SC sets aside the bail order of Kerala HC

Setting aside a bail order

The Supreme Court (SC) in State of Kerala v Mahesh (AIR Online 2021 SC 205) sets aside an order of the High Court (HC) of Kerala granting bail to the accused.

The order clarifies when the SC can set aside a bail order granted by a HC.

Scope of the appellate court setting aside bail

The Supreme court (SC) normally does not interfere with a High Court (HC) order granting or rejecting bail to an accused person, if the bail order is proper.

The SC interferes in a bail order only when the HC has exercised the discretion in granting bail without due application of mind or in contravention of the directions of the SC. In such a case, the order can be set aside.

The SC in Mahipal v Rajesh Kumar ((2020) 2 SCC 118) elaborated the scope of jurisdiction of the appellate court in setting aside an order of granting bail.

The two key factors for interfering with a bail order are:

  • non-application of mind on the part of the court granting bail, or
  • the opinion of the court in granting bail is not borne out from a prima facie view of the evidence on record.

The facts of the present case in brief

The accused allegedly killed a pregnant, 30-year-old doctor having a live-in relation with him in her clinic in the presence of her father with his knife and absconded.

Police have not completed investigation and filed charge sheet. Sessions Court did not grant bail seeing the possibility and likelihood of accused absconding from appearing before the court and likelihood of influencing the prosecution but the Kerala HC granted bail on only ground of the accused spending 75 days in custody.

The Government of Kerala approached the SC for setting aside the bail to the accused. The SC set aside the HC order on 19th Mach 2021.

Bail order is wholly discretionary in nature

The power to grant bail is discretionary in nature but such discretion has to be exercised judiciously.

The court grating bail should consider the facts of the case. The nature of the offence is one basic consideration for grant of bail. The more heinous the crime the greater is the chance of rejection of the bail. Though the entire evidence is not in hand in the initial stage, the prima facie satisfaction of the court as to the guilt of the accused is critical. Whether the accused would entail conviction and the severity of the punishment should also be kept in mind. If there is doubt as to the genuineness of the prosecution case the accused is definitely entitled to an order of bail.

Factors to be considered while granting/refusing bail

An indicative list of factors to be considered while granting or refusing an application for bail is as follows:

  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence
  2. nature and gravity of the charge
  3. severity of the punishment in the event of conviction
  4. danger of accused absconding or fleeing, if he is released on bail
  5. character, behaviour, means, position and standing of the accused
  6. likelihood of the offence being repeated
  7. reasonable apprehension of the witnesses being tampered with
  8. danger of justice being thwarted by grant of bail.
  9. the health, age and sex of the accused and
  10. the interest of the society

Any court releasing any person on bail, in any non bailable offence, is required to record in writing its reasons for doing so. Any such order devoid of recorded reasons for granting bail suffers from non-application of mind.

While granting bail, it is necessary that the roots of the accused in the community must be assessed to determine the chance of his fleeing.

The grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by the SC. The court has to keep a fine balance between many factors while exercising its discretion in granting or refusing bail.

Any imprisonment before conviction has a punitive content. It would be improper for any court to refuse bail if his imprisonment is not essential. But an order without considering the well settled relevant factors pointed out by the SC and without application of mind is not allowed to stand.

Appellate court can set aside a bail granted

The appellate court has power to test whether the order granting bail is perverse, illegal or unjustified. It is to be examined if there was an arbitrary and improper exercise of discretion in the grant of bail.

Setting aside v cancelling a bail order

The concepts of setting aside a bail order and cancelling a bail order are totally different in criminal law, even though the results of both are quite similar.

The concept of setting aside the bail is applicable in the case of an unjustified, illegal or perverse order whereas the cancellation of bail is done when the person released on bail violates some bail conditions.

Setting aside a bail order

When a bail order of a court is a perverse one right at the time of its granting, it is competent in law for the aggrieved party to move the High Court for cancellation of the bail in revisional application. That means once it is found that bail was granted on untenable grounds, same can be set aside by a higher court.

However, such setting aside of bail should not be done on re-appreciation of evidence. The higher court dealing with an application for setting aside a bail under Section 439(2) can consider whether irrelevant materials were taken into consideration at the time of granting bail. Such materials or factors are considered so as to know to what extent the irrelevant materials were weighed with the Court while considering the prayer for bail and granting bail.

SC set aside the bail granted by Kerala HC

In the above stated case, the SC found that the order of Kerala HC is flawed. The HC noted the seriousness of the offence, observed it was heinous but proceeded to grant bail on the ground that the accused was in custody for 75 days without considering the materials on record.

The SC points out that the High Court of Kerala has neither considered nor discussed the elaborate reasons given by the Sessions Court in its order rejecting the prayer of the Respondent Accused for bail.

The HC has not discussed the elaborate reasons or stated why it took a view different from that on the Sessions Court. The HC did not appreciate the apprehensions of the prosecution that the respondent would influence witnesses residing in Ernakulam district where the only eye witness resides.

If the HC does not consider the factors listed in the above said indicative list while granting bail the order would suffer from the vice of non-application of mind, rendering it to be illegal.

Further reading

  1. State of Kerala v Mahesh, at
  2. Mahipal v Rajesh Kumar, at