ON Tuesday, a Supreme Court bench comprising Chief Justice of India N.V. Ramana and Justice Krishna Murari, in Ms. Y versus State of Rajasthan & Ors., set aside the judgment and order of the Rajasthan High Court that granted bail to the respondent-accused (who has been accused of committing rape and sexual assault upon his minor niece) on the grounds that the high court failed to exercise its judicial discretion under Section 439 of the Code of Criminal Procedure [CrPC], appropriately while granting bail to the accused.
The bench in Paragraph 22 of the present judgment observed, “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.”
In the present case, the high court granted regular bail to the accused on September 20, 2021, by stating, “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 any opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail”, in its impugned decision. It did not consider factors like his criminal history, that nearly twenty criminal cases, including of heinous offences, have been pending against him and that he has been convicted in some of these cases. Also, that in the past, he had tried to sexually assault and rape the victim on several occasions.
The Supreme Court remarked that while exercising discretion under section 439 of CrPC, certain common parameters, which the Supreme Court has established in a catena of judgments, should be considered by courts. It relied on its judgment in State of U.P. versus Amarmani Tripathi (2005) and observed, “There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, inter-alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused.”
These factors were also reiterated by this court in Jagjeet Singh & Ors. versus Ashish Mishra @ Monu & Anr. (2022),passed on April 18, in which it made certain observation on the exercise of section 439 and said,” We may, at the outset, clarify that power to grant bail under Section 439 of Cr.P.C., is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court or the Sessions Court must grant bail after the application of a judicial mind, following well established principles, and not in a cryptic or mechanical manner.”
The bench further acknowledged that its interference with the bail order should only be in exceptional circumstances as it concerns the liberty of an individual. It explained this by considering Bihar Legal Support Society versus Chief Justice of India (1986), in which it had held: “…It is for this reason that the Apex Court has evolved, as a matter of self discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petition are filed against orders granting or refusing bail or anticipatory bail…We reiterate this policy principle laid down by the bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter.”
The Supreme Court, in Kalyan Chandra Sarkar versus Rajesh Ranjan @ Pappu Yadav & Ors. (2004), further noted, “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.”
The above two judgments make it clear that the Supreme Court has consistently upheld the necessity of reasoned bail orders with a special emphasis on matters involving serious offences, and the same must be based on the common considerations in exercise of discretion under section 439 of CrPC.
The instant case deals with heinous offences but the high court failed to consider factors like the heinous nature of the crime committed by the accused, his history as a hardened criminal, and the influence it will have on the prosecutrix and her family, while granting bail. In the absence of a reasoned order based on these factors , the same suffers from the vice of arbitrariness, according to the Supreme Court.
Stating that every order must be reasoned is one of the fundamental tenets of our system the Supreme Court set aside bail order. As a result, the accused has been directed to surrender within a week from the receipt of the court’s decision.
Click here to view the Supreme Court’s judgment.