Supreme Court of India
KUMER SINGHversusSTATE OF RAJASTHAN & ANR
- Citation
- 2021 INSC 343
- Decided
- 20 July 2021
- Disposal
- Appeal(s) allowed
- Bench
- D Y CHANDRACHUD
Holding
The bail orders granted by the High Court are perverse and illegal and are set aside.
Summary
The complainant, brother of the deceased Sumer Singh, challenged the High Court's grant of bail to three accused (Kamlesh, Arif and Bhojraj Singh) who were alleged to have participated in an unlawful assembly that brutally murdered Sumer Singh and injured his brother Vikram Singh, causing 26 and 11 injuries respectively. The accused were charged under IPC sections 147, 148, 149, 302, 307, 341, 323 and 427. The High Court released them on bail in 2019 without recording any reasons or analysing the seriousness of the offences, the nature of the allegations, or the risk of tampering with evidence. The Supreme Court held that such an order was perverse, reflected a non‑application of mind, and violated the established principles governing the exercise of discretion under Section 439 of the CrPC. Consequently, the Court set aside the bail orders and directed the accused to surrender. The appeal was allowed, and the High Court's orders granting bail were quashed.
Issues considered
- The High Court's grant of bail to the accused, without reasons and without considering the relevant factors, is valid under Section 439 CrPC.
- Whether an appellate court may set aside a bail order that is perverse or lacks a reasoned basis.
Legislation cited
- Code of Criminal Procedure, 1973s. 439
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 307, s. 323, s. 341, s. 427
Subjects
bailSection 439 CrPCnon‑application of mindperverse orderunlawful assemblyIPC sections 302, 307, 149appellate court discretionreasoned order
Judgment
[2021] 6 S.C.R. 539 539
KUMER SINGH A
v.
STATE OF RAJASTHAN & ANR
(Criminal Appeal No. 571 of 2021)
JULY 20, 2021 B
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Code of Criminal Procedure, 1973: s.439 – Bail – Prosecution
case was that the accused brutally killed brother of the complainant
C
in a pre-planned manner – 26 injuries were found on the body of
the victim-deceased and 11 injuries on brother of the deceased
caused by blunt and sharp weapons – Complainant filed instant
appeal challenging the bail granted by High Court on the ground
that no reasons whatsoever were assigned by High Court while
releasing the accused on bail – Held: Except narrating the D
submissions made on behalf of the accused and the public prosecutor
and the complainant, there was no independent application of mind
by the High Court and as such no reasons whatsoever were assigned
by the High Court releasing the accused on bail, that too in a case
where the accused were facing charges for offences punishable
E
under ss.302 and 307 read with s.149 of the IPC and the other
offences in which one person was killed and another person was
seriously injured – High Court did not at all take into consideration
the facts of the case; the nature of allegations; gravity of offences
and role attributed to the accused – As a matter of fact, there was
no discussion or analysis of circumstances at all – The impugned F
order passed by the High Court can be said to be perverse and
suffers from non-application of mind to the relevant factors to be
considered while grant of bail – Interference warranted.
Allowing the appeals, the Court
Held: 1. All the accused are facing trial for the offences G
punishable under Sections 147, 148, 341, 323, 307, 427, 302 read
with Section 149 of the IPC on the allegation of having killed the
brother of the appellant and having injured one person. As per
the medical evidence on record total 26 injuries were found on
H
539
540 SUPREME COURT REPORTS [2021] 6 S.C.R.
A the deceased and 11 injuries on the injured which were caused
by blunt and sharp weapons. As per the case of the prosecution
the respondents – accused were part of the unlawful assembly
and all of them who were carrying the lathis actually participated
in the commission of the offences. Despite the seriousness of
the offence committed by the accused and despite the manner in
B
which the offence took place, without adverting to the
seriousness of the offence and the manner in which the offence
was committed, by the impugned orders, the High Court has
released the accused on bail. The impugned orders releasing
the accused on bail showed that except first narrating the
C submissions/contentions on behalf of the accused and the
submissions made by the Public Prosecutor thereafter the High
Court without assigning any further reasons released the accused
on bail by simply observing that “considering the contentions
put forth by counsel for the petitioner, I deem it proper to allow
the second bail application”. The impugned order passed by the
D
High Court can be said to be perverse and suffers from non-
application of mind to the relevant factors to be considered while
grant of bail and therefore the interference of this Court is
warranted. [Paras 10, 13.2][547-B-E; 558-E]
2. Now so far as the submission on behalf of the accused
E that the accused are released on bail in the year 2019 and by now
more than approximately 2 years have passed after they were
released on bail and there are no allegations of misuse of liberty
and/or having committed any breach of the conditions of the grant
of bail and therefore this court may not set aside the order passed
F by the High Court is concerned, the aforesaid cannot be accepted.
Immediately after the grant of bail in the month of May, 2019, the
present appeals have been preferred in the month of July, 2019
i.e. within a period of 2 months and even this Court also issued
notice in the present proceedings in the month of August, 2019.
Therefore, as such there is no delay on the part of the complainant
G in challenging the impugned orders passed by the High Court
releasing the accused on bail. The application for cancellation of
bail stands on a different footing than challenging the order passed
by the High Court/Appellate Court releasing the accused on bail.
[Para 15][559-A-C]
H
KUMER SINGH v. STATE OF RAJASTHAN & ANR 541
Mahipal v. Rajesh Kumar @ Polia and Anr. (2020) 2 A
SCC 118 : [2019] 14 SCR 529; Neeru Yadav v. State of
U.P. (2014) 16 SCC 508 : [2014] 12 SCR 453 ;
Gulabrao Baburao Deokar v. State of Maharashtra
(2013) 16 SCC 190 : [2013] 16 SCR 1181; Ramesh
Bhavan Rathod v. Vishanbhai Hirabhai Makwana
B
Makwana (Koli) 2021(6) SCALE 41; Chaman Lal v.
State of U.P. (2004) 7 SCC 525 : [2004] 3 Suppl.
SCR 584; Sonu v. Sonu Yadav 2021 SCC OnLine SC
286; Parvez Noordin Lokhandwalla v. State of
Maharashtra (2020) 11 SCC 648 – relied on.
Case Law Reference C
[2019] 14 SCR 529 relied on Para 6.4
[2014] 12 SCR 453 relied on Para 6.4
[2013] 16 SCR 1181 relied on Para 6.4
D
[2004] 3 Suppl. SCR 584 relied on Para 12
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
571 of 2021
From the Judgment and Order dated 28.05.2019 of the High Court
of Judicature for Rajasthan at Jaipur in S. B. Criminal Misc. II Bail E
Application No. 7179 of 2019.
With
Criminal appeal nos. 572 & 573 of 2021
Devendra Singh, Anant Kumar Vatsya, Shiv Kumar, Advs. for F
the appellant.
Dr. Manish Singhvi, Sr. Adv., Milind Kumar, Sushil K Tekriwal,
Dr. Mamta Tekriwal, Venkateswara Rao Anumolu, Rishi Matoliya, Advs.
for the respondents.
The Judgment of the Court was delivered by G
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned Judgment
and Order passed by the High Court of Rajasthan, Jaipur Bench releasing
H
542 SUPREME COURT REPORTS [2021] 6 S.C.R.
A the private respondents herein – Kamlesh, Bhojraj Singh and Arif on
bail under Section 439 CrPC, in connection with FIR No.210 of 2017
dated 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 accused
named 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 his
brother Sumer Singh who was the member of the Border Security Force
and was on leave. The date of incident was 16.08.2017. 10 accused
C persons were named in the FIR including Kamlesh, Arif, and Bhojraj
Singh – private respondents herein. That 26 injuries were found on the
deceased Sumer Singh and 11 injuries on one Vikram Singh caused by
blunt and sharp weapons. It was alleged in the FIR as under:
(i) “On the date of the incident that is 16.08.2017, during the
D fair of Goganavami in the village Choti Roru, an altercation
took place between both the parties due to the old enmity.
(ii) On 16.08.2017, a dinner was scheduled in the house of uncle
of the complainant at Rajiyasar Meetha and the family
members departed around 11:20 PM at night 2 cars (1) a
E Bolero driven by complainant departed with other family
members was leading ahead and followed by (2) and Innova
driven by Chandra Pal Singh with other family members
including the complainant’s brother, Sumer Singh.
(iii) Thereafter accused persons somehow came to know of
F the program of the complainant or going to Rajiyasar and
Narendra Singh etc. called their other accomplices and
friends in their village in their cars during the night. These 3
Cars (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,
G Dhariya, Iron Pipes and Lathis.
(iv) The complainant’s Bolero car was leading ahead and found
the Innova car of accused Kamlesh parked at the T point
and drove but on discovering that the Innova car following
behind was not visible, took a U-turn and upon reaching the
H T point, found that the Innova car was stuck in the fields
KUMER SINGH v. STATE OF RAJASTHAN & ANR 543
[M. R. SHAH, J.]
with the windows smashed and accused Kamlesh along A
with 3 other Camper cars and about 20-25 persons and his
brother Sumer Singh lying inside the field of Kamlesh and
all the accused were indiscriminately stabbing him with
Sword, Knife, Khokhri, Lathis and Rods.
(v) The accused persons ambushed the Innova car of the B
deceased by parking their cars sitting inside on different
locations near the Bagichi and all the accused were sitting
inside every car loaded with weapons.
(vi) The accused had complete knowledge that Sumer Singh
who was working in the BSF, had come home on vacations C
and 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 that
when he tried to run and attempted save his life, he was hit
by another Camer and Got Stuck between the Camper and D
the barbed wire and fell down and broke his leg. Thereupon
all the accused pounced upon him and indiscriminately
stabbed him with sharp weapons while he was lying on the
ground.
3. That the bail applications submitted by the private respondents E
herein – accused came to be dismissed by the Learned Sessions Judge
considering the seriousness of accusations leveled against the accused.
That Kamlesh was arrested on 20.08.2017, Arif was arrested on
18.08.2017 and Bojraj Singh was arrested on 23.10.2017. That the police
submitted a charge-sheet against all the accused persons on 14.11.2017
for the offences punishable under Sections 147, 148, 149, 302, 341, 323 F
& 427 IPC. That the bail applications preferred by Kamlesh, Arif and
Bhojraj Singh came to be rejected by the High Court vide order dated
10.01.2018. However, the High Court opined that the accused persons
are at liberty to move fresh bail application before the concerned court
after recording of the statement of the material witnesses. At this stage, G
it is required to be noted that as per the charge-sheet there are 38
witnesses to be examined by the prosecution. Thereafter the Learned
trial Court framed the charge against the accused persons on 09.02.2018.
Supplementary charge-sheet came to be filed against other co-accused
namely Hari Singh, Surjit Singh and Dalip Singh. A second supplementary
charge-sheet came to be filed against one Rajendra Singh on 11.12.2018. H
544 SUPREME COURT REPORTS [2021] 6 S.C.R.
A A third supplementary charge-sheet came to be filed against the main
accused Narendra Singh on 23.04.2019. Thereafter the bail applications
submitted by Arif and Bhojraj Singh bearing Bail Application Nos.250 of
2019 and 251 of 2019 came to be rejected by the Learned trial Court
vide its order dated 30.04.2019. Thereafter by the impugned judgment
and orders dated 17.05.2019, 28.05.2019 and 01.06.2019, the High Court
B
has enlarged Arif, Kamlesh and Bhojraj Singh respectively on bail.
4. Feeling aggrieved and dissatisfied with the impugned orders
passed by the High Court enlarging/releasing the accused - Arif, Kamlesh
and Bhojraj Singh on bail in connection with FIR No.210 of 2017, registered
at PS Laxmangarh, District Sikar, Rajasthan for the offences punishable
C under Sections 147, 148, 341, 323, 307, 427, 302 read with Section 149
IPC, the original complainant, brother of the deceased has preferred the
present appeals.
5. We have heard Mr. Devendra Singh, Learned Counsel for the
appellant, Mr. Sushil K. Tekriwal, Learned Counsel appearing on behalf
D of accused – Kamlesh, Mr. Rishi Matoliya, learned Counsel appearing
for accused Arif Lohar and Bhojraj Singh and Dr. Manish Singhvi, learned
Senior Counsel for the State of Rajasthan.
6. Learned Counsel appearing on behalf of original complainant/
informant has vehemently submitted that the High Court has committed
E a grave error in releasing/enlarging the respondents – accused on bail. It
is vehemently submitted that the High Court has not at all considered the
brutality and seriousness of the crime, while enlarging the accused on
bail.
6.1 It is vehemently submitted that the High Court has not at all
F considered the fact that Sumer Singh was killed brutally and in a pre-
planned manner. The High Court has not at all noted and considered that
total 26 injuries were found on the body of the deceased and 11 injuries
on the injured brother of the deceased Vikram Singh which have been
caused by blunt and sharp weapons.
G 6.2 It is further submitted that except noting the submissions on
behalf of the accused and the learned public prosecutor, no reasons
whatsoever have been assigned by the High Court while releasing the
accused on bail.
6.3 It is submitted that the submissions which are made on behalf
H of the accused were that they are in custody since 1 ½ year; that accused
KUMER SINGH v. STATE OF RAJASTHAN & ANR 545
[M. R. SHAH, J.]
were having lathis and that there is no specific overact in the statement A
of the witnesses under Section 161 CrPC and that there are 36 witnesses
to be examined which is likely to take long time. It is submitted that the
manner in which Sumer Singh was killed in a pre-planned manner and
the accused killed the deceased Sumer Singh brutally, the High Court
ought not to have released the accused on bail.
B
6.4 Reliance is placed on the decisions of this Court in the cases
of Mahipal vs. Rajesh Kumar @ Polia and Anr.1; Neeru Yadav vs.
State of U.P.2; Gulabrao Baburao Deokar vs. State of Maharashtra3
and a recent decision of this Court in the case Ramesh Bhavan Rathod
vs. Vishanbhai Hirabhai Makwana Makwana (Koli)4.
C
7. Dr. Manish Singhvi, Learned Senior Counsel appearing on behalf
of the State of Rajasthan has supported the appellant. It is submitted
that the High Court has committed a grave error in releasing the
respondents – accused on bail. It is submitted that the manner in which
Sumer Singh was brutally killed, was pre-planned and that there were
26 injuries found on the dead body of the deceased Sumer Singh and D
there was a prior enmity and therefore the motive has been established.
Merely because the accused are in the custody for approximately 1
year and 6 months, the High Court ought not to have released the accused
on bail. It is submitted that from the impugned orders passed by the High
Court it can be seen that as such except noting the submissions made on E
behalf of the accused and public prosecutor no reasons whatsoever have
been assigned by the High Court. It is submitted that even it can be seen
from the impugned orders that the High Court has not adverted itself to
the seriousness of the crime at all. It is submitted that even the High
Court has not considered the fact that the accused are charged for the
offences punishable under Section 302 read with Section 149 of the F
IPC. It is submitted that once the respondents – accused were found to
be the member of the unlawful assembly and all of them were present at
the time of the incident and they also participated in the commission of
the offence, the individual role at this stage is not required to be considered
in view of Section 149 of the IPC. G
7.1 It is further submitted by Dr. Singhvi, Learned Senior Counsel
appearing 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
4
2021 (6) SCALE 41 H
546 SUPREME COURT REPORTS [2021] 6 S.C.R.
A in the case of Mahipal (Supra) there is a difference and distinction
between the power of the Appellate Court in assessing the correctness
of an order granting bail and assessment of an application for cancellation
of 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 of
whether there is improper and arbitrary exercise of discretion in the
B
grant of bail. It is submitted therefore when the impugned orders passed
by the High Court releasing the accused on bail are non-speaking orders
and the High Court has not at all considered the relevant factors and
circumstances while considering the applications for bail, this is a fit
case to quash and set aside the orders passed by the High Court releasing
C the respondents - accused on bail.
8. Learned Counsel appearing on behalf of the respective accused
while opposing the present appeals have vehemently submitted that in
the facts and circumstances of the case the High Court has not committed
any error in enlarging/releasing the respondents – accused on bail. Shri
D Tekriwal, Learned Counsel appearing on behalf of the accused – Kamlesh
has further submitted that more than approximately 2 years have passed
after the accused are released on bail and after they are released on bail
there are no allegations of misusing the liberty or having committed any
breach of the conditions of the grant of bail, by the accused. It is submitted
that therefore the interference of this Court is not called for. It is further
E submitted by Mr. Tekriwal, Learned Counsel appearing on behalf of the
accused that the High Court has noted the submissions on behalf of the
accused and the Learned Public Prosecutor and thereafter considering
the submissions made on behalf of the accused that the charge-sheet is
already filed; charge has been framed; they are in custody since more
F than one year 3 months/six months and that out of 36 witnesses only 3
witnesses have been examined and that earlier when the bail application
was rejected by the High Court a liberty was reserved to move an
appropriate application before the trial Court afresh, considering the nature
of allegations against the respective accused, the High Court has not
committed any error in releasing the accused on bail. It is vehemently
G submitted that the High Court has noted that considering the submissions
made on behalf of the accused means the High Court has concurred
with the submissions and/or accepted the submissions on behalf of the
accused and thereafter has released the accused on bail and therefore it
can be said that the High Court has applied its mind to the relevant
H circumstances pointed out on behalf of the accused.
KUMER SINGH v. STATE OF RAJASTHAN & ANR 547
[M. R. SHAH, J.]
8.1 Making the above submissions, it is prayed to dismiss the A
present appeals, more particularly when other accused, as noted by the
High 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 are
charged for the offences punishable under Sections 147, 148, 341, 323, B
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 having
killed one Sumer Singh, brother of the appellant and having injured one
Vikram Singh. It is also required to be noted that as per the medical
evidence on record total 26 injuries were found on the deceased Sumer C
Singh and 11 injuries on the injured Vikram Singh which have been caused
by blunt and sharp weapons. As per the case of the prosecution the
respondents – accused were part of the unlawful assembly and all of
them who were carrying the lathis actually participated in the commission
of the offences. Despite the seriousness of the offence committed by
the accused and despite the manner in which the offence took place, D
without adverting to the seriousness of the offence and the manner in
which the offence was committed, by the impugned orders, the High
Court has released the accused on bail. If the impugned orders releasing
the accused on bail are perused, we find that except first narrating the
submissions/contentions on behalf of the accused and the submissions E
made by the Learned Public Prosecutor thereafter the High Court has
without assigning any further reasons has released the accused on bail
by simply observing that “considering the contentions put forth by counsel
for the petitioner, I deem it proper to allow the second bail application”.
The orders passed by the High Court releasing the respondents – accused
on bail in a serious case for offence punishable under Section 302 of the F
IPC and other offences are the subject matter of present appeals.
11. Before considering the rival submissions made on behalf of
the respective parties, few decisions of this Court on how to exercise
the discretionary power for grant of bail and the duty of the Appellate
Court, particularly when the bail was refused by the courts below are G
required to be referred to and considered.
11.1 In the case of Mahipal (Supra) where the High Court
released the accused on bail in a case for the offence under Section 302
of the IPC and other offences recording the only contention put forth by
the counsel for the accused and further recording that “taking into account H
548 SUPREME COURT REPORTS [2021] 6 S.C.R.
A the facts and circumstances of the case and without expressing the
opinion 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 granting
bail, one of us Dr. Justice D.Y. Chandrachud observed in paragraphs 11
B and 12 as under:
11. Essentially, this Court is required to analyse whether there
was a valid exercise of the power conferred by Section 439 CrPC
to grant bail. The power to grant bail under Section 439 is of a
wide amplitude. But it is well settled that though the grant of bail
C involves the exercise of the discretionary power of the court, it
has to be exercised in a judicious manner and not as a matter of
course. In Ram Govind Upadhyay v. Sudarshan Singh5 Umesh
Banerjee, J. speaking for a two-Judge Bench of this Court, laid
down the factors that must guide the exercise of the power to
grant 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 manner
and not as a matter of course. Order for bail bereft of any cogent
reason cannot be sustained. Needless to record, however, that
the grant of bail is dependent upon the contextual facts of the
E matter being dealt with by the court and facts, however, do always
vary from case to case. … The nature of the offence is one of
the basic considerations for the grant of bail — more heinous is
the crime, the greater is the chance of rejection of the bail, though,
however, dependent on the factual matrix of the matter.
F 4. Apart from the above, certain other which may be
attributed to be 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 not
G only the nature of the accusations, but the severity of the
punishment, if the accusation entails a conviction and the nature
of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being
tampered with or the apprehension of there being a threat for the
H 5
(2002) 3 SCC 598
KUMER SINGH v. STATE OF RAJASTHAN & ANR 549
[M. R. SHAH, J.]
complainant should also weigh with the court in the matter of A
grant of bail.
(c) While it is not expected to have the entire evidence
establishing the guilt of the accused beyond reasonable doubt but
there ought always to be a prima facie satisfaction of the court in
support of the charge. B
(d) Frivolity in prosecution should always be considered and
it is only the element of genuineness that shall have to be
considered in the matter of grant of bail, and in the event of there
being some doubt as to the genuineness of the prosecution, in the
normal course of events, the accused is entitled to an order of C
bail.”
12. The determination of whether a case is fit for the grant
of bail involves the balancing of numerous factors, among which
the nature of the offence, the severity of the punishment and a
prima facie view of the involvement of the accused are important. D
No straitjacket formula exists for courts 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 the evidence on record to establish beyond
reasonable doubt the commission of the crime by the accused.
That is a matter for trial. However, the Court is required to examine E
whether there is a prima facie or reasonable ground to believe
that the accused had committed the offence and on a balance of
the considerations involved, the continued custody of the accused
subserves the purpose of the criminal justice system. Where bail
has been granted by a lower court, an appellate court must be F
slow to interfere and ought to be guided by the principles set out
for the exercise of the power to set aside bail.
11.2 that guide while assessing the correctness of an order passed
by the High Court granting bail. This Court specifically observed and
held that normally this Court does not interfere with an order passed by G
the High Court granting or rejecting the bail to the accused. However,
where the discretion of the High Court to grant bail has been exercised
without the due application of mind or in contravention of the directions
of this Court, such an order granting bail is liable to be set aside. This
Court further observed that the power of the appellate court in assessing
the correctness of an order granting bail stand on a different footing H
550 SUPREME COURT REPORTS [2021] 6 S.C.R.
A from an assessment of an application for cancellation of bail. It is further
observed that the correctness of an order granting bail is tested on the
anvil of whether there was a proper or arbitrary exercise of the discretion
in the grant of bail. It is further observed that the test is whether the
order granting bail is perverse, illegal or unjustified. Thereafter this Court
considered the difference and distinction between an application for
B
cancellation of bail and an appeal before this Court challenging the order
passed by the appellate court granting bail in paras 13, 14, 16 and 17 as
under:
13. The principles that guide this Court in assessing the
correctness of an order [Ashish Chatterjee v. State of W.B.,
C CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] passed by
the High Court granting bail were succinctly laid down by this
Court in Prasanta Kumar Sarkar v. Ashis Chatterjee6 . In that
case, the accused was facing trial for an offence punishable under
Section 302 of the Penal Code. Several bail applications filed by
D the 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 [Ashish Chatterjee
v. 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-Judge
Bench of this Court, held:
E
“9. … It is trite that this Court does not, normally, interfere
with an order [Ashish Chatterjee v. State of W.B., CRM No.
272 of 2010, order dated 11-1-2010 (Cal)] passed by the High
Court granting or rejecting bail to the accused. However, it is
equally incumbent upon the High Court to exercise its discretion
F judiciously, cautiously and strictly in compliance with the basic
principles laid down in a plethora of decisions of this Court on the
point. It is well settled that, among other circumstances, the factors
to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground
G to believe that the accused had committed the
offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
H 6
(2010) 14 SCC 496
KUMER SINGH v. STATE OF RAJASTHAN & ANR 551
[M. R. SHAH, J.]
(iv) danger of the accused absconding or fleeing, if A
released on bail;
(v) character, behaviour, means, position and standing
of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being B
influenced; and
(viii) danger, of course, of justice being thwarted by grant
of bail.
***
10. It is manifest that if the High Court does not advert to C
these relevant considerations and mechanically grants bail, the
said 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 bail
touches upon the liberty of an individual. It is for this reason that D
this Court does not ordinarily interfere with an order of the High
Court granting bail. However, where the discretion of the High
Court to grant bail has been exercised without the due application
of mind or in contravention of the directions of this Court, such an
order granting bail is liable to be set aside. The Court is required
E
to factor, amongst other things, a prima facie view that the accused
had committed the offence, the nature and gravity of the offence
and the likelihood of the accused obstructing the proceedings of
the trial in any manner or evading the course of justice. The
provision for being released on bail draws an appropriate balance
between public interest in the administration of justice and the F
protection of individual liberty pending adjudication of the case.
However, the grant of bail is to be secured within the bounds of
the law and in compliance with the conditions laid down by this
Court. It is for this reason that a court must balance numerous
factors that guide the exercise of the discretionary power to grant
G
bail on a case-by-case basis. Inherent in this determination is
whether, on an analysis of the record, it appears that there is a
prima facie or reasonable cause to believe that the accused had
committed the crime. It is not relevant at this stage for the court
to examine in detail the evidence on record to come to a conclusive
finding. H
552 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 16. The considerations that guide the power of an appellate
court in assessing the correctness of an order granting bail stand
on a different footing from an assessment of an application for
the cancellation of bail. The correctness of an order granting bail
is tested on the anvil of whether there was an improper or arbitrary
exercise of the discretion in the grant of bail. The test is whether
B the order granting bail is perverse, illegal or unjustified. On the
other hand, an application for cancellation of bail is generally
examined on the anvil of the existence of supervening
circumstances or violations of the conditions of bail by a person to
whom bail has been granted. In Neeru Yadav v. State of U.P. ,
C the accused was granted bail by the High Court [Mitthan Yadav
v. State of U.P.7, . In an appeal against the order [Mitthan Yadav
v. State of U.P., 2014 SCC OnLine All 16031] of the High Court,
a two-Judge Bench of this Court surveyed the precedent on the
principles that guide the grant of bail. Dipak Misra, J.
D “12. … It is well settled in law that cancellation of bail
after it is granted because the accused has misconducted himself
or of some supervening circumstances warranting such
cancellation have occurred is in a different compartment altogether
than an order granting bail which is unjustified, illegal and perverse.
If in a case, the relevant factors which should have been taken
E into consideration while dealing with the application for bail have
not been taken note of, or bail is founded on irrelevant
considerations, indisputably the superior court can set aside the
order of such a grant of bail. Such a case belongs to a different
category and is in a separate realm. While dealing with a case of
second nature, the Court does not dwell upon the violation of
F
conditions by the accused or the supervening circumstances that
have happened subsequently. It, on the contrary, delves into the
justifiability and the soundness of the order passed by the Court.”
17. Where a court considering an application for bail fails
to consider relevant factors, an appellate court may justifiably set
G aside the order granting bail. An appellate court is thus required to
consider whether the order granting bail suffers from a non-
application of mind or is not borne out from a prima facie view of
the evidence on record. It is thus necessary for this Court to assess
whether, on the basis of the evidentiary record, there existed a
H 7
2014 SCC OnLine All 16031
KUMER SINGH v. STATE OF RAJASTHAN & ANR 553
[M. R. SHAH, J.]
prima facie or reasonable ground to believe that the accused had A
committed the crime, also taking into account the seriousness of
the crime and the severity of the punishment. The order [Rajesh
Kumar v. State of Rajasthan, 2019 SCC OnLine Raj 5197] of
the High Court in the present case, insofar as it is relevant reads:
“2. Counsel for the petitioner submits that the petitioner B
has been falsely implicated in this matter. Counsel further submits
that, the deceased was driving his motorcycle, which got slipped
on a sharp turn, due to which he received injuries on various parts
of body including ante-mortem head injuries on account of which
he died. Counsel further submits that the challan has already been
presented in the court and conclusion of trial may take long time. C
3. The learned Public Prosecutor and counsel for the
complainant have opposed the bail application.
4. Considering the contentions put forth by the counsel for
the petitioner and taking into account the facts and circumstances D
of the case and without expressing opinion on the merits of the
case, this Court deems it just and proper to enlarge the petitioner
on bail.”
Thereafter this Court set aside the order passed by the High Court
releasing the accused on bail. At this stage, it is required to be noted that
E
in the case of Mahipal (Supra) the order of the High Court which was
set aside by this Court insofar as it is relevant reads as under:
“2. Counsel for the petitioner submits that the petitioner has been
falsely implicated in this matter. Counsel further submits that, the
deceased was driving his motorcycle, which got slipped on a sharp
turn, due to which he received injuries on various parts of body F
including ante-mortem head injuries on account of which he died.
Counsel further submits that the challan has already been
presented in the court and conclusion of trial may take long time.
3. The learned Public Prosecutor and counsel for the complainant
have opposed the bail application. G
4. Considering the contentions put forth by the counsel for the
petitioner and taking into account the facts and circumstances of
the case and without expressing opinion on the merits of the case,
this Court deems it just and proper to enlarge the petitioner on
bail.” H
554 SUPREME COURT REPORTS [2021] 6 S.C.R.
A This Court disapproved such an order of grant of bail by observing
that the High Court has not considered material available to the
determination of whether the accused were to be enlarged on bail. This
court also further observed that it is a sound exercise of judicial discipline
for an order granting or rejecting bail to record the reasons which have
weighed with the court for the exercise of its discretionary power. The
B
relevant observations made by this court while setting aside the order
passed by the High Court in paragraphs 23, 24 and 25 are as under:
“23. The High Court has erred in not considering material
relevant to the determination of whether the accused were to be
enlarged on bail. The order of the High Court enlarging the accused
C on bail is erroneous and liable to be set aside.
24. There is another reason why the judgment of the learned
Single Judge has fallen into error. It is a sound exercise of judicial
discipline for an ordern granting or rejecting bail to record the
reasons which have weighed with the court for the exercise of its
D discretionary power. In the present case, the assessment by the
High 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)
“4. Considering the contentions put forth by the counsel for
E the petitioner and taking into account the facts and circumstances
of the case and without expressing opinion on the merits of the
case, this Court deems it just and proper to enlarge the petitioner
on bail.”
25. Merely recording “having perused the record” and “on
F the facts and circumstances of the case” does not subserve the
purpose of a reasoned judicial order. It is a fundamental premise
of open justice, to which our judicial system is committed, that
factors which have weighed in the mind of the Judge in the rejection
or the grant of bail are recorded in the order passed. Open justice
G is premised on the notion that justice should not only be done, but
should manifestly and undoubtedly be seen to be done. The duty
of Judges to give reasoned decisions lies at the heart of this
commitment. Questions of the grant of bail concern both liberty
of individuals undergoing criminal prosecution as well as the
interests of the criminal justice system in ensuring that those who
H commit crimes are not afforded the opportunity to obstruct justice.
KUMER SINGH v. STATE OF RAJASTHAN & ANR 555
[M. R. SHAH, J.]
Judges are duty-bound to explain the basis on which they have A
arrived at a conclusion.”
It is further observed by this Court that where an order refusing
or granting bail does not furnish the reasons that form the decision, there
is a presumption of non-application of mind which may require the
intervention of this Court. It is further observed that where an earlier B
application for bail has been rejected, there is a higher burden on the
appellate court to furnish specific reasons as to why the bail should be
granted.
12. At this stage, a recent decision of this Court in the case of
Ramesh Bhavan Rathod (Supra) is also required to be referred to. In C
the said decision, this Court considered in great detail the considerations
which govern the grant of bail, after referring to the decisions of this
Court in the case of Ram Govind Upadhyay (Supra); Prasanta Kumar
Sarkar (Supra); Chaman Lal vs. State of U.P.8; and the decision of
this Court in Sonu vs. Sonu Yadav9. After considering the law laid
down by this Court on grant of bail, in the aforesaid decisions, in D
paragraphs 20, 21, 36 & 37 it is observed and held as under:
“20. The first aspect of the case which stares in the face is
the singular absence in the judgment of the High Court to the
nature and gravity of the crime. The incident which took place on
9 May 2020 resulted in five homicidal deaths. The nature of the E
offence is a circumstance which has an important bearing on the
grant of bail. The orders of the High Court are conspicuous in the
absence of any awareness or elaboration of the serious nature of
the offence. The perversity lies in the failure of the High Court to
consider an important circumstance which has a bearing on F
whether bail should be granted. In the two-judge Bench decision
of this Court in Ram Govind Upadhyay v. Sudharshan Singh,
the nature of the crime was recorded as “one of the basic
considerations” which has a bearing on the grant or denial of bail.
The considerations which govern the grant of bail were elucidated
in the judgment of this Court without attaching an exhaustive nature G
or character to them. This emerges from the following extract:
“4. Apart from the above, certain other which may be
attributed to be relevant considerations may also be noticed at
8
(2004) 7 SCC 525
9
2021 SCC OnLine SC 286 H
556 SUPREME COURT REPORTS [2021] 6 S.C.R.
A 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 not only
the nature of the accusations, but the severity of the
punishment, if the accusation entails a conviction and the
B nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered
with or the apprehension of there being a threat for the
complainant should also weigh with the court in the matter
of grant of bail.
C
(c) While it is not expected to have the entire evidence
establishing the guilt of the accused beyond reasonable
doubt but there ought always to be a prima facie satisfaction
of the court in support of the charge.
D (d) Frivolity in prosecution should always be considered and it
is only the element of genuineness that shall have to be
considered in the matter of grant of bail, and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail.”
E
21. This Court further laid down the standard for overturning
an 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 manner
F and not as a matter of course. Order for bail bereft of any cogent
reason cannot be sustained.”
xxx xxx xxx
36. Grant of bail under Section 439 of the CrPC is a matter
involving the exercise of judicial discretion. Judicial discretion in
G granting or refusing bail - as in the case of any other discretion
which is vested in a court as a judicial institution - is not
unstructured. The duty to record reasons is a significant safeguard
which ensures that the discretion which is entrusted to the court
is exercised in a judicious manner. The recording of reasons in a
H judicial order ensures that the thought process underlying the order
KUMER SINGH v. STATE OF RAJASTHAN & ANR 557
[M. R. SHAH, J.]
is subject to scrutiny and that it meets objective standards of reason A
and justice. This Court in Chaman Lal v. State of U.P.8 in a similar
vein has held that an order of a High Court which does not contain
reasons for prima facie concluding that a bail should be granted is
liable to be set aside for non- application of mind. This Court
observed:
B
“8. Even on a cursory perusal the High Court’s order shows
complete non-application of mind. Though detailed examination
of the evidence and elaborate documentation of the merits of the
case is to be avoided by the Court while passing orders on bail
applications. Yet a court dealing with the bail application should
C
be satisfied, as to whether there is a prima facie case, but
exhaustive exploration of the merits of the case is not necessary.
The court dealing with the application for bail is required to
exercise its discretion in a judicious manner and not as a matter of
course.
D
9. There is a need to indicate in the order, reasons for prima
facie concluding why bail was being granted particularly where
an accused was charged of having committed a serious
offence…”
37. We are also constrained to record our disapproval of
E
the manner in which the application for bail of Vishan (A-6) was
disposed of. The High Court sought to support its decision to grant
bail by stating that it had perused the material on record and was
granting bail “without discussing the evidence in detail” taking
into consideration:
F
(1) The facts of the case;
(2) The nature of allegations;
(3) Gravity of offences; and
(4) Role attributed to the accused.” G
13. Applying the law laid down by this Court in the aforesaid
decisions on grant of bail, to the facts of the case on hand; the impugned
orders passed by the High Court releasing the accused on bail cannot be
sustained. Except narrating the submissions made by Learned Counsel
appearing on behalf of the accused and the public prosecutor and the H
558 SUPREME COURT REPORTS [2021] 6 S.C.R.
A complainant there is no independent application of mind by the High
Court and as such no reasons whatsoever have been assigned by the
High Court releasing the accused on bail, that too in a case where the
accused are facing the charges for the offences punishable under Sections
302 and 307 read with Section 149 of the IPC and the other offences,
referred to hereinabove, in which one person was killed and another
B
person – Vikram Singh was seriously injured. As observed hereinabove,
the deceased was having 26 injuries and the injured sustained 11 injuries
by blunt and sharp weapons. The order passed by the High Court
contained a single para which reads as under:
“Considering the contentions put forth by counsel for the petitioner,
C
I deem it proper to allow the second bail application.”
13.1 Such an order has been disapproved by this Court time and
again. The High Court has not at all taken into consideration the facts of
the case; the nature of allegations; gravity of offences and role attributed
to the accused. As a matter of fact, there is no discussion or analysis of
D circumstances at all.
13.2 The observations made by the High Court “considering the
contentions put forth by counsel for the petitioner, I deem it proper to
allow the second bail application” does not constitute the kind of reasoning
which is expected of a judicial order. The impugned order passed by the
E High Court can be said to be perverse and suffers from non-application
of mind to the relevant factors to be considered while grant of bail and
therefore the interference of this Court is warranted.
14. The submission on behalf of the accused that the accused
were alleged to have been armed with lathis and therefore they were
F released on bail is concerned, at the outset, it is required to be noted that
all the accused are charged for the offences punishable under Sections
302 and 307 read with Section 149 of the IPC. At this stage, the individual
role of the accused is not required to be considered when they are alleged
to have been the part of the unlawful assembly. There were 26 injuries
found on the dead body of the deceased and 11 injuries on the injured
G
Vikram Singh by blunt and sharp weapons. Therefore, merely because
they were armed with lathis cannot be a ground to release them on bail,
in the facts and circumstances of the case, more particularly when they
are charged for the offences punishable under Sections 302 and 307
read with Section 149 of the IPC as well as Sections 147 and 148 of the
H IPC.
KUMER SINGH v. STATE OF RAJASTHAN & ANR 559
[M. R. SHAH, J.]
15. Now so far as the submission on behalf of the accused that A
the accused are released on bail in the year 2019 and by now more than
approximately 2 years have passed after they were released on bail and
there are no allegations of misuse of liberty and/or having committed
any breach of the conditions of the grant of bail and therefore this court
may not set aside the order passed by the High Court is concerned, the
B
aforesaid cannot be accepted. At the outset, it is required to be noted
that immediately after the grant of bail in the month of May, 2019, the
present appeals have been preferred in the month of July, 2019 i.e. within
a period of 2 months and even this Court also issued notice in the present
proceedings in the month of August, 2019. Therefore, as such there is
no delay on the part of the complainant in challenging the impugned C
orders passed by the High Court releasing the accused on bail. Even
otherwise, as observed by this Court in the case of Mahipal (Supra)
and even in the case of Ramesh Bhavan (Supra), the application for
cancellation of bail stands on a different footing than challenging the
order passed by the High Court/Appellate Court releasing the accused
D
on bail. In the case of Mahipal (Supra), this Court considered the decision
of this Court in the case of Neeru Yadav (Supra) and thereafter has
observed in paragraph 16 as under:
“16. The considerations that guide the power of an appellate court
in assessing the correctness of an order granting bail stand on a
different footing from an assessment of an application for the E
cancellation of bail. The correctness of an order granting bail is
tested on the anvil of whether there was an improper or arbitrary
exercise of the discretion in the grant of bail. The test is whether
the order granting bail is perverse, illegal or unjustified. On the
other hand, an application for cancellation of bail is generally F
examined on the anvil of the existence of supervening
circumstances or violations of the conditions of bail by a person to
whom bail has been granted. In Neeru Yadav v. State of U.P.,
the accused was granted bail by the High Court. In an appeal
against the order [Mitthan Yadav v. State of U.P., 2014 SCC
OnLine All 16031] of the High Court, a two-Judge Bench of this G
Court surveyed the precedent on the principles that guide the grant
of bail. Dipak Misra, J.
“12. … It is well settled in law that cancellation of bail after it is
granted because the accused has misconducted himself or of some
supervening circumstances warranting such cancellation have H
560 SUPREME COURT REPORTS [2021] 6 S.C.R.
A occurred is in a different compartment altogether than an order
granting bail which is unjustified, illegal and perverse. If in a case,
the relevant factors which should have been taken into consideration
while dealing with the application for bail have not been taken
note of, or bail is founded on irrelevant considerations, indisputably
the superior court can set aside the order of such a grant of bail.
B
Such a case belongs to a different category and is in a separate
realm. While dealing with a case of second nature, the Court
does not dwell upon the violation of conditions by the accused or
the supervening circumstances that have happened subsequently.
It, on the contrary, delves into the justifiability and the soundness
C of the order passed by the Court.”
16. In the case of Mahipal Singh (Supra) this Court also outlined
the standards governing the setting aside of bail by this Court in the
following terms:
“17. Where a court considering an application for bail fails to
D consider relevant factors, an appellate court may justifiably set
aside the order granting bail. An appellate court is thus required to
consider whether the order granting bail suffers from a non-
application of mind or is not borne out from a prima facie view of
the evidence on record.”
E 16.1 The aforesaid principle of law has also been reiterated by
this court in the recent decision in Parvez Noordin Lokhandwalla vs.
State of Maharashtra10.
17. For the reasons which we have indicated above and the manner
in which the High Court has disposed of the bail applications which can
F be said to be substantially one paragraph order, we are of the opinion
that the orders granting bail to the respondents – accused suffers from
perversity. Impugned orders passed by the High Court granting bail to
the respondents – accused do not pass the test laid down by this Court
on grant of bail and exercising of powers of the appellate court laid
G down 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 be
quashed and set aside. We accordingly allow these appeals and set aside
the following orders of the High Court:
10
H (2020) 11 SCC 648
KUMER SINGH v. STATE OF RAJASTHAN & ANR 561
[M. R. SHAH, J.]
Sl.No. Accused SLP No. Date of order Bail Application A
by the High No.
Court
1. Kaml esh 6792 of 2019 28.05.2019 Bail Application
No.7179/2019
2. Arif 7098 of 2019 17.05.2019 Bail Application
No.6616/2019 B
3. Bhojraj Singh 7099 of 2019 01.06.2019 Bail Application
No.7180/2019
All the accused are directed to surrender forthwith. The copy of
the order shall be forwarded to the Sessions Judge to secure compliance
forthwith. C
Pending application(s), if any, stand disposed of.
Devika Gujral Appeals allowed.
D
E
F
G
H
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