While according the top priority to transparency, probity and logic, the Apex Court in a learned, laudable, landmark and latest judgment titled Brijmani Devi vs Pappu Kumar & Anr. in Criminal Appeal No. of 2021 (Arising out of SLP (Crl.) No. 6335 of 2021) with Criminal Appeal No. of 2021 (Arising out of SLP (Crl.) No. 7916 of 2021) delivered as recently as on December 17, 2021 held that if an order granting bail was bereft of relevant reasons then the same would entitle the prosecution or the informant to assail it before a higher forum. In the fitness of things, the Apex Court also clarified that though elaborate reasons are not required to be assigned while granting bail, a cryptic order devoid of any reasoning is a blatant violation of the principles of natural justice. We thus see here that a Bench of Apex Court comprising of Justice L Nageswara Rao, Justice BR Gavai and Justice BV Nagarathna set aside an order of Patna High Court granting bail to an accused, for being cryptic and devoid of relevant reasons.
To start with, this cogent, commendable, convincing and composed judgment authored by Justice BV Nagarathna for a Bench of Apex Court comprising of Justice L Nageswara Rao, Justice BR Gavai and herself sets the ball rolling by first and foremost putting forth in para 2 that, “These appeals have been preferred by the informant appellant assailing the orders dated 22.07.2021 and 13.09.2021 passed by the High Court of Judicature at Patna in Criminal Miscellaneous Nos. 11683 of 2021 and 26463 of 2021 respectively whereby bail has been granted to the accused who is the common respondent in the appeals, in connection with Naubatpur P.S. Case No. 93 of 2020 and Parsa Bazar P.S. Case No. 316 of 2017 respectively.”
To put things in perspective, the Bench then observes in para 3 that, “The facts in a nutshell are that the appellant is the mother of the deceased Rupesh Kumar. She is stated to be an eyewitness to the killing of her son and also the person who lodged the First Information Report being FIR No. 93 of 2020 for offence of murder of her son under Section 302 read with Section 34 of the Indian Penal Code (for short, the ‘IPC’) and Section 27 of the Arms Act against common respondent-accused herein viz., Pappu Kumar and one person named Deepak Kumar.”
Be it noted, the Bench then hastens to add in para 22 that, “On the aspect of the duty to accord reasons for a decision arrived at by a court, or for that matter, even a quasi-judicial authority, it would be useful to refer to a judgment of this Court in Kranti Associates Private Limited & Anr. Vs Masood Ahmed Khan & Ors. – (2010) 9 SCC 496, wherein after referring to a number of judgments this Court summarized at paragraph 47 the law on the point. The relevant principles for the purpose of this case are extracted as under:
(a) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(b) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(c) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(d) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(e) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of decision-making justifying the principle that reason is the soul of justice.
(f) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants’ faith in the justice delivery system.
(g) Insistence on reason is a requirement for both judicial accountability and transparency.
(h) If a judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(i) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process.
(j) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731 37]
(k) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.”
For clarity’s sake, the Bench then states in para 23 that, “Though the aforesaid judgment was rendered in the context of a dismissal of a revision petition by a cryptic order by the National Consumer Disputes Redressal Commission, reliance could be placed on the said judgment on the need to give reasons while deciding a matter.”
Quite elegantly, the Bench then said in para 24 that, “The Latin maxim “cessante ratione legis cessat ipsa lex” meaning “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”, is also apposite.”
Quite forthrightly, the Bench then aptly stated in para 25 that, “While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence/s alleged against an accused.”
It is worth noting that the Bench then enunciates in para 26 that, “We have extracted the relevant portions of the impugned orders above. At the outset, we observe that the extracted portions are the only portions forming part of the “reasoning” of the High Court while granting bail. As noted from the afore-cited judgments, it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage and the allegations of the offences by the accused would not have been crystallised as such. There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order or an application for grant of bail. At the same time, a balance would have to be struck between the nature of the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.”
Of course, the Bench then clearly states in para 27 that, “Ultimately, the Court considering an application for bail has to exercise discretion in a judicious manner and in accordance with the settled principles of law having regard to the crime alleged to be committed by the accused on the one hand and ensuring purity of the trial of the case on the other.”
For sake of clarity, the Bench then mentions in para 28 that, “Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”
Most significantly, the Bench then illustrates in para 29 holding that, “In view of the aforesaid discussion, we shall now consider the facts of the present case. The allegations against respondent-accused as well as the contentions raised at the Bar have been narrated in detail above. On a consideration of the same, the following aspects of the case would emerge:
a) Allegations against the respondent-accused are under Sections 341, 307 read with Section 34 of the IPC and Section 27 of the Arms Act in respect of FIR No. 316 of 2017 lodged at Police Station Parsa Bazar which is with regard to attempt to murder Rupesh kumar the injured, who had himself given the Ferdbayan against the respondent-accused herein. The other case, namely, FIR No. 93 of 2020 is with regard to the offence of murder of appellant’s son Rupesh Kumar under Section 302 read with Section 34 of the IPC and Section 27 of the Arms Act against respondent-accused herein and accused no. 2 Deepak Kumar. Thus, offences alleged against respondent-accused herein are serious offences vis-à-vis the very same Rupesh Kumar at two points of time, namely, in 2017 when attempt to murder him is alleged and in 2020 allegation of murder has been cast by the appellant, mother of the deceased who is stated to be an eyewitness. Thus, the allegations against the respondent accused vis-à-vis the same person, namely, the informant Rupesh Kumar in both the cases.
b) According to the respondent-accused, there has been a history of enmity between the accused and the deceased.
c) The accusation against the respondent-accused is that he shot Rupesh Kumar with a fire arm, namely, a pistol on two occasions.
d) The respondent-accused herein has been named in about eight cases and though he may have been acquitted in a few of them, there are still cases pending against him. Thus, it is inferred that respondent-accused has criminal antecedents.
e) It has also come on record that the respondent accused had absconded for a period of seven months after the complaint in respect of the second offence was lodged against him. Therefore, his arrest was delayed.
f) It is also the case of the appellant that the respondent-accused had threatened the informant mother of the deceased.
g) Thus, there is a likelihood of the respondent-accused absconding or threatening the witnesses if on bail which would have a vital bearing on the trial of the cases.
h) Also, for securing the respondent-accused herein for the purpose of commencement of the trial in right earnest in both the cases, as the accused had earlier absconded, discretion could not have been exercised in favour of the respondent-accused in the instant case.
i) In the impugned order dated 13.09.2021, the High Court has noted that there was a previous enmity between the deceased and the petitioner with regard to contesting an Election as Mukhiya of Chhotki Tangraila Gram Panchayat but this fact has not been taken into consideration in the context of the allegation against the accused and with regard to grant of bail.”
As a corollary, the Bench then holds in para 30 that, “Having considered the aforesaid facts of the present case in juxtaposition with the judgments referred to above, we do not think that these cases are fit cases for grant of bail to respondent-accused in respect of the two serious accusations against him vis-à-vis the very same person namely deceased Rupesh Kumar.”
While pooh-poohing the High Court’s findings, the Bench then minces no words to hold in para 31 that, “The High Court has lost sight of the aforesaid vital aspects of the case and in very cryptic orders has granted bail to the respondent-accused. For the aforesaid reasons, we find that the High Court was not right in allowing the applications for bail filed by the respondent-accused. Hence, the impugned orders passed by the High Courts are set aside. The appeals are allowed.”
Finally, the Bench then concludes by holding in para 32 that, “The respondent-accused is on bail. His bail bonds stand cancelled and he is directed to surrender before the concerned jail authorities within a period of two weeks from today.”
In a nutshell, the Apex Court has thus minced just no words to hold in simple, straightforward and suave language that if bail order lacks reasons, prosecution or informant can challenge it before higher forum! The Apex Court has also made it clear that it is not imperative that the Courts assign elaborate reasons for granting bail but it made it abundantly clear that a cryptic order devoid of any reasoning is a blatant violation of principles of justice. Therefore, it merits no reiteration that all the Courts must adhere to what the three Judge Bench of the Apex Court has laid down so elegantly, eloquently and effectively in this leading case!
Sanjeev Sirohi