Severity factor ranks at top when considering the list of factors to keep in mind while granting bail. It cannot be the sole determining factor but cannot be negated. More heinous is the crime, more chances of rejection of bail. Rejection of bail application in grave murder matters serves the three fold purpose – punitive, deterrent and protective. The prosecution story which is a perfect fit for the death penalty and no remorse and no chance of reformation of accused persons then such will fall under this factor and bail in such a case is near to impossible. Modus Operandi and Motive are important parameters.
Indian courts are reluctant to grant bail when the offence of murder is clubbed with others like double murder or rape and murder or contract killings of important public figure. Many times, higher courts reject the bail plea with direction of monitoring/transferring of investigation to more competent and specialized teams like SIT, ATS, CBI, etc.
However, handpicking of cases/unfair listings is a bigger hurdle which only the rich can easily afford to bypass. On other hand, in only a few cases wherein the poor accused is falsely implicated or if the victim is of a particular society, there is huge public outcry from media that catches attention and subsequently prompt listing of bail plea.
Accused having criminal antecedents of murder or allied charges be it acquittal or pending, such accused are being denied bail if he can be a threat to society in a non-murder bail plea. Apart from granting or refusing, more stringent conditions are levied by the court.
Thus, I feel the Indian courts ask for some corroboration or leading evidence to meet the ingredients before rejecting the bail on the grounds of severity.
Below are few precedents on this subject which states pre-requisites of severity factor and how it is applied on case to case basis:
| S.No. | Case Name | Relevant Paragraph |
| Kiran v. State of Himachal Pradesh. 05.04.2023 Himachal Pradesh HC Cr. M.P.(M) No. 748 of 2023 | Allegation: Accused conspired to kill due to enmity with family and disposed of body in gunny bags. 11. Though, at this stage, this Court will not minutely scan the evidence collected by the investigating agency, however, in order to prima-facie assess the seriousness and gravity of accusations and to find out the existence of reasonable grounds to believe that petitioner has committed the offence as alleged, a cursory scan of the material becomes necessary. 12. Merely because the accusations are of serious nature and the offence, if proved, will attract severe punishment, cannot be the only ground to deny the bail. It has to be weighed and balanced with other factors, such as the allegations against the bail petitioner and also the available evidence to prove such allegations. 19. Thus, the evidence collected by the investigating agency to prove the above noted circumstances, cannot be said to suggest a strong inference against the petitioner. In absence of any eye witness to the incident and nonavailability of support in the form of scientific opinion, no such material is found to exist, which may lead a strong inference negating the possibility of any other hypothesis than the commission of alleged offence by the petitioner. 20. Analyzing the facts of the case at the touchstone of legal parameters, as enunciated from time to time and noticed above, this Court is of the view that petitioner is entitled to bail. | |
| Prabhakar Tewari v. State of UP., 24.01.2020 Supreme Court CRIMINAL APPEAL NO.153-154 OF 2020 | Allegation: Two accused killed deceased by gunshots out of enmity in pending property dispute. The accused has several criminal cases pending against him and has been named in the statement forming the basis of the FIR on the date of occurrence itself. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. | |
| Soh | Sohan Singh v. UT of J&K., 24.06.2021 J&K HC Bail App No.253/2020 | 10. Initially a case under Section 307, 323 RPC was registered. However, offence under Section 307 RPC was converted into one under Section 302 RPC after the deceased succumbed to injuries. After completion of investigation as well as further investigation of the case that was directed by the trial court in terms of its order dated 03.06.2013, charge sheet came to be filed against the petitioner and co-accused. Vide order dated 13.02.2014, petitioner as well as co-accused were charged. Petitioner has been charged with offence under Section 302 RPC whereas coaccused has been charged with offence under Section 302/109 RPC 23. It is true that some delay in completion of trial has taken place on account of restrictions in physical hearing of cases due to COVID-19 pandemic but that is an eventuality beyond the control of everybody. The same cannot be the sole ground for enlarging an accused on bail, particularly in a heinous offence like murder. Even otherwise, the Supreme Court in Kalyan Chandra Sarkar’s case (supra) has clearly laid down that in a case where gravity of offence alleged against an accused is severe, the bail cannot be granted only on the ground of long incarceration. |
| V Vi | Vijay Kumar v. Narendra and ors. Supreme Court (2002) 9 SCC 364 | Allegation: The prosecution case shortly stated was that the incident took place when the deceased accompanied by his two sons, the appellant, Vijay Kumar and Ajay Kumar went to inspect the agricultural operations on his land in village Suaheri. There the respondents and the accused Amit Mohan, who is absconding, killed Ram Charan Singh by firing from the pistols carried by them. 7. The main thrust of the arguments of Mr. R.B. Mehrotra, learned senior counsel appearing for the appellant, is that the High Court, on the facts and circumstances of the case and the findings recorded by learned trial court, committed error in granting bail to the appellants in the appeal pending in the court. He submitted that in view of the serious nature of the offence, the gravity of the accusations, the manner in which the crime was committed, the conduct of the accused persons in delaying the trial, the High Court should not have exercised its discretion to grant bail to them. Mr. R.B. Mehrotra, placed reliance on the decision of this Court in Ramji Prasad v. Rattan Kumar Jaiswal & Anr. , wherein this Court considering the power of suspension of sentence under Section 389(1) Cr. P.C observed: “Absolutely no reason is shown by the learned single judge for adopting this exceptional course in a case where an accused was found guilty by the trial court under Section 302 of the Indian Penal Code. The normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.” 9. The High Court has neither given any reason nor has indicated any exceptional circumstance for granting bail to the respondents. Our attention has not been drawn to any material, which would show that the learned single judge took into consideration the relevant factors while passing the bail order. We refrain ourselves from making any observation touching on merits of the case lest it may prejudice any of the parties. Suffice it to state that we do not consider this a fit case for grant of bail to the respondents during pendency of the appeal filed by them. |
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