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TMI Blog2021 (3) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... cused, 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 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 - 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. 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrissur 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asanta 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; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 trial but in such cases, necessity is the operative test. In this country, it would be quite contrary to the concept of personal l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 against an order granting or refusing or cancelling bail or anticipatory bail. Investigation in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider 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 Moh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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