MAHIPAL versus RAJESH KUMAR @ POLIA & ANR. on 5 December 2019

MAHIPAL

v.

RAJESH KUMAR @ POLIA & ANR.

(Criminal Appeal No. 1843 of 2019)

DECEMBER 05, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDHRISHIKESH ROY, JJ.]

Code of Criminal Procedure, 1973: s.439 – Bail –Complainant’s case was that the victim-deceased was his nephewand was assaulted by the respondents-accused while the deceasedand his friend were on their way on a bike – Victim-deceasedsuffered head injuries which resulted in his death – Bail applicationof first respondent was allowed by High Court – Complainant-appellant filed instant appeal challenging the order of High Courtenlarging the first respondent on bail – Held: A court assessing aplea of bail is required to find a prima facie view of the possibilityof the commission of the crime by the accused and not concludethat the alleged crime was in fact committed by the accused beyondreasonable doubt – As per postmortem report, the victim-deceasedwas inflicted head injuries – Medical Board was of opinion that hedied of head injuries – The statement of the friend of the deceasedwho was allegedly present with the deceased at the time of theincident was recorded under s.161 – The statement details the allegedincident and names all five accused, attributing to them the commonintention to kill the deceased – It was stated that the accusedthereafter drove away with the bike of the deceased – The orderpassed by the High Court failed to notice material facts and showednon-application of mind to the seriousness of the crime – High Courterred in not considering material relevant to the determination ofwhether the accused were to be enlarged on bail – Order of theHigh Court enlarging the accused on bail is erroneous and is setaside – Criminal Justice System – Bail.

Code of Criminal Procedure, 1973: s.439 – Bail – Grant/Rejection of bail – Determining factors – Held: The determinationof whether a case is fit for the grant of bail involves the balancingof numerous factors, among which the nature of the offence, the

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Aseverity of the punishment and a prima facie view of the involvementof the accused are important – No straight jacket formula exists forcourts to assess an application for the grant or rejection of bail –At the stage of assessing whether a case is fit for the grant of bail,the court is not required to enter into a detailed analysis of theevidence on record to establish beyond reasonable doubt theBcommission of the crime by the accused – That is a matter for trial –However, the Court is required to examine whether there is a primafacie or reasonable ground to believe that the accused had committedthe offence and on a balance of the considerations involved, thecontinued custody of the accused sub-serves the purpose of theCcriminal justice system.

Code of Criminal Procedure, 1973: s.439 – Bail – Where bailhas been granted by a lower court – Scope of interference – Held:Appellate court must be slow to interfere and ought to be guided bythe principles set out for the exercise of the power to set aside bail.D

Code of Criminal Procedure, 1973: s.439 – Bail – Power ofan appellate court in assessing the correctness of an order grantingbail vis-a-vis application for the cancellation of bail – Determiningfactors – Held: The considerations that guide the power of anappellate court in assessing the correctness of an order grantingEbail stand on a different footing from an assessment of an applicationfor the cancellation of bail – The correctness of an order grantingbail is tested on the anvil of whether there was an improper orarbitrary exercise of the discretion in the grant of bail – The test iswhether the order granting bail is perverse, illegal or unjustified –On the other hand, an application for cancellation of bail isFgenerally examined on the anvil of the existence of superveningcircumstances or violations of the conditions of bail by a person towhom bail has been granted.

Conclusion

Judicial discipline: Reasoned/Speaking order while granting/rejecting bail – It is a fundamental premise of open justice thatGfactors which have weighed in the mind of the judge in the rejectionor the grant of bail are recorded in the order passed – Open justiceis premised on the notion that justice should not only be done, butshould manifestly and undoubtedly be seen to be done – The dutyof judges to give reasoned decisions lies at the heart of thisHcommitment – Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interestsof the criminal justice system in ensuring that those who commitcrimes are not afforded the opportunity to obstruct justice – Judgesare duty bound to explain the basis on which they have arrived at aconclusion – Where an order refusing or granting bail does notfurnish the reasons that inform the decision, there is a presumptionof the non-application of mind – Bail.

Allowing the appeals, the Court

HELD: 1. The provision for an accused to be released onbail touches upon the liberty of an individual. It is for this reasonthat this Court does not ordinarily interfere with an order of theHigh Court granting bail. However, where the discretion of theHigh Court to grant bail has been exercised without the dueapplication of mind or in contravention of the directions of thisCourt, such an order granting bail is liable to be set aside. 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 a court must balance numerousfactors that guide the exercise of the discretionary power to grantbail on a 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 aconclusive finding. [Para 14][539-G-H; 540-A-C]

2. The correctness of an order granting bail is tested onthe anvil of whether there was an improper or arbitrary exerciseof the discretion in the grant of bail. The test is whether the ordergranting bail is perverse, illegal or unjustified. On the other hand,an application for cancellation of bail is generally examined onthe anvil of the existence of supervening circumstances orviolations of the conditions of bail by a person to whom bail hasbeen granted. Where a court considering an application for bailfails to consider relevant factors, an appellate court may justifiablyset aside the order granting bail. An appellate court is thus AB

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Arequired to consider whether the order granting bail suffers froma non-application of mind or is not borne out from a prima facieview of the evidence on record. [Paras 15, 16][540-E-F; 541-D]

3. The findings of the post-mortem report was that a totalof twenty-seven ante-mortem injuries were recorded of whichBseven were found to be inflicted on the head. This led themembers of the medical board to conclude that the cause of deathwas coma brought about by the result of the head injuries. It wascontended for the first respondent that the deceased fell fromthe bike and sustained injuries which led to his death. However,it is not for the court to assess in detail the evidence on record toCcome to a conclusive finding on a chain of causation. A courtassessing a plea of bail is required to find a prima facie view ofthe possibility of the commission of the crime by the accused andnot conclude that the alleged crime was in fact committed by theaccused beyond reasonable doubt. The statement of the friend ofDthe deceased who was allegedly present with the deceased at thetime of the incident was recorded under Section 161. Thestatement details the alleged incident and names all five accused,attributing to them the common intention to kill the deceased. Itwas stated that the accused thereafter drove away with the bikeof the deceased. [Paras 17-18][542-A, D-F]E

4. The order passed by the High Court failed to noticematerial facts and shows a non-application of mind to theseriousness of the crime and the circumstances referred to earlierwhich ought to have been taken into consideration. The HighCourt has erred in not considering material relevant to theFdetermination of whether the accused were to be enlarged onbail. The order of the High Court enlarging the accused on bail iserroneous and liable to be set aside. [Paras 20-21][543-G-H; 544- A]

5. There is another reason why the judgment of the SingleGJudge has fallen into error. It is a sound exercise of judicialdiscipline for an order granting or rejecting bail to record thereasons which have weighed with the court for the exercise of itsdiscretionary power. In the instant case, the assessment by theHigh Court is essentially contained in a single paragraph whichHreads: Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstancesof the case and without expressing opinion on the merits of thecase, this court deems it just and proper to enlarge the petitioneron bail.” Merely recording “having perused the record” and“on the facts and circumstances of the case” does not sub-servethe purpose of a reasoned judicial order. Questions of the grantof bail concern both liberty of individuals undergoing criminalprosecution as well as the interests of the criminal justice systemin ensuring that those who commit crimes are not afforded theopportunity to obstruct justice. Judges are duty bound to explainthe basis on which they have arrived at a conclusion. Where anorder refusing or granting bail does not furnish the reasons thatinform the decision, there is a presumption of the non-applicationof mind which may require the intervention of this Court. Theperfunctory analysis by the High Court in the instant case cannotbe sustained. [Paras 22-23, 25-26][544-B-E; 545-B-D]

Ram Govind Upadhyay v. Sudarshan Singh (2002) 3SCC 598 : [2002] 2 SCR 526; Prasanta Kumar Sarkarv. Ashis Chatterjee (2010) 14 SCC 496 : [2010] 12 SCR1165; Ash Mohammad v. Shiv Raj Singh (2012) 9 SCC446 : [2012] 7 SCR 584; Ranjit Singh v. State of MadhyaPradesh (2013) 16 SCC 797 [2013] 11 SCR 273; NeeruYadav v. State of U.P. (2014) 16 SCC 508 : [2014] 12SCR 453; Virupakshappa Gouda v. State of Karnataka(2017) 5 SCC 406 : [2017] 4 SCR 373; State of Orissav. Mahimananda Mishra (2018) 10 SCC 516; NeeruYadav v. State of Uttar Pradesh (2015) 15 SCC 422;Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC528 – relied on A

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BCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1843 of 2019.

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BCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1843 of 2019.

From the Judgment and Order dated 10.05.2019 of the HighCourt of Judicature for Rajasthan, Bench at Jaipur in S.B. CriminalMiscellaneous Bail Application No. 5345 of 2019.

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Criminal Appeal Nos. 1844, 1845, 1846, 1847 of 2019.

Karan Bharihoke, Siddhant Sharma, Advs. for the Appellant.

Dr. Manish Singhvi, Sr. Adv., Shailja Nanda Mishra, Arpit Parkash,DSandeep Kumar Jha, Sarad Kumar Singhania, Pankaj Singhal,Mrs. Rashmi Singhania, Milind Kumar, Advs. for the Respondents.

The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, JE1. Leave granted.

2. This batch of appeals arises from a judgment of a learned SingleJudge of the High Court of Rajasthan at its Jaipur Bench dated 10 May2019. Allowing the bail application filed under Section 439 of the Codeof Criminal Procedure 1973[1], the High Court enlarged the first respondentFon bail subject to certain conditions therein. The original complainant isin appeal before this Court.

3. By similar orders, the learned Single Judge granted bail to theother four accused – Anil Kumar, Ajay Kumar, Vikas Kumar and VijayKumar. The appeals filed by the appellant against those orders haveGbeen tagged with the present appeal. Since the facts in all these mattersand the questions involved are similar, they have been heard togetherand are being disposed of by this common judgment. For the sake ofconvenience, the facts in SLP (Crl.) No. 6339 of 2019 are discussed.

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4. A First Information Report[2] was lodged by the appellant on 3December 2018 stating that his now deceased nephew – Akhilesh hadvisited town on leave for a month for his marriage. It was stated that atabout 7.00 pm on 2 December 2018, the deceased and his friend Aashishleft the matrimonial home to run an errand. At about 7.30 pm, the deceasedand Aashish stopped their bike on the road which caused a quarrel withtwo accused persons – Vijay and Anil, who then hurled abuses at thedeceased. At that time, five to six boys armed with dandas assaultedthe deceased who was rescued by near-by villagers. It was stated thatthe deceased left the scene on his motorcycle only to be confronted ashort distance thereafter by the accused – Anil, Ajay, Rajesh (the firstrespondent), Vikas and Vijay. It was alleged that the accused used rodsto beat the deceased with an intention to kill him. It was alleged thatafter beating the deceased, the accused fled from the scene of theincident. The deceased was rushed to Jhunjhunu R & R Hospital atChirawa. However, owing to the serious nature of the injuries, he wasreferred to Fortis Hospital at Jaipur where he was declared dead.

5. The post-mortem report was recorded on 3 December 2018.Twenty-seven ante-mortem injuries on the body of the deceased werenoted. The first respondent was arrested on 3 December 2018. Thestatements under Section 161 of the CrPC of the appellant and Aashishwere recorded. A charge-sheet was filed against the five accused on 10March 2019 under Sections 147, 148, 149, 302 and 397 of the IndianPenal Code 1908.[3] Cognizance was taken by the Judicial Magistrate,Pilani on 27 March 2019. As the accused were charged under Section302, the case was committed to the Additional Sessions Judge, Jhunjhunufor trial.

6. The bail application filed by the first respondent before theAdditional Sessions Judge was rejected on 10 April, 2019. Thereafter,the first respondent filed a bail application before the High Court ofRajasthan, which was allowed. The appellant has filed the present appealbefore this Court assailing the order of the High Court enlarging the firstrespondent on bail. Notice was issued by this Court on 12 July 2019.

7. Assailing the judgment of the High Court, the learned counselappearing on behalf of the appellant submits:

2 FIR No. 347/2018

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(i) A prima facie involvement of the accused has emerged uponinvestigation, in a case involving a gruesome murder. There was no reasonfor the High Court to exercise its power to grant bail;

(ii) The High Court has not passed a reasoned order justifying thegrant of bail to the accused; B

(iii) The High Court failed to appreciate the statement of the soleinjured eye-witness Aashish who was present at the spot of the incidentthat the accused were responsible for the death of the deceased;

(iv) The post-mortem report observes twenty-seven ante-morteminjuries and opines that the injuries causing death were inflicted withinCsix hours of death; and

(v) The phone of the deceased was recovered from one of theaccused Anil, while the bike involved in the incident was recovered fromthe first respondent.

8. The second respondent – the State of Rajasthan has filed acounter-affidavit assailing the order of the High Court on grounds similarto those urged by the appellant. It was also stated that another FIR[4] hadbeen registered against the friends of the accused alleging an intentionto kill the friend of the deceased – Ashish.

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9. On the other hand, the learned counsel appearing on behalf ofEthe first respondent contended that:

(i) On the date of the incident, there was an altercation betweenthe deceased and the first respondent, in which the deceased was theaggressor. Thereafter, the deceased fell off his bike and suffered injurieswhich caused his eventual death;F

(ii) The first respondent has been in custody for five months onthe basis of a false allegation in the FIR;

(iii) Even on a reading of the allegations in the FIR and the chargesheet, no prime facie case has been made out against the accusedGjustifying the setting aside of bail; and

(iv) The registration of an FIR against the friends of the accusedhas no bearing on the present case.

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A common counter affidavit was filed by all the five accusedbefore this Court reaffirming the above contentions.

10. These rival submissions fall for our consideration.

11. Essentially, this Court is required to analyse whether therewas a valid exercise of the power conferred by Section 439 of the CrPCto grant bail. The power to grant bail under Section 439 is of a wideamplitude. But it is well settled that though the grant of bail involves theexercise of the discretionary power of the court, it has to be exercised ina judicious manner and not as a matter of course. In Ram GovindUpadhyay v Sudarshan Singh[5], Justice Umesh Banerjee, speaking fora two judge Bench of this Court, laid down the factors that must guidethe exercise of the power to grant bail in the following terms:

“3. Grant of bail though being a discretionary order — but, however,calls for exercise of such a discretion in a judicious manner andnot as a 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 of thebasic considerations for the grant of bail — more heinous is thecrime, 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 notonly the nature of the accusations, but the severity of thepunishment, if the accusation entails a conviction and the natureof evidence in support of the accusations.

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

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(c) While it is not expected to have the entire evidenceestablishing the guilt of the accused beyond reasonable doubt butthere ought always to be a prima facie satisfaction of the court insupport of the charge.

(d) Frivolity in prosecution should always be consideredBand it is only the element of genuineness that shall have to beconsidered in the matter of grant of bail, and in the event of therebeing some doubt as to the genuineness of the prosecution, in thenormal course of events, the accused is entitled to an order ofbail.”

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C12. The determination of whether a case is fit for the grant of bailinvolves the balancing of numerous factors, among which the nature ofthe offence, the severity of the punishment and a prima facie view ofthe involvement of the accused are important. No straight jacket formulaexists for courts to assess an application for the grant or rejection ofDbail. At the stage of assessing whether a case is fit for the grant of bail,the court is not required to enter into a detailed analysis of the evidenceon record to establish beyond reasonable doubt the commission of thecrime by the accused. That is a matter for trial. However, the Court isrequired to examine whether there is a prima facie or reasonable groundto believe that the accused had committed the offence and on a balanceEof the considerations involved, the continued custody of the accusedsub-serves the purpose of the criminal justice system. Where bail hasbeen granted by a lower court, an appellate court must be slow to interfereand ought to be guided by the principles set out for the exercise of thepower to set aside bail.F

13. The principles that guide this Court in assessing the correctnessof an order passed by the High Court granting bail were succinctly laiddown by this Court in Prasanta Kumar Sarkar v Ashis Chatterjee[6].In that case, the accused was facing trial for an offence punishableunder Section 302 of the Penal Code. Several bail applications filed byGthe accused were dismissed by the Additional Chief Judicial Magistrate.The High Court in turn allowed the bail application filed by the accused.Setting aside the order of the High Court, Justice DK Jain, speaking fora two judge Bench of this Court held:

“9. … It is trite that this Court does not, normally, interfere withan order passed by the High Court granting or rejecting bail to theaccused. However, it is equally incumbent upon the High Court toexercise its discretion judiciously, cautiously and strictly incompliance with the basic principles laid down in a plethora ofdecisions of this Court on the point. It is well settled that, amongother circumstances, the factors to be borne in mind whileconsidering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believethat 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 onbail;

(v) character, behaviour, means, position and standing of theaccused;

(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.

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12. It is manifest that if the High Court does not advert to theserelevant considerations and mechanically grants bail, the said orderwould suffer from the vice of non-application of mind, renderingit 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 Court doesnot ordinarily interfere with an order of the High Court granting bail.However, where the discretion of the High Court to grant bail has beenexercised without the due application of mind or in contravention of thedirections of this Court, such an order granting bail is liable to be setaside. The Court is required to factor, amongst other things, a primafacie view that the accused had committed the offence, the nature andgravity of the offence and the likelihood of the accused obstructing the A

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Aproceedings of the trial in any manner or evading the course of justice.The provision for being released on bail draws an appropriate balancebetween public interest in the administration of justice and the protectionof individual liberty pending adjudication of the case. However, the grantof bail is to be secured within the bounds of the law and in compliancewith the conditions laid down by this Court. It is for this reason that aBcourt must balance numerous factors that guide the exercise of thediscretionary power to grant bail on a case by case basis. Inherent inthis determination is whether, on an analysis of the record, it appearsthat there is a prima facie or reasonable cause to believe that the accusedhad committed the crime. It is not relevant at this stage for the court toCexamine in detail the evidence on record to come to a conclusive finding.

The decision of this Court in Prasanta has been consistentlyfollowed by this Court in Ash Mohammad v Shiv Raj Singh,[7]RanjitSingh v State of Madhya Pradesh[8], Neeru Yadav v State of U.P.[9],Virupakshappa Gouda v State of Karnataka[10],and State of Orissa vDMahimananda Mishra[11].

15. The considerations that guide the power of an appellate courtin assessing the correctness of an order granting bail stand on a differentfooting from an assessment of an application for the cancellation of bail.The correctness of an order granting bail is tested on the anvil of whetherEthere was an improper or arbitrary exercise of the discretion in the grantof bail. The test is whether the order granting bail is perverse, illegal orunjustified. On the other hand, an application for cancellation of bail isgenerally examined on the anvil of the existence of superveningcircumstances or violations of the conditions of bail by a person to whombail has been granted. In Neeru Yadav v State of Uttar Pradesh,[12] theFaccused was granted bail by the High Court. In an appeal against theorder of the High Court, a two judge Bench of this Court surveyed theprecedent on the principles that guide the grant of bail. Justice DipakMisra (as the learned Chief Justice then was) held:

G7 (2012) 9 SCC 4468 (2013) 16 SCC 7979 (2014) 16 SCC 50810 (2017) 5 SCC 40611 (2018) 10 SCC 51612 (2015) 15 SCC 422H

“…It is well settled in law that cancellation of bail after it isgranted because the accused has misconducted himself or of somesupervening circumstances warranting such cancellation haveoccurred is in a different compartment altogether than an ordergranting bail which is unjustified, illegal and perverse. If in a case,the relevant factors which should have been taken into considerationwhile dealing with the application for bail and have not been takennote of bail or it is founded on irrelevant considerations, indisputablythe 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 separaterealm. While dealing with a case of second nature, the Courtdoes not dwell upon the violation of conditions by the accused orthe supervening circumstances that have happened subsequently.It, on the contrary, delves into the justifiability and the soundnessof the order passed by the Court…”

16. Where a court considering an application for bail fails toconsider relevant factors, an appellate court may justifiably set aside theorder granting bail. An appellate court is thus required to consider whetherthe order granting bail suffers from a non-application of mind or is notborne out from a prima facie view of the evidence on record. It is thusnecessary for this Court to assess whether, on the basis of the evidentiaryrecord, there existed a prima facie or reasonable ground to believe thatthe accused had committed the crime, also taking into account theseriousness of the crime and the severity of the punishment. The orderof the High Court in the present case, in so far 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 a sharpturn, 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. Learned Public Prosecutor and counsel for the complainanthave 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, A

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Athis court deems it just and proper to enlarge the petitioner onbail.”

17. In assessing the rival submissions, it is necessary to advert tothe findings of the post-mortem report dated 3 December 2018.

On the basis of the injuries, the post-mortem report concluded:B“All above mentioned injuries are ante mortem in nature. Durationwithin about 6 hrs prior to death.

We the members of medical board are of the opinion that causeof death is COMA brought about as a result of ante mortem headCinjuries mentioned in this PMR, sufficient to cause death in ordinarycourse of nature. However final opinion will be given afterreceiving FSL reports of above sent samples.”

A total of twenty-seven ante-mortem injuries were recorded ofwhich seven were found to be inflicted on the head. This led the membersof the medical board to conclude that the cause of death was comaDbrought about by the result of the head injuries. The learned counsel forthe first respondent contended that the deceased fell from the bike andsustained injuries which led to his death. However, it is not for the courtto assess in detail the evidence on record to come to a conclusive findingon a chain of causation. A court assessing a plea of bail is required toEfind a prima facie view of the possibility of the commission of the crimeby the accused and not conclude that the alleged crime was in factcommitted by the accused beyond reasonable doubt.

18. The statement of Aashish Kumar who was allegedly presentwith the deceased at the time of the incident was recorded under SectionF161. The statement details the alleged incident and names all five accused,attributing to them the common intention to kill the deceased. It wasstated that the accused thereafter drove away with the bike of thedeceased.

19. The following extract from the charge-sheet dated 10 MarchG2019 is relevant:

“…Thereafter, in compliance to the Order No. Complaint/2018/4899-4900 dated 28.12.18 of the Hon’ble Superintendent of Policeof the District, further investigations of the case were started bythe Circle Officer, Smt. Mamta Saraswat, R.P.S. Circle, JhunjhunuHCity. During investigation proceedings, Circle Officer Smt. Mamta Saraswat, R.P.S. Circle Jhunjhuna City conducted investigationsof all the accused persons arrested in the present case namelyVijay Kumar, Ajay Kumar alias Sheodan, Vikas Kumar, AnilKumar alias Bhirriya and Rajesh Kumat alias Pauliya. Mobile ofdeceased was recovered from accused Anil Kumar aliasBhirriya according to his disclosure memo under Section277 of the Evidence Act. Seizure memo of mobile wasconcluded and attached at the case file. Motorcycle usedin the incident, according to the disclosure memo, wasrecovered from accused Rajesh Kumar alias Pauliya.

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Thereafter, friends of Anil Kumar namely Ajay Kumar, Rajeshand Vikas, all the three came at the place of occurrence GarakheraTiraha and immediately on coming there, they started givingbeatings to deceased Akhilesh and Monu with lathies and thereafter,Anil Kumar and Vijay Kumar also started giving beatings todeceased Akhilesh and Monu.

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…however, it has been mentioned that seven injuries have beencaused at the head of the deceased. This makes clear that theaccused persons caused many serious injuries on the head of thedeceased at the place of occurrence Mark A at the time ofoccurrence on the head of the deceased, due to which, deceasedafter running from there went in Coma and collided with the Tank,due to which, Akhilesh has died due to the injuries sustained byhim.”

(Emphasis supplied)

20. Without expressing any finding or opinion on the merits of thecase, a case has been made out for setting aside the bail granted by theHigh Court. The High Court has manifestly erred in not taking note ofthe material which has been adverted to above. The order passed by theHigh Court fails to notice material facts and shows a non-application ofmind to the seriousness of the crime and the circumstances referred toearlier which ought to have been taken into consideration.

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Abail. The order of the High Court enlarging the accused on bail is erroneousand liable to be set aside.

22. There is another reason why the judgment of the learned SingleJudge has fallen into error. It is a sound exercise of judicial discipline foran order granting or rejecting bail to record the reasons which haveBweighed with the court for the exercise of its discretionary power. In thepresent case, the assessment by the High Court is essentially containedin a single paragraph which reads:

“4. Considering the contentions put-forth by the counsel for thepetitioner and taking into account the facts and circumstances ofCthe case and without expressing opinion on the merits of the case,this court deems it just and proper to enlarge the petitioner onbail.”

23. Merely recording “having perused the record” and “on thefacts and circumstances of the case” does not sub-serve the purpose ofDa reasoned judicial order. It is a fundamental premise of open justice, towhich our judicial system is committed, that factors which have weighedin the mind of the judge in the rejection or the grant of bail are recordedin the order passed. Open justice is premised on the notion that justiceshould not only be done, but should manifestly and undoubtedly be seento be done. The duty of judges to give reasoned decisions lies at theEheart of this commitment. Questions of the grant of bail concern bothliberty of individuals undergoing criminal prosecution as well as theinterests of the criminal justice system in ensuring that those who commitcrimes are not afforded the opportunity to obstruct justice. Judges areduty bound to explain the basis on which they have arrived at a conclusion.F24. In v [[13]]

24. In Kalyan Chandra Sarkar v Rajesh Ranjan[[13]], a two judgeBench of this Court was required to assess the correctness of a decisionof a High Court enlarging the accused on bail. Justice Santosh Hegde,speaking for the Court, discussed the law on the grant of bail in non-bailable offences and held:G“11. The law in regard to grant or refusal of bail is very wellsettled. The court granting bail should exercise its discretion in ajudicious manner and not as a matter of course. Though at thestage of granting bail a detailed examination of evidence andelaborate documentation of the merit of the case need not be H13 (2004) 7 SCC 528

undertaken, there is a need to indicate in such orders reasonsfor prima facie concluding why bail was being grantedparticularly where the accused is charged of havingcommitted a serious offence. Any order devoid of suchreasons would suffer from non-application of mind.”

(Emphasis supplied)

25. Where an order refusing or granting bail does not furnish thereasons that inform the decision, there is a presumption of the non-application of mind which may require the intervention of this Court.Where an earlier application for bail has been rejected, there is a higherburden on the appellate court to furnish specific reasons as to why bailshould be granted.

26. The perfunctory analysis by the High Court in the presentcase cannot be sustained. For the reasons indicated above, the appeal isallowed and the order of the High Court enlarging the first respondenton bail is set aside.

27. The connected appeals also are allowed in terms of thejudgment recorded above.

28. Since the accused have been released on bail during thependency of these proceedings, we order that the bail bonds shall standcancelled and the five accused shall be taken into custody forthwith. Acopy of this judgment shall be forwarded to the Additional Sessions Judge,Chirawa District, Jhunjhunu and the police station concerned to securecompliance.

29. We clarify that the present judgment shall not be construed asthe expression of any opinion on the merits of the case at the trial.

Devika Gujral

Appeals allowed.

A

B

C

D

E

F

G

H