Code of Criminal Procedure, 1973 : s. 439 – Bail – Cancellation of – Accused with the common intention to kill the victim, inflicted gun shot injuries to victim who later succumbed to his injuries – Before death, the victim gave statement naming the accused and the co-accused which was recorded by the DSP and SI – Criminal case against accused and co-accused u/ss. 302 and
34 IPC – Rejection of bail to the accused by the Sessions Court, however, granted by the High Court on the ground of parity as the co-accused was granted bail – Sustainbility of – Held: Not sustainable – In case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail, which was already granted – Cancellation of bail cannot be limited to the occurrence of supervening circumstances – Even in the absence of the supervening circumstances, the Court has the inherent powers and discretion to grant bail – On facts, High Court granted bail to the accused without considering the relevant facts and circumstances and appropriate evidence which proves that the accused was charged with a serious offence – Granting of bail on the basis of parity shows that the order suffers from the vice of non-application of mind rendering it unsustainable – Criminal history, nature of crime, material evidences and recovery of weapon from the possession of the accused not considered by the High Court – Thus, the order passed by the High Court set aside.
Allowing the appeal, the Court
HELD: 1.1 Section 439 of the CrPC is the guiding principle for adjudicating a Regular Bail Application wherein Court takes into consideration several aspects. The jurisdiction to grant bail has to be exercised cautiously on the basis of well - settled principles having regard to the facts and circumstances of each case. [Para 19][10-F]
1.2 The importance of assigning reasoning for the grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations. [Para 26][14-F-G]
1.3 Bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted). [Para 30][17-D-E]
1.4 Cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. [Para 31][18A-B]
1.5 In the instant case, the respondent no.2/accused was arrested on 13.01.2021 subsequent to which, he had applied for regular bail before the Sessions Court which was rejected on the ground that he is named in the FIR on the basis of the information provided by the deceased himself and that the same has been clarified after perusal of the documents/forms that the bullet was shot by the respondent no.2/accused himself. Being aggrieved by the same, respondent no.2/accused filed an application under Section 439 Cr.P.C before the High Court seeking regular bail. The High Court granted bail to the respondent no.2/accused without considering the relevant facts and circumstances. [Para 35][20-A-C]
1.6 A bare perusal of the impugned order reveals that the High Court failed to take into consideration that the respondent no.2/accused has been named in the FIR lodged under Sections
302 and 34 IPC and was the main assailant who had a weapon in his hand; that the main role of respondent no.2/accused was that he opened fire at the deceased due to which the bullet hit his right cheek and made its exit through the other side; that the deceased succumbed to his injuries on 14.01.2021; that the respondent no.2/accused had the intention to murder the deceased as there was previous enmity between him and the deceased with regard to some land which accused threatened to grab; that the respondent no.2/accused was clearly been named by the appellant/informant’s mother and the deceased and he was actively involved in opening fire which caused the death of the deceased; that the respondent no.2/accused’s statement was recorded by the then IO under Section 161 Cr.P.C in which he admitted to having committed the offence; and that the respondent no.2/accused has a criminal history and several criminal matters have been lodged against him [Para 36][20-C-H; 21-A-B]
1.7 There is certainly no straight jacket formula which exists for courts to assess an application for grant or rejection of bail but the determination of whether a case is fit for the grant of bail involves 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. 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 basic principles laid down. [Para 37][21-D-E]
1.8 It is manifestly incorrect on the part of the High Court to have granted bail to the respondent no.2/accused without taking into consideration the relevant facts and circumstances and appropriate evidence which proves that the respondent no.2/accused has been charged with a serious offence. [Para 38][21E-F]
1.9 Grant of bail to the respondent no.2/accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court did not take into consideration the criminal history of the respondent no.2/accused, nature of crime, material evidences available, involvement of respondent no.2/accused in the said crime and recovery of weapon from his possession. The impugned order passed by the High Court is not liable to be sustained and is set aside. [Paras 39, 40][21-F-H]
Ramesh Bhavan Rathod v. Vishanbhai Hirabhai
Makwana(Koli) & Another (2021) 6 SCC 230; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another (2004) 7 SCC 528; Babu Singh & Ors. v. State of U.P. (1978) 1 SCC 579 : [1978] 2 SCR 777; Dataram Singh v. State of Uttar Pradesh and Another (2018) 3 SCC 22 : [2018] 1 SCR 882; Prahlad Singh Bhati v. NCT of Delhi and Another (2001) 4 SCC 280 : [2001]
2 SCR 684; Prasanta Kumar Sarkar v. Ashish
Chatterjee and Another (2010) 14 SCC 496 : [2010]
12 SCR 1165; Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and Another (2012) 9 SCC 446 : [2012] 7 SCR 584; Ranjit Singh v. State of Madhya Pradesh and Others (2013) 16 SCC 797 : [2013] 11 SCR 273; Neeru Yadav v. State of Uttar Pradesh and Another (2014) 16 SCC 508 : [2014] 12 SCR 453; Virupakshappa Gouda and Another v. State of Karnataka and Another (2017)
5 SCC 406 : [2017] 4 SCR 373; State of Orissa v. Mahimananda Mishra (2018) 10 SCC 516; ‘Y’ v. State of Rajasthan & Anr. Criminal Appeal No. 649 of 2022; Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 : [2002] 2 SCR 526; Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and Another (2004) 7 SCC 528; Mahipal v. Rajesh Kumar Alias Polia and Another (2020) 2 SCC 118 : [2019] 14 SCR 529; Dolat Ram and Others v. State of Haryana (1995)
1 SCC 349 : [1994] 6 Suppl. SCR 69; Prakash Kadam and Others v. Ram Prasad Vishwanath Gupta and Another (2011) 6 SCC 189 : [2011] 6 SCR 800 – 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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