Holding

The High Court’s bail order was set aside because it failed to consider the requisite factors and to give reasons for a prima facie conclusion, constituting non‑application of mind.

Summary

The State of Maharashtra appealed against a Nagpur Bench order of the Bombay High Court that granted bail to the accused Dhanendra Shriram Bhurle and others, who were charged under the Unlawful Activities (Prevention) Act, 1967, the Arms Act, 1959 and the Indian Penal Code. The High Court had concluded, without detailed reasoning, that the charge‑sheet did not disclose any act constituting the offences and therefore granted bail. The Supreme Court held that a bail order in serious cases must state the reasons for a prima facie conclusion and must consider the nature of the accusation, the severity of punishment, the supporting evidence, and the risk of witness tampering. It observed that the High Court failed to apply these parameters and thus erred in granting bail. Consequently, the Supreme Court set aside the High Court’s bail order and directed the trial court to complete the trial expeditiously. The appeal was allowed, but the Court did not express any view on the merits of the underlying criminal case.

Issues considered

Whether the High Court was justified in granting bail to the accused without recording reasons and without considering the relevant parameters for serious offences under UAPA, the Arms Act and IPC.
Whether the bail order suffered from non‑application of mind as required under Section 438 of the Code of Criminal Procedure.

Legislation cited

Arms Act, 1959s. 3, s. 4
Code of Criminal Procedure, 1973s. 437(1)(i), s. 438, s. 439(2)
Indian Penal Code, 1860s. 120B, s. 34, s. 353
Unlawful Activities (Prevention) Act, 1967s. 10, s. 13, s. 18, s. 20, s. 29

Subjects

bailnon‑application of mindprima facie satisfactionserious offencesUAPAArms ActIPCSection 438 CrPCjudicial discretion

Judgment

__. [2009] 3 S.C.R. 143

STATE OF MAHARASHTRA ETC. A
w(
v.
DHANENDRA SHRIRAM BHURLE ETC.
(Criminal Appeal No. 269-270 of 2009)
FEBRUARY 11, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]

Code of Criminal Procedure, 1973 - s. 438 - Bail -
Grant of - Factors to be considered - Explained - On facts, c
accused charged under Unlawful Activities (Prevention) Act,
Arms Act and Penal Code - Grant of bail by High Court
holding that accusations as regard charged offences not
made out - Justification of - Held: Not justified:.... High Court
., did not keep in view the relevant parameters while granting D
bail - Thus, order of High Court set aside - Unlawful Activities
(Prevention) Act, 1967 - ss 10, 13, 18 & 20 - Arms Act, 1959
.:... ss. 3 & 4 - Penal Code, 1860 - s. 353 rlw ss. 34 & 120 B.

The question which arose for consideration in these
E
appeals was whether the High Court was justified in
granting bail to the accused facing trial for the
commission of offences punishable ulss. 10, 13, 18 and
.J
29 of the Unlawful Activities (Prevention) Act, 1967; ss. 3
and 4 of the Arms Act 1959; ands. 353 r/w ss. 34 and 120
~.
B IPC by an abrupt conclusion that no offence was made F
out as regard the charged offences.

Allowing the appeals, the Court

HELD: 1.1 Whlle dealing with an application for bail, G
• there is a need to indicate in the order, reasons for prima
facie concluding why bail was being granted particularly
J where an accused was charged of having committed a
serious offence. It is necessary for the courts dealing
143 H
144 SUPREME COURT REPORTS [2009) 3 S.C.R.

A with application for bail to consider among other
circumstances, the following factors also befo1re granting
bail: The nature of accusations and the severity of
punishment in case of conviction and the nature of
supporting evidence; reasonable apprehension of
B tampering of the witness or apprehension of threat to the
complainant; and prima facie satisfaction of the Court in
support of the charge. Any order de hors such reasons
suffers from non-application of mind. [Para 8 aind 9] [147-
8-F]
c 1.2. Though a conclusive finding in regard to the
aforesaid points is not expected of the Court considering
the bail application, yet giving reasons is different from
discussing merits or demerits. At the stage 1Df granting
bail a detailed examination of evidence andl elaborate
D documentation of the merits of the case has not to be
undertaken. But that does not mean that while granting
bail some reasons for prima facie concluding why bail
was being granted is not required to be indicated. [Para
10] [147-G-H; 148-A]
E
Ram Govind Upadhyay v. Sudarshan Singh and Ors.
(2002) 3 SCC 598, Puran etc. v. Rambilas and Anr. Etc.
(2001) 6 SCC 338 and Kalyan Chandra Sarkar v. Rajesh
Ranjan alias Pappu Yadav & Anr. JT 2004 (3) SC 442, relied
F on.
Lokesh Singh v. State of UP. and Anr. SL.P(Crl.) No.
2861 of 2007 disposed of by Supreme Court c1n 21.11.08, ,,,....
referred to.

G 2. High Court found that on reading of the charge
sheet, nothing is disclosed as to what are the imputations •
of acts done by these applicants under ss 10, 13, 18 and
\I
20 of the Unlawful Activities (Prevention) Act, 1967 and
other offences. None of the ingredients of those Sections
H are described as committed by these persons. All that is
STATE OF MAHARASHTRA ETC. v. DHANENDRA 145
SHRIRAM BHURLE ETC.

asserted is that except that these accused had a meeting A
with accused Nos.1 and 2 and an inference that they are
associated with the accused Nos.1 and 2. There are no
other imputations. By order dated 19.9.2008 a Bench of
this court has directed stay of the impugned order. It is
stated that the accused persons were sent to custody in B
view of the order and are presently in custody. Since the
High Court did not keep the relevant parameters in view,
while granting bail, the impugned order is set aside. [Para
6, 7 and 15] [146-G; 147-A; 150-C]

Case Law Reference:
c
(2002) 3 sec 598 Relied on. Para 9
c2001) 6 sec 338 Relied on. Paras 9, 13
JT 2004 (3) SC 442 Relied on. Paras 9, 11 D

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 269-270 of 2009.

From the Judgment and Order dated 15.7.2008 of the High
Court of Judicature at Bombay, Bench at Nagpur in Criminal E
Application No. 1502 of 2008 and 1612 of 2008.

Ravindra Keshavrao Adsure for the Appellant.

Manish Pita le & Chaner Shekhar Ashri for the Respondent.
F
The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in these appeals is to the order passed by a G
learned Single Judge of the Bombay High Court. Nagpur
Bench, granting bail to the respondents. The accused persons
are facing trial for alleged commission of offences punishable
under Sections 10, 13, 18 & 29 of the Unlawful Activities
(Prevention) Act, 1967 (in short the 'Act') and Sections 3&4 of
the Arms Act, 1959 (in short the 'Arms Act') and Section 353 H
,Ill

146 SUPREME COURT REPORTS (2009] 3 S.C.R.

A read with Sections 34 & 1208 of the Indian Penal Code, 1860
(in short the 'IPC'). The High Court referred to the circumstances
highlighted by the parties and came to hold that th1e accusations/
imputation do not constitute the charged offences. Accordingly,
bail was granted subject to certain conditions.
B
3. Learned counsel for the appellant submitted that the
High Court has misconceived the scope and ambit of the
provisions and misinterpreted the ingredients of the offence and
came to an abrupt conclusion that no offence is made out. This
C will seriously prejudice the trial. No reason has been indicated
as to why the Hiah Court came to the conclusion, that too
abruptly that no offence was made out so far as the charged
offences are concerned.

4. If the versions contained in the affidavits opposing the
D bail applications are taken into account the offences are made
out. Learned counsel for the respondent, on the other hand,
supported the judgment of the High Court. It is stated that the
imputations do not constitute and even do not describe the
commission of offence under Sections 10, 13, 18 and 20 of the
E Act or other offences alleged against them.

5. It is seen that the charge sheet does not comprise of
statements of witnesses as to exact involvement of the accused
persons, describing involvement to correspond to the .
F ingredients of Sections 10, 13, 18, 20 of the Act and other
offence is alleged against the applicants.

6. The High Court found that on reading of the charge
sheet, nothing is disclosed as to what are the imputations of
acts done by these applicants under Sections 10, 13, 18 and
G 20 of the Act and other offences. Non of the ingredients of those L
Sections are described as committed by these persons. All that
is asserted is that except that these accused had a meeting
with accused Nos.1 and 2 and an inference that they are
associated with the accused Nos.1 and 2. There are no other
H imputations.
STATE OF MAHARASHTRA ETC. v. DHANENDRA 147
SHRIRAM BHURLE ETC. [DR. ARIJIT PASAYAT, J.]

7. By order dated 19.9.2008 a Bench of this court has A
directed stay of the impugned order. It is stated that the accused
persons were sent to custody in view of the order and are
presently in custody.

8. While dealing with an application for bail, there is a need
B
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 following factors also before granting
bail, they are:
c
1. The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence;
D
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. E

9.Any order de hors such reasons suffers from non-
application of mind as was noted by this Court, in Ram Govind
J Upadhyay v. Sudarshan Singh and Ors. [(2002) 3 SCC 598],
Puran etc. v. Rambilas and Anr. Etc. [(2001) 6 SCC 338)] and F
in Ka/yan Chandra Sarkar v. Rajesh Ranjan alias Pappu
Yadav & Anr. [JT 2004 (3) SC 442].

10. Though a conclusive finding in regard to the points
urged by the parties is not expected of the Court considering
G
the bail application, yet giving reasons is different from
• discussing merits or demerits. As noted above, 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. But lhat does not mean that while granting bail
some reasons for prima facie concluding why bail was being H
148 SUPREME COURT REPORTS

A granted is not required to be indicated.
[2009] 3 S.C.R.
-
11. In Kalyan Chandra Sarkar v. Rajesh Ranjan@ Pappu
Yadav and Anr. (2004 (7) SCC 528) In para '11 it was noted
as follows:
8 "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 or
course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of
c 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
D from non-application of mind. It is also necessary for the
court granting 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
E
evidence.

(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.

F (c) Prima facie satisfaction of the court in support of the
charge. (See Ram Govind Upadhyay v. Sudarshan
Singh (2002 (3) SC 598) and Puran v. Rambi/as (2001
(6) sec 338)."

12. It was also noted in the said case that the conditions
G laid down under Section 437 (1)(i) are sine qua non for granting
bail even under Section 439 of the Code.

13. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it
was noted as follows:
H
STATE OF MAHARASHTRA ETC. v. DHANENDRA 149
SHRIRAM BHURLE ETC. [DR. ARIJIT PASAYAT, J.]

"11. Further, it is to be kept in mind that the concept of A
setting aside the unjustified illegal or perverse order is
totally different from the concept of cancelling the bail on
the ground that the accused has misconducted himself or
because of some new facts requiring such cancellation.
This position is made clear by this Court in Gurcharan B
Singh v. State (Delhi Admn.). In that case the Court
observed as under: (SCC p.124, para 16)

"If, however, a Court of Session had admitted an
· accused person to bail, the State has two options.
It may move the Sessions Judge if certain new
c
circumstances have arisen which were not earlier
known to the State and necessarily, therefore, to
that court. The State may as well approach the High
Court being the superior court under Section 439(2)
to commit the accused to custody. When, however, D
the State is aggrieved by the order ofthe Sessions
Judge granting bail and there are no new
circumstances that have cropped up except those
already existing, it is futile for the State to move the
Sessions Judge again and it is competent in law E
to move the High Court for cancellation of the bail.
This position follows from the subordinate position
~ ' of the Court of Session vis-a-vis the High Court."

"If, however, a Court of Session had admitted an F
accused person to bail, the State has two options.
It may move the Sessions Judge if certain new
circumstances have arisen which were not earlier
known to the State and necessarily, therefore, to
that court. The State may as well approach the High G
Court being the superior court under Section 439(2)
to commit the accused to custody. When, however,
the State is aggrieved by the order of the Sessions
Judge granting bail and there are no new
circumstances that have cropped up except those
H
150 SUPREME COURT REPORTS (2009] 3 S.C.R.

A already existing, it is futile for the State to move the
Sessions Judge again and it is competent in law
to move the High Court for cancellation of the bail.
This position follows from the subordinate position
of the Court of Session vis-a-vis the High Court."
-
B
14. The above position was highlighted in Lokesh Singh
v. State of U.P. and Anr. fSLP( Crl.) No. :2861 of 2007
disposed of on October 21, 2008)

15. Since the High Court had not kept the relevant
C parameters in view, while granting bail, we set aside the
impugned order. We, however, make it clear that we have not
expressed any opinion on the merits of the case'. We however,
request the trial court to complete the trial as early as
practicable preferably within six months from the date of receipt
D of this court's order.

16. The appeals are allowed to the aforesaid extent.

N.J. Appeals allowed.