Code of Criminal Procedure, 1973: s.439 – Appeal against grant of bail – Accused-respondent was accused of a heinous and shocking murder of a lady doctor aged about 30 years – Incident alleged to have taken place in the presence of victim’s father – His bail application was dismissed by Sessions Court – Bail application moved before High Court was, however, allowed within 10/12 days of dismissal of bail application by Sessions Court – State filed appeal against the grant of bail – Held: In the impugned order, High Court did not advert to any error in the reasoning of Sessions Court – Nor was there any discussion of the reason why High Court took a view different from that taken by Sessions Court and whether there were any supervening circumstances within 10/12 days of the order of the Sessions Court, which necessitated a different view – High Court clearly erred in not appreciating the apprehension of prosecution that the respondent would influence witnesses, could not be put to rest by directing respondent not to enter the jurisdiction of Ollur Police Station – High Court completely ignored the fact that the deceased victim used to reside at Ernakulam – Her parents and her five years old daughter resided at Ernakulam – Most of the prosecution witnesses were from Thrissur – There was no reason to suppose that the witnesses would restrict their movements to the limits of the jurisdiction of Ollur Police Station – High Court also completely mis-appreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons – The orders of this Court were not to be construed as any direction, or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed and the chargesheet is filed – Respondent was charged with murder in the presence of an eye witness, and impugned order granting bail was filed even before the chargesheet was filed – Moreover, Respondent-Accused had been absconding after the incident – Order of High Court granting bail is liable to be set aside.
Bail: Appeal against grant of bail and cancellation of bail – The exercise of appellate jurisdiction to adjudge correctness of a bail order are not restricted by the principles for cancellation of bail.
Allowing the appeal, the Court
HELD: 1. It is well settled that though the power to grant bail under Section 439 of the Cr.P.C is discretionary, such discretion has to be exercised judiciously. There is no straight jacket formula for grant or refusal of bail. Seriousness of the charge is undoubtedly one of the relevant considerations while considering bail applications. All the relevant factors have to be weighed by the Court considering an application for bail, including the gravity of the offence, the evidence and material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant accused absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered with, and danger to the safety of the victim (if alive), the complainant, their relatives, friends or other witnesses. [Paras 16, 22][973-A; 977-E-H] Ram Govind Upadhyay v. Sudarshan Singh and Ors. (2002) 3 SCC 598 : [2002] 2 SCR 526; Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr. (2010) 14 SCC
496 : [2010] 12 SCR 1165; Mahipal v. Rajesh Kumar and Anr. (2020) 2 SCC 118; Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40 : [2011]
13 SCR 309; Siddharam Satlingappa Mhetra v. State of Maharashtra and Ors. (2011) 1 SCC 694 : [2010]
15 SCR 201 – relied on.
2. This Court does not ordinarily interfere with an order granting or refusing bail in exercise of its power under Article
136 of the Constitution. However, the practice of not interfering with orders granting and/or refusing bail is not unexceptionable. An order granting or refusing bail without application of mind and in disregard of relevant factors, cannot be allowed to stand. The exercise of appellate jurisdiction to adjudge correctness of a bail order are not restricted by the principles for cancellation of bail. [Paras 24, 29][978-B-D; 979-D]
Jagdish and Ors. v. Harendrajit Singh (1985) 4 SCC 508; P. Chidambaram v. Directorate of Enforcement 2020 (13) SCC 791; Dolat Ram and Ors. v. State of Haryana (1995) 1 SCC 349:[1994] 6 Suppl. SCR 69; Prabhakar Tewari v. State of U.P. and Anr. (2020) 11 SCC 648 – referred to.
3. The High Court neither considered nor discussed the elaborate reasons given by the Sessions Court in its order rejecting the prayer of the Respondent Accused for bail. The impugned order of the High Court does not advert to any error in the reasoning of the Sessions Court. Nor is there any discussion of the reason why the High Court took a view different from that taken by the Sessions Court – whether there were any supervening circumstances within 10/12 days of the order of the Sessions Court, which necessitated a different view. [Para 34][983-D-F]
4. The High Court clearly erred in not appreciating that the apprehension of the Prosecution that the Respondent Accused would influence witnesses, could not be put to rest, by directing the Respondent Accused not to enter the jurisdiction of Ollur Police Station. The High Court completely ignored the fact that the deceased victim used to reside at Ernakulam. Her parents and her five years old daughter reside at Ernakulam. In other words, the only eye witness is a resident of Ernakulam. Most of the Prosecution witnesses were from Thrissur. There was no reason to suppose that the witnesses would restrict their movements to the limits of the jurisdiction of Ollur Police Station. [Para 35][983-F-H]
5. It further appears from the impugned order that, in granting bail to the Respondent Accused, the High Court took note of the fact that two other accused persons had not been arrested. The High Court completely ignored the fact that these two accused persons were not named in the FIR. They were charged after investigation with offence under Section 212, of harbouring the Respondent Accused, punishable with imprisonment for a maximum period of five years, unlike the Respondent Accused, charged with murder under Section 302 of the IPC, which entails minimum punishment of imprisonment for life. [Para 36][984-A-C]
6. There can be no doubt that the outbreak of the novel COVID-19 pandemic and its spread has been a matter of serious public concern. In Suo Motu Writ Petition (Civil) No.1 of 2020 In Re : Contagion of Covid 19 Virus In Prisons, this Court expressed concern over the possibility of spread of COVID-19 amongst prisoners lodged in overcrowded correctional homes and accordingly issued directions from time to time, directing the authorities concerned to inter alia take steps as directed by this Court, to minimize the risk of spread of COVID amongst the inmates of correctional homes. This Court also directed that a High Powered Committee be constituted by the States and Union Territories to consider release of some prisoners on interim bail or parole during the Pandemic, to prevent overcrowding of prisons. It appears that the High Court has completely misappreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons. This Court did not direct release of all undertrial prisoners, irrespective of the severity of the offence. The States and Union Territories were directed to constitute a High Powered Committee to determine which class of prisoners could be released on parole or interim bail for such period as might be thought appropriate. The orders of this Court are not to be construed as any direction, or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed and the chargesheet is filed. The Respondent Accused was charged with murder in the presence of an eye witness, and the impugned order granting bail was filed even before the chargesheet was filed. The Chargesheet appears to have been filed on 01.01.2021. Moreover the Respondent Accused had been absconding after the incident. [Paras 37, 38][984-C-H; 985-A-B]
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