The State of Kerala v. Mahesh

INDIRA BANERJEE, J. Leave granted. 2. This Appeal filed by the State of Kerala is against a n order dated 21st December 2020 passed by the High Court of Kerala granting bail to the Respondent, accused of a heinous and shocking murder of a lady doctor aged about 30 years. 969 3. It is the case of the Prosecution that on 28th September 2020 at about 3.30 p.m., the Respondent Accused stabbed the victim, with a knife, inside a multispeciality dental clinic, run by the victim at Kuttanellur. The victim succumbed to her injuries at Jubilee Mission Hospital on 4th October, 2020. 4. As per the case of the Prosecution, the victim m et the Respondent Accused after her divorce from her erstwhile husband. The victim and the Respondent Accused became close and star ted living together from 2018 onwards. The victim became pregnant, bu t the Respondent Accused forced her to undergo an abortion, by threatening her. 5. The deceased victim had, as per the case of the Prosecuti on, started the Multispeciality Dental Clinic, with financial support from her father. The Respondent Accused misappropriated money from the clinic and also harassed the victim, both physically and ment ally. In the circumstances, the victim was constrained to separate from Respondent Accused and start living at her own house. As the Respondent Accused continued to threaten the victim, the victim had, along with her father , filed a complaint with the City Police Commissioner, Thriss ur on 26th September, 2020. 6. The victim was called to the Ollur Police Station for a settlement and thereafter to her dental clinic on 28th September 2020 at 3.30. p.m. The Respondent Accused stabbed the victim with a knife on the right side of the stomach, in the presence of her father, at the dental clinic. 7. An FIR was lodged at the Ollur Police Station, Thrissur on 28th September 2020, under Sections 341, 324 and 307 of the Indian Penal code (IPC), pursuant to which Crime No. 1777/2020 of Ollur Police Station was started. However, after the death of the victim, Section 302 was added and an Inclusion Report to that effect was filed in the Jurisdictional Court. The crime as stated above has been registered under Sections 341, 324, 201, 212, 307 and 302 of the IPC. The Respondent Accused was arrested on 6 th October, 2020. 8. A Bail application filed by the Respondent Accused in the Sessions Court was dismissed by an order dated 9 th December, 2020 with the following findings:- “12. In view of the settled position as laid down by the Ape x court, while considering an application for bail, t he court THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] has to exercise the discretion in a judicious manner with ca re and caution, though at this stage elaborate examinat ion of evidence and detailed reasoning touching the merit of the case is not required. But there is need to indicate in the order the reasons for the prima facie conclusion why bail is not granted. Prime facie satisfaction of the court in s upport of the charge alone is sufficient for the court to arr ive at a conclusion as to whether the petitioner is entitled to get an order of bail. From the materials on record as revealed from the case diary, it could be seen that the petitioner had re ached the clinic with a knife and after the culmination o f the discussion, he had attacked the deceased and inflict ed very serious stab injury and caused damages to her internal vit al organs. After committing the crime, the petitioner had absconded and he could be apprehended only on 06.10.2020 on receiving secret information by the investigatio n agency regarding the arrival of the petitioner at Poonkunnam. A fter committing the crime, the petitioner had abandoned his car and got himself absconded and kept himself away fro m the vicinity of the police with the aid of his brother, worker and a friend. There is merit in the objection raised by t he police regarding the possibility of the petitioner abscond ing from appearing before court. 13. The next objection raised by the prosecution is that since the deceased is a resident of Ernakulam and all prosecuti on witnesses are hailing from Thrissur, there is likelihood o f the petitioner causing influence on the prosecution witnesses. This is a valid ground to decline the release. The brutality of the crime committed by the petitioner in causing multip le stab injuries on the abdomen of the victim also has to be taken into account. The investigation agency could collect sufficie nt evidence to incriminate the petitioner in the crime . On consideration of the entire facts and circumstances, it is found that there are reasonable grounds to arrive at a concl usion that granting of bail to the petitioner would adversely affect the prosecution from adducing evidence in support o f the charge and hence the petitioner is found not entitled to get an order of release.” 971 9. On 14th December 2020, the Respondent Accused filed the bail application being B.A. No.8821 of 2020 in the High Court under Section 439 of the Cr.P.C. The prayer for bail was strongly oppose d by the Public Prosecutor who argued that, if released, the Respondent Accused would influence witnesses many of whom were his close relatives, friends and acquaintances. 10. The High Court has however, granted bail to the Respondent Accused, by the order impugned in this appeal, notwithstanding th e opposition of the Public Prosecutor, overlooking the materials on record, which prima facie indicate that the Respondent had committed cold blooded murder of a young lady doctor, as a fall out o f a soured relationship. The relevant part of the impugned order set out hereinbelow:- “7. After hearing both sides, I think this Bail Application can be allowed on stringent conditions. It is true that the allegations against the petitioner are very serious and the incident now put forward by the prosecution is so he inous. But the petitioner is in custody from 6.10.2020 onwards. The Public Prosecutor also submitted that the second an d third accused were not arrested. But it is a matter to be consi dered that the petitioner is in custody from 6.10.2020 on wards. Indefinite incarceration of the petitioner may not be neces sary in the facts and circumstances of this case. But th e apprehension of the prosecution is also to be taken c are of. In such circumstances, there can be a direction to the petitioner not to enter the jurisdictional limit of Ollur Police Station till the investigation in this case is over.” 11. As stated above, the Incident took place in the presence of the victim’s father, who is an eye witness to the incident. The unfortunate father has filed an application for intervention being I nterlocutory Application No. 41412 of 2021, and has supported the appeal against the order impugned. 12. In the said application, being I.A No.41412 of 202 1 for intervention, the unfortunate father has contended that the Respondent Accused came to the dental clinic with a knife, which clear ly showed that he had a preplanned plot to kill the victim. The manner in which the Respondent Accused stabbed the victim on her stomach, and inflicte d injuries on her, which is corroborated by the post-mortem report, clearly shows intention to cause death. He has also stated that according to the THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] Doctors it was medical miracle that the victim survived fo ur to five days, even though she was in complete coma all through. 13. Attacking the impugned order of the High Court, Counsel appearing on behalf of the Appellant supported by Counsel appearing on behalf of the father of the victim, being the applicant in I.A. No. 41412 of 2021 in this Special Leave Petition, has argued that the Respondent Accused had committed the gruesome murder of a young woman in the presence of her father, who was an eye witness to the inci dent. The High Court should have declined the prayer for bail on that ground alone. The impugned order granting bail to the Respondent Accused, notwithstanding the gravity of the offence, is devoid of cogent reasons, justifying the grant of bail to the accused. The High Cou rt neither considered nor elaborate reasons given by Sessions Court in the order directing bail to the Accused Respondent. It is submitted that restraining the Respondent Accused from entering the jurisdictional limit of Ullur Police Station till the investigation was over, would not prev ent the Respondent Accused from influencing or threatening witnesses. 14. The Respondent Accused has appeared before the Co urt through Ms. Liz Mathew, Advocate and filed a Counter Affidavit to the Special Leave Petition. Significantly, the Respondent has admitted the incident but stated that “ During the discussion, verbal altercation arose between the parents of the deceased and the d efacto complainant who accompanied the deceased victim. A s cuffle took place and unfortunately the deceased victim had sus tained injury. The Respondent had no intention or preparation to c ommit any offence .” 15. On behalf of the Respondent Accused, it has been argued that the impugned order of the High Court is well reasoned. The Hi gh Court found that the Respondent Accused was in cust ody from 6 th October 2020 onwards. Indefinite incarceration of the Respondent Accused was found not necessary. Counsel appearing for the Appellant submitted that the bail application has been allowed on stringent conditions. Counsel emphasized on the conditions imposed by the impugned order restraining the Respondent Accused from entering the jurisdictional limit of Ollur Police Station, till the main witnesses in the case were examined by the Trial Court. She also emphatically argued that bail once granted should not be cancelled in a mechanical manner without conside ring whether there were supervening circumstances which would render the bail no longer conducive to a fair trial. 973 16. It is well settled that though the power to grant bai l under Section 439 of the Cr.P.C is discretionary, such discretion ha s to be exercised judiciously, as held by this Court in Ram Govind Upadhyay v. Sudarshan Singh and Ors.reported in (2002) 3 SCC 598. Speaking for the Court, Umesh Chandra Banerjee, J. said:- “3. Grant of bail though being a discretionary order — but, however, calls for exercise of such a discretion in a judic ious manner and not as a matter of course. Order for bail beref t of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court an d facts, however, do always vary from case to case. While placemen t of the accused in the society, though may be conside red but that by itself cannot be a guiding factor in the matter of g rant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of ba il. The nature of the offence is one of the basic considerat ions for the grant of bail — more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. 4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed a t this juncture, though however, the same are only illustra tive and not exhaustive, neither there can be any. The considerat ions being: (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of th e punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evi dence establishing the guilt of the accused beyond reason able doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] (d) Frivolity in prosecution should always be conside red and it is only the element of genuineness that shall have t o be considered in the matter of grant of bail, and i n the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 17. In Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr. reported in (2010) 14 SCC 496, D.K. Jain, J., speaking for a two-Judge Bench of this Court laid down the principles for examining the correctness of orders granting bail to an accused. This Court held:- “9. …It is trite that this Court does not, normally, inter fere with an order [Ashish Chatterjee v. State of W.B., CR M No. 272 of 2010, order dated 11-1-2010 (Cal)] passed by the High Court granting or rejecting bail to the accuse d. However, it is equally incumbent upon the High Cour t to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in m ind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of convicti on; (iv) danger of the accused absconding or fleeing, i f released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses bein g influenced; and (viii) danger, of course, of justice being thwarted by g rant of bail. *** 975 10. It is manifest that if the High Court does not a dvert to these relevant considerations and mechanically gran ts bail, the said order would suffer from the vice of non-appli cation of mind, rendering it to be illegal.” 18. In Mahipal v. Rajesh Kumar and Anr. reported in (2020) 2 SCC 118, this Court held:- “14.The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the disc retion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is li able to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceeding s of the trial in any manner or evading the course of justic e. The provision for being released on bail draws an appro priate balance between public interest in the administration of just ice and the protection of individual liberty pending adjudicatio n of the case. However, the grant of bail is to be secured wit hin the bounds of the law and in compliance with the condition s laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an anal ysis of the record, it appears that there is a prima facie or reas onable cause to believe that the accused had committed the crime. I t is not relevant at this stage for the court to examine in de tail the evidence on record to come to a conclusive finding.” 19. The Respondent Accused relied on the judgments of this Court in Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40 and Siddharam Satlingappa Mhetra v. State of Maharashtra and Ors. reported in (2011) 1 SCC 694, where this Court observed that seriousness of the charge is not test or factor while considering the application for bail. THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] 20. In Sanjay Chandra (supra), the accused were charged with economic offences of huge magnitude which could jeopa rdize the economy of the country. This Court held:- “21.In bail applications, generally, it has been laid down from the earliest times that the object of bail is to se cure the appearance of the accused person at his trial by reas onable amount of bail. The object of bail is neither punit ive nor preventative. Deprivation of liberty must be consid ered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that puni shment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a c ause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending t rial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshri ned in the Constitution that any person should be punished in respec t of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumst ances. 23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fac t that any imprisonment before conviction has a substantial pu nitive content and it would be improper for any court to refuse bai l as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. 24. In the instant case, we have already noticed that the “pointing finger of accusation” against the appellants is “ the seriousness of the charge”. The offences alleged are economi c offences which have resulted in loss to the State exc hequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not place d 977 any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the re levant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be impose d after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the form er is the only test, we would not be balancing the constitutional rig hts but rather “recalibrating the scales of justice ”. 25.The provisions of CrPC confer discretionary jurisdi ction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdi ction is discretionary, it has to be exercised with great ca re and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. …….” 21. In Siddharam Satlingappa Mhetra (supra) rendered in the context of the discretion to grant anticipatory bail under Section 438, this Court advocated the need to balance individual personal libert y with societal interest. This Court held:- “84. Just as liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. B oth are equally important.” 22. There is no straight jacket formula for grant or refusal of bail. Seriousness of the charge is undoubtedly one of the relevant considerations while considering bail applications as hel d in Sanjay Chandra (supra) cited on behalf of the Respondent Accused. All the relevant factors have to be weighed by the Court co nsidering an application for bail, including the gravity of the offence, t he evidence and material which prima facie show the involvement of applicant for bail in the offence alleged, the extent of involvement of the applicant for bail, in the offence alleged, possibility of the applicant accused absconding or otherwise defeating or delaying the course of justice, re asonable apprehension of witnesses being threatened or influenced or of evidence being tempered with, and danger to the safety of the victim (if alive), the complainant, their relatives, friends or other witnesses. 23. Counsel for the Respondent Accused finally argued that this Court does not ordinarily entertain a petition for Special Leave to Appeal THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] against an order granting or refusing or cancelling bail or a nticipatory bail. Investigation in this case has been concluded and chargesheet has been filed on 1st January 2021. 24. In Jagdish and Ors. v. Harendrajit Singh reported in (1985) 4 SCC 508, cited on behalf of the Respondent Accused, this Court held that, this Court does not ordinarily, in exercise of its discret ion under Article 136, entertain petition for Special Leave to Appeal against orders granting or refusing or cancelling bail or anticipatory bail. There can be no dispute with the proposition. This Court does not ordinarily interfere with an order granting or refusing bail in exercise of its power under Article 136 of the Constitution. However, the practice of not interfering with orders granting and/or refusing bail is not unexceptionable. An order granting or refusing bail without application of mind and in disregard of relevant factors, cannot be allowed to stand. 25. Counsel argued that the Respondent Accused had been granted bail on 21st December 2020 that is almost three months ago, but has not interfered with the course of administration of justice in any way . Nor has the Respondent Accused evaded or attempted to evade th e due course of justice. Learned counsel argued that the Respondent Accused had been in judicial custody for 75 days. The investigation was over and continued detention of the Respondent Accused was no longer necessary. 26. Relying on the judgment of this Court in P. Chidambaram v. Directorate of Enforcement reported in 2020 (13) SCC 791, Counsel submitted that this Court had repeatedly highlighted the proposition that bail was the rule and jail the exception. 27. Citing the judgment of this Court in Dolat Ram and Ors. v. State of Haryana reported in (1995) 1 SCC 349, it was submitted that the Respondent Accused having been granted bail, by the impug ned order dated 21 st December 2020, this Court should not deprive him of his personal liberty, without considering whether th ere were any supervening circumstances which had rendered the freedom of the Respondent Accused to bail, inexpedient for fair trial. 28. In Dolat Ram (supra), this Court held:- “4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an ord er 979 directing the cancellation of the bail, already gra nted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interfere nce or attempt to interfere with the due course of administr ation of justice or evasion or attempt to evade the due course of just ice or abuse of the concession granted to the accused i n any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accu sed absconding is yet another reason justifying the cance llation of bail. However, bail once granted should not be cancell ed in a mechanical manner without considering whether any supervening circumstances have rendered it no longe r conducive to a fair trial to allow the accused to r etain his freedom by enjoying the concession of bail during the trial .” 29. In this Appeal the correctness of the impugned order of the High Court, in granting bail to the Respondent Accused is in question. The exercise of appellate jurisdiction to adjudge correctn ess of a bail order are not restricted by the principles for cancellation of bail. As held by this Court, speaking through Dr. D.Y. Chandrachud J. in Mahipal v. Rajesh Kumar (supra):- “16.The considerations that guide the power of an appellate court in assessing the correctness of an order grant ing bail stand on a different footing from an assessment of an application for the cancellation of bail. The correc tness of an order granting bail is tested on the anvil of whether ther e was an improper or arbitrary exercise of the discreti on in the grant of bail. The test is whether the order granti ng 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 circumsta nces or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v. State ofU.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], the accused was granted bail by the High Cour t [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031]. In an appeal against the order [Mitthan Yadav v. St ate of U.P., 2014 SCC OnLine All 16031] of the High Court, a two- Judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Dipak Misr a, J. (as THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] the learned Chief Justice then was) held: (Neeru Yadav case [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], SCC p. 513, para 12) “12. … It is well settled in law that cancellation of bail aft er it is granted because the accused has misconducted h imself or of some supervening circumstances warranting suc h cancellation have occurred is in a different compar tment altogether than an order granting bail which is unjust ified, illegal and perverse. If in a case, the relevant fac tors which should have been taken into consideration while dealing with the application for bail have not been taken note of, or bail is founded on irrelevant considerations, indisputab ly the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second na ture, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that h ave happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passe d by the Court.” 17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may just ifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail su ffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus nece ssary for this Court to assess whether, on the basis of the evid entiary record, there existed a prima facie or reasonable gro und to believe that the accused had committed the crime, also takin g into account the seriousness of the crime and the severit y of the punishment.” 30. Counsel appearing for the Respondent Accused, has also cited Prabhakar Tewari v. State of U.P. and Anr. reported in (2020) 11 SCC 648 where this Court, speaking through Aniruddha Bose J. has discussed the scope of appellate interference to set aside an order granting bail. In Prabhakar Tewari (supra), this Court held:- “6. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, a coordinate Bench of this Court has discussed the sc ope of 981 jurisdiction of the appellate court in setting aside an orde r of granting bail. The two key factors for interfering wi th such an order are non-application of mind on the part of the court granting bail or the opinion of the court in grantin g bail is not borne out from a prima facie view of the eviden ce on record. In Mohd. Amir Rashadi v. State of U.P. (2012) 2 SCC 382, a two-Judge Bench of this Court declined to int erfere with an order [Rama Kant Yadav v. State of U.P., 2010 SCC OnLine All 3388] of the High Court granting bail to an accused having considered the factual features of that case.” 31. The High Court has also relied on the judgment of this Court in P. Chidambaram (supra) reported in (2020) 13 SCC 791 cited on behalf of the Respondent Accused. There could be no quarrel with the proposition of law laid down in the cited judgment. A.S. Bopanna, J . speaking for a three judge Bench held:- “23.Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Const itution Bench of this Court, it could be deduced that the b asic jurisprudence relating to bail remains the same inasmuc h as the grant of bail is the rule and refusal is the exception s o as to ensure that the accused has the opportunity of s ecuring fair trial. However, while considering the same the gravit y of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising i n each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, i t has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Cour t will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the off ence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspecti ve is that even if the allegation is one of grave economic o ffence, THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] it is not a rule that bail should be denied in every case sinc e there is no such bar created in the relevant enactment pass ed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespec tive of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimatel y the consideration will have to be on case-to-case b asis on the facts involved therein and securing the presenc e of the accused to stand trial.” 32. In P. Chidambaram (supra), this Court allowed the appeal from the order of the High Court, and allowed the prayer of the Appellant for bail, having regard to the facts and circumstances of the case noted by this Court, which are extracted hereinbelow:- “28. Therefore, at this stage while considering the ba il application of the appellant herein what is to be ta ken note of is that, at a stage when the appellant was before this Cou rt in an application seeking for interim protection/antici patory bail, this Court while considering the matter in Cr iminal Appeal No. 1340 of 2019 had in that regard held tha t in a matter of present nature wherein grave economic offe nce is alleged, custodial interrogation as contended would be necessary and in that circumstance the anticipatory bail was rejected. Subsequently, the appellant has been take n into custody and has been interrogated and for the said purpo se the appellant was available in custody in this case fro m 16- 10-2019 onwards. It is, however, contended on behalf of t he respondent that the witnesses will have to be confronted and as such custody is required for that purpose. 29. As noted, the appellant has not been named as one of the accused in the ECIR but the allegation while being made against the co-accused it is indicated the appellant who was the Finance Minister at that point, has aided the i llegal transactions since one of the co-accused is the son of the appellant. In this context, even if the statements on record and materials gathered are taken note of, the complic ity of the appellant will have to be established in the tr ial and if convicted, the appellant will undergo sentence. For the 983 present, as taken note of, the anticipatory bail ha d been declined earlier and the appellant was available for custodial interrogation for more than 45 days. In addition to the custodial interrogation if further investigation is to be ma de, the appellant would be bound to participate in such investigation as is required by the respondent.” 33. In this case, the impugned order of the High Court is flawed, in that the High Court noted the seriousness of the offence al leged, observed that the incident was heinous, but proceeded to grant bail to the Respondent Accused on the purported ground that he had bee n in custody since 6 th October 2020 (that is, about 75 days) without even considering the materials on record which prima facie made out reasonable grounds to believe that the Respondent Ac cused had committed the heinous offence. At that stage, even the char gesheet had not been filed. The High Court did not apply its mind to the severity of the punishment in the event of conviction, or the fact that the accused had been absconding after the incident. 34. As argued on behalf of the Appellant, supported by the applicant for intervention, being the hapless parent of the victim, the High Court has neither considered nor discussed the elaborate reasons given by the Sessions Court in its order rejecting the prayer of the Respondent Accused for bail. The impugned order of the High Court does not advert to any error in the reasoning of the Sessions Court. Nor is there any discussion of the reason why the High Court took a view different from that taken by the Sessions Court – whether there were any supe rvening circumstances within 10/12 days of the order of the Sessions Co urt, which necessitated a different view. 35. The High Court, in our opinion, clearly erred in not appreciating that the apprehension of the Prosecution that the Respondent Accus ed would influence witnesses, could not be put to rest, by dir ecting the Respondent Accused not to enter the jurisdiction of Ollur Police Station. The High Court completely ignored the fact that the deceased victim used to reside at Ernakulam. Her parents and her five years old daughter reside at Ernakulam. In other words, the only eye witness is a re sident of Ernakulam. Most of the Prosecution witnesses were from Thri ssur. There was no reason to suppose that the witnesses would restrict thei r movements to the limits of the jurisdiction of Ollur Police Station. THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.] 36. It further appears from the impugned order that, in granting bail to the Respondent Accused, the High Court took note of the fact that two other accused persons had not been arrested. The High Court completely ignored the fact that these two accused pers ons were not named in the FIR. They were charged after investigation with offence under Section 212, of harbouring the Respondent Accused, punishable with imprisonment for a maximum period of five years, unlike th e Respondent Accused, charged with murder under Section 302 of the IPC, which entails minimum punishment of imprisonment for life. 37. There can be no doubt that the outbreak of the novel COVID- 19 pandemic and its spread has been a matter of serious public concern. The virus being highly infectious, precautions to prevent s pread of infection to the extent possible are imperative. In Suo Motu Writ Petition (Civil) No.1 of 2020 In Re : Contagion of Covid 19 Virus In Prisons , this Court expressed concern over the possibility of spread of COVID- 19 amongst prisoners lodged in overcrowded correctional hom es and accordingly issued directions from time to time, directing the authorities concerned to inter alia take steps as directed by this Court, to minimize the risk of spread of COVID amongst the inmates of correctional homes. This Court also directed that a High Powered Committee be constituted by the States and Union Territories to consider release of some prisoners on interim bail or parole during the Pandemic, to prevent overcrowding of prisons. 38. It appears that the High Court has completely mis-appreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons. This Court did not direct release of all under-trial prisoners, irrespe ctive of the severity of the offence. After hearing the learned Attorney General of India, Mr. Venugopal, the Amicus Curiae appointed by this Court, Mr. Dushyant Dave and other Learned Counsel, the States an d Union Territories were directed to constitute a High Powered Committee to determine which class of prisoners could be released on parole or interim bail for such period as might be thought appropriate. By way of example, this Court directed the States/Union Territories to consider release of prisoners convicted of minor offences with prescribed punishm ent of seven years or less. The orders of this Court are not to be con strued as any direction, or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed 985 and the chargesheet is filed. The Respondent Accused, it is reiterated, is charged with murder in the presence of an eye witness, and the impugned order granting bail was filed even before the chargesheet was filed. The Chargesheet appears to have been filed on 01.01.2021. Moreover the Respondent Accused had been absconding after the incident. 39. For the reasons discussed above the Appeal is allowed and the impugned order of the High Court is set aside. The Respondent Accused shall be taken into custody. 40. A copy of this order shall be sent to the concerned Pol ice Station as well as the Jurisdictional Chief Judicial Magistrate for compliance. 41. Pending application(s), if any, shall stand disposed of. Devika Gujral Appeal allowed. THE STATE OF KERALA v. MAHESH [INDIRA BANERJEE, J.]