–By Aakash Nandolia &
Shivi Mittal INTRODUCTION:Section 439 of CrPC[1] confers discretionary powers upon the high courts to grant or to refuse bail. This power must be exercised keeping in mind certain principles.
These principles have been laid down by the apex court through landmark judgments. In the case of Harjit Singh vs Inderpreet Singh[2], the court has reiterated its view regarding these principles.
In this case one Harjit Singh had approached the Apex Court against the order of Punjab & Haryana High Court granting bail to persons accused of murdering his father. He contended that the High Court has not at all considered the seriousness of the offence. Hence, the following insight was provided by the Hon’ble Supreme Court.
ANALYSIS:
The Supreme Court allowed the appeal and while assessing the correctness of the impugned order it held that while exercising its discretionary power if High Court passes an order granting bail without due application of mind or without considering the principles laid down by the apex court then such an order of High court is liable to be set aside.
Further the court said that while releasing the accused on bail, high court failed to appreciate and consider the nature of the accusation, severity of the punishment and the nature of supporting evidences.
In the case of Gudikanti Narasimhulu v. Public Prosecutor, High Court of A. P[3], the court observed that while deciding a matter of bail the nature of charge and the nature of evidence are vital factors. The severity of the punishment to which the accused may be liable, if convicted, must also be considered. The court also has to access the likelihood of witness tampering and over all threat to justice. It was further observed that it is rational to enquire into the antecedents of the man who is applying for bail.
When a matter reaches the higher court for grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial.
However, the Court is required to examine whether there is a prima facie reason to believe that the accused has committed the offence and whether the continued custody of the accused sub serves the purpose of the criminal justice system.
Usually, the apex court does not interfere with orders of High Court granting bail. But since the power to grant bail is of wide amplitude it is necessary to keep a check and balance on exercise of this discretionary power. In the case of Mahipal vs Rajesh Kuamr[4], Dr. Justice D.Y. Chandrachud has observed that the powers u/s 439 must be exercised in a judicious manner and not as a matter of course.
The concept of bail is a necessary implication of Article 21[5] enshrined in the Constitution of India. It touches upon the liberty of an individual and liberty is not an absolute abstract concept but is governed by law.
No element in the society can act in such a manner so as to jeopardize the life and liberty of others. Where an accused is a repeated offender or his charges are of severe nature and there are reasonable grounds to believe that the accused had committed the offence then it is precise to deny bail. Denial of freedom by refusing bail is not for punitive purposes but for the sole interest of justice.
It is pertinent to be noted that, ‘In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquillity and safety which every well-meaning person desire’s[6].
CONCLUSION:
Granting or refusing bail u/s 439 CrPC is a matter involving the exercise of judicial discretion by High Courts. Judicial discretion in granting or refusing bail, as in the case of any other discretion which is vested, is not unstructured.
Courts have a duty to record reasoning behind discretionary orders. This duty to record reasons is a significant safeguard. It ensures that the thought process underlying the order is subject to scrutiny and that it meets objective standards of reason and justice.
Thus, the Hon’ble Court has provided a valuable and just insight in the discussed judgement.
[1]Section 439(1)(a)- Special powers of High Court or Court of Session regarding bail.
[2] 2021 SCC OnLine SC 633
[3] (1978) 1 SCC 240
[4] (2020) 2 SCC 118
[5]Section 21: Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law
[6] Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446
Aakash Nandoliya is an Associate with GSL Chambers. Shivi Mittal is in final year of B.A.LL.B Banasthali Vidyapith, Jaipur and an Intern at GSL Chambers.
