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REPORTABLE  

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION  

 Criminal Appeal No. 1843 of  2019  

@SLP (Crl.) No. 6339 of 2019        

Mahipal                            …Appellant                                                            Versus    Rajesh Kumar @ Polia & Anr.                         …Respondents  

WITH     

Criminal Appeal No. 1844 of  2019  @SLP (Crl.) No. 6340 of 2019  

 WITH   

 Criminal Appeal No. 1845 of  2019  

@SLP (Crl.) No. 6341 of 2019    

WITH     

Criminal Appeal No. 1846 of  2019  @SLP (Crl.) No. 7052 of 2019  

AND WITH  Criminal Appeal No. 1847 of  2019  

@SLP (Crl.) No. 7053 of 2019      

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J U D G M E N T              

Dr Dhananjaya Y Chandrachud, J    

1 Leave granted.       

2 This batch of appeals arises from a judgment of a learned Single Judge of  

the High Court of Rajasthan at its Jaipur Bench dated 10 May 2019. Allowing the  

bail application filed under Section 439 of the Code of Criminal Procedure 1973 1 ,  

the High Court enlarged the first respondent on bail subject to certain conditions  

therein. The original complainant is in appeal before this Court.   

 3 By similar orders, the learned Single Judge granted bail to the other four  

accused – Anil Kumar, Ajay Kumar, Vikas Kumar and Vijay Kumar. The appeals  

filed by the appellant against those orders have been tagged with the present  

appeal. Since the facts in all these matters and the questions involved are similar,  

they have been heard together and are being disposed of by this common  

judgment. For the sake of convenience, the facts in SLP (Crl.) No. 6339 of 2019  

are discussed.  

 4 A First Information Report

2  was lodged by the appellant on 3 December  

2018 stating that his now deceased nephew – Akhilesh had visited town on leave  

for a month for his marriage. It was stated that at about 7.00 pm on 2 December  

                                                           1  CrPC  

2  FIR No. 347/2018

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2018, the deceased and his friend Aashish left the matrimonial home to run an  

errand. At about 7.30 pm, the deceased and Aashish stopped their bike on the  

road which caused a quarrel with two accused persons – Vijay and Anil, who then  

hurled abuses at the deceased. At that time, five to six boys armed with dandas  

assaulted the deceased who was rescued by near-by villagers. It was stated that  

the deceased left the scene on his motorcycle only to be confronted a short  

distance thereafter by the accused – Anil, Ajay, Rajesh (the first respondent),  

Vikas and Vijay. It was alleged that the accused used rods to beat the deceased  

with an intention to kill him. It was alleged that after beating the deceased, the  

accused fled from the scene of the incident. The deceased was rushed to  

Jhunjhunu R & R Hospital at Chirawa. However, owing to the serious nature of  

the injuries, he was referred to Fortis Hospital at Jaipur where he was declared  

dead.   

 5 The post-mortem report was recorded on 3 December 2018. Twenty-seven  

ante-mortem injuries on the body of the deceased were noted. The first  

respondent was arrested on 3 December 2018. The statements under Section  

161 of the CrPC of the appellant and Aashish were recorded. A charge-sheet  

was filed against the five accused on 10 March 2019 under Sections 147, 148,  

149, 302 and 397 of the Indian Penal Code 1908. 3  Cognizance was taken by the  

Judicial Magistrate, Pilani on 27 March 2019. As the accused were charged  

under Section 302, the case was committed to the Additional Sessions Judge,  

Jhunjhunu for trial.  

                                                           3  Penal Code

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6 The bail application filed by the first respondent before the Additional  

Sessions Judge was rejected on 10 April, 2019. Thereafter, the first respondent  

filed a bail application before the High Court of Rajasthan, which was allowed.  

The appellant has filed the present appeal before this Court assailing the order of  

the High Court enlarging the first respondent on bail. Notice was issued by this  

Court on 12 July 2019.   

 7 Assailing the judgment of the High Court, the learned counsel appearing  

on behalf of the appellant submits:  

(i) A prima facie involvement of the accused has emerged upon  

investigation, in a case involving a gruesome murder. There was no  

reason for the High Court to exercise its power to grant bail;  

(ii) The High Court has not passed a reasoned order justifying the grant of  

bail to the accused;  

(iii) The High Court failed to appreciate the statement of the sole injured  

eye-witness Aashish who was present at the spot of the incident that  

the accused were responsible for the death of the deceased;  

(iv) The post-mortem report observes twenty-seven ante-mortem injuries  

and opines that the injuries causing death were inflicted within six hours  

of death; and   

(v) The phone of the deceased was recovered from one of the accused  

Anil, while the bike involved in the incident was recovered from the first  

respondent.  

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8 The second respondent – the State of Rajasthan has filed a counter-

affidavit assailing the order of the High Court on grounds similar to those urged  

by the appellant. It was also stated that another FIR 4  had been registered against  

the friends of the accused alleging an intention to kill the friend of the deceased –  

Ashish.  

9 On the other hand, the learned counsel appearing on behalf of the first  

respondent contended that:  

(i) On the date of the incident, there was an altercation between the  

deceased and the first respondent, in which the deceased was the  

aggressor. Thereafter, the deceased fell off his bike and suffered  

injuries which caused his eventual death;  

(ii) The first respondent has been in custody for five months on the basis of  

a false allegation in the FIR;   

(iii) Even on a reading of the allegations in the FIR and the charge sheet,  

no prime facie case has been made out against the accused justifying  

the setting aside of bail; and  

(iv) The registration of an FIR against the friends of the accused has no  

bearing on the present case.  

A common counter affidavit was filed by all the five accused before this Court  

reaffirming the above contentions.   

 10 These rival submissions fall for our consideration.  

                                                           4  FIR No. 52/2019

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11 Essentially, this Court is required to analyse whether there was a valid  

exercise of the power conferred by Section 439 of the CrPC to grant bail. The  

power to grant bail under Section 439 is of a wide amplitude. But it is well settled  

that though the grant of bail involves the exercise of the discretionary power of  

the court, it has to be exercised in a judicious manner and not as a matter of  

course. In Ram Govind Upadhyay v Sudarshan Singh 5 , Justice Umesh  

Banerjee, speaking for a two judge Bench of this Court, laid down the factors that  

must guide the exercise of the power to grant bail in the following terms:  

“3. Grant of bail though being a discretionary order — but,  

however, calls for exercise of such a discretion in a judicious  

manner and not as a matter of course. Order for bail bereft of  

any cogent reason cannot be sustained. Needless to record,  

however, that the grant of bail is dependent upon the  

contextual facts of the matter being dealt with by the court  

and facts, however, do always vary from case to case...The  

nature of the offence is one of the basic considerations for the  

grant of bail — more heinous is the crime, the greater is the  

chance of rejection of the bail, though, however, dependent  

on the factual matrix of the matter.  

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  

                                                           5  (2002) 3 SCC 598

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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.‖  

12 The determination of whether a case is fit for the grant of bail involves the  

balancing of numerous factors, among which the nature of the offence, the  

severity of the punishment and a prima facie view of the involvement of the  

accused are important. No straight jacket formula exists for courts to assess an  

application for the grant or rejection of bail. At the stage of assessing whether a  

case is fit for the 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 or reasonable ground  

to believe that the accused had committed the offence and on a balance of the  

considerations involved, the continued custody of the accused sub-serves the  

purpose of the criminal justice system. Where bail has been granted by a lower  

court, an appellate court must be slow to interfere and ought to be guided by the  

principles set out for the exercise of the power to set aside bail.  

13 The principles that guide this Court in assessing the correctness of an  

order passed by the High Court granting bail were succinctly laid down by this  

Court in Prasanta Kumar Sarkar v Ashis Chatterjee 6 . In that case, the accused  

was facing trial for an offence punishable under Section 302 of the Penal Code.  

Several bail applications filed by the accused were dismissed by the Additional  

                                                           6  (2010) 14 SCC 496

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Chief Judicial Magistrate. The High Court in turn allowed the bail application filed  

by the accused. Setting aside the order of the High Court, Justice DK Jain,  

speaking for a two judge Bench of this Court held:   

―9. … 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.  

…  

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…‖  

14 The provision for an accused to be released on bail touches upon the  

liberty of an individual. It is for this reason that this Court does not ordinarily  

interfere with an order of the High Court granting bail. However, where the  

discretion of the High Court to grant bail has been exercised without the due

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application of mind or in contravention of the directions of this Court, such an  

order granting bail is liable to be set aside. The Court is required to factor,  

amongst other things, a prima facie view that the accused had committed the  

offence, the nature and gravity of the offence and the likelihood of the accused  

obstructing the proceedings of the trial in any manner or evading the course of  

justice. The provision for being released on bail draws an appropriate balance  

between public interest in the administration of justice and the protection of  

individual liberty pending adjudication of the case. However, the grant of bail is to  

be secured within the bounds of the law and in compliance with the conditions  

laid down by this Court. It is for this reason that a court must balance numerous  

factors that guide the exercise of the discretionary power to grant bail on a case  

by case basis. Inherent in this determination is whether, on an analysis of the  

record, it appears that there is a prima facie or reasonable cause to believe that  

the accused had committed the crime. It is not relevant at this stage for the court  

to examine in detail the evidence on record to come to a conclusive finding.   

 The decision of this Court in Prasanta has been consistently followed by this  

Court in Ash Mohammad v Shiv Raj Singh, 7  Ranjit Singh v State of Madhya  

Pradesh 8 , Neeru Yadav v State of U.P.

9 , Virupakshappa Gouda v State of  

Karnataka 10

, and State of Orissa v Mahimananda Mishra 11

.  

 15 The considerations that guide the power of an appellate court in assessing  

the correctness of an order granting bail stand on a different footing from an  

                                                           7  (2012) 9 SCC 446  

8  (2013) 16 SCC 797  

9  (2014) 16 SCC 508  

10  (2017) 5 SCC 406  

11  (2018) 10 SCC 516

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assessment of an application for the cancellation of bail. The correctness of an  

order granting bail is tested on the anvil of whether there was an improper or  

arbitrary exercise of the discretion in the grant of bail. The test is whether the  

order granting bail is perverse, illegal or unjustified. On the other hand, an  

application for cancellation of bail is generally examined on the anvil of the  

existence of supervening circumstances or violations of the conditions of bail by a  

person to whom bail has been granted. In Neeru Yadav v State of Uttar  

Pradesh, 12

the accused was granted bail by the High Court. In an appeal against  

the order of the High Court, a two judge Bench of this Court surveyed the  

precedent on the principles that guide the grant of bail. Justice Dipak Misra (as  

the learned Chief Justice then was) held:  

―…It is well settled in law that cancellation of bail after it is  

granted because the accused has misconducted himself or of  

some supervening circumstances warranting such  

cancellation have occurred is in a different compartment  

altogether than an order granting bail which is unjustified,  

illegal and perverse. If in a case, the relevant factors which  

should have been taken into consideration while dealing with  

the application for bail and have not been taken note of bail or  

it is founded on irrelevant considerations, indisputably the  

superior court can set aside the order of such a grant of bail.  

Such a case belongs to a different category and is in a  

separate realm. While dealing with a case of second nature,  

the Court does not dwell upon the violation of conditions by  

the accused or the supervening circumstances that have  

happened subsequently. It, on the contrary, delves into the  

justifiability and the soundness of the order passed by the  

Court…‖  

16 Where a court considering an application for bail fails to consider relevant  

factors, an appellate court may justifiably set aside the order granting bail. An  

appellate court is thus required to consider whether the order granting bail suffers  

                                                           12

(2015) 15 SCC 422

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from a non-application of mind or is not borne out from a prima facie view of the  

evidence on record. It is thus necessary for this Court to assess whether, on the  

basis of the evidentiary record, there existed a prima facie or reasonable ground  

to believe that the accused had committed the crime, also taking into account the  

seriousness of the crime and the severity of the punishment. The order of the  

High Court in the present case, in so far as it is relevant reads:  

―2. Counsel for the petitioner submits that the petitioner has  

been falsely implicated in this matter. Counsel further submits  

that, the deceased was driving his motorcycle, which got  

slipped on a sharp turn, due to which he received injuries on  

various parts of body including ante-mortem head injuries on  

account of which he died. Counsel further submits that the  

challan has already been presented in the court and  

conclusion of trial may take long time.   

3. Learned Public Prosecutor and counsel for the complainant  

have opposed the bail application.  

4. Considering the contentions put-forth by the counsel for the  

petitioner and taking into account the facts and circumstances  

of the case and without expressing opinion on the merits of  

the case, this court deems it just and proper to enlarge the  

petitioner on bail.‖   

17 In assessing the rival submissions, it is necessary to advert to the findings  

of the post-mortem report dated 3 December 2018.   

On the basis of the injuries, the post-mortem report concluded:  

―All above mentioned injuries are ante mortem in nature.  

Duration within about 6 hrs prior to death.   

We the members of medical board are of the opinion that  

cause of death is COMA brought about as a result of ante  

mortem head injuries mentioned in this PMR, sufficient to  

cause death in ordinary course of nature. However final  

opinion will be given after receiving FSL reports of above sent  

samples.‖  

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A total of twenty-seven ante-mortem injuries were recorded of which seven were  

found to be inflicted on the head. This led the members of the medical board to  

conclude that the cause of death was coma brought about by the result of the  

head injuries. The learned counsel for the first respondent contended that the  

deceased fell from the bike and sustained injuries which led to his death.  

However, it is not for the court to assess in detail the evidence on record to come  

to a conclusive finding on a chain of causation. A court assessing a plea of bail is  

required to find a prima facie view of the possibility of the commission of the  

crime by the accused and not conclude that the alleged crime was in fact  

committed by the accused beyond reasonable doubt.   

 18 The statement of Aashish Kumar who was allegedly present with the  

deceased at the time of the incident was recorded under Section 161. The  

statement details the alleged incident and names all five accused, attributing to  

them the common intention to kill the deceased. It was stated that the accused  

thereafter drove away with the bike of the deceased.  

 19 The following extract from the charge-sheet dated 10 March 2019 is  

relevant:   

―…Thereafter, in compliance to the Order No.  

Complaint/2018/4899-4900 dated 28.12.18 of the Hon’ble  

Superintendent of Police of the District, further investigations  

of the case were started by the Circle Officer, Smt. Mamta  

Saraswat, R.P.S. Circle, Jhunjhunu City. During investigation  

proceedings, Circle Officer Smt. Mamta Saraswat, R.P.S.  

Circle Jhunjhuna City conducted investigations of all the  

accused persons arrested in the present case namely Vijay  

Kumar, Ajay Kumar alias Sheodan, Vikas Kumar, Anil Kumar  

alias Bhirriya and Rajesh Kumat alias Pauliya. Mobile of  

deceased was recovered from accused Anil Kumar alias  

Bhirriya according to his disclosure memo under Section

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277 of the Evidence Act. Seizure memo of mobile was  

concluded and attached at the case file. Motorcycle used  

in the incident, according to the disclosure memo, was  

recovered from accused Rajesh Kumar alias Pauliya.  

…  

Thereafter, friends of Anil Kumar namely Ajay Kumar, Rajesh  

and Vikas, all the three came at the place of occurrence  

Garakhera Tiraha and immediately on coming there, they  

started giving beatings to deceased Akhilesh and Monu with  

lathies and thereafter, Anil Kumar and Vijay Kumar also  

started giving beatings to deceased Akhilesh and Monu.  

…  

…however, it has been mentioned that seven injuries have  

been caused at the head of the deceased.This makes clear  

that the accused persons caused many serious injuries on the  

head of the deceased at the place of occurrence Mark A at  

the time of occurrence on the head of the deceased, due to  

which, deceased after running from there went in Coma and  

collided with the Tank, due to which, Akhilesh has died due to  

the injuries sustained by him.‖   

(Emphasis supplied)  

 20 Without expressing any finding or opinion on the merits of the case, a case  

has been made out for setting aside the bail granted by the High Court. The High  

Court has manifestly erred in not taking note of the material which has been  

adverted to above. The order passed by the High Court fails to notice material  

facts and shows a non-application of mind to the seriousness of the crime and  

the circumstances referred to earlier which ought to have been taken into  

consideration.   

21 The High Court has erred in not considering material relevant to the  

determination of whether the accused were to be enlarged on bail. The order of

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the High Court enlarging the accused on bail is erroneous and liable to be set  

aside.   

 22 There is another reason why the judgment of the learned Single Judge has  

fallen into error. It is a sound exercise of judicial discipline for an order granting or  

rejecting bail to record the reasons which have weighed with the court for the  

exercise of its discretionary power. In the present case, the assessment by the  

High Court is essentially contained in a single paragraph which reads:  

―4. Considering the contentions put-forth by the counsel for  

the petitioner and taking into account the facts and  

circumstances of the case and without expressing opinion on  

the merits of the case, this court deems it just and proper to  

enlarge the petitioner on bail.‖  

23 Merely recording ―having perused the record‖ and ―on the facts and  

circumstances of the case‖ does not sub-serve the purpose of a reasoned judicial  

order. It is a fundamental premise of open justice, to which our judicial system is  

committed, that factors which have weighed in the mind of the judge in the  

rejection or the grant of bail are recorded in the order passed. Open justice is  

premised on the notion that justice should not only be done, but should manifestly  

and undoubtedly be seen to be done. The duty of judges to give reasoned  

decisions lies at the heart of this commitment. Questions of the grant of bail  

concern both liberty of individuals undergoing criminal prosecution as well as the  

interests of the criminal justice system in ensuring that those who commit crimes  

are not afforded the opportunity to obstruct justice. Judges are duty bound to  

explain the basis on which they have arrived at a conclusion.  

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24 In Kalyan Chandra Sarkar v Rajesh Ranjan 13

, a two judge Bench of this  

Court was required to assess the correctness of a decision of a High Court  

enlarging the accused on bail. Justice Santosh Hegde, speaking for the Court,  

discussed the law on the grant of bail in non-bailable offences and held:  

―11. The law in regard to grant or refusal of bail is very well  

settled. The court granting bail should exercise its discretion  

in a judicious manner and not as a matter of course. Though  

at the stage of granting bail a detailed examination of  

evidence and elaborate documentation of the merit of the  

case need not be undertaken, there is a need to indicate in  

such orders reasons for prima facie concluding why bail  

was being granted particularly where the accused is  

charged of having committed a serious offence. Any  

order devoid of such reasons would suffer from non-

application of mind.‖  

(Emphasis supplied)  

25 Where an order refusing or granting bail does not furnish the reasons that  

inform the decision, there is a presumption of the non-application of mind which  

may require the intervention of this Court. Where an earlier application for bail  

has been rejected, there is a higher burden on the appellate court to furnish  

specific reasons as to why bail should be granted.   

 26 The perfunctory analysis by the High Court in the present case cannot be  

sustained. For the reasons indicated above, the appeal is allowed and the order  

of the High Court enlarging the first respondent on bail is set aside.   

27 The connected appeals also are allowed in terms of the judgment recorded  

above.   

                                                           13

(2004) 7 SCC 528

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28 Since the accused have been released on bail during the pendency of  

these proceedings, we order that the bail bonds shall stand cancelled and the five  

accused shall be taken into custody forthwith. A copy of this judgment shall be  

forwarded to the Additional Sessions Judge, Chirawa District, Jhunjhunu and the  

police station concerned to secure compliance.   

29 We clarify that the present judgment shall not be construed as the  

expression of any opinion on the merits of the case at the trial.  

.……......................................................J                  [Dr Dhananjaya Y Chandrachud]            

.……......................................................J  

               [Hrishikesh Roy]  

New Delhi;  December 5, 2019.