The Leaflet

| @theleaflet_in | December 7,2019

[dropcap]T[/dropcap]HE Supreme Court of India, in a sharply worded judgment, has set aside an order of the Rajasthan High Court granting bail to a murder accused on the grounds that it displayed non-application of mind by failing to furnish the reasons that informed the decision.

Pointing out that the court did not ordinarily interfere with an order of a high court granting bail, a two-judge bench of Justices D Y Chandrachud and Hrishikesh Roy said where, however, the discretion of the high court to grant bail had been exercised “without due application of mind”, then such an order was liable to be set aside.

Merely recording “having perused the record” and “on the facts and circumstances of the case” did not sub-serve the purpose of a reasoned judicial order, the judges said in their judgment delivered on December 5, 2019.

 

Judges must record factors that weighed on their mind when granting bail

 

“It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed on the mind of the judge in the rejection or the grant of bail are recorded in the order passed”, they said.

“…Questions of the grant of bail concern both liberty of individuals undergoing a 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”, the court said.

Noting that while considering an application for grant of bail, the court had to examine factors such as the gravity of the offence and its punishment and the existence of prima facie case and evidentiary records, the apex court said: “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 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.”

While it was not relevant for the court at the stage of deciding a bail application to examine in detail the evidence on record to come to conclusive finding, it must assess whether there existed a prima facie case against the accused.

 

Distinction between the correctness of order and prayer for cancellation

 

Making a distinction between assessing the “correctness of an order granting bail” and “prayer for cancellation” of the same, the court said the two stood on a different footing.

“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 the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted,” the court said.

The judgment was delivered by Justice Chandrachud on behalf of the bench.

 

Read the judgement here:

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