How To Exercise The Discretionary Power For Granting Bail? Principles Summarized By Supreme Court

The Supreme Court observed that seriousness of crime is an aspect to be considered while granting bail to an accused.

The bench of Justices DY Chandrachud and MR Shah set aside a bail granted by the High Court to a murder accused.

One Harjit Singh had approached the Apex Court against the High Court order granting bail to persons accused of murdering his father.  He contended that the High Court has not at all considered the seriousness of the offence; the specific allegation in the FIR that even while in jail he hatched the conspiracy along with other co-accused and that he was the master mind and the main conspirator.

In its judgment allowing the appeal, the court has referred to earlier judgments on how to exercise the discretionary power for grant of bail and the duty of the appellate court, particularly when bail was refused by the court(s) below and the principles and considerations for granting or refusing the bail. The following are some of the observations made by the court on those judgments.

1. This Court has observed and held that deprivation of freedom by refusal of bail is not for punitive purposes but for the bifocal interests of justice. The nature of the charge is a vital factor and the nature of the evidence is also pertinent. The severity of the punishment to which the accused may be liable if convicted also bears upon the issue. Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. The Court has also to consider the likelihood of the applicant interfering with the witnesses for the prosecution or otherwise polluting the process of justice. It is further observed that it is rational to enquire into the antecedents of the man who is applying for bail to find out whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. [Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240]
2. "It is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardised, for the rational collective does not countenance an anti-social or anti-collective act." [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446]
3. It is observed and held by this Court that while granting of bail, the following factors among other circumstances are required to be considered by the Court: 1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and 3. Prima facie satisfaction of the court in support of the charge. It is further observed that any order dehors such reasons suffers from non-application of mind. [State of Maharashtra v. Sitaram Popat Vetal, (2004) 7 SCC 521]
4. This Court specifically observed and held that normally this Court does not interfere with an order passed by 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 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. [Mahipal v. Rajesh Kumar (2020) 2 SCC 118 ]
   

5. The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on 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 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 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 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) 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 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." [Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (koli) 2021 (6) SCALE 41]

Taking note of these principles, and the factual aspects of this case, the bench observed that the relevant considerations are not at all considered by the High Court in its true perspective. The antecedents of accused; the threat perception to the appellant and his family members are also not considered by the High Court, the court observed. 

"We are of the opinion that the High Court has erred in granting bail to respondent no.1 herein without taking into consideration the overall facts, otherwise having a bearing on exercise of its discretion on the issue. The order passed by the High Court fails to notice material facts and shows nonapplication of mind to the seriousness of the crime and circumstances, which ought to have been taken into consideration.", the court said while setting aside the bail granted to the accused.

Case: Harjit Singh vs. Inderpreet Singh @ Inder ; CrA 883 OF 2021
Citation: LL 2021 SC 401
Coram: Justices DY Chandrachud and MR Shah
Counsel: Adv Ish Puneet Singh for appellant , Adv Jaspreet Gogia for state,  Adv Sant Pal Singh Sidhu for respondent

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