The main legal point established in the judgment is the need for judicious exercise of discretion in granting bail, considering the gravity of the offence and the criminal antecedents of the accused.

JUDGEMENT

Indira Banerjee, J. - Leave granted.

2. This appeal is against an order dated 15th December, 2021 passed by the High Court of Allahabad granting bail to the respondent-accused who was arrested in connection with Crime Case No. 08 of 2019 under Sections 302, 201, 376 read with 120B of the Indian Penal Code and under Sections 5 and 6 of the Protection of Children from Sexual Offences Act (POCSO) for alleged rape and murder of an eleven year old child being the daughter of the appellant.

3. The High Court held:

"Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, submission of learned counsel for the parties, considering the law laid down in the case of Data Ram Vs. State of U.P. and others, 2018 (3) SCC 2 and also the fact that aforesaid co-accused has been admitted to the concession of bail by this Court, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.

Accordingly, the bail application stands allowed.

Let the applicant Mintu @ Jitendra involved in the aforesaid crime be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:

i)The applicant shall not tamper with the prosecution evidence.

ii) The applicant shall not threaten or harass the prosecution witnesses.

iii) The applicant shall appear on the date fixed by the trial court;

iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission;

v)The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence."

4. The offence alleged against the respondent-accused of rape and cold-blooded murder of an eleven year old child is heinous and dastardly. The conduct of killing a child to avoid getting caught of the offence, inter alia, of rape and then burial of the child as also her stained clothes and other articles under the soil to cause disappearance of evidence and evade apprehension for the offence of murder is indicative of a tendency to evade the process of law. It is possible that the respondent-accused might flee to evade the process of law.

5. The High Court has ignored the materials on record including incriminating statements of witnesses under Section 164/161 of the Code of Criminal Procedure. Statements under Section 161 of Cr.P.C. may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence.

6. The High Court has granted the respondent-accused bail, without considering the heinous nature of the allegations against him, the gravity of the offence alleged and severity of the punishment in the event of ultimate conviction, only because a co- accused had also been granted bail by the High Court.

7. The impugned order of the High Court incorrectly states that bail is granted considering all facts and circumstances, nature of the allegations, gravity of the offence, severity of the punishment, the evidence appearing against the accused and the law laid down in Dataram Singh vs. State of U.P. & Ors. reported in (2018) 3 SCC 22. This has not been done. The impugned order evinces non-application of mind.

8. In Dataram Singh vs. State of U.P.(supra), this Court held:

"2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is t