An order granting bail or refusing bail need not necessarily be a speaking order. The word "may" occurring in Section 389(3) of the Code of Criminal Procedure will only indicate that it is directory to give reasons or not to give reasons while granting bail or refusing bail.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 389(1) - SECTION 439(2) - SECTION 482 - CANCELLATION OF BAIL - CANCELLATION OF BAIL GRANTED TO ACCUSED PERSONS CONVICTED OF RAPE AND OTHER OFFENCES - CONSIDERATION OF FACTORS - DEGREE OF CERTAINTY OF PROSECUTION CASE - LIKELIHOOD OF ACCUSED FLEEING FROM JUSTICE OR TAMPERING WITH WITNESSES - DELAY IN DISPOSAL OF CRIMINAL APPEALS - INHERENT POWERS OF COURT TO SECURE ENDS OF JUSTICE - DIRECTIONS FOR EXPEDITIOUS DISPOSAL OF CRIMINAL APPEALS.
Fact of the Case:

The accused were convicted of rape and other offences by the trial court. They were granted bail by the High Court during the pendency of their appeals. The State filed a petition to cancel the bail granted to the accused. The accused filed a counter-petition seeking enlargement on bail.
Finding of the Court:

The court held that the order granting bail or refusing bail need not necessarily be a speaking order. The court further held that the word "may" occurring in Section 389(3) of the Code of Criminal Procedure will only indicate that it is directory to give reasons or not to give reasons while granting bail or refusing bail. The court also held that the degree of certainty of the prosecution case was brought down by the Sessions Court itself to the degree or probability by acquitting one of the accused of all the charges and by acquitting two other accused for the offence of rape. The court further held that there was no immediate prospect of final disposal of the criminal appeals filed by the accused and that it would take at least 8 to 9 years to know the fate of the criminal appeals. The court also held that it would be a travesty of justice to keep the accused in jail for a period of 8 and 9 years for an offence or offences which may ultimately found not to have been committed by them.
Issues: 1. Whether the order granting bail or refusing bail need necessarily be a speaking order? 2. Whether the word "may" occurring in Section 389(3) of the Code of Criminal Procedure will only indicate that it is directory to give reasons or not to give reasons while granting bail or refusing bail? 3. Whether the degree of certainty of the prosecution case was brought down by the Sessions Court itself to the degree or probability by acquitting one of the accused of all the charges and by acquitting two other accused for the offence of rape? 4. Whether there was any immediate prospect of final disposal of the criminal appeals filed by the accused? 5. Whether it would be a travesty of justice to keep the accused in jail for a period of 8 and 9 years for an offence or offences which may ultimately found not to have been committed by them?
Ratio Decidendi: 1. An order granting bail or refusing bail need not necessarily be a speaking order. 2. The word "may" occurring in Section 389(3) of the Code of Criminal Procedure will only indicate that it is directory to give reasons or not to give reasons while granting bail or refusing bail. 3. The degree of certainty of the prosecution case was brought down by the Sessions Court itself to the degree or probability by acquitting one of the accused of all the charges and by acquitting two other accused for the offence of rape. 4. There was no immediate prospect of final disposal of the criminal appeals filed by the accused. 5. It would be a travesty of justice to keep the accused in jail for a period of 8 and 9 years for an offence or offences which may ultimately found not to have been committed by them.
Final Decision: The court allowed the petition filed by the State and cancelled the bail granted to the accused. The court dismissed the petition filed by the accused seeking enlargement on bail. The court also directed the Registry to list the Criminal Appeals filed in respect of Sessions Case No. 99 of 1993 on the file of the Principal Sessions Court, Cuddalore for final disposal immediately after getting the typed set of papers ready as expeditiously as possible, and the Registry is further directed to place the papers in this case before my Lord the Chief Justice to post these Criminal Appeals before a Division Bench of this Court for final disposal since substantial questions of law are involved in this case.

Judgment :-

The Petition in Crl.M.P. No. 4571/97 in Crl. Appeal No. 677/97 is filed by the State, who is the complainant in the Sessions Case No. 99193, under Sections 439(2) and 482 of Cr.P.C. to cancel the bail granted to the accused/respondents in Crl. M. P. No. 4472197 on 11-9-1997. The accused have filed a counter to this petition

2. The Petition in Crl.M.P. No. 4544/97 in Cri. Appeal No. 680/97 is filed by the petitioners, who are accused 1 and 2 in the Sessions Case No. 99/93, under Section 389 (1) of Cr.P.C. to enlarge them on bail by suspending the sentences imposed by the learned Principal Sessions Judge, Cuddalore in Sesssions Case No. 99/93 on 4-9-1997

3. Both these petitions have been taken up together and since identical question of facts and law were involved in both these petitions, a common order is pronounced in both these petitions

4. An order granting bail under Section 389(1) of Cr.P.C. by suspending the execution of sentence imposed by the trial Court does not preclude an application for cancellation of bail on a later occasion under Section 439(5) of Cr.P.C. giving more materials, further developments and different consideration. An order releasing a person on bail is an interlocutory order, and an interim direction is not a conclusive adjudication, and updated reconsideration is not overturning an earlier order of bail. One cannot accede to the faint plea that the Courts are barred from second consideration at a later stage. So there cannot be any legal impediment to reconsider the grant of a bail to the petitioners in Crl.M.P. No. 4472 of 1997 in Criminal Appeal No. 680/97

5. One of the contentions raised on behalf of the prosecution is that while ordering the suspension of sentence and directing the release of the accused Nos. 3, 6, 8 and 10 on bail in Crl.M.P. No. 4472 of 1997 in Crl. Appeal No. 677/97, this Court did not state any reason, which is mandatory under Section 389(1) of Cr.P.C. and the granting of bail to the petitioners A3, A6, A8 and A10 in Crl.M.P. No. 4472/97 without stating any reason is not justified. In other words the contention of the prosecution seems to be that there should be a speaking order setting out the reasons to grant bail. In support of the said contention the learned State Public Prosecutor Mr. R. Shanmugasundaram cited the decision of Allahabad High Court reported in Shambu v. State, 1956 AIR(All) 633 at page 635 : 1956 CrLJ 1179 at p. 1181 and in para 9), wherein it is observed as follows :-

"The second point arises out of the provisions of Section 426(1) by which the Court of appeal is authorised to allow bail to a convicted person for the pendency of his appeal. But and this is the condition of vital importance it can do so only for reasons to be recorded by it in writing."

The Allahabad High Court has only said that the appellate Court can do so only for reasons to be recorded by it in writing. It did not say that it is incumbent and mandatory for the appellate Court to give the reasons while granting bail at the time of suspending the sentence

6. This contention of the prosecution is directly answered by the Supreme Court in the decision reported in Jivaji v. State of Maharashtra wherein it was held that the order granting bail or refusing bail need not necessarily be speaking order. In another decision of the Supreme Court reported in Niranjan Singh v. Prabhakar Rajaram it was laid down as follows :-

"Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced."

There is a direct decision on this point and it is the Judgment of Rajasthan High Court reported in Beguram v. Jaipur Udhyog Limited, 1988 CrLJ 452 at page 1453 and in para 5, wherein it was stated as follows:

"The word" may "used in Section 389(1) of Cr.P.C. could not be interpreted as containing a mandatory provision"

In view of the dictum laid down by the Supreme

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1997 Supreme(Mad) 1088

An order granting bail or refusing bail need not necessarily be a speaking order. The word "may" occurring in Section 389(3) of the Code of Criminal Procedure will only indicate that it is directory to give reasons or not to give reasons while granting bail or refusing bail.

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