IMPORTANT POINT
Though detailed examination of evidence and elaborate documentation of merits of the case is to be avoided by Court while passing order on bail application yet court should be satisfied as to whether there was a prima facie case.

Headnote:Criminal Procedure Code, 1973—Section 439—Order granting bail in dowry death case in favour of husband and brother of husband—Appeal by informant father of deceased that bail was granted without application of mind—Marriage between deceased and accused took place on 9-5-2005 and deceased died on 1-10-2005—Impugned order showed complete non-application of mind—Court while passing order on bail application should be satisfied as to whether there was a prima facie case though exhaustive exploration of merits of the case was not necessary—Factors to be taken into consideration and order de hors of such reasons would suffer from non-application of mind—Impugned order did not show as to how scenario had changed to warrant departure from earlier view where by bail application was rejected—Order granting bail was liable to be set aside and matter needed reconsideration.
       Held : Even on a cursory perusal the High Courts order shows complete non-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. There is a need 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:
       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 of the witness or apprehension of threat to the complainant;
       3.Prima facie satisfaction of the Court in support of the charge.
       Any order dehors of such reasons suffers from non-application of mind as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. [(2002) 3 SCC 598], Puran etc. v. Rambilas and Anr. etc. [(2001) 6 SCC 338)] and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004 (3) SC 442].(Paras 14 to 16)
       In the case of Sunil the order is still more queer. Bail was granted to him as he was the brother-in-law and has been in custody for quite some time. The least that the High Court could have done is to refer to the earlier orders and, in fact, as to how the scenario had changed to warrant a departure from the earlier view expressed. That apparently has not been done. In case of Sunil, learned Additional Sessions Judge, had observed as to how the non-genuine documents were pressed into service while applying for bail. That aspect has not been even noted by the High Court. Nothing more is needed at this stage to set aside the impugned order of the High Court. (Paras 18, 19 & 20)
       While allowing these appeals we direct reconsideration of the applications for bail by the High Court in accordance with law keeping in view the principles set out above. Before parting the appeals we would take note of the direction by the High Court that its order is not to be treated as a precedent. In fairly well settled that orders of bail are not necessarily orders of any precedent value. Apart from that the correcting of orders stating that they shall not be treated as a precedent has been dealt by this Court.(Paras 22 & 23)

JUDGMENT

Arijit Pasayat, J.—Leave granted.

2. Challenge in these appeals is to the order of the learned Single Judge of the Orissa High Court granting bail to the respondent no.2 in each case. In criminal Appeal relating to SLP (Criminal) 3745 of 2006 respondent no.2 is Bimal Kumar Khetan whereas in the criminal appeal relating to SLP (Criminal) 3746 of 2006, the respondent no.2 is Sunil Kumar Khetan. The primary stand of the appellant is that the bail was granted without application of mind, as no reason was indicated as to why respondent no.2 (hereinafter referred to as the accused) was entitled to bail. It is pointed out that earlier several petitions were rejected by leaned Additional Sessions Judge and the High Court.

3. It is unnecessary to elaborately state the factual position as stated by the appellant.

4. Bimal was married to the daughter of the appellant i.e. Manisha (hereinafter referred to as deceased). The marriage between the deceased and the said accused took place on 9.5.2005. Within five months of marriage, the deceased was found dead on 1.10.2005. The appellant lodged FIR at the Jharsuguda police station and on the basis case was registered and investigation was undertaken. The offences indicated were under Sections 498A, 304B read with Section 34 of the Indian Penal Code, 1860 (in short the IPC) and Section 4 of the Dowry Prohibition Act, (in short the Act) Respondent no.2-Bimal was arrested on 3.10.2005. Rest of the accused persons were found to be absconding and police having failed to arrest them in spite of issuance of non-bailable warrants of arrest made an application in terms of Sections 82 and 83 of the Code of Criminal Procedure, 1973 (in short Cr.P.C.) was filed. On 16.12.2005 father-in-law of the deceased Kailash Khetan and mother-in-law Kanta Khetan filed application in terms of Section 438 Cr.P.C. before the High Court which was rejected. Process under Section 82 of the Cr.P.C. was issued by the learned ADJM on 19.12.2005. On 16.1.2006 respondent no.2 Bimal filed application for bail which was rejected on the ground that investigation was still in progress. Liberty was granted to the accused to move the Sessions Judge for bail after completion of investigation and submission of final form. On 24.1.2006 application in terms of Section 438 was filed by Sunil Kumar (respondent no.2 in the connected appeals) and Sujata Khetan. The same were rejected by order dated 24.1.2006. An application under Section 438 Cr.P.C. was filed by Kailash and Kanta. The same was again rejected by the High Court. On 27.1.2006 the Trial Court issued orders in terms of Section 83 Cr.P.C. to attach the moveable properties of the accused. On 30.1.2006 the investigating officer submitted the charge-sheet/final report before the learned SDJM indicating that a prima facie case has been made against the respondent No.2-Bimal Kumar Kailashnath (father-in-law), Kanta Devi (mother-in-law), Sunil (brother-in-law) the respondent no.2 in the connected appeal under Sections 498A, 304B, 302, 406 read with Section 34 IPC and Section 4 of the D.P. Act. The prosecution made a further prayer to permit investigation in terms of Section 173(8) Cr.P.C. since some of the accused persons were still absconding and were not arrested. After surrendering, Kanta Khetan and Sujata Devi filed application for bail. The same was rejected by learned SDJM. Learned Sessions Judge also rejected the bail application. The applications filed by Kailashnath and Sunil were also subsequently rejected. On 13.2.2006, respondent no.2 Bimal filed fresh bail application before the Sessions Court, which was rejected. The learned Additional Sessions Judge took note of factual position which according to him were relevant for the purpose of rejecting the bail application. It was noted that strong case under Section 302/304B IPC was made out. Sujata Devi filed bail petition before the High Court after rejection of bail application by the Sessions Judge. The High Cour

Click Here to Read the rest of this document

2006 Supreme(SC) 868

IMPORTANT POINTThough detailed examination of evidence and elaborate documentation of merits of the case is to be avoided by Court while passing order on bail application yet court should be satisfied as to whether there was a prima facie case.

Cases Referred (9)

IMPORTANT POINT
Though detailed examination of evidence and elaborate documentation of merits of the case is to be avoided by Court while passing order on bail application yet court should be satisfied as to whether there was a prima facie case.