On July 24, the Supreme Court bench set aside a bail order granted by the Rajasthan High Court, granting bail to 3 people involved in the case of honour killing. The Bench comprising Justices B.V. Nagrathna and Justice Prashant Mishra was hearing an appeal against the said bail order. Setting aside the “cryptic” and “casual” orders passed by the High Court granting bail to the accused, the Supreme Court observed the following:
“While considering an application for grant of bail, a prima-facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis à vis the offence/s alleged against an accused.” (Para 22)
Facts of the case:
As per the First Information Report (FIR) filed by the brother of the deceased against 4 accused, three of whom are the respondents in the current case, the incident took place on May 18, 2020. The deceased, namely Vikash Panwar, was having an extra marital live-in-relationship with a woman named Nirma since the last three month. Nirma also had a spouse named Shrawan Jani and had two children from the said marriage. Unhappy about the said extra marital live-in-relationship, the parents and parents’ in-law of Nirma had been threatening to kill appellant’s brother, Vikash Panwar.
As per the facts of the case, Budharam and Vikas Vishnoi, Nirma’s brothers, Shrawan Jani, Nirma’s husband and Ram Kishor, Nirma’s brother-in-law were threatening the appellant’s brother by way of calls and WhatsApp messages.
On May 17, 2020, the deceased was found lying on the ground, dead, with blood oozing out from around his ribs by the appellant and his father. It was purported that the four accused named mentioned above had come on two motorcycles and dragged Vikash, shooting at him, causing his death.
It is essential to note that earlier on February 24, 2020, Nirma had filed an FIR against her brother-in-law and parents-in-law for offences punishable under Sections 498A and 376 of the IPC, stating therein that her brother-in-law repeatedly raped her and that she was being subjected to cruelty in her matrimonial household
Charges against the respondents-accused in the current case:
On August 19, 2022, the charge sheet was filed by the Jodhpur police before the Metropolitan Magistrate, including the respondents-accused in the current case. Sections 302 and 120B of the IPC and Section 3 read with Sections 25 and 27 of the Arms Act were invoked against the respondents-accused.
Contentions made by the appellants:
The appellant submitted that the impugned judgment was passed without considering the active involvement of respondents and the heinous nature of the crime where they could face even life imprisonment/death for the murder of the deceased.
He further submitted that bail was granted without any reasoning in an “erroneous and perverse manner” in spite of overwhelming material pointing towards the guilt of the respondents. According to the counsel, enlarging the respondents-accused on bail is contrary to the settled principles of law and judgments
The counsel for the state also submitted that there were eyewitnesses and even CCTV footage where respondents were fleeing the crime scene. The counsel further stated that the High Court overlooked such clear and cogent evidence collected during the course of investigation, which, in the very least would prima-facie point towards the guilt of the respondents- accused and erroneously proceeded to grant them bail.
Contentions made by the respondents-accused:
On the other hand, the counsel for the respondents contended that even if the alleged crimes are of serious nature, they would be entitled to bail if the court believes that they were not involved in the crime’ prima facie’. They submitted that there was no evidence to prove that they hit the deceased and shot him.
They further submitted that when the woman witness turned hostile, they were already in judicial custody. So, it’s impossible that they could’ve influenced the witness.
Supreme Court’s observations on grant of bail:
After hearing both the counsel of the parties, the Supreme Court perused the bail orders passed by the HC which noted “Having regard to the totality of the facts and circumstances of the case, without expressing any opinion on the merits of the case, I deem it just and proper to grant bail to the accused petitioners under Section 439 Cr. P.C” (Para 17)
The bench stated that in the past, the Supreme Court has ruled that an order granting bail in a mechanical manner, without recording reasons, would suffer from the vice of non-application of mind, rendering it illegal. The bench then reiterated the factors to be taken into consideration for bail, namely the seriousness of the offense, the likelihood of the accused fleeing from justice, the impact of the release of the accused on the prosecution witnesses, and the likelihood of the accused tampering with evidence.
“This Court has, on several occasions discussed the factors to be considered by a Court while deciding a bail application. The primary considerations which must be placed at balance while deciding the grant of bail are:
(i) The seriousness of the offence;
(ii) The likelihood of the accused fleeing from justice;
(iii) The impact of release of the accused on the prosecution witnesses;
(iv) Likelihood of the accused tampering with evidence.” (Para 18)
It observed that while the liberty of an individual is important, the courts cannot lose sight of the serious nature of the accusations against an accused. Referring to a recent judgment given in the matter of Manoj Kumar Khokhar v. State of Rajasthan, the Court had held that “an order granting bail to an accused, if passed in a casual and cryptic manner, de hors reasoning which would validate the grant of bail, is liable to be set aside by this Court”. (Para 20)
Supreme Court’s analysis of the Rajasthan HC order:
The court upon perusal of the chargesheet and materials brought on record noted how the deceased was traced, the reconnaissance done by respondents before the incident and the manner of their participation. Based upon this, the Supreme Court bench was convinced that at least prima facie there’s a case pointing towards the guilt of the respondent.
“In the present case, it cannot be said that the accusations against the respondents-accused are prima-facie wholly false, frivolous or vexatious in nature, so as to justify grant of bail. We observe, while not expressing any opinion on the merits of the case, that the prosecution has brought on record adequate material that would prima-facie point towards the guilt of the accused.” (Para 24 d)
The Court expressed displeasure at the fact that bail was granted by High Court in a very casual manner without any reasoning. It only relied on the testimony of the woman who turned hostile which is not a consideration for granting bail. It held that not even a single material aspect of the case was considered by HC.
“High Court while passing the impugned orders has not taken into account even a single material aspect of the case. Instead, the High Court referred only to the testimony of one hostile witness in the trial and on the basis thereof, exercised its discretion to grant bail in an erroneous manner. The High Court has lost sight of the aforesaid vital aspects of the case and granted bail to the respondents by passing very cryptic and casual orders, de hors cogent reasoning” observed Justice Nagarathna in the judgment. (Para 25)
The court opined that there is a possibility that respondents may influence witnesses since one of the prosecution witnesses had turned hostile.
“In the absence of any evidence as to the circumstances under which she turned hostile, we cannot rule out the possibility of the respondents-accused influencing other witnesses, tampering with the evidence, if they continue to remain on bail” (Para 24 e)
Decision of the Supreme Court:
Making the above stated observation, the Supreme Court set aside the impugned judgment of the Rajasthan HC granted the bail to the respondents and asked the respondents to surrender within two weeks of the order.
The complete order can be read here:
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