'Unreasoned order suffers the vice of arbitrariness', SC cancels bail of man accused of raping niece

New Delhi, April 19 The Supreme Court on Tuesday said a trend is emerging, where courts are making general observation either granting or refusing to grant bail, as it cancelled the bail of a man accused of raping his minor niece. The top court emphasised that reasoning is the life blood of the judicial system, and an unreasoned order suffers the vice of arbitrariness.

A bench headed by Chief Justice NV Ramana and comprising Justice Krishan Murari said the Rajasthan High Court order, granting bail to the accused, is cryptic, and does not suggest any application of mind.

"There is a recent trend of passing such orders granting or refusing to grant bail, where the Courts make a general observation that the facts and the circumstances have been considered. No specific reasons are indicated which precipitated the passing of the order by the court," said the bench.

The bench said such a situation continues despite various judgments of this court wherein it has disapproved of such a practice. It noted that Omprakash has been accused of committing the grievous offence of rape against his young niece, and he is also a habitual offender and nearly twenty cases registered against him, which were not mentioned in the high court order.

"Further, the High Court has failed to consider the influence that Omprakash may have over the prosecutrix as an elder family member. The period of imprisonment, being only three months, is not of such a magnitude as to push the court towards granting bail in an offence of this nature," said the bench, setting aside the high court order and directing the accused to surrender within a week.

The bench said apart from general observation that the facts and circumstances of the case have been taken into account, nowhere have the actual facts of the case been adverted to.

"There appears to be no reference to the factors that ultimately led the High Court to grant bail. In fact, no reasoning is apparent from the impugned order. Reasoning is the life blood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system. An unreasoned order suffers the vice of arbitrariness", said the bench.

The top court order came on an appeal filed by the victim challenging the high court order, which granted regular bail to the accused on September 20, 2021. The FIR was registered in the matter in May last year.

The top court, citing the chargesheet, noted that the victim claimed the accused raped her on two occasions. The state government counsel said the accused committed the heinous offence of rape and sexual assault upon his minor niece for nearly three to four years.

The counsel added that the accused is an infamous criminal who has twenty criminal cases registered against him, in some of which he has already been convicted. The list of cases registered against him include cases relating to murder, attempt to murder, kidnapping, dacoity etc, and sought setting aside the high court order.

Citing previous orders, the bench said it is clear that this court has consistently upheld the necessity of reasoned bail orders, with a special emphasis on matters involving serious offences.

"The impugned order passed by the High Court is set aside. The Criminal Appeal is accordingly allowed. Bail bonds stand cancelled. Accused is directed to surrender within one week from the receipt of this order, failing which, the concerned police authorities shall take him into custody," said the bench.