THE STATE OF KERALA versus MAHESH

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 THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] 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 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 THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] 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 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, THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] 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 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. THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] 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 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.]