1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2188 OF 2017
(Arising out of S.L.P.(Crl.)No.9672 of 2017)
Prem Giri ….Appellant(s)
VERSUS
State of Rajasthan ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 22.11.2017 passed by the High Court
of Judicature for Rajasthan at Jodhpur in S.B.
Criminal Misc. Bail No.9471 of 2017 whereby the
Single Judge of the High Court dismissed the bail
2
application filed under Section 438 of the Code of
Criminal Procedure, 1973(hereinafter referred to as
“the Code”) by the appellant herein.
3) Facts of the case lie in a narrow compass. They,
however, need mention infra to appreciate the short
issue involved in the case.
4) The appellant apprehending his arrest in
connection with commission of the offences
punishable under Sections 143, 341, 323, 308, 332
and 353 of the Indian Penal Code, 1860 (hereinafter
referred to as “the IPC”) pursuant to FIR No. 332/2017
registered at Police Station Jaitaran, Dist. Pali, filed an
application for grant of anticipatory bail under Section
438 of the Code before the High Court of Rajasthan.
The Single Judge of the High Court dismissed the
application by impugned order, which has given rise to
filing of this appeal by way of special leave in this
Court by the applicant.
5) The impugned order reads as under:
3
“This bail application has been filed
under Section 438 CrPC in connection with
FIR No.332/2017 registered at Police Station
Jaitaran, Dist. Pali for the offences under
Sections 143, 341, 323, 308, 332 & 353 IPC.
Heard learned counsel for the petitioner
and learned Public Prosecutor appearing for
the State as also learned counsel for the
complainant and carefully perused the
relevant material made available on record.
Looking to the overall facts and
circumstances of the case, but without
expressing any opinion on the merits and
demerits of the case, I do not deem it just
and proper to enlarge the petitioner(s) on
bail.
Therefore, this bail application is
rejected.”
6) We have heard learned counsel for the appellant
and perused the record of the case. In our view,
keeping in view the order, which we are passing, it is
not necessary to issue notice to the State much less to
hear the State in this appeal.
7) Mere perusal of the impugned order quoted
supra would go to show that the Single Judge failed to
assign any reason for rejecting the bail application of
the appellant.
4
8) The general observations that "Looking to the
overall facts and circumstances of the case, it is not
considered proper to grant bail to the Petitioner" can
never be the reasoning much less judicial reasoning
required for rejection of the bail petition whether it is
filed under Section 438 or Section 439 of the Code.
9) We are constrained to observe that the learned
Single Judge did not apply its judicial mind and
passed the impugned order in a very casual and
cavalier manner. This Court cannot countenance such
casual approach of the High Court while deciding the
application for bail.
10) Time and again, this Court has emphasized the
need for assigning reasons while considering the grant
or reject of the bail. It is apt to reproduce what this
Court has held in Paras 11 and 12 of the decision in
Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu
Yadav & Anr. (2004) 7 SCC 528 on this issue.
5
“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
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 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.
(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 v. Sudarshan Singh, (2002) 3 SCC
598 and Puran v. Rambilas,(2001) 6 SCC
338)
12. In regard to cases where earlier bail
applications have been rejected there is a
further onus on the court to consider the
subsequent application for grant of bail by
noticing the grounds on which earlier bail
applications have been rejected and after
such consideration if the court is of the
opinion that bail has to be granted then the
said court will have to give specific reasons
why in spite of such earlier rejection the
subsequent application for bail should be
granted. (See Ram Govind Upadhyay)”
6
11) In our considered opinion, the Single Judge failed
to take note of the law laid down by this Court quoted
supra and thus erred in passing the impugned order.
He also neither set out the facts of the case nor
mentioned the submissions of the learned counsel
appearing for both the parties and nor his reasoning
as to why he does not consider it proper to grant
anticipatory bail to the appellant. This was the least,
which was expected of from the Single Judge to keep
in mind, while passing the order.
12) In such a situation arising in this case, we
instead of considering the case of the appellant on its
merits in this appeal consider just and proper to
remand the case to the High Court for deciding the
bail application afresh on its merits and in accordance
with law.
13) We, however, make it clear that we have not gone
into the merits of the case of the appellant having
7
formed an opinion to remand the case to the High
Court for deciding the bail application afresh on merits
and, therefore, the High Court would decide the bail
application un-influenced by any of our observations
on merits except to take into account what we have
said about the manner in which the bail application is
required to be decided.
14) In view of foregoing discussion, the appeal
succeeds and is allowed. Impugned order is set aside
and the case is remanded to the High Court for
deciding the bail application of the appellant afresh on
its merits.
………...................................J.
[R.K. AGRAWAL]
...
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
December 14, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2188 OF 2017
(Arising out of S.L.P.(Crl.)No.9672 of 2017)
Prem Giri ….Appellant(s)
VERSUS
State of Rajasthan ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed against the final judgment
and order dated 22.11.2017 passed by the High Court
of Judicature for Rajasthan at Jodhpur in S.B.
Criminal Misc. Bail No.9471 of 2017 whereby the
Single Judge of the High Court dismissed the bail
2
application filed under Section 438 of the Code of
Criminal Procedure, 1973(hereinafter referred to as
“the Code”) by the appellant herein.
3) Facts of the case lie in a narrow compass. They,
however, need mention infra to appreciate the short
issue involved in the case.
4) The appellant apprehending his arrest in
connection with commission of the offences
punishable under Sections 143, 341, 323, 308, 332
and 353 of the Indian Penal Code, 1860 (hereinafter
referred to as “the IPC”) pursuant to FIR No. 332/2017
registered at Police Station Jaitaran, Dist. Pali, filed an
application for grant of anticipatory bail under Section
438 of the Code before the High Court of Rajasthan.
The Single Judge of the High Court dismissed the
application by impugned order, which has given rise to
filing of this appeal by way of special leave in this
Court by the applicant.
5) The impugned order reads as under:
3
“This bail application has been filed
under Section 438 CrPC in connection with
FIR No.332/2017 registered at Police Station
Jaitaran, Dist. Pali for the offences under
Sections 143, 341, 323, 308, 332 & 353 IPC.
Heard learned counsel for the petitioner
and learned Public Prosecutor appearing for
the State as also learned counsel for the
complainant and carefully perused the
relevant material made available on record.
Looking to the overall facts and
circumstances of the case, but without
expressing any opinion on the merits and
demerits of the case, I do not deem it just
and proper to enlarge the petitioner(s) on
bail.
Therefore, this bail application is
rejected.”
6) We have heard learned counsel for the appellant
and perused the record of the case. In our view,
keeping in view the order, which we are passing, it is
not necessary to issue notice to the State much less to
hear the State in this appeal.
7) Mere perusal of the impugned order quoted
supra would go to show that the Single Judge failed to
assign any reason for rejecting the bail application of
the appellant.
4
8) The general observations that "Looking to the
overall facts and circumstances of the case, it is not
considered proper to grant bail to the Petitioner" can
never be the reasoning much less judicial reasoning
required for rejection of the bail petition whether it is
filed under Section 438 or Section 439 of the Code.
9) We are constrained to observe that the learned
Single Judge did not apply its judicial mind and
passed the impugned order in a very casual and
cavalier manner. This Court cannot countenance such
casual approach of the High Court while deciding the
application for bail.
10) Time and again, this Court has emphasized the
need for assigning reasons while considering the grant
or reject of the bail. It is apt to reproduce what this
Court has held in Paras 11 and 12 of the decision in
Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu
Yadav & Anr. (2004) 7 SCC 528 on this issue.
5
“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
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 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.
(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 v. Sudarshan Singh, (2002) 3 SCC
598 and Puran v. Rambilas,(2001) 6 SCC
338)
12. In regard to cases where earlier bail
applications have been rejected there is a
further onus on the court to consider the
subsequent application for grant of bail by
noticing the grounds on which earlier bail
applications have been rejected and after
such consideration if the court is of the
opinion that bail has to be granted then the
said court will have to give specific reasons
why in spite of such earlier rejection the
subsequent application for bail should be
granted. (See Ram Govind Upadhyay)”
6
11) In our considered opinion, the Single Judge failed
to take note of the law laid down by this Court quoted
supra and thus erred in passing the impugned order.
He also neither set out the facts of the case nor
mentioned the submissions of the learned counsel
appearing for both the parties and nor his reasoning
as to why he does not consider it proper to grant
anticipatory bail to the appellant. This was the least,
which was expected of from the Single Judge to keep
in mind, while passing the order.
12) In such a situation arising in this case, we
instead of considering the case of the appellant on its
merits in this appeal consider just and proper to
remand the case to the High Court for deciding the
bail application afresh on its merits and in accordance
with law.
13) We, however, make it clear that we have not gone
into the merits of the case of the appellant having
7
formed an opinion to remand the case to the High
Court for deciding the bail application afresh on merits
and, therefore, the High Court would decide the bail
application un-influenced by any of our observations
on merits except to take into account what we have
said about the manner in which the bail application is
required to be decided.
14) In view of foregoing discussion, the appeal
succeeds and is allowed. Impugned order is set aside
and the case is remanded to the High Court for
deciding the bail application of the appellant afresh on
its merits.
………...................................J.
[R.K. AGRAWAL]
...
……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
December 14, 2017
