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Supreme Court of India
The State Of Kerala vs Mahesh on 19 March, 2021Author: Hon’Ble Ms. Banerjee
Bench: Hon’Ble Ms. Banerjee, Krishna Murari
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 343 OF 2021
(Arising out of SLP (Crl.) No.1530 of 2021)
AND
INTERLOCUTORY APPLICATION NOS. 24659 AND 41412 OF 2021
THE STATE OF KERALA .…Appellant (s)
Versus
MAHESH ….Respondent (s)
JUDGMENT
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.
Signature Not Verified
Digitally signed by
JAGDISH KUMAR
Date: 2021.03.30
15:02:41 IST
Reason:
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3. It is the case of the Prosecution that on 28 th 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 26 th
September, 2020.
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6. The victim was called to the Ollur Police Station for a
settlement and thereafter to her dental clinic on 28 th 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 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
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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.”
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
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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
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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 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
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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
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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.
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
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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.”
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;
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(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.”
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
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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.
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
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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 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
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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
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witnesses.
23. Counsel for the Respondent Accused finally argued that
this Court does not ordinarily entertain a petition for Special Leave
to Appeal 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
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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 21 st 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
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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
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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 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.”
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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
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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, 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
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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 6 th October 2020 (that is, about
75 days) without even considering the materials on record which
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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
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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.
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
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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
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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.
………………………………………J.
[INDIRA BANERJEE]
………………………………………J.
[KRISHNA MURARI]
NEW DELHI;
MARCH 19, 2021.
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ITEM NO.24 Court 10 (Video Conferencing) SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.)No.1530/2021
(Arising out of impugned final judgment and order dated
21-12-2020 in BA No. 8821/2020 passed by the High Court Of
Kerala At Ernakulam)
THE STATE OF KERALA Petitioner(s)
VERSUS
MAHESH Respondent(s)
(FOR ADMISSION and I.R. and IA No.24659/2021-EXEMPTION FROM
FILING O.T. & IA 41412/2021 – FOR INTERVENTION )
Date : 19-03-2021 This petition was called on for hearing today.
CORAM : HON’BLE MS. JUSTICE INDIRA BANERJEE
HON’BLE MR. JUSTICE KRISHNA MURARI
For Petitioner(s) Mr. Nishe Rajen Shonker, AOR
For Respondent(s) Mr. Raghenth Basant, Adv.
Ms. Rasna Kalkat, Adv.
Ms. Liz Mathew, AOR
Mr. Jaimon Andrews, Adv.
Mr. Piyo Harold Jaimon, Adv.
Mr. Sandeep Thakur, Adv.
Mr. Naresh Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed
reportable judgment.
Pending application(s), if any, shall stand disposed
of.
(NIRMALA NEGI) (MATHEW ABRAHAM)
COURT MASTER (SH) COURT MASTER (NSH)
(Signed reportable judgment is placed on the file)
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