Presumption Of Non-Application Of Mind If Bail Order Does Not Furnish Reasons: SC

It is absolutely in order that the Supreme Court while giving a big push for probity, transparency, reasoning and so also accountability in the functioning of courts while delivering judgments in a most learned, laudable, landmark, logical and latest judgment titled The State of Jharkhand vs Anil Ganjhu in Criminal Appeal No. 2843 of 2024 (Arising out of SLP (Crl) No. 7546 of 2024) and cited in 2024 LiveLaw (SC) 459 that was pronounced as recently as on July 9, 2024 has minced just no words to hold in no uncertain terms that where an order of bail does not furnish reasons behind the decision taken, there is a presumption of the non-application of mind.

It also stated unequivocally that, “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.” We definitely ought to note here that as the Jharkhand High Court while granting bail failed to assign any reasons and so the Apex Court remitted the matter to the Jharkhand High Court for fresh consideration of this bail case.

It must be noted that the three-Judge Bench comprising of Hon’ble Mr CJI Dr DY Chandrachud, Hon’ble Mr Justice JB Pardiwala and Hon’ble Mr Justice Manoj Mishra observed so while setting aside the Jharkhand High Court’s order granting bail to an accused of a murder. We need to also note that the Apex Court observed that the power of granting bail by the High Court is discretionary. It was also made absolutely clear by the top court that the same has to be exercised in a judicious manner and not as a matter of course.      

At the very outset, this brief, brilliant, bold and balanced judgment authored by the three-Judge Bench comprising of Hon’ble Mr CJI Dr DY Chandrachud, Hon’ble Mr Justice JB Pardiwala and Hon’ble Mr Justice Manoj Mishra sets the ball in motion by first and foremost putting forth in para 2 that, “The sole respondent (accused) though served with the notice issued by this Court has chosen not to remain present before this Court either in-person or through an advocate and oppose this appeal.”

To put things in perspective, the Bench envisages in para 3 that, “This appeal is at the instance of the State of Jharkhand being aggrieved with the order passed by the High Court of Jharkhand at Ranchi dated 26th April, 2023, releasing the respondent herein on bail in connection with the First Information Report registered with the Police Station, Katkamsandi District, Hazaribagh vide Crime Register No. 29 of 2016 dated 28th February, 2016 for the offences punishable under Sections 302, 364, 201 read with Section 34 of the Indian Penal Code, 1860 (for short, the “IPC”).”

Do note, the Bench notes in para 4 that, “The FIR referred to above was lodged by the sister of the deceased.”

As we see, the Bench discloses in para 5 that, “It is the case of the prosecution that the respondent (accused) is one of the members of an extremist organization by the name TPC, operating in the State of Jharkhand.”

As it turned out, the Bench enunciates in para 6 that, “On the fateful day of the incident, the deceased was forcefully picked up from his house by the respondent and other co-accused, and couple of days thereafter, his dead body was recovered.”

While elaborating further, the Bench lays bare in para 8 that, “It was pointed out that the police was able to arrest all the accused persons involved in the commission of the alleged crime except the respondent herein who went absconding. It was also pointed out that after almost seven years from the date of the registration of the FIR, the police was able to apprehend the respondent herein.”      

It cannot be lost on us that the Bench then points out in para 9 that, “According to the learned counsel appearing for the appellant State, the impugned order of bail passed by the High Court could be said to be a non-speaking order, and that too in connection with the offence of a gruesome murder.”

To recapitulate, the Bench recalls in para 11 that, “On 16th May, 2024, this Court passed the following order:

• “1. Delay condoned.
• 2. This petition is at the instance of the State of Jharkhand being dissatisfied with the order passed by the High Court of Jharkhand at Ranchi releasing the respondent (accused) on bail in connection with PS Case No 29 of 2016 corresponding to GR Case No 611 of 2016 registered for the offence of murder.
• 3. The order passed by the High Court is so slip shod that we are unable to understand anything, more particularly as to what actually weighed with the High Court in releasing the accused on bail and that too in connection with an offence of murder. The genesis of the occurrence has also not been stated in the impugned order. What are the exact nature of allegations against the accused is also not stated.
• 4. We are thoroughly disappointed with the manner in which the High Court dealt with the bail application.
• 5. Issue notice, returnable on 9 July 2024.
• 6. Dasti, in addition, is permitted.””

It is worth noting that the Bench notes in para 12 that, “Essentially, this Court is required to analyse whether there was a valid exercise of the power conferred by Section 439 of the Code of Criminal Procedure, 1973 (for short, the “CrPC”) to grant bail. The power to grant bail under Section 439 CrPC 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.”

Most forthrightly, the Bench propounds in para 14 that, “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 from a non-application of mind or is not borne out from a prima facie view of the evidence on record.”

Most significantly, the Bench mandates in para 16 postulating what constitutes the cornerstone of this notable judgment that, “Thus, from the aforesaid, it is evident that the High Court failed to assign any reasons for the exercise of its discretion in favour of the respondent (accused), knowing fully well that he is involved in a serious offence like murder and was absconding for couple of years. 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.”

While continuing in the same vein and adding more to it, the Bench hastens to add in para 17 stating that, “In the aforesaid context, we may refer to some of the relevant observations made by this Court in Mahipal (supra), as regards the duty of the Court to record reasons for its exercise of discretionary power. We quote the relevant observations as under:

“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.””

As a corollary, the Bench then directs in para 18 holding that, “In such circumstances referred to above, we are of the view that we should set aside the order passed by the High Court, releasing the respondent (accused) on bail and remit the matter to the High Court for fresh consideration in accordance with law more particularly keeping in mind the observations made by this Court in the present order.”

Further, the Bench holds in para 19 that, “The appeal succeeds and is hereby allowed.”

Furthermore, the Bench directs in para 20 that, “The impugned order passed by the High Court is set aside.”  

What’s more, the Bench further directs in para 21 that, “The Bail Application No. 2863 of 2023 is restored to its original file.”

Finally, the Bench then concludes by holding and directing in para 22 that, “The High Court shall hear the accused as well as the State and pass a fresh order in accordance with law within a period of ten days from the date of receipt of this order.”

To summarise, we thus see that the Apex Court has very rightly maintained that where an order refusing or granting bail does not furnish the reasons behind the decision taken, there is a presumption of the non-application of mind. It was also further very rightly added by the top court that this may require its intervention as has been done also in this very leading case so very commendably, courageously and cogently! So it is a no-brainer that all the courts including the High Courts also apart from the Trial Courts must always make it a point to definitely furnish valid reasons behind the granting or denying of the bail and should strongly desist from just granting or denying bail without according any reasons for it as it will then face the direct intervention from the top court as we see so clearly in this noteworthy case also! No denying it!

Written by:

Sanjeev Sirohi, Advocate, s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave, Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.

*Published as received.