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Principles governing grant of bail

Deepak Yadav v. State of U.P.

CRIMINAL APPEAL NO. 861 OF 2022 (Arising out of S.L.P (Crl.) No. 9655 of 2021)

Principles governing grant of bail

19. Section 439 of the Cr.P.C is the guiding principle for adjudicating a Regular Bail Application wherein Court takes into consideration several aspects. The jurisdiction to grant bail has to be exercised cautiously on the basis of wellsettled principles having regard to the facts and circumstances of each case.

20. In Prahlad Singh Bhati Vs. NCT of Delhi And Another [6] , a two-Judge Bench of this Court stated the principles which are to be considered while granting bail which are as follows : –

“8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

21. As reiterated by the two-Judge Bench of this Court in Prasanta Kumar Sarkar Vs. Ashish Chatterjee And Another [7] , it is well-settled that 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;

(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 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.

22. The decision in Prasanta(Supra) has been consistently followed by this Court in Ash Mohammad Vs. Shiv Raj Singh alias Lalla Babu And Another [8] , Ranjit Singh Vs. State of Madhya Pradesh And Others [9] , Neeru Yadav Vs. State of Uttar Pradesh And Another [10] , Virupakshappa Gouda And Another Vs. State of Karnataka And Another [11] , State of Orissa Vs. Mahimananda Mishra [12] .

23. In a recent pronouncement of this Court in the case of ‘Y’ Vs. State of Rajasthan & Anr. [13] authored by one of us (Hon’ble N.V. Ramana, CJI), it has been observed as under :-

“22. The impugned order passed by the High Court is cryptic, and does not suggest any application of mind. There is a recent trend of passing such orders granting or refusing to grant bail, where the Courts make a general observation that “the facts and the circumstances” have been considered. No specific reasons are indicated which precipitated the passing of the order by the Court.

23 . Such a situation continues despite various judgments of this Court wherein this Court has disapproved of such a practice. In the case of Mahipal (Supra), this Court observed as follows:-

25. Merely recording “having perused the record” and “on the facts and circumstances of the case” does 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 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 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.”

(emphasis supplied)

24. For grant or denial of bail, the “nature of crime” has a huge relevancy. The key consideration which govern the grant of bail were elucidated in the judgment of this Court in Ram Govind Upadhyay Vs. Sudarshan Singh [14] , wherein it has been observed as under: –

“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.”

25. Similarly, the parameters to be taken into consideration for grant of bail by the courts has been described in Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav And Another [15] as under : –

“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 undertaken, there is a need to indicate in such orders reasons 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. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) prima facie satisfaction of the court in support of the charge.”

Prahlad Singh Bhati v. NCT of Delhi, (2001) 4 SCC 280
Prasanta Kumar Sarkar v. Ashish Chatterjee, (2010) 14 SCC 496
Ash Mohammad v. Shiv Raj Singh alias Lalla Babu, (2012) 9 SCC 446
Ranjit Singh v. State of Madhya Pradesh, (2013) 16 SCC 797
Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508
Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406
State of Orissa v. Mahimananda Mishra, (2018) 10 SCC 516
‘Y’ v. State of Rajasthan, Criminal Appeal No. 649 of 2022 decided on 19.04.2022
Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2004) 7 SCC 528

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