HARJIT SINGH versus INDERPREET SINGH @ INDER AND ANOTHER

[2021] 8 S.C.R. 258

[2021] 8 S.C.R.

HARJIT SINGH

INDERPREET SINGH @ INDER AND ANOTHER

(Criminal Appeal No. 883 of 2021)

BAUGUST 24, 2021

[DR. DHANANJAYA Y CHANDRACHUD ANDM. R. SHAH, JJ.]

Bail: Grant of bail – Exercise of power while granting bail,scope of – Duty of appellate court particularly when bail was refusedCby lower courts and principles and considerations for granting orrefusing the bail – Discussed – In the instant case, complainanthad lodged FIR alleging that his father was murdered by the accusedin connivance with respondent no.1 who was undergoing sentenceon account of case registered at the instance of the complainantDparty – Respondent no.1 filed bail application before High Court –High Court released respondent no. 1 on bail by observing that itwas not disputed that he had not fired nor had participated directlyin the incident as he was in custody – Original informant, son ofthe deceased filed instant appeal – Held: Material on record showedthat as and when respondent no.1 was granted bail, he came out ofEthe jail, committed another offence and again went to jail – HighCourt failed to notice that earlier also respondent no. 1 had beeninvolved in criminal cases and was convicted and while on bailduring the pendency of appeal against conviction, again committedthe offence – Thus, there was high possibility of threat and dangerFto the life and safety of the appellant/complainant and his familymembers, as is evident from the criminal history of respondent no.1– High Court failed to appreciate and consider the nature ofaccusation and the severity of the punishment in case of convictionand nature of supporting evidence – There was, thus, non-applicationof mind to the seriousness of the crime and circumstances whichGought to have been taken into consideration while granting bail –High Court’s order granting bail set aside.

Allowing the appeal, the Court

HELD: The High Court has failed to appreciate andHconsider the nature of the accusation and the severity of the258

punishment in case of conviction and the nature of supportingevidence. The High Court has also failed to appreciate the factsof the case; the nature of allegations; gravity of offence and therole attributed to the accused. As per the allegations, the accused- respondent no.1 is the main conspirator who hatched theconspiracy along with other co-accused and that too from the jail.The High Court has also failed to notice the serious allegation ofhatching conspiracy from the jail. The High Court ought to haveconsidered that if respondent no.1 – accused can hatch theconspiracy from jail, what he will not do if he is released on bail.As such, in the present case, the High Court failed to notice thatearlier respondent no.1 - accused has been involved in four casesand has been convicted and even while on bail during thependency of the appeal against the conviction, again he indulgedinto similar activities and committed the offence. Respondentno.1 is habitual offender. On number of occasions, he has triedto kill the complainant/appellant and his family. He has repeatedlycommitted offence of attempting to murder the appellantcomplainant thrice and has been convicted in all the three FIRs.From the material on record, it is clear that as and when he isgranted bail, he came out of the jail, committed another offenceand again went to jail. Even the High Court cancelled the bail inanother case specifically observing that while on bail during thependency of the appeal, they were involved in other cases ofheinous crime. Thus, there is high possibility of threat anddanger to the life and safety of the appellant herein/complainantand his family members, as is evident from the criminal history ofrespondent no.1. The said relevant considerations are not at allconsidered by the High Court in its true perspective. Grant ofbail to respondent no.1 does not appear to be in order. Theantecedents of respondent no.1; the threat perception to theappellant and his family members are also not considered by theHigh Court. [Paras 10, 11, 12][277-E-H; 279-A-E]

Gudikanti Narasimhulu v. Public Prosecutor, High Courtof A.P. (1978) 1 SCC 240 : [1978] 2 SCR 371; AshMohammad v. Shiv Raj Singh (2012) 9 SCC 446 : [2012]7 SCR 584; State of Maharashtra v. Sitaram Popat Vetal(2004) 7 SCC 521 : [2004] 3 Suppl. SCR 696; Mahipal

ABC

Av. Rajesh Kumar (2020) 2 SCC 118; Ramesh BhavanRathod v. Vishanbhai Hirabhai Makwana (koli) 2021(6) SCALE 41; Chaman Lal v. State of U.P. (2004) 7SCC 525 : [2004] 3 Suppl. SCR 584; Sonu v. SonuYadav (2021) SCC Online SC 286 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealDNo.883 of 2021.

From the Judgment and Order dated 18.03.2021 of the High Courtof Punjab and Haryana at Chandigarh in Crl. Misc. No. M-11809 of2021.

Ish Puneet Singh, Subhasish Bhowmick, Advs. for the Appellant.E

Sant Pal Singh Sidhu, Karanjeet Singh Brar, Zubin Chhura,Rameshwar Prasad Goyal, Mrs. Jaspreet Gogia, Ms. Mandakini Singh,Karanvir Gogia, Ms. Shivangi Singhal, Ms. Ashima Mandla, Advs. forthe Respondents.FThe Judgment of the Court was delivered by

M. R. SHAH, J.

1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 18.03.2021 passed by the High Court of Punjab &GHaryana at Chandigarh in CRM-M No. 11809 of 2021, by which theHigh Court has released respondent no.1 herein – original accused onbail in connection with FIR No. 245 dated 21.09.2020 at Police StationSadar Jalandhar, District Jalandhar under Sections 302, 120-B, 34, 201IPC and Section 25 of Arms Act, 1959, the original informant – son ofHthe deceased has preferred the present appeal.3. That the appellant herein – Harjit Singh son of late Mann Singhlodged an FIR being FIR No. 245 at Police Station Sadar Jalandhar,District Jalandhar on 21.09.2020 against the accused persons includingrespondent no.1 herein for the offences under Sections 302, 120-B, 34,201 IPC and Section 25 of Arms Act, 1959 alleging inter alia that on21.09.2020 at about 5:45 p.m. when his father Mann Singh was presentnear the gate of Gurudwara Sahib, white colour Maruti Car stoppednear his father from which three persons alighted. The persons alightedfrom the car were (1) Jaskaran Singh @ Jassa son of Bahadur Singh;(2) Bahadur Singh son of Santokh Singh; and (3) Satvinder Singh son ofKaram Singh, residents of Jamsher Khas. It was alleged that BahadurSingh and Satvinder Singh caught hold of his father and Jaskaran Singh@ Jassa, who was armed with pistol, fired 4-5 shots at his father, whodied on account of said fire arm shots. It was specifically alleged that hisfather has been murdered by the assailants in connivance with InderpreetSingh (respondent No.1 herein), who is undergoing sentence on accountof case registered at the instance of the complainant party. It wasfurther alleged that the motive for the said occurrence is that FIR No.12 dated 30.01.2020 at Police Station Jalandhar under Sections 307,326, 323, 324, 452, 506, 148 and 149 IPC and FIR No. 33 dated 14.2.2011at Police Station Jalandhar under Sections 307, 308, 326, 325,323,324,148, 149 and 427 IPC had been lodged against the accused andthe complainant’s father had been pursuing the said cases to get themconvicted and on account of which his father had been murdered.

3.1 That during the investigation, it was revealed that thoughInderpreet Singh (respondent No.1 herein) was not physically present atthe spot, but it has been revealed that the deceased was murdered at theinstance of the accused – Inderpreet Singh (respondent no.1 herein)who hatched criminal conspiracy along with other co-accused to killMann Singh – father of the complainant; that during the interrogationthe accused Inderpreet Singh (respondent no.1 herein) confessed thathe was in touch with co-accused through mobile phone from jail whichhe destroyed after the occurrence; that during the course of investigationit was revealed that Inderpreet Singh (respondent no.1 herein) and co-accused Jaskaran Singh were convicted in FIR No. 67 dated 08.05.2016;that Inderpreet Singh (respondent no.1 herein) filed appeal in the HighCourt against his conviction and sentence in FIR No. 67 of 2016 and byorder dated 30.04.2019 the High Court suspended the sentence ofrespondent no.1 herein – Inderpreet Singh, pending his appeal; that the

Acomplainant herein filed an application under Section 439 (2) Cr.P.C.before the High Court for cancellation of bail of Inderpreet Singh(respondent no.1 herein) and co-accused Jaskaran Singh @ Jassa sincethey had been calling the complainant and the injured on their phonesand threatening them and vide order dated 26.07.2019 the High Courtwas pleased to cancel the bail of Inderpreet Singh (respondent no.1Bherein) and co-accused Jaskaran Singh @ Jassa and directed the ChiefJudicial Magistrate, Jalandhar to take them into custody; that InderpreetSingh (respondent No.1 herein) and co-accused Jaskaran Singh @ Jassachallenged the order passed by the High Court cancelling their bail beforethis Court and this Court dismissed the special leave petition vide orderCdated 11.09.2019; that thereafter Inderpreet Singh (respondent No.1herein) surrendered, however co-accused Jaskaran Singh @ Jassajumped the bail and is absconding since then and he has been declaredproclaimed offender.3.2 That during the investigation it was revealed that takingDadvantage of the situation, Inderpreet Singh (respondent No.1 herein)while being lodged in Central Jail, Kapurthala hatched conspiracy withco-accused Jaskaran Singh @ Jassa, Bahadur Singh and Satvinder Singhto commit the murder of the father of the complainant while being intouch with them on mobile phones, mobile phone of his co-prisoner fromjail, namely, Rajvir Singh; that during the course of investigation it wasErevealed that regular calls were made from mobile phone [REDACTED]to phone numbers of his co-accused to hatch the conspiracy; that duringthe investigation it was also revealed that tower location of the saidmobile phone being used by respondent no.1 herein – Inderpreet Singhwas near Central Jail, Kapurthala; according to the investigating agencyFthat during detailed investigation it came to the fore that one HarjinderSingh was lodged in Kapurthala Jail in NDPS case who was co-villagerof another prisoner namely Rajvir Singh lodged in the same jail and afterbeing released on bail, Harjinder Singh on demand gave sim card andphone to Rajvir Singh inside the jail and this phone was being used by

respondent no.1 – Inderpreet Singh to hatch conspiracy with other co-Gaccused; that thereafter on completion of the investigation the investigatingofficer has filed the chargesheet against the accused including respondentno.1 herein for the offences under Sections 302, 120-B, 34, 201 IPC andSection 25 of Arms Act, 1959 in the court; that respondent no.1 herein –Inderpreet Singh thereafter filed an application under Section 439 Cr.P.C.Hin the Court of Learned Sessions Judge, Jalandhar; that by order dated

15.01.2021, the learned Sessions Judge, Jalandhar dismissed the saidapplication and refused to release respondent no.1 herein on bail; thatthereafter respondent no.1 – Inderpreet Singh approached the High Courtseeking grant of regular bail by way of application being CRM-MNo.11809/2021; that by the impugned judgment and order the High Courthas released respondent no.1 herein – accused on bail by observing thatit is not in dispute that the accused had not fired or had participateddirectly in the occurrence as he was in custody and that the factum ofthe accused using mobile phone within the jail premises is fact whichwould be debatable as the possession of mobile phone by him in jailpremises would be required to be established and that he has been behindbars since the last about five months and was present in jail when theoccurrence took place and further detention of the accused in suchcircumstances would not be justified.

3.3 Feeling aggrieved and dissatisfied with the impugned judgmentand order releasing respondent no.1 – Inderpreet Singh on bail inconnection with FIR No. 245 dated 21.09.2020 at Police Station SadarJalandhar, District Jalandhar for the offences under Sections 302, 120-B, 34, 201 IPC and Section 25 of Arms Act, 1959, the original informant– complainant and son of the deceased Mann Singh has preferred thepresent appeal.

4. Shri Ish Puneet Singh, learned Advocate has appeared on behalfof the appellant, Mrs. Jaspreet Gogia, learned Advocate has appearedon behalf of the State of Punjab and Shri Sant Pal Singh Sidhu, learnedAdvocate has appeared on behalf of the accused Inderpreet Singh –respondent no.1 herein.

4.1 Learned Counsel appearing on behalf of the appellant – originalcomplainant has vehemently submitted that in the facts and circumstancesof the case the High Court has committed grave error in releasingrespondent no.1 herein on bail.

4.2 It is submitted that while releasing respondent no.1 on bail theHigh Court has not at all considered the seriousness of the offence; thespecific allegation in the FIR that even while in jail he hatched theconspiracy along with other co-accused and that he was the mastermind and the main conspirator.

4.3 It is submitted that the High Court has also not at all consideredthe antecedents of the accused and motive behind commission of theoffence and threat perceptions to the complainant and his family members.

A4.4 It is submitted by the learned counsel appearing for thecomplainant that earlier respondent no.1 has been convicted in threeother cases and while he was on bail granted by the High Court whilesuspending the sentence, the accused – respondent no.1 herein hadcommitted one other offence and has tried to kill the complainant and hisfamily members. It is submitted that in fact the accused who has beenBconvicted in other cases had earlier been granted bail in other case andon account of having misused the concession of bail, his bail wascancelled. It is submitted that therefore there is very likelihood that theaccused if granted bail would misuse the concession again.

4.5 It is submitted that the High Court has failed to take intoCconsideration the antecedents of respondent no.1 – accused, whilegranting him bail. It is submitted that he has been convicted in four otherFIRs.

4.6 It is submitted that the High Court has materially erred in notconsidering the relevant material/evidence collected during the courseDof investigation connected to respondent no.1 – accused and the HighCourt has failed to notice that there is ample material collected duringthe investigation establishing that from the jail respondent no.1 has hatchedconspiracy along with other co-accused.

4.7 It is submitted that the High Court has failed to consider thatErespondent no.1 – accused is habitual offender and therefore it wouldnot be proper to release him on bail.

4.8 It is submitted that one of the grounds on which the HighCourt has released respondent no.1 on bail is that he has been behindbars since last 4-5 months. It is submitted that looking to the seriousnessFof the offence and his antecedents and he being the habitual offender,merely because he was behind bars since last about 4-5 months cannotbe ground to release him on bail in serious offence of committing themurder and destroying the evidence.

4.9 Making the above submissions, it is prayed to allow the presentGappeal and quash and set aside the impugned judgment and order passedby the High Court releasing respondent no.1 - accused on bail.

5. Mrs. Jaspreet Gogia, learned Advocate appearing on behalf ofthe State of Punjab has supported the appellant. She has relied upon adetailed counter affidavit filed on behalf of the State. It is submitted thatH

respondent no.1 – accused is habitual offender and is after the life ofthe complainant/appellant herein and his family members. It is submittedthat he repeatedly committed offence of attempt to murder of thecomplainant herein thrice and was convicted in all the three FIRs and isundergoing sentence in those cases.

5.1 It is submitted that every time he was granted bail in the saidFIRs, he came out of the jail, committed another offence and then againwent to jail. It is submitted that by order dated 26.07.2019 when the bail/suspension of sentence of respondent no.1 and co-accused JaskaranSingh @ Jassa was cancelled by the High Court, respondent no.1surrendered back to the jail but co-accused Jaskaran Singh @ Jassajumped the bail and is absconding since then; he has been declaredproclaimed offender. It is submitted that taking advantage of the situation,respondent no.1 while being lodged in Central Jail, Kapurthala hatchedconspiracy with other co-accused Jaskaran Singh, Bahadur Singh andSatvinder Singh to commit murder of the father of the appellant herein.5.2 It is submitted that during the course of the detailed investigation,it was revealed that mobile phone was used by the accused and otherswhile in jail. Thereafter, further enquiry was conducted by the jailauthorities and the SSP, Kapurthala and it was found during the saidenquiry that the mobile in question was being used by prisoner RajvirSingh and the accused – respondent no.1 herein to make calls outsidethe jail and accordingly FIR No. 209 dated 1.8.2021 is registered underSection 52-A Prisons Act, 1894 at P.S. Kotwali, Kapurthala.

5.3 It is submitted that after completion of investigation in caseFIR No. 245 dated 21.09.2020 all the accused persons includingrespondent no.1 herein have been chargesheeted for the offences underSections 302, 120-B, 34, 201 IPC and Section 25 of Arms Act, 1959before the learned Additional Sessions Judge, Jalandhar and the learnedSessions Court is to frame the charges. It is submitted that there isample evidence against the accused Inderpreet Singh – respondent no.1herein.

6. The present appeal is vehemently opposed by Shri Sant PalSingh Sidhu, learned counsel appearing on behalf of respondent no.1 –accused. It is submitted that in the facts and circumstances of the case,no error has been committed by the High Court in releasing the accusedon bail.

A6.1 It is submitted that it is not in dispute that when the incident inquestion took place, respondent no.1 herein was in jail and nothing is onrecord to show that respondent no.1 had participated directly in theoccurrence. It is submitted that as rightly observed by the High Courtthe factum of the accused Inderpreet Singh using mobile phone withinthe jail premises is fact which would be debatable as the possession ofBa mobile phone by the accused in jail premises would be required to beestablished. It is submitted that therefore and when the investigationwas completed and the chargesheet was already filed, no further custodialinvestigation was required and therefore the accused – Inderpreet Singhhas been rightly released on bail by the High Court.C

6.2 It is further submitted that after grant of bail to respondentno.1 herein in the present case, he has never misused the concession ofbail. It is submitted that as per the settled law, different parameters arethere for grant of bail and to cancel the bail. It is submitted that once thebail is granted by the Court of law, the same can be cancelled on accountDof misuse of bail. It is submitted that as in the present case afterrespondent no.1 herein – accused Inderpreet Singh was released on bailhe has not misused the concession of bail granted to him and thereforethis is not fit case to cancel the bail. Therefore, it is prayed to dismissthe present appeal.

E7. We have heard the learned counsel for the respective partiesat length.

Before considering the rival submissions on behalf of the respectiveparties, few decisions of this Court on how to exercise the discretionarypower for grant of bail and the duty of the appellate court, particularlyFwhen bail was refused by the court(s) below and the principles andconsiderations for granting or refusing the bail are required to be referredto and considered.

7.1 In the case of Gudikanti Narasimhulu v. Public Prosecutor,High Court of A.P., (1978) 1 SCC 240, this Court has observed andGheld that deprivation of freedom by refusal of bail is not for punitivepurposes but for the bifocal interests of justice. The nature of the chargeis vital factor and the nature of the evidence is also pertinent. Theseverity of the punishment to which the accused may be liable if convictedalso bears upon the issue. Another relevant factor is whether the courseof justice would be thwarted by him who seeks the benignant jurisdictionHof the Court to be freed for the time being. The Court has also to considerthe likelihood of the applicant interfering with the witnesses for theprosecution or otherwise polluting the process of justice. It is furtherobserved that it is rational to enquire into the antecedents of the manwho is applying for bail to find out whether he has bad record,particularly record which suggests that he is likely to commit seriousoffences while on bail.

7.2 In the case of Ash Mohammad v. Shiv Raj Singh, (2012) 9SCC 446, this Court in paragraphs 17 to 19 observed and held as under:

“17. We are absolutely conscious that liberty of person shouldnot be lightly dealt with, for deprivation of liberty of person hasimmense impact on the mind of person. Incarceration creates aconcavity in the personality of an individual. Sometimes it causesa sense of vacuum. Needless to emphasise, the sacrosanctity ofliberty is paramount in civilised society. However, in democraticbody polity which is wedded to the rule of law an individual isexpected to grow within the social restrictions sanctioned by law.The individual liberty is restricted by larger social interest and itsdeprivation must have due sanction of law. In an orderly societyan individual is expected to live with dignity having respect forlaw and also giving due respect to others’ rights. It is well-accepted principle that the concept of liberty is not in the realm ofabsolutism but is restricted one. The cry of the collective forjustice, its desire for peace and harmony and its necessity forsecurity cannot be allowed to be trivialised. The life of an individualliving in society governed by the rule of law has to be regulatedand such regulations which are the source in law subserve thesocial balance and function as significant instrument forprotection of human rights and security of the collective. It isbecause fundamentally laws are made for their obedience so thatevery member of the society lives peacefully in society to achievehis individual as well as social interest. That is why Edmond Burkewhile discussing about liberty opined, “it is regulated freedom”.

18. It is also to be kept in mind that individual liberty cannot beaccentuated to such an extent or elevated to such high pedestalwhich would bring in anarchy or disorder in the society. Theprospect of greater justice requires that law and order shouldprevail in civilised milieu. True it is, there can be no arithmeticalformula for fixing the parameters in precise exactitude but the

Aadjudication should express not only application of mind but alsoexercise of jurisdiction on accepted and established norms. Lawand order in society protect the established precepts and see toit that contagious crimes do not become epidemic. In an organisedsociety the concept of liberty basically requires citizens to beresponsible and not to disturb the tranquillity and safety whichBevery well-meaning person desires. Not for nothing J. Oerter stated:

“Personal liberty is the right to act without interferencewithin the limits of the law.”

19. Thus analysed, it is clear that though liberty is greatlyCcherished value in the life of an individual, it is controlled andrestricted one and no element in the society can act in mannerby consequence of which the life or liberty of others is jeopardised,for the rational collective does not countenance an anti-social oranti-collective act.”

D7.3 In the case of State of Maharashtra v. Sitaram Popat Vetal,(2004) 7 SCC 521, it is observed and held by this Court that whilegranting of bail, the following factors among other circumstances arerequired to be considered by the Court:

1. The nature of accusation and the severity of punishment inEcase of conviction and the nature of supporting evidence;

2. Reasonable apprehension of tampering with the witness orapprehension of threat to the complainant; and

3. Prima facie satisfaction of the court in support of the charge.

It is further observed that any order dehors such reasons suffersFfrom non-application of mind.

7.4 In the case of Mahipal v. Rajesh Kumar (2020) 2 SCC 118,where the High Court released the accused on bail in case for theoffence under Section 302 of the IPC and other offences recording theonly contention put forth by the counsel for the accused and furtherGrecording that “taking into account the facts and circumstances of thecase and without expressing the opinion on merits of case, this Courtdeems fit just and proper to enlarge/release the accused on bail”, whilesetting aside the order passed by the High Court granting bail, one of us(Dr. Justice D.Y. Chandrachud) observed in paragraphs 11 and 12 asHunder:

“11. Essentially, this Court is required to analyse whether therewas valid exercise of the power conferred by Section 439 CrPCto grant bail. The power to grant bail under Section 439 is of awide amplitude. But it is well settled that though the grant of bailinvolves the exercise of the discretionary power of the court, ithas to be exercised in judicious manner and not as matter ofcourse. In Ram Govind Upadhyay v. Sudarshan Singh (2002) 3SCC 598, Umesh Banerjee, J. speaking for two-Judge Benchof this Court, laid down the factors that must guide the exerciseof the power to grant bail in the following terms:

“3. Grant of bail though being discretionary order — but,however, calls for exercise of such discretion in judicious mannerand not as matter of course. Order for bail bereft of any cogentreason cannot be sustained. Needless to record, however, thatthe grant of bail is dependent upon the contextual facts of thematter being dealt with by the court and facts, however, do alwaysvary from case to case. … The nature of the offence is one ofthe basic considerations for the grant of bail — more heinous isthe crime, the greater is the chance of rejection of the bail, though,however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed tobe relevant considerations may also be noticed at this juncture,though however, the same are only illustrative and not exhaustive,neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not onlythe nature of the accusations, but the severity of the punishment,if the accusation entails conviction and the nature of evidencein support of the accusations.

(b) Reasonable apprehensions of the witnesses being tamperedwith or the apprehension of there being threat for thecomplainant should also weigh with the court in the matter ofgrant of bail.

(c) While it is not expected to have the entire evidenceestablishing the guilt of the accused beyond reasonable doubtbut there ought always to be prima facie satisfaction of thecourt in support of the charge.

(d) Frivolity in prosecution should always be considered and itis only the element of genuineness that shall have to beconsidered in the matter of grant of bail, and in the event ofthere being some doubt as to the genuineness of the prosecution,in the normal course of events, the accused is entitled to anorder of bail.”

12. The determination of whether case is fit for the grant of bailinvolves the balancing of numerous factors, among which thenature of the offence, the severity of the punishment and primafacie view of the involvement of the accused are important. Nostraitjacket formula exists for courts to assess an application forCthe grant or rejection of bail. At the stage of assessing whether acase is fit for the grant of bail, the court is not required to enterinto detailed analysis of the evidence on record to establish beyondreasonable doubt the commission of the crime by the accused.That is matter for trial. However, the Court is required to examineDwhether there is prima facie or reasonable ground to believethat the accused had committed the offence and on balance ofthe considerations involved, the continued custody of the accusedsubserves the purpose of the criminal justice system. Where bailhas been granted by lower court, an appellate court must beslow to interfere and ought to be guided by the principles set outEfor the exercise of the power to set aside bail.

7.5 That thereafter this Court considered the principles that guidewhile assessing the correctness of an order passed by the High Courtgranting bail. This Court specifically observed and held that normallythis Court does not interfere with an order passed by the High CourtFgranting or rejecting the bail to the accused. However, where thediscretion of the High Court to grant bail has been exercised without thedue application of mind or in contravention of the directions of this Court,such an order granting bail is liable to be set aside. This Court furtherobserved that the power of the appellate court in assessing the correctnessGof an order granting bail stand on different footing from an assessmentof an application for cancellation of bail. It is further observed that thecorrectness of an order granting bail is tested on the anvil of whetherthere was proper or arbitrary exercise of the discretion in the grant ofbail. It is further observed that the test is whether the order granting bailis perverse, illegal or unjustified. Thereafter this Court considered the

difference and distinction between an application for cancellation of bailand an appeal before this Court challenging the order passed by theappellate court granting bail in paras 13, 14, 16 and 17 as under:

“13. The principles that guide this Court in assessing the correctnessof an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of2010, order dated 11-1-2010 (Cal)] passed by the High Courtgranting bail were succinctly laid down by this Court in PrasantaKumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496. In thatcase, the accused was facing trial for an offence punishable underSection 302 of the Penal Code. Several bail applications filed bythe accused were dismissed by the Additional Chief JudicialMagistrate. The High Court in turn allowed the bail applicationfiled by the accused. Setting aside the order [Ashish Chatterjee v.State of W.B., CRM No. 272 of 2010, order dated 11-1-2010(Cal)] of the High Court, D.K. Jain, J., speaking for two-JudgeBench of this Court, held:“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 the HighCourt granting or rejecting bail to the accused. However, it isequally incumbent upon the High Court to exercise its discretionjudiciously, cautiously and strictly in compliance with the basicprinciples laid down in plethora of decisions of this Court onthe point. It is well settled that, among other circumstances,the factors to be borne in mind while considering an applicationfor bail are:

(i)whether there is any prima facie or reasonable groundto believe that the accused had committed theoffence;

(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, ifreleased on bail;

(v)character, behaviour, means, position and standingof the accused;

(vi)likelihood of the offence being repeated;

(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, thesaid order would suffer from the vice of nonapplication of mind,rendering it to be illegal.”

14. The provision for an accused to be released on bail touchesupon the liberty of an individual. It is for this reason that this Courtdoes not ordinarily interfere with an order of the High Courtgranting bail. However, where the discretion of the High Court togrant bail has been exercised without the due application of mindor in contravention of the directions of this Court, such an ordergranting bail is liable to be set aside. The Court is required tofactor, amongst other things, prima facie view that the accusedhad committed the offence, the nature and gravity of the offenceand the likelihood of the accused obstructing the proceedings ofthe trial in any manner or evading the course of justice. Theprovision for being released on bail draws an appropriate balancebetween public interest in the administration of justice and theprotection of individual liberty pending adjudication of the case.However, the grant of bail is to be secured within the bounds ofthe law and in compliance with the conditions laid down by thisCourt. It is for this reason that court must balance numerousfactors that guide the exercise of the discretionary power to grantbail on case-by-case basis. Inherent in this determination iswhether, on an analysis of the record, it appears that there is aprima facie or reasonable cause to believe that the accused hadcommitted the crime. It is not relevant at this stage for the courtto examine in detail the evidence on record to come to conclusivefinding.

16. The considerations that guide the power of an appellate courtin assessing the correctness of an order granting bail stand on adifferent footing from an assessment of an application for thecancellation of bail. The correctness of an order granting bail istested on the anvil of whether there was an improper or arbitrary

exercise of the discretion in the grant of bail. The test is whetherthe order granting bail is perverse, illegal or unjustified. On theother hand, an application for cancellation of bail is generallyexamined on the anvil of the existence of superveningcircumstances or violations of the conditions of bail by person towhom bail has been granted. In Neeru Yadav v. State of U.P.(2014)16 SCC 508, the accused was granted bail by the High Court[Mitthan Yadav v. State of U.P.[ 2014 SCC OnLine All 16031]. Inan appeal against the order [Mitthan Yadav v. State of U.P., 2014SCC OnLine All 16031] of the High Court, two-Judge Bench ofthis Court surveyed the precedent on the principles that guide thegrant of bail. Dipak Misra, J. held:“12. … It is well settled in law that cancellation of bail after itis granted because the accused has misconducted himself orof some supervening circumstances warranting suchcancellation have occurred is in different compartmentaltogether than an order granting bail which is unjustified, illegaland perverse. If in case, the relevant factors which shouldhave been taken into consideration while dealing with theapplication for bail have not been taken note of, or bail isfounded on irrelevant considerations, indisputably the superiorcourt can set aside the order of such grant of bail. Such acase belongs to different category and is in separate realm.While dealing with case of second nature, the Court does notdwell upon the violation of conditions by the accused or thesupervening circumstances that have happened subsequently.It, on the contrary, delves into the justifiability and the soundness

of the order passed by the Court.”

17. Where court considering an application for bail fails toconsider relevant factors, an appellate court may justifiably setaside the order granting bail. An appellate court is thus required toconsider whether the order granting bail suffers from non-application of mind or is not borne out from prima facie view ofthe evidence on record. It is thus necessary for this Court to assesswhether, on the basis of the evidentiary record, there existed aprima facie or reasonable ground to believe that the accused hadcommitted the crime, also taking into account the seriousness ofthe crime and the severity of the punishment. The order [Rajesh

AKumar v. State of Rajasthan, 2019 SCC OnLine Raj 5197] of theHigh Court in the present case, insofar as it is relevant reads:

“2. Counsel for the petitioner submits that the petitioner has beenfalsely implicated in this matter. Counsel further submits that, thedeceased was driving his motorcycle, which got slipped on sharpBturn, due to which he received injuries on various parts of bodyincluding ante-mortem head injuries on account of which he died.Counsel further submits that the challan has already beenpresented in the court and conclusion of trial may take long time.

3. The learned Public Prosecutor and counsel for the complainantChave opposed the bail application.

4. Considering the contentions put forth by the counsel for thepetitioner and taking into account the facts and circumstances ofthe case and without expressing opinion on the merits of the case,this Court deems it just and proper to enlarge the petitioner onDbail.” Thereafter this Court set aside the order passed by theHigh Court releasing the accused on bail.”

Thereafter, this Court set aside the order passed by the High Courtreleasing the accused on bail.

8. At this stage, recent decision of this Court in the case ofERamesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (koli) 2021(6) SCALE 41 is also required to be referred to. In the said decision, thisCourt considered in great detail the considerations which govern thegrant of bail, after referring to the decisions of this Court in the case ofRam Govind Upadhyay (Supra); Prasanta Kumar Sarkar (Supra);FChaman Lal vs. State of U.P. (2004) 7 SCC 525; and the decision of thisCourt in Sonu vs. Sonu Yadav 2021 SCC Online SC 286. After consideringthe law laid down by this Court on grant of bail, in the aforesaid decisions,in paragraphs 20, 21, 36 & 37 it is observed and held as under:

“20. The first aspect of the case which stares in the face is thesingular absence in the judgment of the High Court to the natureGand gravity of the crime. The incident which took place on 9 May2020 resulted in five homicidal deaths. The nature of the offenceis circumstance which has an important bearing on the grant ofbail. The orders of the High Court are conspicuous in the absenceof any awareness or elaboration of the serious nature of the

offence. The perversity lies in the failure of the High Court toconsider an important circumstance which has bearing onwhether bail should be granted. In the two-judge Bench decisionof this Court in Ram Govind Upadhyay v. Sudharshan Singh, thenature of the crime was recorded as “one of the basicconsiderations” which has bearing on the grant or denial of bail.The considerations which govern the grant of bail were elucidatedin the judgment of this Court without attaching an exhaustive natureor character to them. This emerges from the following extract:

“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 in thematter 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 facie satisfactionof the court in support of the charge.

(d) Frivolity in prosecution should always be considered andit is only the element of genuineness that shall have to beconsidered in the matter of grant of bail, and in the event ofthere being some doubt as to the genuineness of theprosecution, in the normal course of events, the accused isentitled to an order of bail.”

21. This Court further laid down the standard for overturning anorder granting bail in the following terms:

“3. Grant of bail though being discretionary order — but,however, calls for exercise of such discretion in judicious

manner and not as matter of course. Order for bail bereft ofany cogent reason cannot be sustained.”

xxxxxx

xxx

36. Grant of bail under Section 439 of the CrPC is matterinvolving the exercise of judicial discretion. Judicial discretion ingranting or refusing bail - as in the case of any other discretionwhich is vested in court as judicial institution - is notunstructured. The duty to record reasons is significant safeguardwhich ensures that the discretion which is entrusted to the courtis exercised in judicious manner. The recording of reasons in ajudicial order ensures that the thought process underlying the orderis subject to scrutiny and that it meets objective standards of reasonand justice. This Court in Chaman Lal v. State of U.P (2004) 7SCC 525 in similar vein has held that an order of High Courtwhich does not contain reasons for prima facie concluding that abail should be granted is liable to be set aside for nonapplication ofmind. This Court observed:

“8. Even on cursory perusal the High Court’s order showscomplete non-application of mind. Though detailed examinationof the evidence and elaborate documentation of the merits ofthe case is to be avoided by the Court while passing orders onbail applications. Yet court dealing with the bail applicationshould be satisfied, as to whether there is prima facie case,but exhaustive exploration of the merits of the case is notnecessary. The court dealing with the application for bail isrequired to exercise its discretion in judicious manner andnot as matter of course.9. There is need to indicate in the order, reasons for primafacie concluding why bail was being granted particularly wherean accused was charged of having committed seriousoffence…”

37. We are also constrained to record our disapproval of themanner in which the application for bail of Vishan (A-6) wasdisposed of. The High Court sought to support its decision to grantbail by stating that it had perused the material on record and wasgranting bail “without discussing the evidence in detail” takinginto consideration:

(1) The facts of the case;

(2) The nature of allegations;

(3) Gravity of offences; and

(4) Role attributed to the accused.”

9. Applying the law laid down by this Court in the aforesaiddecisions on grant of bail to the facts of the case on hand, the impugnedorder passed by the High Court releasing the accused on bail is notsustainable for the following reasons:

(i) that respondent no.1 – accused Inderpreet Singh along withother co-accused has been chargesheeted for the offences under sections302, 120-B, 34, 201 IPC and Section 25 of Arms Act, 1959 for havingkilled the father of the complainant – appellant herein;

(ii) that while in custody in jail, respondent no.1 – accusedInderpreet Singh hatched the conspiracy with the other co-accused;

(iii) that during the course of the investigation, the investigatingofficer collected relevant material on hatching the conspiracy from jailalong with other co-accused; and

(iv) that respondent no.1 – accused Inderpreet Singh was inconstant touch on mobile with the other co-accused.

10. The High Court has failed to appreciate and consider the natureof the accusation and the severity of the punishment in case of convictionand the nature of supporting evidence. The High Court has also failed toappreciate the facts of the case; the nature of allegations; gravity ofoffence and the role attributed to the accused. As per the allegations,the accused Inderpreet Singh, respondent no.1 herein is the mainconspirator who hatched the conspiracy along with other co-accusedand that too from the jail. The High Court has also failed to notice theserious allegation of hatching conspiracy from the jail. The High Courtought to have considered that if respondent no.1 – accused InderpreetSingh can hatch the conspiracy from jail, what he will not do if he isreleased on bail. As such, in the present case, the High Court has failedto notice that earlier respondent no.1 - accused has been involved infour cases and has been convicted and even while on bail during thependency of the appeal against the conviction, again he indulged intosimilar activities and committed the offence. The details of theantecedents of respondent no.1 – accused are as under:

It is also required to be noted that earlier while respondent no.1was released on bail by the High Court suspending the sentence in FIRNo. 67 of 2016 by order dated 30.04.2019, again he committed the offencewhile on bail and his bail came to be cancelled by the High Court againstwhich special leave petition was preferred before this Court whichGcame to be dismissed. It is to be noted that though the High Courtcancelled the bail on 26.07.2019 and directed the Chief Judicial Magistrate,Jalandhar to take the accused into custody, despite issuance of arrestwarrants against respondent no.1 herein and the co-accused JaskaranSingh @ Jassa, they could not be arrested and respondent no.1 hereinwas finally arrested on 18.07.2020, and even the co-accused JaskaranH

Singh @ Jassa is still absconding. From the aforesaid, it can be seen thatrespondent no.1 herein is habitual offender. On number of occasions,he has tried to kill the complainant/appellant herein and his family. Hehas repeatedly committed offence of attempting to murder the appellantherein/complainant thrice and has been convicted in all the three FIRs.

11. From the material on record, it is clear that as and when he isgranted bail, he came out of the jail, committed another offence andagain went to jail. Even the High Court cancelled the bail in anothercase vide order dated 26.07.2019 specifically observing that while onbail during the pendency of the appeal, they were involved in other casesof heinous crime. From the material on record, it appears that there is ahigh possibility of threat and danger to the life and safety of the appellantherein/complainant and his family members, as is evident from the criminalhistory of respondent no.1, detailed above.

12. The aforesaid relevant considerations are not at all consideredby the High Court in its true perspective. Grant of bail to respondentno.1 herein does not appear to be in order. The antecedents of respondentno.1 herein; the threat perception to the appellant and his family membersare also not considered by the High Court. We are of the opinion that theHigh Court has erred in granting bail to respondent no.1 herein withouttaking into consideration the overall facts, otherwise having bearing onexercise of its discretion on the issue. The order passed by the HighCourt fails to notice material facts and shows non-application of mind tothe seriousness of the crime and circumstances, which ought to havebeen taken into consideration.

13. Considering the overall facts and circumstances of the caseand the circumstances noted hereinabove and applying the law laid downby this Court in the aforesaid decisions on grant of bail, we are of thefirm opinion that in the facts and circumstances of the case, the HighCourt has committed grave error in releasing respondent no.1 – accusedInderpreet Singh on bail and therefore the impugned judgment and orderpassed by the High Court is unsustainable and the same deserves to bequashed and set aside and is accordingly quashed and set aside.Consequently, the bail granted by the High Court to respondent no.1herein – Inderpreet Singh in connection with FIR No. 245 dated21.09.2020 at Police Station Sadar Jalandhar, District Jalandhar for theoffences under Sections 302, 120-B, 34, 201 IPC and Section 25 ofArms Act, 1959 is hereby cancelled. Respondent no.1 herein – Inderpreet

ASingh is directed to surrender forthwith, failing which the learned trialCourt is directed to take respondent no.1 – Inderpreet Singh into custodyby issuing arrest warrants against him. Needless to say, that theobservations made herein are only for the purpose of deciding the issueof granting bail to respondent no.1 herein and will have no bearing on thetrial of the case and the learned trial Court shall decide the case on itsBown merits, in accordance with law.

14. The appeal is accordingly allowed to the aforesaid extent.

Devika Gujral

Appeal allowed.