HISTORY OF BAIL:
The concept of bail can trace back to 399 BC, when Plato tried to create a bond for the release of Socrates. In The Magna Charta, in 1215, the first step was taken in granting rights to citizens. It said that no man could be taken or imprisoned without being judged by his peers or the law of the land. The Statute of Westminster in 1275 eliminated the discretion of sheriffs with respect to which crimes would be bailable. Under the Statute, the bailable and non-bailable offenses were specifically listed. The sheriffs retained the authority to decide the amount of bail and to weigh all relevant factors to arrive at that amount [History of Bail][1]. The modern bail system evolved from a series of laws originating in the middle ages in England. In 1677, the English parliament passed the Habeas Corpus Act, which, among its provisions, established that magistrates would set terms for bail. The English Bill of Rights of 1689 declared restrictions against “excessive bail” and later inspired the Virginia state constitution and the Eighth Amendment to the United States Constitution. The Sixth Amendment to the Constitution states that all people under arrest must “be informed of the nature and cause of the accusation” they face and also allows a person to demand bail if he or she is accused of a bailable offense [How Bail Works? by Jacob Silverman][2]. The 1697 English Bill of Rights protected against judicial officers who might abuse bail policy by setting excessive financial conditions for release, stating that “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required”[3].
In the Legal sense the principal purpose of ‘Bail’ is to ensure that an accused person will return for trial if he is released after arrest[4].
The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor, AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson, AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days[5].
BAIL – OBJECT:
In bail application, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. Supreme Court, time and again has stated that bail is the rule and committal to jail is an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed u/A – 21 of the Constitution[6].
BAIL – WHAT IS?
The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned[7].
The term “bail” has not been defined in the Code, though is used very often. A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. 9. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial. Further Hon’ble Supreme Court has held that the Code of Criminal Procedure, despite being a procedural law, is enacted on the inviolable right enshrined under Article 21 and 22 of the Constitution of India. The provisions governing clearly exhibited the aforesaid intendment of the Parliament[8].
RIGHT TO BAIL A BASIC EXPLANATION:
The right to bail is inextricably linked to the knowledge and awareness of the accused of his right to obtain release on bail; this is further linked to Article 22(1) of the Constitution which provides that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his/her choice. Also, pleading right to bail is the basic right to the prisoner or apprehend in who the law treats basically as an innocent till the final disposal of the judgment, and in intense we have to accept that this is the ‘Democratic Country’ where the people rule the people, that means is any harm or hurt happen to the people (society), where the ‘authority’ people summon and require the help of the accused / alleged person to find out the truth about the charge against the accused person (Until the final disposal or the conclusion about the truth, there are so many procedures to be followed, such as registration of harm / hurt / crime, investigation of crime, collection of evidences, statement of the witnesses and testimony of witnesses and argument of the parties who have involved in the crime as complainant and accused). It is normal and quite natural that the alleged person will scare and might not co – operate to the enquiry (in legal language ‘trial’), to make sure the alleged person or ‘accused’ to present on the date of proceedings against the ‘accused’, the ‘authority’ people who usually conducts the ‘trial’ / proceedings will detain (secure the ‘accused’ person) the alleged person for his presence in the above proceedings. But in the case to give respect the legal maxim ‘Actus Non Facit Reum Nisi Mens Sit Rea’, the ‘authority’ shall release the ‘accused’ person in bond or security that the ‘accused’ will show his presence in the proceedings by himself or through his representative.
BAIL – WHY MANDATORY?
There are several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial / undertrial detention.
1. There are articles defined in Universal declaration as to why bail has to be granted to accused and that articles are also self explanatory like commentary which needs no explanation. The articles 9, 10 & 11(1) guarantees the accused regarding the arrest, public hearing and shall be treated as an innocent[9] [P. V. Ramakrishna, “Law of Bails”, Seventh Edn., Lexis Nexis].
2. Remember the way back of Bihar Jail prisons filled up by prisoners who stayed there even more than the period prescribed as punishment for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar[10]. Justice Bhagwati found that these unfortunate undertrials languished in prisons not because they were guilty but because they were too poor to afford a bail. He Mr. Justice Bhagwati thus ordered the release of persons whose period of imprisonment had exceeded the period of imprisonment for their offences. He brought into focus the failure of the magistrates to respect section 167(2) of Cr.P.C. which entitles an undertrial to be released from prison on expiry of 60 days or 90 days as the case may be.
3. Based on the diceyian (Dicey’s) concept ‘rule of law’ that ‘no one can deprived of his life and personal liberty by the executive action unsupported by law. Following the aforesaid concept ‘rule of law’ our constitution has empowered arrested persons with Art – 21 which affords protection to the arrested persons that no law can deprive a person of his/her life or personal liberty unless it prescribes a procedure which is reasonable, fair and just it would be for the court to determine whether the procedure is reasonable, fair and just ; if not, it would be struck down as invalid this is the theme which was held in Maneka Gandhi v. Union of India AIR 1978 SC 597.
Now it is obvious to discuss about the free legal aid to the arrested persons, if not the poor prisoners who are not capable to produce bail bonds or incapable to pay fees to lawyers shall be detained in jail until they produce bonds in the sense of S – 167 and S – 436, 437. In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice. According to the interpretation by the Supreme Court in Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227 Also this Article does not carry out the free service of lawyer at state cost to a prisoner. But as we discussed earlier in the light of the concept ‘rule of law’ The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is….
“a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.”
BAIL – RIGHTS OF ACCUSED:
Since the appellant has a right under the Code of Criminal Procedure to pray for bail as and when he intends to, the High Court could not have debarred him from exercising his such right for one year. Of course, whether such prayer would be entertained or not, it is for the High Court to decide but it cannot prevent an accused from seeking his release on bail. We, therefore, quash the impugned order to the above extent[11].
BAIL – ACCUSED NO NEED TO APPEAR BEFORE COURT TILL CHARGE SHEET FILED – REARREST NOT NECESSARY:
The first interim direction sought by Mr. Sibal is that when an accused is released on bail, he should not be required to appear in court until the charge-sheet is filed and process issued by the Court. Mr. Sibal states that today what happens in many of the Magistrates Courts in Bihar is that the accused is required to appear before the Court every fourteen days even though he is on bail and this causes considerable harassment to the accused. He submits and in our opinion rightly that this is not required by law and Mr. K. G. Bhagat, learned advocate appearing on behalf of the State of Bihar, fairly concedes that law does not require that an accused on bail need appear before the Court before the charge-sheet is filed and process issued by the Court. We, therefore, direct that whenever an accused is released on bail he need not be required to appear before the Court until the charge-sheet is filed and the process is issued by the Court. There is also another difficulty pointed out by Mr. Sibal and it is that in cases triable by the Court of Session, the practice followed is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry before the Magistrate, with the result that when the case is committed to the Court of Session, he is rearrested and brought before the Court of Session where he has to apply once again for fresh bail. This causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned. This situation can however easily be avoided because there is a provision in S. 441 sub-sec. (3) of the Cr. P.C. under which bail can be granted to an accused so as to bind him to appear before the Court of Session, in which event, on committal, he would not have to be re-arrested and brought before the Court of Session. It. is also clear from S. 209, cl. (b) of the Cr. P.C. that the Magistrate has discretion to release the accused on bail “during and until completion of trial” even in cases where the offence is triable by the Court of Session. We, therefore, feel that it would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Session. Mr. K. G. . Bhagat on behalf of the State of Bihar also agrees that this is a procedure which can be legitimately followed by the Magistrates. We hope and trust that hereafter this procedure will be followed by the Magistrates unless there are any particular reasons for not doing so[12].
BAIL – CAN BE GRANTED EVEN DISTINCT OFFENCE IS PENDING:
The police have to complete investigation within the prescribed period with reference to the distinct offences in which they arrested the accused. Thus, from the date of arrest of the accused, if the police failed to complete investigation within the prescribed period with regard to the offence in which he is arrested, he has to be released on bail, even though the investigation with regard to other distinct offences is still pending[13].
DISTINCTION BETWEEN ‘BAILABLE’ and NON-BAILABLE OFFENCE:
When the offence is bailable, bail u/s. 436 Cr.P.C has to be granted without ‘ado’, but if the offence is non – bailable, further consideration will arise and the court will decide the question of grant of bail [i.e. seriousness of offence, character of the evidence, accused not being secured at the trial, witness being tempered e.t.c..][14]. The grant of bail to a person accused of non – bailable offence is treated differently, at any time while detention without a warrant and at any stage of the proceedings before the court to which he is brought, he has the right u/s. 436 Cr.P.C to be released on bail [KATILAL BHANJI MITHANJI vs. ASST. COLLECTOR AIR 1967 SC 1639; 1967 Cr.L.J 1576][15].
BAIL – DIFFERENCE BETWEEN SECTIONS 436 & 437 CR.P.C:
Thus, bail presupposes that the person is in the custody of the police or the court. That is why, both sections 436 and 437 of the Code use the expression detained without warrant by an officer in charge of a police station or appears or is brought before a court. Section 436 requires the police officer and court to release the person on bail if the offence for which he has been detained is bailable in nature. Section 437 of the code empowers the police officer and the court to release the person on bail, if the offence is non-bailable in nature, of course, with certain riders, which are not available in section 436 of the Code. In view of the absence of such riders, section 436 of the Code makes it mandatory for the police officer/court to release the person on bail in a case involving a bailable offence. Thus, sections 436 and 437 of the code use the expression “shall/may be released on bail” since in both these eventualities, the accused is in the physical control of the Magistrate by his appearance or he having been produced before the Magistrate by the police[16].
BAIL – SECTION 437 Cr.P.C:
Under section 437 of the Code when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court,he may be released on bailby a court other than the High court and Sessions subject to the conditions that he does not reasonably appear to have been guilty of an offence punishable with death or imprisonment for life. The condition of not releasing the person on bail charged with an offence punishable with death of imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed. It does not, however, mean that persons specified in the provision which confers jurisdiction upon a court, other than the High Court and the court of Sessions, to release a person on bail despite the fact that there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life. There is no gainsaying that the discretion conferred by the Code has to be exercised judicially.
BAIL – SECTION 437 – SESSIONS CASE – CAN MAGISTRATE RELEASE ACCUSED ON BAIL?
Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the court of sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under section 437 of the Code in respect of a person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negativate the existence of reasonable ground for believing the such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought.Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the court of sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction[17].
BAIL – SECTION 437 – ADDED MAJOR OFFENCE:
The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither section 437(5) nor section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under sections 498A, 306 and 406 IPC. Further Hon’ble Supreme Court has held that with the change of nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring to the grounds which entitled the respondent-accused the grant of bail, the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail[18].
BAIL – DIFFERENCE BETWEEN BAIL and ANTICIPATORY BAIL:
The only distinction between ‘bail and anticipatory bail’ is that whereas the former in granted after arrest and therefore means release from the custody of police; the latter is granted in anticipation of arrest and effective at the very moment of arrest[19].
BAIL – DIFFERENCE BETWEEN 167 (2) Cr.P.C & REGULAR BAIL:
There is yet another aspect of the matter. The right under Section 167(2) of Cr.P.C. to be released on bail on default if charge sheet is not filed within 90 days from the date of first remand is not an absolute or indefeasible right. The said right would be lost if charge sheet is filed and would not survive after the filing of the charge sheet. In other words, even if an application for bail is filed on the ground that charge sheet was not filed within 90 days, but before the consideration of the same and before being released on bail, if charge sheet is filed, the said right to be released on bail would be lost. After the filing of the charge sheet, if the accused is to be released on bail, it can be only on merits[20].
WHAT IS MERIT?
There are two merits “legal and factual”.
CUSTODY – ILLEGAL DETENTION – Art. 20(2):
The decisions relied upon by the learned counsel for the appellant do not support the plea that in every case where there is violation of Article 22(2) of the Constitution, an accused has to be set at liberty and released on bail. Whereas, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order[21].
BAIL – COURT’S PERSPECTIVE:
The Supreme Court held: ‘the weapon should not be used to clip the wings of the accused [AIR 1984 SC 372; 1984 Cr.L.J. 160].
PROVISION FOR BAILABLE OFFENCES:
The grant of bail to a person accused of bailable offence is governed by the provisions of Section 436 Cr.P.C, 1973[22].
BAIL – RULE:
Basic rule must be the ‘bail and not jail’[23]. Bail is the rule and jail is the exception[24].
BAIL – APPRECIATION:
However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory[25].
While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt[26].
In Moti Ram Vs. State of Madhya Pradesh AIR 1978 SC 1594; (1978)4SCC 47 contemplated on three main issues: –
1. Whether a person charged with a bailable offence can be released on his own bond without sureties.
2. In case the bail is granted with sureties, what should be the criteria for quantifying the amount of bail?
3. Whether a surety can be rejected simply because he or his estate is situated in a different district or a state of the country.
MEANING OF BAIL:
Bail means the security taken from a person to appear on a fixed date before a court. It may inter alia be taken from a witness, for transfer of a case, going to reference or revision, applying for payment of fine in instalments, undertaking the case of a lunatic or convict, preferring an appeal, released on probation of good conduct[27]. Wharton’s Law Lexicon explains ‘bail’ as to set at liberty a person arrested or imprisoned, on security being taken for his appearance. Bail has been defined in the law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation. According to Black’s Law Dictionary, what is contemplated by bail is to “procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.”.
WHEN BAIL ARISES?
Question of bail arises only when a person is in custody or when a warrant of his arrest is issued[28].
BAIL – JURISDICTION/HIERARCHY:
Parties should approach the hierarchy of Courts. But under certain exceptional circumstances, it can be deviated. When once jurisdiction of a Court under concurrent jurisdiction is invoked, then at the same time, jurisdiction of other Court having concurrent jurisdiction cannot be invoked. But there are exceptions. Say for instance, the situation is such that the Lawyers cannot approach the Court. The doors of the Courts are closed for reasons beyond its control or the situation is such that the accused or their lawyers cannot go to the Court or the Subordinate Courts are closed, the accused can by-pass the Magistrate Court or Sessions Court and knock the doors of this Court for justice. It is a matter of ‘access to justice'[29].
BAIL – JUDICIAL DISCIPLINE REQUIRED – REJECTED BY HIGH COURT:
In view of the fact that the Judicial Magistrate at a later stage has himself cancelled the bail, it is not necessary for us to pass any order with regard to the petitioners prayer for cancellation of bail but the disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The course adopted by the learned Magistrate in not only contrary to settled principles of judicial discipline and propriety but also contrary to the statutory provisions. See in this connection AIR 1987 SC 1613. The manner in which the learned Magistrate dealt with the case can give rise to the apprehensions which were expressed by the complainant in her complaint, which was treated by this Court as a writ petition and is being dealt with as such. In the course that we are adopting, we would not like to comment upon the manner in which the learned Magistrate dealt with the case any more at this stage. We in the facts and circumstances stated above, direct that a copy of this order be sent to the Chief Justice of the Patna High Court for taking such action on the administrative side as may be deemed fit by him[30].
BAIL – OR APPEARS:
In the aforesaid context a reference can be made to Sections 436 and 437 of the Code, which fail within Chapter XXXIII of the Code under the caption “Provisions as to bail and bonds”. In the former section appearance of accused in bailable offences is dealt with for the purpose of releasing him on bail. “When any person other than a person accused of a non-bailable offence is arrested or detained…or appears or is brought before a court…such person shall be released on bail.” In the latter section, releasing an accused on bail in a non-bailable offence is dealt with. “When any person accused of, or suspected of, the commission of any non-bailable offence is arrested … or appears or is brought before a Court… he shall be released on bail …”. The appearance mentioned in these sections can only mean physical appearance of the accused and not appearance by counsel because the very notion of bail presupposes restraint of the accused and hence the person who wishes to be released on bail is to appear and surrender before the court. A. person who is not under any sort of restraint does not require to be released on bail: The word “appearance” in Section 167(5) cannot be understood different from the same word used in Sections 436 and 437 of the Code[31].
BAIL – NO MERITS:
Though this Court may not ordinarily interfere with the Orders of the High Court granting or rejecting bail to the Accused, it is open for this Court to set aside the Order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the Judgment of this Court in the case of Neeru Yadav v. State of Uttar Pradesh, 2014 (16) SCC 508; and Prasanta Kumar Sarkar v. Ashis Chatterjee, 2010 (14) SCC 496). It is by now well settled that at the time of considering an Application for Bail, the Court must take into account certain factors such as the existence of a prima facie case against the Accused, the gravity of the allegations, position and status of the Accused, the likelihood of the Accused fleeing from justice and repeating the offence, the possibility of tampering with the Witnesses and obstructing the Courts as well as the Criminal antecedents of the Accused. It is also well settled that the Court must not go into deep into merits of the matter while considering an Application for Bail. All that needs to be established from the record is the existence of a prima facie case against the Accused. (See the Judgment of this Court in the case of Anil Kumar Yadav v. State (NCT) of Delhi, 2018 (12) SCC 129). Keeping in mind the aforementioned principles, we are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the Accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the Respondent[32].
BAIL – PRIMA FACIE:
In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav & Anr. – (2004) 7 SCC 528, this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, the court is required to indicate the prima facie reasons justifying the grant of bail[33].
Firstly, this Court in the afore cited decision restored the order granting bail to the accused on the ground that although no discussion was made by the Sessions Court as to the material on record, in the order granting bail, it was apparent in the order of the Sessions Court whereby bail was granted, that the decision to grant bail was arrived at after perusal of the entire material on record. While the material may not have been specifically referred to, the order granting bail was indicative of the fact that it had been arrived at after thorough consideration thereof. However, in the instant case, no such indication can be observed in the impugned orders of the High Court which would be suggestive of the fact that the material on record was perused before deciding to grant bail[34].
While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence/s alleged against an accused[35].
BAIL – AS A MATTER OF RIGHT:
Persons contemplated by S – 436 Cr.P.C cannot be taken into custody unless they are unable or willing to offer bail or to execute personal bonds – there is no manner of doubt that bail in a bailable offence can be claimed by accused as of right and the officer of the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him[36]. An arresting process is said to be bailable, when bail can be given, and the person arrested may obtain his liberty in consequence[37]. If an offence is bailable, the accused can get bail as of right. S – 436, Cr.P.C[38]. If the offence is bailable, bail will be granted u/s 436 Cr.P.C without much ‘ado’[39]. If the offence is cognizable but bailable the police officer arresting the accused is duty bound to release the accused on bail[40]. In case of bailable offence, police or court cannot refuse to grant bail[41].
BAIL – ACCUSED IN LOCK UP:
Magistrate can grant bail where applicant is in the lock – up under arrest and it is not necessary that accused person must be put up before the court[42]. [This will applicable to detention of suspect]
BAIL – PETITION/APPRECIATION:
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 and elaborate documentation of the merit of the case 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. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are:
a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge[43].
BAIL – DISMISSAL ORDER – SUBSEQUENT BAIL APPLICATION – FACTS AND REASONS NOT MENTIONED:
In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay)” In our considered opinion, the Single Judge failed to take note of the law laid down by this Court quoted supra and thus erred in passing the impugned order. He also neither set out the facts of the case nor mentioned the submissions of the learned counsel appearing for both the parties and nor his reasoning as to why he does not consider it proper to grant anticipatory bail to the appellant. This was the least, which was expected of from the Single Judge to keep in mind, while passing the order[44].
BAIL – GOING ABROAD:
Mention has already been made about the two reasons given by the petitioners to go abroad instantly. We are not satisfied with the reasons urged. It is no compulsive need for the petitioners to go abroad and propagate the Hindu religion. There is no material to suggest that the ailments the petitioners claim to have been suffering from, are not treatable in India, satisfactorily[45].
BAIL – RESJUDICATA:
Of course, the principles of resjudicata are not applicable to bail applications, but the repeated filing of the bail applications without there being any charge of circumstances would lead to bad precedents[46].
BAIL ALREADY GRANTED – NEW OFFENCE ADDED – NEW BAIL:
This court in Hamida vs. Rashida @ Rasheed and ors[47] held that an accused after addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences. It is thus, clear that the bail granted to an accused earlier to addition of new non-bailable offence shall not ensure to the benefit of the accused insofar as newly added offences are concerned and he is required to surrender and obtain a bail with regard to newly added offences to save him from arrest[48].
BAIL – ADJOURNMENT:
In this case, nature of the allegations stated by the petitioners and considering the penal sections involved, on 04.01.2017, if the learned Sessions Judge could not dispose it of for want of necessary particulars to be furnished by the prosecution or if the prosecution sought for time, the learned Judge could have adjourned it to the next working day. It would be reasonable and acceptable. Straightaway adjourning the bail petition to 09.01.2017, is very difficult to digest. This is not a tough case which requires consideration of volumeness case-records. It is also a general criminal case involving certain first-class offences. It does not require any mind bogging exercise[49].
Supreme Court has issued directions and the same is to sum up:
a) The High Courts may issue directions to subordinate courts that –
b) Bail applications be disposed of normally within one week;
c) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;
d) Efforts be made to dispose of all cases which are five years old by the end of the year[50].
BAIL – CRIMINAL ORIGINAL ORDER:
As rightly contended by the learned Additional Public Prosecutor those arguments will be relevant in the bail petition filed under Section 439 Cr.P.C. Under Section 439 Cr.P.C., Sessions Court and High Court exercises original jurisdiction. They are Original orders. No question of canvassing the correctness of bail dismissal order passed by a Subordinate Courts, to be put forth before a Superior Court[51].
BAIL – TRIAL:
Supreme Court quoting a previous decision[52] had taken the view that when there is a delay in the trial, bail should be granted to the accused. But the same should not applied to all cases mechanically[53].
BAIL – WARRANT (NBW PENDING):
In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be allowed if he appears in court and surrenders himself[54].
In this case, there is no dispute that the petitioner was not in custody and only NBW was pending against him. Therefore, the bail application was not maintainable and the learned Judge ought not to have passed orders entertaining the bail application[55].
BAIL – CHARACTER OF ACCUSED:
The bad character of a man does not dis-entitle him from being bailed out if the law allows it. The courts do not grant bail merely because an accused is respectable man and is able to afford reasonable security[56].
BAIL – APPLICATION:
The usual practise is that a person desiring bail should first approach the lower court, but this practise is not inflexible. There is no bar to the High Court entertaining a bail application directly if peculiar circumstances exist[57]. The application for bail is not maintainable unless the person is in Judicial Custody[58].
BAIL – ACCUSED SIGNATURE IS MUST AND NECESSARY:
Therefore, the following directions are being issued to the Registry of this Court as well as to the other Courts in regard to entertainment of the bail applications as well as the anticipatory bail applications:
a) In the case of applications seeking for anticipatory bail, the Office should insist that the memo of appearance should contain the signature of every accused and the same must be attested by an Advocate or a Notary Public and also to be identified by the counsel appearing for the accused.
b) In the case of bail applications where the accused is in judicial remand, it shall be insisted that the memo of appearance should contain the signature of the accused attested by the Prison Superintendent or Jailor. It would be desirable for the Prison Superintendents to forward such memo of appearance signed by the accused, duly attested by them, to the Advocates or the near relatives of the accused without any delay whatsoever.
c) In the anticipatory bail application, as laid down by the Division Bench of this Court in 1995(2) L.W. (Crl.) 441, the Office should insist for the clear particulars about the address of the person who seeks for anticipatory bail to verify whether he was within its jurisdiction either with supporting affidavit or some other materials and also the address particulars of the advocate as well as his Bar Council Enrolment Number[59].
INTERIM BAIL:
If an application for bail is filed, the trial court shall consider the same on its own merits in accordance with law, and if it so deems fit, grant interim bail to the accused pending the final disposal of his bail application[60].
BAIL – RES-JUDICATA: Of course, the principles of ‘res-judicata’ are not applicable to bail application, but the repeated filing of the bail applications without there being any change of circumstances would lead to bad precedents[61].
BAIL – HOW MANY BAIL APPLICATIONS CAN BE FILED? – SECOND BAIL:
At the outset, we feel that the trial court should not have returned the bail application, because it is trite law that the principle of ‘res-judicata’ will not apply to application for bail and any number of bail application can be filed before the trial court or superior courts[62].
The Hon’ble Supreme Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav[63] has held that though the bail application of an accused has been rejected, he is not precluded from filling subsequent bail applications, but there should be a change in fact situation[64].
BAIL – SUCCESSIVE BAIL APPLICATIONS TO DIFFERENT JUDGE – SECOND BAIL:
If Successive bail application on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every Judge till he gets an orders to his liking resulting in the credibility of the court and the confidence of the other side being put in issue and there would be wastage of court’s time. Judicial discipline requires that such matters must be placed before the same judge, if he is available for orders – The fundamental concept is, if the judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum-shopping, which is decry-able in law[65].
BAIL – APPEAL:
Supreme Court in an occasion its view after considering a submission and held that it was fairly accepted that there is no scope of filing an appeal against the order of grant of bail. under the scheme of the Code the application for cancellation of bail can be filed before the court granting the bail if it is a court of session, or the High Court, and Supreme Court further expressed its view that it has been fairly accepted by learned counsel for the parties that in some judgments the expression ‘appeal in respect of an order of bail’ has been used in the sense that one can move the high court[66].
As rightly contended by the learned additional public prosecutor those arguments will be relevant in the bail petition filed under section 439 cr.p.c. Under section 439 Cr.P.C, Sessions Court and High Court exercises original jurisdiction. They are original orders. No question of canvassing the correctness of bail dismissal order passed by a sub-ordinate courts, to be put forth before a superior court[67].
BAIL – SLP:
The Court does not ordinarily, in the exercise of its discretion under chapter 136, entertain petition for Special Leave to appeal against orders granting or refusing or cancelling bail or Anticipatory Bail. These are matters where the orders of the High Court should becomes final and this court should not entertain petitions for Special Leave[68].
BAIL – FINAL REPORT QUASHED:
This is not a fit case to transfer the investigation to the CBI, but it will serve the interest of justice if the Final Report is quashed and re-investigation is ordered to be done by the Crime Branch CID, which is an elite police force in the State of Tamil Nadu known for its professional competency. When once Final Report is quashed, the accused will be entitled to be released on statutory bail under Section 167(2). Moreover, the accused are in jail for the last nine months[69].
BAIL – SESSIONS COURT – WHETHER SESSIONS COURT CAN ACCEPT BAIL APPLICATION BEFORE COMMITTAL?
The only permissible restriction to personal freedom, as a universal legal norm, is the arrest or detention of an accused for a reasonable period of 24 hours. Thereafter, the accused would be entitled to seek before a court his enlargement on bail. In connection with serious offences, section 167 Code of Criminal Procedure contemplates that an accused may be incarcerated, either in police or judicial custody, for a maximum of 90 days if the charge sheet has not been filed. An accused can and very often does remain bereft of his personal liberty for as long as three months and law must enable him to seek enlargement on bail in this period. Since severe restrictions have been placed on the powers of a Magistrate to grant bail, in the case of an offence punishable by death or for imprisonment for life, an accused should be in a position to move the courts meaningfully empowered to grant him succor. It is inevitable that the personal freedom of an individual would be curtailed even before he can invoke the appellate jurisdiction of sessions judge. The constitution therefore requires that a pragmatic, positive and facilitative interpretation be given to the Code of Criminal Procedure especially with regard to the exercise of its original jurisdiction by the sessions court. We are unable to locate any provision in the code of criminal procedure which prohibits an accused from moving the court of sessions for such a relief except, theoretically, section 193 which also only prohibits it from taking cognizance of an offence as a court of original jurisdiction. This embargo does not prohibit the court of sessions from adjudicating upon a plea for bail. It appears to us that ill the committal of case to the court of sessions, section 439 can be invoked form the purpose of pleading for bail. If administrative difficulties are encountered, such as, where there are several additional session judges, they can be overcome by enabling the accused to move the sessions judge, or by further empowering the additional sessions judge hearing other bail applications whether post committal or as the appellate court, to also entertain bail applications at the pre-committal stage. Since the magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a superior court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered u/s 439 of the Code of Criminal Procedure[70].
BAIL – SECTION 167 (2) Cr.P.C:
As far as section 167 (2) Cr.P.C is concerned this Court is of the firm opinion that no case for grant of bail has been made out under the said provision as charge sheet was filed before the expiry of 90 days from the date of first remand. In any event, right in this regard of default bail is lost once charge sheet is filed.
SECTION 167 (2) – WHEN PRESUMED TO BE GRANTED?
The moment accused files application for bail on default of investigating agency in filing charge-sheet within prescribed period and offers to furnish bail bond as directed by court, he is deemed to have “availed of” his indefeasible right to be released on bail. “Availed of” means actual release from custody by furnishing bail and complying with terms and conditions of bail order within time stipulated by court[71].
BAIL – FILES RETAINED BY HIGH COURT:
The jurisdiction of the High Court came to an end when an application for grant of bail under section 439 of the Code was finally decide[72].
BAIL – COURT CANNOT ORDER FURTHER ORDERS IN BAIL APPLICATION – SCIENTIFIC TESTS:
This court in a judgment reported as Sangitaben Shileshbhai Datanta vs. State of Gujarat[73] was examining a question where a court after grant of bail to an accused ordered the accused and their relating to undergo scientific test viz. lie detector, brain mapping and Narco-Analysis. This court held that direction of the court to carry out such tests is not only in contravention to the first principles of Criminal Law jurisprudence but also violates statutory requirements[74].
BAIL – RETURN OF MONEY TO DEPOSITORS:
In another judgment reported as Reserve Bank of India v. General Manager, Cooperative Bank Deposit A/C HR. Sha & Ors[75], Reserve Bank of India challenged an order passed on an application under Section 439 of the Code, wherein an argument was raised that the poor depositors are not paid by the Bank out of the amount which has been received by the Bank. The Court issued directions that the Bank should start distributing the amount which is so far recovered by them from the accused. The Bank was directed to furnish details of the money paid to the poor depositors. The accused as well as the Investigating Officer and the Administrator of the Bank were directed to remain present in the Court. This Court found that such directions are beyond the scope of an application for bail filed by the accused under Section 439 of the Code[76].
BAIL AND PREVENTION OF DAMAGE TO PUBLIC PROPERTY ACT [PDPP]
The deposit of money cannot be ordered as a condition for granting bail, since, it would have the effect of curtailing personal liberty of individual[77]. It was held in M.T. Hema Chandran v.S.I Kozhikode[78] that the above decisions do not relate to offences relating to destruction of public property. The said decisions relate to offences affecting individuals.
ECONOMIC OFFENCE – BAIL:
Accused were charged with economic offences of huge magnitude offences alleged, if proved, may jeopardize the economy of the country. However at the same time, one could not lose sight of the fact that investigation agency already completed investigation and the charge sheet had already been filed before Special Judge. Therefore, their presence in the custody may not be necessary for further investigation[79].
HOW TO WRITE BAIL ORDER?
BAIL – REASONING:
The courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of ‘presumption of innocence of an accused’ gets jeopardised; and the structural principle of ‘not guilty till proved guilty’ gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as to affect the merit of the matter[80]. Supreme Court held that we can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is unnecessary to write detailed orders at other stage, such as issuing process, remanding the accused to custody, framing of charges, passing order to next stage in the trial e.t.c[81]
The Latin maxim “cessante ratione legis cessat ipsa lex” meaning “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”, is also apposite. We have extracted the relevant portions of the impugned order above. At the outset, we observe that the extracted portions are the only portions forming part of the “reasoning” of the High court while granting bail. As noted from the afore cited judgments, it is not necessary for a Court to give elaborate reasons while granting bail particularly when the case is at the initial stage and the allegations of the offences by the accused would not have been crystalised as such. There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused[82].
BAIL – REFUSAL OF BAIL:
Refusal of Bail is not an indirect process of punishing an accused person before he is convicted. This is a confusion regarding the rational of bail. There is not as yet any allegation against the appellant to interference with the courts of justice or other well – established grounds for refusal of bail[83]. Refusal of bail to courts is discretionary since the jurisdiction is discretionary it was required to be executed with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In granting or refusing the bail, the courts are required to indicate, may be very briefly, the reasons for grant of refusal of bail[84].
Bail could be refused in respect of cognizable offences, such as, if there were:
a. Chances of tampering with the evidence;
b. Chances of interfering with the investigation; and
c. Chances of absconsion
It was contended and Supreme Court accepted and held that as indicated above, the parameters laid down by this court for consideration grant of bail to an accused include the likelihood of his absconsion and tampering with the evidence or the witnesses or even the investigation. Supreme Court further accepted the contention regarding the first two categories and held that, tampering with the evidence or the investigation is no longer relevant since charge-sheet has already been filed in the case[85].
BAIL – ORDER:
The order releasing the accused on bail contains prima facie opinion of the court. It could be brief, but must indicate proper application of mind to the vital consideration which the court has to keep in mind while dealing with bail applications[86].
BAIL – ORDER – FACTORS TO BE CONSIDERED:
It is well settled that the matters to be considered in 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 charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if 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 being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.
BAIL – SPEAKING ORDER – NIA:
The discussion portion is found only in paragraph 6, wherein, the learned Judge has stated as follows: “This Court has to consider the documents produced by the prosecution and 6 on consideration of the same and also the stand of the respondent that the accused persons cause security problem, I am not inclined to grant bail to the petitioner.” The learned Judge has not recorded as to what are all the documents and the stand, which were not accepted by the Court. 10. This, in our considered view, is a non-speaking order, which cannot be allowed to sustain. Any Order, which is a nonspeaking Order, can be termed as Arbitrary, which is violative of Art. 14 as well as Art.21 of the Constitution of India. Under Article 21 of the Constitution of India, the life and liberty of an individual could be deprived of only by following the procedure established by law. The said procedure denotes a fair procedure. Here, in this case, since the impugned order is a non-speaking order, we are inclined to interfere with the same[87].
BAIL – COMPLAINT CASE – DURING APPEARING IN ISSUE OF PROCESS:
Supreme Court held that when a case is instituted on a complaint the court issues summons to the accused to appear in the court and on such appearance, instead of being arrested, he would apply for bail. Unless there are compelling reasons, the court would allow the accused to remain on bail at least till the charge is framed. Even after charge is framed the situation would be reconsidered if necessary whether bail should be cancelled or not and Supreme Court further held that the appellant (accused) an remain on bail during the remaining period of trial subject to the condition that they shall not prevent witnesses from coming forward to give evidence or that the accused shall not tamper with the evidence. If the prosecution feels that the appellants are not complying with the said condition it is open to the prosecution to move for the cancellation of the bail and if the court is satisfied that the above condition is not complied with by the appellants (accused) it is open to the Sessions Court or the High Court to cancel the bail[88].
RELEASING UNDER – TRIAL PRISONERS ON HIS OWN BOND:
It was held by the Supreme Court in 1979 Cr.L.J 1036(1)(SC) that if the court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond it can safely release the accused on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious, the court may not release the accused on his personal bond and may insist on bail with sureties. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which fixes should not be based merely on the nature of the charge. It was further observed by the Supreme Court in afore mentioned case that it seems desirable in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under-trial prisoner on his bond without sureties and without any monetary obligation and further held that that there is urgent need for a clear provision.
ORDERING MAGISTRATE TO GRANT BAIL:
Supreme Court has after discussing its previous pronouncements held that on a reading of the said authoritative pronouncement and the principles that have been culled out in Savitri Agarwas case[89] there is remotely no indication that the court of session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the high court in categorical terms has expressed the view that it not inclined to grant anticipatory bail to the accused petitioners it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in the case of Gurbaksh Singh Sibbia Case[90] and the principles culled out in the case of Savitri Agarwal case (supra). It is clear as crystal the court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed. In the case of Gurbaksh Singh Sibbia (Supra) the Constitution Bench has clearly observed that exercise of jurisdiction u/s 438 of the Code is an extremely important judicial function of a judge and both individual and society have vital interest in the orders passed by the court in anticipatory bail applications. Supreme Court further ordered that the irresistible conclusion is that the impugned orders directing enlargement of bail of the accused persons, namely, Uttam Das and Murlidhar Patra by the Magistrate on their surrendering are wholly unsustainable and bound to founder and accordingly the said directions are set aside. Supreme Court further held that it needs no special emphasis to state that they are entitled to move applications for grant of bail u/s 439 of the code which shall be considered on their own merits[91].
BAIL – CONDITION – WHAT TO ORDER?
It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and sub-section (3) of Section 437 of the Code. Normally, conditions can be imposed i) to secure the presence of the accused before the investigating officer or before the Court, (ii) to prevent him from fleeing the course of justice, (iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or (iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code. While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code[92].
BAIL – ONEROUS CONDITION – WHAT IS?
We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lacs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lacs. If the cheques issued by his surety were dishonoured, the court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to his legal remedies provided by law. Similarly if the court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police[93].
Bail – class.1 – End …
Bail – class.2 – Direction for grant of bail to person apprehending arrest (Anticipatory Bail) and Special powers of High Court or Court of Session regarding bail – To be continued…
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[2]http://money.howstuffworks.com/bail3.htm
[3]http://webcache.googleusercontent.com/search?q=cache:http://www.jailfreebailbond.com/bail-bonds.asp
[4] Bail Reforms Act, 1966 – Lyndon B. Johnson followed in 1979 Cr.L.J 1036(1)(SC) – Hussainnra Khatom vs. State of Bihar
[5] DATARAM SINGH vs STATE OF UTTAR PRADESH – (2018) 2 SCALE 285.
[6] Sanjay Chandra v. CBI – (2012) 1 SCC (Cri) 26=(2012)1 SCC 40
[7] Sunil Fulchand Shaw vs. Union of India and ors – (2000)3 SCC 409 followed in Pillappan @ Ravikumar vs. State – (2018)3 CTC 156=(2018)2 MLJ (cri)502.
[8] Satender Kumar Antil vs. Central Bureau of Investigation & Anr – Miscellaneous Application No.1849 Of 2021 In Special Leave Petition (Crl.) No.5191 Of 2021 – July 11, 2022.
[9] Art 9- No one shall be subjected to arbitrary arrest, detention or exile.
Art 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, n the determination of his rights and obligations and of any criminal charge against him.
Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.
[10] AIR 1979 SC 1360
[11] Manjoor Khan Versus State of Bihar and Another – 1998 (8) SCC 368=1998 SCC(Cr) 1541
[12] Free Legal Aid Committee vs. State of Bihar – AIR 1982 SC 1463.
[13] Jagati Publications Ltd. Vs. C.B.I – 2013 Cr.L.J 118 (A.P)
[14] STATE vs. JAGTI SINGH 1962(1) Cr.L.J 215; AIR 1962 SC 253
[15] 1&2 SETTLED & OVERRULED CRIMINAL LAWS – HINDUSTAN LAW BOOK – 2008. `
[16] Pillappan @ Ravikumar vs. State – (2018)3 CTC 156=(2018)2 MLJ (cri)502.
[17] Prahlad Singh Bhati vs. N.C.T.Delhi & Anr – AIR 2001 SC 1444=2001(2) SCALE 572=(2001)4 SCC 280.
[18] Prahlad Singh Bhati vs. N.C.T.Delhi & Anr – AIR 2001 SC 1444=2001(2) SCALE 572=(2001)4 SCC 280.
[19] Nattnsassen vs. The state 1998 cr.l.j 1762 (mad) relied on gurbaksh singh vs. State of punjab; 1980(2) scc 565
[20] Sanjay Dutt vs. State (1994) 5 SCC 410 [Paras 48 and 53(2)(b) [constitution bench] followed in Sadhwi Pragyna Singh Thakur Versus State of Maharashtra – 2011 (10) SCC 445=2011 AIR SCW 5551=2012 (1) SCJ 48=2012 (1) SCC(Cr) 311=2012 (1) LW(Crl) 14 (SC)=2012 (1) MLJ(Crl) 276 (SC).
[21] Sadhwi Pragyna Singh Thakur Versus State of Maharashtra – 2011 (10) SCC 445=2011 AIR SCW 5551=2012 (1) SCJ 48=2012 (1) SCC(Cr) 311=2012 (1) LW(Crl) 14 (SC)=2012 (1) MLJ(Crl) 276 (SC).
[22] AIR 2009 sc 1341; 2009 cr.l.j 1887
[23] AIR 1978 sc 429; 1978 cr.l.j. 502
[24] Balchand vs state of rajasthan, air 1977 sc 2447; (1977)4scc 308
[25] DATARAM SINGH vs STATE OF UTTAR PRADESH – (2018) 2 Scale 285=(2018) 3 SCC 22.
[26] Prahlad Singh Bhati vs. N.C.T.Delhi & Anr – AIR 2001 SC 1444=2001(2) SCALE 572=(2001)4 sCC 280.
[27] Law of bail – ganguly’s – 2007 – p. 1
[28] 1973 Cr.L.J 824; 1971 Cr.L.J 572
[29] Suresh Kumar & Others Versus State by Inspector of Police – 2017 (1) MLJ(Crl) 372=2017(1) MWN (Cri) 277.
[30] Smt. Bimla Devi, vs. State of Bihar and others – 1994 (1) Scale 117=1994 (2) SCC 8=1994 0 SCC(Cri) 472;
[31] (1998) 2 LW(Cri) 457=(1998) 2 SCALE 251=(1998) 3 SCC 209=(1998) SCC(Cri) 730.
[32] State of Orissa vs. Mahimananda Mishra – 2019 (1) MWN (Cr.) 299 (SC).
[33] Manoj Kumar Khokhar vs. State Of Rajasthan And Another – Criminal Appeal No. 36 Of 2022 (Arising Out Of Slp(Crl.) No. 4062 Of 2020) – Decided On : 11-01-2022.
[34] Manoj Kumar Khokhar vs. State Of Rajasthan And Another – Criminal Appeal No. 36 Of 2022 (Arising Out Of Slp(Crl.) No. 4062 Of 2020) – Decided On : 11-01-2022.
[35] Brijmani Devi vs. Pappu Kumar and Anr. – Criminal Appeal No. 1663/2021 disposed of on 17th December, 2021 (3 judge bench) cited in Manoj Kumar Khokhar vs. State Of Rajasthan And Another – Criminal Appeal No. 36 Of 2022 (Arising Out Of SLP(Crl.) No. 4062 Of 2020) – Decided On: 11-01-2022.
[36] AIR 2009 SC 1341; 2009 Cr.L.J 1887
[37] EARL UOWITT’S: THE DICTIONARY OF ENGLISH LAW, 2ND EDITION, AT. 195
[38] AIR 1958 SC 37; AIR 1992 SC 1618; 1992 Cr.L.J. 2330; AIR 1973 SC 2204
[39] 1962(1) Cr.L.J 215; AIR 1962 SC 253
[40] AIR 1981 SC 368; 1981 Cr.L.J 1413
[41] AIR 1981 SC 368; 1980 Cr.L.J 1475
[42] 30 Cr.L.J 718; AIR 1929 All 614
[43] Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra – Criminal Appeal No. 1448 of 2017 arising out of Special Leave Petition (CRL.) No. 3716 of 2017 – AUGUST 21, 2017.
[44] PREM GIRI vs STATE OF RAJASTHAN – (2018) 1 Scale 13.
[45] Chandraswami and another vs Central Bureau of Investigation – AIR 1998 SC 2679=1998 9 SCC 380=1998 0 SCC(Cri) 1040.
[46] State of T.N vs. S.A.Raja – (2006)1 SCC (Cri) 58
[47] (2008)1 SCC 474.
[48] Pradeep Ram vs. The State of Jharkhand & anr – Crl.Apl No: 816 of 2019 – 1.7.2019 – S.C.
[49] Suresh Kumar & Others Versus State by Inspector of Police – 2017 (1) MLJ(Crl) 372.
[50] Hussain & Another Versus Union of India & Another – 1(2017) CCR 315 (SC).
[51] Vijay Pradap Singh vs. State – 2016 (2) MWN(Cr) 398=2016 (2) MLJ(Crl) 485.
[52] Babba v. State of Maharashtra – (2005)11 SCC 569; Vivek Kumar v. State of U.P – (2009) 9 SCC 443
[53] Dipak Shubhash Chandra Mehta v. CBI – I (2012) CCR 405 (SC).
[54] AIR 1954 MB 113
[55] Parthasarathi vs. State – 2014-2-LW (Crl) 331
[56] 1958 Cr.L.J 561
[57] 1960 Cr.L.J 236
[58] AIR 1980 SC 785; 1980 Cr.L.J 426
[59] K.V.T. @ Thirupathiaiah Versus State by Inspector of Police – CDJ 2004 MHC 379 – Crl.O.P No. 30168 of 2003 – 16-12-2003
[60] LAL KAMLENDRA PRATAP SINGH vs. State of U.P – 2009-Supreme-2-600 : 2009-SCC-4-437
[61] State of T.N v. S.A.Raja – AIR 2005 SC 4462=2005 Cr.L.J 4640 (SC)=2005 AIR SCW 5428=(2006)1 MLJ (Cri) 27=(2005)8 SCC 380=2006 SCC (Cri) 58=(2005)7 Supreme 284=(2005)8 SCJ 133=(2005)8 SCALE 657=(2005)10 SCR 421
[62] Ragini@Bharathi vs. State – CDJ 2014 MHC 4039 – dt. 23.09.2014 – D.B
[63] 2005(1) CTC 783.
[64] Crl.O.P No: 19797 of 2015; dt:7.9.2015
[65] Jagmohan Bahl vs. State (NCT of Delhi) & Anr ; dated. 18-12-2014 ALSO SEE State of Maharashtra vs. Captain Buddhikota Subha Rao – AIR 1989 SC 2292 & Shahzad Hasan Khan vs. Ishtiaq Hasan Khan and another – AIR 1987 SC 1613.
[66] Dinesh M.N (S.P) v. State of Gujarat – 2008 AIR SCW 3677 – Bench of 3 Judges
[67] Vijay Pradeep Singh vs. State – Crl.R.C No: 339 of 2016
[68] Jagdish and Others vs. Harendrajit Singh – 1986 MLJ (Crl) 47 (SC)
[69] M. Veerabatharappa Versus The Secretary to the Government Home Department State of Tamil Nadu Secretariat, Chennai & Others – 2015 (5) CTC 772, 2015 (2) LW(Crl) 474
[70] Sundeep Kumar Bafna vs. State of Maharashtra and another – (2014)4 SCALE 215=(2014)16 SCC 623=AIR 2014 SC 1745.
[71] M. Ravindran v. Directorate of Revenue Intelligence – (2021) 2 SCC 485, 26-10-2020.
[72] State by Inspector of Police vs. M.Murugesan & Anr – Crl.Apl. No: 45 of 2020; dt:15.01.2020.
[73] 2018 SCC Online SC 2300.
[74] State by Inspector of Police vs. M.Murugesan & Anr – Crl.Apl. No: 45 of 2020; dt:15.01.2020.
[75] (2010) 15 SCC 85
[76] State by Inspector of Police vs. M.Murugesan & Anr – Crl.Apl. No: 45 of 2020; dt:15.01.2020.
[77] AIR 1978 SC 1594; AIR 1985 SC 1666; AIR 2011 SC 708 – TGN Kumar v. State of Kerala; 2001 Cr.L.J 2672 (MAD).
[78] 2012 Cr.L.J 1328 (Ker)
[79] Sanjay Chandra v. C.B.I – 2011 (8) Supreme 270 – issues 183-184
[80] Kasha Nath Roy v. State of Bihar – (1996) 4 SCC 539=AIR 1996 SC 3240=1996 AIR SCW 2098=1996 Cr.L.J 2469 (para 6) followed in State vs. N.M.T.Joy Immoculate – AIR 2004 SC 2282 [bench of 3 judges]
[81] Kanti Bhadra Shafi v. State of W.B – (2000) 1 SCC 722=I (2000) CCR 72 (SC) followed in II (2012) CCR 131 (SC) – Bhushan Kumar v. State
[82] Manoj Kumar Khokhar vs. State of Rajasthan And Another – Criminal Appeal No. 36 Of 2022 (Arising Out Of SLP (Crl.) No. 4062 Of 2020) – Decided on : 11-01-2022.
[83] MOHAN SINGH vs. UNION TERITORY OF CHANDIGARGH; (1978)2 SCC 366, 1978 Cr.L.J 844
[84] MANSAB ALI vs. IRSAN, 2003 Cr.L.J 871 (SC)
[85] Susanta Ghosh v State of W.B – 2012(2) Supreme 136
[86] Seema Awasthi vs. Ashok Awasthi & Others – 2013(7) SCALE 239
[87] Thangaraj @ Thamizharasan Vs State by The Deputy Superintendent of Police, National Investigation Agency, Hyderabad (Camp at Puducherry) (R.C.No.1/2014/NIA/HYD) – CRL.A.No.758 of 2016 – DATED 06.03.2017 [MAd-DB].
[88] 2001 AIR SCW 5129 “Maninder Kaur v. Teja Singh” [Coram :2 K. T. THOMAS AND R. P. SETHI, JJ.]
[89] 2009 (8) SCC 325
[90] AIR 1980 SC 1632
[91] Rashmi Rekha Thatoi and another v. State of Orissa and others – 2012 (3) Supreme 292 (issue – 60)=(2012)5 SCC 690=(2012)2 SCC (Cri) 721
[92] Munish Bhasin & Others vs. State (Govt. of N.C.T. of Delhi) & Another – AIR 2009 SC 2072=2009 3 Scale 259=2009 4 SCC 45=2009 2 SCC(Cri) 56.
[93] Sandeep Jain vs. National Capital Territory of Delhi Rep. by Secretary, Home Deptt – 2000 (1) Scale 141=2000 (2) SCC 66=2000 0 SCC(Cri) 316=(2000) 1 Supreme 140=2000 Cr.L.J 807 (SC).
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