The grant of bail, especially in the cases of murder requires the consideration of various factors which ultimately depend upon the specific facts and circumstances of the case before the Court. There is no straight jacket formula as to what the relevant factors could be. The courts are expected to apply judicious mind and not in a mechanical process.
The Hon’ble Apex court has time and again reiterated common factors like the involvement (role) of the accused, nature and gravity, severity of the punishment, and the character or standing of the accused in the society. Since, murder is a crime against the society wherein not only an individual is a victim but it is the society as a whole. Herein, the state is the protector of rights of the society and in failure to do so, is prosecuted. Thus, granting bail should be given a people-centered approach and it becomes imperative to balance the rights of the accused and the victim.
The factors vary case to case basis, if the murder case is clubbed with or chained with stringent laws like MCOCA, UAPA, TADA, POTA or POCSO then the governing factors changes and accordingly decided by the respective special court.
The role of each accused is imperative, the weapon used, no. of stabbings (if any) i.e., brutality, delay in lodging FIR, duration spent as under-trial vis-a-vis progress of trial (Protracted nature of trial), Parity, Past Antecedents, ill-health or age of accused/suspect are the common factors in murder cases which one should look upon.
Very recently in March 2023, the Kerala HC in George Kurian @ Pappan v. State of Kerala & Anr. drew the attention by expanding the existing factors of bail in murder cases. It held that the trio-consideration i.e., Chances of Absconding, Tampering and Interfering are not exhaustive.
The Single Judge Bench of Justice A. Badharudeen ascertained that there are several other factors which also govern the grant of bail, and enumerated the same as follows:
- Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
- Nature and gravity of the offences;
- Severity of the punishment in the event of conviction;
- Danger of the accused absconding or fleeing if released on bail;
- Character, behaviour, means, position and standing of the accused;
- Likelihood of the offence being repeated;
- Reasonable apprehension of the witnesses being tampered with;
- Danger, of course, of justice being thwarted by grant of bail
- Danger of threats or influence on witnesses so that the witnesses could not depose the truth before the court;
- Character of the evidence and circumstances which are peculiar to the accused;
- Fatality of witnesses;
- The impact that his release may make on the prosecution witnesses,
- Its impact on the society;
- The way and manner in which the crime was committed;
- Motive behind the crime.
Another evolving consideration is “Settlement between the parties”. The matter is pending for final call before the Hon’ble Supreme Court. The High courts have taken divergent views and in some cases contradictions are seen within the rulings of the same HC.
On Feb 18, 2022, the Gujarat HC in Bharwad Santoshbhai Sondabhai v State of Gujarat granted bail to an accused who was in custody for 5 months for murder on the ground that the son of the deceased and the accused persons have entered into a settlement. The same is under challenge before the apex court on the ground that settlement in S. 302 IPC is unheard and if legislature had intended such it could have added the said offence under compoundable list. It is interesting to note that the same Guj HC in 2023 in Naransinh Amarsinh Bihola v. State of Gujarat, 2022 SCC OnLine Guj 2412 denied bail to murder accused who entered into settlement citing that it amounts to tempering with the evidence or witnesses.
It will be interesting to look for a final call from the supreme court.
Here is list of cases which deal extensively with grounds of bail in murder cases:
| S.No. | Case Name | Relevant Paragraph |
| Vinay Kumar vs Narendra And Ors. [2002] 9 SCC 364 | The principle is well-settled that in considering the prayer for bail in a case involving serious offence like murder, punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. | |
| Sumedh Singh Saini v. State of Punjab and ors. Supreme Court Date: Dec 3, 2020 Long Delay In Lodging FIR A Valid Consideration To Grant Anticipatory Bail : Supreme Court Significance: Murder case – Delay of 9 years – long delay – ABA granted. | 7. However, considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra) and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, we are of the opinion that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C. Many a time delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like 29 years as in the present case can certainly be a valid consideration for grant of anticipatory bail. | |
| Santosh Mane v. State of Maharashtra., ANTICIPATORY BAIL APPLICATION NO.2144 OF 2022 Bom HC Date: Sept 26, 2022. Significance: Even in cases of serious offences like murder, the court says it is not always necessary for custodial interrogation and can invoke anticipatory bail. (SUSPECT) Further – Limited Role – Ground of Parity – Incident took place before 3 years – ABA granted. | Merely because the offence involved is under Section 302 of IPC, it is not imperative for his custodial interrogation and an apprehension of the applicant that, ‘he has reason to believe that he may be arrested’, is suffcient to invoke the provision of Section 438 of Cr.P.C. and considering the fact that the incident had taken place some three years back and the material compiled in the charge-sheet against other accused refects a limited role to the applicant, at this stage, he deserves protection from arrest. | |
| Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 Significance: Procedure in deciding bail applications. | 11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. | |
| Khongbantabam Hitler Singh v. The Officer-in-Charge, Imphal Police Station, Bail Appln.No. 30 of 2022. Manipur High Court Significance: Heinous – Accused Of Murdering Two Women, Unborn Child – Humane attitude required – Prolonged Detention (6 years) violating Article 21. | 29. Though the allegation against the petitioner is very serious in nature and he is alleged to have committed murder of two women and an unborn child in the womb, taking note of the fact that the petitioner is in jail since 2.6.2017 and also the trial of the case has not concluded yet for one reason or the other, in the interest of justice and in view of the undertaking given by the petitioner that he shall remain present in person before the trial Court on the date fixed for the examination of the last prosecution witness as well as till the stage of examination of him. 25. It is clear that grant or denial of bail is entirely the discretion of the Judge considering the bail application, but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by the Hon’ble Supreme Court as well as by the High Courts in the country. 26. To put it shortly, a humane attitude is required to be adopted by a Judge while dealing with the ball application. Even if the offence is a serious offence, requires a humane treatment by the Court, humane treatment to all including an accused is requirement of law. 27. The cardinal principles of law for granting bail will not be affected when enlarging the petitioner on bail, inasmuch as the investigation has already been completed. As stated, the case is pending for examination of further prosecution witnesses. Therefore, the question of influencing to the witnesses or hamper and tamper of the prosecution case by the petitioner after his release does not arise |
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