is remitted to the High Court for consideration of the matter afresh – Code of Criminal Procedure, 1973 – s. 439(2).
Allowing the appeals and remitting the matter to High Court, the Court
HELD: 1.Though the application has been filed before the High Court under Section 439(2) Cr.P.C. i.e. an application for cancellation of bail, by perusal of the grounds raised in the application, it is seen that the appellant has raised grounds challenging the exercise of discretion in granting bail to respondents No.2 and 3 under Section 439 Cr.P.C. and that the order granting bail is unsustainable in law. In effect, the application filed was only challenging the order of grant of bail on the ground that it was an arbitrary exercise of discretion. The Court while granting bail should exercise its discretion in judicious manner by taking into consideration the relevant facts. [Para 9] [953-E-G]
State of U.P. Through CBI v. Amarmani Tripathi (2005) 8 SCC 21 : [2005] 3 Suppl. SCR 454
– relied on.
2. The consideration applicable for cancellation of bail and consideration for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like; tampering of evidence either during investigation or during trial, threatening of witness, the accused is likely to abscond and the trial of the case getting delayed on that count etc. Whereas, in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration is whether there was improper or arbitrary exercise of discretion in grant of bail. The appellant has challenged the very grant of bail on the ground of arbitrary exercise of discretion ignoring the relevant materials to be considered in the application for bail. Since the High Court proceeded under the footing as if the appellant had filed the application only for cancellation of bail for which, the consideration is different, the impugned order is liable to be set aside and the matter is remitted to the High Court for consideration of the matter afresh. [Para 10] [953-H; 954-A-C]
Anil Kumar Yadav v. State (NCT of Delhi) and Another (2018) 12 SCC 129 : [2017] 11 SCR 195
– referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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