MAHIPALversusRAJESH KUMAR @ POLIA & ANR.

                        [2019] 14 S.C.R. 529                             529


                             MAHIPAL                                     A
                                  v.
                RAJESH KUMAR @ POLIA & ANR.
                 (Criminal Appeal No. 1843 of 2019)
                       DECEMBER 05, 2019                                 B
         [DR. DHANANJAYA Y CHANDRACHUD AND
                 HRISHIKESH ROY, JJ.]
       Code of Criminal Procedure, 1973: s.439 – Bail –
Complainant’s case was that the victim-deceased was his nephew
                                                                         C
and was assaulted by the respondents-accused while the deceased
and his friend were on their way on a bike – Victim-deceased
suffered head injuries which resulted in his death – Bail application
of first respondent was allowed by High Court – Complainant-
appellant filed instant appeal challenging the order of High Court
enlarging the first respondent on bail – Held: A court assessing a       D
plea of bail is required to find a prima facie view of the possibility
of the commission of the crime by the accused and not conclude
that the alleged crime was in fact committed by the accused beyond
reasonable doubt – As per postmortem report, the victim-deceased
was inflicted head injuries – Medical Board was of opinion that he
                                                                         E
died of head injuries – The statement of the friend of the deceased
who was allegedly present with the deceased at the time of the
incident was recorded under s.161 – The statement details the alleged
incident and names all five accused, attributing to them the common
intention to kill the deceased – It was stated that the accused
thereafter drove away with the bike of the deceased – The order          F
passed by the High Court failed to notice material facts and showed
non-application of mind to the seriousness of the crime – High Court
erred in not considering material relevant to the determination of
whether the accused were to be enlarged on bail – Order of the
High Court enlarging the accused on bail is erroneous and is set
                                                                         G
aside – Criminal Justice System – Bail.
      Code of Criminal Procedure, 1973: s.439 – Bail – Grant/
Rejection of bail – Determining factors – Held: 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
                                                                         H
                                 529
530            SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A     severity of the punishment and a prima facie view of the involvement
      of the accused are important – No straight jacket 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
B
      commission of the crime by the accused – That is a matter for trial –
      However, the Court is required to examine 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 sub-serves the purpose of the
C     criminal justice system.
            Code of Criminal Procedure, 1973: s.439 – Bail – Where bail
      has been granted by a lower court – Scope of interference – Held:
      Appellate court must be slow to interfere and ought to be guided by
      the principles set out for the exercise of the power to set aside bail.
D            Code of Criminal Procedure, 1973: s.439 – Bail – Power of
      an appellate court in assessing the correctness of an order granting
      bail vis-a-vis application for the cancellation of bail – Determining
      factors – Held: The considerations that guide the power of an
      appellate court in assessing the correctness of an order granting
E     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 the order granting bail is perverse, illegal or unjustified –
      On the other hand, an application for cancellation of bail is
F     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.
             Judicial discipline: Reasoned/Speaking order while granting/
      rejecting bail – It is a fundamental premise of open justice that
G     factors which have weighed in the mind of the judge in the rejection
      or the grant of bail are recorded in the order passed – Open justice
      is premised on the notion that justice should not only be done, but
      should manifestly and undoubtedly be seen to be done – The duty
      of judges to give reasoned decisions lies at the heart of this
H     commitment – Questions of the grant of bail concern both liberty of
       MAHIPAL v. RAJESH KUMAR @ POLIA & ANR.                            531


individuals undergoing criminal prosecution as well as the interests     A
of the criminal justice system in ensuring that those who commit
crimes are not afforded the opportunity to obstruct justice – Judges
are duty bound to explain the basis on which they have arrived at a
conclusion – Where an order refusing or granting bail does not
furnish the reasons that inform the decision, there is a presumption
                                                                         B
of the non-application of mind – Bail.
      Allowing the appeals, the Court
       HELD: 1. The provision for an accused to be released on
bail touches upon the liberty of an individual. It is for this reason
that this Court does not ordinarily interfere with an order of the       C
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
provision for being released on bail draws an appropriate balance
between public interest in the administration of justice and the         D
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      E
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. [Para 14][539-G-H; 540-A-C]                          F

       2. 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 examined on         G
the anvil of the existence of supervening circumstances or
violations of the conditions of bail by a person to whom bail has
been granted. Where a court considering an application for bail
fails to consider relevant factors, an appellate court may justifiably
set aside the order granting bail. An appellate court is thus            H
532            SUPREME COURT REPORTS                     [2019] 14 S.C.R.


A     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. [Paras 15, 16][540-E-F; 541-D]
             3. The findings of the post-mortem report was that a total
      of twenty-seven ante-mortem injuries were recorded of which
B     seven were found to be inflicted on the head. This led the
      members of the medical board to conclude that the cause of death
      was coma brought about by the result of the head injuries. It was
      contended for the first respondent that the deceased fell from
      the bike and sustained injuries which led to his death. However,
      it is not for the court to assess in detail the evidence on record to
C     come to a conclusive finding on a chain of causation. A court
      assessing a plea of bail is required to find a prima facie view of
      the possibility of the commission of the crime by the accused and
      not conclude that the alleged crime was in fact committed by the
      accused beyond reasonable doubt. The statement of the friend of
D     the deceased who was allegedly present with the deceased at the
      time of the incident was recorded under Section 161. The
      statement details the alleged incident and names all five accused,
      attributing to them the common intention to kill the deceased. It
      was stated that the accused thereafter drove away with the bike
      of the deceased. [Paras 17-18][542-A, D-F]
E
             4. The order passed by the High Court failed to notice
      material facts and shows a non-application of mind to the
      seriousness of the crime and the circumstances referred to earlier
      which ought to have been taken into consideration. The High
      Court has erred in not considering material relevant to the
F     determination of whether the accused were to be enlarged on
      bail. The order of the High Court enlarging the accused on bail is
      erroneous and liable to be set aside. [Paras 20-21][543-G-H; 544-
      A]
            5. There is another reason why the judgment of the Single
G     Judge has fallen into error. 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. In the instant case, the assessment by the
      High Court is essentially contained in a single paragraph which
H     reads: Considering the contentions put-forth by the counsel for
       MAHIPAL v. RAJESH KUMAR @ POLIA & ANR.                         533


the petitioner and taking into account the facts and circumstances    A
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.” Merely recording “having perused the record” and
“on the facts and circumstances of the case” does not sub-serve
the purpose of a reasoned judicial order. Questions of the grant
                                                                      B
of bail concern both liberty of individuals undergoing criminal
prosecution as well as the interests of the criminal justice system
in ensuring that those who commit crimes are not afforded the
opportunity to obstruct justice. Judges are duty bound to explain
the basis on which they have arrived at a conclusion. Where an
order refusing or granting bail does not furnish the reasons that     C
inform the decision, there is a presumption of the non-application
of mind which may require the intervention of this Court. The
perfunctory analysis by the High Court in the instant case cannot
be sustained. [Paras 22-23, 25-26][544-B-E; 545-B-D]
      Ram Govind Upadhyay v. Sudarshan Singh (2002) 3                 D
      SCC 598 : [2002] 2 SCR 526; Prasanta Kumar Sarkar
      v. Ashis Chatterjee (2010) 14 SCC 496 : [2010] 12 SCR
      1165; Ash Mohammad v. Shiv Raj Singh (2012) 9 SCC
      446 : [2012] 7 SCR 584; Ranjit Singh v. State of Madhya
      Pradesh (2013) 16 SCC 797 [2013] 11 SCR 273; Neeru
      Yadav v. State of U.P. (2014) 16 SCC 508 : [2014] 12            E
      SCR 453; Virupakshappa Gouda v. State of Karnataka
      (2017) 5 SCC 406 : [2017] 4 SCR 373; State of Orissa
      v. Mahimananda Mishra (2018) 10 SCC 516; Neeru
      Yadav v. State of Uttar Pradesh (2015) 15 SCC 422;
      Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC             F
      528 – relied on
                      Case Law Reference
[2002] 2 SCR 526              relied on               Para 11
[2010] 12 SCR 1165            relied on               Para 13         G
[2012] 7 SCR 584              relied on               Para 14
[2013] 11 SCR 273             relied on               Para14
[2014] 12 SCR 453             relied on               Para14
                                                                      H
534                SUPREME COURT REPORTS                      [2019] 14 S.C.R.


A     [2017] 4 SCR 373                    relied on               Para 14
      (2018) 10 SCC 516                   relied on               Para 14
      (2015) 15 SCC 422                   relied on               Para 15
      (2004) 7 SCC 528                    relied on               Para 24
B           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1843 of 2019.
            From the Judgment and Order dated 10.05.2019 of the High
      Court of Judicature for Rajasthan, Bench at Jaipur in S.B. Criminal
      Miscellaneous Bail Application No. 5345 of 2019.
C
                                          With
                 Criminal Appeal Nos. 1844, 1845, 1846, 1847 of 2019.
                 Karan Bharihoke, Siddhant Sharma, Advs. for the Appellant.
            Dr. Manish Singhvi, Sr. Adv., Shailja Nanda Mishra, Arpit Parkash,
D     Sandeep Kumar Jha, Sarad Kumar Singhania, Pankaj Singhal,
      Mrs. Rashmi Singhania, Milind Kumar, Advs. for the Respondents.
                 The Judgment of the Court was delivered by
                 DR DHANANJAYA Y CHANDRACHUD, J
E                1. Leave granted.
             2. This batch of appeals arises from a judgment of a learned Single
      Judge of the High Court of Rajasthan at its Jaipur Bench dated 10 May
      2019. Allowing the bail application filed under Section 439 of the Code
      of Criminal Procedure 19731, the High Court enlarged the first respondent
F     on bail subject to certain conditions therein. The original complainant is
      in appeal before this Court.
             3. By similar orders, the learned Single Judge granted bail to the
      other four accused – Anil Kumar, Ajay Kumar, Vikas Kumar and Vijay
      Kumar. The appeals filed by the appellant against those orders have
G     been tagged with the present appeal. Since the facts in all these matters
      and the questions involved are similar, they have been heard together
      and are being disposed of by this common judgment. For the sake of
      convenience, the facts in SLP (Crl.) No. 6339 of 2019 are discussed.

      1
          CrPC
H
           MAHIPAL v. RAJESH KUMAR @ POLIA & ANR.                             535
            [DR. DHANANJAYA Y CHANDRACHUD, J]

        4. A First Information Report2 was lodged by the appellant on 3       A
December 2018 stating that his now deceased nephew – Akhilesh had
visited town on leave for a month for his marriage. It was stated that at
about 7.00 pm on 2 December 2018, the deceased and his friend Aashish
left the matrimonial home to run an errand. At about 7.30 pm, the deceased
and Aashish stopped their bike on the road which caused a quarrel with
                                                                              B
two accused persons – Vijay and Anil, who then hurled abuses at the
deceased. At that time, five to six boys armed with dandas assaulted
the deceased who was rescued by near-by villagers. It was stated that
the deceased left the scene on his motorcycle only to be confronted a
short distance thereafter by the accused – Anil, Ajay, Rajesh (the first
respondent), Vikas and Vijay. It was alleged that the accused used rods       C
to beat the deceased with an intention to kill him. It was alleged that
after beating the deceased, the accused fled from the scene of the
incident. The deceased was rushed to Jhunjhunu R & R Hospital at
Chirawa. However, owing to the serious nature of the injuries, he was
referred to Fortis Hospital at Jaipur where he was declared dead.
                                                                              D
        5. The post-mortem report was recorded on 3 December 2018.
Twenty-seven ante-mortem injuries on the body of the deceased were
noted. The first respondent was arrested on 3 December 2018. The
statements under Section 161 of the CrPC of the appellant and Aashish
were recorded. A charge-sheet was filed against the five accused on 10
March 2019 under Sections 147, 148, 149, 302 and 397 of the Indian            E
Penal Code 1908.3 Cognizance was taken by the Judicial Magistrate,
Pilani on 27 March 2019. As the accused were charged under Section
302, the case was committed to the Additional Sessions Judge, Jhunjhunu
for trial.
       6. The bail application filed by the first respondent before the       F
Additional Sessions Judge was rejected on 10 April, 2019. Thereafter,
the first respondent filed a bail application before the High Court of
Rajasthan, which was allowed. The appellant has filed the present appeal
before this Court assailing the order of the High Court enlarging the first
respondent on bail. Notice was issued by this Court on 12 July 2019.          G
      7. Assailing the judgment of the High Court, the learned counsel
appearing on behalf of the appellant submits:
2
    FIR No. 347/2018
3
    Penal Code
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536               SUPREME COURT REPORTS                       [2019] 14 S.C.R.


A            (i) A prima facie involvement of the accused has emerged upon
      investigation, in a case involving a gruesome murder. There was no reason
      for the High Court to exercise its power to grant bail;
             (ii) The High Court has not passed a reasoned order justifying the
      grant of bail to the accused;
B            (iii) The High Court failed to appreciate the statement of the sole
      injured eye-witness Aashish who was present at the spot of the incident
      that the accused were responsible for the death of the deceased;
             (iv) The post-mortem report observes twenty-seven ante-mortem
      injuries and opines that the injuries causing death were inflicted within
C     six hours of death; and
             (v) The phone of the deceased was recovered from one of the
      accused Anil, while the bike involved in the incident was recovered from
      the first respondent.

D             8. The second respondent – the State of Rajasthan has filed a
      counter-affidavit assailing the order of the High Court on grounds similar
      to those urged by the appellant. It was also stated that another FIR4 had
      been registered against the friends of the accused alleging an intention
      to kill the friend of the deceased – Ashish.
             9. On the other hand, the learned counsel appearing on behalf of
E
      the first respondent contended that:
            (i) On the date of the incident, there was an altercation between
      the deceased and the first respondent, in which the deceased was the
      aggressor. Thereafter, the deceased fell off his bike and suffered injuries
      which caused his eventual death;
F
            (ii) The first respondent has been in custody for five months on
      the basis of a false allegation in the FIR;
             (iii) Even on a reading of the allegations in the FIR and the charge
      sheet, no prime facie case has been made out against the accused
G     justifying the setting aside of bail; and
            (iv) The registration of an FIR against the friends of the accused
      has no bearing on the present case.


      4
          FIR No. 52/2019
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           MAHIPAL v. RAJESH KUMAR @ POLIA & ANR.                               537
            [DR. DHANANJAYA Y CHANDRACHUD, J]

      A common counter affidavit was filed by all the five accused              A
before this Court reaffirming the above contentions.
         10. These rival submissions fall for our consideration.
      11. Essentially, this Court is required to analyse whether there
was a valid exercise of the power conferred by Section 439 of the CrPC
to grant bail. The power to grant bail under Section 439 is of a wide           B
amplitude. But it is well settled that though the grant of bail 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, Justice Umesh Banerjee, speaking for
a two judge Bench of this Court, laid down the factors that must guide          C
the exercise of the power to grant bail in the following terms:
         “3. Grant of bail though being a discretionary order — but, however,
         calls for exercise of such a discretion in a judicious manner and
         not as a matter of course. Order for bail bereft of any cogent
         reason cannot be sustained. Needless to record, however, that          D
         the grant of bail is dependent upon the contextual facts of the
         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.                E

         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:
                                                                                F
                (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 nature
         of evidence in support of the accusations.
                (b) Reasonable apprehensions of the witnesses being
                                                                                G
         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.

5
    (2002) 3 SCC 598
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538               SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A                     (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) Frivolity in prosecution should always be considered
B              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.”
C            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. No straight jacket formula
      exists for courts to assess an application for the grant or rejection of
D     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 whether there is a prima facie or reasonable ground
      to believe that the accused had committed the offence and on a balance
E     of the considerations involved, the continued custody of the accused
      sub-serves the purpose of the criminal justice system. Where bail has
      been granted by a lower court, an appellate court must be slow to interfere
      and ought to be guided by the principles set out for the exercise of the
      power to set aside bail.
F            13. The principles that guide this Court in assessing the correctness
      of an order 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
G     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 of the High Court, Justice DK Jain, speaking for
      a two judge Bench of this Court held:

      6
          (2010) 14 SCC 496
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        MAHIPAL v. RAJESH KUMAR @ POLIA & ANR.                                  539
         [DR. DHANANJAYA Y CHANDRACHUD, J]

      “9. … It is trite that this Court does not, normally, interfere with      A
      an order passed by the High Court granting or rejecting bail to the
      accused. However, it is equally incumbent upon the High Court to
      exercise its discretion judiciously, cautiously and strictly in
      compliance with the basic principles laid down in a plethora of
      decisions of this Court on the point. It is well settled that, among
                                                                                B
      other circumstances, the factors to be borne in mind while
      considering an application for bail are:
      (i) whether there is any prima facie or reasonable ground to believe
      that the accused had committed the offence;
      (ii) nature and gravity of the accusation;                                C
      (iii) severity of the punishment in the event of conviction;
      (iv) danger of the accused absconding or fleeing, if released on
      bail;
      (v) character, behaviour, means, position and standing of the             D
      accused;
      (vi) likelihood of the offence being repeated;
      (vii) reasonable apprehension of the witnesses being influenced;
      and
      (viii) danger, of course, of justice being thwarted by grant of bail.     E

      …
      12. It is manifest that if the High Court does not advert to these
      relevant considerations and mechanically grants bail, the said order
      would suffer from the vice of non-application of mind, rendering          F
      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 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          G
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 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
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540             SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A     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 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
B
      court must balance numerous factors that guide the exercise of the
      discretionary power to grant 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
C     examine in detail the evidence on record to come to a conclusive finding.
            The decision of this Court in Prasanta has been consistently
      followed by this Court in Ash Mohammad v Shiv Raj Singh,7Ranjit
      Singh v State of Madhya Pradesh8, Neeru Yadav v State of U.P.9,
      Virupakshappa Gouda v State of Karnataka10,and State of Orissa v
D     Mahimananda Mishra11.
             15. 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
E     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 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 Uttar Pradesh,12 the
F     accused was granted bail by the High Court. In an appeal against the
      order of the High Court, a two judge Bench of this Court surveyed the
      precedent on the principles that guide the grant of bail. Justice Dipak
      Misra (as the learned Chief Justice then was) held:

G     7
        (2012) 9 SCC 446
      8
        (2013) 16 SCC 797
      9
        (2014) 16 SCC 508
      10
         (2017) 5 SCC 406
      11
         (2018) 10 SCC 516
      12
         (2015) 15 SCC 422

H
        MAHIPAL v. RAJESH KUMAR @ POLIA & ANR.                                   541
         [DR. DHANANJAYA Y CHANDRACHUD, J]

       “…It is well settled in law that cancellation of bail after it is         A
      granted because the accused has misconducted himself or of some
      supervening circumstances warranting such cancellation have
      occurred is in a different compartment altogether than an order
      granting bail which is unjustified, illegal and perverse. If in a case,
      the relevant factors which should have been taken into consideration
                                                                                 B
      while dealing with the application for bail and have not been taken
      note of bail or it is founded on irrelevant considerations, indisputably
      the superior court can set aside the order of such a grant of bail.
      Such a case belongs to a different category and is in a separate
      realm. While dealing with a case of second nature, the Court
      does not dwell upon the violation of conditions by the accused or          C
      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…”
       16. Where a court considering an application for bail fails to
consider relevant factors, an appellate court may justifiably set aside the      D
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 prima facie or reasonable ground to believe that
the accused had committed the crime, also taking into account the                E
seriousness of the crime and the severity of the punishment. The order
of the High Court in the present case, in so far as it is relevant reads:
      “2. Counsel for the petitioner submits that the petitioner has been
      falsely implicated in this matter. Counsel further submits that, the
      deceased was driving his motorcycle, which got slipped on a sharp          F
      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.
      3. Learned Public Prosecutor and counsel for the complainant               G
      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 of
      the case and without expressing opinion on the merits of the case,
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542            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


A           this court deems it just and proper to enlarge the petitioner on
            bail.”
             17. In assessing the rival submissions, it is necessary to advert to
      the findings of the post-mortem report dated 3 December 2018.
            On the basis of the injuries, the post-mortem report concluded:
B
            “All above mentioned injuries are ante mortem in nature. Duration
            within about 6 hrs prior to death.
            We the members of medical board are of the opinion that cause
            of death is COMA brought about as a result of ante mortem head
C           injuries mentioned in this PMR, sufficient to cause death in ordinary
            course of nature. However final opinion will be given after
            receiving FSL reports of above sent samples.”
             A total of twenty-seven ante-mortem injuries were recorded of
      which seven were found to be inflicted on the head. This led the members
D     of the medical board to conclude that the cause of death was coma
      brought about by the result of the head injuries. The learned counsel for
      the first respondent contended that the deceased fell from the bike and
      sustained injuries which led to his death. However, it is not for the court
      to assess in detail the evidence on record to come to a conclusive finding
      on a chain of causation. A court assessing a plea of bail is required to
E     find a prima facie view of the possibility of the commission of the crime
      by the accused and not conclude that the alleged crime was in fact
      committed by the accused beyond reasonable doubt.
             18. The statement of Aashish Kumar who was allegedly present
      with the deceased at the time of the incident was recorded under Section
F     161. The statement details the alleged incident and names all five accused,
      attributing to them the common intention to kill the deceased. It was
      stated that the accused thereafter drove away with the bike of the
      deceased.
            19. The following extract from the charge-sheet dated 10 March
G     2019 is relevant:
            “…Thereafter, in compliance to the Order No. Complaint/2018/
            4899-4900 dated 28.12.18 of the Hon’ble Superintendent of Police
            of the District, further investigations of the case were started by
            the Circle Officer, Smt. Mamta Saraswat, R.P.S. Circle, Jhunjhunu
H           City. During investigation proceedings, Circle Officer Smt. Mamta
        MAHIPAL v. RAJESH KUMAR @ POLIA & ANR.                              543
         [DR. DHANANJAYA Y CHANDRACHUD, J]

      Saraswat, R.P.S. Circle Jhunjhuna City conducted investigations       A
      of all the accused persons arrested in the present case namely
      Vijay Kumar, Ajay Kumar alias Sheodan, Vikas Kumar, Anil
      Kumar alias Bhirriya and Rajesh Kumat alias Pauliya. Mobile of
      deceased was recovered from accused Anil Kumar alias
      Bhirriya according to his disclosure memo under Section
                                                                            B
      277 of the Evidence Act. Seizure memo of mobile was
      concluded and attached at the case file. Motorcycle used
      in the incident, according to the disclosure memo, was
      recovered from accused Rajesh Kumar alias Pauliya.
      …
                                                                            C
      Thereafter, friends of Anil Kumar namely Ajay Kumar, Rajesh
      and Vikas, all the three came at the place of occurrence Garakhera
      Tiraha and immediately on coming there, they started giving
      beatings to deceased Akhilesh and Monu with lathies and thereafter,
      Anil Kumar and Vijay Kumar also started giving beatings to
      deceased Akhilesh and Monu.                                           D

      …
      …however, it has been mentioned that seven injuries have been
      caused at the head of the deceased. This makes clear that the
      accused persons caused many serious injuries on the head of the       E
      deceased at the place of occurrence Mark A at the time of
      occurrence on the head of the deceased, due to which, deceased
      after running from there went in Coma and collided with the Tank,
      due to which, Akhilesh has died due to the injuries sustained by
      him.”
                                                                            F
                                                    (Emphasis supplied)
       20. Without expressing any finding or opinion on the merits of the
case, a case has been made out for setting aside the bail granted by the
High Court. The High Court has manifestly erred in not taking note of
the material which has been adverted to above. The order passed by the
                                                                            G
High Court fails to notice material facts and shows a non-application of
mind to the seriousness of the crime and the circumstances referred to
earlier which ought to have been taken into consideration.
       21. The High Court has erred in not considering material relevant
to the determination of whether the accused were to be enlarged on
                                                                            H
544                SUPREME COURT REPORTS                         [2019] 14 S.C.R.


A     bail. The order of the High Court enlarging the accused on bail is erroneous
      and liable to be set aside.
             22. 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 order granting or rejecting bail to record the reasons which have
B     weighed with the court for the exercise of its discretionary power. In the
      present case, the assessment by the High Court is essentially contained
      in a single paragraph which reads:
                “4. Considering the contentions put-forth by the counsel for the
                petitioner and taking into account the facts and circumstances of
C               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.”
             23. Merely recording “having perused the record” and “on the
      facts and circumstances of the case” does not sub-serve the purpose of
D     a reasoned judicial order. It is a fundamental premise of open justice, to
      which our judicial system is committed, that factors which have weighed
      in the mind of the judge in the rejection or the grant of bail are recorded
      in the order passed. Open justice is premised on the notion that justice
      should not only be done, but should manifestly and undoubtedly be seen
      to be done. The duty of judges to give reasoned decisions lies at the
E     heart of this commitment. Questions of the grant of bail concern both
      liberty of individuals undergoing criminal prosecution as well as the
      interests of the criminal justice system in ensuring that those who commit
      crimes are not afforded the opportunity to obstruct justice. Judges are
      duty bound to explain the basis on which they have arrived at a conclusion.
F           24. In Kalyan Chandra Sarkar v Rajesh Ranjan13, a two judge
      Bench of this Court was required to assess the correctness of a decision
      of a High Court enlarging the accused on bail. Justice Santosh Hegde,
      speaking for the Court, discussed the law on the grant of bail in non-
      bailable offences and held:
G               “11. The law in regard to grant or refusal of bail is very well
                settled. The court granting bail should exercise its discretion in a
                judicious manner and not as a matter of course. Though at the
                stage of granting bail a detailed examination of evidence and
                elaborate documentation of the merit of the case need not be
      13
H          (2004) 7 SCC 528
         MAHIPAL v. RAJESH KUMAR @ POLIA & ANR.                               545
          [DR. DHANANJAYA Y CHANDRACHUD, J]

       undertaken, there is a need to indicate in such orders reasons         A
       for prima facie concluding why bail was being granted
       particularly where the accused is charged of having
       committed a serious offence. Any order devoid of such
       reasons would suffer from non-application of mind.”
                                                    (Emphasis supplied)       B
      25. Where an order refusing or granting bail does not furnish the
reasons that inform the decision, there is a presumption of the non-
application of mind which may require the intervention of this Court.
Where an earlier application for bail has been rejected, there is a higher
burden on the appellate court to furnish specific reasons as to why bail      C
should be granted.
      26. The perfunctory analysis by the High Court in the present
case cannot be sustained. For the reasons indicated above, the appeal is
allowed and the order of the High Court enlarging the first respondent
on bail is set aside.                                                         D
     27. The connected appeals also are allowed in terms of the
judgment recorded above.
      28. Since the accused have been released on bail during the
pendency of these proceedings, we order that the bail bonds shall stand
cancelled and the five accused shall be taken into custody forthwith. A       E
copy of this judgment shall be forwarded to the Additional Sessions Judge,
Chirawa District, Jhunjhunu and the police station concerned to secure
compliance.
      29. We clarify that the present judgment shall not be construed as
the expression of any opinion on the merits of the case at the trial.         F

Devika Gujral                                              Appeals allowed.




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