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Merely recording “having perused the record” does not serve the purpose of a reasoned judicial order: SC on Bail Orders
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Merely recording “having perused the record” does not serve the purpose of a reasoned judicial order: SC on Bail Orders

Shruti Mahajan

Courts are required to factor in various aspects and balance the same while exercising their discretionary power to grant bail, the Supreme Court held on Thursday.

The Bench of Justices DY Chandrachud and Hrishikesh Roy held that orders of the High Court granting bail are normally not interfered with by the Supreme Court. However, if the High Court’s order is “without the due application of mind”, then it is liable to be set aside.

These remarks were made in a judgment setting aside an order passed by the Rajasthan High Court, which granted bail whilst not adverting to material evidence. The judgment states,

“Merely recording “having perused the record” and “on the facts and circumstances of the case” does not sub-serve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the judge in the rejection or the grant of bail are recorded in the order passed.”

The Court said that while Section 439 of the Code of Criminal Procedure (CrPC) confers a certain degree of discretionary powers to courts, the same must be “exercised in a judicious manner”. The decision to grant bail rests on a balance that needs to be drawn after considering various factors, one of which is the existence of a prima facie case against an accused. The judgment says,

“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.”

Having said so, the Court goes on to point out that there exists no “straitjacket formula” to determine which case is fit for grant of bail and which is not. The judgment says that the Court is not required to establish guilt beyond a reasonable doubt at this stage, but is required to assess whether there exists a prima facie case against the accused. The judgment written by Justice Chandrachud says,

“Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.”

Further, the Court has also distinguished between a challenge to grant of bail and prayer for cancellation of the same, saying that the two stand on a very different footing. Differentiating between the two, the Court held,

“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.”

Therefore, when the Court is considering an application for grant of bail, factors such as the severity of the offence and its punishment, existence of a prima facie case, and evidentiary records ought to be considered. When the same is not done, the order may be liable to be set aside. The Court reiterated,

“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.”

Applying these principles to the case, the Court concluded that the High Court had erred in passing the order without considering material evidence.

Highlighting the importance of cases concerning personal liberty of individuals, the Court held,

“Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty bound to explain the basis on which they have arrived at a conclusion.”

The Court thus set aside the decision of the High Court and directed for the cancellation of the bail bonds of the accused persons, and for them to be immediately taken into custody.

[Read the Judgment]

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