Power of an appellate court in assessing the correctness of an order granting bail stands on a different footing from an assessment of an application for the cancellation of bail: Delhi HC

The Delhi HC on June 14, 2021 {RELIGARE FINVEST LTD. vs STATE OF NCT OF DELHI & ANR.} held that the learned trial court has recorded reasons for granting bail to respondent No. 2 - Shivender Mohan Singh, but has failed to consider that the present FIR case pertains to a serious economic offence of high magnitude, where large amount of approximately Rs.2400 crores including interest has been siphoned off at the behest of respondent No. 2 and his brother Malvinder Mohan Singh by diverting it through various financial transactions, by granting loan to the shell companies, of whom they were the Directors or Promoters or beneficiary in interest. 

The Single Judge of Delhi High Court, Justice Suresh Kumar Kait, held that by exercising the appellate jurisdiction, this Court is required to justify the reasons for arriving at a conclusion as to on what premise the trial court order granting bail has to be inhibited. 

On this aspect, the pertinent observations of the Hon’ble Supreme Court in Mahipal Vs. Rajesh Kumar (2020) 2 SCC 118 were aptly quoted by HC which are as under:-

“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......"

The HC held that the learned trial court has failed to take note of the fact that offences alleged are serious in nature and rather than taking into account the factors that respondent No.2 is behind bars for more than one year and that investigation is complete, however, should have borne in mind the peculiarity of fraud and conspiracy involved in this case and refrained itself from passing a blanket order releasing respondent No.2 on bail. It was held that no doubt on the premise that investigation is complete and accused is behind bars for some time and that trial shall take time, bail can be granted but only when the offences alleged are of lesser magnitude. However, it was held that the trial court by rendering such an opinion in the present case, lost sight of the enormity of the offence alleged against respondent No.2.

In the present case, the petitioner had prayed for setting aside of impugned order dated 03.03.2021 and resultantly, cancellation of bail granted to respondent No.2 was sought. In the present petition, setting aside of order dated 03.03.2021 passed by the learned trial court was also sought by the petitioner. 

The HC held that the parameters, which govern the cancellation of bail, as reiterated by Apex Court in Kanwar Singh Meena Vs. State of Rajasthan (2012) 12 SCC 180, are as under: -

“While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail.” 

It was held by the HC that in the present case, nature and gravity of accusation against respondent No.2 is serious. It was held that the grant of bail in a case involving cheating, criminal breach of interest by an agent of such a large magnitude of money, affecting a very large number of people would also have an adverse impact not only on the progress of the case but also on the trust of the criminal justice system that people repose. Thus, it was held that the parameters set out by the Hon’ble Supreme Court for cancellation of bail in Kanwar Singh Meena (Supra), have been met out.

Thus, the HC held that the court below had no ground to grant bail to the respondent No.2 vide its impugned order dated 03.03.2021, as the role of respondent No.2 is not less than above named accused by any stretch of imagination. 

In view of afore-going narration, the impugned order dated 03.03.2021 passed by the learned trial court was set aside by Delhi HC. Consequentially, the bail granted to respondent No.2 - Shivender Mohan Singh  by the trial court was also set aside.