Summary
The father of a man shot dead in daylight outside a bank in an alleged contract killing challenged High Court orders granting regular bail to two accused, both previously convicted under Section 302 IPC. The Supreme Court set the orders aside: an order granting bail must reflect judicial application of mind to the recognised parameters, and the High Court had ignored the daylight murder seen by three eyewitnesses, the arrest of two accused at the spot, the motive, the respondents' criminal record and their alleged involvement while on bail in an earlier murder case, while an injured eyewitness was yet to depose. A challenge to the legality of a bail order is distinct from cancellation for supervening circumstances.
Issues
- What parameters a court must consider while granting bail, and whether the High Court's order reflected judicial application of mind to them.
- Whether an appellate court setting aside an order granting bail as illegal or perverse must find supervening circumstances or misuse of liberty, as required for cancellation of bail.
Provisions considered
- Sections 438 and 439, Code of Criminal Procedure, 1973The discretion to grant bail must be exercised with judicial application of mind to factors such as the nature and gravity of the accusation, severity of punishment, the accused's position and ability to influence witnesses, likelihood of absconding or tampering, possibility of repetition, and prima facie satisfaction on the charge; no straitjacket formula exists. (¶¶ 10, 11)
- Sections 147, 148, 149, 302, 307 and 120-B read with Section 34, Indian Penal Code, 1860Offences charged along with Sections 3 and 4 of the Explosive Substances Act in a daylight murder by grenade attack and firing alleged to be a contract killing. (¶¶ 2, 3, 4)
- Article 21, Constitution of IndiaWhile protecting the liberty of the accused the court must equally protect the interest of the prosecution and ensure that the concession of bail is not misused to the prejudice of the victim. (¶ 13)
Held
- While a court granting bail need not give detailed reasons on the merits, its order must reflect judicial application of mind to the well-known parameters, including the nature and gravity of the accusation, severity of punishment, the accused's capacity to influence victims and witnesses, likelihood of absconding, tampering or repeating the offence, and the court's prima facie satisfaction on the charge. (¶ 10)
- The High Court failed to consider that the murder took place in broad daylight before three eyewitnesses, two accused were caught at the spot, it was apparently a contract killing with proven motive, both respondents had earlier been found guilty under Section 302 IPC and were prima facie involved in this case while on bail, which is a clear misuse of that concession, and the High Court had days earlier refused bail to a co-accused on the same material; moreover an injured eyewitness was yet to depose, and it is ordinarily expedient to consider bail after the vital witnesses have been recorded. (¶¶ 11, 12, 13, 18)
- Cancellation of bail is not limited to supervening circumstances; a plea challenging the legality of a bail order for improper or arbitrary exercise of discretion is distinct from a plea for cancellation on the ground of misuse, and the court before which the grant of bail is challenged may critically analyse the soundness of the order, as held in Puran v. Rambilas and Ash Mohammad. (¶¶ 14, 15, 16, 17)
Result
Appeals allowed; High Court orders dated 23.09.2021 granting regular bail to the two respondents set aside and the respondents directed to surrender forthwith, with liberty to apply for bail after examination of the eyewitnesses and other material witnesses, to be considered on merits; trial court directed to endeavour to conclude the trial within one year; pending applications disposed of.