Factors to be considered while granting anticipatory bail: Supreme Court 2010

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2086 OF 2010
(Arising out of S.L.P. (Crl.) No.4590 of 2010)
PRASANTA KUMAR SARKAR — APPELLANT (S)
VERSUS
ASHIS CHATTERJEE & ANR. — RESPONDENT (S)
J U D G M E N T
D.K. JAIN, J.:
Leave granted.
2. This appeal, by special leave, is directed against order dated 11th
January, 2010 passed by the High Court of Calcutta in C.R.M. No. 272 of
2010, granting regular bail to respondent No. 1 in this appeal (hereinafter
referred to as “the accused”), under Section 439 of the Code of Criminal
Procedure, 1973 (for short “the Code”).
3. The accused is facing trial for an offence punishable under Section
302 of the Indian Penal Code, 1860 (for short “IPC”) for allegedly
1
committing the murder of one Ms. Mallika Sen. Respondent No.2 is
the State of West Bengal.
4. Very briefly stated the facts material for the adjudication of this
appeal can be stated thus:
Ms. Mallika Sen, a 57 years old widow was found strangulated at her
residence on 2nd July, 2009. The appellant, who is the brother of the victim,
lodged a written complaint at the Rampurhat Police Station, on the basis of
which FIR No. 111/09 dated 2nd July, 2009 was registered under Section
302, IPC. It has been alleged that a neighbour of late Ms. Sen, one Mr.
Somenath Dutta, saw the accused rushing out of the residence of the
deceased, around the time the incident took place. The accused was arrested
on 13th July, 2009 and produced before the Additional Chief Judicial
Magistrate who remanded him to judicial custody. Thereafter, on the same
day, the police filed a forwarding report in the said court, inter alia,
requesting for holding of a Test Identification Parade (T.I.P.) of the accused.
The T.I.P. was conducted, but perhaps the accused could not be identified.
However, in the second T.I.P., the accused was duly identified by the
aforesaid witness.
5. The accused filed several bail applications before the Additional Chief
Judicial Magistrate which were all dismissed vide orders dated 7th
September, 2009, 16th September, 2009 and 19th September, 2009.
6. On 7th October, 2009, charge-sheet No. 138 of 2009 under Section 302
IPC was filed against the accused before the Additional Chief Judicial
Magistrate.
7. Having failed to secure bail from the Sessions Court, the accused
preferred a bail application, being C.R.M. No. 272 of 2010 before the
High Court under Section 439 of the Code. As stated above, by the
impugned order, the High Court allowed the application, and granted
bail to the accused by a short order, observing thus:
“Having regard to the nature of the alleged crime, we do not
think that interest of investigation requires or (sic) justifies
further detention of the present petitioner at this stage.”
8. Hence the present appeal by the complainant.
9. Mr. Nagender Rai, learned senior counsel appearing on behalf of the
appellant, while assailing the impugned order, contended that the said
order being non-speaking, deserves to be set aside in light of the
decision of this Court in Masroor Vs. State of Uttar Pradesh & Anr.1
(2009) 14 SCC 286

Learned counsel submitted that the High Court has failed to take into
consideration the manner in which a hapless old lady was done to
death as also the fact that the accused had been duly identified by an
independent witness.
10. Per contra, Mr. Ujjwal Banerjee, learned counsel appearing for the
accused, contended that the case against the accused was false, as is
evident from the fact that the witness had failed to identify the
accused in the first T.I.P. Learned counsel contended that the accused
had been arrested on a mere suspicion, and in light of the fact that he
has not misused the bail, the impugned order needs to be affirmed.
11. We are of the opinion that the impugned order is clearly
unsustainable. It is trite that this 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 this 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.

(See:
State of U.P. through CBI Vs.
Amarmani Tripathi
Prahlad Singh Bhati Vs. NCT, Delhi & Anr.3
Ram Govind Upadhyay Vs. Sudarshan Singh & Ors.
12. It is manifest that if the High Court does not advert to these relevant
considerations and mechanically grants bail, the said order would
suffer from the vice of non-application of mind, rendering it to be
illegal. In Masroor (supra), a Division Bench of this Court, of which
one of us (D.K. Jain, J.) was a member, observed as follows:
“Though at the stage of granting bail an elaborate examination
of evidence and detailed reasons touching the merit of the case,
which may prejudice the accused, should be avoided, but there
is a need to indicate in such order reasons for prima facie
concluding why bail was being granted particularly where the
accused is charged of having committed a serious offence.”
(See also: State of Maharashtra Vs. Ritesh5
Panchanan  Mishra Vs. Digambar Mishra & Ors.6
Vijay Kumar Vs. Narendra & Ors.7
Anwari Begum Vs. Sher Mohammad & Anr8)
13. We are constrained to observe that in the instant case, while dealing
with the application of the accused for grant of bail, the High Court
completely lost sight of the basic principles enumerated above. The
accused, in the present case, is alleged to have committed a heinous
crime of killing an old helpless lady by strangulation. He was seen
coming out of the victim’s house by a neighbour around the time of
the alleged occurrence, giving rise to a reasonable belief that he had
committed the murder. We feel that under the given circumstances, it
was not the stage at which bail under Section 439 of the Code should
have been granted to the accused, more so, when even charges have
not yet been framed. It is also pertinent to note that, as stated above,
the Additional Chief Judicial Magistrate had rejected three bail
applications of the accused but the High Court did not find it
worthwhile to even make a reference to these orders. In this regard, it
would be useful to refer to the following observations echoed in
Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr.9 :-
“In regard to cases where earlier bail applications have been
rejected there is a further onus on the court to consider the
subsequent application for grant of bail by noticing the grounds
on which earlier bail applications have been rejected and after
such consideration if the court is of the opinion that bail has to
be granted then the said court will have to give specific reasons
why in spite of such earlier rejection the subsequent application
for bail should be granted.” (See also: Ram Pratap Yadav Vs.
Mitra Sen Yadav & Anr.10)
14. For the foregoing reasons, the appeal is allowed, and the impugned
order is set aside. The bail bond and the surety furnished by the
accused in terms of the impugned order stands cancelled and it is
directed that he will be taken into custody forthwith. Needless to add
that observations touching the merits of the case against the accused
are purely for the purpose of deciding the question of grant of bail and
if in future any such application is filed by the accused, it shall be
considered on its own merits untrammelled by any of these
observations.
.……………………………………J.
(D.K. JAIN)
.…………………………………….J.
(H.L. DATTU)
NEW DELHI;
OCTOBER 29, 2010.