Holding

The High Court's order granting bail without reasons is indefensible and is set aside, with the bail cancelled and the matter remitted for fresh consideration.

Summary

The appellant, an informant, reported that his brother was murdered and the accused were charged with the crime. The accused applied for bail, which was rejected by the Additional Chief Judicial Magistrate and the Additional Sessions Judge, but the Rajasthan High Court later granted bail without recording any reasons. The appellant challenged the High Court's order before the Supreme Court, arguing that a bail order must reflect an application of mind and state the grounds for granting bail, especially in serious offences. The Supreme Court held that the High Court's order showed a complete non‑application of mind and failed to indicate any prima facie reasons, violating established jurisprudence on bail. Consequently, the Court set aside the High Court's order, cancelled the bail, and remitted the matter for fresh consideration, directing the accused to surrender to custody. The appeal was disposed of in favour of the appellant.

Issues considered

What is the requirement of a reasoned order when granting bail under Sections 438 and 439 of the Cr.P.C.?
Whether the High Court's bail order, which lacked any reasoning, is valid?
Which factors must a court consider before granting bail in serious offences?

Legislation cited

Code of Criminal Procedure, 1973s. 438, s. 439

Subjects

bailreasoned orderapplication of mindprima facie caseSection 438 Cr.P.C.Section 439 Cr.P.C.witness tamperingserious offenceSupreme Court

Judgment

DEEPAK SINGClll A
v.
STATE OF RAJASTHAN AND ANR.

AUGUST 3, 2007

[DR. ARIJIT PASA YAT AND D.K. JAIN, JJ.] B

Code of Criminal Procedure, 1973:

S.438-While dealing-with bail application, order must show proper
application of mind by the Court-Court is required to satisfj; as to whether C
\ there is a prima facie case-But exhaustive exploration of the merits of case
is n~t necessary-Bail.

S.438-Bail-Grant of-Determining factor-Stated

The appellant-informant had reported about the murder of his brother D
committed by accused persons. The accused filed bail application before the
CJM who rejected the same. Additional Sessions Judge also dismissed the
bail application filed before it Thereafter High Court was moved for grant of
bail. The High Court granted bail. While granting bail, no reason was
indicated in the impugned order as to why the bail was granted. The impugned E
order is questioned by appellant before this Court.

Disposing of the appeal and remitting the matter to High Court, the
Court

HELD: 1. The High Court's order shows complete non-application of p
mind even on a cursory perusal. 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 G
in a judicious manner and not as a matter of course.
(Para 9) [791-E, F)

Omar Usman Chamadia v. Abdul and Anr., JT (2004) 2 SC 176 and VD.
787 H
788 SUPREME COURT REPORTS [2007] 8 S.C.R.

A Chaudhary v. State of Uttar Pradesh and Anr., (2005) 7 SCALE 68, relied on.
2. 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. It is necessary for the courts
dealing with application for bail to consider among other circumstances, the
B following factors also bef~re granting bail. They are: the nature of accusation
and the severity of punishment in case of conviction and the nature of
supporting evidence; reasonable apprehension of tampering of the witness
or apprehension of threat to the complainant; and primafacie satisfaction of
the Court in support of the charge. [Para 10) [791-F, G, H; 792-A)

c Ram Govind Upadhyay v. Sudarshan Singh and Ors., [2002) 3 SCC
598; Puran etc. v. Rambi/as and Anr. etc. (2001) 6 SCC 338; Kalyan Chandra . -

Sarkar v. Rajesh Ranjan alias Pappu Yadav .& Anr., JT (2004) 3 SC 442;
Chaman Lal v. State of U.P. and Anr., JT (2004) 6 SC 540; Kamaljit Singh v.
State of Punjab and Anr., [2005) 7 SCC 326; Gajanand Agarwal v. State of
D Orissa and Anr., Criminal Appeal Nos. 543-544 of 2007 decided on 12.4.2007
by Supreme Court, relied on.
...(-

CPJMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 002 of
2007

E From the Judgment & Order dated 5.10.2006 of the High Court of
Rajasthan, Jaipur Bench, Jaipur in S.B. Criminal Misc. Bail Application No.
4381 of2006

Sunil Kumar, Jitendra Jha, Shree Prakash Singh, Shekhar Kumar,
A.K.Srivasatava and Manoj Prasad for the Appellant.
F ""f -
Sushi! Kumar, Kumar Kartikay, Aruneshwar Gupta, L.K.Upadhyay, Neeraj
Shekhar, N.Hariharan, Rajesh Kumar and Mohan Pandey for the Respondents.

The Judgment of the Court was delivered

_G DR. ARIJIT PASA YAT, J. l. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single
Judge of the Raiasthan
~
High Court at Jaipur, granting bail to the respondent .. Jl_
no.2. (hereinafter called as the 'accused').

H 3. Background facts in a n_utshell are as follows:
,..
I
DEEPAK SINGCHI v. STATE OF RAJASTHAN [PASA YAT, J.] 789
On 18.9.2002, appellant lodged report about the killing of his brother by A
some persons. It surfaced during investigation that the accused and co-"
accused Nasik Singh had hired two contact killers- Rohitas and Dharmendra
for killing the deceased ..

Application for bail was filed by the accused before the Additional
Chief Jµdicial Magistrate, Jaipur, who by order dated 6.6.2006 rejected the B
application. Application for bail filed before the Additional Sessions Judge,
Jaipur, was rejected by order dated 12.7.2006. It was, inter alia, noted as
follows:

"The Court heard the arguments advanced by both the parti~s
and has gone through the legal provisions. It is correct that the ·C
incident is 4 years old and accused has been investigated twice and
the final report was given. In my opinion that enquiry was also done
treating him as one of the suspects. Late on the evidence which were
collected primarily show his involvement in the crime. Dispute relating
to the business of property between both the parties, having ill D
feelings against the deceased because of the same, bringing the c<r
accused Nasib Singh to the house of the deceased on the day 6f
incident, the recognition of this Nasib Singh by the wife of deceased
during TIP, recognition of the accused who shot the deceased by his
wife and his brother-in-law and after their arrest their recognition
during TIP, buOets found on the place of incident which was of co- E
accused's pistol, on the information given by the co-accused the
recovery of bullets and arms alongwith the car, the same colour of the
car which was reported 4 years back, the recovery of items at tbe
instant of accused persons, the recovery of the places where the
conspiracy was hatched by the accused persons, long conversation F
between accused and co-accused Nasib Singh for hours during, before
and after the date of the incident (Applicant/Accused and co-accused
did not tell about their conversation on the phone before and after the
incident in the enquiries), etc. have come up clearly by the enquiries.

Thus the facts and circumstances state that because of the enmify G
relating to property business the accused planned to murder of the
deceased with the co-accused and entered into aq~ illegal contract with
the other accused Rohitaas and Dharmendra to kill the deceas~d.
They murdered the deceased and for this work od\y the accused took
the co-accused Nasib Singh to the deceased's house to make him
H
790 SUPREME COURT REPORTS [2007] 8 S.C.R.

A familiar with the person supposed to be killed by them. The accused
and the co-accused had a long conversation before· and after the
incident and this fact was no~ revealed by them in the earlier enquiries
which clearly show the involvement of accused in the crime."

4. The High Court was moved for grant of bail. Learned Single Judge
B by the impugned order granted bail which is being questioned by the
informant. It is submitted that two courts on analyzing the material on record
rejected the prayer for bail. The High Court without indicating any reason has
granted the bail. No reason has been indicated as to why the bail was granted
· notwithstanding the well-reasoned orders of learned Additional Chief Judicial
C Magistrate, Jaipur, and Additional Sessi<ms Judge, .Jaipur. ·

5. In response, learned counsel for the 'accused submitted that initially
final report was submitted but subsequently, a fresh look was taken after
taking permission from Court. The accused persons were in custody for more
than seven months. On considering all relevant aspects learned Single Judge
D has accepted the prayer for bail.
6. The relevant portion of the High Court's order reads as follows:

"It is not desirable to discuss the evidence available on record at
this stage. However, taking into consideration all the facts and
circumstances of the case and without expressing any opinion on the
E
merits of the case I deem it just and proper to release the accused
applicant on bail under Section 439 Cr.P.C. I cite [2005] 2 SCC 13 in
support."

7. At this juncture, it would be appropriate to take note of a decision·
F of this Court in Omar Usman Chamadia 'v. Abdul and Anr. JT (2004) 2 SC 176.
In para I 0, it was observed as follows:

"However, befo,re concluding, we must advert to another aspect of
this case which has caused some concern to us. In the recent past, ·.
we had several occasions to notice that the High Courts by recording
G the concessions shown by the counsel in the criminal proceedings
refrain from assigning any reason even in orders by which it reverses
the orders of the lower courts. In our opinion, this is not proper if
such orders are appealable, be it on the ground of concession shown
by \earned counsel appearing for the parties or on the ground that
· assigning of elaborate reasons might prejudice the future trial before
H
DEEPAKSINGCHiv. STATEOFRAJASTHAN[PASAYAT,1.] 791 '

the lower courts. The High Court should not, unless for very good A
reasons desist from indicating the ~ounds on which their orders are
based because when the matters are brought up in appeal, the court
of appeal has every reason to know the basis on which the impugned
order has been made. It may be that while concurring with the lower
court's order, it may not be necessary for the said appellate court to
assign reasons but that is not so while reversing such orders of the B
lower courts. It may be convenient for the said court to pass orders •
without indicating the grounds or basis but it certainly is not '
convenient for the court of appeal while considering the correctness
of such impugned orders. The reasons need not be very detailed or
elaborate, lest it may ·cause prejudice to the case of the parties, hut C
must be sufficiently indicative of the process of reasoning leading to
the passing ofthe impugned order. The need for delivering a reasoned
order is a requirement of law which has to be complied with in all
appealable orders. This Court fn a somewhat similar situation has
deprecated the practice of non-speaking orders in the case of State
of Punjab and Ors. v. Jagdev Singh Talwandi, AIR ( 1984) SC 444)". .D
t
(underlined for emphasis)
(
8. These aspects were recently highlighted in V.D. Choudhary v. State
of Uttar Pradesh and Anr., (2005) 7 SCALE 68. ·
E
9. Even on a cursory perusal the High Court's order shows complete
non-application of. mind. Thr ~gh 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, F
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
a
in a judicious manner and not as matter of course.

I0. There is a need to indicate in the order, reasons for prima facie
concluding why bail was being granted particularly where an accused was G
charged of having committed a serious offence. It is necessary for the courts
dealing with application for bail to consider among other circumstances, the
following factors also before granting bail, they are:

1. The nature of accusation and the severity of punishment in case ·
of conviction and the nature of supporting evidence; H
.,
r
792 SUPREME COURT REPORTS [2007) 8 S.C.R.

A 2. Reasonable apprehension of tampering of the witness or -,...._
apprehension of threat to the complainant;

3. Prima facie satisfaction of the Court in support of the charge.

11. Any order dehors of such reasons suffers from non-application of
B mind as was noted by this .ct'.ourt, in Ram Govind Upadhyay v. Sudarshan
Singh andOrs., [2002] 3 SCC 598, Puran etc. v. Rambilas and Anr. etc. [2001]
6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu
Yadav & Anr., JT (2004) 3 SC 442.

12. The above position was highlighted by this Court in Chaman Lal
C v. State of U.P. and Anr., JT (2004) 6 SC 540, arid in Kamaljit Singh v. State.
ofPunjab and Anr., [2005] 7 SCC 326, and Crl. Appeal No. 543 of 2007 (Arising
out of SLP (Crl.) No.49 of2007) Gajanand Agarwal v. State of Orissa and
Anr.)

13. In view of the settled position in law, the inevitable conclusion is ..:l
.

D that the impugned order of the High Cour:t is indefensible and the ~ame is set
aside. The matter is remitted to the High Court for fresh consideration of the
bail application.

14. Needless to say the respondent No.2 shall forthwith surrender to
custody because of cancellation of his bail. The bail application can be
E considered after only he surrenders to custody.

15. The appeal is disposed of accordingly.

D.G. Appeal disposed of.

"