9911796707
TMI Blog2021 (3) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 den ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishment, 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 [Ashis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors 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 serio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 caseto- 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irected 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 imApugned 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 Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
