It has to be stated before stating anything else that it is a fundamental legal principle which postulates very rightly that seriousness of charges is definitely considered to be one of the relevant considerations while considering bail applications. How can seriousness of charges be ever ignored or taken lightly ever while considering bail applications? This is exactly what the Supreme Court also has just recently on March 19, 2021 in a laudable, learned, landmark and latest judgment titled State of Kerala vs Mahesh in Criminal Appeal No. 343 of 2021 (Arising out of SLP (Crl.) No. 1530 of 2021) and Interlocutory Application Nos. 24659 and 41412 of 2021 held very rightly while setting aside the Kerala High Court order of granting bail to a man accused of murder of a lady doctor.
To start with, Justice Indira Banerjee who has authored this leading judgment for herself and Justice Krishna Murari sets the ball rolling by first and foremost very rightly saying about the appeal in para 2 after granting leave in para 1 that, “This Appeal filed by the State of Kerala is against an order dated 21st December 2020 passed by the High Court of Kerala granting bail to the Respondent, accused of a heinous and shocking murder of a lady doctor aged about 30 years.”
While dwelling on the prosecution case, para 3 then states that, “It is the case of the Prosecution that on 28th September 2020 at about 3.30 p.m., the Respondent Accused stabbed the victim, with a knife, inside a multispeciality dental clinic, run by the victim at Kuttanellur. The victim succumbed to her injuries at Jubilee Mission Hospital on 4th October, 2020.”
While unravelling more, it is then posited in para 4 that, “As per the case of the Prosecution, the victim met the Respondent Accused after her divorce from her erstwhile husband. The victim and the Respondent Accused became close and started living together from 2018 onwards. The victim became pregnant, but the Respondent Accused forced her to undergo an abortion, by threatening her.”
Delving deeper, it is then stated in para 5 that, “The deceased victim had, as per the case of the Prosecution, started the Multispeciality Dental Clinic, with financial support from her father. The Respondent Accused misappropriated money from the clinic and also harassed the victim, both physically and mentally. In the circumstances, the victim was constrained to separate from Respondent Accused and start living at her own house. As the Respondent Accused continued to threaten the victim, the victim had, along with her father, filed a complaint with the City Police Commissioner, Thrissur on 26th September, 2020.”
While continuing further, the Bench then says in para 6 that, “The victim was called to the Ollur Police Station for a settlement and thereafter to her dental clinic on 28th September 2020 at 3.30. p.m. The Respondent Accused stabbed the victim with a knife on the right side of the stomach, in the presence of her father, at the dental clinic.”
To put things in perspective, it is then stated by the Bench in para 7 that, “An FIR was lodged at the Ollur Police Station, Thrissur on 28th September 2020, under Sections 341, 324 and 307 of the Indian Penal code (IPC), pursuant to which Crime No. 1777/2020 of Ollur Police Station was started. However, after the death of the victim, Section 302 was added and an Inclusion Report to that effect was filed in the Jurisdictional Court. The crime as stated above has been registered under Sections 341, 324, 201, 212, 307 and 302 of the IPC. The Respondent Accused was arrested on 6th October, 2020.”
While dwelling on the bail application filed in the Sessions Court, it is then envisaged in para 8 that, “A Bail application filed by the Respondent Accused in the Sessions Court was dismissed by an order dated 9th December, 2020 with the following findings:-
“12. In view of the settled position as laid down by the Apex court, while considering an application for bail, the court has to exercise the discretion in a judicious manner with care and caution, though at this stage elaborate examination of evidence and detailed reasoning touching the merit of the case is not required. But there is need to indicate in the order the reasons for the prima facie conclusion why bail is not granted. Prime facie satisfaction of the court in support of the charge alone is sufficient for the court to arrive at a conclusion as to whether the petitioner is entitled to get an order of bail. From the materials on record as revealed from the case diary, it could be seen that the petitioner had reached the clinic with a knife and after the culmination of the discussion, he had attacked the deceased and inflicted very serious stab injury and caused damages to her internal vital organs. After committing the crime, the petitioner had absconded and he could be apprehended only on 06.10.2020 on receiving secret information by the investigation agency regarding the arrival of the petitioner at Poonkunnam. After committing the crime, the petitioner had abandoned his car and got himself absconded and kept himself away from the vicinity of the police with the aid of his brother, worker and a friend. There is merit in the objection raised by the police regarding the possibility of the petitioner absconding from appearing before court.
13. The next objection raised by the prosecution is that since the deceased is a resident of Ernakulam and all prosecution witnesses are hailing from Thrissur, there is likelihood of the petitioner causing influence on the prosecution witnesses. This is a valid ground to decline the release. The brutality of the crime committed by the petitioner in causing multiple stab injuries on the abdomen of the victim also has to be taken into account. The investigation agency could collect sufficient evidence to incriminate the petitioner in the crime. On consideration of the entire facts and circumstances, it is found that there are reasonable grounds to arrive at a conclusion that granting of bail to the petitioner would adversely affect the prosecution from adducing evidence in support of the charge and hence the petitioner is found not entitled to get an order of release.””
While proceeding ahead, the Bench then goes on to state in para 9 that, “On 14th December 2020, the Respondent Accused filed the bail application being B.A. No.8821 of 2020 in the High Court under Section 439 of the Cr.P.C. The prayer for bail was strongly opposed by the Public Prosecutor who argued that, if released, the Respondent Accused would influence witnesses many of whom were his close relatives, friends and acquaintances.”
While stating the further developments in the High Court of Kerala, the Bench then points out in para 10 that, “The High Court has however, granted bail to the Respondent Accused, by the order impugned in this appeal, notwithstanding the opposition of the Public Prosecutor, overlooking the materials on record, which prima facie indicate that the Respondent had committed cold blooded murder of a young lady doctor, as a fall out of a soured relationship. The relevant part of the impugned order set out hereinbelow:-
“7. After hearing both sides, I think this Bail Application can be allowed on stringent conditions. It is true that the allegations against the petitioner are very serious and the incident now put forward by the prosecution is so heinous. But the petitioner is in custody from 6.10.2020 onwards. The Public Prosecutor also submitted that the second and third accused were not arrested. But it is a matter to be considered that the petitioner is in custody from 6.10.2020 onwards. Indefinite incarceration of the petitioner may not be necessary in the facts and circumstances of this case. But the apprehension of the prosecution is also to be taken care of. In such circumstances, there can be a direction to the petitioner not to enter the jurisdictional limit of Ollur Police Station till the investigation in this case is over.”
It deserves mentioning here that it is then stated in para 11 that, “As stated above, the Incident took place in the presence of the victim’s father, who is an eye witness to the incident. The unfortunate father has filed an application for intervention being Interlocutory Application No. 41412 of 2021, and has supported the appeal against the order impugned.”
While elaborating more, it is then added in para 12 that, “In the said application, being I.A No.41412 of 2021 for intervention, the unfortunate father has contended that the Respondent Accused came to the dental clinic with a knife, which clearly showed that he had a preplanned plot to kill the victim. The manner in which the Respondent Accused stabbed the victim on her stomach, and inflicted injuries on her, which is corroborated by the post-mortem report, clearly shows intention to cause death. He has also stated that according to the Doctors it was medical miracle that the victim survived four to five days, even though she was in complete coma all through.”
While citing a relevant case law, it is then mentioned in para 16 that, “It is well settled that though the power to grant bail under Section 439 of the Cr.P.C is discretionary, such discretion has to be exercised judiciously, as held by this Court in Ram Govind Upadhyay v. Sudarshan Singh and Ors. reported in (2002) 3 SCC 598. Speaking for the Court, Umesh Chandra Banerjee, J. said:-
“3. Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
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.””
While mentioning yet another relevant case law, the Bench then adds in para 17 stating that, “In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr. reported in (2010) 14 SCC 496, D.K. Jain, J., speaking for a two-Judge Bench of this Court laid down the principles for examining the correctness of orders granting bail to an accused. This Court held:-
“9. …It is trite that this Court does not, normally, interfere with an order [Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11-1-2010 (Cal)] passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, 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.
***
10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal.””
While mentioning of a still another relevant and latest case law, it is then enunciated in para 18 that, “In Mahipal v. Rajesh Kumar and Anr. reported in (2020) 2 SCC 118, this Court held:-
“14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.””
Briefly stated, the gist of para 20 is herein stated thus: “In Sanjay Chandra (supra), the accused were charged with economic offences of huge magnitude which could jeopardize the economy of the country. This Court held in para 24 that, “In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather “recalibrating the scales of justice”.”
What also cannot go unnoticed is then stated in para 21 that, “In Siddharam Satlingappa Mhetra (supra) rendered in the context of the discretion to grant anticipatory bail under Section 438, this Court advocated the need to balance individual personal liberty with societal interest. This Court held:-
“84. Just as liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important.””
Be it noted, it is then very aptly stated in para 22 that, “There is no straight jacket formula for grant or refusal of bail. Seriousness of the charge is undoubtedly one of the relevant considerations while considering bail applications as held in Sanjay Chandra (supra) cited on behalf of the Respondent Accused. All the relevant factors have to be weighed by the Court considering an application for bail, including the gravity of the offence, the evidence and material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant accused absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered with, and danger to the safety of the victim (if alive), the complainant, their relatives, friends or other witnesses.”
What’s more, it is then stated in para 24 that, “In Jagdish and Ors. v. Harendrajit Singh reported in (1985) 4 SCC 508, cited on behalf of the Respondent Accused, this Court held that, this Court does not ordinarily, in exercise of its discretion under Article 136, entertain petition for Special Leave to Appeal against orders granting or refusing or cancelling bail or anticipatory bail. There can be no dispute with the proposition. This Court does not ordinarily interfere with an order granting or refusing bail in exercise of its power under Article 136 of the Constitution. However, the practice of not interfering with orders granting and/or refusing bail is not unexceptionable. An order granting or refusing bail without application of mind and in disregard of relevant factors, cannot be allowed to stand.”
Without mincing any words, the Bench then while pointing to the shortcomings and inadequacies in Kerala High Court’s judgment stated in para 33 that, “In this case, the impugned order of the High Court is flawed, in that the High Court noted the seriousness of the offence alleged, observed that the incident was heinous, but proceeded to grant bail to the Respondent Accused on the purported ground that he had been in custody since 6th October 2020 (that is, about 75 days) without even considering the materials on record which prima facie made out reasonable grounds to believe that the Respondent Accused had committed the heinous offence. At that stage, even the chargesheet had not been filed. The High Court did not apply its mind to the severity of the punishment in the event of conviction, or the fact that the accused had been absconding after the incident.”
Adding more to it, it is then pointed out in para 34 that, “As argued on behalf of the Appellant, supported by the applicant for intervention, being the hapless parent of the victim, the High Court has neither considered nor discussed the elaborate reasons given by the Sessions Court in its order rejecting the prayer of the Respondent Accused for bail. The impugned order of the High Court does not advert to any error in the reasoning of the Sessions Court. Nor is there any discussion of the reason why the High Court took a view different from that taken by the Sessions Court – whether there were any supervening circumstances within 10/12 days of the order of the Sessions Court, which necessitated a different view.”
Even more damningly, it is then rightly pointed out in para 35 that, “The High Court, in our opinion, clearly erred in not appreciating that the apprehension of the Prosecution that the Respondent Accused would influence witnesses, could not be put to rest, by directing the Respondent Accused not to enter the jurisdiction of Ollur Police Station. The High Court completely ignored the fact that the deceased victim used to reside at Ernakulam. Her parents and her five years old daughter reside at Ernakulam. In other words, the only eye witness is a resident of Ernakulam. Most of the Prosecution witnesses were from Thrissur. There was no reason to suppose that the witnesses would restrict their movements to the limits of the jurisdiction of Ollur Police Station.”
Not stopping here, it is then also pointed out in para 36 that, “It further appears from the impugned order that, in granting bail to the Respondent Accused, the High Court took note of the fact that two other accused persons had not been arrested. The High Court completely ignored the fact that these two accused persons were not named in the FIR. They were charged after investigation with offence under Section 212, of harbouring the Respondent Accused, punishable with imprisonment for a maximum period of five years, unlike the Respondent Accused, charged with murder under Section 302 of the IPC, which entails minimum punishment of imprisonment for life.”
In the same vein, the Bench then also concedes in para 37 that, “There can be no doubt that the outbreak of the novel COVID-19 pandemic and its spread has been a matter of serious public concern. The virus being highly infectious, precautions to prevent spread of infection to the extent possible are imperative. In Suo Motu Writ Petition (Civil) No.1 of 2020 In Re : Contagion of Covid 19 Virus In Prisons, this Court expressed concern over the possibility of spread of COVID-19 amongst prisoners lodged in overcrowded correctional homes and accordingly issued directions from time to time, directing the authorities concerned to inter alia take steps as directed by this Court, to minimize the risk of spread of COVID amongst the inmates of correctional homes. This Court also directed that a High Powered Committee be constituted by the States and Union Territories to consider release of some prisoners on interim bail or parole during the Pandemic, to prevent overcrowding of prisons.”
Most significantly, the Bench then minces no words to hold in para 38 that, “It appears that the High Court has completely misappreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons. This Court did not direct release of all under-trial prisoners, irrespective of the severity of the offence. After hearing the learned Attorney General of India, Mr. Venugopal, the Amicus Curiae appointed by this Court, Mr. Dushyant Dave and other Learned Counsel, the States and Union Territories were directed to constitute a High Powered Committee to determine which class of prisoners could be released on parole or interim bail for such period as might be thought appropriate. By way of example, this Court directed the States/Union Territories to consider release of prisoners convicted of minor offences with prescribed punishment of seven years or less. The orders of this Court are not to be construed as any direction, or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed and the chargesheet is filed. The Respondent Accused, it is reiterated, is charged with murder in the presence of an eye witness, and the impugned order granting bail was filed even before the chargesheet was filed. The Chargesheet appears to have been filed on 01.01.2021. Moreover the Respondent Accused had been absconding after the incident.”
As a corollary, it is then stated in para 39 that, “For the reasons discussed above the Appeal is allowed and the impugned order of the High Court is set aside. The Respondent Accused shall be taken into custody.”
Going ahead, it is then held in para 40 that, “A copy of this order shall be sent to the concerned Police Station as well as the Jurisdictional Chief Judicial Magistrate for compliance.” Finally, it is then held in last para 41 that, “Pending application(s), if any, shall stand disposed of.”
In sum, this most commendable judgment by a two Judge Bench of the Apex Court comprising of Justice Indira Banerjee and Justice Krishna Murari has very rightly enunciated the correct legal position on bail in serious cases of crime which we have already discussed above in detail. The bail that was wrongly granted by the Kerala High Court in this case was thus cancelled of the man who was accused of murdering a lady doctor. Very rightly so!
Sanjeev Sirohi