MS.Y versus STATE OF RAJASTHAN AND ANR. on 19 April 2022

MS.Y

STATE OF RAJASTHAN AND ANR.

(Criminal Appeal No. 649 of 2022)

APRIL 19, 2022

[N. V. RAMANA, CJI AND KRISHNA MURARI, J.]

Bail – Necessity of reasoned bail orders, especially in mattersinvolving serious offences – In the present case, respondent no.2was accused of committing the grievous offence of raping his youngniece of nineteen years – Held: High Court, while granting bail torespondent no.2, did not consider any of the relevant factors forgrant of bail and did not advert to the actual facts of the case – Infact, no reasoning is apparent from the order of High Court – Factthat respondent no.2 was a habitual offender and nearly twentycases were registered against him was not even mentioned in theorder of High Court – Order of High Court was cryptic, and didnot suggest any application of mind, and, accordingly set aside –Judgment / Order – Reasoned order.

Bail – Interference with – By Appellate forum – Scope – Held:Once bail has been granted, the Appellate Court is usually slow tointerfere with the same as it pertains to the liberty of an individual.

Code of Criminal Procedure, 1973 – s.439 – Considerationson basis of which discretion u/s.439, CrPC has to be exercised whilegranting bail – Discussed – Held: Grant of bail requires theconsideration of various factors which ultimately depends uponthe specific facts and circumstances of the case – There is no straitjacket formula – However, certain important factors that are alwaysconsidered, inter-alia, relate to prima facie involvement of theaccused, nature and gravity of the charge, severity of thepunishment, and the character, position and standing of the accused– At the stage of granting bail, the Court is not required to enterinto a detailed analysis of the evidence in the case – Such an exercisemay be undertaken at the stage of trial – Bail.

Code of Criminal Procedure, 1973 – s.439 – Issue relating towhether the High Court exercised discretionary power u/s.439 CrPC

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Ain granting bail appropriately – Held: Such an assessment isdifferent from deciding whether circumstances subsequent to thegrant of bail made it necessary to cancel the same – The first situationrequires the Court to analyze whether the order granting bail wasillegal, perverse, unjustified or arbitrary – On the other hand, anapplication for cancellation of bail looks at whether superveningBcircumstances have occurred warranting cancellation – Bail –Cancellation of bail.

Judgment / Order – Reasoned order – Necessity of – Held:Reasoning is the life blood of the judicial system – An unreasonedorder suffers the vice of arbitrariness.C

Bail – Recent trend of orders granting or refusing to grantbail, where Courts make a general observation that “the facts andthe circumstances” have been considered and no specific reasonsare indicated which precipitated the passing of the order by theCourt – Such a practice has been disapproved in various judgmentsDof the Supreme Court – Judgment / Order – Reasoned order.

Allowing the appeal, the Court

HELD:1. The grant of bail requires the consideration ofvarious factors which ultimately depends upon the specific factsand circumstances of the case before the Court. There is no straitEjacket formula which can ever be prescribed as to what therelevant factors could be. However, certain important factors thatare always considered, inter-alia, relate to prima facie involvementof the accused, nature and gravity of the charge, severity of thepunishment, and the character, position and standing of theFaccused. At the stage of granting bail the Court is not required toenter into a detailed analysis of the evidence in the case. Such anexercise may be undertaken at the stage of trial. Once bail hasbeen granted, the Appellate Court is usually slow to interferewith the same as it pertains to the liberty of an individual.G[Paras 9, 10 and 11][33-B-D]

Facts

2.1. In the present case, a bare perusal of the impugnedorder passed by the High Court does not suggest that the Courthas considered any of the relevant factors for grant of bail. Apartfrom the general observation that the facts and circumstances ofthe case have been taken into account, nowhere have the actualH

facts of the case been adverted to. There appears to be noreference to the factors that ultimately led the High Court togrant bail. In fact, no reasoning is apparent from the impugnedorder. [Paras 16, 17][36-C-D; 37-C-D]

2.2. Reasoning is the life blood of the judicial system. Thatevery order must be reasoned is one of the fundamental tenetsof our system. An unreasoned order suffers the vice ofarbitrariness. [Para 18][37-D]

2.3. This Court has consistently upheld the necessity ofreasoned bail orders, with a special emphasis on matters involvingserious offences. In the present case, respondent no.2 has beenaccused of committing the grievous offence of rape against hisyoung niece of nineteen years. The fact that the respondent no.2is a habitual offender and nearly twenty cases registered againsthim has not even found mentioned in the impugned order. Furtherthe High Court has failed to consider the influence that therespondent no.2 may have over the prosecutrix as an elder familymember. The period of imprisonment, being only three months,is not of such a magnitude as to push the Court towards grantingbail in an offence of this nature. [Para 21][38-E-G]

2.4. The impugned order passed by the High Court iscryptic, and does not suggest any application of mind. There is arecent trend of passing such orders granting or refusing to grantbail, where the Courts make a general observation that “the factsand the circumstances” have been considered. No specificreasons are indicated which precipitated the passing of the orderby the Court. Such a situation continues despite various judgmentsof this Court wherein this Court has disapproved of such apractice. [Paras 22, 23][38-G-H; 39-A]

2.5. In view of the above, the impugned order passed bythe High Court is set aside. Bail bonds stand cancelled.Respondent no.2- accused is directed to surrender, failing which,the concerned police authorities shall take him into custody.[Para 24][39-E]

Bihar Legal Support Society v. Chief Justice of India,(1986) 4 SCC 767 : [1987] 1 SCR 295 – followed.

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AState of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 :[2005] 3 Suppl. SCR 454; Gurcharan Singh v. State(Delhi Administration) (1978) 1 SCC 118 : [1978] 2SCR 358; Prasanta Kumar Sarkar v. Ashis Chatterjee,(2010) 14 SCC 496 : [2010] 12 SCR 1165; Mahipal v.Rajesh Kumar, (2020) 2 SCC 118 : [2019] 14 SCR 529;Band Jagjeet Singh & Ors. v. Ashish Mishra @ Monu &Anr. (Supreme Court in Criminal Appeal No. 632 of2022); Neeru Yadav v. State of U.P., (2014) 16 SCC508 : [2014] 12 SCR 453 ; Puran v. Rambilas, (2001) 6SCC 338 : [2001] 3 SCR 432; Kalyan Chandra SarkarCv. Rajesh Ranjan, (2004) 7 SCC 528; and Brij NandanJaiswal v. Munna, (2009) 1 SCC 678 : [2008] 17 SCR1348 – relied on.

Case Law Reference

From the Judgment and Order dated 20.09.2021 of the High Courtof Judicature for Rajasthan Bench at Jaipur in S.B. CriminalGMiscellaneous Bail Application No.14458 of 2021.

Rishi Matoliya, Adv. for the Appellant.

Ms. Vidisha Swarup, Ms. Preeti Thanvi, Milind Kumar, Advs. forthe Respondents.

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The Judgment of the court was delivered by

N. V. RAMANA, CJI

1. Leave granted

2. The present appeal has been filed against the final judgmentand order dated 20.09.2021 passed in S.B. Criminal Miscellaneous BailApplication No. 14458 of 2021 by the High Court of Rajasthan, at Jaipur,whereby the High Court granted regular bail to respondent no. 2 -accused.

3. The counsel for the appellant-prosecutrix submits that the HighCourt erred in granting bail to the respondent no. 2 - accused in amechanical manner without any reasoning. Learned counsel submitsthat the High Court did not consider the facts of the case before it, moreparticularly, the gravity of the offences alleged to have been committedby the respondent no. 2 - accused. Additionally, the High Court did notconsider that the respondent no. 2 – accused is a hardened criminal withnearly twenty criminal cases pending against him. Under suchcircumstances, this Court should exercise its jurisdiction under Article136 of the Constitution and set aside the bail granted to respondent no. 2- accused.

4. Learned Counsel for respondent no. 1- State supported thesubmissions of the appellant and submitted that the impugned order is acryptic one which is liable to be set aside. He submitted that there is astrong prima facie case against the respondent no. 2 - accused whocommitted the heinous offence of rape and sexual assault upon his minorniece for nearly three to four years. Further, respondent no. 2 - accusedis an infamous criminal who has twenty criminal cases registered againsthim, in some of which he has already been convicted. The list of casesregistered against him include cases relating to murder, attempt to murder,kidnapping, dacoity, etc. Therefore, the order of the High Court grantingbail to respondent no. 2 - accused should be set aside.

5. Per contra, learned counsel for respondent no. 2 submits thatthe High Court passed the impugned order granting bail after hearingthe respondent no. 2 - accused and the State. No new materials havebeen placed on record before this Court, requiring this Court to interferewith the impugned order. Further, it is a settled position of law that anappellate Court must be slow to interfere in an order granting bail to theaccused.

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A6. Heard the learned counsel for the parties.

7. Before adverting to the submissions made by the parties relatingto the grant of bail, it is necessary to provide a brief conspectus of theallegations made against respondent no. 2 – accused. As per thechargesheet dated 29.06.2021 filed in the present case, it is stated thatBthe appellant-prosecutrix registered an FIR on 30.05.2021 wherein itwas stated that on the 16-17.05.2021 the respondent no. 2 – accused,her uncle, had come to her house. At around mid-night to 1 am therespondent no. 2 – accused had called her to his room and forciblyraped her on two occasions. Although, initially, she did not narrate this toanyone because she was scared, some of her relatives noticed her strangeCbehaviour. When they asked her why she was sad, she narrated theentire incident to her family. Even before this incident, the respondentno. 2 – accused had misbehaved with her. In 2014, he touched herinappropriately. In 2015, he had attempted to rape her. He used to try tochat with her and used obscene language, and attempted to establishDphysical relationship with her on various occasions. She had neverdisclosed these incidents to anyone as he threatened her. It is in thebackground of these allegations that the appropriateness of the impugnedorder passed by the High Court granting bail to respondent no. 2 –accused must be considered.

E8. This Court has, in a catena of judgments, outlined theconsiderations on the basis of which discretion under Section 439, CrPChas to be exercised while granting bail. In Gurcharan Singh v. State(Delhi Administration), (1978) 1 SCC 118 this Court has held as tothe various parameters which must be considered while granting bail.This Court held as follows:F

“24. …Even so, the High Court or the Court of Session will haveto exercise its judicial discretion in considering the question ofgranting of bail under Section 439(1) CrPC of the new Code. Theoverriding considerations in granting bail to which we adverted toearlier and which are common both in the case of Section 437(1)Gand Section 439(1) CrPC of the new Code are the nature andgravity of the circumstances in which the offence is committed;the position and the status of the accused with reference to thevictim and the witnesses; the likelihood, of the accused fleeingfrom justice; of repeating the offence; of jeopardising his own lifeHbeing faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as wellas of its investigation and other relevant grounds which, in viewof so many valuable factors, cannot be exhaustively set out.”

9. The above factors do not constitute an exhaustive list. Thegrant of bail requires the consideration of various factors which ultimatelydepends upon the specific facts and circumstances of the case beforethe Court. There is no strait jacket formula which can ever be prescribedas to what the relevant factors could be. However, certain importantfactors that are always considered, inter-alia, relate to prima facieinvolvement of the accused, nature and gravity of the charge, severityof 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 enterinto a detailed analysis of the evidence in the case. Such an exercisemay be undertaken at the stage of trial.

11. Once bail has been granted, the Appellate Court is usuallyslow 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:

“3. … It is for this reason that the Apex Court has evolved, as amatter of self-discipline, certain norms to guide it in the exerciseof its discretion in cases where special leave petition are filedagainst orders granting or refusing bail or anticipatory bail.…Wereiterate this policy principle laid down by the bench of thisCourt and hold that this Court should not ordinarily, savein exceptional cases, interfere with orders granting orrefusing bail or anticipatory bail, because these are mattersin which the High Court should normally be the finalarbiter.”

12. The above principle has been consistently followed by thisCourt. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14SCC 496 this Court held as under:

“9. We are of the opinion that the impugned order is clearlyunsustainable. It is trite that this Court does not, normally, interferewith an order passed by the High Court granting or rejecting bail AB

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Ato the accused. However, it is equally incumbent upon the HighCourt to exercise its discretion judiciously, cautiously and strictlyin compliance 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:B

(i) whether there is any prima facie or reasonable ground tobelieve that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction; C

(iv) danger of the accused absconding or fleeing, if released onbail;

(v) character, behaviour, means, position and standing of theaccused; D(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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10. It is manifest that if the High Court does not advert to theserelevant considerations and mechanically grants bail, thesaid order would suffer from the vice of non-application ofmind, rendering it to be illegal…..”

F13. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 this Courtfollowed the holding in Prasanta Kumar Sarkar (supra) and held asfollows:

“17. Where a court considering an application for bail fails toconsider relevant factors, an appellate court may justifiably setGaside the order granting bail. An appellate court is thus required toconsider whether the order granting bail suffers from a non-application of mind or is not borne out from a 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 hadH

committed the crime, also taking into account the seriousness ofthe crime and the severity of the punishment…”

14. Recently, a three Judges’ Bench of this Court in Jagjeet Singh& Ors. V. Ashish Mishra @ Monu & Anr. in Criminal Appeal No.632 of 2022, has reiterated the factors that the Court must consider atthe time of granting bail under Section 439 CrPC, as well as highlightedthe circumstances where this Court may interfere when bail has beengranted in violation of the requirements under the above-mentionedsection. This Court observed as follows:

“28. We may, at the outset, clarify that power to grant bail underSection 439 of CrPC, is one of wide amplitude. A High Court or aSessions Court, as the case may be, are bestowed with considerablediscretion while deciding an application for bail. But, as has beenheld by this Court on multiple occasions, this discretion is notunfettered. On the contrary, the High Court of the Sessions Courtmust grant bail after the application of a judicial mind, followingwell-established principles, and not in a cryptic or mechanicalmanner.”

15. It is worth noting that what is being considered in this caserelates to whether the High Court has exercised the discretionary powerunder Section 439 CrPC in granting bail appropriately. Such anassessment is different from deciding whether circumstances subsequentto the grant of bail have made it necessary to cancel the same. The firstsituation requires the Court to analyze whether the order granting bailwas illegal, perverse, unjustified or arbitrary. On the other hand, anapplication for cancellation of bail looks at whether superveningcircumstances have occurred warranting cancellation. In Neeru Yadavv. State of U.P., (2014) 16 SCC 508 this Court held as follows:

“12. We have referred to certain principles to be kept in mindwhile granting bail, as has been laid down by this Court from timeto time. 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 have not been taken AB

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Anote of, or bail 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 court doesnot dwell upon the violation of conditions by the accused or thesupervening circumstances that have happened subsequently. It,Bon the contrary, delves into the justifiability and the soundness ofthe order passed by the court.”

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16. In the present case, it is necessary to determine whether theHigh Court while granting bail to the respondent no. 2 - accused hasproperly exercised its discretion under Section 439 CrPC by followingCvarious parameters laid down by this Court. A bare perusal of the impugnedorder passed by the High Court does not suggest that the Court hasconsidered any of the relevant factors for grant of bail. It would befruitful to extract the impugned order at this juncture:

“1. The present bail application has been filed under Section 439Cr.P.C. The petitioner has been arrested in connection with FIRNo. 319/2021 Registered at Police Station Udhyog Nagar, DistrictSikar 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 and18 of POCSO Act.

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2. Learned counsel for the petitioner submits that the petitionerhas been falsely implicated in this case. He is behind the barssince 30.05.2021. Charge-sheet has been filed against thepetitioner. Learned counsel for the petitioner further submits thatduring trial, statement of the prosecutrix was recorded by theFlearned trial Court. Learned counsel for the petitioner also submitsthat the prosecutrix has made improvement in her statement.Conclusion of trial may take long time.

3. Learned counsel for the complainant has opposed the bailapplication and submitted that the petitioner is a habitual offenderand he has been booked in PASA.G

4. Learned Public Prosecutor has opposed the bail application.

5. Considering the contentions put-forth by the counsel for thepetitioner and taking into account the facts and circumstances ofthe case and without expressing any opinion on the merits of the H

case, this court deems it just and proper to enlarge the petitioneron bail.

6. Accordingly, the bail application under Section 439 Cr.P.C. isallowed and it is ordered that the accused-petitioner Omprakash@ Jeevanram @ Oma Thehat S/o Boduram shall be enlarged onbail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of thelearned trial Judge for his appearance before the court concernedon all the dates of hearing as and when called upon to do so.”

17. Apart from the general observation that the facts andcircumstances of the case have been taken into account, nowhere havethe actual facts of the case been adverted to. There appears to be noreference to the factors that ultimately led the High Court to grant bail.In fact, no reasoning is apparent from the impugned order.

18. Reasoning is the life blood of the judicial system. That everyorder must be reasoned is one of the fundamental tenets of our system.An unreasoned order suffers the vice of arbitrariness. In Puran v.Rambilas, (2001) 6 SCC 338 this Court held as under:

“8. …Giving reasons is different from discussing merits ordemerits. At the stage of granting bail a detailed examination ofevidence and elaborate documentation of the merits of the casehas not to be undertaken. What the Additional Sessions Judgehad done in the order dated 11-9-2000 was to discuss the meritsand demerits of the evidence. That was what was deprecated.That did not mean that whilst granting bail some reasonsfor prima facie concluding why bail was being granted didnot have to be indicated.”

19. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7SCC 528 this Court indicated the importance of reasoning in the matterconcerning bail and held as follows:

“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 AB

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Aundertaken, there is a need to indicate in such ordersreasons for prima facie concluding why bail was beinggranted particularly where the accused is charged of havingcommitted a serious offence. Any order devoid of such”reasons would suffer from non-application of mind…

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20. In Brij Nandan Jaiswal v. Munna, (2009) 1 SCC 678,which concerned a challenge to grant of bail in a serious offence, thisCourt has reiterated the same position as was observed in KalyanChandra Sarkar (supra). ThisCourt has held as under:

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“12… However, we find from the order that no reasons weregiven by the learned Judge while granting the bail and it seems tohave been granted almost mechanically without considering thepros and cons of the matter. While granting bail, particularlyin serious cases like murder some reasons justifying theD”grant are necessary.

21. From the above, it is clear that this Court has consistentlyupheld the necessity of reasoned bail orders, with a special emphasis onEmatters involving serious offences. In the present case, respondent no.2 - accused has been accused of committing the grievous offence ofrape against his young niece of nineteen years. The fact that therespondent no. 2 - accused is a habitual offender and nearly twentycases registered against him has not even found mentioned in theimpugned order. Further the High Court has failed to consider theFinfluence that the respondent no. 2 - accused may have over theprosecutrix as an elder family member. The period of imprisonment,being only three months, is not of such a magnitude as to push the Courttowards granting bail in an offence of this nature.

G22. The impugned order passed by the High Court is cryptic, anddoes not suggest any application of mind. There is a recent trend ofpassing such orders granting or refusing to grant bail, where the Courtsmake a general observation that “the facts and the circumstances” havebeen considered. No specific reasons are indicated which precipitatedthe passing of the order by the Court.H

23. Such a situation continues despite various judgments of thisCourt wherein this Court has disapproved of such a practice. In thecase 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 notsubserve the purpose of a reasoned judicial order. It is afundamental premise of open justice, to which our judicial systemis committed, that factors which have weighed in the mind of theJudge in the rejection or the grant of bail are recorded in the orderpassed. Open justice is premised on the notion that justice shouldnot only be done, but should manifestly and undoubtedly be seento be done. The duty of Judges to give reasoned decisions lies atthe heart of this commitment. Questions of the grant of bailconcern both liberty of individuals undergoing criminal prosecutionas well as the interests of the criminal justice system in ensuringthat those who commit crimes are not afforded the opportunity toobstruct justice. Judges are duty-bound to explain the basison which they have arrived at a conclusion.”

24. In view of the above, the impugned order passed by the HighCourt is set aside. The Criminal Appeal is accordingly allowed. Bailbonds stand cancelled. Respondent no. 2 - accused is directed tosurrender within one week from the receipt of this order, failing which,the concerned police authorities shall take him into custody.

Bibhuti Bhushan Bose

Appeal allowed.

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