THE STATE OF KERALA versus MAHESH
[2021] 2 S.C.R. 964, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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THE STATE OF KERALA
v.
MAHESH
(Criminal Appeal No. 343 of 2021)
MARCH 19, 2021
[INDIRA BANERJEE AND KRISHNA MURARI, JJ.]
Code of Criminal Procedure, 1973: s.439 – Appeal against
grant of bail – Accused-respondent was accused of a heinous and
shocking murder of a lady doctor aged about 30 years – Incident
alleged to have taken place in the presence of victim’s father – His
bail application was dismissed by Sessions Court – Bail application
moved before High Court was, however, allowed within 10/12 days
of dismissal of bail application by Sessions Court – State filed appeal
against the grant of bail – Held: In the impugned order, High Court
did not advert to any error in the reasoning of Sessions Court –
Nor was there any discussion of the reason why High Court took a
view different from that taken by Sessions Court and whether there
were any supervening circumstances within 10/12 days of the order
of the Sessions Court, which necessitated a different view – High
Court clearly erred in not appreciating the apprehension of
prosecution that the respondent would influence witnesses, could
not be put to rest by directing respondent not to enter the jurisdiction
of Ollur Police Station – High Court completely ignored the fact
that the deceased victim used to reside at Ernakulam – Her parents
and her five years old daughter resided at 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 – High Court also
completely mis-appreciated 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 – The orders of this Court were 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 –
Respondent was charged with murder in the presence of an eye
witness, and impugned order granting bail was filed even before
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the chargesheet was filed – Moreover, Respondent-Accused had
been absconding after the incident – Order of High Court granting
bail is liable to be set aside.
Bail: Appeal against grant of bail and cancellation of bail –
The exercise of appellate jurisdiction to adjudge correctness of a
bail order are not restricted by the principles for cancellation of
bail.
Allowing the appeal, the Court
HELD: 1. 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. 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. 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. [Paras 16, 22][973-A; 977-E-H]
Ram Govind Upadhyay v. Sudarshan Singh and Ors.
(2002) 3 SCC 598 :
[2002] 2 SCR 526; Prasanta Kumar
Sarkar v. Ashis Chatterjee and Anr. (2010) 14 SCC
496 : [2010] 12 SCR 1165; Mahipal v. Rajesh Kumar
and Anr. (2020) 2 SCC 118; Sanjay Chandra v. Central
Bureau of Investigation (2012) 1 SCC 40 : [2011]
13 SCR 309; Siddharam Satlingappa Mhetra v. State
of Maharashtra and Ors. (2011) 1 SCC 694 : [2010]
15 SCR 201 – relied on.
2. This Court does not ordinarily interfere with an order
granting or refusing bail in exercise of its power under Article
THE STATE OF KERALA v. MAHESH
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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.
The exercise of appellate jurisdiction to adjudge correctness of
a bail order are not restricted by the principles for cancellation of
bail. [Paras 24, 29][978-B-D; 979-D]
Jagdish and Ors. v. Harendrajit Singh (1985) 4 SCC
508; P. Chidambaram v. Directorate of Enforcement
2020 (13) SCC 791; Dolat Ram and Ors. v. State of
Haryana (1995) 1 SCC 349:[1994] 6 Suppl. SCR 69;
Prabhakar Tewari v. State of U.P. and Anr. (2020) 11
SCC 648 – referred to.
3. The High Court 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.
[Para 34][983-D-F]
4. The High Court 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.
[Para 35][983-F-H]
5. It further appears from the impugned order that, in
granting bail to the Respondent Accused, the High Court took
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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. [Para 36][984-A-C]
6. 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.  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. It appears that the High Court has completely mis-
appreciated 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. 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. 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 was 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
THE STATE OF KERALA v. MAHESH
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Chargesheet appears to have been filed on 01.01.2021.
Moreover the Respondent Accused had been absconding after
the incident. [Paras 37, 38][984-C-H; 985-A-B]
Case Law Reference
[2002] 2 SCR 526
relied on
Para 16
[2010] 12 SCR 1165
relied on
Para 17
(2020) 2 SCC 118
relied on
Para 18
[2011] 13 SCR 309
relied on
Para 19
[2010] 15 SCR 201
relied on
Para 19
(1985) 4 SCC 508
referred to
Para 24
(2020) 13 SCC 791
referred to
Para 26
[1994] 6 Suppl. SCR 69
referred to
Para 27
(2020) 11 SCC 648
referred to
Para 30
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
343 of 2021
And
Interlocutory application nos. 24659 and 41412 of 2021
From the Judgment and Order dated 21.12.2020 of the High Court
of Kerala at Ernakulam in Bail Application No. 8821 of 2020.
Nishe Rajen Shonker, Adv. for the Appellant.
Raghenth Basant, Ms. Rasna Kalkat, Ms. Liz Mathew, Jaimon
Andrews, Piyo Harold Jaimon, Sandeep Thakur, Naresh Kumar, Advs.
for the Respondent.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
Leave granted.
2. 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.
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3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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
THE STATE OF KERALA v. MAHESH
[INDIRA BANERJEE, J.]
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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.”
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9. 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.
10. 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.”
11. 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.
12. 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
THE STATE OF KERALA v. MAHESH
[INDIRA BANERJEE, J.]
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Doctors it was medical miracle that the victim survived four to five
days, even though she was in complete coma all through.
13. Attacking the impugned order of the High Court, Counsel
appearing on behalf of the Appellant supported by Counsel appearing on
behalf of the father of the victim, being the applicant in I.A. No. 41412
of 2021 in this Special Leave Petition, has argued that the Respondent
Accused had committed the gruesome murder of a young woman in the
presence of her father, who was an eye witness to the incident. The
High Court should have declined the prayer for bail on that ground alone.
The impugned order granting bail to the Respondent Accused,
notwithstanding the gravity of the offence, is devoid of cogent reasons,
justifying the grant of bail to the accused. The High Court neither
considered nor elaborate reasons given by Sessions Court in the order
directing bail to the Accused Respondent. It is submitted that restraining
the Respondent Accused from entering the jurisdictional limit of Ullur
Police Station till the investigation was over, would not prevent the
Respondent Accused from influencing or threatening witnesses.
14. The Respondent Accused has appeared before the Court
through Ms. Liz Mathew, Advocate and filed a Counter Affidavit to the
Special Leave Petition. Significantly, the Respondent has admitted the
incident but stated that “During the discussion, verbal altercation
arose between the
parents of the deceased and the defacto
complainant who accompanied the deceased victim. A scuffle took
place and unfortunately the deceased victim had sustained injury.
The Respondent had no intention or preparation to commit any
offence.”
15. On behalf of the Respondent Accused, it has been argued
that the impugned order of the High Court is well reasoned. The High
Court found that the Respondent Accused was in custody from 6th
October 2020 onwards. Indefinite incarceration of the Respondent
Accused was found not necessary. Counsel appearing for the Appellant
submitted that the bail application has been allowed on stringent conditions.
Counsel emphasized on the conditions imposed by the impugned order
restraining the Respondent Accused from entering the jurisdictional limit
of Ollur Police Station, till the main witnesses in the case were examined
by the Trial Court.  She also emphatically argued that bail once granted
should not be cancelled in a mechanical manner without considering
whether there were supervening circumstances which would render the
bail no longer conducive to a fair trial.
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16. 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.
THE STATE OF KERALA v. MAHESH
[INDIRA BANERJEE, J.]
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(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.”
17. 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.
***
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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.”
18. 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.”
19. The Respondent Accused relied on the judgments of this Court
in Sanjay Chandra v. Central Bureau of Investigation reported in
(2012) 1 SCC 40 and Siddharam Satlingappa Mhetra v. State of
Maharashtra and Ors. reported in (2011) 1 SCC 694, where this Court
observed that seriousness of the charge is not test or factor while
considering the application for bail.
THE STATE OF KERALA v. MAHESH
[INDIRA BANERJEE, J.]
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20. 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:-
“21.In bail applications, generally, it has been laid down from
the earliest times that the object of bail is to secure the
appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor
preventative. Deprivation of liberty must be considered a
punishment, unless it is required to ensure that an accused
person will stand his trial when called upon. The courts owe
more than verbal respect to the principle that punishment
begins after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention
in custody pending completion of trial could be a cause of
great hardship. From time to time, necessity demands that some
unconvicted persons should be held in custody pending trial
to secure their attendance at the trial but in such cases,
“necessity” is the operative test. In this country, it would be
quite contrary to the concept of personal liberty enshrined in
the Constitution that any person should be punished in respect
of any matter, upon which, he has not been convicted or that
in any circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the witnesses if
left at
liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of
refusal of bail, one must not lose sight of the fact that any
imprisonment before conviction has a substantial punitive
content and it would be improper for any court to refuse bail
as a mark of disapproval of former conduct whether the
accused has been convicted for it or not or to refuse bail to
an unconvicted person for the purpose of giving him a taste
of imprisonment as a lesson.
24. In the instant case, we have already noticed that the
“pointing finger of accusation” against the appellants is “the
seriousness of the charge”. The offences alleged are economic
offences which have resulted in loss to the State exchequer.
Though, they contend that there is a possibility of the
appellants tampering with the witnesses, they have not placed
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any material in support of the allegation. 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”.
25.The provisions of CrPC confer discretionary jurisdiction
on criminal courts to grant bail to the accused pending trial
or in appeal against convictions; since the jurisdiction is
discretionary, it has to be exercised with great care and
caution by balancing the valuable right of liberty of an
individual and the interest of the society in general. …….”
21. 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.”
22. 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.
23. Counsel for the Respondent Accused finally argued that this
Court does not ordinarily entertain a petition for Special Leave to Appeal
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against an order granting or refusing or cancelling bail or anticipatory
bail. Investigation in this case has been concluded and chargesheet has
been filed on 1st January 2021.
24. 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.
25. Counsel argued that the Respondent Accused had been granted
bail on 21st December 2020 that is almost three months ago, but has not
interfered with the course of administration of justice in any way. Nor
has the Respondent Accused evaded or attempted to evade the due
course of justice. Learned counsel argued that the Respondent Accused
had been in judicial custody for 75 days.  The investigation was over and
continued detention of the Respondent Accused was no longer necessary.
26.
Relying on the judgment of this Court in P. Chidambaram v.
Directorate of Enforcement reported in 2020 (13) SCC 791, Counsel
submitted that this Court had repeatedly highlighted the proposition that
bail was the rule and jail the exception.
27. Citing the judgment of this Court in Dolat Ram and Ors. v.
State of Haryana reported in (1995) 1 SCC 349, it was submitted that
the Respondent Accused having been granted bail, by the impugned
order dated 21st December 2020, this Court should not deprive him of
his personal liberty, without considering whether there were any
supervening circumstances which had rendered the freedom of the
Respondent Accused to bail, inexpedient for fair trial.
28. In Dolat Ram (supra), this Court held:-
“4. Rejection of bail in a non-bailable case at the initial stage
and the cancellation of bail so granted, have to be considered
and dealt with on different basis. Very cogent and
overwhelming circumstances are necessary for an order
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directing the cancellation of the bail, already granted.
Generally speaking, the grounds for cancellation of bail,
broadly (illustrative and not exhaustive) are: interference or
attempt to interfere with the due course of administration of
justice or evasion or attempt to evade the due course of justice
or abuse of the concession granted to the accused in any
manner. The satisfaction of the court, on the basis of material
placed on the record of the possibility of the accused
absconding is yet another reason justifying the cancellation
of bail. However, bail once granted should not be cancelled
in a mechanical manner without considering whether any
supervening circumstances have rendered it no longer
conducive to a fair trial to allow the accused to retain his
freedom by enjoying the concession of bail during the trial.”
29. In this Appeal the correctness of the impugned order of the
High Court, in granting bail to the Respondent Accused is in question.
The exercise of appellate jurisdiction to adjudge correctness of a bail
order are not restricted by the principles for cancellation of bail. As held
by this Court, speaking through Dr. D.Y. Chandrachud J. in Mahipal v.
Rajesh Kumar (supra):-
“16.The considerations that guide the power of an appellate
court in assessing the correctness of an order granting bail
stand on a different footing from an assessment of an
application for the cancellation of bail. 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. In Neeru Yadav v. State ofU.P. [Neeru Yadav
v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri)
527], the accused was granted bail by the High Court
[Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031].
In an appeal against the order [Mitthan Yadav v. State of
U.P., 2014 SCC OnLine All 16031] of the High Court, a two-
Judge Bench of this Court surveyed the precedent on the
principles that guide the grant of bail. Dipak Misra, J. (as
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the learned Chief Justice then was) held: (Neeru Yadav case
[Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3
SCC (Cri) 527], SCC p. 513, para 12)
“12. … It is well settled in law that cancellation of bail after
it is granted because the accused has misconducted himself
or of some supervening circumstances warranting such
cancellation have occurred is in a different compartment
altogether than an order granting bail which is unjustified,
illegal and perverse. If in a case, the relevant factors which
should have been taken into consideration while dealing with
the application for bail have not been taken note of, or bail
is founded on irrelevant considerations, indisputably the
superior court can set aside the order of such a grant of bail.
Such a case belongs to a different category and is in a
separate realm. While dealing with a case of second nature,
the Court does not dwell upon the violation of conditions by
the accused or the supervening circumstances that have
happened subsequently. It, on the contrary, delves into the
justifiability and the soundness of the order passed by the
Court.”
17. 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. It is thus necessary
for this Court to assess whether, on the basis of the evidentiary
record, there existed a prima facie or reasonable ground to
believe that the accused had committed the crime, also taking
into account the seriousness of the crime and the severity of
the punishment.”
30. Counsel appearing for the Respondent Accused, has also cited
Prabhakar Tewari v. State of U.P. and Anr. reported in (2020) 11
SCC 648 where this Court, speaking through Aniruddha Bose J. has
discussed the scope of appellate interference to set aside an order granting
bail. In Prabhakar Tewari (supra), this Court held:-
“6. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, a
coordinate Bench of this Court has discussed the scope of
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jurisdiction of the appellate court in setting aside an order of
granting bail. The two key factors for interfering with such
an order are non-application of mind on the part of the court
granting bail or the opinion of the court in granting bail is
not borne out from a prima facie view of the evidence on
record. In Mohd. Amir Rashadi v. State of U.P. (2012) 2 SCC
382, a two-Judge Bench of this Court declined to interfere
with an order [Rama Kant Yadav v. State of U.P., 2010 SCC
OnLine All 3388] of the High Court granting bail to an accused
having considered the factual features of that case.”
31. The High Court has also relied on the judgment of this Court
in P. Chidambaram (supra) reported in (2020) 13 SCC 791 cited on
behalf of the Respondent Accused. There could be no quarrel with the
proposition of law laid down in the cited judgment. A.S. Bopanna, J.
speaking for a three judge Bench held:-
“23.Thus, from cumulative perusal of the judgments cited on
either side including the one rendered by the Constitution
Bench of this Court, it could be deduced that the basic
jurisprudence relating to bail remains the same inasmuch as
the grant of bail is the rule and refusal is the exception so as
to ensure that the accused has the opportunity of securing
fair trial. However, while considering the same the gravity of
the offence is an aspect which is required to be kept in view
by the Court. The gravity for the said purpose will have to be
gathered from the facts
and circumstances arising in each
case. Keeping in view the consequences that would befall on
the society in cases of financial irregularities, it has been
held that even economic offences would fall under the category
of “grave offence” and in such circumstance while
considering the application for bail in such matters, the Court
will have to deal with the same, being sensitive to the nature
of allegation made against the accused. One of the
circumstances to consider the gravity of the offence is also
the term of sentence that is prescribed for the offence the
accused is alleged to have committed. Such consideration with
regard to the gravity of offence is a factor which is in addition
to the triple test or the tripod test that would be normally
applied. In that regard what is also to be kept in perspective
is that even if the allegation is one of grave economic offence,
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it is not a rule that bail should be denied in every case since
there is no such bar created in the relevant enactment passed
by the legislature nor does the bail jurisprudence provide so.
Therefore, the underlining conclusion is that irrespective of
the nature and gravity of charge, the precedent of another
case alone will not be the basis for either grant or refusal of
bail though it may have a bearing on principle. But ultimately
the consideration will have to be on case-to-case basis on
the facts involved therein and securing the presence of the
accused to stand trial.”
32. In P. Chidambaram (supra), this Court allowed the appeal
from the order of the High Court, and allowed the prayer of the Appellant
for bail, having regard to the facts and circumstances of the case noted
by this Court, which are extracted hereinbelow:-
“28. Therefore, at this stage while considering the bail
application of the appellant herein what is to be taken note
of is that, at a stage when the appellant was before this Court
in an application seeking for interim protection/anticipatory
bail, this Court while considering the matter in Criminal
Appeal No. 1340 of 2019 had in that regard held that in a
matter of present nature wherein grave economic offence is
alleged, custodial interrogation as contended would be
necessary and in that circumstance the anticipatory bail was
rejected. Subsequently, the appellant has been taken into
custody
and has been interrogated and for the said purpose
the appellant was available in custody in this case from 16-
10-2019 onwards. It is, however, contended on behalf of the
respondent that the witnesses will have to be confronted and
as such custody is required for that purpose.
29. As noted, the appellant has not been named as one of the
accused in the ECIR but the allegation while being made
against the co-accused it is indicated the appellant who was
the Finance Minister at that point, has aided the illegal
transactions since one of the co-accused is the son of the
appellant. In this context, even if the statements on record
and materials gathered are taken note of, the complicity of
the appellant will have to be established in the trial and if
convicted, the appellant will undergo sentence. For the
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present, as taken note of, the anticipatory bail had been
declined earlier and the appellant was available for custodial
interrogation for more than 45 days. In addition to the
custodial interrogation if further investigation is to be made,
the appellant would be bound to participate in such
investigation as is required by the respondent.”
33. 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.
34. 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.
35. 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.
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36. 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.
37. 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.
38. It appears that the High Court has completely mis-appreciated
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
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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.
39. 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.
40. A copy of this order shall be sent to the concerned Police
Station as well as the Jurisdictional Chief Judicial Magistrate for
compliance.
41. Pending application(s), if any, shall stand disposed of.
Devika Gujral
 Appeal allowed.
THE STATE OF KERALA v. MAHESH
[INDIRA BANERJEE, J.]