A two-judge Bench of Justice DY Chandrachud and Justice BV Nagarathna has held that for the grant of bail, factors such as seriousness and gravity of the crime and the role attributed to the accused must be considered by the Courts.

Counsel Mr. Namit Saxena appeared for the Appellant while Senior Counsel Mr. Vivek Sood appeared for the second Respondent and Counsel Ms. Ritika Jhurani appeared for the State of Rajasthan in the case.

An appeal was preferred against the judgment of the Rajasthan High Court which had considered and allowed the fifth bail application of the second Respondent who was charged under Sections 147, 148, 149, 323, 341, 307, 302, and 336 of the IPC and Sections 3/25 and 4/25 of the Arms Act 1959.

In this case, the second Respondent was arrested following the murder of the Sarpanch of the village. A prior attempt was also made to murder him by the second Respondent, her husband, and other family members; however, the deceased had survived. The evidence of the deceased was to be recorded at the criminal trial and a fortnight prior to that, he was murdered.

The Second Respondent had moved four applications before the High Court for the grant of bail at different points in time; however, all of them came to be rejected by the Court. In her fourth application, the High Court rejected the bail citing that she was not cooperating with the investigation.

However, the High Court allowed the second Respondent's fifth application for the grant of bail observing that no overt act was assigned to her in the case along with other reasons.

The Appellant argued before the Apex Court that the High Court was in error as it had proceeded on the basis that no overt act was attributed to the second Respondent and that the chargesheet indicated otherwise, as there was enough material on record which suggested that she was the main culprit.

The Apex Court noted that the observations made by the High Court were erroneous as the final report under Section 173 CrPC indicated that the investigation revealed that the second Respondent was the custodian of weapons which she had stored at the rental premises where she resided.

Further, the Bench opined, "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 applications. 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 case for the setting aside of the order of the High Court has been duly established," the Court held.

The Court noted that the considerations which 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.

Additionally, the Bench asserted that the order of the High Court granting bail was unsustainable since the High Court failed to notice the seriousness and gravity of the crime and the role attributed to the second Respondent.

In the light of these observations, the Court set aside the impugned judgment of the High Court granting bail to the second Respondent with a direction to surrender, and allowed the appeal.

Click here to read/download the Judgment