Bail
Generally speaking, bail means the judicial release from custody. The word 'bail', as is commonly understood, is comprehensive enough to cover release on one's bond, with or without sureties.
Bail is one of the cherished rights, claims or privileges conferred upon a person accused of any offence which would, but for this noble provision, legally deliver him to jail and keep him in such custody till, he is finally acquitted by a competent court. 'Bail' is, thus, one of the most dignified institutions in any civilized society in which human values, such as faith and trust, take precedence over everything else.
In the Indian Judicial System, normally a person would be a prisoner in the following cases:
(a) If he is a detenu;
(b) If he is a pre-trial prisoner;
(c) after conviction
The last category can be further divided into three parts:-
(i) Prisoners whose appeals are pending;
(ii) Prisoners whose bail applications have been rejected by the High Court;
(iii) Prisoners whose convictions have been confirmed by the High Court; S. Sant Singh v. Secretary, Home Department, Government of Maharashtra, II (2006) CCR 241 (FB).
The grant, refusal or cancellation of bail, is a judicial act and has to be performed with judicial case after giving serious consideration to the interest of all parties concerned.
Article 21 of the Constitution of India provides for the right to life and personal liberty. The main interpretation of this Article infers that when the bail is denied then the personal liberty of an accused is refused. Recently, the Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan, MANU/SC/0045/2005 : AIR 2005 SC 921; examined the idea of 'bail' in the light of Article 21 of the Constitution of India. The court observed that:
"Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is released on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process, a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases, if the circumstances then prevailing require that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so. The principles of res judicata and such analogous principles although are not applicable in a criminal proceedings, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a co-ordinate Bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, it cannot be said that in view the guarantee conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country."
'Offence' whether it is bailable or non-bailable depends upon its nature and gravity. According to section 2(a) of the Code, which provides for the definition of 'bailable' and 'non-bailable' offences: "Bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence.
The distinction between 'Bailable' and Non-bailable' offences are:
(i) Bailable offence means an offence, which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force. Non-bailable offence means any other offence.1
(ii) Generally, serious offences i.e., offences punishable with imprisonment for 3 years or more, have been considered as non-bailable offences while, petty offences as bailable. But there are exceptions on either side.
(iii) A person accused of a bailable offence has a right to be released on bail,2 makes it obligatory for a police officer arresting such a person to inform him of his right to be released on bail.
(iv) The classification of offences into bailable and non-bailable has been devised for making a threshold decision as to whether the accused should be released on bail.
Sections 436, 437, 437A, 438 and 439 of the Cr PC, 1973 as amended till date provides for the bail under different conditions. Besides, under section 167(2) of the Code,3 bail should be granted to the accused when he has completed 60 or 90 days (as the case may be) in detention and there is no formal charge-sheet framed against him. Let us start our discussion with section 436 of the Code.
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1. Section 2(a) Cr PC, 1973.
2. Section 50(2) Cr PC, 1973.
3. Section 167(2) Cr PC, reads as under:
The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
Provided that—
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding—
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
Contd. from previous page
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Section 436 of the Code provides for the provisions 'in what cases bail to be taken'. This section reads as under:
"Section 436 -
(1) When any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail.
Provided that such officer or court, if he or it thinks fit, may, if such person is indigent and is unable to furnish surety instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided. Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116.
(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bound to pay the penalty thereof under section 446."
Provisions as regards bail can be broadly divided into two categories, viz.;
(i) bailable cases; and
(ii) non-bailable cases.
In the first class, the grant of bail is a matter of course. It may be given either by the police officer in-charge of a police station having the accused in his custody or by the Court. The release may be ordered on the accused executing a bond and even without sureties.1 When a person who is arrested is the accused of bailable offence, no needless impediments should be placed in the way of being admitted to bail. In such cases, the man is ordinarily to be at liberty, and it is only if he is unable to furnish such moderate security, he is required to remain in detention, if his apperance is required before a court in a pending inquiry. The section is imperative, and under its provisions the Magistrate is bound to release the person on bail or recognizance. The basic rule is to release him on bail unless there are circumstances suggesting the possibility of his fleeing from justice or thwarting the course of justice; State of Rajasthan v. Balchand, 1978 Cr LJ 195 (SC): MANU/SC/0152/1977 : AIR 1977 SC 2447.
Section 436 does not state that a person released must give a bond himself. The person giving bail enters into a contract with a penalty Clause to produce the accused person before a Magistrate when called upon. He is the principal. The person for whom bail is given is the subject of the contract. If the person giving bail fails to perform this contract than the penalty Clause may be put into operation against him although it is not necessary to exact the penalty in full; Inder, (1941) 22 Lah 519.
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1. Vide section 436(1) Cr PC, 1973.
This section deals with the grant of bail in respect of non-bailable offences in general where a person is arrested or detained without a warrant. For the grant of bail under this section, the following conditions must be satisfied:-
(i) The person has been accused of a non-bailable offence;
(ii) Such person has been arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court;
(iii) He is prepared to give bail.
If all the three conditions mentioned above are satisfied, then bail can be claimed as a matter of right. The word used is "shall", and not "may", and therefore, there is no discretion either with the police officer or with the Court; State of Mysore v. Biswanath Rao, AIR 1966 Mys 71.
Provisions for bail in case of person accused of non-bailable case is provided under sections 437 and 439 of the Code. Section 437 says that:
"437. When bail may be taken in case of non-bailable offence.-
(1) When any 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 other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the Court shall impose the conditions,-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.
(4) An officer or a Court releasing any person on bail under sub-section (1), or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.
(5) Any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."
Section 437A of the Code provides that the bail can require the accused person to apepar before next appellate court which reads as under:
"437A. Bail to require accused to appear before next appellate Court.-
(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply."
While special powers have been vested in the High Court or Court of Session regarding bail under section 439 of the Code. This section provides that:
"439. Special powers of High Court or Court of Session regarding bail.-
(1) A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."
In Lokesh Singh v. State of Uttar Pradesh, MANU/SC/8138/2008 : AIR 2009 SC 94, the Supreme Court held that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated. While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for a bail to consider among other circumstances, the following factors also before granting bail, they are:
(i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence:
(ii) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant:
(iii) Prima facie satisfaction of the Court in support of the charge.
In B.N. Jaiswal v. Munna, MANU/SC/8441/2008 : AIR 2009 SC 1021, it was held by the Supreme Court that it is now a settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. While granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary. Thus the Supreme Court set aside a bail where no reasons were given while granting the bail and it has been granted almost mechanically without considering the pros and cons of the matter.
In Jayendra Saraswathi Swamigal v. State of Tamil Nadu, MANU/SC/0017/2005 : AIR 2005 SC 716,1 it was observed by the G.P. Mathur, J. that, the considerations which normally weigh with the Court in granting bail in non-bailable offences are-
(i) the nature and seriousness of offence;
(ii) the character of the evidence;
(iii) circumstances which are peculiar to the accused;
(iv) a reasonable possibility of the presence of the accused not being secured at the trial;
(v) reasonable apprehension of witnesses being tampered with;
(vi) the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.
The Supreme Court in Anwari Begum v. Sher Mohammad, IV (2005) CCR 25 (SC); Ram Govind Upadhyay v. Sudarshan Singh, II (2002) CCR 16 (SC): II (2002) SLT 587: MANU/SC/0203/2002 : (2002) 3 SCC 598; Puran v. Rambilas, III (2001) SLT 869: II (2001) CCR 255 (SC): MANU/SC/0326/2001 : (2001) 6 SCC 338; and in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, II (2004) CCR 16 (SC): II (2004) SLT 605: JT 2004 (3) SC 442; further provided that, the Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.
There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:
(1) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(2) reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(3) prima facie satisfaction of the Court in support of the charge.
Any order de hors of such reasons suffers from non-application of mind.
In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0214/2004 : (2004) 7 SCC 528: II (2004) SLT 605; it was held by the Supreme Court that, 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; Ram Govind Upadhyay v. Sudarshan Singh, II (2002) SLT 587: II (2002) CCR 16 (SC): MANU/SC/0203/2002 : 2002 (3) SCC 598 and Puran v. Ram Bilas, III (2001) SLT 869: II (2001) CCR 255 (SC): MANU/SC/0326/2001 : 2001 (6) SCC 338.
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.1
In Anil Ari v. State of West Bengal, MANU/SC/0148/2009 : AIR 2009 SC 1564, the Supreme Court held that the mere fact that during the period when the accused persons were on bail during trail there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered is whether reasons existed to suspend the execution of sentence and thereafter grant bail.
It should be remembered at the outset that the grant of bail in the case of non-bailable offence cannot be claimed as a matter of right; it is purely discretionary. And while granting bail, the Court has to ensure that there is no reasonable ground for believing that the accused or detained person has been guilty of an offence-punishable with death or imprisonment for life.
The formation of such belief does not and cannot be taken in vacuum. Such belief will be founded on facts as come to light during the course of investigation conducted by the Police Officer. Thus, if on the basis of the facts discovered during the investigation, any incriminating matter comes to the knowledge of the investigating officer and such incrimination matter prima facie establishes the guilt of the accused to the extent that he may possibly be sentenced to death or life imprisonment, bail shall not be granted, or if bail has been granted, it may be cancelled vide section 437(5) and sub-section (2) of section 439 and such a person may be arrested and committed to custody.
In Panchanan Mishra v. Digambar Mishra, 1 (2005) SLT 546: I (2005) CCR 77 (SC): MANU/SC/0038/2005 : 2005 (3) SCC 143; this Court observed:
"The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime... It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."
In Gurcharan Singh v. Delhi Administration, AIR 1978 SC 179; bail was granted to the accused by the Session Judge of Delhi. On appeal, the High Court, cancelled the bail, and the order of cancellation of the bail by the High Court, was upheld by their Lordships of the Supreme Court.
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1. State through C.B.I. v. Amarmani Tripathy, IV (2005) CCR 33 (SC).
In this case, various factors were taken into consideration by the High Court and by the Supreme Court. The case had already assumed political colouring and there were misgivings in the mind of the general public as to the manner in which the dacoit Sunder was alleged to have committed suicide. Secondly, the appellants were senior police officials of the rank of Deputy Inspector General of Police, Superintendent of Police, Deputy Superintendent of Police and so on. The case was investigated by the C.B.I. and the witnesses were mostly the junior police officials who had worked at one time or the other, under the appellants. There was every likelihood that such officials would not hesitate to misuse the liberty allowed by bail pressurizing the witnesses or by tampering with the prosecution evidence. It was alleged by the prosecution that these officials had already indirectly or directly exerted a lot of pressure on the eye-witnesses of the prosecution so that some of them had become 'hostile' and had to be declared so. It was against this background that their Lordships observed that the order of the High Court cancelling the bail was correct.
In the light of various decisions of the Courts regarding cancellation of bail, the following are, generally, the factors and conditions under which bail already granted may be cancelled:-
(i) where after the grant of the bail, the accused has committed the same offence for which he is being tried, or has been convicted and thereby proves that he is unfit to be released on bail;
(ii) where after his release on bail, the accused hampers the investigation or prevents the search of places under his control for the corpus delicti or for other incriminating documents or things;
(iii) where after his release on bail, the accused tampers with the evidence, tries to intimidate the prosecution witnesses, or tries to eradicate the trace of evidence relating to the offence with which he is charged;
(iv) where he tries to run away to a foreign country or goes underground or beyond the control of his sureties;
(v) if, after his release on bail, he commits acts of violence, in revenge, against the police and the prosecution witnesses or against those who have booked him, or had complaint against him to the police etc.
Release on bail is a privilege and not a right; and in countries whose constitutions are founded on the fundamental principles of human liberty and freedom, "bail, and not jail" is becoming the rule. But such privilege presupposes that the liberty allowed by the grant of bail should not be abused. When an accused crying or shouting in the name of justice, claims release on bail, it becomes incumbent on him not to disturb the course of justice which may be done to him. Thus where such a person after his release on bail, indulges in acts which are violative of the limited liberty allowed to him or interferes with the course of justice by tampering with evidences and by creating hurdles in the way of the prosecution or uses his status, position and wealth to influence the outcome of the case in his favour, then such a person loses the privilege of bail.
In Dolat Ram v. State of Haryana, MANU/SC/0921/1995 : 1995 (1) SCC 349; the distinction between the factors relevant for rejecting bail in a non-bailable case and cancellation of bail already granted, was brought out:
"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 order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."
The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the Court are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a co-ordinate Bench must receive serious consideration at the hand of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weightage to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0045/2005 : AIR 2005 SC 921.
Section 437A provides that before conclusion of the trial and before disposal of the appeal, the court trying the offence or the appellate court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and such bail bonds shall be in force for six months. If the accused fails to appear the bond stand forfeited and the procedure under section 4466 shall apply.
The facility which section 438 of the Code gives is generally referred to as 'anticipatory bail'. This expression which was used by the Law Commission in its 41st Report is neither used in the section nor in its marginal note. But the expression 'anticipatory bail' is a convenient mode of indication that it is possible to apply for bail anticipation of arrest. Any order of bail can be effective only from the time of arrest of the accused. Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned, on security being taken for his appearance.' Thus, bail is basically release from restraint, more particularly the custody of police. The distinction between an ordinary order of bail and an order under section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest; Gurbaksh Singh Sibbia v. State of Punjab, MANU/SC/0215/1980 : 1980 (2) SCC 565.
Section 46(1) of the Code, which deals with how arrests are to be made, provides that in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". The order under section 438 of the Code is intended to confer conditional immunity from the touch as envisaged by section 46(1) of the Code or any confinement; Adri Dharan Das v. State of West Bengal, I (2005) CCR 221 (SC).
The Supreme Court in Balachand Jain v. State of Madhya Pradesh, AIR 1977 SC 366; has described the expression 'anticipatory bail' as misnomer. It is well-known that bail is ordinary manifestation of arrest, that the Court thinks first to make an order is that in the event of arrest, a person shall be released on bail. Manifestly, there is no question of release on bail unless the accused is arrested, and therefore, it is only on an arrest being effected the order becomes operative. The power exercisable under section 438 is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under section 438. The power being of important nature, it is entrusted only to the higher echelons of judicial forums, i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bailable offence. The object which is sought to be achieved by section 438 of the Code is that the moment a person is arrested, if he has already obtained an order from the Court of Session or High Court, he shall be released immediately on bail without being sent to jail.
Section 438 of the Code reads as under:
Section 438 -
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Sessions makes a direction under sub-section (1), it may include such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1).
From this section, it is clear that special powers have been granted/conferred only on the High Court and the Court of Session for directing a person on bail previous to his arrest, what is commonly known as anticipatory bail, imposing such conditions as the court thinks fit including the conditions laid down in clauses (i), (ii), (iii) and (iv) of sub-section (2). The order of anticipatory bail shall take effect at the time of arrest.
Section 438 was inserted in the Code of Criminal Procedure 1973, in order to see that the life and liberty of the innocent person is not jeopardized on flimsy and frivolous grounds at the instance of irresponsible and unscrupulous persons or officers who may be in charge of prosecution.
In Bal Chand Jain v. State of Madhya Pradesh, AIR 1977 SC 366, the Supreme Court discussed the utility and significance of this new provision. In para 15 of the judgment, the Supreme Court observed that:
"As recommended by the Commission a new provision is being made enabling the Supreme Court to grant anticipatory bail, i.e., a direction to release a person on bail, issued even before the person is arrested - with a view to avoid the possibility of the person hampering the investigation, special provision is being made that the Court granting anticipatory bail may impose such conditions as it thinks fit."
In Salauddin Abdulsamad Shaikh v. State of Maharashtra, MANU/SC/0280/1996 : AIR 1996 SC 1042; it was observed as follows:
"Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the Regular Court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the Regular Court for bail. That is the correct procedure to follow because it must be realized that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the Regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet submitted."
In K.L. Verma v. State, (1996) 7 SCALE 20; the Apex Court observed as follows:
"This Court; further observed that anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the Regular Court, which is to try the offender, is sought to be bypassed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the Regular Court to deal with the matter on an appreciation of evidence place before it after the investigation has made progress or the charge-sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the Regular Court cannot be bypassed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the Regular Court for bail and to give the Regular Court sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the Court may allow the accused to remain on anticipatory bail. To put it differently, anticipatory bail may be granted for a duration which may be extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire."
In Union of India v. P.N Aggarwal, MANU/SC/4230/2008 : AIR 2009 SC 254, and Gurbaksh Singh v. State of Punjab, MANU/SC/0215/1980 : (1980) 2 SCC 565, the Supreme Court held that no blanket order of a bail can be passed by a Court while exercising power under section 438 of the Cr PC. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum.
In Adri Dharan Das v. State of West Bengal, I (2005) CCR 221 (SC);
the Supreme Court observed that section 438 is a procedural provision
which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has 'reason to believe' that he may be arrested in a non-bailable offence. Use of the expression 'reason to believe' shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear", is not 'belief' for which reason it is not enough for the applicant to show that has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief of the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the Court concerned to decide whether a case has been made out of for granting the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A brief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally, a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly
unlawful activity. An order under section 438 is a device to secure the individual's liberty, it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of legal position set out above, this does not prima facie appear to be a case where any order in terms of section 438 of the Code can be passed.
What the accused can do after surrendering to custody is to file an application in terms of section 437 or 439, as the case may be. Even otherwise, the direction which a Court can issue under section 438 of the Code is that in the event of arrest of an accused on an accusation of committing a non-bailable offence, he shall be released on bail subject to such conditions as the Court may deem fit to impose. An application under section 438 of the Code can be moved only by a person who has not already been arrested. Once he is arrested, his remedy is to move the concerned Court either under section 437 or section 439 of the Code. In the very nature of the direction which the Court can issue under section 438 of the Code, it is clear that the direction is to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of the accused. This being so, the irresistible inference is that while dealing with an application under section 438 of the Code, the Court cannot restrain arrest.
Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facts of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation limited. The Court ordinarily will not interfere with the investigation of a crime with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under section 438 of the Code; Adri Dharan Das v. State of West Bengal, I (2005) CCR 221 (SC).
From bare reading of both the aforesaid sections, one can witness that both the sections operate in different field. The provisions that for making an application in terms of section 439 of the Code a person has to be in custody. Section 438 of the Code deals with "Direction for grant of bail to person apprehending arrest".
In Niranjan Singh v. Prabhakar Rajaram Kharote, MANU/SC/0182/1980 : AIR 1980 SC 785; there cannot be any doubt that unless a person is in custody, an application for bail under section 439 of the Code would not be maintainable. The question when a person can be said to be in custody within the meaning of section 439 of the Code came up for consideration before this Court in the aforesaid decision.
Section 439 the fundamental requirement is that the accused should be in custody. The protection in terms of section 438 is for a limited duration during which the Regular Court has to be moved for bail. Obviously, such bail is bail in terms of section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under sections 438 and 439 shall be rendered meaningless and redundant; Adri Dharan Das v. State of West Bengal, I (2005) CCR 221 (SC).
In Sunita Devi v. State of Bihar, MANU/SC/1032/2004 : AIR 2005 SC 498; it was observed that, for making an application under section 439, the fundamental requirement is that the accused should be in custody. The protection in terms of section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between order under sections 438 and 439 shall be rendered meaningless and redundant. If the protective umbrella of section 438 is extended for unlimited period, the result would be clear bypassing of what is mandated in section 439 regarding custody.
This question was decided in the year 1986 by the Constitutional Bench of the Supreme Court in Bihar Legal Support Society v. Chief Justice of India, MANU/SC/0213/1986 : 1986 (4) SCC 764; State through C.B.I. v. Amarmani Tripathi, IV (2005) CCR 33 (SC); in the following words:
"The Apex Court must interfere only in the limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the Apex Court for the entire country or where there is grave, blatant and atrocious miscarriage of justice. Sometimes, we Judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the Judges of the Apex Court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the Apex Court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers. It is for this reason that the Apex Court has evolved, a matter of self-discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petitions are filed against orders granting or refusing bail or anticipatory bail... We reiterate this police principle laid down by the bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter."
Guiding principles for granting anticipatory bail can be summarised as under:
(1) In Gurbaksh Singh Sibbia v. State of Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632; the Apex Court has laid down the various principles in this regard as follows:
(i) The legislature has conferred very wide discretion on the High Court and the Court of Session to grant anticipatory bail. These courts in the exercise of their judicial discretion can grant such bail if they consider fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant (use of words "may, if it thinks fit" in [section 438(1)]. The limitations imposed in section 437 are not relevant under section 438. Thus, there is no restriction on granting anticipatory bail merely because the alleged offence is one punishable with death or life imprisonment.
(ii) The use of the expression "reason to believe" in section 438(1) shows that the belief that the appellant may be arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', thus a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested, is not enough. Such belief must be founded on some tangible grounds which the court can examine objectively. Specific events and facts must be disclosed by the applicant in order to enable the court to judge the reasonableness of his belief.
(iii) The High Court or Court of Session while granting anticipatory bail may impose conditions [section 438 (2)] with a view to strike a balance between the individual's right to personal freedom and the investigational rights of the police. For instance, the court may direct that the applicant should surrender himself to the police for a brief period if a discovery is to be made under section 27 of the Evidence Act.
(2) In Balchand Jain v. State of Madhya Pradesh, MANU/SC/0172/1976 : (1976) 4 SCC 572; it was observed that, legally it is possible to pass an expert order to anticipatory bail. But ordinarily, an order of anticipatory bail should be passed without issuing notice to the prosecution and giving it an opportunity to oppose the application for anticipatory bail.
(3) No 'blanket order' - if a direction is issued under section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever", the order serves as a blanket to cover or protect any and every kind of alleged unlawful activity which no concrete information can possibly be had. Such a 'blanket order' is not contemplated by section 438, the applicant must have reasonable grounds to believe that he might be arrested for having committed a non-bailable offence. Moreover, such a 'blanket order' would cause serious interference with both the right and duty at the police in the matter of investigation. Thus, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0214/2004 : AIR 2004 SC 1866.
(4) Filing of FIR not a condition precedent - Section 438 does not require that offence in respect of which the anticipatory bail is asked for has been registered with the police.
(5) No anticipatory bail after arrest - Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under section 437 or section 439 if he wants to be released on bail; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0214/2004 : AIR 2004 SC 1866.
(6) Granting of anticipatory bail only in exceptional cases - Though the applicant in order to succeed must make out a case for the grant of anticipatory bail under section 438, that section does not require him to make out a "special case". The discretion in granting such bail is undoubtedly to be exercised with care and circumspection (as it is an extraordinary remedy); but then it will not be correct to say that the power to grant anticipatory bail must be exercised in exceptional cases only (However, in Samunder Singh v. State of Rajasthan, MANU/SC/0278/1987 : (1987) 1 SCC 466; the Supreme Court criticised the liberal attitude of the High Court in granting anticipatory bail).
It may be noted that Law Commission of India in its 48th Report expressed the view that the power to grant anticipatory bail should record reasons for doing so. Still further, the direction can be issued only if the court is satisfied that such a direction is necessary in the interests of justice.
In Rao Harnarain Singh v. State, AIR 1958 Punj 123: 1958 Cr LJ 563; the fact of the case was, one Kalu Ram, one of the accused, husband of the deceased, Smt. Surti, used to live in one of the rooms in the house of the accused appellant Rao Harnarain Singh, Smt. Surti was an attractive girl. On the evening of 18 April 1957, when the appellant Rao Harnarain Singh was entertaining Ch. Mauji Ram, Dy. S.P. (jail) Gurgaon on the eve of his transfer, Kalu Ram was induced after initial protests, to provide his wife Smt. Surti, to satisfy the carnal lust of Rao Harnarain Singh and his guests.
It was alleged that the girl vehemently protested against this outrageous demand but under the pressure exerted by her husband she was induced to surrender his chastity. It was alleged that the three accused - Rao Harnarian Singh, Ch. Mauji Ram and Balbir Singh, ravished her during the night and she died almost immediately.
Bail application was rejected by the committing Magistrate. The Additional Sessions Judge also declined to release the accused on bail. The appellants moved High Court under section 498 Cr PC (section 439 of the new Code) praying that the petitioner be released on bail pending the decision of the case.
The question inter alia before their lordships was whether the accused could be released on bail under the circumstances of the case.
It was contended by the appellants that they deserved to be released on bail. It was also alleged that there did not appear any reasonable ground for holding or believing that they had been guilty of an offence punishable with death or imprisonment for life. There was no eye-witness to testify the murder and no proof being available that the body of girl was cremated in the early hours shortly after the occurrence, bore any marks of violence suggestive of the commission of offence of which they had been accused.
There Lordships observed that the case of commission of the offence of a rape of a young girl was a serious crime. The contention of the appellants was that the offence of rape could not be established in that the girl was provided for the satisfaction of the carnal lust of the accused with the consent of her husband. She was a grown up girl of 19 years and a married woman, and that death could not have resulted in consequence of sexual intercourse with her by three persons.
Their Lordships observed that the bad character of a man does not disentitle him from being bailed out if the law allows and on the other hand, the social position or status of an accused should not be taken into consideration while granting bail merely because the accused is a respectable man and is able to produce reasonable security. The circumstances of each particular case must be taken into consideration by the Court while deciding the question for the grant of bail. The following principles should guide the court in granting bail:-
(a) enormity of the charge;
(b) the nature of accusation;
(c) the severity of punishment which the conviction will entail;
(d) the nature of evidence in support of the accusation;
(e) the danger of the appellant absconding if released on bail;
(f) the danger of witnesses being tampered with;
(g) the protracted nature of the trial;
(h) opportunity of the applicant for preparation of his defence and access to his counsel;
(i) the health, age and sex of the accused;
(j) the nature and gravity of the circumstances in which the offence is committed;
(k) the position and status of the accused with reference to the victim and the witnesses;
(l) the probability of accused committing the offences if released on bail, etc.
In the light of these guiding principles, it was observed that the applicants in this case were accused of having committed the offences of murder, rape and also for causing the disappearance of evidence of these offences.
Section 389 of the Code confers wide discretionary powers on courts to grant or refuse bail and imposes limitation in cases where there appears reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.
The appellant in this case have been accused of having committed grave offences punishable with long term of imprisonment and this is a consideration against their being released on bail.
Held, that under the circumstances the application of the accused for bail cannot be accepted. The application was, therefore, dismissed.
In Public Prosecutor, Madras v. George Williams @ Victor, MANU/TN/0336/1951 : AIR 1951 Mad 1042; the fact of the case was, the appellant was released on bail prior to this application. The bail was granted to him on 16 May, 1950. Thereafter, the Public Prosecutor moved a petition under section 497(5) of the Code of Criminal Procedure [section 437(5) of the New Code] for the cancellation of the bail on the ground that he has misconducted himself liable to re-arrest and committal to custody, by abusing his release on bail and by indulging in the same kind of offence during the period of bail.
The respondent George Williams alias Victor had been convicted in a Session case under section 120B of IPC read with section 420 IPC for having conspired with twenty-three other accused to cheat members of public by promising to give them two five-rupee notes (of course counterfeit) for one genuine five-rupee note. Of course, the genuine currency notes were taken and the others as promised were not given. This accused was held to be the prim over and ring leader in the huge conspiracy and was sentenced to undergo four years rigorous imprisonment.
Their Lordship of the High Court observed that section 426(2) Cr PC (section 389 of the New Code) gives the High Court the power to grant bail in such cases. It is clear that when the High Court is given power under section 497(5) Cr PC to cancel bail already granted to persons undergoing trial, a similar power must be implied regarding the grant of bail under section 426 Cr PC. It will be atrocious, if the High Court which grants bail to an appellant pending his appeal on his application protesting his innocence, is not empowered to cancel his bail, and re-arrest him and commit him to custody when he is proved to have abused the process of the court by getting bail on false pretences and misbehaves and proves himself unworthy of committing on bail.
It was observed that where the person on bail, during the period of bail, commits the very same offence for which he is being tried or has been convicted, he proves his unfitness to be on bail, as in the present case if the facts alleged by the learned Public Prosecutor (said they are not converted by the counsel for the accused) are (i) if he hampers the investigation as will be the case if he, when on bail, forcibly prevents the search of place under his control for the corpus delicti or other incriminating things; (ii) if he tampers with the evidence; as by intimidating the PWs, interfering with the scene of offence in order to remove traces or proofs of the crime, etc.; (iii) if he runs away to a foreign country, or goes underground out of the control of his sureties, and (iv) if he commits acts of violence, in revenge, against the police and the prosecution witnesses and those who have booked him or are trying to book him.
Held, that this case falls under the first category and the bail granted to the respondent was cancelled, and he was remained to custody.
In Gurcharan Singh v. State (Delhi Administration), MANU/SC/0420/1978 : (1978) 1 SCC 118; the appellants are the suspended senior police officials who are accused of the offence of murdering Sunder, a notorious dacoit. The case was investigated by the CBI, and the appellants were arrested in pursuance of the First Information Report lodged by the Superintendent of Police CBI on 10 June, 1977.
The appellants applied for bail to the District and Session Judge, Delhi, who by his order dated 11 August, 1977, released them on bail. On appeal by the State, the Delhi High Court cancelled the bail granted by the Court of Session and directed committal of the appellants to custody. Hence, this appeal by special leave, against the order of the High Court.
Their Lordships rejected the contention of the counsel for the appellants that under section 439(2) Cr PC of the new Code, the High Court could not entertain the application for cancellation of bail and it was only the Court of Session that was competent to deal with the matter. It was observed that Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under section 498 Cr PC (old). It was held that under section 439(2) of the new Code, a High Court may commit a person released on bail under Chapter XXXIII by any court including the Court of Session to custody, if it thinks appropriate to do so, it must, however, be made cheat that a court of Session cannot carnal a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court.
The overriding consideration in granting bail to which we have adverted to earlier and which are common both in the case of section 437(1) and
section 439(1) Cr PC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice, of repeating the offence, of jeopardizing his own life being faced with a grim prospect of possible conviction in the case; of tampering with the witnesses; the history of the case as well as of its investigation and other relevant grounds which in view of so many variable factor cannot be exhaustively set out.
Ordinarily, the High Court will not exercise its direction to interfere with and order of bail granted by the Session Judge in favour of the accused.
Their Lordship examined the entire material relating to the preliminary inquiry and the conduct of the appellants after the grant of bail, and the allegations that pressure was being exerted on some eye witnesses to support the case of the defence, and observed:
"In considering the question of bail of an accused in a non-bailable offence punishable with death or imprisonment for life, it is necessary for the court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors. As a link in the chain of criminal conspiracy, the prosecution is also relying on the conduct of some of the appellant in taking Sunder out of police lock-up for making what is called a false discovery and it is but fair that the Panch witnesses in that behalf be not allowed to be got at.
It was further observed that,
"the two paramount considerations viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail".
Their Lordships cited the decision in Captain Jagjit Singh's case, and held that the High Court was correct in appreciating the entire position. With these observations, their Lordships refused to interfere with the discretion exercised by the High Court in cancelling the bail of the appellants.
In State of Rajasthan v. Balachand @ Bally, (1977) SC (Cri) 594; the respondent was acquitted by the High Court in a criminal case. The State was, however, granted special leave to appeal to the Supreme Court. After having surrendered himself after leave was granted to the State to file an appeal against acquittal by the High Court, the petitioners moved the Supreme Court for bail.
Mr. Justice Krishna Iyer delivering the judgment of the Supreme court observed: "the basic rule may perhaps be tersely put at "bail, not jail", except where there are circumstances suggestive of fleeing from justice on thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court."
It was further observed that:
"It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with the Court when considering the question of bail. So also the hideousness of the crime. Even so, the record of the petitioner in this case is that , while he has been on bail throughout during the trial of the case and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the Court: his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the Court may place in him to turn upto take justice at the hands of the Court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time, any possibility of the absconsion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station, Baren, once very fortnight."
The petitioner will be released on bail on his entering into a bond of his own and one surety for Rs. 5000 to the satisfaction of the Additional District and Session Judge, Baren. While the system of pecuniary bail has a tradition behind it, the time has come for re-thinking on the subject. It may well be that in most cases no monetary suretyship but undertaking by relation of the petitioner or organization to which he belongs may be better and more socially relevant. Even so, in the case, we stick to the practice and direct the furnishing of one surety for Rs. 5000.
In Prahlad Singh Bhati v. N.C.T. of Delhi, MANU/SC/0193/2001 : (2001) 4 SCC 280; the respondent 2, who is alleged to have murdered his wife and against whom FIR was registered in police station Lajpat Nagar under section 302 of the Indian Penal Code, was released on bail by the Metropolitan Magistrate, New Delhi. The revision filed against the aforesaid order has been dismissed by a learned single judge of the High Court by passing a telegraphic order to the effect "having considered the case before me, I am of the opinion no ground has been made for cancellation of bail". Not satisfied with the order of the Magistrate and that of the High Court, the father of the deceased has approached the Supreme Court in this appeal by special leave.
The Supreme Court observed that:
"Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment 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 Session, the 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."
The court further observed that:
"The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which the presence of the accused at the trial, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest 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 that 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 provide 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."
Held that the High Court failed in its obligation to adjudicate the leas of law raised before it and accordingly set aside the order of the High Court and court below.
In State (Delhi Administration) v. Sanjay Gandhi, MANU/SC/0171/1978 : (1978) 2 SCC 411; one Shri Amrit Nahata produced a film called 'Kissa Kursi Ka' which portrayed the story of the political doings of the respondent and his mother, Smt. Indira Gandhi, the former Prime Minister of India, the Board of Censors declined to grant a certificate for exhibition of the film whereupon Shri Nahata filed a writ petition in the Supreme Court for a writ of mandamus. The Supreme Court was informed that it was not possible to screen the film for evaluation by the Judges.
After the emergency was lifted, a raid was effected on the Gurgaon premises of the Maruti Limited which yielded incriminating material about 13 boxes which contained the spouls of the film 'Kissa Kursi Ka' were burnt and destroyed in the factory premises.
An application was filed by the Delhi Administration, in the High Court of Delhi for cancellation of the respondent's bail. The application having been dismissed by a single judge, the Delhi Administration filed this appeal by special leave.
It was observed that: "Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case then to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conclusive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. In other words, the objective fact that the witness have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the choice or on the supposition that witnesses have won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused then consistent testimony, by itself, can be ascribed to the pressure of the prosecution."
The Court held that:
"The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to temper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.
Thus, the Supreme Court allowed the appeal partly, setting aside the judgment of the High Court.
In Moti Ram v. State of Madhya Pradesh, MANU/SC/0132/1978 : (1978) 4 SCC 47; the appellant's Criminal Appeal having been admitted by the Supreme Court, he was also ordered to be released on bail subject "to the satisfaction of the Chief Judicial Magistrate". Consequently, the Magistrate ordered that a surely in a sum of Rs. 10,000 be produced; although the Supreme Court had not spelt out any details of such sort.
The petitioner could not procure that huge sum or manage a surety of sufficient prosperity. The Magistrate made an odd order refusing to accept the suretyship of the petitioner's brother because he and his assets were in another district.
Against this order, the petitioner moved the Supreme Court again to modify the original order "to the extent that petitioner be released on furnishing surety to the tune of Rs. 2000 or on executing a personal bond or pass any other order or direction".
His Lordships observed that, the grant of bail can be studied or made impossible, inconvenient and expensive if the court is powerless to dispense with surety or to receive an Indian bailor across the district borders as good or if the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive.
"It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000. The Magistrate must be given the benefit of doubt for not fully appreciating that our Constitution enacted "We, the people of India" is meant for the butcher, the baker and the candle-stick maker-shall we add, the bonded labour and pavement-dweller" his Lordship observed.
To add insult to injury, the Magistrate then demanded sureties from his own district. What is Malayalee Kannadiya, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies.
With these observations, it was ordered by his Lordships to the Magistrate to release the petitioner on his own bond in a sum of Rs. 1000.
Words bail, parole and furlough are used in different States to denote grant of leave or emergency release to a prisoner from prison. The word and meaning is not uniform and is thus, confusing. The word 'Bail' is confused with the word 'Parole'. Actually, these two words are entirely different.
In S. Sant Singh v. Secretary, Home Department of Maharashtra, II (2006) CCR 241 (FB); the Bombay High Court with the following observations regarding parole:
(i) 'Parole' is defined in Black's Law Dictionary as "a conditional release of a prisoner, generally under supervision of a parole officer, who has served part of the term for which he was sentenced to prison". Parole relates to executive action. Historically, 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American system of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into their penal system, all fixed-term sentence of imprisonment of above 18 months are subject to release on licence, that is, parole is granted after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restriction on a convict prisoner, but release on parole does not change the status of the prisoner.
(ii) However, the concept of parole under the English law, the American law and the Indian law is quite different. Under the English Law, parole is granted to a convict who has undergone major part of his sentence. It is a undergone major part of his sentence. It is a reformative process on account of the changing attitude towards crime and criminals. Parole under those systems is a provisional release from jail but it is deemed to be part of the imprisonment. A convict is supposed to maintain good behaviour during this period and not abuse the liberty granted to him in any manner, otherwise he would be called back to serve out the remaining part of his imprisonment. However, under the Indian system a convict can be released on parole only in case of the contingencies mentioned in Rule 19. It is a temporary release granted on account of contingency and after the period of parole is over the convict has to report back to prison to undergo the remaining part of his sentence. Thus, though the concept of parole differs under the Indian system and other systems, one similarity is that parole does not amount to suspension of sentence and the person is deemed to be undergoing imprisonment during the period that he is on parole.
(iii) Bail and parole have different connotation in law. Bail is well understood in Criminal Jurisprudence and Chapter XXXIII of Cr PC contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after the trial. Bail is granted by the officer-in-charge of a police station or by the Court when a person is arrested. The Court grants bail when a person apprehends arrest in a case of a non-bailable offence. When a person is convicted of an offence, he can be released on bail by the Appellate Court till his appeal is decided. If he is acquitted, his bail bonds are discharged and if his appeal is dismissed he is taken into custody. Bail can be granted subject to conditions. After granting of bail, if the accused is released from custody, still the Court would retain constructive control over him through the sureties. In case, the accused is released on his own bond, such constructive control would still be exercised through the conditions of the bond secured from him. Parole, however, has a different connotation from bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. 'Parole' is a form of 'temporary release' of a convict from custody and changes the mode of undergoing sentence.
(iv) It is seen that 'bail' and 'parole' operate in distinct fields although, the ultimate end is the release of the prisoners on certain terms and conditions. There is clear distinction between 'parole' and 'bail'. 'Parole' has nothing to do with the actual merits of the matter i.e. the evidence which has been led against the convicted prisoner but 'parole' is granted in cases of emergency like death, illness of near relative or in cases of natural calamity such as house collapse, fire or flood. It is pertinent to note that in case of death of near relative, the Superintendent of Prison shall also be competent to release the convict on parole for a period not exceeding 15 days. Parole is resorted to in cases of contingency. Looking to this fact, it would not be expedient for the convict to approach the Courts and pray for temporary release especially in cases of death. The Prison Rules take care of such emergencies.
(v) Thus, bail and parole operate in different spheres and in different situations. In India, there are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By an administrative instruction, however, rules have been framed in various States regulating the grant of parole. Thus, the action of grant of parole is, generally speaking, an administrative action.
(vi) Undoubtedly, Section 389 empowers the Court to suspend the sentence and even the conviction but if there is no such suspension, the competent authority or the Government's powers under section 432 Cr PC are not curtailed in any manner nor there is an embargo on its powers merely because the appeal against the conviction is pending. It is another story when the sentence is suspended and the convict is ordered to be released on bail. Certainly such an order could prevail over the powers of the Government but in the absence of such an order, the Government's powers under section 432 of Cr PC are not curtailed.
From this, it is clear that the powers of the State to grant parole are not fettered even if the appeal of the convict is pending before the Court. Thus, the competent authority or the Government would have the legal competence to entertain an application for parole by following the procedure set out under the Prison Rules to meet the contingencies stated therein. The exercise of such power would not be in any way be in conflict with the powers exercised under section 389 or section 432 Cr PC.
Though Bail, Parole and Furlough are interlinked with each other, yet they have different meanings in the eyes of law. In this Chapter, we have already discussed 'Bail' and "Parole'. Now we should discuss 'furlough'. One thing that always should be kept in mind that, 'Bail' is generally granted by the Court whereas 'Parole' and 'Furlough' are granted by the State as per rules and regulations or the guidelines laid down by the 'Competent Authority' from time to time.
In Concise Oxford Dictionary, 'Furlough' means "a leave of absence especially granted to a member of the services or to a missionary." Therefore, this dictionary meaning of this word is not quite helpful.
In S. Sant Singh v. Secretary, Home Department, Government of Maharashtra, II (2006) CCR 241 (FB); Similar observation was made by the Apex Court in State of Haryana v. Mahinder Singh, (2003) 3 SCC 394; it was observed by their Lordships of High Court that, 'Furlough' and 'Parole' are two distinct terms now being used in the jail manuals or laws relating to temporary release of prisoner. These two terms have acquired different meaning in the statute with varied results. Dictionary meanings, therefore, are not quite helpful.
In State of Haryana v. Naurattan Singh, MANU/SC/0176/2000 : (2000) 3 SCC 514; the Supreme Court observed that, 'furlough' is only a leave of absence allowed to a prisoner or accused.
Generally speaking, the main difference between 'parole' and 'furlough' is that, the parole is allowed to a very long-term prison, whereas furlough is allowed to a prisoner who is sentenced for 5 years or more rigorous imprisonment and who has actually undergone three years imprisonment excluding remission may be released on furlough.
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