While observing that the criminal antecedents of the accused by themselves cannot constitute a ground for denial of bail, the Supreme Court has set aside an order cancelling bail of 5 RSS workers in Popular Front of India (PFI) Leader Shan’s murder case.

The Apex Court was considering an appeal challenging the judgment of the Kerala High Court setting aside the orders granting bail to 5 of the 10 accused persons.

The Division Bench of Justice Dipankar Datta and Justice Augustine George Masih held, “Our attention was also invited to the status report filed by the State, to indicate the various criminal antecedents of the appellants. Suffice it to say, however, that such antecedents by themselves cannot constitute a ground for denial of bail.”

Senior Advocates Soumya Chakraborty, Nachiketa Joshi and Ruchi Kohli represented the Appellant, while Senior Advocate Raghenth Basant represented the wife of the deceased and Senior Advocate P. V. Dinesh appeared for the State.

Factual Background

A First Information Report was filed under Sections 143, 147, 148, 149, 324 and 302 of the Indian Penal Code, 1860 against unknown persons. It was alleged that such unknown persons committed the said offences under the leadership of one political activist of a particular political organisation. Soon thereafter, the appellants were arrested. As per the narrative in the charge-sheet filed under Section 173(2) of the Code of Criminal Procedure, 1973, the accused, allegedly, due to political enmity, murdered the victim. The four Accused persons formed an unlawful assembly, followed the victim in a vehicle and collided with his scooter. The victim fell, whereupon he was brutally attacked, and ultimately, he succumbed to his injuries.

The accused were consequently charged with having committed offences under Sections 120-B, 109, 115, 143, 147, 148, 149, 324 and 302, IPC and Section 27(1) of the Arms Act, 1959. In December 2022, vide separate orders, after being in custody for nearly a year, the appellants and the coaccused were granted bail by the trial court. The State applied for cancellation of bail before the Additional Sessions Judge and approached the High Court. The High Court divided the accused into one category of conspirators and the second category of persons against whom the specific overt act of murder was alleged. The appellants belong to the second category.

Reasoning

Considering the fact that the application before the High Court was filed under Section 482 r/w 439 (2) of the Code of Criminal Procedure, the Bench held that nothing prevented the High Court from exercising its inherent powers. “Law is well settled that cancellation of bail is distinct from revocation of an order granting bail. Bail may be cancelled when the accused violates any of the conditions imposed. On the other hand, an order granting bail can be revoked if such an order is found to be perverse or illegal”, it explained.

The Bench noted that the High Court revoked the orders granting bail after noting that the Sessions Court kept only two considerations in mind: period of custody and ‘no opposition from the prosecution’, without a discussion of the other factors in detail. As per the Bench, considering that the Sessions Court had primarily proceeded on the premise of there being no objection from the side of the prosecution for the grant of bail, it would have been just and proper for the High Court to direct the Sessions Court to consider all the relevant factors and decide afresh the application of the appellants for bail.

The Bench was of the view that notwithstanding the gravity of the offences alleged against the appellants, the conflicting interests of individual liberty on the one hand and the victim’s rights as well as concerns for community safety on the other could have been better balanced bearing in mind that the appellants had suffered incarceration for nearly a year and thereafter had been on bail for almost 2 years before the orders granting bail were revoked vide the impugned order. “The likelihood of the accused influencing the witnesses or tampering with the evidence and ensuring smooth progress of the trial could have been taken care of by imposing stringent conditions over and above those which were imposed while granting bail”, it noted.

The Bench also refused to accept the contention that the FIR lodged by Abhiram afforded ground for cancellation of bail granted to Vishnu. “Cancellation/revocation of bail, no doubt, seeks to uphold trial integrity. The dominant purpose thereof is to ensure a fair trial and protect societal interests by preventing persons accused of a heinous or grave crime and having tendencies to influence or intimidate witnesses or to tamper evidence from being released. Indeed, if such accused are likely to interfere with witness testimony, the courts could be justified in ordering the accused to be taken back into custody. However, at the same time, the golden rule of bail jurisprudence propounded by Hon’ble V.R. Krishna Iyer, J. of ‘bail being the rule and jail an exception’ cannot be ignored”, the Bench held.

As per the Bench, taking back the appellants in custody for no better reason than that the Sessions Court should not have been swayed by omission of the Public Prosecutor to raise any objection to grant of bail should not operate to the appellants’ prejudice, more so when two years have passed in the interregnum.

On a perusal of the status report, the Bench found that the case was posted for “schedule trial” on May 30, 2025 and thereafter the case was listed on various dates. As per the chargesheet, a total of 141 witnesses were to be examined and there were at least five witnesses who allegedly witnessed the crime. It was also noticed that the trial will take time to conclude. “Bearing in mind that the appellants since grant of bail have not been involved in any similar or other offence, we prefer to lean in favour of liberty rather than its curtailment. Accordingly, while setting aside the impugned order, the appellants’ liberty is not curtailed subject to imposition of certain stringent conditions”, the Bench held.

The Bench thus allowed the appeals and imposed certain conditions while granting bail to the accused persons in order to obviate any possibility of tampering with evidence and intimidation and/or influencing of the witnesses by them.

In May, 2025, the Supreme Court had granted interim bail to the five accused.

Cause Title: Abhimanue v. State of Kerala (Neutral Citation: 2025 INSC 1136)

Appearance

Appellant: Senior Advocates Soumya Chakraborty, Nachiketa Joshi, Ruchi Kohli, Advocates Santosh Kumar, Praneet Pranav, Thadimalla Bhaskar Gowtham, Alabhya Dhamija, Sai Shashank, AOR Subodh S. Patil, Advocates Alabhya Dhamija, Rishikesh Haridas, AOR Sandeep Singh, Advocates Sudheesh KK, Srishti Mishra

Respondent: Senior Advocates Raghenth Basant, P. V. Dinesh, Advocates Vishnu P., Harris E.A, Hima Bhardwaj, Kaushitaki Sharma, AOR Manu Krishnan G, AOR Harshad V. Hameed, Advocates Dileep Poolakkot, Ashly Harshad, Anna Oommen, Anshul Saharan

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Justice Dipankar DattaJustice Augustine George Masih

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.