REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.   2086    OF 2010 (Arising out of S.L.P. (Crl.) No.4590 of 2010)

PRASANTA KUMAR SARKAR — APPELLANT (S)

VERSUS

ASHIS CHATTERJEE & ANR. — RESPONDENT (S)

J U D G M E N T

D.K. JAIN, J.:

Leave granted.

2. This  appeal,  by  special  leave,  is  directed  against  order  dated  11th  

January, 2010  passed by the High Court of Calcutta in C.R.M. No. 272 of  

2010, granting regular bail to respondent No. 1 in this appeal (hereinafter  

referred to as “the accused"), under Section 439 of the Code of Criminal  

Procedure, 1973 (for short “the Code”).

3. The accused is facing trial for an offence punishable under Section  

302 of the Indian Penal Code, 1860 (for short “IPC”) for allegedly  

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committing the murder of one Ms. Mallika Sen. Respondent No.2 is  

the State of West Bengal.

4. Very  briefly  stated  the  facts  material  for  the  adjudication  of  this  

appeal can be stated thus:

Ms. Mallika Sen, a 57 years old widow was found strangulated at her  

residence on 2nd July, 2009. The appellant, who is the brother of the victim,  

lodged a written complaint at the Rampurhat Police Station, on the basis of  

which FIR No. 111/09 dated 2nd July,  2009 was registered under Section  

302, IPC.  

It  has  been alleged  that  a  neighbour  of  late  Ms.  Sen,  one     Mr.  

Somenath  Dutta,  saw  the  accused  rushing  out  of  the  residence  of  the  

deceased, around the time the incident took place. The accused was arrested  

on  13th July,  2009  and  produced  before  the  Additional  Chief  Judicial  

Magistrate who remanded him to judicial custody. Thereafter, on the same  

day,  the  police  filed  a  forwarding  report  in  the  said  court,  inter  alia,   

requesting for holding of a Test Identification Parade (T.I.P.) of the accused.  

The T.I.P. was conducted, but perhaps the accused could not be identified.  

However,  in  the  second  T.I.P.,  the  accused  was  duly  identified  by  the  

aforesaid witness.  

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5. The accused filed several bail applications before the Additional Chief  

Judicial  Magistrate  which  were  all  dismissed  vide  orders  dated  7th  

September, 2009, 16th September, 2009 and       19th September, 2009.

6. On 7th October, 2009, charge-sheet No. 138 of 2009 under Section 302  

IPC was filed against the accused before the Additional Chief Judicial  

Magistrate.

7. Having failed  to  secure  bail  from the  Sessions  Court,  the  accused  

preferred a bail application, being C.R.M. No. 272 of 2010 before the  

High Court under Section 439 of the Code. As stated above, by the  

impugned order, the High Court allowed the application, and granted  

bail to the accused by a short order, observing thus:

“Having regard to the nature of the alleged crime, we do not  think  that  interest  of  investigation  requires  or  (sic)  justifies  further detention of the present petitioner at this stage.”

8. Hence the present appeal by the complainant.

9. Mr. Nagender Rai, learned senior counsel appearing on behalf of the  

appellant, while assailing the impugned order, contended that the said  

order  being  non-speaking,  deserves  to  be  set  aside  in  light  of  the  

decision of this Court in Masroor Vs. State of Uttar Pradesh & Anr.1.  

1 (2009) 14 SCC 286

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Learned counsel submitted that the High Court has failed to take into  

consideration the manner in which a hapless old lady was done to  

death as also the fact that the accused had been duly identified by an  

independent witness.  

10. Per contra, Mr. Ujjwal Banerjee,  learned counsel appearing for the  

accused, contended that the case against the accused was false, as is  

evident  from  the  fact  that  the  witness  had  failed  to  identify  the  

accused in the first T.I.P. Learned counsel contended that the accused  

had been arrested on a mere suspicion, and in light of the fact that he  

has not misused the bail, the impugned order needs to be affirmed.  

11. We  are  of  the  opinion  that  the  impugned  order  is  clearly  

unsustainable.  It is trite that this Court does not, normally, interfere  

with an order passed by the High Court granting or rejecting bail to  

the accused. However, it is equally incumbent upon the High Court to  

exercise  its  discretion  judiciously,  cautiously  and  strictly  in  

compliance  with  the  basic  principles  laid  down  in  a  plethora  of  

decisions of this Court on the point. It is well settled that, among other  

circumstances, the factors to be borne in mind while considering an  

application  for  bail  are:  (i)  whether  there  is  any  prima  facie  or  

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reasonable  ground  to  believe  that  the  accused  had  committed  the  

offence; (ii) nature and gravity of the accusation; (iii) severity of the  

punishment  in  the  event  of  conviction;  (iv)  danger  of  the  accused  

absconding or  fleeing,  if  released on bail;  (v)  character,  behaviour,  

means,  position and standing of  the accused;  (vi)  likelihood of  the  

offence being repeated; (vii) reasonable apprehension of the witnesses  

being  influenced;  and  (viii)  danger,  of  course,  of  justice  being  

thwarted  by  grant  of  bail.  (See:  State  of  U.P.  through  CBI   Vs.  

Amarmani Tripathi2; Prahlad Singh Bhati Vs. NCT, Delhi & Anr.3;   

Ram Govind Upadhyay Vs. Sudarshan Singh & Ors.4)

12.  It is manifest that if the High Court does not advert to these relevant  

considerations  and  mechanically  grants  bail,  the  said  order  would  

suffer  from the vice of non-application of  mind, rendering it  to be  

illegal. In Masroor (supra), a Division Bench of this Court, of  which  

one of us (D.K. Jain, J.) was a member, observed as follows:

“Though at the stage of granting bail an elaborate examination  of evidence and detailed reasons touching the merit of the case,  which may prejudice the accused, should be avoided, but there  is  a  need  to  indicate  in  such  order  reasons  for  prima  facie  concluding why bail was being granted particularly where the  accused  is  charged  of  having  committed  a  serious  offence.”  

2 (2005) 8 SCC 21 3 (2001) 4 SCC 280 4 (2002) 3 SCC 598

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(See  also:  State  of  Maharashtra  Vs. Ritesh5;  Panchanan  Mishra  Vs.  Digambar  Mishra  &  Ors.6;  Vijay  Kumar  Vs.   Narendra & Ors.7;  Anwari  Begum  Vs.  Sher Mohammad &  Anr8)

13. We are constrained to observe that in the instant case, while dealing  

with the application of the accused for grant of bail, the High Court  

completely lost sight of the basic principles enumerated above.  The  

accused, in the present case, is alleged to have committed a heinous  

crime of killing an old helpless lady by strangulation.  He was seen  

coming out of the victim’s house by a neighbour around the time of  

the alleged occurrence, giving rise to a reasonable belief that he had  

committed the murder.  We feel that under the given circumstances, it  

was not the stage at which bail under Section 439 of the Code should  

have been granted to the accused, more so, when even charges have  

not yet been framed. It is also pertinent to note that, as stated above,  

the  Additional  Chief  Judicial  Magistrate  had  rejected  three  bail  

applications  of  the  accused  but  the  High  Court  did  not  find  it  

worthwhile to even make a reference to these orders. In this regard, it  

would  be  useful  to  refer  to  the  following  observations  echoed  in  

5 (2001) 4 SCC 224 6 (2005) 3 SCC 143 7 (2002) 9 SCC 364 8 (2005) 7 SCC 326

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Kalyan  Chandra  Sarkar  Vs. Rajesh  Ranjan  @  Pappu  Yadav  &  

Anr.9:-  

“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 also:  Ram Pratap Yadav Vs.   Mitra Sen Yadav & Anr.10)

14.  For the foregoing reasons, the appeal is allowed, and the impugned  

order  is  set  aside.  The  bail  bond  and  the  surety  furnished  by  the  

accused in  terms of  the  impugned order  stands  cancelled and it  is  

directed that he will be taken into custody forthwith.  Needless to add  

that observations touching the merits of the case against the accused  

are purely for the purpose of deciding the question of grant of bail and  

if in future any such application is filed by the accused, it shall be  

considered  on  its  own  merits  untrammelled  by  any  of  these  

observations.  

.……………………………………J.

9 (2004) 7 SCC 528 10 (2003) 1 SCC 15

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          (D.K. JAIN)  

                             .…………………………………….J.           (H.L. DATTU)

NEW DELHI; OCTOBER 29, 2010.

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