Grounds for Granting Bail
The considerations which govern the grant of bail were elucidated in the various judgments of the Hon'ble Supreme Court
Topic #002
Nature of Crime
In the two-judge Bench decision of the Hon’ble Supreme Court in Ram Govind Upadhyay v. Sudharshan Singh1, 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 the Hon’ble Supreme Court without attaching an exhaustive nature or character to them. This emerges from the following extract:
“4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:
(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 normal course of events, the accused is entitled to an order of bail.”
Principles
The principles governing the grant of bail were reiterated by a two-judge Bench in Prasanta Kumar Sarkar v. Ashis Chatterjee2
“9. … It is trite that the Hon’ble Supreme Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Supreme Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
Parity
In Neeru Yadav v. State of U.P.3, the Hon’ble Supreme Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. The Hon’ble Supreme Court observed:
“17. Coming to the case at hand, it is found that when a stand was taken that the 2nd Respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd Respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the 2nd Respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.”
Criminal Antecedents
In Ash Mohammad v. Shiv Raj Singh4, the Hon’ble Supreme Court has held that criminal antecedents of the accused must be weighed for the purpose of granting bail.
Reasons to be mentioned
The Hon’ble Supreme Court in Chaman Lal v. State of U.P.5 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. The Hon’ble Supreme Court observed:
“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…”
(Ref: SC - Criminal Appeal 422of 2021 - Dated 20 April 2021)
(2002) 3 SCC 598
(2010) 14 SCC 496
(2014) 16 SCC 508
(2012) 9 SCC 446
(2004) 7 SCC 525