BRIJMANI DEVI versus PAPPU KUMAR & ANR.

[2021] 9 S.C.R. 533

BRIJMANI DEVI

PAPPU KUMAR & ANR.

(Criminal Appeal No.1663 of 2021)

DECEMBER 17, 2021

[L. NAGESWARA RAO, B. R. GAVAI AND

B. V. NAGARATHNA]

Penal Code, 1860 – ss.302 r/w 34; 341, 307 r/w 34 – Bail –Respondent accused of murder of appellant’s son – Bail rejected bySessions Court –Granted by High Court with certain conditions –On appeal, held: Offences alleged against respondent are seriousvis-a-vis the appellant’s son at two points of time, in 2017 allegingattempt to murder him and in 2020 alleging his murder – Respondenthas criminal antecedents – There is likelihood of him abscondingor threatening the witnesses if on bail which would have vitalbearing on the trial – Present cases not fit for grant of bail to therespondent in respect of the two serious accusations against himvis-a-vis the very same person – High Court lost sight of the vitalaspects of the case and granted bail by very cryptic orders –Impugned orders set aside – Respondent to surrender – Arms Act –ss.25, 27 – Maxims – cessante ratione legis cessat ipsa lex.

Bail – Grant of – Factors to be considered – Discussed.

Bail – Order of – Recording of reasons – Held: Whileelaborating reasons may not be assigned for grant of bail, at thesame time an order de hors reasoning or bereft of relevant reasonscannot result in grant of bail – It would be only non speakingorder which is an instance of violation of principles of natural justice– In such case the prosecution or the informant has right toassail the order before higher forum – Principles of natural justice.

Gudikanti Narsimhulu & Ors. vs. Public Prosecutor,High Court of Andhra Pradesh (1978) 1 SCC 240 :[1978] 2 SCR 371; Prahlad Singh Bhati vs. NCT ofDelhi & ORS (2001) 4 SCC 280 : [2001] 2 SCR 684;Ram Govind Upadhyay vs. Sudarshan Singh (2002) 3SCC 598 : [2002] 2 SCR 526; Kalyan Chandra Sarkar

534SUPREME COURT REPORTS

Avs. Rajesh Ranjan alias Pappu Yadav & Anr. (2004) 7SCC 528 : [2004] 7 SCC 528; Gobarbhai NaranbhaiSingala vs. State of Gujarat & Ors. etc. etc. (2008) 3SCC 775 : [2008] 2 SCR 131; Panchanan Mishra vs.Digambar Mishra (2005) 3 SCC 143 : [2005] 1 SCR484; State of UP vs. Amarmani Tripathi (2005) 8 SCCB21 : [2005] 3 Suppl. SCR 454; Ash Mohammad vs. ShivRaj Singh @ Lalla Bahu & Anr. (2012) 9 SCC 446 :[2012] 7 SCR 584; Neeru Yadav vs. State of UP & Anr.(2016) 15 SCC 422 : [2015] 10 SCR 802; Anil KumarYadav v. State (NCT of Delhi) (2018) 12 SCC 129 :C[2017] 11 SCR 195; Bhoopindra Singh vs. State ofRajasthan & Anr. Cr.A. 1279 of 2021; Mahipal vs.Rajesh Kumar (2020) 2 SCC 118 : [2019] 14 SCR 529;Kranti Associates Private Limited & Anr. Vs. MasoodAhmed Khan & Ors. (2010) 9 SCC 496 : [2010] 10SCR 1070 – relied on.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo.1663 of 2021.

From the Judgment and Order dated 22.07.2021 of the High Courtof Judicature at Patna in Criminal Miscellaneous No.11683 of 2021.

With

Criminal Appeal No.1664 of 2021.

Smarhar Singh, Ms. Shweta Kumari, Nagendra Sharma, RamakantKumar, Advs. for the Appellant.

R. Basant, Sr. Adv., Yogesh Ahirraj, Ajit Pravin Wagh, Ms. AsthaPrasad, A. Karthik, Arsh Khan, Saket Singh, Ms. Niranjana Singh, ManishKumar, Advs. for the Respondents.

The Order of the Court was passed by

NAGARATHNA J.

Leave granted.

2. These appeals have been preferred by the informant - appellantassailing the orders dated 22.07.2021 and 13.09.2021 passed by the HighCourt of Judicature at Patna in Criminal Miscellaneous Nos.11683 of2021 and 26463 of 2021 respectively whereby bail has been granted tothe accused who is the common respondent in the appeals, in connectionwith Naubatpur P.S. Case No.93 of 2020 and Parsa Bazar P.S. CaseNo.316 of 2017 respectively.

3. The facts in nutshell are that the appellant is the mother ofthe deceased Rupesh Kumar. She is stated to be an eyewitness to thekilling of her son and also the person who lodged the First InformationReport being FIR No.93 of 2020 for offence of murder of her son undersection 302 read with section 34 of the Indian Penal Code (for short, the‘IPC’) and section 27 of the Arms Act against common respondent-accused herein viz., Pappu Kumar and one other person named DeepakKumar.

4. That FIR No.93/2020 dated 19.02.2020 is stated to have beenfiled by the appellant herein between 2.30 hrs and 3.00 hrs in the nightstating that her son Rupesh Kumar aged about 35 years was sleeping inthe room constructed on the roof top of her house. relative, DeepakKumar was also sleeping there. She was sleeping in another room which

Ais beside the aforesaid room. She has further stated that she heard thesound of person walking and also talking and then she saw thatrespondent–accused was present and he had pistol in his hand andwhen he saw her, he caught her and forcefully tied her mouth with hisGamchha (towel) and he shot her son on the head from his pistol in frontof her and Deepak Kumar too shot once at her son’s head. As result,Bher son died. Other family members reached the spot upon hearing thefiring sound. But the accused ran away waiving their pistols.

5. Earlier, FIR No.316 of 2017 was lodged at Police Station ParsaBazar by appellant’s deceased son himself viz., Rupesh Kumar for causingserious bullet injury to him, under sections 341, 307 read with section 34Cof IPC and section 27 of the Arms Act, by giving ferdbeyan againstthe very same respondent-accused herein and his two acquaintances toK.K. Verma, ASI, Shashtri Nagar PS, District Patna, on 28.12.2017 at7.57 pm at Emergency Ward, Paras Hospital, Patna. This ferdbeyanwas given in respect of an incident which occurred on the previous dayDi.e. 27.12.2017 when he had gone to meet his friend Shailendra at Sipara.While Rupesh Kumar was returning from his friend’s house, therespondent-accused along with his two acquaintances caught him andrespondent-accused fired and caused bullet injury to him. When RupeshKumar ran and reached farmer’s house in the nearby village andnarrated the entire story to him, he was taken to the police station on aEmotorcycle and had lodged FIR No.316/2017.

6. According to the appellant, the respondent-accused herein hadattempted to kill her son viz., Rupesh Kumar in the year 2017 by firing athim and an FIR was lodged being FIR No.316 of 2017. But after lodgingFIR No. 93 of 2020, the respondent-accused had absconded for aboutFseven months. He had also threatened the appellant herein and exertedpressure on the appellant-informant and her family to withdraw thecomplaint, failing which he would eliminate the entire family. That awritten complaint of the appellant dated 30.09.2020 was filed to thepolice, in pursuance of which complaint the respondent-accused wasGnabbed in connection with murder of Rupesh Kumar.

7. While on the run respondent-accused was arrested on30.09.2020. The respondent-accused has been in judicial custody for aperiod of nine months till he was granted bail by the High Court.

8. In fact, the Court of Additional Chief Judicial Magistrate atHPatna, took cognizance of the offences and issued summons to the

respondent-accused herein in connection with FIR No.316/2017. An orderof remand to judicial custody was passed in connection with NaubatpurP.S. Case No.316/2017 under section 307 of IPC on 06.01.2021.

9. That the accused made an application seeking bail before theSessions Court, which was rejected by the Additional Sessions Judge-I,Danapur by Order dated 08.12.2020. Thereafter, the respondent-accusedfiled an application for grant of bail by suppressing his criminal antecedentsand by the impugned order dated 22.07.2021, the High Court grantedhim bail in connection with the case being FIR No.93/2020 registered atNaubatpur P.S. for offence under section 302 read with section 34 ofIPC and section 27 of the Arms Act, subject to certain conditions.

10. Subsequently, the High Court, vide order dated 13.09.2021,also granted bail to respondent-accused in connection with the othercase being FIR No.316/2017 registered at Parsa Bazar P.S. for offencesunder sections 341, 307 read with section 34 of IPC and section 25 ofthe Arms Act. Being aggrieved, the appellant has preferred these appealsbefore this Court.

11. We have heard Sri Smarhar Singh, learned counsel for theappellant and Sri R. Basant, learned Senior Counsel for respondent-accused and perused the material on record.

12. Learned counsel for the appellant submitted that therespondent-accused has been named in eight cases. Even though, thesaid accused may have been acquitted in few cases, there are stillthree cases pending against him. He had attempted unsuccessfully tokill the deceased Rupesh Kumar in the year 2017. Later in the year2020, he killed the deceased and absconded for about seven months.The mother of the deceased appellant herein, is the informant and shehas been threatened by respondent. He was in judicial custody only fora period of nine months as he had earlier absconded but has now beengranted bail by the High Court contrary to the settled principles of lawand the judgments of this Court.

13. Further it is urged that the High Court has not assigned reasonsfor grant of bail in the instant cases whereas the respondent-accused isalleged to have committed heinous crimes which could result in lifeimprisonment or even death penalty. Respondent-accused, being ahabitual offender, could not have been granted bail by the High Court.According to the learned counsel for the appellant, the High Court in

Avery cryptic order de hors any reasoning has granted bail to therespondent-accused. It is the submission of learned counsel for theappellant, who is mother of the deceased, to allow these appeals bysetting aside the impugned orders. In support of his submission, reliancehas been placed on certain decisions of this Court which shall be referredto later.B

14. Per contra, Sri Basant, learned Senior Counsel for therespondent-accused, supported the impugned orders and contended thataccused no.2 in the case is the brother-in-law of the deceased and bothof them were accused in another case in which the respondent-accusedherein has been enlisted as witness. The deceased and Deepak KumarC– accused no.2 were living together in the same house. He may havefired at the deceased but not the respondent-accused herein. This is acase of false implication of the respondent-accused by the informant.

15. That the gun was recovered from accused no.2 and there hasbeen no recovery made from respondent-accused. There have beenDseveral cases against the deceased and accused no.2 also.

16. Learned Senior Counsel for the respondent-accused furthercontended that respondent-accused was 350 kms away on the interveningnight of 18[th] and 19[th] February, 2020. He was not at the spot of the crimeat all. This is evident from the mobile phone details. Therefore, the HighECourt was justified in considering these aspects and granting bail to therespondent-accused.

17. In support of his submission, Sri Basant, learned Senior Counsel,placed reliance on Gudikanti Narsimhulu & Ors. vs. PublicProsecutor, High Court of Andhra Pradesh - (1978) 1 SCC 240,Fwhich prescribes the approach of Court while granting bail. The Courtconsidering an application seeking bail cannot enter into an in-depthanalysis of the case so as to hold mini trial of the case. It is alsounnecessary to give lengthy reasons at the time of granting bail. It wascontended that bail is the norm and jail is the exception. Once bail hasGbeen granted by Court, it is only in very rare cases that there isinterference as it would have the effect of cancellation of bail. That theliberty of person cannot be interfered with unless the situation warrants.

18. It was further submitted that learned counsel for the appellantwas not right in contending that the respondent -accused had absconded.In fact, there was no chargesheet against him. It was only when protestH

petition was filed, that chargesheet was filed against him and he wasarrested.

19. It was further submitted that the allegations against therespondent-accused are false and hence the impugned orders of theHigh Court do not call for any interference in these appeals.

20. Having regard to the contention of Sri Smarhar Singh, learnedcounsel for the appellant that the impugned orders granting bail to therespondent-accused are bereft of any reasoning and they are crypticand bail has been granted in casual manner, we extract those portionsof the impugned orders dated 22[nd] July, 2021 and 13[th] September, 2021passed by the High Court, which provides the “reasoning” of the Courtfor granting bail, as under :

“Impugned Order dated 22.7.2021

During course of investigation, it has come that at the time anddate of occurrence petitioner was at Araria. Petitioner is in custodysince 30.09.2020.

Considering the facts and circumstances of the case and the factthat false implication against the petitioner cannot be rule out, thepetitioner above-named, is directed to be enlarged on bail onfurnishing bail bond of Rs. 10,000/- (Ten thousand) with twosureties of the like amount each to the satisfaction of the learnedAdditional Chief Judicial Magistrate III, Patna in connection withNaubatpur P.S. Case No.93 of 2020, subject to following conditions:

(i)The petitioner shall co-operate in the trial and shall beproperly represented on each and every date fixed bythe court and shall remain physically present as directedby the Court and in the event of failure on twoconsecutive dates without sufficient reasons, his bailbond shall be liable to be cancelled by the court below.

(ii)If the petitioner tampers with the evidence or thewitnesses of the case, in that case, prosecution will beGat liberty to move for cancellation of bail of the petitioner.”

Impugned Order dated 13.09.2021

“Considering the facts and circumstances of the case and thefact petitioner is in custody since 06.01.2021, let the petitioner,

mentioned above, be enlarged on bail on furnishing bail bond ofRs. 10,000/- (ten thousand) with two sureties of the like amounteach to the satisfaction of learned Sub Judge-VIII, Patna, inconnection with Parza Bazar P.S. Case No. 316/2017, subject tothe following conditions:

B(1) Petitioner shall co-operate in the trial and shall be properlyrepresented on each and every date fixed by the Court and shallremain physically present as directed by the Court and on his/herabsence on two consecutive dates without sufficient reason, his/her bail bond shall be cancelled by the Court below.

C(2) If the petitioner tampers with the evidence or the witnesses, inthat case, the prosecution will be at liberty to move for cancellationof bail.”

21. Before proceeding further, it would be useful to refer to thejudgments of this Court in the matter of granting bail to an accused asunder:D

a)In Gudikanti Narasimhulu (supra), Krishna Iyer, J., whileelaborating on the content and meaning of Article 21 of theConstitution of India, has also elaborated the factors thathave to be considered while granting bail which areextracted as under:E

“7. It is thus obvious that the nature of the charge is thevital factor and the nature of the evidence also ispertinent. The punishment to which the party may beliable, if convicted or conviction is confirmed, also bearsupon the issue.

8. Another relevant factor is as to whether the courseof justice would be thwarted by him who seeks thebenignant jurisdiction of the Court to be freed for thetime being.

9. Thus the legal principles and practice validate theCourt considering the likelihood of the applicantinterfering with witnesses for the prosecution orotherwise polluting the process of justice. It is not onlytraditional but rational, in this context, to enquire into theantecedents of man who is applying for bail to find

whether he has bad record – particularly recordwhich suggests that he is likely to commit seriousoffences while on bail. In regard to habituals, it is partof criminological history that thoughtless bail order hasenabled the bailee to exploit the opportunity to inflictfurther about the criminal record of defendant, istherefore not an exercise in irrelevance.”

Prahlad Singh Bhati vs. NCT of Delhi & ORS – (2001)4 SCC 280 is case wherein this Court proceeded to statethe following principles which are to be considered whilegranting bail:

“(a) While granting bail the court has to keep in mindnot only the nature of the accusations, but the severityof the punishment, if the accusation entails convictionand the nature 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.

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

This Court in Ram Govind Upadhyay vs. SudarshanSingh – (2002) 3 SCC 598, speaking through Banerjee,J., observed as under:

“3. Grant of bail though being discretionary order —but, however, calls for exercise of such discretion in ajudicious manner and not as matter of course. Orderfor bail bereft of any cogent reason cannot be sustained.

Needless to record, however, that the grant of bail isdependent upon the contextual facts of the matter beingdealt with by the court and facts, however, do alwaysvary from case to case. While placement of the accusedin the society, though may be considered but that byitself cannot be guiding factor in the matter of grant ofbail and the same should and ought always to be coupledwith other circumstances warranting the grant of bail.The nature of the offence is one of the basicconsiderations for the grant of bail — more heinous isthe crime, the greater is the chance of rejection of thebail, though, however, dependent on the factual matrixof the matter.”

d)In Kalyan Chandra Sarkar vs. Rajesh Ranjan aliasPappu Yadav & Anr. – (2004) 7 SCC 528, this Courtobserved in paragraph 11 as under :

“11. The law in regard to grant or refusal of bail is verywell settled. The court granting bail should exercise itsdiscretion in judicious manner and not as matter ofcourse. Though at the stage of granting bail detailedexamination of evidence and elaborate documentation ofEthe merit of the case need not be undertaken, there is aneed to indicate in such orders reasons for prima facieconcluding why bail was being granted particularly, wherethe accused is charged of having committed seriousoffence. Any order devoid of such reasons would sufferfrom non -application of mind. It is also necessary for theFcourt granting bail to consider among other circumstances,the following factors also before granting bail; they are:

a)The nature of accusation and the severity ofpunishment in case of conviction and the natureof supporting evidence.

b)Reasonable apprehension of tampering with thewitness or apprehension of threat to thecomplainant.

(c)Prima facie satisfaction of the court in support ofthe charge. (See Ram Govind Upadhyay v.

Sudarshan Singh, (2002) 3 SCC 598 and Puranv. Rambilas, (2001) 6 SCC 338.”

e)Gobarbhai Naranbhai Singala vs. State of Gujarat &Ors. etc. etc. – (2008) 3 SCC 775, is case whichconcerns cancellation of bail by this Court in petition filedunder Article 136 of the Constitution of India. In the saidcase reliance was placed on Panchanan Mishra vs.Digambar Mishra – (2005) 3 SCC 143 wherein in para13 it was observed as under:

“13. The object underlying the cancellation of bail is toprotect the fair trial and secure justice being done to thesociety by preventing the accused who is set at libertyby the bail order from tampering with the evidence inthe heinous crime … It hardly requires to be stated thatonce person is released on bail in serious criminal caseswhere the punishment is quite stringent and deterrent,the accused in order to get away from the clutches ofthe same indulge in various activities like tampering withthe prosecution witnesses, threatening the familymembers of the deceased victim and also createproblems of law and order situation.”

–Further on referring to the State of UP vs. Amarmani Tripathi

(2005) 8 SCC 21, this Court noted the facts of the case thereinto the effect that the respondent therein had been named in tenother criminal cases in the last 25 years or so, out of which fivecases were under section 307 IPC for attempt to murder andanother under section 302 IPC for committing murder. That inmost of the cases he was acquitted for want of sufficient evidence.Without saying anything further this Court noted that the HighCourt in the said case completely ignored the general principle forgrant of bail in heinous crime of commission of murder in whichthe sentence, if convicted, is death or life imprisonment.It was further observed that in the impugned order therein thefindings recorded touched upon the merits of the case and thelearned Judge had proceeded as if an order of acquittal was beingpassed, contrary to what had been said in Amarmani Tripathiwhich is that only brief examination has to be made to satisfyabout the facts and circumstances or prima facie case.

f)This Court in Ash Mohammad vs. Shiv Raj Singh @ LallaBahu & Anr. – (2012) 9 SCC 446, observed that thoughthe period of custody is relevant factor, the same has tobe weighed simultaneously with the totality of thecircumstances and the criminal antecedents. That these areto be weighed in the scale of collective cry and desire andthat societal concern has to be kept in view in juxtapositionto individual liberty, was underlined.

In Neeru Yadav vs. State of UP & Anr. – (2016) 15SCC 422, after referring to catena of judgments of thisCourt on the consideration of factors for grant of bailobserved through Dipak Misra, J. (as His Lordship thenwas) in paragraphs 15 and 18 as under:

“15. This being the position of law, it is clear as cloudlesssky that the High Court has totally ignored the criminalantecedents of the accused. What has weighed withthe High Court is the doctrine of parity. history-sheeterinvolved in the nature of crimes which we havereproduced hereinabove, are not minor offences so thathe is not to be retained in custody, but the crimes are ofheinous nature and such crimes, by no stretch ofimagination, can be regarded as jejune. Such cases docreate thunder and lightening having the effectpotentiality of torrential rain in an analytical mind. Thelaw expects the judiciary to be alert while admitting thesekind of accused persons to be at large and, therefore,the emphasis is on exercise of discretion judiciously andnot in whimsical manner.

18. Before parting with the case, we may repeat withprofit that it is not an appeal for cancellation of bail asthe cancellation is not sought because of superveningcircumstances. The annulment of the order passed bythe High Court is sought as many relevant factors havenot been taken into consideration which includes thecriminal antecedents of the accused and that makes theorder deviant one. Therefore, the inevitable result isthe lancination of the impugned order.”

h)In Anil Kumar Yadav v. State (NCT of Delhi) – (2018)12 SCC 129, this Court has spelt out some of the significantconsiderations which must be placed in the balance indeciding whether to grant bail:

“17. While granting bail, the relevant considerations are:(i) nature of seriousness of the offence; (ii) characterof the evidence and circumstances which are peculiarto the accused; and (iii) likelihood of the accused fleeingfrom justice; (iv) the impact that his release may makeon the prosecution witnesses, its impact on the society;and (v) likelihood of his tampering. No doubt, this list isnot exhaustive. There are no hard-and-fast rulesregarding grant or refusal of bail, each case has to beconsidered on its own merits. The matter always callsfor judicious exercise of discretion by the Court.”

i)Recently in Bhoopindra Singh vs. State of Rajasthan &Anr. (Criminal Appeal No. 1279 of 2021), this Courthas observed as under in the matter of exercise of anappellate power to determine whether bail has been grantedfor valid reasons as distinct from an application for-cancellation of bail by quoting Mahipal vs. Rajesh Kumar(2020) 2 SCC 118:

“16. The considerations that guide the power of anappellate court in assessing the correctness of an ordergranting bail stand on different footing from anassessment of an application for the cancellation of bail.The correctness of an order granting bail is tested onthe anvil of whether there was an improper or arbitraryexercise of the discretion in the grant of bail. The test iswhether the order granting bail is perverse, illegal orunjustified. On the other hand, an application forcancellation of bail is generally examined on the anvil ofthe existence of supervening circumstances or violationsof the conditions of bail by person to whom bail hasbeen granted.”

22. On the aspect of the duty to accord reasons for decisionarrived at by court, or for that matter, even quasi-judicial authority, it

EFG

Awould be useful to refer to judgment of this Court in Kranti AssociatesPrivate Limited & Anr. vs. Masood Ahmed Khan & Ors. – (2010) 9SCC 496, wherein after referring to number of judgments this Courtsummarised at paragraph 47 the law on the point. The relevant principlesfor the purpose of this case are extracted as under:

B(a)Insistence on recording of reasons is meant to serve thewider principle of justice that justice must not only be doneit must also appear to be done as well.

(b)Recording of reasons also operates as valid restraint onany possible arbitrary exercise of judicial and quasi-judicialCor even administrative power.

(c)Reasons reassure that discretion has been exercised by thedecision-maker on relevant grounds and by disregardingextraneous considerations.

(d)Reasons have virtually become as indispensable aDcomponent of decision-making process as observingprinciples of natural justice by judicial, quasi-judicial andeven by administrative bodies.

(e)The ongoing judicial trend in all countries committed to ruleof law and constitutional governance is in favour ofEreasoned decisions based on relevant facts. This is virtuallythe lifeblood of judicial decision-making justifying theprinciple that reason is the soul of justice.

(f)Judicial or even quasi-judicial opinions these days can beas different as the judges and authorities who deliver them.FAll these decisions serve one common purpose which is todemonstrate by reason that the relevant factors have beenobjectively considered. This is important for sustaining thelitigants’ faith in the justice delivery system.

(g)Insistence on reason is requirement for both judicialGaccountability and transparency.

(h)If judge or quasi-judicial authority is not candid enoughabout his/her decision-making process then it is impossibleto know whether the person deciding is faithful to thedoctrine of precedent or to principles of incrementalism.

[B. V. NAGARATHNA J. ]

(i)Reasons in support of decisions must be cogent, clear andAsuccinct. pretence of reasons or “rubber-stamp reasons”is not to be equated with valid decision-making process.

(j)It cannot be doubted that transparency is the sine qua nonof restraint on abuse of judicial powers. Transparency indecision-making not only makes the judges and decision-makers less prone to errors but also makes them subject tobroader scrutiny. (See David Shapiro in Defence ofJudicial Candor [(1987) 100 Harvard Law Review 731-37)

(k)In all common law jurisdictions judgments play vital rolein setting up precedents for the future. Therefore, fordevelopment of law, requirement of giving reasons for thedecision is of the essence and is virtually part of “dueprocess”.

23. Though the aforesaid judgment was rendered in the contextof dismissal of revision petition by cryptic order by the NationalConsumer Disputes Redressal Commission, reliance could be placed onthe said judgment on the need to give reasons while deciding matter.

24. The Latin maxim “cessante ratione legis cessat ipsa lex”meaning “reason is the soul of the law, and when the reason of anyparticular law ceases, so does the law itself”, is also apposite.

25. While we are conscious of the fact that liberty of an individualis an invaluable right, at the same time while considering an applicationfor bail Courts cannot lose sight of the serious nature of the accusationsagainst an accused and the facts that have bearing in the case,particularly, when the accusations may not be false, frivolous or vexatiousin nature but are supported by adequate material brought on record soas to enable Court to arrive at prima facie conclusion. Whileconsidering an application for grant of bail prima facie conclusionmust be supported by reasons and must be arrived at after having regardto the vital facts of the case brought on record. Due consideration mustbe given to facts suggestive of the nature of crime, the criminalantecedents of the accused, if any, and the nature of punishment thatwould follow conviction vis-à-vis the offence/s alleged against anaccused.

A26. We have extracted the relevant portions of the impugned ordersabove. At the outset, we observe that the extracted portions are the onlyportions forming part of the “reasoning” of the High court while grantingbail. As noted from the aforecited judgments, it is not necessary for aCourt to give elaborate reasons while granting bail particularly when thecase is at the initial stage and the allegations of the offences by theBaccused would not have been crystalised as such. There cannot beelaborate details recorded to give an impression that the case is one thatwould result in conviction or, by contrast, in an acquittal while passingan order on an application for grant of bail. At the same time, balancewould have to be struck between the nature of the allegations madeCagainst the accused; severity of the punishment if the allegations areproved beyond reasonable doubt and would result in conviction;reasonable apprehension of the witnesses being influenced by theaccused; tampering of the evidence; the frivolity in the case of theprosecution; criminal antecedents of the accused; and prima faciesatisfaction of the Court in support of the charge against the accused.D

27. Ultimately, the Court considering an application for bail has toexercise discretion in judicious manner and in accordance with thesettled principles of law having regard to the crime alleged to becommitted by the accused on the one hand and ensuring purity of thetrial of the case on the other.E

28. Thus, while elaborating reasons may not be assigned for grantof bail, at the same time an order de hors reasoning or bereft of therelevant reasons cannot result in grant of bail. It would be only nonspeaking order which is an instance of violation of principles of naturaljustice. In such case the prosecution or the informant has right toFassail the order before higher forum.

29. In view of the aforesaid discussion, we shall now consider thefacts of the present case. The allegations against respondent-accusedas well as the contentions raised at the Bar have been narrated in detailabove. On consideration of the same, the following aspects of theGcase would emerge:

a)Allegations against the respondent-accused are underSections 341, 307 read with Section 34 of the IPC andSection 27 of the Arms Act in respect of FIR No. 316 of2017 lodged at Police Station Parsa Bazar which is with

regard to attempt to murder Rupesh Kumar the injured,who had himself given the Ferdbayan against therespondent - accused herein. The other case, namely, FIRNo. 93 of 2020 is with regard to the offence of murder ofappellant’s son Rupesh Kumar under Section 302 read withSection 34 of the IPC and Section 27 of the Arms Act againstrespondent-accused herein and accused no.2 DeepakKumar. Thus, offences alleged against respondent-accusedherein are serious offences vis-a-vis the very same RupeshKumar at two points of time, namely, in 2017 when attemptto murder him is alleged and in 2020 allegation of murderhas been cast by the appellant, mother of the deceasedwho is stated to be an eyewitness. Thus, the allegationsagainst the respondent - accused vis-a-vis the same person,namely, the informant Rupesh Kumar in both the cases.

b)According to the respondent-accused, there has been ahistory of enmity between the accused and the deceased.

c)The accusation against the respondent-accused is that heshot Rupesh Kumar with fire arm, namely, pistol on twooccasions.

d)The respondent-accused herein has been named in abouteight cases and though he may have been acquitted in afew of them, there are still cases pending against him. Thus,it is inferred that respondent-accused has criminalantecedents.

e)It has also come on record that the respondent - accusedhad absconded for period of seven months after thecomplaint in respect of the second offence was lodgedagainst him. Therefore, his arrest was delayed.

f)It is also the case of the appellant that the respondent-accused had threatened the informant mother of thedeceased.

g)Thus, there is likelihood of the respondent-accusedabsconding or threatening the witnesses if on bail whichwould have vital bearing on the trial of the cases.

Ah)Also, for securing the respondent-accused herein for thepurpose of commencement of the trial in right earnest inboth the cases, as the accused had earlier absconded,discretion could not have been exercised in favour of therespondent-accused in the instant cases.

Bi)In the impugned order dated 13.09.2021, the High Courthas noted that there was previous enmity between thedeceased and the petitioner with regard to contesting anElection as Mukhiya of Chhotki Tangraila Gram Panchayatbut this fact has not been taken into consideration in thecontext of the allegation against the accused and with regardCto grant of bail.

30. Having considered the aforesaid facts of the present case injuxtaposition with the judgments referred to above, we do not think thatthese cases are fit cases for grant of bail to respondent-accused in respectof the two serious accusations against him vis-à-vis the very same personDnamely deceased Rupesh Kumar.

31. The High court has lost sight of the aforesaid vital aspects ofthe case and in very cryptic orders has granted bail to the respondent-accused. For the aforesaid reasons, we find that the High Court was notright in allowing the applications for bail filed by the respondent-accused.EHence, the impugned orders passed by the High Court are set aside.The appeals are allowed.

32. The respondent-accused is on bail. His bail bonds standcancelled and he is directed to surrender before the concerned jailauthorities within period of two weeks from today.

Divya Pandey

Appeals allowed.