Arijit Pasayat, J. Leave granted.
2. Grant of bail to Respondent 2 (hereinafter referred to as “the accused”) has been challenged in this appeal.
3. Background facts as projected by the appellant essentially are as follows:
One Prem Kumar (hereinafter referred to as “the deceased”) was engaged in the business of moneylending. He had advanced a loan of Rs 2 lakhs to one of the accused persons named Naeem. On 11-3-2003, the deceased was called to the factory of one Kamil, where the accused Naeem was working as a contractor, by telephone call which was purportedly made by the accused Naeem. When the deceased went to that place, he was shot at by Respondent 2, accused Meer Hasan and one other accused named Wasim. Accused-Respondent 2 shot the fatal shot. On the basis of statements made by three persons, namely, Nawab, Tulshi Ram and Harish Kakkar, Respondent 2 was taken into custody. The first information report was lodged by a person who was not an eyewitness. In the first information report, it was indicated that unknown assailants killed the deceased. After arrest the accused Meer Hasan filed application for bail before the learned Sessions Judge, Saharanpur, which was rejected. On being moved by the accused Meer Hasan, Respondent 2, by the impugned judgment, a learned Single Judge has granted bail to him.
4. According to the appellant, without even discussing the facts which weighed with the learned Sessions Judge, the High Court by a cryptic order has granted bail. The only stand taken by the accused during hearing of the bail application was that he was not named in the FIR and subsequently his name has been disclosed in the statements recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short “the Code”) after three days. The accused was charged for commission of offence punishable under Sections 302/120-B of the Indian Penal Code, 1860 (in short “IPC”). It is submitted that the grant of bail will obstruct the course of justice and this is not a case where grant of bail was justified.
5. In response learned counsel for Respondent 2-accused submitted that bail has been granted taking into consideration relevant aspects and the order is operative since 5-8-2003 without any allegation of any abuse of the liberty granted by the order of bail. That being so, it is submitted that no interference is called for.
6. There is no definition of the word “bail” in the Code, although offences are classified as “bailable” and “non-bailable”. Section 2(a) defines “bailable offence” to mean an offence which is known as bailable in the First Schedule or which is made bailable by any other law for the time being in force and “non-bailable offence” means any other offence.
7. Impugned order of the High Court reads as follows:
“The applicant's counsel submits that the applicant is not named in the FIR and subsequently his name has been disclosed in the statement recorded under Section 161 CrPC after 3 days.
Considering the facts and circumstances of the case and without expressing any opinion on the merits of the case, the applicant is admitted to bail.
Let the applicant Meer Hasan @ Faddar involved in Case Crime No. 90 of 2003 under Sections 302/120-B IPC, PS Mandi, District Saharanpur be released on bail on his executing a personal bond and on furnishing two sureties each in the like amount to the satisfaction of court concerned.”
8. Even on a cursory perusal the High Court's order shows complete non-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.
9. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
3. Prima facie satisfaction of the court in support of the charge.
10. Any order dehors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, Puran v. Rambilas (2001) 6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528, JT (2004) 3 SC 442.
11. Though a conclusive finding in regard to the points urged by the parties is not expected of the court considering the bail application, yet giving reasons is different from discussing merits or demerits. As noted above, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case is not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated.
12. Above being the position, the cryptic non-reasoned order of the High Court is clearly indefensible.
13. The impugned order of the High Court is set aside. The bail bonds of Respondent 2-accused are cancelled and he is directed to surrender to custody forthwith and in case he does not do so, it shall be the duty of Respondent 1 State to take him into custody immediately. We make it clear that we have not expressed any opinion on the merits of the case. Learned counsel for Respondent 2 submitted that after charge-sheet is placed and/or charge is framed, the accused shall move for bail afresh. If it is so done, it goes without saying the same shall be considered on its own merit in accordance with law, about which we express no opinion.
14. Appeal is accordingly allowed.