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The high court had declined to entertain the bail application of the appellant on the ground that the co-accused, who had been released on bail, had not surrendered.
The Supreme Court has held that an accused cannot be denied bail just because a co-accused has absconded or has not surrendered after being released in a pending criminal case.
A bench of Justices K M Joseph and Aravind Kumar said, "We are of the view that the fact that the co-accused who was released on bail has not surrendered cannot be a germane factor to decline bail to the co-accused."
The court was hearing an appeal filed by one Sebil Elanjimpally who had challenged the Orissa High Court's order refusing him bail in a case registered under the Narcotic Drugs and Psychotropic Substances Act, 1985.
The appellant's counsel submitted that the appellant had been in custody for two years and 11 months. The high court had his second bail application whereas his earlier bail application was rejected on July 07, 2022.
The apex court noted the high court had declined to entertain the bail application as the co-accused released on bail had not surrendered.
"The impugned order shows that what has weighed with the court is the fact that the co-accused who was released on bail has not surrendered. It is this factor alone that we can discern to be the reason to not entertain the bail application. After hearing counsel for the parties, we are of the view that the fact that the co-accused who was released on bail has not surrendered cannot be a germane factor to decline bail to the co-accused, namely, the appellant," the bench said.
The bench asked the high court to reconsider the matter while setting aside the impugned order.
"The High Court will take up the application and pass orders on the same in view of the fact that it is a case where the charges have been framed and 19 prosecution witnesses are proposed to be examined by the State. We request the High Court to take up the application and dispose of the same at the earliest and if possible, preferably within a period of two months from the date of production of the copy of the order," the bench said.
Case Title: Sebil Elanjimpally vs. The State of Odisha
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