Code of Criminal Procedure, 1973:
s 439 – Special powers of High Court or Court of Sessions regarding bail – On facts, an honour killing matter, wherein victim in extra-marital-live in relationship with the sister-in-law of the respondents – Allegation that the respondents conspired to kill the victim and later shot him dead – FIR lodged by the brother of the victim against the respondents – Respondents charged u/s. 302 and 120B IPC and ss. 3 r/w ss. 25 and 27 of the Arms Act – Bail application – Grant of bail by the High Court, by a casual and cryptic order – Justification of – Held: While liberty of an individual is an invaluable right, at the same time while considering bail application, courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing on the case – On facts, it cannot be said that the accusations against the respondents are prima-facie wholly false, frivolous or vexatious in nature, so as to justify grant of bail – Prosecution has brought on record adequate material that would prima-facie point towards the guilt of the accused – High Court while passing the impugned orders did not take into account even a single material aspect of the case, instead, referred only to the testimony of one hostile witness in the trial and on the basis thereof, exercised its discretion to grant bail, by passing a cryptic and casual orders, de hors cogent reasoning – Thus, not a fit case for the grant of bail to the respondents, given the seriousness of the allegations against them – Impugned judgments passed by the High Court set aside – Penal Code, 1860 – ss. 120B and 302 – Arms Act, 1959 – ss. 3, 25 and
27. s 439 – Grant of bail – Factors to be considered – Discussed.
Maxims : “cessante ratione legis cessat ipsa lex” – Meaning of. Allowing the appeals, the Court
HELD: 1.1 The primary considerations which must be placed at balance while deciding the grant of bail are: the seriousness of the offence; the likelihood of the accused fleeing from justice; the impact of release of the accused on the prosecution witnesses; likelihood of the accused tampering with evidence. While such a list is not exhaustive, it may be stated that if a Court takes into account such factors in deciding a bail application, it could be concluded that the decision has resulted from a judicious exercise of its discretion. An order granting bail in a mechanical manner, without recording reasons, would suffer from the vice of non-application of mind, rendering it illegal. An order granting bail to an accused, if passed in a casual and cryptic manner, de hors reasoning which would validate the grant of bail, is liable to be set aside by this Court while exercising power under Article 136 of the Constitution of India. The Latin maxim “cessante ratione legis cessat ipsa lex” meaning “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself. [Para 18-21][512-G-H; 513-B, D-E]
1.2 While 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 on 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 aÌ vis the offence/s alleged against an accused. [Para 22][513-F-H]
1.4 It is not necessary for a Court to assign elaborate reasons or engage in a roving inquiry as to the merits of the prosecution’s case while granting bail, particularly, when the trial is at the initial stages and the allegations against the accused would not have been crystalised as such. Elaborate details cannot be recorded so as 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 with the evidence; criminal antecedents of the accused; and a prima-facie satisfaction of the Court in support of the charge against the accused. [Para 23][514B-D]
1.5 In the instant case, it cannot be said that the accusations against the respondents-accused are prima-facie wholly false, frivolous or vexatious in nature, so as to justify grant of bail. While not expressing any opinion on the merits of the case, that the prosecution has brought on record adequate material that would prima-facie point towards the guilt of the accused. Details as to the manner in which the deceased, and N were traced by the accused, the acts of reconnaissance that were carried out by the accused before the alleged fateful incident and the manner in which each of the accused participated in the alleged crime have been brought on record. Therefore, there is no inclination to hold at this juncture that the prosecution has not established a primafacie case as to the guilt of the accused. One of the prosecution witnesses, namely N turned hostile. Therefore, in the absence of any evidence as to the circumstances under which she turned hostile, it cannot be ruled out the possibility of the respondentsaccused influencing other witnesses, tampering with the evidence, if they continue to remain on bail. The present case is not one where the accused have been detained in custody for an inordinate amount of time as under-trials. The High Court in the impugned orders did not consider the said aspects of the case in the context of the grant of bail. The High Court has been swayed by the fact that one of the prosecution witnesses, namely, N has turned hostile which is not an aspect that must be taken into account while considering an application for bail. [Para 24][515C-H; 516-A]
1.6 A Court considering the grant of bail must not engage in an elaborate discussion on the merits of the case, that the High Court while passing the impugned orders did not take into account even a single material aspect of the case. Instead, the High Court referred only to the testimony of one hostile witness in the trial and on the basis thereof, exercised its discretion to grant bail in an erroneous manner. The High Court lost sight of the said vital aspects of the case and granted bail to the respondents-accused by passing very cryptic and casual orders, de hors cogent reasoning. [Para 25][516-B-C]
1.7 Having considered the facts of the instant case it is not a fit case for the grant of bail to the respondents-accused, given the seriousness of the allegations against them. The High Court was not right in allowing the applications for bail filed by the respondents-accused. Hence, the impugned judgments passed by the High Court are set aside. [Para 26][516-D-E] Brijmani Devi vs. Pappu Kumar (2022) 4 SCC 497; Deepak Yadav vs. State of Uttar Pradesh (2022) 8 SCC 559; Gudikanti Narasimhulu vs. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240 : [1978] 2 SCR 371; Prahlad Singh Bhati vs. NCT, Delhi (2001) 4 SCC 280 : [2001] 2 SCR 684; Anil Kumar Yadav vs. State (NCT of Delhi) (2018) 12 SCC 129 : [2017] 11 SCR 195; Ram Govind Upadhyay vs. Sudarshan Singh (2002) 3 SCC 598 : [2002] 2 SCR 526; Prasanta Kumar Sarkar vs. Ashis Chaterjee (2010) 14 SCC 496 : [2010]
12 SCR 1165; Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (Koli) (2021) 6 SCC 230; Manoj Kumar Khokhar vs. State of Rajasthan 2022 SCC
OnLine SC 30; Jaibunisha vs. Meharban (2022) 5 SCC
465 – 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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