2021 INSC 0698 1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 1279 of 2021 Bhoopendra Singh .... Appellant Versus State of Rajasthan & Anr. .... Respondents J U D G M E N T Dr Dhananjaya Y Chandrachud, J 1 This appeal arises from a judgment dated 11 August 2021 of a Single Judge at the Jaipur Bench of the High Court of Judicature for Rajasthan. By the judgment impugned in the appeal, the High Court has allowed the fifth bail application of the second respondent. 9 8. Mobile Number [xxxxxxxx89] (Omvati):- this Mobile Number [xxxxxxxx89] was found to have been issued in the name of Omvati – wife of Ratansingh – resident of Sabaura, Police Station: Kumher, Bharatpur and on analysing the CDR of said number it was found to have been used in an instruments or instrument of IMEI Numbers [xx xxxxxxxxxx970 ] and [xxxxxxxxxxxx960] . When the CDR of IMEI No. [xxxxxxxxxxxx960] was procured, it was found that Mobile Number [xxxxxxxx57] related SIM card has been used in it. In this way, it has become apparent that said Mobile No: [xxxxxxxx57] was used by Omvati wife of Ratansingh, resident of Sabaura, Kumher, Bharatpur and the aforesaid IMEIs [xxxxxxxxxxxx970] & [xx xxxxxxxxxx960] were used from a single Mobile Handset by her. On 11.09.2017 – i. e. the date of occurrence of this case incident, its location was traced as Ashok Vihar, Subhash Nagar, Bharatpur, Kumher, Ranjeet Nagar, Bharatpur, Near Railway Station Bharatpur etc.” 15 The charge- sheet contains an analysis of the call data records. Apart from the material drawn from the call data records, it has been found during the course of the investigation that in order to purchase the fire arms for the crime, Ratan Singh, the husband of the second respondent, had paid an advance of Rs. 40,000 to Prahlad. Prahlad had brought three katas and ten cartridges . The weapons were kept in a room by Anek Singh at Bharatpur in which the second respondent was residing on a rental bas is. Moreover, there is a specific allegation that the second respondent has actively aided the commission of the crime by furnishing information about the movements of the deceased ( Daansingh) to the killers . There has been an evident error on the part of the High Court in surmising that no specific or overt act is attribut ed to the second respondent. As regards the co- accused Vijaypal, it has been submitted that during the course of the investigation he was not found to be present at the scene of the offence and was not charge- sheeted. 10 16 In deciding as to whether the fifth bail application of the second respondent should be allowed, the High Court has failed to consider the seriousness and gravity of the crime and the specific role which is attributed to the second respondent. The deceased was due to testify in the trial in the prior case under Section 307 of the IPC and the murder was committed barely a fortnight prior to the date on which he was to depose. The High Court had rejected four previous bail appl ications. There was no change in circumstances. In this backdrop, the High Court having failed to notice material circumstances bearing upon the grant of bail to the second respondent and, as noted above, having proceeded on a palpable erroneous basis, a c ase for the setting aside of the order of the High Court has been duly established. 17 In Mahipal v. Rajesh Kumar 4, one of us (Justice DY Chandrachud), speaking for a two -judge Bench of this Court , after adverting to the precedent s on the subject , enunciated the considerations which must weigh in the determination of whether bail should be granted: “13. The principles that guide this Court in assessing the correctness of an order [ Ashish Chatterjee v. State of W.B. , CRM No. 272 of 2010, order dated 11-1 -2010 (Cal)] passed by the High Court granting bail were succinctly laid down by this Court in Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765] . In that case, the accuse d was facing trial for an offence punishable under Section 302 of the Penal Code. Several bail applications filed by the accused were dismissed by the Additional Chief Judicial Magistrate. The High Court in turn allowed the bail application filed by the ac cused. Setting aside the order [ Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11- 1-2010 (Cal)] of the High Court, D.K. Jain, J., 4 (2020) 2 SCC 118 11 speaking for a two- Judge Bench of this Court, held: (SCC pp. 499- 500, paras 9- 10) “ 9 . … It is trite that this Court does not, normally, interfere with an order [ Ashish Chatterjee v. State of W.B., CRM No. 272 of 2010, order dated 11- 1-2010 (Cal)] passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the Hig h 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 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 i nfluenced; and ( viii ) danger, of course, of justice being thwarted by grant of bail. *** 10. 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.” […] 15. The decision of this Court in Prasanta [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765] has been consistently followed by this Court in Ash Mohammad v. Shiv Raj Singh [Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446 : (2012) 3 SCC (Cri) 1172] , Ranjit Singh v. State of M.P. [Ranjit Singh v. State of M.P., (2013) 16 SCC 797 : (2014) 6 SCC (Cri) 405] , Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527] , Virupakshappa Gouda v. State of Karnataka [Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406 : (2017) 2 SCC (Cri) 542] and State of Orissa v. Mahimananda Mishra [State of 12 Orissa v. Mahimananda M ishra, (2018) 10 SCC 516 : (2019) 1 SCC (Cri) 325].” 18 T he Court noted that the considerations whic h must weigh in the exercise of the power of the appellate court to determine whether bail has been granted for valid reasons stand on a distinct footing from an application for cancellation of bail. The Court observed: “16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted.” (See also in this context the judgment in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana Koli 5) and Harjit Singh v. Inderpreet Singh alias Inder 6) 19 On the touchstone of the above decisions and for the reasons we have indic ated above, the impugned order granting bail is unsustainable. The High Court has failed to notice relevant circumstances bearing on the seriousness and gravity of the crime and the role attributed to the second respondent. T he High Court has proceeded on the erroneous basis that no overt act has been assigned to the second respondent. There was no change in circumstances warranting the grant of bail. 5 (2021) 6 SCC 230 6 2021 SCC OnLine SC 633 13 20 For the above reasons we allow the appeal and set aside the impugned judgment and order of the Single Judge at the Jaipur Bench of the High Court of Judicature for Rajasthan dated 11 August 2021 in SB Criminal Miscellaneous Fifth Bail Application No. 11627 of 2021. The application for bail filed by the second respondent shall consequently stand rejected. The second respondent shall su rrender on or before 7 November 2021. 21 The observations made in this judgment are only for the purpose of considering the application for bail and shall have no bearing on the merits of the case or the pending trial . 22 Pending application(s), if any, stand disposed of. …..….…………………………...............................J. [Dr Dhananjaya Y Chandrachud] …..….…………………………...............................J. [B V Nagarathna] New Delhi; October 29, 2021.