Supreme Court of India
MS. PversusTHE STATE OF MADHYA PRADESH AND ANOTHER
- Citation
- 2022 INSC 514
- Decided
- 5 May 2022
- Disposal
- Appeal(s) allowed
- Bench
- N V RAMANA
Holding
The High Court's order granting bail was perverse and illegal; it was set aside and the accused was directed to surrender.
Summary
Ms. P filed a criminal appeal against the State of Madhya Pradesh and the accused (respondent No.2) challenging the High Court's order granting regular bail under Section 439 of the CrPC in a case involving offences of rape (IPC s.376(2)(n)) and criminal intimidation (IPC s.506). The High Court had granted bail on the sole ground of delay in lodging the FIR, without furnishing any reasons or considering the accused's prior criminal antecedents, the seriousness of the offences, or the appellant's fear of witness tampering. The Supreme Court held that the discretion under Section 439 must be exercised with due application of the judicial mind and that an order granting bail must state reasons and consider relevant material. It observed that the accused's brazen conduct after release, including celebratory hoardings and social‑media posts, created a bona‑fide fear of a fair trial being compromised, constituting supervening circumstances. Consequently, the bail order was deemed perverse and was set aside, with the accused directed to surrender. The appeal was allowed and disposed.
Issues considered
- The High Court was justified in exercising its jurisdiction under Section 439(1) CrPC to grant regular bail in the present facts.
- Whether the bail order required reasons and consideration of material factors such as seriousness of offence, prior criminal history, and risk of witness tampering.
- Whether the post‑release conduct of the accused amounted to supervening circumstances warranting cancellation of bail.
- Whether an appellate court can set aside a bail order that is perverse or illegal.
Legislation cited
- Code of Criminal Procedure, 1973s. 437(1)(i), s. 438, s. 439
- Indian Penal Code, 1860s. 376(2)(n), s. 506
Subjects
bailSection 439 CrPCcriminal procedurerapecriminal intimidationhigh court discretionsupervening circumstancescancellation of bailreasoned orderwitness tamperingliberty of the individual
Judgment
[2022] 3 S.C.R. 823 823
Ms. P A
v.
THE STATE OF MADHYA PRADESH AND ANOTHER
(Civil Appeal No. 740 of 2022)
MAY 5, 2022 B
[N. V. RAMANA CJI, KRISHNA MURARI AND
HIMA KOHLI, JJ.]
Code of Criminal Procedure, 1973: s. 439 – Special powers
of High Courts and Courts of Sessions regarding bail – Exercise of
C
– Held: High Court or the Sessions Court have wide discretion u/s.
439(1) however, it must be exercised after due application of the
judicial mind and not in a routine manner – Liberty of the individual
has been placed on the high pedestal however, the reasons for
granting bail should be furnished – Absence of cogent reasons and
failure to refer the relevant factors to grant bail can persuade the D
appellate court to interfere with the order passed – Bail once
granted, can be cancelled only under supervening circumstances
or when the conduct of the accused is no longer conducive to a fair
trial – On facts, the High Court not justified in exercising its
jurisdiction u/s. 439(1) for grant of regular bail to respondent no.
E
2-student leader against whom case was registered u/ss. 376(2)(n)
and 506 IPC – High Court granted bail to the respondent no. 2 on
the ground of delay in lodging the FIR, without offering any
plausible explanation for the same – Respondent no. 2 is involved
in four criminal cases – Respondent no. 2 immediately after being
released from jail, took out a procession and mounted hoardings in F
the city, with his photographs prominently displayed, celebrating
his release – Captions tagged to his photographs on the social media
highlight the superior position and power wielded by the respondent
No.2 and his family in the society and its deleterious impact on the
complainant – Brazen conduct of the respondent no. 2 has evoked
G
bona-fide fear in the mind of the complainant that she would not
get a free and fair trial if he remains enlarged on bail and there is a
likelihood of his influencing the material witness – High Court while
granting bail overlooked the relevant material bought on record –
Supervening adverse circumstances also warrant cancellation of
bail – Thus, the order granting bail is quashed and set aside. H
823
824 SUPREME COURT REPORTS [2022] 3 S.C.R.
A Ram Govind Upadhyay v. Sudarshan Singh and Others
(2002) 3 SCC 598 : [2002] (2) SCR 526; Prahlad Singh
Bhati v. NCT, Delhi and Another (2001) 4 SCC 280 :
[2001] 2 SCR 684; Chaman Lal v. State of U.P. and
Another (2004) 7 SCC 525 : [2004] 3 Suppl. SCR 584;
Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu
B
Yadav and Another (2004) 7 SCC 528; Puran v.
Rambilas and Another (2001) 6 SCC 338 : [2001] 3
SCR 432; Prasanta Kumar Sarkar v. Ashis Chatterjee
and Another (2010) 14 SCC 496 : [2010] 12 SCR 1165;
Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu
C Yadav and Another (2004) 7 SCC 528; Narendra K.
Amin (Dr.) v. State of Gujarat and Another (2008) 13
SCC 584 : [2008] 6 SCR 1149; Dipak
Shubhashchandra Mehta v. Central Bureau of
Investigation and Another (2012) 4 SCC 134 : [2012]
3 SCR 278; Abdul Basit Alias Raju and Others v. Mohd.
D
Abdul Kadir Chaudhary and Another (2014) 10 SCC
754 : [2014] 10 SCR 571; Neeru Yadav v. State of Uttar
Pradesh and Another (2014) 16 SCC 508 : [2014] 12
SCR 453; Anil Kumar Yadav v. State (NCT of Delhi)
and Another (2018) 12 SCC 129 : [2017] 11 SCR 195;
E Mahipal v. Rajesh Kumar alias Polia and Another
(2020) 2 SCC 118 : [2019] 14 SCR 529; Jagjeet Singh
and Others v. Ashish Mishra alias Monu and Another
(2022) SCC online SC 453; Masroor v. State of Uttar
Pradesh and Another (2009) 14 SCC 286 : [2009] 6
SCR 1030; Ash Mohammad v. Shiv Raj Singh Alias Lalla
F
Babu and Another (2012) 9 SCC 446 : [2012] 7 SCR
584; Dolat Ram and Others v. State of Haryana (1995)
1 SCC 349 : [1994] 6 Suppl. SCR 69; Prakash Kadam
and Others v. Ramprasad Vishwanath Gupta and
Another (2011) 6 SCC 189 : [2011] 6 SCR 800; Ranjit
G Singh v. State of Madhya Pradesh And Others (2013)
16 SCC 797 : [2013] 11 SCR 273; Abdul Basit alias
Raju and Others v. Mohd. Abdul Kadir Chaudhary and
Another (2014) 10 SCC 754 : [2014] 10 SCR 571;
Imran v. Mohammed Bhava and Another (2022) SCC
OnLine SC 496; Daulat Ram and Others vs. State of
H
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 825
Haryana (1995) 1 SCC 349 : [1994] 6 Suppl. SCR 69; A
Ms. Y v. State of Rajasthan and Anr. Crliminal Appeal
No. 649 of 2022 – referred to.
Case Law Reference
[2002] 2 SCR 526 referred to Para 13
B
[2001] 2 SCR 684 referred to Para 13
[2004] 3 Suppl. SCR 584 referred to Para 14
(2004) 7 SCC 528 referred to Para 15
[2001] 3 SCR 432 referred to Para 15
C
[2010] 12 SCR 1165 referred to Para 16
(2004) 7 SCC 528 referred to Para 17
[2008] 6 SCR 1149 referred to Para 17
[2012] 3 SCR 278 referred to Para 17 D
[2014] 10 SCR 571 referred to Para 17
[2014] 12 SCR 453 referred to Para 17
[2017] 11 SCR 195 referred to Para 17
[2019] 14 SCR 529 referred to Para 17 E
[2009] 6 SCR 1030 referred to Para 18
[2012] 7 SCR 584 referred to Para 19
[1994] 6 Suppl. SCR 69 referred to Para 20
[2011] 6 SCR 800 referred to Para 20 F
[2013] 11 SCR 273 referred to Para 21
[2014] 10 SCR 571 referred to Para 22
[1994] 6 Suppl. SCR 69 referred to Para 24
G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
740 of 2022.
From the Judgment and Order dated 16.11.2021 of the High Court
of Madhya Pradesh, Principal Seat at Jabalpur in MCRC No. 55343 of
2021.
H
826 SUPREME COURT REPORTS [2022] 3 S.C.R.
A Mahesh Srivastava, Vaibhav Manu Srivastava, Ms. Shikha
Khurana, Ms. Riya Thomas, Kanishk Khullar, Advs. for the Appellant.
Siddharth Luthra, Sr. Adv., Rajul Shrivastav, Ms. Charu Ambwani,
Rajneesh Chuni, Indrajeet Yadav, Ms. Ankita, Prithviraj Singh, Shakti
Pandey, Advs. for the Respondents.
B
The Order of the Court was passed by
HIMA KOHLI, J.
1. Leave granted.
2. The present appeal by way of special leave arises from an
C
order dated 16th November, 2021, passed by the learned Single Judge of
the High Court of Judicature for Madhya Pradesh; at Jabalpur in MCRC
No. 55343 of 2021, whereby an application filed by the respondent No.
2/accused under Section 439 of the Code of Criminal Procedure, 1973 1
has been allowed and he has been granted bail on furnishing a personal
D bond for a sum of ` 1,00,000/- (Rupees One Lac only) with a solvent
surety in the like amount to the satisfaction of the trial court and certain
other conditions imposed therein by the learned Single Judge in connection
with Crime No. 39/21 registered on the complaint of the appellant at
P.S. Mahila Thana, Jabalpur, State of Madhya Pradesh, for the offences
punishable under Sections 376(2)(n) and 506 of the Indian Penal Code,
E
18602.
3. A brief recapitulation of the facts of the instant case is necessary.
The allegations levelled against the respondent No. 2/accused as recorded
in FIR dated 21st June, 2021 are that he had induced the appellant/
complainant to establish a physical relationship with him on the false
F
pretext of marrying her. The appellant/ complainant has stated that the
respondent No. 2 has been in physical intimacy with her since July, 2019,
when on applying vermillion (sindhoor) on her forehead, he had
convinced her that they had got married as per Hindu rituals. Subsequently,
in July, 2020 when the appellant informed the respondent No. 2 that she
G was pregnant, he along with his sister had taken her to a private hospital
at Jabalpur and had made her consume some pills to undergo abortion,
without her knowledge. It has been alleged that thereafter, the respondent
1
for short “Cr.P.C.”
H 2
for short the “IPC”
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 827
[HIMA KOHLI, J.]
No.2 started avoiding the appellant and stopped returning her calls. When A
confronted by the appellant, he categorically refused to solemnize their
marriage. On the appellant’s complaint, the FIR was registered against
the respondent No.2 on 21st June, 2021.
4. Apprehending his arrest in the aforesaid FIR, the respondent
No. 2 filed an application under Section 438 Cr.P.C., before the learned B
Additional Sessions Judge, Jabalpur, Madhya Pradesh seeking anticipatory
bail which was dismissed vide order dated 30th June, 2021. A fresh
application for anticipatory bail was moved by the respondent No. 2
before the High Court of Madhya Pradesh, Principal Seat at Jabalpur
which was opposed by the appellant who filed objections thereto. Vide
C
order dated 10th August, 2021 the said application was also dismissed by
the High Court. Aggrieved by the rejection of his application for
anticipatory bail, respondent No. 2 had approached this Court by filing a
Petition for Special Leave to Appeal (Crl.) No. 6617 of 2021 which was
dismissed vide order dated 13th September, 2021.
5. On conclusion of the investigation, a charge-sheet was filed by D
the prosecution on 25th October, 2021. Within four days reckoned
therefrom, respondent No. 2 applied before the Additional Sessions Judge,
Jabalpur, Madhya Pradesh for regular bail under Section 439 of the
Cr.P.C., that was rejected by an order dated 29th October, 2021. The
respondent No. 2 then moved the High Court for grant of regular bail. E
The said application has been allowed by the High Court by the impugned
order dated 16th November, 2021. Aggrieved by the relief granted to the
respondent No. 2, the appellant/complainant has filed the present appeal
by way of special leave seeking cancellation of the regular bail granted
to him.
F
6. Ms. Shikha Khurana, learned counsel for the appellant has
assailed the impugned order stating that no reasons whatsoever have
been assigned by the High Court for granting bail to the respondent No.
2; that the High Court has erred in overlooking the criminal antecedents
of the respondent No. 2 and his father who are politically well connected
and are in an influential position due to which there is an apprehension of G
threat to the appellant; that the High Court has ignored the material
evidence including photographs produced by the appellant showing that
the respondent No.2 has applied vermillion on her forehead as a symbol
of having sanctified their relationship in the eyes of the society. Learned
H
828 SUPREME COURT REPORTS [2022] 3 S.C.R.
A counsel specifically drew the attention of this Court to the photographs
enclosed with the petition and marked as Annexure P-2 which show a
beaming appellant and the respondent No.2/accused in close proximity
with vermillion applied on her forehead. Another photograph is stated to
be that of the appellant with the mother of the respondent No. 2, in
happier times.
B
7. Learned counsel for the appellant asserts that the appellant
had given her consent to the respondent No. 2 to establish a physical
relationship with her only after he had promised her that he would marry
her which turned out to be a false promise and in the process, the appellant
had conceived which pregnancy was also got forcibly terminated by the
C respondent No. 2. It was further submitted that after being released on
regular bail, respondent No. 2 started threatening the appellant. That
had compelled her father to lodge a complaint with the Superintendent
of Police, Jabalpur vide letter dated 14th December, 2021 wherein it was
submitted that immediately after being released from jail, respondent
D No.2 had taken out a procession and had mounted hoardings in the city,
with his photographs prominently displayed, celebrating his release which
fact is stated to be borne out from the photographs annexed with the
petition and marked as Annexure P-16. Learned counsel for the appellant
contended that the said hoardings were strategically placed by the
respondent No.2 and his family members at locations situated between
E the locality where the appellant and her family reside and the work place
of her father, thus, trying to mock at them.
8. Notice was issued on the present petition on 11th April, 2022.
As per postal tracking report service is complete on both the respondents
and also by way of proof of service filed by the counsel for the appellant,
F after effecting service on the Standing Counsel for the State of Madhya
Pradesh. Ms. Charu Ambwani, counsel for respondent No.2 already on
caveat, has filed a counter affidavit in opposition to the present petition
and the State is also represented today before us.
9. Mr. Siddharth Luthra, learned Senior Advocate appearing for
G the respondent No.2 has supported the impugned order passed by the
High Court granting regular bail in favour of the respondent No. 2.
Although it has not been disputed that the respondent No.2 and the
appellant were having a consensual physical relationship, the plea taken
is that respondent No.2 had not made any false promise or intentional
H
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 829
[HIMA KOHLI, J.]
misrepresentation of marriage to the appellant. Both the parties were A
known to each other for long and had voluntarily got into a physical
relationship that had lasted for over two years. It was pointed out that
though the appellant refers to incidents of the year 2019 and 2020, the
FIR was belatedly registered only in June, 2021, without explaining the
delay.
B
10. Alleging that the appellant and her father were trying to
blackmail the respondent No. 2 and they had raised an illegal demand on
him for closure of the case, learned Senior Advocate appearing for the
respondent No.2 submitted that the present petition is yet another attempt
to pressurize the respondent No. 2 to marry the appellant. As for the
photographs of the posters annexed at Annexure P-16 of the petition, it C
has been submitted that the said posters had been put up in the first
week of February, 2022, which is almost three months after the impugned
order was passed granting bail to the respondent No. 2 and the said
photographs clearly show that the respondent No. 2 was sending greetings
on the annual festival of “Maa Narmada Jayanti” that was celebrated D
this year in the month of February.
11. On the other hand, Ms. Ankita Choudhary, Deputy Advocate
General appearing for the respondent No.1/State of Madhya Pradesh
has supported the appeal and submitted that the High Court has failed to
take into consideration the fact that the respondent No. 2 and his father E
are involved in five criminal cases out of which respondent No.2 is an
accused in four criminal cases and his father is an accused in one criminal
case, all registered at different police stations in Jabalpur, for the offences
punishable under Sections 294, 323, 324 and 506 IPC and this itself was
sufficient ground to have rejected the bail application filed by the
respondent No. 2. It was also pointed out that the appellant’s statement F
recorded under Section 164 Cr.P.C. is consistent with her earlier statement
recorded under Section 161 Cr.P.C., thus lending credence to her version
vis-à-vis the respondent No.2.
12. The short question that falls for our consideration is whether
the High Court was justified in exercising jurisdiction under Section 439(1) G
of the Cr.P.C. for grant of regular bail in the facts of the present case.
13. It is no doubt true that the High Court or for that matter, the
Sessions Court have a wide discretion in deciding an application for bail
under Section 439 Cr.P.C. However, the said discretion must be exercised
H
830 SUPREME COURT REPORTS [2022] 3 S.C.R.
A after due application of the judicial mind and not in a routine manner. In
Ram Govind Upadhyay v. Sudarshan Singh and Others3, falling back
on an earlier decision in the case of Prahlad Singh Bhati v. NCT,
Delhi and Another4, this Court had observed as follows: -
“4(a) While granting bail the court has to keep in mind not only
B 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
C complainant should also weigh with the court in the matter of
grant of bail.
(c) While it is not expected 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
D 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
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
E normal course of events, the accused is entitled to an order of
bail.”
14. Similarly, in Chaman Lal v. State of U.P. and Another5, this
Court had noticed certain aspects relevant for consideration at the time
of granting bail, namely:
F “9. ….. (1) the nature of accusation and the severity of punishment
in case of conviction and the nature of supporting evidence, (2)
reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant, and (3) prima facie
satisfaction of the Court in support of the charge.”
G 15. We may also profitably refer to a decision of this Court in
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav And
3
(2002) 3 SCC 598
4
(2001) 4 SCC 280
5
(2004) 7 SCC 525
H 6
2004 (7) SCC 528
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 831
[HIMA KOHLI, J.]
Another6, where the parameters to be taken into consideration for grant A
of bail by the Courts has been explained in the following words:
“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 B
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. It is also necessary for the court granting C
bail to consider among other circumstances, the following factors
also before granting bail; they are:
(a) the nature of accusation and the severity of punishment in
case of conviction and the nature of supporting evidence.
D
(b) reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
(c) prima facie satisfaction of the court in support of the charge.”
(See Ram Govind Upadhyay [supra] and Puran v. Rambilas
and Another7)” E
The aforesaid decision also acknowledges the fact that the
conditions stipulated under Section 437(1)(i) Cr.P.C. ought to be taken
into consideration for granting bail even under Section 439 of the Cr.P.C.
16. In the case of Prasanta Kumar Sarkar v. Ashis Chatterjee
F
And Another8 after referring to several precedents, this Court held thus:
“9. …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 G
considering an application for bail are:
7
(2001) 6 SCC 338
8
(2010) 14 SCC 496 H
832 SUPREME COURT REPORTS [2022] 3 S.C.R.
A (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;
B (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;
C
(vii) reasonable apprehension of the witnesses being influenced;
and
(viii) danger, of course, of justice being thwarted by grant of bail.”
17. The aforesaid principles have been restated in several decisions
D rendered by this Court including Kalyan Chandra Sarkar v. Rajesh
Ranjan alias Pappu Yadav and Another9, Narendra K. Amin (Dr.)
v. State of Gujarat and Another10, Dipak Shubhashchandra Mehta
v. Central Bureau of Investigation and Another11, Abdul Basit alias
Raju and Others v. Mohd. Abdul Kadir Chaudhary and Another12,
Neeru Yadav v. State of Uttar Pradesh and Another13, Anil Kumar
E Yadav v. State (NCT of Delhi) and Another14, Mahipal v. Rajesh
Kumar alias Polia and Another15, and as recently as in Jagjeet Singh
and Others v. Ashish Mishra alias Monu and Another16
18. Courts have placed the liberty of an individual at a high pedestal
and extended protection to such rights, whenever and wherever required.
F At the same time, emphasis has also been laid on furnishing reasons for
granting bail even though they may be brief. In Masroor v. State of
9
(2004) 7 SCC 528
10
G (2008) 13 SCC 584
11
(2012) 4 SCC 134
12
(2014) 10 SCC 754
13
(2014) 16 SCC 508
14
(2018) 12 SCC 129
15
(2020) 2 SCC 118
16
(2022) SCC online SC 453
H 17
(2009) 14 SCC 286
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 833
[HIMA KOHLI, J.]
Uttar Pradesh And Another17, it has been observed by this Court as A
follows:
“15. There is no denying the fact that the liberty of an individual is
precious and is to be zealously protected by the courts.
Nonetheless, such a protection cannot be absolute in every
situation. The valuable right of liberty of an individual and the B
interest of the society in general has to be balanced. Liberty of a
person accused of an offence would depend upon the exigencies
of the case.”
19. In the same strain as expressed above, this Court has held in
Ash Mohammad v. Shiv Raj Singh alias Lalla Babu And Another18, C
as follows :
“17. We are absolutely conscious that liberty of a person should
not be lightly dealt with, for deprivation of liberty of a person has
immense impact on the mind of a person. Incarceration creates a
concavity in the personality of an individual. Sometimes it causes D
a sense of vacuum. Needless to emphasise, the sacrosanctity of
liberty is paramount in a civilised society. However, in a democratic
body polity which is wedded to the rule of law an individual is
expected to grow within the social restrictions sanctioned by law.
The individual liberty is restricted by larger social interest and its
deprivation must have due sanction of law. In an orderly society E
an individual is expected to live with dignity having respect for
law and also giving due respect to others’ rights. It is a well-
accepted principle that the concept of liberty is not in the realm of
absolutism but is a restricted one. The cry of the collective for
justice, its desire for peace and harmony and its necessity for F
security cannot be allowed to be trivialised. The life of an individual
living in a society governed by the rule of law has to be regulated
and such regulations which are the source in law subserve the
social balance and function as a significant instrument for
protection of human rights and security of the collective. It is
because fundamentally laws are made for their obedience so that G
every member of the society lives peacefully in a society to achieve
his individual as well as social interest. That is why Edmond Burke
while discussing about liberty opined, “it is regulated freedom”.
18
(2012) 9 SCC 446
19
(1995) 1 SCC 349 H
834 SUPREME COURT REPORTS [2022] 3 S.C.R.
A 20. It is true that bail once granted, ought not to be cancelled. In
Dolat Ram And Others v. State of Haryana19, this Court has held that
very cogent and overwhelming circumstances are necessary for
cancellation of bail and bail once granted, should not be cancelled in a
mechanical manner. It is equally true that an unjustified or perverse
order of bail is vulnerable to interference by the superior Court. So is an
B
order where irrelevant material has been taken into consideration [Refer
: Narendra K. Amin (Dr.) (Supra)]. The factors that are paramount
for cancellation of bail have been succinctly stated in Prakash Kadam
and Others v. Ramprasad Vishwanath Gupta and Another20 in the
following words:
C “18. In considering whether to cancel the bail the court has also
to consider the gravity and nature of the offence, prima facie
case against the accused, the position and standing of the accused,
etc. If there are very serious allegations against the accused his
bail may be cancelled even if he has not misused the bail granted
D to him. Moreover, the above principle applies when the same court
which granted bail is approached for cancelling the bail. It will not
apply when the order granting bail is appealed against before an
appellate/Revisional Court.
19. In our opinion, there is no absolute rule that once bail is granted
E to the accused then it can only be cancelled if there is likelihood
of misuse of the bail. That factor, though no doubt important, is
not the only factor. There are several other factors also which
may be seen while deciding to cancel the bail.”
21. Echoing the above principle, in Ranjit Singh v. State of
F Madhya Pradesh And Others21, it has been held thus:
“19. …….There is also a distinction between the concept of setting
aside an unjustified, illegal or perverse order and cancellation of
an order of bail on the ground that the accused has misconducted
himself or certain supervening circumstances warrant such
G cancellation. If the order granting bail is a perverse one or passed
on irrelevant materials, it can be annulled by the superior
court……..”
20
(2011) 6 SCC 189
21
(2013) 16 SCC 797
H 22
(2014) 10 SCC 754
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 835
[HIMA KOHLI, J.]
22. In Abdul Basit alias Raju And Others v. Mohd. Abdul Kadir A
Chaudhary And Another22, this Court has opined that :
“19. Therefore, the concept of setting aside an unjustified, illegal
or perverse order is different from the concept of cancellation of
a bail on the ground of accused’s misconduct or new adverse
facts having surfaced after the grant of bail which require such B
cancellation and a perusal of the aforesaid decisions would present
before us that an order granting bail can only be set aside on
grounds of being illegal or contrary to law by the court superior to
the court which granted the bail and not by the same court.”
23. In a recent decision of a three Judge Bench of this Court in C
Imran v. Mohammed Bhava and Another23 it has been held as follows:
23. Indeed, it is a well-established principle that once bail has
been granted it would require overwhelming circumstances for
its cancellation. However, this Court in its judgment in Vipan Kumar
Dhir Vs. State of Punjab and Anr. 3 has also reiterated, that while D
conventionally, certain supervening circumstances impeding fair
trial must develop after granting bail to an accused, for its
cancellation by a superior court, bail, can also be revoked by a
superior court, when the previous court granting bail has ignored
relevant material available on record, gravity of the offence or its
societal impact. It was thus observed:- E
“9. …… Conventionally, there can be supervening circumstances
which may develop post the grant of bail and are non conducive
to fair trial, making it necessary to cancel the bail. This Court in
Daulat Ram and Others Vs. State of Haryana observed that:
F
“Rejection of bail in a non-bailable case at the initial stage and
the cancellation of bail so granted, have to be considered and
dealt with on different basis. Very cogent and overwhelming
circumstances are necessary for an order directing the
cancellation of the bail, already granted. Generally speaking,
the grounds for cancellation of bail, broadly (illustrative and G
not exhaustive) are: interference or attempt to interfere with
the due course of administration of Justice or evasion or attempt
to evade the due course of justice or abuse of the concession
23
2022 SCC OnLine SC 496 H
836 SUPREME COURT REPORTS [2022] 3 S.C.R.
A granted to the accused in any manner. The satisfaction of the
court, on the basis of material placed on the record of the
possibility of the accused absconding is yet another reason
justifying the cancellation of bail. However, bail once granted
should not be cancelled in a mechanical manner without
considering whether any supervening circumstances have
B
rendered it no longer conducive to a fair trial to allow the
accused to retain his freedom by enjoying the concession of
bail during the trial.”
10. These principles have been reiterated time and again, more
recently by a 3 Judge Bench of this Court in X Vs. State of
C Telengana and Another.
11. In addition to the caveat illustrated in the cited decision(s), bail
can also be revoked where the court has considered irrelevant
factors or has ignored relevant material available on record which
renders the order granting bail legally untenable. The gravity of
D the offence, conduct of the accused and societal impact of an
undue indulgence by Court when the investigation is at the threshold,
are also amongst a few situations, where a Superior Court can
interfere in an order of bail to prevent the miscarriage of justice
and to bolster the administration of criminal justice system…”
E 24. XXXXX
25. XXXXXX
26. Thus, while considering cancellation of bail already granted
by a lower court, would indeed require significant scrutiny at the
instance of superior court, however, bail when granted can always
F be revoked if the relevant material on record, gravity of the offence
or its societal impact have not been considered by the lower court.
In such instances, where bail is granted in a mechanical manner,
the order granting bail is liable to be set aside. Moreover, the
decisions cited herein above, enumerate certain basic principles
G which must be borne in mind when deciding upon an application
for grant of bail. Thus, while each case has its own unique factual
matrix, which assumes a significant role in determination of bail
matters, grant of bail must also be exercised by having regard to
the above-mentioned well-settled principles.
H 24
Refer 1995 (1) SCC 349 (Daulat Ram and Others vs. State of Haryana)
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 837
[HIMA KOHLI, J.]
24. As can be discerned from the above decisions, for cancelling A
bail once granted, the Court must consider whether any supervening
circumstances have arisen or the conduct of the accused post grant of
bail demonstrates that it is no longer conducive to a fair trial to permit
him to retain his freedom by enjoying the concession of bail during trial24.
To put it differently, in ordinary circumstances, this Court would be loath
B
to interfere with an order passed by the Court below granting bail but if
such an order is found to be illegal or perverse or premised on material
that is irrelevant, then such an order is susceptible to scrutiny and
interference by the Appellate Court. Some of the circumstances where
bail granted to the accused under Section 439 (1) of the Cr.P.C. can be
cancelled are enumerated below: - C
a) If he misuses his liberty by indulging in similar/other criminal
activity;
b) If he interferes with the course of investigation;
c) If he attempts to tamper with the evidence; D
d) If he attempts to influence/threaten the witnesses;
e) If he evades or attempts to evade court proceedings;
f) If he indulges in activities which would hamper smooth
investigation;
E
g) If he is likely to flee from the country;
h) If he attempts to make himself scarce by going underground
and/or becoming unavailable to the investigating agency;
i) If he attempts to place himself beyond the reach of his surety.
F
j) If any facts may emerge after the grant of bail which are
considered unconducive to a fair trial.
We may clarify that the aforesaid list is only illustrative in nature
and not exhaustive.
25. Keeping the aforesaid parameters to be borne in mind when G
dealing with a petition where not only has the order granting bail been
assailed on the ground of perversity and illegality, supervening
circumstances have been pleaded by the appellant that justify interference
by this Court, we may now proceed to deal with the instant case.
H
838 SUPREME COURT REPORTS [2022] 3 S.C.R.
A 26. A perusal of the impugned order goes to show that the sole
ground on which the concession of bail has been extended by the High
Court to the respondent No.2 is the delay on the part of the appellant/
complainant in lodging the FIR, without offering any plausible explanation
for the same. Absence of cogent reasons and failure to refer to the
relevant factors that weighed with the Court to grant bail is also an
B
important factor that can persuade the Appellate Court to interfere with
the order passed. In this context, this Court has referred to the
consequences of failure to give reasons for granting bail in Ms. Y v.
State of Rajasthan And Another.25 and speaking for the Bench, Hon’ble
Chief Justice N.V. Ramana has observed that:-
C “17. Apart from the general observation that the facts and
circumstances of the case have been taken into account, nowhere
have the actual facts of the case been adverted to. There appears
to be no reference to the factors that ultimately led the High Court
to grant bail. In fact, no reasoning is apparent from the impugned
D order.
18. Reasoning is the life blood of the judicial system. That every
order must be reasoned is one of the fundamental tenets of our
system. An unreasoned order suffers the vice of arbitrariness. In
Puran v. Rambilas, (2001) 6 SCC 338 this Court held as under:
E “8. …Giving reasons is different from discussing merits or
demerits. At the stage of granting bail a detailed examination
of evidence and elaborate documentation of the merits of the
case has not to be undertaken. What the Additional Sessions
Judge had done in the order dated 11-9-2000 was to discuss
F the merits and demerits of the evidence. That was what was
deprecated. That did not mean that whilst granting bail
some reasons for prima facie concluding why bail was
being granted did not have to be indicated.” (emphasis
supplied)
G 19. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC
528 this Court indicated the importance of reasoning in the
matter concerning bail and held as follows:
25
Order in Criminal Appeal No. 649 of 2022 @ SLP(Crl) No. 7893 of 2021 dated 19th
H April 2022
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 839
[HIMA KOHLI, J.]
“11. The law in regard to grant or refusal of bail is very well A
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
B
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)
20. In Brij Nandan Jaiswal v. Munna, (2009) 1 SCC 678, which C
concerned a challenge to grant of bail in a serious offence, this
Court has reiterated the same position as was observed in Kalyan
Chandra Sarkar (supra). This Court has held as under:
“12… However, we find from the order that no reasons were
given by the learned Judge while granting the bail and it seems D
to have been granted almost mechanically without considering
the pros and cons of the matter. While granting bail,
particularly in serious cases like murder some reasons
justifying the grant are necessary.””
(emphasis supplied) E
27. The impugned order reveals that the High Court has made
short shrift of the submissions made by the prosecution counsel to the
effect that in her statements recorded under Sections 161 and 164 Cr.P.C.,
the appellant/complainant has not waivered and stuck to her version and
the fact that the respondent No. 2 has previous criminal history. It is F
worthwhile to note that the criminal antecedents of the respondent No.2
were brought to the notice of the High Court by the appellant/complainant
and learned counsel for the respondent No.1/State has also confirmed
that he is involved in at least four criminal cases as detailed below:
G
H
840 SUPREME COURT REPORTS [2022] 3 S.C.R.
A
B
C
28. It has been vehemently urged on behalf of the appellant/
complainant that the respondent No.2’s bail order deserves to be set
aside not only on the grounds stated above, but also in the light of his
D blatant conduct subsequent to being released for which reference has
been made to his photographs appearing in the social media with his
snapshots prominently displayed on posters/hoarding in the forefront with
the faces of some influential persons of the society in the backdrop,
welcoming him with captions like “Bhaiyaa is back”, “Back to
Bhaiyaa”, and “Welcome to Role Janeman”.
E
29. The explanation sought to be offered for the above by the
learned counsel for the respondent No.2 is that he is a student leader
who belongs to a community that celebrates the festival “Maa Narmada
Jayanti” and the posters in question have nothing to do with his being
released on bail. However, the captions referred to above with emojis of
F
crowns and hearts thrown in for good measure, belie this version.
30. Even if it is assumed that the posters in question were not
contemporaneous to the release of the respondent No.2 from detention,
the captions tagged to his photographs on the social media highlight the
superior position and power wielded by the respondent No.2 and his
G family in the society and its deleterious impact on the appellant/
complainant. The emojis of crowns and hearts tagged with the captions
quoted above are devoid of any religious sentiments sought to be portrayed
by the respondent No.2. On the other hand, they amplify the celebratory
mood of the respondent No.2 and his supporters on his having been
H
MS. P v. THE STATE OF MADHYA PRADESH AND ANOTHER 841
[HIMA KOHLI, J.]
released from detention in less than two months of being taken into A
custody for a grave offence that entails sentence of not less than ten
years that may even extend to life. The brazen conduct of the respondent
No.2 has evoked a bona fide fear in the mind of the appellant/complainant
that she would not get a free and fair trial if he remains enlarged on bail
and that there is a likelihood of his influencing the material witnesses. It
B
is noteworthy that a representation has also been submitted by the
appellant’s father to the Superintendent of Police, District Jabalpur
expressing the very same apprehension.
31. In view of the aforesaid facts and circumstances, we are of
the considered opinion that the respondent No. 2 does not deserve the
concession of bail. Relevant material brought on record has been C
overlooked by the High Court while granting him bail. The supervening
adverse circumstances referred to above, also warrant cancellation of
bail. Accordingly, the impugned order is quashed and set aside and the
respondent No. 2 is directed to surrender within one week from the date
of passing of this order. D
32. It is however clarified that the observations made above are
confined to examining the infirmity in the impugned order granting bail to
the respondent No.2 and his conduct thereafter and shall not be treated
as an opinion on the merits of the case which shall be decided on the
basis of the evidence that shall be placed before the trial Court. This E
order shall also not preclude the respondent No.2 from applying afresh
for bail at a later stage, if any, new circumstances are brought to light.
33. The appeal is allowed and disposed of on the above terms.
Nidhi Jain Appeal allowed. F
(Assisted by : Shashwat Jain, LCRA)
G
H
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