THE STATE OF KERALAversusMAHESH

964                      [2021]REPORTS
               SUPREME COURT    2 S.C.R. 964                 [2021] 2 S.C.R.


A                          THE STATE OF KERALA
                                         v.
                                    MAHESH
                        (Criminal Appeal No. 343 of 2021)
B                               MARCH 19, 2021
            [INDIRA BANERJEE AND KRISHNA MURARI, JJ.]
             Code of Criminal Procedure, 1973: s.439 – Appeal against
      grant of bail – Accused-respondent was accused of a heinous and
      shocking murder of a lady doctor aged about 30 years – Incident
C
      alleged to have taken place in the presence of victim’s father – His
      bail application was dismissed by Sessions Court – Bail application
      moved before High Court was, however, allowed within 10/12 days
      of dismissal of bail application by Sessions Court – State filed appeal
      against the grant of bail – Held: In the impugned order, High Court
D     did not advert to any error in the reasoning of Sessions Court –
      Nor was there any discussion of the reason why High Court took a
      view different from that taken by Sessions Court and whether there
      were any supervening circumstances within 10/12 days of the order
      of the Sessions Court, which necessitated a different view – High
      Court clearly erred in not appreciating the apprehension of
E
      prosecution that the respondent would influence witnesses, could
      not be put to rest by directing respondent not to enter the jurisdiction
      of Ollur Police Station – High Court completely ignored the fact
      that the deceased victim used to reside at Ernakulam – Her parents
      and her five years old daughter resided at Ernakulam – Most of the
F     prosecution witnesses were from Thrissur – There was no reason to
      suppose that the witnesses would restrict their movements to the
      limits of the jurisdiction of Ollur Police Station – High Court also
      completely mis-appreciated the object, scope and ambit of the
      directions issued by this Court from time to time in In Re : Contagion
      of Covid 19 Virus In Prisons – The orders of this Court were not to
G
      be construed as any direction, or even observation, requiring release
      of under-trial prisoners charged with murder, and that too, even
      before investigation is completed and the chargesheet is filed –
      Respondent was charged with murder in the presence of an eye
      witness, and impugned order granting bail was filed even before
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                                        964
                THE STATE OF KERALA v. MAHESH                            965


the chargesheet was filed – Moreover, Respondent-Accused had             A
been absconding after the incident – Order of High Court granting
bail is liable to be set aside.
      Bail: Appeal against grant of bail and cancellation of bail –
The exercise of appellate jurisdiction to adjudge correctness of a
bail order are not restricted by the principles for cancellation of      B
bail.
      Allowing the appeal, the Court
      HELD: 1. It is well settled that though the power to grant
bail under Section 439 of the Cr.P.C is discretionary, such
discretion has to be exercised judiciously. There is no straight         C
jacket formula for grant or refusal of bail. Seriousness of the charge
is undoubtedly one of the relevant considerations while
considering bail applications. All the relevant factors have to be
weighed by the Court considering an application for bail, including
the gravity of the offence, the evidence and material which prima        D
facie show the involvement of applicant for bail in the offence
alleged, the extent of involvement of the applicant for bail, in the
offence alleged, possibility of the applicant accused absconding
or otherwise defeating or delaying the course of justice,
reasonable apprehension of witnesses being threatened or
influenced or of evidence being tempered with, and danger to             E
the safety of the victim (if alive), the complainant, their relatives,
friends or other witnesses. [Paras 16, 22][973-A; 977-E-H]
      Ram Govind Upadhyay v. Sudarshan Singh and Ors.
      (2002) 3 SCC 598 : [2002] 2 SCR 526; Prasanta Kumar
      Sarkar v. Ashis Chatterjee and Anr. (2010) 14 SCC                  F
      496 : [2010] 12 SCR 1165; Mahipal v. Rajesh Kumar
      and Anr. (2020) 2 SCC 118; Sanjay Chandra v. Central
      Bureau of Investigation (2012) 1 SCC 40 : [2011]
      13 SCR 309; Siddharam Satlingappa Mhetra v. State
      of Maharashtra and Ors. (2011) 1 SCC 694 : [2010]                  G
      15 SCR 201 – relied on.
      2. This Court does not ordinarily interfere with an order
granting or refusing bail in exercise of its power under Article

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966            SUPREME COURT REPORTS                      [2021] 2 S.C.R.


A     136 of the Constitution. However, the practice of not interfering
      with orders granting and/or refusing bail is not unexceptionable.
      An order granting or refusing bail without application of mind
      and in disregard of relevant factors, cannot be allowed to stand.
      The exercise of appellate jurisdiction to adjudge correctness of
      a bail order are not restricted by the principles for cancellation of
B
      bail. [Paras 24, 29][978-B-D; 979-D]
            Jagdish and Ors. v. Harendrajit Singh (1985) 4 SCC
            508; P. Chidambaram v. Directorate of Enforcement
            2020 (13) SCC 791; Dolat Ram and Ors. v. State of
            Haryana (1995) 1 SCC 349:[1994] 6 Suppl. SCR 69;
C           Prabhakar Tewari v. State of U.P. and Anr. (2020) 11
            SCC 648 – referred to.
            3. The High Court neither considered nor discussed the
      elaborate reasons given by the Sessions Court in its order
      rejecting the prayer of the Respondent Accused for bail. The
D     impugned order of the High Court does not advert to any error
      in the reasoning of the Sessions Court. Nor is there any
      discussion of the reason why the High Court took a view different
      from that taken by the Sessions Court – whether there were any
      supervening circumstances within 10/12 days of the order
E     of the Sessions Court, which necessitated a different view.
      [Para 34][983-D-F]
            4. The High Court clearly erred in not appreciating that
      the apprehension of the Prosecution that the Respondent Accused
      would influence witnesses, could not be put to rest, by directing
F     the Respondent Accused not to enter the jurisdiction of Ollur
      Police Station. The High Court completely ignored the fact that
      the deceased victim used to reside at Ernakulam. Her parents
      and her five years old daughter reside at Ernakulam. In other
      words, the only eye witness is a resident of Ernakulam. Most of
      the Prosecution witnesses were from Thrissur. There was no
G     reason to suppose that the witnesses would restrict their
      movements to the limits of the jurisdiction of Ollur Police Station.
      [Para 35][983-F-H]
            5. It further appears from the impugned order that, in
      granting bail to the Respondent Accused, the High Court took
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               THE STATE OF KERALA v. MAHESH                         967


note of the fact that two other accused persons had not been         A
arrested. The High Court completely ignored the fact that these
two accused persons were not named in the FIR. They were
charged after investigation with offence under Section 212, of
harbouring the Respondent Accused, punishable with
imprisonment for a maximum period of five years, unlike the
                                                                     B
Respondent Accused, charged with murder under Section 302 of
the IPC, which entails minimum punishment of imprisonment for
life. [Para 36][984-A-C]
      6. There can be no doubt that the outbreak of the novel
COVID-19 pandemic and its spread has been a matter of serious
public concern. In Suo Motu Writ Petition (Civil) No.1 of 2020       C
In Re : Contagion of Covid 19 Virus In Prisons, this Court
expressed concern over the possibility of spread of COVID-19
amongst prisoners lodged in overcrowded correctional homes
and accordingly issued directions from time to time, directing
the authorities concerned to inter alia take steps as directed by    D
this Court, to minimize the risk of spread of COVID amongst the
inmates of correctional homes. This Court also directed that a
High Powered Committee be constituted by the States and Union
Territories to consider release of some prisoners on interim bail
or parole during the Pandemic, to prevent overcrowding of
prisons. It appears that the High Court has completely mis-          E
appreciated the object, scope and ambit of the directions issued
by this Court from time to time in In Re : Contagion of Covid 19
Virus In Prisons. This Court did not direct release of all under-
trial prisoners, irrespective of the severity of the offence. The
States and Union Territories were directed to constitute a High      F
Powered Committee to determine which class of prisoners could
be released on parole or interim bail for such period as might be
thought appropriate. The orders of this Court are not to be
construed as any direction, or even observation, requiring release
of under-trial prisoners charged with murder, and that too, even
before investigation is completed and the chargesheet is filed.      G
The Respondent Accused was charged with murder in the
presence of an eye witness, and the impugned order granting
bail was filed even before the chargesheet was filed. The

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968            SUPREME COURT REPORTS                       [2021] 2 S.C.R.


A     Chargesheet appears to have been filed on 01.01.2021.
      Moreover the Respondent Accused had been absconding after
      the incident. [Paras 37, 38][984-C-H; 985-A-B]
                             Case Law Reference
            [2002] 2 SCR 526             relied on            Para 16
B
            [2010] 12 SCR 1165           relied on            Para 17
            (2020) 2 SCC 118             relied on            Para 18
            [2011] 13 SCR 309            relied on            Para 19
            [2010] 15 SCR 201            relied on            Para 19
C
            (1985) 4 SCC 508             referred to          Para 24
            (2020) 13 SCC 791            referred to          Para 26
            [1994] 6 Suppl. SCR 69       referred to          Para 27
D           (2020) 11 SCC 648            referred to          Para 30
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      343 of 2021
            And
            Interlocutory application nos. 24659 and 41412 of 2021
E
            From the Judgment and Order dated 21.12.2020 of the High Court
      of Kerala at Ernakulam in Bail Application No. 8821 of 2020.
            Nishe Rajen Shonker, Adv. for the Appellant.
             Raghenth Basant, Ms. Rasna Kalkat, Ms. Liz Mathew, Jaimon
F     Andrews, Piyo Harold Jaimon, Sandeep Thakur, Naresh Kumar, Advs.
      for the Respondent.
            The Judgment of the Court was delivered by
            INDIRA BANERJEE, J.
G           Leave granted.
             2. This Appeal filed by the State of Kerala is against an order
      dated 21st December 2020 passed by the High Court of Kerala granting
      bail to the Respondent, accused of a heinous and shocking murder of a
      lady doctor aged about 30 years.
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                  THE STATE OF KERALA v. MAHESH                                    969
                       [INDIRA BANERJEE, J.]

        3. It is the case of the Prosecution that on 28th September 2020 at        A
about 3.30 p.m., the Respondent Accused stabbed the victim, with a
knife, inside a multispeciality dental clinic, run by the victim at Kuttanellur.
The victim succumbed to her injuries at Jubilee Mission Hospital on 4th
October, 2020.
      4. As per the case of the Prosecution, the victim met the                    B
Respondent Accused after her divorce from her erstwhile husband. The
victim and the Respondent Accused became close and started living
together from 2018 onwards. The victim became pregnant, but the
Respondent Accused forced her to undergo an abortion, by threatening
her.
                                                                                   C
       5. The deceased victim had, as per the case of the Prosecution,
started the Multispeciality Dental Clinic, with financial support from her
father. The Respondent Accused misappropriated money from the clinic
and also harassed the victim, both physically and mentally. In the
circumstances, the victim was constrained to separate from Respondent
Accused and start living at her own house. As the Respondent Accused               D
continued to threaten the victim, the victim had, along with her father,
filed a complaint with the City Police Commissioner, Thrissur on 26th
September, 2020.
       6. The victim was called to the Ollur Police Station for a settlement
and thereafter to her dental clinic on 28th September 2020 at 3.30. p.m.           E
The Respondent Accused stabbed the victim with a knife on the right
side of the stomach, in the presence of her father, at the dental clinic.
       7. An FIR was lodged at the Ollur Police Station, Thrissur on 28th
September 2020, under Sections 341, 324 and 307 of the Indian Penal
code (IPC), pursuant to which Crime No. 1777/2020 of Ollur Police                  F
Station was started. However, after the death of the victim, Section 302
was added and an Inclusion Report to that effect was filed in the
Jurisdictional Court. The crime as stated above has been registered under
Sections 341, 324, 201, 212, 307 and 302 of the IPC. The Respondent
Accused was arrested on 6th October, 2020.                                         G
       8. A Bail application filed by the Respondent Accused in the
Sessions Court was dismissed by an order dated 9th December, 2020
with the following findings:-
       “12. In view of the settled position as laid down by the Apex
       court, while considering an application for bail, the court                 H
970     SUPREME COURT REPORTS                        [2021] 2 S.C.R.


A     has to exercise the discretion in a judicious manner with care
      and caution, though at this stage elaborate examination of
      evidence and detailed reasoning touching the merit of the
      case is not required. But there is need to indicate in the order
      the reasons for the prima facie conclusion why bail is not
      granted. Prime facie satisfaction of the court in support of
B
      the charge alone is sufficient for the court to arrive at a
      conclusion as to whether the petitioner is entitled to get an
      order of bail. From the materials on record as revealed from
      the case diary, it could be seen that the petitioner had reached
      the clinic with a knife and after the culmination of the
C     discussion, he had attacked the deceased and inflicted very
      serious stab injury and caused damages to her internal vital
      organs. After committing the crime, the petitioner had
      absconded and he could be apprehended only on 06.10.2020
      on receiving secret information by the investigation agency
D     regarding the arrival of the petitioner at Poonkunnam. After
      committing the crime, the petitioner had abandoned his car
      and got himself absconded and kept himself away from the
      vicinity of the police with the aid of his brother, worker and a
      friend. There is merit in the objection raised by the police
      regarding the possibility of the petitioner absconding from
E     appearing before court.
      13. The next objection raised by the prosecution is that since
      the deceased is a resident of Ernakulam and all prosecution
      witnesses are hailing from Thrissur, there is likelihood of the
      petitioner causing influence on the prosecution witnesses. This
F     is a valid ground to decline the release. The brutality of the
      crime committed by the petitioner in causing multiple stab
      injuries on the abdomen of the victim also has to be taken
      into account. The investigation agency could collect sufficient
      evidence to incriminate the petitioner in the crime. On
G     consideration of the entire facts and circumstances, it is found
      that there are reasonable grounds to arrive at a conclusion
      that granting of bail to the petitioner would adversely affect
      the prosecution from adducing evidence in support of the
      charge and hence the petitioner is found not entitled to get
      an order of release.”
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                 THE STATE OF KERALA v. MAHESH                                971
                      [INDIRA BANERJEE, J.]

      9. On 14th December 2020, the Respondent Accused filed the bail         A
application being B.A. No.8821 of 2020 in the High Court under Section
439 of the Cr.P.C. The prayer for bail was strongly opposed by the
Public Prosecutor who argued that, if released, the Respondent Accused
would influence witnesses many of whom were his close relatives, friends
and acquaintances.
                                                                              B
       10. The High Court has however, granted bail to the Respondent
Accused, by the order impugned in this appeal, notwithstanding the
opposition of the Public Prosecutor, overlooking the materials on record,
which prima facie indicate that the Respondent had committed cold
blooded murder of a young lady doctor, as a fall out of a soured
relationship. The relevant part of the impugned order set out hereinbelow:-   C

      “7. After hearing both sides, I think this Bail Application can
      be allowed on stringent conditions. It is true that the
      allegations against the petitioner are very serious and the
      incident now put forward by the prosecution is so heinous.
      But the petitioner is in custody from 6.10.2020 onwards. The            D
      Public Prosecutor also submitted that the second and third
      accused were not arrested. But it is a matter to be considered
      that the petitioner is in custody from 6.10.2020 onwards.
      Indefinite incarceration of the petitioner may not be necessary
      in the facts and circumstances of this case. But the                    E
      apprehension of the prosecution is also to be taken care of.
      In such circumstances, there can be a direction to the
      petitioner not to enter the jurisdictional limit of Ollur Police
      Station till the investigation in this case is over.”
       11. As stated above, the Incident took place in the presence of the    F
victim’s father, who is an eye witness to the incident. The unfortunate
father has filed an application for intervention being Interlocutory
Application No. 41412 of 2021, and has supported the appeal against the
order impugned.
       12. In the said application, being I.A No.41412 of 2021 for            G
intervention, the unfortunate father has contended that the Respondent
Accused came to the dental clinic with a knife, which clearly showed
that he had a preplanned plot to kill the victim. The manner in which the
Respondent Accused stabbed the victim on her stomach, and inflicted
injuries on her, which is corroborated by the post-mortem report, clearly
shows intention to cause death. He has also stated that according to the      H
972             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A     Doctors it was medical miracle that the victim survived four to five
      days, even though she was in complete coma all through.
             13. Attacking the impugned order of the High Court, Counsel
      appearing on behalf of the Appellant supported by Counsel appearing on
      behalf of the father of the victim, being the applicant in I.A. No. 41412
B     of 2021 in this Special Leave Petition, has argued that the Respondent
      Accused had committed the gruesome murder of a young woman in the
      presence of her father, who was an eye witness to the incident. The
      High Court should have declined the prayer for bail on that ground alone.
      The impugned order granting bail to the Respondent Accused,
      notwithstanding the gravity of the offence, is devoid of cogent reasons,
C     justifying the grant of bail to the accused. The High Court neither
      considered nor elaborate reasons given by Sessions Court in the order
      directing bail to the Accused Respondent. It is submitted that restraining
      the Respondent Accused from entering the jurisdictional limit of Ullur
      Police Station till the investigation was over, would not prevent the
D     Respondent Accused from influencing or threatening witnesses.
             14. The Respondent Accused has appeared before the Court
      through Ms. Liz Mathew, Advocate and filed a Counter Affidavit to the
      Special Leave Petition. Significantly, the Respondent has admitted the
      incident but stated that “During the discussion, verbal altercation
      arose between the parents of the deceased and the defacto
E
      complainant who accompanied the deceased victim. A scuffle took
      place and unfortunately the deceased victim had sustained injury.
      The Respondent had no intention or preparation to commit any
      offence.”
             15. On behalf of the Respondent Accused, it has been argued
F     that the impugned order of the High Court is well reasoned. The High
      Court found that the Respondent Accused was in custody from 6th
      October 2020 onwards. Indefinite incarceration of the Respondent
      Accused was found not necessary. Counsel appearing for the Appellant
      submitted that the bail application has been allowed on stringent conditions.
G     Counsel emphasized on the conditions imposed by the impugned order
      restraining the Respondent Accused from entering the jurisdictional limit
      of Ollur Police Station, till the main witnesses in the case were examined
      by the Trial Court. She also emphatically argued that bail once granted
      should not be cancelled in a mechanical manner without considering
      whether there were supervening circumstances which would render the
H     bail no longer conducive to a fair trial.
                THE STATE OF KERALA v. MAHESH                             973
                     [INDIRA BANERJEE, J.]

       16. It is well settled that though the power to grant bail under   A
Section 439 of the Cr.P.C is discretionary, such discretion has to be
exercised judiciously, as held by this Court in Ram Govind Upadhyay
v. Sudarshan Singh and Ors.reported in (2002) 3 SCC 598. Speaking
for the Court, Umesh Chandra Banerjee, J. said:-
      “3. Grant of bail though being a discretionary order — but,         B
      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. While placement          C
      of the accused in the society, though may be considered but
      that by itself cannot be a guiding factor in the matter of grant
      of bail and the same should and ought always to be coupled
      with other circumstances warranting the grant of bail. The
      nature of the offence is one of the basic considerations for        D
      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           E
      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      F
         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          G
         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.
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974            SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A               (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 normal course of events, the accused
                is entitled to an order of bail.”
B
            17. In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.
      reported in (2010) 14 SCC 496, D.K. Jain, J., speaking for a two-Judge
      Bench of this Court laid down the principles for examining the correctness
      of orders granting bail to an accused. This Court held:-
C           “9. …It is trite that this Court does not, normally, interfere
            with an order [Ashish Chatterjee v. State of W.B., CRM No.
            272 of 2010, order dated 11-1-2010 (Cal)] 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
D           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
E               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
F               released on bail;
                (v) character, behaviour, means, position and standing of
                the accused;
                (vi) likelihood of the offence being repeated;
G               (vii) reasonable apprehension of the witnesses being
                influenced; and
                (viii) danger, of course, of justice being thwarted by grant
                of bail.
                                             ***
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                THE STATE OF KERALA v. MAHESH                            975
                     [INDIRA BANERJEE, J.]

      10. It is manifest that if the High Court does not advert to       A
      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.”
     18. In Mahipal v. Rajesh Kumar and Anr. reported in (2020) 2
SCC 118, this Court held:-                                               B

      “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         C
      the due 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             D
      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    E
      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       F
      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.”
      19. The Respondent Accused relied on the judgments of this Court   G
in Sanjay Chandra v. Central Bureau of Investigation reported in
(2012) 1 SCC 40 and Siddharam Satlingappa Mhetra v. State of
Maharashtra and Ors. reported in (2011) 1 SCC 694, where this Court
observed that seriousness of the charge is not test or factor while
considering the application for bail.
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976            SUPREME COURT REPORTS                      [2021] 2 S.C.R.


A          20. In Sanjay Chandra (supra), the accused were charged with
      economic offences of huge magnitude which could jeopardize the
      economy of the country. This Court held:-
           “21.In bail applications, generally, it has been laid down from
           the earliest times that the object of bail is to secure the
B          appearance of the accused person at his trial by reasonable
           amount of bail. The object of bail is neither punitive nor
           preventative. Deprivation of liberty must be considered a
           punishment, unless it is required to ensure that an accused
           person will stand his trial when called upon. The courts owe
           more than verbal respect to the principle that punishment
C          begins after conviction, and that every man is deemed to be
           innocent until duly tried and duly found guilty.
           22. From the earliest times, it was appreciated that detention
           in custody pending completion of trial could be a cause of
           great hardship. From time to time, necessity demands that some
D          unconvicted persons should be held in custody pending trial
           to secure their attendance at the trial but in such cases,
           “necessity” is the operative test. In this country, it would be
           quite contrary to the concept of personal liberty enshrined in
           the Constitution that any person should be punished in respect
           of any matter, upon which, he has not been convicted or that
E          in any circumstances, he should be deprived of his liberty
           upon only the belief that he will tamper with the witnesses if
           left at liberty, save in the most extraordinary circumstances.
           23. Apart from the question of prevention being the object of
           refusal of bail, one must not lose sight of the fact that any
F          imprisonment before conviction has a substantial punitive
           content and it would be improper for any court to refuse bail
           as a mark of disapproval of former conduct whether the
           accused has been convicted for it or not or to refuse bail to
           an unconvicted person for the purpose of giving him a taste
           of imprisonment as a lesson.
G
           24. In the instant case, we have already noticed that the
           “pointing finger of accusation” against the appellants is “the
           seriousness of the charge”. The offences alleged are economic
           offences which have resulted in loss to the State exchequer.
           Though, they contend that there is a possibility of the
H          appellants tampering with the witnesses, they have not placed
                 THE STATE OF KERALA v. MAHESH                                  977
                      [INDIRA BANERJEE, J.]

      any material in support of the allegation. In our view,                   A
      seriousness of the charge is, no doubt, one of the relevant
      considerations while considering bail applications but that is
      not the only test or the factor: the other factor that also requires
      to be taken note of is the punishment that could be imposed
      after trial and conviction, both under the Penal Code and the
                                                                                B
      Prevention of Corruption Act. Otherwise, if the former is the
      only test, we would not be balancing the constitutional rights
      but rather “recalibrating the scales of justice”.
      25.The provisions of CrPC confer discretionary jurisdiction
      on criminal courts to grant bail to the accused pending trial
      or in appeal against convictions; since the jurisdiction is               C
      discretionary, it has to be exercised with great care and
      caution by balancing the valuable right of liberty of an
      individual and the interest of the society in general. …….”
      21. In Siddharam Satlingappa Mhetra (supra) rendered in the
context of the discretion to grant anticipatory bail under Section 438, this    D
Court advocated the need to balance individual personal liberty with
societal interest. This Court held:-
      “84. Just as liberty is precious to an individual, so is the
      society’s interest in maintenance of peace, law and order. Both
      are equally important.”                                                   E
        22. There is no straight jacket formula for grant or refusal of bail.
Seriousness of the charge is undoubtedly one of the relevant
considerations while considering bail applications as held in Sanjay
Chandra (supra) cited on behalf of the Respondent Accused. All the
relevant factors have to be weighed by the Court considering an                 F
application for bail, including the gravity of the offence, the evidence
and material which prima facie show the involvement of applicant for
bail in the offence alleged, the extent of involvement of the applicant for
bail, in the offence alleged, possibility of the applicant accused absconding
or otherwise defeating or delaying the course of justice, reasonable
                                                                                G
apprehension of witnesses being threatened or influenced or of evidence
being tempered with, and danger to the safety of the victim (if alive), the
complainant, their relatives, friends or other witnesses.
      23. Counsel for the Respondent Accused finally argued that this
Court does not ordinarily entertain a petition for Special Leave to Appeal
                                                                                H
978            SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A     against an order granting or refusing or cancelling bail or anticipatory
      bail. Investigation in this case has been concluded and chargesheet has
      been filed on 1st January 2021.
             24. In Jagdish and Ors. v. Harendrajit Singh reported in (1985)
      4 SCC 508, cited on behalf of the Respondent Accused, this Court held
B     that, this Court does not ordinarily, in exercise of its discretion under
      Article 136, entertain petition for Special Leave to Appeal against orders
      granting or refusing or cancelling bail or anticipatory bail. There can be
      no dispute with the proposition. This Court does not ordinarily interfere
      with an order granting or refusing bail in exercise of its power under
      Article 136 of the Constitution. However, the practice of not interfering
C     with orders granting and/or refusing bail is not unexceptionable. An order
      granting or refusing bail without application of mind and in disregard of
      relevant factors, cannot be allowed to stand.
             25. Counsel argued that the Respondent Accused had been granted
      bail on 21st December 2020 that is almost three months ago, but has not
D     interfered with the course of administration of justice in any way. Nor
      has the Respondent Accused evaded or attempted to evade the due
      course of justice. Learned counsel argued that the Respondent Accused
      had been in judicial custody for 75 days. The investigation was over and
      continued detention of the Respondent Accused was no longer necessary.
E           26. Relying on the judgment of this Court in P. Chidambaram v.
      Directorate of Enforcement reported in 2020 (13) SCC 791, Counsel
      submitted that this Court had repeatedly highlighted the proposition that
      bail was the rule and jail the exception.
             27. Citing the judgment of this Court in Dolat Ram and Ors. v.
F     State of Haryana reported in (1995) 1 SCC 349, it was submitted that
      the Respondent Accused having been granted bail, by the impugned
      order dated 21st December 2020, this Court should not deprive him of
      his personal liberty, without considering whether there were any
      supervening circumstances which had rendered the freedom of the
G     Respondent Accused to bail, inexpedient for fair trial.
            28. In Dolat Ram (supra), this Court held:-
            “4. 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
H           overwhelming circumstances are necessary for an order
                 THE STATE OF KERALA v. MAHESH                                 979
                      [INDIRA BANERJEE, J.]

      directing the cancellation of the bail, already granted.                 A
      Generally speaking, the grounds for cancellation of bail,
      broadly (illustrative and 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 granted to the accused in any
                                                                               B
      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 rendered it no longer                     C
      conducive to a fair trial to allow the accused to retain his
      freedom by enjoying the concession of bail during the trial.”
       29. In this Appeal the correctness of the impugned order of the
High Court, in granting bail to the Respondent Accused is in question.
The exercise of appellate jurisdiction to adjudge correctness of a bail        D
order are not restricted by the principles for cancellation of bail. As held
by this Court, speaking through Dr. D.Y. Chandrachud J. in Mahipal v.
Rajesh Kumar (supra):-
      “16.The considerations that guide the power of an appellate
      court in assessing the correctness of an order granting bail             E
      stand on a different footing from an 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                  F
      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 ofU.P. [Neeru Yadav
      v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri)                 G
      527], the accused was granted bail by the High Court
      [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031].
      In an appeal against the order [Mitthan Yadav v. State of
      U.P., 2014 SCC OnLine All 16031] of the High Court, a two-
      Judge Bench of this Court surveyed the precedent on the
      principles that guide the grant of bail. Dipak Misra, J. (as             H
980             SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A           the learned Chief Justice then was) held: (Neeru Yadav case
            [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3
            SCC (Cri) 527], SCC p. 513, para 12)
            “12. … It is well settled in law that cancellation of bail after
            it is granted because the accused has misconducted himself
B           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 have not been taken note of, or bail
C           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
D           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.”
            17. Where a court considering an application for bail fails to
E           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. It is thus necessary
            for this Court to assess whether, on the basis of the evidentiary
F           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.”
             30. Counsel appearing for the Respondent Accused, has also cited
G     Prabhakar Tewari v. State of U.P. and Anr. reported in (2020) 11
      SCC 648 where this Court, speaking through Aniruddha Bose J. has
      discussed the scope of appellate interference to set aside an order granting
      bail. In Prabhakar Tewari (supra), this Court held:-
            “6. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, a
H           coordinate Bench of this Court has discussed the scope of
                THE STATE OF KERALA v. MAHESH                             981
                     [INDIRA BANERJEE, J.]

      jurisdiction of the appellate court in setting aside an order of    A
      granting bail. The two key factors for interfering with such
      an order are non-application of mind on the part of the court
      granting bail or the opinion of the court in granting bail is
      not borne out from a prima facie view of the evidence on
      record. In Mohd. Amir Rashadi v. State of U.P. (2012) 2 SCC
                                                                          B
      382, a two-Judge Bench of this Court declined to interfere
      with an order [Rama Kant Yadav v. State of U.P., 2010 SCC
      OnLine All 3388] of the High Court granting bail to an accused
      having considered the factual features of that case.”
       31. The High Court has also relied on the judgment of this Court
in P. Chidambaram (supra) reported in (2020) 13 SCC 791 cited on          C
behalf of the Respondent Accused. There could be no quarrel with the
proposition of law laid down in the cited judgment. A.S. Bopanna, J.
speaking for a three judge Bench held:-
      “23.Thus, from cumulative perusal of the judgments cited on
      either side including the one rendered by the Constitution          D
      Bench of this Court, it could be deduced that the basic
      jurisprudence relating to bail remains the same inasmuch as
      the grant of bail is the rule and refusal is the exception so as
      to ensure that the accused has the opportunity of securing
      fair trial. However, while considering the same the gravity of      E
      the offence is an aspect which is required to be kept in view
      by the Court. The gravity for the said purpose will have to be
      gathered from the facts and circumstances arising in each
      case. Keeping in view the consequences that would befall on
      the society in cases of financial irregularities, it has been
      held that even economic offences would fall under the category      F
      of “grave offence” and in such circumstance while
      considering the application for bail in such matters, the Court
      will have to deal with the same, being sensitive to the nature
      of allegation made against the accused. One of the
      circumstances to consider the gravity of the offence is also        G
      the term of sentence that is prescribed for the offence the
      accused is alleged to have committed. Such consideration with
      regard to the gravity of offence is a factor which is in addition
      to the triple test or the tripod test that would be normally
      applied. In that regard what is also to be kept in perspective
      is that even if the allegation is one of grave economic offence,    H
982            SUPREME COURT REPORTS                          [2021] 2 S.C.R.


A           it is not a rule that bail should be denied in every case since
            there is no such bar created in the relevant enactment passed
            by the legislature nor does the bail jurisprudence provide so.
            Therefore, the underlining conclusion is that irrespective of
            the nature and gravity of charge, the precedent of another
            case alone will not be the basis for either grant or refusal of
B
            bail though it may have a bearing on principle. But ultimately
            the consideration will have to be on case-to-case basis on
            the facts involved therein and securing the presence of the
            accused to stand trial.”
             32. In P. Chidambaram (supra), this Court allowed the appeal
C     from the order of the High Court, and allowed the prayer of the Appellant
      for bail, having regard to the facts and circumstances of the case noted
      by this Court, which are extracted hereinbelow:-
            “28. Therefore, at this stage while considering the bail
            application of the appellant herein what is to be taken note
D           of is that, at a stage when the appellant was before this Court
            in an application seeking for interim protection/anticipatory
            bail, this Court while considering the matter in Criminal
            Appeal No. 1340 of 2019 had in that regard held that in a
            matter of present nature wherein grave economic offence is
E           alleged, custodial interrogation as contended would be
            necessary and in that circumstance the anticipatory bail was
            rejected. Subsequently, the appellant has been taken into
            custody and has been interrogated and for the said purpose
            the appellant was available in custody in this case from 16-
            10-2019 onwards. It is, however, contended on behalf of the
F           respondent that the witnesses will have to be confronted and
            as such custody is required for that purpose.
            29. As noted, the appellant has not been named as one of the
            accused in the ECIR but the allegation while being made
            against the co-accused it is indicated the appellant who was
G           the Finance Minister at that point, has aided the illegal
            transactions since one of the co-accused is the son of the
            appellant. In this context, even if the statements on record
            and materials gathered are taken note of, the complicity of
            the appellant will have to be established in the trial and if
H           convicted, the appellant will undergo sentence. For the
                 THE STATE OF KERALA v. MAHESH                                 983
                      [INDIRA BANERJEE, J.]

      present, as taken note of, the anticipatory bail had been                A
      declined earlier and the appellant was available for custodial
      interrogation for more than 45 days. In addition to the
      custodial interrogation if further investigation is to be made,
      the appellant would be bound to participate in such
      investigation as is required by the respondent.”
                                                                               B
       33. In this case, the impugned order of the High Court is flawed,
in that the High Court noted the seriousness of the offence alleged,
observed that the incident was heinous, but proceeded to grant bail to
the Respondent Accused on the purported ground that he had been in
custody since 6th October 2020 (that is, about 75 days) without even           C
considering the materials on record which prima facie made out
reasonable grounds to believe that the Respondent Accused had
committed the heinous offence. At that stage, even the chargesheet
had not been filed. The High Court did not apply its mind to the severity
of the punishment in the event of conviction, or the fact that the accused
had been absconding after the incident.                                        D

       34. As argued on behalf of the Appellant, supported by the applicant
for intervention, being the hapless parent of the victim, the High Court
has neither considered nor discussed the elaborate reasons given by the
Sessions Court in its order rejecting the prayer of the Respondent Accused
for bail. The impugned order of the High Court does not advert to any          E
error in the reasoning of the Sessions Court. Nor is there any discussion
of the reason why the High Court took a view different from that taken
by the Sessions Court – whether there were any supervening
circumstances within 10/12 days of the order of the Sessions Court,
which necessitated a different view.                                           F
       35. The High Court, in our opinion, clearly erred in not appreciating
that the apprehension of the Prosecution that the Respondent Accused
would influence witnesses, could not be put to rest, by directing the
Respondent Accused not to enter the jurisdiction of Ollur Police Station.
The High Court completely ignored the fact that the deceased victim            G
used to reside at Ernakulam. Her parents and her five years old daughter
reside at Ernakulam. In other words, the only eye witness is a resident
of Ernakulam. Most of the Prosecution witnesses were from Thrissur.
There was no reason to suppose that the witnesses would restrict their
movements to the limits of the jurisdiction of Ollur Police Station.
                                                                               H
984             SUPREME COURT REPORTS                            [2021] 2 S.C.R.


A            36. It further appears from the impugned order that, in granting
      bail to the Respondent Accused, the High Court took note of the fact
      that two other accused persons had not been arrested. The High Court
      completely ignored the fact that these two accused persons were not
      named in the FIR. They were charged after investigation with offence
      under Section 212, of harbouring the Respondent Accused, punishable
B
      with imprisonment for a maximum period of five years, unlike the
      Respondent Accused, charged with murder under Section 302 of the
      IPC, which entails minimum punishment of imprisonment for life.
             37. There can be no doubt that the outbreak of the novel COVID-
      19 pandemic and its spread has been a matter of serious public concern.
C     The virus being highly infectious, precautions to prevent spread of
      infection to the extent possible are imperative. In Suo Motu Writ Petition
      (Civil) No.1 of 2020 In Re : Contagion of Covid 19 Virus In Prisons,
      this Court expressed concern over the possibility of spread of COVID-
      19 amongst prisoners lodged in overcrowded correctional homes and
D     accordingly issued directions from time to time, directing the authorities
      concerned to inter alia take steps as directed by this Court, to minimize
      the risk of spread of COVID amongst the inmates of correctional homes.
      This Court also directed that a High Powered Committee be constituted
      by the States and Union Territories to consider release of some prisoners
      on interim bail or parole during the Pandemic, to prevent overcrowding
E     of prisons.
             38. It appears that the High Court has completely mis-appreciated
      the object, scope and ambit of the directions issued by this Court from
      time to time in In Re : Contagion of Covid 19 Virus In Prisons. This
      Court did not direct release of all under-trial prisoners, irrespective of
F     the severity of the offence. After hearing the learned Attorney General
      of India, Mr. Venugopal, the Amicus Curiae appointed by this Court, Mr.
      Dushyant Dave and other Learned Counsel, the States and Union
      Territories were directed to constitute a High Powered Committee to
      determine which class of prisoners could be released on parole or interim
G     bail for such period as might be thought appropriate. By way of example,
      this Court directed the States/Union Territories to consider release of
      prisoners convicted of minor offences with prescribed punishment of
      seven years or less. The orders of this Court are not to be construed as
      any direction, or even observation, requiring release of under-trial prisoners
      charged with murder, and that too, even before investigation is completed
H
                 THE STATE OF KERALA v. MAHESH                                 985
                      [INDIRA BANERJEE, J.]

and the chargesheet is filed. The Respondent Accused, it is reiterated, is     A
charged with murder in the presence of an eye witness, and the impugned
order granting bail was filed even before the chargesheet was filed.
The Chargesheet appears to have been filed on 01.01.2021. Moreover
the Respondent Accused had been absconding after the incident.
      39. For the reasons discussed above the Appeal is allowed and            B
the impugned order of the High Court is set aside. The Respondent
Accused shall be taken into custody.
      40. A copy of this order shall be sent to the concerned Police
Station as well as the Jurisdictional Chief Judicial Magistrate for
compliance.                                                                    C
       41. Pending application(s), if any, shall stand disposed of.

Devika Gujral                                                Appeal allowed.

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