Consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refuse bail, the Supreme Court observed.
The bench comprising Justices DY Chandrachud and MR Shah observed that a Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail.
The court observed thus while setting aside the orders of the High Court of Gujarat granting bail, under Section 439 of the Code of Criminal Procedure, to six murder accused who were arrested for their alleged involvement in five homicidal deaths. In the order granting bail, the High Court recorded that 'Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order'. Disapproving this approach, the bench observed:
"The grant of bail is a matter which implicates the liberty of the accused, the interest of the State and the victims of crime in the proper administration of criminal justice. It is a well-settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application under Section 439 of the CrPC would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. These observations while adjudicating upon bail would also not be binding on the outcome of the trial. But the Court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail. This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties, as in a civil proceeding. The proper enforcement of criminal law is a matter of public interest. We must, therefore, disapprove of the manner in which a succession of orders in the present batch of cases has recorded that counsel for the "respective parties do not press for further reasoned order". If this is a euphemism for not recording adequate reasons, this kind of a formula cannot shield the order from judicial scrutiny."
"Grant of bail under Section 439 of the CrPC is a matter involving the exercise of judicial discretion. Judicial discretion in granting or refusing bail – as in the case of any other discretion which is vested in a court as a judicial institution – is not unstructured. The duty to record reasons is a significant safeguard which ensures that the discretion which is entrusted to the court is exercised in a judicious manner. The recording of reasons in a judicial order ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice. This Court in Chaman Lal v. State of U.P.8 in a similar vein has held that an order of a High Court which does not contain reasons for prima facie concluding that a bail should be granted is liable to be set aside for non-application of mind."
Nature of the offence is a circumstance which has an important bearing on the grant of bail
The court also noted that the orders of the High Court does not have any discussion about the serious nature of the offence.
The nature of the offence is a circumstance which has an important bearing on the grant of bail. The orders of the High Court are conspicuous in the absence of any awareness or elaboration of the serious nature of the offence. The perversity lies in the failure of the High Court to consider an important circumstance which has a bearing on whether bail should be granted. In the two-judge Bench decision of this Court in Ram Govind Upadhyay v. Sudharshan Singh the nature of the crime was recorded as "one of the basic considerations" which has a bearing on the grant or denial of bail. The considerations which govern the grant of bail were elucidated in the judgment of this Court without attaching an exhaustive nature or character to them.
We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction.
Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication
In this case, the High Court while granting bail, observed that the order would not be treated as precedent in any other case on grounds of parity. Disapproving this, the bench said:
"We are left unimpressed with and disapprove of the above observation of the Single Judge. Whether parity can be claimed by any other accused on the basis of the order granting bail to A-13 ought not to have been pre-judged by the Single Judge who was dealing only with the application for the grant of bail to A-13. The observation that the grant of bail to A-13 shall not be considered as a precedent for any other person who is accused in the FIR on grounds of parity does not constitute judicially appropriate reasoning. Whether an order granting a bail is a precedent on grounds of parity is a matter for future adjudication if and when an application for bail is moved on the grounds of parity on behalf of another accused. In the event that parity is claimed in such a case thereafter, it is for that court before whom parity is claimed to determine whether a case for the grant of bail on reasons of parity is made out. In other words, the observations of the Single Judge which have been noticed above are inappropriate and erroneous."
Case: Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana Makwana (Koli)
Coram: Justices DY Chandrachud and MR Shah
Counsel: Sr. Adv Vinay Navare, Adv Jaikriti S Jadeja, Adv Aniruddha P Mayee, Sr. Adv r J S Atri, Adv Nikhil Goel
Citation: LL 2021 SC 221