How should HCs exercise their discretionary power to grant bail: SC explains

The apex court reiterated some of its earlier decisions concerning the high courts’ power to exercise discretion in considering bail application of non-bailable offences, and underscored some important factors to be considered

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The Supreme Court, while setting aside an order granting bail to a habitual offender and murder accused, reiterated the principles that should guide the discretionary power of the high courts to grant bail. The bench of Justices DY Chandrachud and MR Shah highlighted the precedents laid out by the Supreme Court in what factors should be considered when exercising power to grant bail.

The appeal was filed by the informant and son of the victim against bail granted to original accused/respondent charged with murder by Punjab and Haryana High Court. during the investigation, it was revealed that though the respondent was not physically present at the spot, he hatched the criminal conspiracy to murder the victim. The counsel for the appellant submitted that the high court committed grave error by releasing the respondent on bail as it did not consider the seriousness of the offence; the specific allegation in the FIR that even while in jail he hatched the conspiracy along with other co-accused, and that he was the master mind and the main conspirator.

The court found it necessary to underscore some of the earlier decisions of the court on exercising court’s discretionary power for grant of bail and the duty of the appellate court when bail is denied by lower court.

In the case of Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240, the apex Court has observed and held that deprivation of freedom by refusal of bail is not for punitive purposes but for the bifocal interests of justice. the other factors held to be important were nature of the charge, nature of evidence, severity of punishment if convicted, likelihood of the applicant interfering with the witnesses, antecedents and so on. The same factors and additionally Prima facie satisfaction of the court in support of the charge, were resounded in State of Maharashtra v. Sitaram Popat Vetal, (2004) 7 SCC 521.

In Mahipal v. Rajesh Kumar (2020) 2 SCC 118, where the accused was released on bail, the apex court had held that where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside.

In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 the court had held that among other circumstances, the factors to be borne in mind while considering an application for bail are:

  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  2. nature and gravity of the accusation;
  3. severity of the punishment in the event of conviction;
  4. danger of the accused absconding or fleeing, if released on bail;
  5. character, behaviour, means, position and standing of the accused;
  6. likelihood of the offence being repeated;
  7. reasonable apprehension of the witnesses being influenced; and
  8. danger, of course, of justice being thwarted by grant of bail.

Based on these former decisions of the Supreme Court, the bench held that the High Court, in this case, failed to appreciate and consider the nature of the accusation and the severity of the punishment in case of conviction and the nature of supporting evidence. It further failed to appreciate the facts of the case; the nature of allegations; gravity of offence and the role attributed to the accused as also the threat perception to the appellant and his family. The court pointed out that the respondent is a habitual offender who has been convicted in 3 FIRs.

The court thus held that the High Court’s order is unsustainable and deserves to be quashed. The court thus allowed appeal and directed the state to take the respondent into custody.

The complete judgement may be read here:


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