The Apex Court has time and again reiterated that grant of bail, though a discretionary order, requires such discretion to be exercised in a judicious manner and on the application of certain parameters. It is so because the discretion to grant bail should be used to strike a balance between public interest and the protection of individual liberty in a criminal case.
Most often, it is based on the principle- the more heinous the crime, the greater is the chance of rejection of bail. Other factors that should be taken into account were reiterated by the Supreme Court in Jameel Ahmad v/s Mohammed Umair -
Ram Govind Upadhyay v. Sudarshan Singh, 2002 (3) SCC 598 sets out the relevant considerations for the exercise of discretion, albeit, illustrative and not exhaustive, in the following words:
“4. …(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment 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 3 normal course of events, the accused is entitled to an order of bail.”
Therefore, usually, three main factors should be looked at while deciding on a bail application:
1. Nature of the offense;
2. Gravity of the offence;
3. Likelihood of the accused obstructing in any manner or evading the process of justice.
Also, the order of rejection/grant of bail should be a reasoned order and the reasons for the decision arrived at should be recorded otherwise the presumption of non-application of mind looms large. The same has been observed by the Supreme Court in setting aside an order of the Rajasthan High Court in Mahipal v/s Rajesh Kumar @ Polia [1]. It was explicitly stated by the Hon’ble Bench that “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 was also observed that where an earlier application for bail has been rejected, the burden to furnish specific reasons for the grant of bail on the subsequent application is higher. This becomes important and necessary especially when human discretion is involved in the administration of justice which involves public interest and protection of the rights of the undertrial. Both must go hand in hand.
Hence, wherever there is a reasoned order the Appellate Court must be extra cautious while setting aside that order and must be guided by the principles set out for deciding a bail application. It has also been observed in this case that assessing the correctness of the order granting bail and that of cancellation of bail stand on a different footing. In case the grant/rejection order is being assessed, it is to be seen that it is not perverse, illegal, or unjustified. On the other hand, the bail cancellation order is to be seen with regard to the supervening circumstances or violations of conditions of bail.
The Court was also of the view that only the prima facie view of these factors is to be taken into consideration. The Court at this stage is only required to find out whether there is reasonable ground to believe that the accused has committed the offence or can hamper the trial. These observations cannot act as a substitute for detailed evidence and cannot be used as conclusive evidence to decide the fate of the case.
Hence, based on the observations in the afore-mentioned cases it will be appropriate to say that the power to grant bail u/s 439 CrPC is of a wide amplitude which involves a high amount of discretion and subjectivity, therefore exercised judiciously.
[1] 2020 (2) SCC 118