KUMER SINGH versus STATE OF RAJASTHAN & ANR on 20 July 2021

1. Feeling aggrieved and dissatisfied with the impugned Judgmentand Order passed by the High Court of Rajasthan, Jaipur Bench releasing A

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Athe private respondents herein – Kamlesh, Bhojraj Singh and Arif onbail under Section 439 CrPC, in connection with FIR No.210 of 2017dated 17.08.2017 registered with PS Laxmangarh, District Sikar,Rajasthan for the offences punishable under Sections 147, 148, 341,323, 307, 427, 302 read with Section 149 of the IPC, the original informant/complainant – brother of the deceased has preferred the present appeals.B

2. That the appellant herein lodged an FIR against the accusednamed in the FIR for the offences under Sections 147, 148, 341, 323,307, 427, 302 read with Section 149 of the IPC having brutally killed hisbrother Sumer Singh who was the member of the Border Security Forceand was on leave. The date of incident was 16.08.2017. 10 accusedCpersons were named in the FIR including Kamlesh, Arif, and BhojrajSingh – private respondents herein. That 26 injuries were found on thedeceased Sumer Singh and 11 injuries on one Vikram Singh caused byblunt and sharp weapons. It was alleged in the FIR as under:

(i) “On the date of the incident that is 16.08.2017, during theDfair of Goganavami in the village Choti Roru, an altercationtook place between both the parties due to the old enmity.

(ii) On 16.08.2017, a dinner was scheduled in the house of uncleof the complainant at Rajiyasar Meetha and the familymembers departed around 11:20 PM at night 2 cars (1) aEBolero driven by complainant departed with other familymembers was leading ahead and followed by (2) and Innovadriven by Chandra Pal Singh with other family membersincluding the complainant’s brother, Sumer Singh.

(iii) Thereafter accused persons somehow came to know ofFthe program of the complainant or going to Rajiyasar andNarendra Singh etc. called their other accomplices andfriends in their village in their cars during the night. These 3Cars (1) An Innova No. DL 4CN 0857 (2) a Bolero Camper(without number plate) (3) Pickup (without number plate)were loaded with weapons including Sword, Khokhri,GDhariya, Iron Pipes and Lathis.

(iv) The complainant’s Bolero car was leading ahead and foundthe Innova car of accused Kamlesh parked at the T pointand drove but on discovering that the Innova car followingbehind was not visible, took a U-turn and upon reaching theHT point, found that the Innova car was stuck in the fields with the windows smashed and accused Kamlesh alongwith 3 other Camper cars and about 20-25 persons and hisbrother Sumer Singh lying inside the field of Kamlesh andall the accused were indiscriminately stabbing him withSword, Knife, Khokhri, Lathis and Rods.

(v) The accused persons ambushed the Innova car of thedeceased by parking their cars sitting inside on differentlocations near the Bagichi and all the accused were sittinginside every car loaded with weapons.

(vi) The accused had complete knowledge that Sumer Singhwho was working in the BSF, had come home on vacationsand they wanted to murder him only.

(vii) The brutal manner in which Sumer Singh was ambushed,cornered and killed mercilessly is evident from the fact thatwhen he tried to run and attempted save his life, he was hitby another Camer and Got Stuck between the Camper andthe barbed wire and fell down and broke his leg. Thereuponall the accused pounced upon him and indiscriminatelystabbed him with sharp weapons while he was lying on theground.

3. That the bail applications submitted by the private respondentsherein – accused came to be dismissed by the Learned Sessions Judgeconsidering the seriousness of accusations leveled against the accused.That Kamlesh was arrested on 20.08.2017, Arif was arrested on18.08.2017 and Bojraj Singh was arrested on 23.10.2017. That the policesubmitted a charge-sheet against all the accused persons on 14.11.2017for the offences punishable under Sections 147, 148, 149, 302, 341, 323& 427 IPC. That the bail applications preferred by Kamlesh, Arif andBhojraj Singh came to be rejected by the High Court vide order dated10.01.2018. However, the High Court opined that the accused personsare at liberty to move fresh bail application before the concerned courtafter recording of the statement of the material witnesses. At this stage,it is required to be noted that as per the charge-sheet there are 38witnesses to be examined by the prosecution. Thereafter the Learnedtrial Court framed the charge against the accused persons on 09.02.2018.Supplementary charge-sheet came to be filed against other co-accusednamely Hari Singh, Surjit Singh and Dalip Singh. A second supplementarycharge-sheet came to be filed against one Rajendra Singh on 11.12.2018.

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AA third supplementary charge-sheet came to be filed against the mainaccused Narendra Singh on 23.04.2019. Thereafter the bail applicationssubmitted by Arif and Bhojraj Singh bearing Bail Application Nos.250 of2019 and 251 of 2019 came to be rejected by the Learned trial Courtvide its order dated 30.04.2019. Thereafter by the impugned judgmentand orders dated 17.05.2019, 28.05.2019 and 01.06.2019, the High CourtBhas enlarged Arif, Kamlesh and Bhojraj Singh respectively on bail.

4. Feeling aggrieved and dissatisfied with the impugned orderspassed by the High Court enlarging/releasing the accused - Arif, Kamleshand Bhojraj Singh on bail in connection with FIR No.210 of 2017, registeredat PS Laxmangarh, District Sikar, Rajasthan for the offences punishableCunder Sections 147, 148, 341, 323, 307, 427, 302 read with Section 149IPC, the original complainant, brother of the deceased has preferred thepresent appeals.

5. We have heard Mr. Devendra Singh, Learned Counsel for theappellant, Mr. Sushil K. Tekriwal, Learned Counsel appearing on behalfDof accused – Kamlesh, Mr. Rishi Matoliya, learned Counsel appearingfor accused Arif Lohar and Bhojraj Singh and Dr. Manish Singhvi, learnedSenior Counsel for the State of Rajasthan.

6. Learned Counsel appearing on behalf of original complainant/informant has vehemently submitted that the High Court has committedEa grave error in releasing/enlarging the respondents – accused on bail. Itis vehemently submitted that the High Court has not at all considered thebrutality and seriousness of the crime, while enlarging the accused onbail.

6.1 It is vehemently submitted that the High Court has not at allFconsidered the fact that Sumer Singh was killed brutally and in a pre-planned manner. The High Court has not at all noted and considered thattotal 26 injuries were found on the body of the deceased and 11 injurieson the injured brother of the deceased Vikram Singh which have beencaused by blunt and sharp weapons.G6.2 It is further submitted that except noting the submissions onbehalf of the accused and the learned public prosecutor, no reasonswhatsoever have been assigned by the High Court while releasing theaccused on bail.

6.3 It is submitted that the submissions which are made on behalfHof the accused were that they are in custody since 1 ½ year; that accused were having lathis and that there is no specific overact in the statementof the witnesses under Section 161 CrPC and that there are 36 witnessesto be examined which is likely to take long time. It is submitted that themanner in which Sumer Singh was killed in a pre-planned manner andthe accused killed the deceased Sumer Singh brutally, the High Courtought not to have released the accused on bail.

6.4 Reliance is placed on the decisions of this Court in the casesof Mahipal vs. Rajesh Kumar @ Polia and Anr.[1]; Neeru Yadav vs.State of U.P.[2]; Gulabrao Baburao Deokar vs. State of Maharashtra[3]and a recent decision of this Court in the case Ramesh Bhavan Rathodvs. Vishanbhai Hirabhai Makwana Makwana (Koli)[4].

7. Dr. Manish Singhvi, Learned Senior Counsel appearing on behalfof the State of Rajasthan has supported the appellant. It is submittedthat the High Court has committed a grave error in releasing therespondents – accused on bail. It is submitted that the manner in whichSumer Singh was brutally killed, was pre-planned and that there were26 injuries found on the dead body of the deceased Sumer Singh andthere was a prior enmity and therefore the motive has been established.Merely because the accused are in the custody for approximately 1year and 6 months, the High Court ought not to have released the accusedon bail. It is submitted that from the impugned orders passed by the HighCourt it can be seen that as such except noting the submissions made onbehalf of the accused and public prosecutor no reasons whatsoever havebeen assigned by the High Court. It is submitted that even it can be seenfrom the impugned orders that the High Court has not adverted itself tothe seriousness of the crime at all. It is submitted that even the HighCourt has not considered the fact that the accused are charged for theoffences punishable under Section 302 read with Section 149 of theIPC. It is submitted that once the respondents – accused were found tobe the member of the unlawful assembly and all of them were present atthe time of the incident and they also participated in the commission ofthe offence, the individual role at this stage is not required to be consideredin view of Section 149 of the IPC.

7.1 It is further submitted by Dr. Singhvi, Learned Senior Counselappearing on behalf of the State of Rajasthan that as held by this Court 1 (2020) 2 SCC 118

2 (2014) 16 SCC 508

3 (2013) 16 SCC 190

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Ain the case of Mahipal (Supra) there is a difference and distinctionbetween the power of the Appellate Court in assessing the correctnessof an order granting bail and assessment of an application for cancellationof bail. It is submitted that as held by this Court in the case of Mahipal(Supra) the correctness of an order granting bail is tested on the anvil ofwhether there is improper and arbitrary exercise of discretion in theBgrant of bail. It is submitted therefore when the impugned orders passedby the High Court releasing the accused on bail are non-speaking ordersand the High Court has not at all considered the relevant factors andcircumstances while considering the applications for bail, this is a fitcase to quash and set aside the orders passed by the High Court releasingCthe respondents - accused on bail.

8. Learned Counsel appearing on behalf of the respective accusedwhile opposing the present appeals have vehemently submitted that inthe facts and circumstances of the case the High Court has not committedany error in enlarging/releasing the respondents – accused on bail. ShriDTekriwal, Learned Counsel appearing on behalf of the accused – Kamleshhas further submitted that more than approximately 2 years have passedafter the accused are released on bail and after they are released on bailthere are no allegations of misusing the liberty or having committed anybreach of the conditions of the grant of bail, by the accused. It is submittedthat therefore the interference of this Court is not called for. It is furtherEsubmitted by Mr. Tekriwal, Learned Counsel appearing on behalf of theaccused that the High Court has noted the submissions on behalf of theaccused and the Learned Public Prosecutor and thereafter consideringthe submissions made on behalf of the accused that the charge-sheet isalready filed; charge has been framed; they are in custody since more

Fthan one year 3 months/six months and that out of 36 witnesses only 3witnesses have been examined and that earlier when the bail applicationwas rejected by the High Court a liberty was reserved to move anappropriate application before the trial Court afresh, considering the natureof allegations against the respective accused, the High Court has not committed any error in releasing the accused on bail. It is vehementlyGsubmitted that the High Court has noted that considering the submissionsmade on behalf of the accused means the High Court has concurredwith the submissions and/or accepted the submissions on behalf of theaccused and thereafter has released the accused on bail and therefore itcan be said that the High Court has applied its mind to the relevantHcircumstances pointed out on behalf of the accused.

8.1 Making the above submissions, it is prayed to dismiss thepresent appeals, more particularly when other accused, as noted by theHigh Court, were released on bail.

9. Heard Learned Counsel appearing for the parties at length.

10. At the outset, it is required to be noted that all the accused arecharged for the offences punishable under Sections 147, 148, 341, 323,307, 427, 302 read with Section 149 of the IPC. All the accused therefore,are facing trial for the aforesaid offences, on the allegation of havingkilled one Sumer Singh, brother of the appellant and having injured oneVikram Singh. It is also required to be noted that as per the medicalevidence on record total 26 injuries were found on the deceased SumerSingh and 11 injuries on the injured Vikram Singh which have been causedby blunt and sharp weapons. As per the case of the prosecution therespondents – accused were part of the unlawful assembly and all ofthem who were carrying the lathis actually participated in the commissionof the offences. Despite the seriousness of the offence committed bythe accused and despite the manner in which the offence took place,without adverting to the seriousness of the offence and the manner inwhich the offence was committed, by the impugned orders, the HighCourt has released the accused on bail. If the impugned orders releasingthe accused on bail are perused, we find that except first narrating thesubmissions/contentions on behalf of the accused and the submissionsmade by the Learned Public Prosecutor thereafter the High Court haswithout assigning any further reasons has released the accused on bailby simply observing that “considering the contentions put forth by counselfor the petitioner, I deem it proper to allow the second bail application”.The orders passed by the High Court releasing the respondents – accusedon bail in a serious case for offence punishable under Section 302 of theIPC and other offences are the subject matter of present appeals.

11. Before considering the rival submissions made on behalf ofthe respective parties, few decisions of this Court on how to exercisethe discretionary power for grant of bail and the duty of the AppellateCourt, particularly when the bail was refused by the courts below arerequired to be referred to and considered.

11.1 In the case of Mahipal (Supra) where the High Courtreleased the accused on bail in a case for the offence under Section 302of the IPC and other offences recording the only contention put forth bythe counsel for the accused and further recording that “taking into account A

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Athe facts and circumstances of the case and without expressing theopinion on merits of case, this Court deems fit just and proper to enlarge/release the accused on bail.”

While setting aside the order passed by the High Court grantingbail, one of us Dr. Justice D.Y. Chandrachud observed in paragraphs 11Band 12 as under:

11. Essentially, this Court is required to analyse whether therewas a valid exercise of the power conferred by Section 439 CrPCto grant bail. The power to grant bail under Section 439 is of awide amplitude. But it is well settled that though the grant of bailCinvolves the exercise of the discretionary power of the court, ithas to be exercised in a judicious manner and not as a matter ofcourse. In Ram Govind Upadhyay v. Sudarshan Singh[5]UmeshBanerjee, J. speaking for a two-Judge Bench of this Court, laiddown the factors that must guide the exercise of the power togrant bail in the following terms:D

“3. Grant of bail though being a discretionary order— but,however, calls for exercise of such a discretion in a judicious mannerand not 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 theEmatter being dealt with by the court and facts, however, do alwaysvary from case to case. … The nature of the offence is one ofthe basic considerations for the grant of bail — more heinous isthe crime, the greater is the chance of rejection of the bail, though,however, dependent on the factual matrix of the matter.

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4. Apart from the above, certain other which may beattributed to be relevant considerations may also be noticed atthis juncture, though however, the same are only illustrative andnot exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind notGonly 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 theH5 (2002) 3 SCC 598

complainant should also weigh with the court in the matter ofgrant of bail.

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

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

12. The determination of whether a case is fit for the grantof bail involves the balancing of numerous factors, among whichthe nature of the offence, the severity of the punishment and aprima facie view of the involvement of the accused are important.No straitjacket formula exists for courts to assess an applicationfor the grant or rejection of bail. At the stage of assessing whethera case is fit for the grant of bail, the court is not required to enterinto a detailed analysis of the evidence on record to establish beyondreasonable doubt the commission of the crime by the accused.That is a matter for trial. However, the Court is required to examinewhether there is a prima facie or reasonable ground to believethat the accused had committed the offence and on a balance ofthe considerations involved, the continued custody of the accusedsubserves the purpose of the criminal justice system. Where bailhas been granted by a lower court, an appellate court must beslow to interfere and ought to be guided by the principles set outfor the exercise of the power to set aside bail.

11.2 that guide while assessing the correctness of an order passedby the High Court granting bail. This Court specifically observed andheld that normally this Court does not interfere with an order passed bythe High Court granting or rejecting the bail to the accused. However,where the discretion of the High Court to grant bail has been exercisedwithout the due application of mind or in contravention of the directionsof this Court, such an order granting bail is liable to be set aside. ThisCourt further observed that the power of the appellate court in assessingthe correctness of an order granting bail stand on a different footing A

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Afrom an assessment of an application for cancellation of bail. It is furtherobserved that the correctness of an order granting bail is tested on theanvil of whether there was a proper or arbitrary exercise of the discretionin the grant of bail. It is further observed that the test is whether theorder granting bail is perverse, illegal or unjustified. Thereafter this Courtconsidered the difference and distinction between an application forBcancellation of bail and an appeal before this Court challenging the orderpassed by the appellate court granting bail in paras 13, 14, 16 and 17 asunder:

13. The principles that guide this Court in assessing thecorrectness of an order [Ashish Chatterjee v. State of W.B.,CCRM No. 272 of 2010, order dated 11-1-2010 (Cal)] passed bythe High Court granting bail were succinctly laid down by thisCourt in Prasanta Kumar Sarkar v. Ashis Chatterjee[6]. In thatcase, the accused was facing trial for an offence punishable underSection 302 of the Penal Code. Several bail applications filed byDthe accused were dismissed by the Additional Chief JudicialMagistrate. The High Court in turn allowed the bail applicationfiled by the accused. Setting aside the order [Ashish Chatterjeev. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010(Cal)] of the High Court, D.K. Jain, J., speaking for a two-JudgeBench of this Court, held:E

“9. … It is trite that this Court does not, normally, interferewith an order [Ashish Chatterjee v. State of W.B., CRM No.272 of 2010, order dated 11-1-2010 (Cal)] passed by the HighCourt granting or rejecting bail to the accused. However, it isequally incumbent upon the High Court to exercise its discretionFjudiciously, cautiously and strictly in compliance with the basicprinciples laid down in a plethora of decisions of this Court on thepoint. It is well settled that, among other circumstances, the factorsto be borne in mind while considering an application for bail are:

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

(ii) nature and gravity of the accusation;(iii)severity of the punishment in the event of conviction;H6 (2010) 14 SCC 496

(iv) danger of the accused absconding or fleeing, ifAreleased on bail;

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

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses beingBinfluenced; and

(viii) danger, of course, of justice being thwarted by grantof bail.

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10. It is manifest that if the High Court does not advert tothese relevant considerations and mechanically grants bail, thesaid order would suffer from the vice of non- application of mind,rendering it to be illegal.”

14. The provision for an accused to be released on bailtouches upon the liberty of an individual. It is for this reason thatthis Court does not ordinarily interfere with an order of the HighCourt granting bail. However, where the discretion of the HighCourt to grant bail has been exercised without the due applicationof mind or in contravention of the directions of this Court, such anorder granting bail is liable to be set aside. The Court is requiredto factor, amongst other things, a prima facie view that the accusedhad committed the offence, the nature and gravity of the offenceand the likelihood of the accused obstructing the proceedings ofthe trial in any manner or evading the course of justice. Theprovision for being released on bail draws an appropriate balancebetween public interest in the administration of justice and theprotection of individual liberty pending adjudication of the case.However, the grant of bail is to be secured within the bounds ofthe law and in compliance with the conditions laid down by thisCourt. It is for this reason that 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 a conclusivefinding.

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16. The considerations that guide the power of an appellatecourt in assessing the correctness of an order granting bail standon a different footing from an assessment of an application forthe cancellation of bail. The correctness of an order granting bailis tested on the anvil of whether there was an improper or arbitraryexercise of the discretion in the grant of bail. The test is whetherthe order granting bail is perverse, illegal or unjustified. On theother hand, an application for cancellation of bail is generallyexamined on the anvil of the existence of superveningcircumstances or violations of the conditions of bail by a person towhom bail has been granted. In Neeru Yadav v. State of U.P. ,the accused was granted bail by the High Court [Mitthan Yadavv. State of U.P.[7], . In an appeal against the order [Mitthan Yadavv. State of U.P., 2014 SCC OnLine All 16031] of the High Court,a two-Judge Bench of this Court surveyed the precedent on theprinciples that guide the grant of bail. Dipak Misra, J.

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“12. … It is well settled in law that cancellation of bailDafter it is granted because the accused has misconducted himselfor of some supervening circumstances warranting suchcancellation have occurred is in a different compartment altogetherthan an order granting bail which is unjustified, illegal and perverse.If in a case, the relevant factors which should have been takenEinto consideration while dealing with the application for bail havenot been taken note of, or bail is founded on irrelevantconsiderations, indisputably the superior court can set aside theorder of such a grant of bail. Such a case belongs to a differentcategory and is in a separate realm. While dealing with a case ofsecond nature, the Court does not dwell upon the violation ofFconditions by the accused or the supervening circumstances thathave happened subsequently. It, on the contrary, delves into thejustifiability and the soundness of the order passed by the Court.”

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17. Where a court considering an application for bail failsto consider relevant factors, an appellate court may justifiably setaside the order granting bail. An appellate court is thus required toconsider whether the order granting bail suffers from 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 a G

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prima facie or reasonable ground to believe that the accused hadcommitted the crime, also taking into account the seriousness ofthe crime and the severity of the punishment. The order [RajeshKumar v. State of Rajasthan, 2019 SCC OnLine Raj 5197] ofthe High Court in the present case, insofar as it is relevant reads:

“2. Counsel for the petitioner submits that the petitionerhas been falsely implicated in this matter. Counsel further submitsthat, the deceased was driving his motorcycle, which got slippedon a sharp turn, due to which he received injuries on various partsof body including ante-mortem head injuries on account of whichhe died. Counsel further submits that the challan has already beenpresented in the court and conclusion of trial may take long time.

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

4. Considering the contentions put forth by the counsel forthe 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.”

Thereafter this Court set aside the order passed by the High Courtreleasing the accused on bail. At this stage, it is required to be noted thatin the case of Mahipal (Supra) the order of the High Court which wasset aside by this Court insofar as it is relevant reads as under:

“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. The 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,this Court deems it just and proper to enlarge the petitioner onbail.”

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AThis Court disapproved such an order of grant of bail by observingthat the High Court has not considered material available to thedetermination of whether the accused were to be enlarged on bail. Thiscourt also further observed that it is a sound exercise of judicial disciplinefor an order granting or rejecting bail to record the reasons which haveweighed with the court for the exercise of its discretionary power. TheBrelevant observations made by this court while setting aside the orderpassed by the High Court in paragraphs 23, 24 and 25 are as under:

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“23. The High Court has erred in not considering materialrelevant to the determination of whether the accused were to beenlarged on bail. The order of the High Court enlarging the accusedon bail is erroneous and liable to be set aside.

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24. There is another reason why the judgment of the learnedSingle Judge has fallen into error. It is a sound exercise of judicialdiscipline for an ordern granting or rejecting bail to record thereasons which have weighed with the court for the exercise of itsdiscretionary power. In the present case, the assessment by theHigh Court is essentially contained in a single para which reads:(Rajesh Kumar case [Rajesh Kumar v. State of Rajasthan,2019 SCC OnLine Raj 5197] , SCC OnLine Raj para 4)

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“4. Considering the contentions put forth by the counsel forthe 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.”

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25. Merely recording “having perused the record” and “onthe facts and circumstances of the case” does not subserve thepurpose of a reasoned judicial order. It is a fundamental premiseof open justice, to which our judicial system is committed, thatfactors 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 thiscommitment. Questions of the grant of bail concern both libertyof individuals undergoing criminal prosecution as well as theinterests of the criminal justice system in ensuring that those whocommit crimes are not afforded the opportunity to obstruct justice.

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Judges are duty-bound to explain the basis on which they havearrived at a conclusion.”

It is further observed by this Court that where an order refusingor granting bail does not furnish the reasons that form the decision, thereis a presumption of non-application of mind which may require theintervention of this Court. It is further observed that where an earlierapplication for bail has been rejected, there is a higher burden on theappellate court to furnish specific reasons as to why the bail should begranted.

12. At this stage, a recent decision of this Court in the case ofRamesh Bhavan Rathod (Supra) is also required to be referred to. Inthe said decision, this Court considered in great detail the considerationswhich govern the grant of bail, after referring to the decisions of thisCourt in the case of Ram Govind Upadhyay (Supra); Prasanta KumarSarkar (Supra); Chaman Lal vs. State of U.P.[8]; and the decision ofthis Court in Sonu vs. Sonu Yadav[9]. After considering the law laiddown by this Court on grant of bail, in the aforesaid decisions, inparagraphs 20, 21, 36 & 37 it is observed and held as under:

“20. The first aspect of the case which stares in the face isthe singular absence in the judgment of the High Court to thenature and gravity of the crime. The incident which took place on9 May 2020 resulted in five homicidal deaths. The nature of theoffence is a circumstance which has an important bearing on thegrant of bail. The orders of the High Court are conspicuous in theabsence of any awareness or elaboration of the serious nature ofthe offence. The perversity lies in the failure of the High Court toconsider an important circumstance which has a bearing onwhether bail should be granted. In the two-judge Bench decisionof this Court in Ram Govind Upadhyay v. Sudharshan Singh,the nature of the crime was recorded as “one of the basicconsiderations” which has a bearing on the grant or denial of bail.The considerations which govern the grant of bail were elucidatedin the judgment of this Court without attaching an exhaustive natureor character to them. This emerges from the following extract:

“4. Apart from the above, certain other which may beattributed to be relevant considerations may also be noticed at 8 (2004) 7 SCC 525

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Athis juncture, though however, the same are only illustrative andnot exhaustive, neither there can be any. The considerations being:

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

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

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(c) While it is not expected to have the entire evidenceestablishing the guilt of the accused beyond reasonabledoubt but there ought always to be a prima facie satisfactionof the court in support of the charge.

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

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21. This Court further laid down the standard for overturningan order granting 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 mannerFand not as a matter of course. Order for bail bereft of any cogentreason cannot be sustained.”

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36. Grant of bail under Section 439 of the CrPC is a matterinvolving the exercise of judicial discretion. Judicial discretion inGgranting or refusing bail - as in the case of any other discretionwhich is vested in a court as a judicial institution - is notunstructured. The duty to record reasons is a significant safeguardwhich ensures that the discretion which is entrusted to the courtis exercised in a judicious manner. The recording of reasons in aHjudicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reasonand justice. This Court in Chaman Lal v. State of U.P.[8] in a similarvein has held that an order of a High Court which does not containreasons for prima facie concluding that a bail should be granted isliable to be set aside for non- application of mind. This Courtobserved:

“8. Even on a cursory perusal the High Court’s order showscomplete non-application of mind. Though detailed examinationof the evidence and elaborate documentation of the merits of thecase is to be avoided by the Court while passing orders on bailapplications. Yet a court dealing with the bail application shouldbe satisfied, as to whether there is a prima facie case, butexhaustive exploration of the merits of the case is not necessary.The court dealing with the application for bail is required toexercise its discretion in a judicious manner and not as a matter ofcourse.

9. There is a need to indicate in the order, reasons for primafacie concluding why bail was being granted particularly wherean accused was charged of having committed a seriousoffence…”

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

(1) The facts of the case;

(2) The nature of allegations;

(3) Gravity of offences; and

(4) Role attributed to the accused.”

13. Applying the law laid down by this Court in the aforesaiddecisions on grant of bail, to the facts of the case on hand; the impugnedorders passed by the High Court releasing the accused on bail cannot besustained. Except narrating the submissions made by Learned Counselappearing on behalf of the accused and the public prosecutor and the A

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Acomplainant there is no independent application of mind by the HighCourt and as such no reasons whatsoever have been assigned by theHigh Court releasing the accused on bail, that too in a case where theaccused are facing the charges for the offences punishable under Sections302 and 307 read with Section 149 of the IPC and the other offences,referred to hereinabove, in which one person was killed and anotherBperson – Vikram Singh was seriously injured. As observed hereinabove,the deceased was having 26 injuries and the injured sustained 11 injuriesby blunt and sharp weapons. The order passed by the High Courtcontained a single para which reads as under:

“Considering the contentions put forth by counsel for the petitioner,CI deem it proper to allow the second bail application.”13.1 Such an order has been disapproved by this Court time andagain. The High Court has not at all taken into consideration the facts ofthe case; the nature of allegations; gravity of offences and role attributedto the accused. As a matter of fact, there is no discussion or analysis ofDcircumstances at all.

13.2 The observations made by the High Court “considering thecontentions put forth by counsel for the petitioner, I deem it proper toallow the second bail application” does not constitute the kind of reasoningwhich is expected of a judicial order. The impugned order passed by theEHigh Court can be said to be perverse and suffers from non-applicationof mind to the relevant factors to be considered while grant of bail andtherefore the interference of this Court is warranted.

14. The submission on behalf of the accused that the accusedwere alleged to have been armed with lathis and therefore they wereFreleased on bail is concerned, at the outset, it is required to be noted thatall the accused are charged for the offences punishable under Sections302 and 307 read with Section 149 of the IPC. At this stage, the individualrole of the accused is not required to be considered when they are allegedto have been the part of the unlawful assembly. There were 26 injuriesfound on the dead body of the deceased and 11 injuries on the injuredGVikram Singh by blunt and sharp weapons. Therefore, merely becausethey were armed with lathis cannot be a ground to release them on bail,in the facts and circumstances of the case, more particularly when theyare charged for the offences punishable under Sections 302 and 307read with Section 149 of the IPC as well as Sections 147 and 148 of theHIPC.

15. Now so far as the submission on behalf of the accused thatthe accused are released on bail in the year 2019 and by now more thanapproximately 2 years have passed after they were released on bail andthere are no allegations of misuse of liberty and/or having committedany breach of the conditions of the grant of bail and therefore this courtmay not set aside the order passed by the High Court is concerned, theaforesaid cannot be accepted. At the outset, it is required to be notedthat immediately after the grant of bail in the month of May, 2019, thepresent appeals have been preferred in the month of July, 2019 i.e. withina period of 2 months and even this Court also issued notice in the presentproceedings in the month of August, 2019. Therefore, as such there isno delay on the part of the complainant in challenging the impugnedorders passed by the High Court releasing the accused on bail. Evenotherwise, as observed by this Court in the case of Mahipal (Supra)and even in the case of Ramesh Bhavan (Supra), the application forcancellation of bail stands on a different footing than challenging theorder passed by the High Court/Appellate Court releasing the accusedon bail. In the case of Mahipal (Supra), this Court considered the decisionof this Court in the case of Neeru Yadav (Supra) and thereafter hasobserved in paragraph 16 as under:

“16. The considerations that guide the power of an appellate courtin assessing the correctness of an order granting bail stand on adifferent footing from an assessment of an application for thecancellation of bail. The correctness of an order granting bail istested on the anvil of whether there was an improper or arbitraryexercise of the discretion in the grant of bail. The test is whetherthe order granting bail is perverse, illegal or unjustified. On theother hand, an application for cancellation of bail is generallyexamined on the anvil of the existence of superveningcircumstances or violations of the conditions of bail by a person towhom bail has been granted. In Neeru Yadav v. State of U.P.,the accused was granted bail by the High Court. In an appealagainst the order [Mitthan Yadav v. State of U.P., 2014 SCCOnLine All 16031] of the High Court, a two-Judge Bench of thisCourt surveyed the precedent on the principles that guide the grantof bail. Dipak Misra, J.

“12. … 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 have A

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Aoccurred 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 takennote of, or bail is founded on irrelevant considerations, indisputablythe superior court can set aside the order of such a grant of bail.BSuch 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 soundnessCof the order passed by the Court.”16. In the case of Mahipal Singh (Supra) this Court also outlinedthe standards governing the setting aside of bail by this Court in thefollowing terms:

“17. Where a court considering an application for bail fails toDconsider relevant factors, an appellate court may justifiably setaside the order granting bail. An appellate court is thus required toconsider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view ofthe evidence on record.”

E16.1 The aforesaid principle of law has also been reiterated bythis court in the recent decision in Parvez Noordin Lokhandwalla vs.State of Maharashtra[10].

17. For the reasons which we have indicated above and the mannerin which the High Court has disposed of the bail applications which canFbe said to be substantially one paragraph order, we are of the opinionthat the orders granting bail to the respondents – accused suffers fromperversity. Impugned orders passed by the High Court granting bail tothe respondents – accused do not pass the test laid down by this Courton grant of bail and exercising of powers of the appellate court laidGdown in various decisions through Mahipal (Supra), Neeru Yadav(Supra); Gulabrao Baburao Deokar (Supra) referred to hereinabove.Therefore, the impugned orders passed by the High Court deserve to bequashed and set aside. We accordingly allow these appeals and set asidethe following orders of the High Court:

H10 (2020) 11 SCC 648

All the accused are directed to surrender forthwith. The copy ofthe order shall be forwarded to the Sessions Judge to secure complianceforthwith.

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Pending application(s), if any, stand disposed of.

Devika Gujral

Appeals allowed.

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