THE STATE OF KERALA versus MAHESH

[2021] 2 S.C.R.

ATHE STATE OF KERALA

MAHESH

(Criminal Appeal No. 343 of 2021)

BMARCH 19, 2021

[INDIRA BANERJEE AND KRISHNA MURARI, JJ.]

Code of Criminal Procedure, 1973: s.439 – Appeal againstgrant of bail – Accused-respondent was accused of heinous andshocking murder of lady doctor aged about 30 years – IncidentCalleged to have taken place in the presence of victim’s father – Hisbail application was dismissed by Sessions Court – Bail applicationmoved before High Court was, however, allowed within 10/12 daysof dismissal of bail application by Sessions Court – State filed appealagainst the grant of bail – Held: In the impugned order, High CourtDdid not advert to any error in the reasoning of Sessions Court –Nor was there any discussion of the reason why High Court took aview different from that taken by Sessions Court and whether therewere any supervening circumstances within 10/12 days of the orderof the Sessions Court, which necessitated different view – HighCourt clearly erred in not appreciating the apprehension ofEprosecution that the respondent would influence witnesses, couldnot be put to rest by directing respondent not to enter the jurisdictionof Ollur Police Station – High Court completely ignored the factthat the deceased victim used to reside at Ernakulam – Her parentsand her five years old daughter resided at Ernakulam – Most of theFprosecution witnesses were from Thrissur – There was no reason tosuppose that the witnesses would restrict their movements to thelimits of the jurisdiction of Ollur Police Station – High Court alsocompletely mis-appreciated the object, scope and ambit of thedirections issued by this Court from time to time in In Re : Contagionof Covid 19 Virus In Prisons – The orders of this Court were not toGbe construed as any direction, or even observation, requiring releaseof under-trial prisoners charged with murder, and that too, evenbefore investigation is completed and the chargesheet is filed –Respondent was charged with murder in the presence of an eyewitness, and impugned order granting bail was filed even beforeH

the chargesheet was filed – Moreover, Respondent-Accused hadbeen absconding after the incident – Order of High Court grantingbail 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 abail order are not restricted by the principles for cancellation ofbail.

Allowing the appeal, the Court

HELD: 1. It is well settled that though the power to grantbail under Section 439 of the Cr.P.C is discretionary, suchdiscretion has to be exercised judiciously. There is no straightjacket formula for grant or refusal of bail. Seriousness of the chargeis undoubtedly one of the relevant considerations whileconsidering bail applications. All the relevant factors have to beweighed by the Court considering an application for bail, includingthe gravity of the offence, the evidence and material which primafacie show the involvement of applicant for bail in the offencealleged, the extent of involvement of the applicant for bail, in theoffence alleged, possibility of the applicant accused abscondingor otherwise defeating or delaying the course of justice,reasonable apprehension of witnesses being threatened orinfluenced or of evidence being tempered with, and danger tothe 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 KumarSarkar v. Ashis Chatterjee and Anr. (2010) 14 SCC496 : [2010] 12 SCR 1165; Mahipal v. Rajesh Kumarand Anr. (2020) 2 SCC 118; Sanjay Chandra v. CentralBureau of Investigation (2012) 1 SCC 40 : [2011]13 SCR 309; Siddharam Satlingappa Mhetra v. Stateof Maharashtra and Ors. (2011) 1 SCC 694 : [2010]15 SCR 201 – relied on.

2. This Court does not ordinarily interfere with an ordergranting or refusing bail in exercise of its power under Article

A136 of the Constitution. However, the practice of not interferingwith orders granting and/or refusing bail is not unexceptionable.An order granting or refusing bail without application of mindand in disregard of relevant factors, cannot be allowed to stand.The exercise of appellate jurisdiction to adjudge correctness ofa bail order are not restricted by the principles for cancellation ofBbail. [Paras 24, 29][978-B-D; 979-D]

Jagdish and Ors. v. Harendrajit Singh (1985) 4 SCC508; P. Chidambaram v. Directorate of Enforcement2020 (13) SCC 791; Dolat Ram and Ors. v. State ofHaryana (1995) 1 SCC 349:[1994] 6 Suppl. SCR 69;CPrabhakar Tewari v. State of U.P. and Anr. (2020) 11SCC 648 – referred to.

3. The High Court neither considered nor discussed theelaborate reasons given by the Sessions Court in its orderrejecting the prayer of the Respondent Accused for bail. TheDimpugned order of the High Court does not advert to any errorin the reasoning of the Sessions Court. Nor is there anydiscussion of the reason why the High Court took view differentfrom that taken by the Sessions Court – whether there were anysupervening circumstances within 10/12 days of the orderEof the Sessions Court, which necessitated different view.[Para 34][983-D-F]

4. The High Court clearly erred in not appreciating thatthe apprehension of the Prosecution that the Respondent Accusedwould influence witnesses, could not be put to rest, by directingFthe Respondent Accused not to enter the jurisdiction of OllurPolice Station. The High Court completely ignored the fact thatthe deceased victim used to reside at Ernakulam. Her parentsand her five years old daughter reside at Ernakulam. In otherwords, the only eye witness is resident of Ernakulam. Most ofthe Prosecution witnesses were from Thrissur. There was noGreason to suppose that the witnesses would restrict theirmovements to the limits of the jurisdiction of Ollur Police Station.[Para 35][983-F-H]

5. It further appears from the impugned order that, ingranting bail to the Respondent Accused, the High Court tookH

note of the fact that two other accused persons had not beenarrested. The High Court completely ignored the fact that thesetwo accused persons were not named in the FIR. They werecharged after investigation with offence under Section 212, ofharbouring the Respondent Accused, punishable withimprisonment for maximum period of five years, unlike theRespondent Accused, charged with murder under Section 302 ofthe IPC, which entails minimum punishment of imprisonment forlife. [Para 36][984-A-C]

6. There can be no doubt that the outbreak of the novelCOVID-19 pandemic and its spread has been matter of seriouspublic concern. In Suo Motu Writ Petition (Civil) No.1 of 2020In Re : Contagion of Covid 19 Virus In Prisons, this Courtexpressed concern over the possibility of spread of COVID-19amongst prisoners lodged in overcrowded correctional homesand accordingly issued directions from time to time, directingthe authorities concerned to inter alia take steps as directed bythis Court, to minimize the risk of spread of COVID amongst theinmates of correctional homes. This Court also directed that aHigh Powered Committee be constituted by the States and UnionTerritories to consider release of some prisoners on interim bailor parole during the Pandemic, to prevent overcrowding ofprisons. It appears that the High Court has completely mis-appreciated the object, scope and ambit of the directions issuedby this Court from time to time in In Re : Contagion of Covid 19Virus In Prisons. This Court did not direct release of all under-trial prisoners, irrespective of the severity of the offence. TheStates and Union Territories were directed to constitute HighPowered Committee to determine which class of prisoners couldbe released on parole or interim bail for such period as might bethought appropriate. The orders of this Court are not to beconstrued as any direction, or even observation, requiring releaseof under-trial prisoners charged with murder, and that too, evenbefore investigation is completed and the chargesheet is filed.The Respondent Accused was charged with murder in thepresence of an eye witness, and the impugned order grantingbail was filed even before the chargesheet was filed. The

AChargesheet appears to have been filed on 01.01.2021.Moreover the Respondent Accused had been absconding afterthe incident. [Paras 37, 38][984-C-H; 985-A-B]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.343 of 2021

And

Interlocutory application nos. 24659 and 41412 of 2021E

From the Judgment and Order dated 21.12.2020 of the High Courtof Kerala at Ernakulam in Bail Application No. 8821 of 2020.

Nishe Rajen Shonker, Adv. for the Appellant.

Raghenth Basant, Ms. Rasna Kalkat, Ms. Liz Mathew, JaimonFAndrews, Piyo Harold Jaimon, Sandeep Thakur, Naresh Kumar, Advs.for the Respondent.

The Judgment of the Court was delivered by

INDIRA BANERJEE, J.GLeave granted.

2. This Appeal filed by the State of Kerala is against an orderdated 21[st] December 2020 passed by the High Court of Kerala grantingbail to the Respondent, accused of heinous and shocking murder of alady doctor aged about 30 years.H

3. It is the case of the Prosecution that on 28[th] September 2020 atabout 3.30 p.m., the Respondent Accused stabbed the victim, with aknife, inside multispeciality dental clinic, run by the victim at Kuttanellur.The victim succumbed to her injuries at Jubilee Mission Hospital on 4[th]October, 2020.

4. As per the case of the Prosecution, the victim met theRespondent Accused after her divorce from her erstwhile husband. Thevictim and the Respondent Accused became close and started livingtogether from 2018 onwards. The victim became pregnant, but theRespondent Accused forced her to undergo an abortion, by threateningher.

5. The deceased victim had, as per the case of the Prosecution,started the Multispeciality Dental Clinic, with financial support from herfather. The Respondent Accused misappropriated money from the clinicand also harassed the victim, both physically and mentally. In thecircumstances, the victim was constrained to separate from RespondentAccused and start living at her own house. As the Respondent Accusedcontinued to threaten the victim, the victim had, along with her father,filed complaint with the City Police Commissioner, Thrissur on 26[th]September, 2020.

6. The victim was called to the Ollur Police Station for settlementand thereafter to her dental clinic on 28[th] September 2020 at 3.30. p.m.The Respondent Accused stabbed the victim with knife on the rightside of the stomach, in the presence of her father, at the dental clinic.

7. An FIR was lodged at the Ollur Police Station, Thrissur on 28[th]September 2020, under Sections 341, 324 and 307 of the Indian Penalcode (IPC), pursuant to which Crime No. 1777/2020 of Ollur PoliceStation was started. However, after the death of the victim, Section 302was added and an Inclusion Report to that effect was filed in theJurisdictional Court. The crime as stated above has been registered underSections 341, 324, 201, 212, 307 and 302 of the IPC. The RespondentAccused was arrested on 6[th] October, 2020.

8. Bail application filed by the Respondent Accused in theSessions Court was dismissed by an order dated 9[th] December, 2020with the following findings:-

“12. In view of the settled position as laid down by the Apexcourt, while considering an application for bail, the court

has to exercise the discretion in judicious manner with careand caution, though at this stage elaborate examination ofevidence and detailed reasoning touching the merit of thecase is not required. But there is need to indicate in the orderthe reasons for the prima facie conclusion why bail is notgranted. Prime facie satisfaction of the court in support ofthe charge alone is sufficient for the court to arrive at aconclusion as to whether the petitioner is entitled to get anorder of bail. From the materials on record as revealed fromthe case diary, it could be seen that the petitioner had reachedthe clinic with knife and after the culmination of thediscussion, he had attacked the deceased and inflicted veryserious stab injury and caused damages to her internal vitalorgans. After committing the crime, the petitioner hadabsconded and he could be apprehended only on 06.10.2020on receiving secret information by the investigation agencyregarding the arrival of the petitioner at Poonkunnam. Aftercommitting the crime, the petitioner had abandoned his carand got himself absconded and kept himself away from thevicinity of the police with the aid of his brother, worker and afriend. There is merit in the objection raised by the policeregarding the possibility of the petitioner absconding fromappearing before court.13. The next objection raised by the prosecution is that sincethe deceased is resident of Ernakulam and all prosecutionwitnesses are hailing from Thrissur, there is likelihood of thepetitioner causing influence on the prosecution witnesses. Thisis valid ground to decline the release. The brutality of thecrime committed by the petitioner in causing multiple stabinjuries on the abdomen of the victim also has to be takeninto account. The investigation agency could collect sufficientevidence to incriminate the petitioner in the crime. Onconsideration of the entire facts and circumstances, it is foundthat there are reasonable grounds to arrive at conclusionthat granting of bail to the petitioner would adversely affectthe prosecution from adducing evidence in support of thecharge and hence the petitioner is found not entitled to getan order of release.”

9. On 14[th] December 2020, the Respondent Accused filed the bailapplication being B.A. No.8821 of 2020 in the High Court under Section439 of the Cr.P.C. The prayer for bail was strongly opposed by thePublic Prosecutor who argued that, if released, the Respondent Accusedwould influence witnesses many of whom were his close relatives, friendsand acquaintances.

10. The High Court has however, granted bail to the RespondentAccused, by the order impugned in this appeal, notwithstanding theopposition of the Public Prosecutor, overlooking the materials on record,which prima facie indicate that the Respondent had committed coldblooded murder of young lady doctor, as fall out of souredrelationship. The relevant part of the impugned order set out hereinbelow:-

“7. After hearing both sides, I think this Bail Application canbe allowed on stringent conditions. It is true that theallegations against the petitioner are very serious and theincident now put forward by the prosecution is so heinous.But the petitioner is in custody from 6.10.2020 onwards. ThePublic Prosecutor also submitted that the second and thirdaccused were not arrested. But it is matter to be consideredthat the petitioner is in custody from 6.10.2020 onwards.Indefinite incarceration of the petitioner may not be necessaryin the facts and circumstances of this case. But theapprehension of the prosecution is also to be taken care of.In such circumstances, there can be direction to thepetitioner not to enter the jurisdictional limit of Ollur PoliceStation till the investigation in this case is over.”

11. As stated above, the Incident took place in the presence of thevictim’s father, who is an eye witness to the incident. The unfortunatefather has filed an application for intervention being InterlocutoryApplication No. 41412 of 2021, and has supported the appeal against theorder impugned.

12. In the said application, being I.A No.41412 of 2021 forintervention, the unfortunate father has contended that the RespondentAccused came to the dental clinic with knife, which clearly showedthat he had preplanned plot to kill the victim. The manner in which theRespondent Accused stabbed the victim on her stomach, and inflictedinjuries on her, which is corroborated by the post-mortem report, clearlyshows intention to cause death. He has also stated that according to the

ADoctors it was medical miracle that the victim survived four to fivedays, even though she was in complete coma all through.

13. Attacking the impugned order of the High Court, Counselappearing on behalf of the Appellant supported by Counsel appearing onbehalf of the father of the victim, being the applicant in I.A. No. 41412Bof 2021 in this Special Leave Petition, has argued that the RespondentAccused had committed the gruesome murder of young woman in thepresence of her father, who was an eye witness to the incident. TheHigh Court should have declined the prayer for bail on that ground alone.The impugned order granting bail to the Respondent Accused,notwithstanding the gravity of the offence, is devoid of cogent reasons,Cjustifying the grant of bail to the accused. The High Court neitherconsidered nor elaborate reasons given by Sessions Court in the orderdirecting bail to the Accused Respondent. It is submitted that restrainingthe Respondent Accused from entering the jurisdictional limit of UllurPolice Station till the investigation was over, would not prevent theDRespondent Accused from influencing or threatening witnesses.

14. The Respondent Accused has appeared before the Courtthrough Ms. Liz Mathew, Advocate and filed Counter Affidavit to theSpecial Leave Petition. Significantly, the Respondent has admitted theincident but stated that “During the discussion, verbal altercationarose between the parents of the deceased and the defactoEcomplainant who accompanied the deceased victim. scuffle tookplace and unfortunately the deceased victim had sustained injury.The Respondent had no intention or preparation to commit anyoffence.”

15. On behalf of the Respondent Accused, it has been arguedFthat the impugned order of the High Court is well reasoned. The HighCourt found that the Respondent Accused was in custody from 6[th]October 2020 onwards. Indefinite incarceration of the RespondentAccused was found not necessary. Counsel appearing for the Appellantsubmitted that the bail application has been allowed on stringent conditions.GCounsel emphasized on the conditions imposed by the impugned orderrestraining the Respondent Accused from entering the jurisdictional limitof Ollur Police Station, till the main witnesses in the case were examinedby the Trial Court. She also emphatically argued that bail once grantedshould not be cancelled in mechanical manner without consideringwhether there were supervening circumstances which would render theHbail no longer conducive to fair trial.

16. It is well settled that though the power to grant bail underSection 439 of the Cr.P.C is discretionary, such discretion has to beexercised judiciously, as held by this Court in Ram Govind Upadhyayv. Sudarshan Singh and Ors.reported in (2002) 3 SCC 598. Speakingfor the Court, Umesh Chandra Banerjee, J. said:-

“3. Grant of bail though being discretionary order — but,however, calls for exercise of such discretion in judiciousmanner and not as matter of course. Order for bail bereftof any cogent reason cannot be sustained. Needless to record,however, that the grant of bail is dependent upon the contextualfacts of the matter being dealt with by the court and facts,however, do always vary from case to case. While placementof the accused in the society, though may be considered butthat by itself cannot be guiding factor in the matter of grantof bail and the same should and ought always to be coupledwith other circumstances warranting the grant of bail. Thenature of the offence is one of the basic considerations forthe grant of bail — more heinous is the crime, the greater isthe chance of rejection of the bail, though, however, dependenton the factual matrix of the matter.

4. Apart from the above, certain other which may be attributedto be relevant considerations may also be noticed at thisjuncture, though however, the same are only illustrative andnot exhaustive, neither there can be any. The considerationsbeing:

(a) While granting bail the court has to keep in mind notonly the nature of the accusations, but the severity of thepunishment, if the accusation entails conviction and thenature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses beingtampered with or the apprehension of there being threatfor the complainant should also weigh with the court inthe matter of grant of bail.

(c) While it is not expected to have the entire evidenceestablishing the guilt of the accused beyond reasonabledoubt but there ought always to be prima faciesatisfaction of the court in support of the charge.

A(d) Frivolity in prosecution should always be consideredand it is only the element of genuineness that shall have tobe considered in the matter of grant of bail, and in theevent of there being some doubt as to the genuineness ofthe prosecution, in the normal course of events, the accusedis entitled to an order of bail.”

17. In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.reported in (2010) 14 SCC 496, D.K. Jain, J., speaking for two-JudgeBench of this Court laid down the principles for examining the correctnessof orders granting bail to an accused. This Court held:-

C“9. …It is trite that this Court does not, normally, interferewith an order [Ashish Chatterjee v. State of W.B., CRM No.272 of 2010, order dated 11-1-2010 (Cal)] passed by theHigh Court granting or rejecting bail to the accused.However, it is equally incumbent upon the High Court toexercise its discretion judiciously, cautiously and strictly inDcompliance with the basic principles laid down in plethoraof decisions of this Court on the point. It is well settled that,among other circumstances, the factors to be borne in mindwhile considering an application for bail are:

(i) whether there is any prima facie or reasonable groundEto 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, ifFreleased on bail;

(v) character, behaviour, means, position and standing ofthe accused;

(vi) likelihood of the offence being repeated;

G(vii) reasonable apprehension of the witnesses beinginfluenced; and

(viii) danger, of course, of justice being thwarted by grantof bail.

10. It is manifest that if the High Court does not advert tothese relevant considerations and mechanically grants bail,the said order would suffer from the vice of non-applicationof mind, rendering it to be illegal.”

18. In Mahipal v. Rajesh Kumar and Anr. reported in (2020) 2SCC 118, this Court held:-

“14.The provision for an accused to be released on bailtouches upon the liberty of an individual. It is for this reasonthat this Court does not ordinarily interfere with an order ofthe High Court granting bail. However, where the discretionof the High Court to grant bail has been exercised withoutthe due application of mind or in contravention of thedirections of this Court, such an order granting bail is liableto be set aside. The Court is required to factor, amongst otherthings, prima facie view that the accused had committed theoffence, the nature and gravity of the offence and thelikelihood of the accused obstructing the proceedings of thetrial in any manner or evading the course of justice. Theprovision for being released on bail draws an appropriatebalance between public interest in the administration of justiceand the protection of individual liberty pending adjudicationof the case. However, the grant of bail is to be secured withinthe bounds of the law and in compliance with the conditionslaid down by this Court. It is for this reason that court mustbalance numerous factors that guide the exercise of thediscretionary power to grant bail on case-by-case basis.Inherent in this determination is whether, on an analysis ofthe record, it appears that there is prima facie or reasonablecause to believe that the accused had committed the crime. Itis not relevant at this stage for the court to examine in detailthe evidence on record to come to conclusive finding.”

19. The Respondent Accused relied on the judgments of this Courtin Sanjay Chandra v. Central Bureau of Investigation reported in(2012) 1 SCC 40 and Siddharam Satlingappa Mhetra v. State ofMaharashtra and Ors. reported in (2011) 1 SCC 694, where this Courtobserved that seriousness of the charge is not test or factor whileconsidering the application for bail.

DEF

A20. In Sanjay Chandra (supra), the accused were charged witheconomic offences of huge magnitude which could jeopardize theeconomy of the country. This Court held:-

“21.In bail applications, generally, it has been laid down fromthe earliest times that the object of bail is to secure theappearance of the accused person at his trial by reasonableamount of bail. The object of bail is neither punitive norpreventative. Deprivation of liberty must be considered apunishment, unless it is required to ensure that an accusedperson will stand his trial when called upon. The courts owemore than verbal respect to the principle that punishmentbegins after conviction, and that every man is deemed to beinnocent until duly tried and duly found guilty.

22. From the earliest times, it was appreciated that detentionin custody pending completion of trial could be cause ofgreat hardship. From time to time, necessity demands that someDunconvicted persons should be held in custody pending trialto secure their attendance at the trial but in such cases,“necessity” is the operative test. In this country, it would bequite contrary to the concept of personal liberty enshrined inthe Constitution that any person should be punished in respectof any matter, upon which, he has not been convicted or thatEin any circumstances, he should be deprived of his libertyupon only the belief that he will tamper with the witnesses ifleft at liberty, save in the most extraordinary circumstances.23. Apart from the question of prevention being the object ofrefusal of bail, one must not lose sight of the fact that anyFimprisonment before conviction has substantial punitivecontent and it would be improper for any court to refuse bailas mark of disapproval of former conduct whether theaccused has been convicted for it or not or to refuse bail toan unconvicted person for the purpose of giving him tasteof imprisonment as lesson.

24. In the instant case, we have already noticed that the“pointing finger of accusation” against the appellants is “theseriousness of the charge”. The offences alleged are economicoffences which have resulted in loss to the State exchequer.Though, they contend that there is possibility of theappellants tampering with the witnesses, they have not placed

any material in support of the allegation. In our view,seriousness of the charge is, no doubt, one of the relevantconsiderations while considering bail applications but that isnot the only test or the factor: the other factor that also requiresto be taken note of is the punishment that could be imposedafter trial and conviction, both under the Penal Code and thePrevention of Corruption Act. Otherwise, if the former is theonly test, we would not be balancing the constitutional rightsbut rather “recalibrating the scales of justice”.

25.The provisions of CrPC confer discretionary jurisdictionon criminal courts to grant bail to the accused pending trialor in appeal against convictions; since the jurisdiction isdiscretionary, it has to be exercised with great care andcaution by balancing the valuable right of liberty of anindividual and the interest of the society in general. …….”

21. In Siddharam Satlingappa Mhetra (supra) rendered in thecontext of the discretion to grant anticipatory bail under Section 438, thisCourt advocated the need to balance individual personal liberty withsocietal interest. This Court held:-

“84. Just as liberty is precious to an individual, so is thesociety’s interest in maintenance of peace, law and order. Bothare equally important.”

22. There is no straight jacket formula for grant or refusal of bail.Seriousness of the charge is undoubtedly one of the relevantconsiderations while considering bail applications as held in SanjayChandra (supra) cited on behalf of the Respondent Accused. All therelevant factors have to be weighed by the Court considering anapplication for bail, including the gravity of the offence, the evidenceand material which prima facie show the involvement of applicant forbail in the offence alleged, the extent of involvement of the applicant forbail, in the offence alleged, possibility of the applicant accused abscondingor otherwise defeating or delaying the course of justice, reasonableapprehension of witnesses being threatened or influenced or of evidencebeing tempered with, and danger to the safety of the victim (if alive), thecomplainant, their relatives, friends or other witnesses.

23. Counsel for the Respondent Accused finally argued that thisCourt does not ordinarily entertain petition for Special Leave to Appeal

Aagainst an order granting or refusing or cancelling bail or anticipatorybail. Investigation in this case has been concluded and chargesheet hasbeen filed on 1[st] January 2021.

24. In Jagdish and Ors. v. Harendrajit Singh reported in (1985)4 SCC 508, cited on behalf of the Respondent Accused, this Court heldBthat, this Court does not ordinarily, in exercise of its discretion underArticle 136, entertain petition for Special Leave to Appeal against ordersgranting or refusing or cancelling bail or anticipatory bail. There can beno dispute with the proposition. This Court does not ordinarily interferewith an order granting or refusing bail in exercise of its power underArticle 136 of the Constitution. However, the practice of not interferingCwith orders granting and/or refusing bail is not unexceptionable. An ordergranting or refusing bail without application of mind and in disregard ofrelevant factors, cannot be allowed to stand.

25. Counsel argued that the Respondent Accused had been grantedbail on 21[st] December 2020 that is almost three months ago, but has notDinterfered with the course of administration of justice in any way. Norhas the Respondent Accused evaded or attempted to evade the duecourse of justice. Learned counsel argued that the Respondent Accusedhad been in judicial custody for 75 days. The investigation was over andcontinued detention of the Respondent Accused was no longer necessary.

E26. Relying on the judgment of this Court in P. Chidambaram v.Directorate of Enforcement reported in 2020 (13) SCC 791, Counselsubmitted that this Court had repeatedly highlighted the proposition thatbail was the rule and jail the exception.

27. Citing the judgment of this Court in Dolat Ram and Ors. v.FState of Haryana reported in (1995) 1 SCC 349, it was submitted thatthe Respondent Accused having been granted bail, by the impugnedorder dated 21[st] December 2020, this Court should not deprive him ofhis personal liberty, without considering whether there were anysupervening circumstances which had rendered the freedom of theGRespondent Accused to bail, inexpedient for fair trial.

28. In Dolat Ram (supra), this Court held:-

“4. Rejection of bail in non-bailable case at the initial stageand the cancellation of bail so granted, have to be consideredand dealt with on different basis. Very cogent andHoverwhelming circumstances are necessary for an order

directing the cancellation of the bail, already granted.Generally speaking, the grounds for cancellation of bail,broadly (illustrative and not exhaustive) are: interference orattempt to interfere with the due course of administration ofjustice or evasion or attempt to evade the due course of justiceor abuse of the concession granted to the accused in anymanner. The satisfaction of the court, on the basis of materialplaced on the record of the possibility of the accusedabsconding is yet another reason justifying the cancellationof bail. However, bail once granted should not be cancelledin mechanical manner without considering whether anysupervening circumstances have rendered it no longerconducive to fair trial to allow the accused to retain hisfreedom by enjoying the concession of bail during the trial.”

29. In this Appeal the correctness of the impugned order of theHigh Court, in granting bail to the Respondent Accused is in question.The exercise of appellate jurisdiction to adjudge correctness of bailorder are not restricted by the principles for cancellation of bail. As heldby this Court, speaking through Dr. D.Y. Chandrachud J. in Mahipal v.Rajesh Kumar (supra):-

“16.The considerations that guide the power of an appellatecourt in assessing the correctness of an order granting bailstand on different footing from an assessment of anapplication for the cancellation of bail. The correctness ofan order granting bail is tested on the anvil of whether therewas an improper or arbitrary exercise of the discretion in thegrant of bail. The test is whether the order granting bail isperverse, illegal or unjustified. On the other hand, anapplication for cancellation of bail is generally examined onthe anvil of the existence of supervening circumstances orviolations of the conditions of bail by person to whom bailhas been granted. In Neeru Yadav v. State ofU.P. [Neeru Yadavv. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri)527], the accused was granted bail by the High Court[Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031].In an appeal against the order [Mitthan Yadav v. State ofU.P., 2014 SCC OnLine All 16031] of the High Court, two-Judge Bench of this Court surveyed the precedent on theprinciples that guide the grant of bail. Dipak Misra, J. (as

the learned Chief Justice then was) held: (Neeru Yadav case[Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3SCC (Cri) 527], SCC p. 513, para 12)

“12. … It is well settled in law that cancellation of bail afterit is granted because the accused has misconducted himselfBor of some supervening circumstances warranting suchcancellation have occurred is in different compartmentaltogether than an order granting bail which is unjustified,illegal and perverse. If in case, the relevant factors whichshould have been taken into consideration while dealing withthe application for bail have not been taken note of, or bailCis founded on irrelevant considerations, indisputably thesuperior court can set aside the order of such grant of bail.Such case belongs to different category and is in aseparate realm. While dealing with case of second nature,the Court does not dwell upon the violation of conditions byDthe accused or the supervening circumstances that havehappened subsequently. It, on the contrary, delves into thejustifiability and the soundness of the order passed by theCourt.”

17. Where court considering an application for bail fails toEconsider relevant factors, an appellate court may justifiablyset aside the order granting bail. An appellate court is thusrequired to consider whether the order granting bail suffersfrom non-application of mind or is not borne out from aprima facie view of the evidence on record. It is thus necessaryfor this Court to assess whether, on the basis of the evidentiaryFrecord, there existed prima facie or reasonable ground tobelieve that the accused had committed the crime, also takinginto account the seriousness of the crime and the severity ofthe punishment.”

30. Counsel appearing for the Respondent Accused, has also citedGPrabhakar Tewari v. State of U.P. and Anr. reported in (2020) 11SCC 648 where this Court, speaking through Aniruddha Bose J. hasdiscussed the scope of appellate interference to set aside an order grantingbail. In Prabhakar Tewari (supra), this Court held:-

“6. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, aHcoordinate Bench of this Court has discussed the scope of

jurisdiction of the appellate court in setting aside an order ofgranting bail. The two key factors for interfering with suchan order are non-application of mind on the part of the courtgranting bail or the opinion of the court in granting bail isnot borne out from prima facie view of the evidence onrecord. In Mohd. Amir Rashadi v. State of U.P. (2012) 2 SCC382, two-Judge Bench of this Court declined to interferewith an order [Rama Kant Yadav v. State of U.P., 2010 SCCOnLine All 3388] of the High Court granting bail to an accusedhaving considered the factual features of that case.”

31. The High Court has also relied on the judgment of this Courtin P. Chidambaram (supra) reported in (2020) 13 SCC 791 cited onbehalf of the Respondent Accused. There could be no quarrel with theproposition of law laid down in the cited judgment. A.S. Bopanna, J.speaking for three judge Bench held:-

“23.Thus, from cumulative perusal of the judgments cited oneither side including the one rendered by the ConstitutionBench of this Court, it could be deduced that the basicjurisprudence relating to bail remains the same inasmuch asthe grant of bail is the rule and refusal is the exception so asto ensure that the accused has the opportunity of securingfair trial. However, while considering the same the gravity ofthe offence is an aspect which is required to be kept in viewby the Court. The gravity for the said purpose will have to begathered from the facts and circumstances arising in eachcase. Keeping in view the consequences that would befall onthe society in cases of financial irregularities, it has beenheld that even economic offences would fall under the categoryof “grave offence” and in such circumstance whileconsidering the application for bail in such matters, the Courtwill have to deal with the same, being sensitive to the natureof allegation made against the accused. One of thecircumstances to consider the gravity of the offence is alsothe term of sentence that is prescribed for the offence theaccused is alleged to have committed. Such consideration withregard to the gravity of offence is factor which is in additionto the triple test or the tripod test that would be normallyapplied. In that regard what is also to be kept in perspectiveis that even if the allegation is one of grave economic offence,

Ait is not rule that bail should be denied in every case sincethere is no such bar created in the relevant enactment passedby the legislature nor does the bail jurisprudence provide so.Therefore, the underlining conclusion is that irrespective ofthe nature and gravity of charge, the precedent of anothercase alone will not be the basis for either grant or refusal ofBbail though it may have bearing on principle. But ultimatelythe consideration will have to be on case-to-case basis onthe facts involved therein and securing the presence of theaccused to stand trial.”

32. In P. Chidambaram (supra), this Court allowed the appealCfrom the order of the High Court, and allowed the prayer of the Appellantfor bail, having regard to the facts and circumstances of the case notedby this Court, which are extracted hereinbelow:-

“28. Therefore, at this stage while considering the bailapplication of the appellant herein what is to be taken noteDof is that, at stage when the appellant was before this Courtin an application seeking for interim protection/anticipatorybail, this Court while considering the matter in CriminalAppeal No. 1340 of 2019 had in that regard held that in amatter of present nature wherein grave economic offence isEalleged, custodial interrogation as contended would benecessary and in that circumstance the anticipatory bail wasrejected. Subsequently, the appellant has been taken intocustody and has been interrogated and for the said purposethe appellant was available in custody in this case from 16-10-2019 onwards. It is, however, contended on behalf of theFrespondent that the witnesses will have to be confronted andas such custody is required for that purpose.

29. As noted, the appellant has not been named as one of theaccused in the ECIR but the allegation while being madeagainst the co-accused it is indicated the appellant who wasthe Finance Minister at that point, has aided the illegaltransactions since one of the co-accused is the son of theappellant. In this context, even if the statements on recordand materials gathered are taken note of, the complicity ofthe appellant will have to be established in the trial and ifconvicted, the appellant will undergo sentence. For the

present, as taken note of, the anticipatory bail had beendeclined earlier and the appellant was available for custodialinterrogation for more than 45 days. In addition to thecustodial interrogation if further investigation is to be made,the appellant would be bound to participate in suchinvestigation as is required by the respondent.”

33. In this case, the impugned order of the High Court is flawed,in that the High Court noted the seriousness of the offence alleged,observed that the incident was heinous, but proceeded to grant bail tothe Respondent Accused on the purported ground that he had been incustody since 6[th] October 2020 (that is, about 75 days) without evenconsidering the materials on record which prima facie made outreasonable grounds to believe that the Respondent Accused hadcommitted the heinous offence. At that stage, even the chargesheethad not been filed. The High Court did not apply its mind to the severityof the punishment in the event of conviction, or the fact that the accusedhad been absconding after the incident.

34. As argued on behalf of the Appellant, supported by the applicantfor intervention, being the hapless parent of the victim, the High Courthas neither considered nor discussed the elaborate reasons given by theSessions Court in its order rejecting the prayer of the Respondent Accusedfor bail. The impugned order of the High Court does not advert to anyerror in the reasoning of the Sessions Court. Nor is there any discussionof the reason why the High Court took view different from that takenby the Sessions Court – whether there were any superveningcircumstances within 10/12 days of the order of the Sessions Court,which necessitated different view.

35. The High Court, in our opinion, clearly erred in not appreciatingthat the apprehension of the Prosecution that the Respondent Accusedwould influence witnesses, could not be put to rest, by directing theRespondent Accused not to enter the jurisdiction of Ollur Police Station.The High Court completely ignored the fact that the deceased victimused to reside at Ernakulam. Her parents and her five years old daughterreside at Ernakulam. In other words, the only eye witness is residentof Ernakulam. Most of the Prosecution witnesses were from Thrissur.There was no reason to suppose that the witnesses would restrict theirmovements to the limits of the jurisdiction of Ollur Police Station.

A36. It further appears from the impugned order that, in grantingbail to the Respondent Accused, the High Court took note of the factthat two other accused persons had not been arrested. The High Courtcompletely ignored the fact that these two accused persons were notnamed in the FIR. They were charged after investigation with offenceunder Section 212, of harbouring the Respondent Accused, punishableBwith imprisonment for maximum period of five years, unlike theRespondent Accused, charged with murder under Section 302 of theIPC, which entails minimum punishment of imprisonment for life.

37. There can be no doubt that the outbreak of the novel COVID-19 pandemic and its spread has been matter of serious public concern.CThe virus being highly infectious, precautions to prevent spread ofinfection to the extent possible are imperative. 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 andDaccordingly issued directions from time to time, directing the authoritiesconcerned to inter alia take steps as directed by this Court, to minimizethe risk of spread of COVID amongst the inmates of correctional homes.This Court also directed that High Powered Committee be constitutedby the States and Union Territories to consider release of some prisonerson interim bail or parole during the Pandemic, to prevent overcrowdingEof prisons.

38. It appears that the High Court has completely mis-appreciatedthe object, scope and ambit of the directions issued by this Court fromtime to time in In Re : Contagion of Covid 19 Virus In Prisons. ThisCourt did not direct release of all under-trial prisoners, irrespective ofFthe severity of the offence. After hearing the learned Attorney Generalof India, Mr. Venugopal, the Amicus Curiae appointed by this Court, Mr.Dushyant Dave and other Learned Counsel, the States and UnionTerritories were directed to constitute High Powered Committee todetermine which class of prisoners could be released on parole or interimGbail for such period as might be thought appropriate. By way of example,this Court directed the States/Union Territories to consider release ofprisoners convicted of minor offences with prescribed punishment ofseven years or less. The orders of this Court are not to be construed asany direction, or even observation, requiring release of under-trial prisonerscharged with murder, and that too, even before investigation is completedH

and the chargesheet is filed. The Respondent Accused, it is reiterated, ischarged with murder in the presence of an eye witness, and the impugnedorder granting bail was filed even before the chargesheet was filed.The Chargesheet appears to have been filed on 01.01.2021. Moreoverthe Respondent Accused had been absconding after the incident.

39. For the reasons discussed above the Appeal is allowed andthe impugned order of the High Court is set aside. The RespondentAccused shall be taken into custody.

40. copy of this order shall be sent to the concerned PoliceStation as well as the Jurisdictional Chief Judicial Magistrate forcompliance.

41. Pending application(s), if any, shall stand disposed of.

Devika Gujral

Appeal allowed.