Order de hors reasoning cannot result in grant of bail! SC holds informant has a right to assail bail orders bereft of reasons before a higher forum 

Supreme Court: The 3-judge Bench comprising of L. Nageswara Rao, B.R. Gavai and B.V. Nagarathna*, JJ., held that though it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage but an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. Criticizing the practise of granting cryptic bail in a casual manner, the Bench remarked,

“It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum.”

Background

The appellant, mother of the deceased Rupesh Kumar and also the eyewitness of the killing of her son had assailed the Patna High Court’s order granting bail to the accused. The appellant had filed an FIR in the year 2020 for the offence of murder of her son under section 302 read with section 34 of the Penal Code, 1860 and section 27 of the Arms Act stating that the accused had shot her deceased son with a pistol on two occasions. Earlier, in the year 2017, another FIR was lodged against the same accused by the deceased himself for attempt to murder and causing serious bullet injury to him, under sections 341, 307 read with section 34 of IPC and section 27 of the Arms Act and in that case as well the accused was released on bail.

The appellant contended that the impugned orders granting bail to the respondent accused were bereft of any reasoning and they were cryptic and bail had been granted in a casual manner.

Observations and Analysis

In the impugned order, the High Court had noted that there was a previous enmity between the deceased and the petitioner with regard to contesting an Election as Mukhiya but this fact had not been taken into consideration in the context of the allegation against the accused and with regard to grant of bail. After critically scrutinizing the materials on record, the Bench made following observations:

  1. The offences alleged against the accused were serious vis-a-vis against the very same person, Rupesh Kumar at two points of time, namely, in 2017 when attempt to murder him was alleged and in 2020 allegation of murder had been cast by the appellant.
  2. The accused had been named in about eight cases and though he might have been acquitted in a few of them, there were still cases pending against him. Thus, he was a man with criminal antecedents.
  3. The accused had absconded for a period of seven months after the complaint in respect of the second offence was lodged against him. Therefore, his arrest was delayed.
  4. It was also the case of the appellant that the accused had threatened the informant mother of the deceased.

Thus, the Bench opined that there was a likelihood of the respondent accused absconding or threatening the witnesses if on bail which would have a vital bearing on the trial of the cases. Also, for securing the accused for the purpose of commencement of the trial in right earnest in both the cases, as the accused had earlier absconded, discretion could not have been exercised in favour of the accused in the instant cases.

Reason is the soul of the law

Applying the Latin maxim “cessante ratione legis cessat ipsa lex” meaning “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”, the Bench stated, though liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material so as to enable a Court to arrive at a prima facie conclusion.

As been held by the Supreme Court in catena of cases, the Bench reiterated that a balance would have to be struck between the nature of the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.

Thus, the Bench emphasised that while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail.

Conclusion

Consequently, the Bench opined that the High court had lost sight of the aforesaid vital aspects of the case and in very cryptic orders had granted bail to the accused who had two serious accusations against him vis-à-vis the very same person. Hence, the appeal was allowed and the impugned orders were set aside. The bail bonds submitted by the accused were declared cancelled and he was directed to surrender before the concerned jail authorities within a period of two weeks. [Brijmani Devi v. Pappu Kumar, Cr. A. No. 1663 of 2021, decided on 17-12-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellant: Smarhar Singh, Advocate

For the Respondent: R. Basant, Senior Counsel

Tags: IPC, Criminal Law, Homicide, Murder, Attempt to Murder, Bail, Reasoned Order, Natural Justice


*Judgment by: Justice B.V. Nagarathna

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