Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 649 of 2022
(ARISING OUT OF SLP (CRL.) No. 7893 of 2021)
Ms. Y … APPELLANT
VERSUS
STATE OF RAJASTHAN AND ANR. … RESPONDENTS
JUDGMENT
N.V. RAMANA, CJI.
1. Leave granted
The present appeal has been filed against the final judgment
2.
and order dated 20.09.2021 passed in S.B. Criminal
Miscellaneous Bail Application No. 14458 of 2021 by the High
Court of Rajasthan, at Jaipur, whereby the High Court granted
regular bail to respondent no. 2 accused.
The counsel for the appellantprosecutrix submits that the
3.
High Court erred in granting bail to the respondent no. 2
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2022.04.19
18:56:14 IST
Reason:
accused in a mechanical manner without any reasoning. Learned
counsel submits that the High Court did not consider the facts of
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the case before it, more particularly, the gravity of the offences
alleged to have been committed by the respondent no. 2
accused. Additionally, the High Court did not consider that the
respondent no. 2 – accused is a hardened criminal with nearly
twenty criminal cases pending against him. Under such
circumstances, this Court should exercise its jurisdiction under
Article 136 of the Constitution and set aside the bail granted to
respondent no. 2 accused.
4. Learned Counsel for respondent no. 1 State supported the
submissions of the appellant and submitted that the impugned
order is a cryptic one which is liable to be set aside. He submitted
that there is a strong prima facie case against the respondent no.
2 accused who committed the heinous offence of rape and
sexual assault upon his minor niece for nearly three to four years.
Further, respondent no. 2 accused is an infamous criminal who
has twenty criminal cases registered against him, in some of
which he has already been convicted. The list of cases registered
against him include cases relating to murder, attempt to murder,
kidnapping, dacoity, . Therefore, the order of the High Court
etc
granting bail to respondent no. 2 accused should be set aside.
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5. Per contra , learned counsel for respondent no. 2 submits
that the High Court passed the impugned order granting bail after
hearing the respondent no. 2 accused and the State. No new
materials have been placed on record before this Court, requiring
this Court to interfere with the impugned order. Further, it is a
settled position of law that an appellate Court must be slow to
interfere in an order granting bail to the accused.
6. Heard the learned counsel for the parties.
7. Before adverting to the submissions made by the parties
relating to the grant of bail, it is necessary to provide a brief
conspectus of the allegations made against respondent no. 2 –
accused. As per the chargesheet dated 29.06.2021 filed in the
present case, it is stated that the appellantprosecutrix registered
an FIR on 30.05.2021 wherein it was stated that on the 16
17.05.2021 the respondent no. 2 – accused, her uncle, had come
to her house. At around midnight to 1 am the respondent no. 2 –
accused had called her to his room and forcibly raped her on two
occasions. Although, initially, she did not narrate this to anyone
because she was scared, some of her relatives noticed her strange
behaviour. When they asked her why she was sad, she narrated
the entire incident to her family. Even before this incident, the
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respondent no. 2 – accused had misbehaved with her. In 2014, he
touched her inappropriately. In 2015, he had attempted to rape
her. He used to try to chat with her and used obscene language,
and attempted to establish physical relationship with her on
various occasions. She had never disclosed these incidents to
anyone as he threatened her. It is in the background of these
allegations that the appropriateness of the impugned order passed
by the High Court granting bail to respondent no. 2 – accused
must be considered.
8. This Court has, in a catena of judgments, outlined the
considerations on the basis of which discretion under Section
439, CrPC has to be exercised while granting bail. In Gurcharan
this
Singh v. State (Delhi Administration), (1978) 1 SCC 118
Court has held as to the various parameters which must be
considered while granting bail. This Court held as follows:
“24 . …Even so, the High Court or the Court of
Session will have to exercise its judicial
discretion in considering the question of
granting of bail under Section 439(1) CrPC of
the new Code. The overriding considerations in
granting bail to which we adverted to earlier and
which are common both in the case of Section
437(1) and Section 439(1) CrPC of the new Code
are the nature and gravity of the circumstances
in which the offence is committed; the position
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and the status of the accused with reference to
the victim and the witnesses; the likelihood, of
the accused fleeing from justice; of repeating the
offence; of jeopardising his own life being faced
with a grim prospect of possible conviction in
the case; of tampering with witnesses; the
history of the case as well as of its investigation
and other relevant grounds which, in view of so
many valuable factors, cannot be exhaustively
set out.”
9. The above factors do not constitute an exhaustive list. The
grant of bail requires the consideration of various factors which
ultimately depends upon the specific facts and circumstances of
the case before the Court. There is no strait jacket formula which
can ever be prescribed as to what the relevant factors could be.
However, certain important factors that are always considered,
interalia, relate to prima facie involvement of the accused, nature
and gravity of the charge, severity of the punishment, and the
character, position and standing of the accused [see State of U.P.
v. Amarmani Tripathi , (2005) 8 SCC 21 ].
10. At the stage of granting bail the Court is not required to
enter into a detailed analysis of the evidence in the case. Such an
exercise may be undertaken at the stage of trial.
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11. Once bail has been granted, the Appellate Court is usually
slow to interfere with the same as it pertains to the liberty of an
individual. A Constitution Bench of this Court in
Bihar Legal
Support Society v. Chief Justice of India , (1986) 4 SCC 767
observed as follows:
. … It is for this reason that the Apex Court
“3
has evolved, as a matter of selfdiscipline,
certain norms to guide it in the exercise of its
discretion in cases where special leave petition
are filed against orders granting or refusing bail
or anticipatory bail.… We reiterate this policy
principle laid down by the bench of this
Court and hold that this Court should not
ordinarily, save in exceptional cases,
interfere with orders granting or refusing bail
or anticipatory bail, because these are
matters in which the High Court should
normally be the final arbiter.”
(emphasis supplied)
12. The above principle has been consistently followed by this
Court. In
Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010)
14 SCC 496 this Court held as under:
“ 9. We are of the opinion that the impugned
order is clearly unsustainable. It is trite that
this Court does not, normally, interfere with an
order passed by the High Court granting or
rejecting bail to the accused. However, it is
equally incumbent upon the High Court to
exercise its discretion judiciously, cautiously
and strictly in compliance with the basic
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principles laid down in a plethora of decisions of
this Court on the point. It is well settled that,
among other circumstances, the factors to be
borne in mind while considering an application
for bail are:
(i) whether there is any prima facie or
reasonable ground to 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, if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being
thwarted by grant of bail.
xxx xxx xxx
10. It is manifest that if the High Court does not
advert to these relevant considerations and
mechanically grants bail, the said order would
suffer from the vice of nonapplication of mind,
rendering it to be illegal…..”
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13. In Mahipal v. Rajesh Kumar , (2020) 2 SCC 118 this
Court followed the holding in
Prasanta Kumar Sarkar (supra)
and held as follows:
“17 . Where a court considering an application
for bail fails to consider relevant factors, an
appellate court may justifiably set aside the
order granting bail. An appellate court is thus
required to consider whether the order granting
bail suffers from a nonapplication of mind or is
not borne out from a prima facie view of the
evidence on record. It is thus necessary for this
Court to assess whether, on the basis of the
evidentiary record, there existed a prima facie or
reasonable ground to believe that the accused
had committed the crime, also taking into
account the seriousness of the crime and the
severity of the punishment…”
14. Recently, a three Judges’ Bench of this Court in Jagjeet
. in Criminal
Singh & Ors. V. Ashish Mishra @ Monu & Anr
Appeal No. 632 of 2022, has reiterated the factors that the Court
must consider at the time of granting bail under Section 439
CrPC, as well as highlighted the circumstances where this Court
may interfere when bail has been granted in violation of the
requirements under the abovementioned section. This Court
observed as follows:
“28 . We may, at the outset, clarify that power to
grant bail under Section 439 of CrPC, is one of
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wide amplitude. A High Court or a Sessions
Court, as the case may be, are bestowed with
considerable discretion while deciding an
application for bail. But, as has been held by
this Court on multiple occasions, this discretion
is not unfettered. On the contrary, the High
Court of the Sessions Court must grant bail
after the application of a judicial mind, following
wellestablished principles, and not in a cryptic
or mechanical manner.”
15. It is worth noting that what is being considered in this case
relates to whether the High Court has exercised the discretionary
power under Section 439 CrPC in granting bail appropriately.
Such an assessment is different from deciding whether
circumstances subsequent to the grant of bail have made it
necessary to cancel the same. The first situation requires the
Court to analyze whether the order granting bail was illegal,
perverse, unjustified or arbitrary. On the other hand, an
application for cancellation of bail looks at whether supervening
circumstances have occurred warranting cancellation. In
Neeru
Yadav v. State of U.P. , (2014) 16 SCC 508 this Court held as
follows:
We have referred to certain principles to be
“12.
kept in mind while granting bail, as has been
laid down by this Court from time to time. It is
well settled in law that cancellation of bail after
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it is granted because the accused has
misconducted himself or of some supervening
circumstances warranting such cancellation
have occurred is in a different compartment
altogether than an order granting bail which is
unjustified, illegal and perverse. If in a case, the
relevant factors which should have been taken
into consideration while dealing with the
application for bail have not been taken note of,
or bail is founded on irrelevant considerations,
indisputably the superior court can set aside
the order of such a grant of bail. Such a case
belongs to a different category and is in a
separate realm. While dealing with a case of
second nature, the court does not dwell upon
the violation of conditions by the accused or the
supervening circumstances that have happened
subsequently. It, on the contrary, delves into
the justifiability and the soundness of the order
passed by the court.”
In the present case, it is necessary to determine whether the
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High Court while granting bail to the respondent no. 2 accused
has properly exercised its discretion under Section 439 CrPC by
following various parameters laid down by this Court. A bare
perusal of the impugned order passed by the High Court does not
suggest that the Court has considered any of the relevant factors
for grant of bail. It would be fruitful to extract the impugned order
at this juncture:
“1. The present bail application has been filed
under Section 439 Cr.P.C. The petitioner has
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been arrested in connection with FIR No.
319/2021 Registered at Police Station Udhyog
Nagar, District Sikar for the offence(s) under
Sections 354, 354B, 354D, 376(2)F, 376(2)N,
450, 506, 509 IPC and Sections 9N/10, 5L/6,
5(N)/6 and 18 of POCSO Act.
2. Learned counsel for the petitioner submits
that the petitioner has been falsely implicated in
this case. He is behind the bars since
30.05.2021. Chargesheet has been filed against
the petitioner. Learned counsel for the petitioner
further submits that during trial, statement of
the prosecutrix was recorded by the learned
trial Court. Learned counsel for the petitioner
also submits that the prosecutrix has made
improvement in her statement. Conclusion of
trial may take long time.
3. Learned counsel for the complainant has
opposed the bail application and submitted that
the petitioner is a habitual offender and he has
been booked in PASA.
4. Learned Public Prosecutor has opposed the
bail application.
5. Considering the contentions putforth by the
counsel for the petitioner and taking into
account the facts and circumstances of the case
and without expressing any opinion on the
merits of the case, this court deems it just and
proper to enlarge the petitioner on bail.
6. Accordingly, the bail application under
Section 439 Cr.P.C. is allowed and it is ordered
that the accusedpetitioner Omprakash @
Jeevanram @ Oma Thehat S/o Boduram shall
be enlarged
on bail provided he furnishes a personal bond in
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the sum of Rs.50,000/ with two sureties of
Rs.25,000/ each to the satisfaction of the
learned trial Judge for his appearance before
the court concerned on all the dates of hearing
as and when called upon to do so. ”
Apart from the general observation that the facts and
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circumstances of the case have been taken into account, nowhere
have the actual facts of the case been adverted to. There appears
to be no reference to the factors that ultimately led the High Court
to grant bail. In fact, no reasoning is apparent from the impugned
order.
Reasoning is the life blood of the judicial system. That every
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order must be reasoned is one of the fundamental tenets of our
system. An unreasoned order suffers the vice of arbitrariness. In
this Court held as under:
Puran v. Rambilas , (2001) 6 SCC 338
“8 . …Giving reasons is different from discussing
merits or demerits. At the stage of granting bail
a detailed examination of evidence and
elaborate documentation of the merits of the
case has not to be undertaken. What the
Additional Sessions Judge had done in the order
dated 1192000 was to discuss the merits and
demerits of the evidence. That was what was
deprecated. That did not mean that whilst
granting bail some reasons for prima facie
concluding why bail was being granted did
not have to be indicated. ”
(emphasis supplied)
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19. In Kalyan Chandra Sarkar v. Rajesh Ranjan , (2004) 7
this Court indicated the importance of reasoning in the
SCC 528
matter concerning bail and held as follows:
“11 . The law in regard to grant or refusal of bail
is very well settled. The court granting bail
should exercise its discretion in a judicious
manner and not as a matter of course. Though
at the stage of granting bail a detailed
examination of evidence and elaborate
documentation of the merit of the case need not
be undertaken
, there is a need to indicate in
such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
having committed a serious offence. Any
order devoid of such reasons would suffer
…
from nonapplication of mind ”
(emphasis supplied)
20. In Brij Nandan Jaiswal v. Munna , (2009) 1 SCC 678,
which concerned a challenge to grant of bail in a serious offence,
this Court has reiterated the same position as was observed in
Kalyan Chandra Sarkar (supra) . This Court has held as under:
… However, we find from the order that no
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reasons were given by the learned Judge while
granting the bail and it seems to have been
granted almost mechanically without
considering the pros and cons of the matter.
While granting bail, particularly in serious
cases like murder some reasons justifying
the grant are necessary. ”
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(emphasis supplied)
21. From the above, it is clear that this Court has consistently
upheld the necessity of reasoned bail orders, with a special
emphasis on matters involving serious offences. In the present
case, respondent no. 2 accused has been accused of committing
the grievous offence of rape against his young niece of nineteen
years. The fact that the respondent no. 2 accused is a habitual
offender and nearly twenty cases registered against him has not
even found mentioned in the impugned order. Further the High
Court has failed to consider the influence that the respondent no.
2 accused may have over the prosecutrix as an elder family
member. The period of imprisonment, being only three months, is
not of such a magnitude as to push the Court towards granting
bail in an offence of this nature.
The impugned order passed by the High Court is cryptic,
22.
and does not suggest any application of mind. There is a recent
trend of passing such orders granting or refusing to grant bail,
where the Courts make a general observation that “the facts and
the circumstances” have been considered. No specific reasons are
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indicated which precipitated the passing of the order by the
Court.
23. Such a situation continues despite various judgments of
this Court wherein this Court has disapproved of such a practice.
In the case of Mahipal (supra) this Court observed as follows:
“ 25 . Merely recording “having perused the
record” and “on the facts and circumstances
of the case” does not subserve the purpose of
a reasoned judicial order. It is a fundamental
premise of open justice, to which our judicial
system is committed, that factors which have
weighed in the mind of the Judge in the
rejection or the grant of bail are recorded in the
order passed. Open justice is premised on the
notion that justice should not only be done, but
should manifestly and undoubtedly be seen to
be done. The duty of Judges to give reasoned
decisions lies at the heart of this commitment.
Questions of the grant of bail concern both
liberty of individuals undergoing criminal
prosecution as well as the interests of the
criminal justice system in ensuring that those
who commit crimes are not afforded the
opportunity to obstruct justice. Judges are
dutybound to explain the basis on which
they have arrived at a conclusion.”
(emphasis supplied)
24. In view of the above, the impugned order passed by the High
Court is set aside. The Criminal Appeal is accordingly allowed.
Bail bonds stand cancelled. Respondent no. 2 accused is
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directed to surrender within one week from the receipt of this
order, failing which, the concerned police authorities shall take
him into custody.
.............................CJI.
(N.V. RAMANA)
...............................J.
(KRISHNA MURARI)
NEW DELHI;
APRIL 19, 2022
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