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Saturday, April 20, 2013


The High Court had released Accused/Respondent 2 on bail. Consequently the appellant (diseased brother) filed appeal to Supreme Court. Whether, High Court ignored well established principles which guide Court in the exercise of the discretion to grant bail.

The Hon’ble Supreme Court in “Kanwar Singh Meena Vs State of Rajasthan and Anr” [2012(10) SCALE270], had held:

“Section 439 of the Code confers very wide powers on the High court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such Assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail Under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail”.

Taking an overall view of the matter, the Hon’ble Supreme court quashed the order granting bail to the accused and issued direction to the police to take the accused in custody.

Prepared by: S. Hemanth