BAIL EXECUTION: A STUDY OF IMPORTANCE OF JUDICIARY IN INDIA IN RESPECT TO DEVELOPMENT OF LAW RELATING TO BAIL By- Hemant Sharma

BAIL EXECUTION: A STUDY OF IMPORTANCE OF JUDICIARY IN INDIA IN RESPECT TO DEVELOPMENT OF LAW RELATING TO BAIL

Authored By- Hemant Sharma

 

 

INTRODUCTION

From the provision of law and the judgments delivered by various High Court and also the Supreme Court of India, the consensus arrived at is that in principle the inclination should be in favour of bail and not Jail. We have seen that the reforms in the grant of bail have come more from the courts than the legislature. And in many judgments the courts have observed grant of bail is rule, and rejection of bail is exception. In the area of grant of bail to the accused person (who is supposed to be innocent until the final verdict) the role of the judges is of immense significance. As we know, the judges enjoy wide powers and discretion, to grant or not to grant the bail though the discretion has to be used, judiciously and judicially, yet the scope of discretion differs from judge to judge. So the judges have to involve themselves actively and with an open mind to discover the truth of the matter not only in the bail matter, but in all cases tried before them.[1]

In Ram Chander v. State of Haryana[2] the Supreme Court observed that “every criminal trial is voyage of discovery in which truth is the quest. It is the duty of a presiding judge to explore every avenue open to him in order to discover the truth and to advance the course of justice.” Kudos of the Supreme Court of India, which has created a revolution in the criminal jurisprudence through their ever-green landmark judgments delivered from time to time. The illustrious Judges of our country, by way judicial activism, have never hesitated to iron out the creases in the virgin laws of the land in favour of the society and the citizen. Article 21 of the constitution fully guarantees every citizen a right to life and liberty. That is why the Supreme Court in various judgments, times and again, has sound a word of caution and warning to the courts subordinate to it that the judges should be very slow and careful before they refuse the bail in non-bailable offences.

The basic purpose of setting an accused person at liberty is that his fundamental right to life and liberty should not be curtailed unnecessary. If the courts are satisfied that the accused person will participate in the trial and will not abscond or temper with the evidence, the bail should invariably be granted. If a person is deprived of his right and liberty under a procedure which is not “reasonable, fair and just” such deprivation would be violate of his fundamental right[3]. Grant or refusal of bail is very delicate matter and certainly needs a serious examination when the court decides against the accused person. Even the Code of Criminal Procedure speaks for the grant of bail because the liberty of a person is of great importance and is a fundamental right of every citizen guaranteed under the Constitution.[4] Personal liberty of an individual citizen and right to life under Article 21 of the Constitution is the most precious fundamental right which cannot be jeopardized by any agency or institution whatsoever.

 

ARTICLE 21 AND RIGHT TO BAIL

"Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community," the Supreme Court said in Gudikanti Narasimhulu v. Public Prosecutor[5]. The significance and scope of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, evenhanded, and geared to the goals of community good and State necessity spelled out in Article 19. Reasonability presupposes intelligent care and presupposes that deprivation of freedom by refusal of bail is not for punitive purposes but for the bi-focal interests of justice-to the individual involved and society at large.

The Supreme Court cautioned in Hussainara Khatoon v State of Bihar[6] that pre-trial detention is not to be encouraged, nor is pre-trial release on sureties that if the Court is satisfied after taking into account that the accused has roots in the community and is not likely to abscond, he can safely be released in his personal bond.

All people arrested or detained, whether citizens or non-citizens, are entitled to the protection of Article. This freedom extends even to those who have been convicted, subject only to the constraints established by the law.[7] The purpose of Article 21 is to prohibit the executive from infringing on personal liberty unless in line with the law and in accordance with its provisions. Before a rigorously adhered to and must not be deviated from to the detriment of the individual impacted.[8]

 

GUIDELINES ISSUE BY THE COURT IN RESPECT OF GRANT OF BAIL

The Supreme Court and the High Courts have established several criteria in their decisions so that courts can efficiently deal with a variety of scenarios while considering cases on bail. While deciding cases on bail, keep the following in mind:-

 

NATURE OF CRIME AND ACCUSED

The nature of the charges, the nature of the evidence presented, and the severity of the punishments for the offence of which the individual is charged are all factors that the courts consider. If the accused is charged with a serious offence, the odds of being granted bail decrease. Additionally, if there is a reasonable suspicion that the accused will tamper with evidence or influence witnesses, the accused may not be given bail. The Supreme Court noted the following guidelines:

1. The nature of the charge, as well as the nature of the evidence, are important considerations. The punishment that the party may face if convicted or if the conviction is upheld is also relevant.
2. Another consideration is whether the person seeking the Court's benign authority to be freed for the time being would obstruct the course of justice.

As a result, the legal principle and practise support the Court's assessment of the possibility of the applicant tampering with prosecution witnesses or otherwise tarnishing the justice process. In this context, it is not only customary but also reasonable to inquire into the antecedents of a man seeking for bail to see if he has a criminal record, particularly one that implies he is likely to commit significant crimes while on bail. In the case of chronic offenders, it is well documented in criminological history that a hasty bail order has allowed the bailee to take advantage of the chance to commit more crimes against society's members. Bail discretion, based on evidence regarding a defendant's criminal background, is therefore not an exercise in futility.[9]

The Supreme Court stated in Ram Govind Upadhyay v. Sudarshan Singh[10] that the following considerations must be taken into account when granting bail:

1. 1. When granting bail, the Court must consider not only the nature of the accusations, but also the severity of the punishment if the accusation leads to a conviction, and the nature of the evidence in support of the accusations.
   2. Reasonable fears of witness tampering or a threat to the complainant should also be considered by the Court when deciding whether or not to grant bail.
   3. While it is not necessary to have all of the evidence proving the accused's guilt beyond a reasonable doubt, the Court should always be satisfied that the accusation is true prima facie.
   4. In the usual run of events, frivolity in prosecution should always be regarded, and it is only the element of genuineness that must be examined in the case of grant of bail and in the event of any uncertainty as to the sincerity of the prosecution.

The character means of the accused were also put into the rules in Prahlad Singh Bhati v NCT of Delhi[11], as well as the conditions that prevailed at the time. The court must consider the following factors when granting bail:

1. the nature of the charges,
2. the nature of the evidence in support of the charge, the severity of the penalty if convicted,
3. the accused's character, behaviour, means, and status,
4. circumstances that are unique to the defendant,
5. a realistic chance of obtaining the accused's presence at the trial,
6. reasonable suspicion that the witnesses have been tampered with,
7. The public's or the state's greater interests, as well as equivalent additional concerns

The following observation was made in the case of Deputy Commissioner v. State[12] "the Court, before granting bail in situations involving non-bailable offences, particularly where the trial has not yet begun, should take into consideration numerous elements such as the type and degree of the offence, the nature of the evidence, circumstances unique to the accused, a reasonable probability of the accused's absence from the trial, a reasonable fear of witnesses being tampered with, the wider interests of the public or the State, and similar other concerns. Proof of the accused's guilt beyond a reasonable doubt is not accepted at this point.

In the case of Vijay Kumar v. Narendra[13], "The principle is well-established that when considering a bail application in a case involving a serious offence such as murder, punishable under Section 302 IPC, the Court should consider relevant factors such as the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence." In Gajanand Agarwal v. State of Orissa[14], the court observed that there is a need to indicate in the order the reasons for prima facie concluding why bail was granted, especially when an accused is charged with a serious offence. Before granting bail, the Courts dealing with bail applications must consider, among other things, the following factors:

1. The nature of the accusation, the harshness of the punishment in the event of a conviction, and the nature of the supporting evidence;
2.  Reasonable fear of tampering with the witness or of a threat to the complaint;

In the case of Rajeev Chaudhary v. State (NCT) of Delhi[15], it is clear that the Magistrate has the authority to order the confinement of the accused in custody for no more than 90 days pending an inquiry into an offence punishable by imprisonment for a term of not less than ten years. The period prescribed for the remaining offences is 60 days. As a result, in circumstances where the offence is punishable by imprisonment for ten years or more, the accused could be imprisoned for up to 90 days.

In this context, the statement not less than would imply that imprisonment should be for a period of ten years or more, and would apply only to offences for which the punishment might be imprisonment for a duration of ten years or more. Section 386 provides for imprisonment of either kind for a term that may extend to ten years, as well as a fine. That is, incarceration can be for a period of no more than ten years. As a result, it could not be stated that the minimum punishment would be ten years or more. Furthermore, if we consider clause (i) of proviso (a) to Section 167(2) in context, it would be relevant in cases where the investigation relates to an offence punishable by imprisonment:

1. with death;
2. imprisonment for life; and
3. Imprisonment for a term of not less than ten years.

It would not cover the offence for which the sentence could be less than ten years in prison. Under Section 386 of the IPC, imprisonment can range from a minimum of one year to a maximum of ten years, and it cannot be said that the sentence decreed is less than ten years.

 

DANGER OF ACCUSED ABSCONDING

One of the most significant objections raised by the prosecution when a bail application is made, and one of the most important factors considered by a Court, is the risk that an accused individual will flee and thereby frustrate the goals of justice. The major goal of arrest and detention is to ensure that the accused not only attends the trial but also does not hamper its progress by infrequent absences. If there is no such fear in the Court's mind, it will not generally refuse bail. When the prosecution evidence is overwhelming, the Court should assume that the accused will fail to appear for the trial.[16]

When an accused person is acquitted, he is in a better situation than when convicted; so, when an appeal against acquittal is filed, his release on bail is only proper because it cannot be legitimately argued that he will escape. [17]  When the alleged offence is not serious, an application for bail cannot be denied solely on the grounds that the prosecution believes the accused would jump bail. Similarly, if a Court is convinced that there are reasonable grounds to believe that no case has been made out or is likely to be made out against the applicant and there is no reason to assume that the accused will flee, it should not deny bail.[18]

 

DANGER OF TAMPERING OF PROSECUTION EVIDENCE

A Court must assess whether, as a result of the granting of bail to an accused individual, prosecution witnesses are likely to be terrified and would have significant difficulty testifying at the trial.[19]  It is well recognised that granting bail in the case of a non-bailable offence is a compromise rather than a right. It is a type of faith placed in the applicant by the Court. The Court assumes that the privilege will not be misused in any way. An accused individual who has been released on bail must not come into touch with prosecution witnesses in order to either destroy or diminish the evidence against him.

When somebody abuses the liberty that has been provided to him, he forfeits his right to that liberty. The prosecution's main reason for opposing a bail application is that a person accused of a major crime, no matter how strong he is, cannot resist the temptation to destroy the evidence against him. A Court should not be overly lenient or sympathetic, and it should not wholly disregard human behaviour. If he can afford it, a guy accused of a heinous crime will pay any price to save his life or reputation; otherwise, he will influence or create terror. The Patna High Court has gone so far as to say that the potential for witness corruption in India are so great that the hazards associated with extending a person's bail cannot be overstated. [20] This is only one side of the storey. At the same time, it is the Court's responsibility to ensure that an accused person is not unjustly kept in prison and impeded in his defence simply because there is a fear that he will tamper with prosecution witnesses. The Oudh Chief Court has notably highlighted the other side of the storey in two significant pronouncements.

In the case of Bishambhar Nath v. Emperor[21], Wazir Hassan C.J. observed that "the learned counsel for the crown, Mr. Gupta, indicated worry in the course of his arguments as to these accused tampering with the prosecution evidence." However, apprehension will not be a sufficient reason for me to deny bail if I otherwise believe it should be granted. So far, these fears have proven to be chimerical. But, if they are proven to be true at any point during the trial, the experienced counsel, who I assume is in charge of the prosecution's case, will be able to petition the trial Court to cancel bail."

"The accused have been at large for four weeks, and I consider no significant damage is likely to occur at this stage if the accused are not locked up again," the learned Judge noted in the case of Emperor v. Wahidino[22]. They've had time to approach prosecution witnesses, and whether they're in prison or not, the defence will have no trouble tempering those who are susceptible to influence."

The learned judges in the cases of Rani Abhiraj Kunwar and Wahidino, as well as in the case of Jamini Mullick, have observed that when the prosecution opposes a bail application on the grounds that the witnesses may be tampered with, it does not speak highly of the police's efficiency or the witnesses' integrity. It is insufficient to make a broad and general claim that the accused will tamper with the evidence. If there is evidence on file indicating the accused attempted to tamper with the evidence, the Court will never increase the applicant's bail to defeat the goals of justice.[23]

The Bombay High Court cancelled bail in a bailable matter when it was satisfied that the accused had interfered or attempted to tamper with the prosecution evidence in Madhukar Purshottam Mondkar v. Talab Haji Husain[24]. The Supreme Court agreed with this viewpoint. When one of the accused is discovered to have tampered with prosecution evidence, the other accused should not be punished by having their bail denied. [25]

 

CHARACTER MEANS AND STANDING OF ACCUSED

A court has the authority to release a prisoner on bail if he has enough property to rule out the likelihood of him jumping bail and there is no accusation that he is going to flee.[26] It should be noted, however, that in this case, bail was granted not solely on the basis of the applicant's position, but also because he had been cleared on the charge by the trial Court, and the issue of bail arose as part of an appeal against the acquittal judgement. The High Court unanimously agreed that an accused person's social position or standing should not be taken into account when deciding whether or not to grant bail. The High Courts of Allahabad, Patna, Nagpur, Calcutta, and Hyderabad all hold the same opinion.[27] Bail will not be granted or denied based on an accused person's respectability or lack thereof. In fact, the wealthier the defendant, the easier it is for him to obtain bail and the less desirable it is to release him on bond. It is a common argument made on behalf of a young offender from a good home that he should not be permitted to associate with evil people in prison.

Though the argument has some merit, it is one that may be used in practically every situation since respectable men, even those who are older, can suffer from imprisonment in jail. A guy is held in prison not just to prevent him from fleeing, but also to keep him from posing a threat to the community if there is cause to believe he has committed specific crimes. When a man has been convicted of a criminal offence, his sheer respectability is insufficient to grant him bail. Instead of being a basis for granting bail, a person's position and rank might become a hindrance if it is considered that a fair trial will be jeopardised. A court must then assess whether, as a result of the grant of bail, prosecution witnesses are likely to be terrified and have significant problems entering the witness box during the trial. A man's terrible character does not disqualify him from being bailed out if the law allows it, just as a high social position and standing of the accused do not justify an order of release on bail.[28] A court, on the other hand, will consider an accused person's social status or position in relation to other members of his family, if he is the only adult male member or the only earning member of the family, with the other members being either women or children, when deciding whether or not bail should be granted. In the matter of Ahmad Ali v. Emperor.[29] His Lordship observed. "His mother now files an affidavit claiming that she is in great hardship because the petitioner is the only member of the family who works for a living."

In addition to the petitioner's mother, the household includes his wife and two little children. In addition, it appears that innocent people are suffering as a result of the petitioner's detention. His Lordship increased the bail amount for the accused. This was a case under section 363 of the IPC. However, in a murder case, Bennet, J did not consider the fact that the accused was a 'Gosain' and had no family member who could look after his case a good reason to release him on bail.

A cursory reading of the verdict in Raja Narendra Lal Khan v. Khan[30] would give the impression that the accused was released on bail because he was a wealthy and powerful man. When the application for bail was made on his behalf, there was no convincing direct evidence against him, therefore he was released.

 

HEALTH OF ACCUSED

The proviso to section 437, Cr. P.C. allows a Magistrate to admit a sick or infirm accused to bail even if he is reasonably suspected of being implicated in an offence punishable by death or life imprisonment, among other things. M. Hanumantha Reddy was accused with violating section 307 of the Indian Penal Code. He was the son of a high-ranking government official. The petitioner had neurasthenia, which was coupled with mental delusions and a suicidal mindset, according to the doctor who was treating him. In these circumstances, the accused was granted bail by the Mysore High Court. However, not every illness or infirmity qualifies a person for bail release. The case's circumstances and their cumulative effect, the severity of the illness or infirmity, the availability of necessary medical treatment, and adequate amenities must all be considered. If a court does not think it is appropriate to enlarge an accused person's bail on the basis of illness or infirmity, he may ask the court to propose to the state government that he be provided with enough amenities and more pleasant surroundings, subject to jail discipline.[31]If an accused person wants to be freed on bail because of his or her health, he or she must provide evidence, at the very least in the form of an affidavit, to allow the Court to exercise its discretion in his or her favour.

A medical certificate of illness alone isn't enough; the certificate must also establish that the accused's health would deteriorate if he isn't released. When competent treatment is available in jail, bail on the basis of illness should be refused. Bail should be refused when the E. C.G. test does not match the doctor's prescription, there is no disease requiring rapid release, and there is assurance of better care in the jail hospital and competent medical aid.[32]  The illness covered by the proviso to section 437 is one that puts the accused's life in jeopardy.

In a case where the Supreme Court freed a lady-prisoner, a foreigner serving life in prison and simultaneously awaiting trial in other criminal matters, on bail, she had been diagnosed with ovarian cancer at a secondary stage, demanding chemotherapy. In that instance, the Supreme Court allowed her to return to Canada, where her parents resided.[33] Simpson A.J.C. accepted the applicant's exceptional age as one of the grounds for granting bail to the petitioner in a case.[34]

 

AGE OR SEX OF THE ACCUSED

A Court may order that any person under the age of sixteen or any woman accused of an offence, even though it is punished by death or life imprisonment, be freed on bail under the proviso to sub-section (1) of section 437. In the case of Mst. Chokhi v. State[35], the question arose as to whether the proviso is discriminatory on the basis of sex and age, and thus ultravires of the constitution, because article 15 of the constitution states that "the state shall not discriminate against any citizen solely on the basis of religion, race, caste, sex, place of birth, or any one of them." Nothing in this article prevents the state from providing particular provisions for women and children, according to sub-clause (3) of the same article. As a result, the state has the authority to enact laws that include particular provisions for women and children, but no discrimination can be made against them based on their gender or other factors. As a result, the proviso to section 437, which gives women and children particular consideration, is not in conflict with India's constitution's article 15. Although his Lordship did not grant bail to Mst. Chokhi solely because the petitioner was a woman in this case, this factor played heavily in the Court's decision to grant bail.

The Session Judge had granted Rajmata bail in the case of K.E. v. Rani Abhairaj Kunwar[36]  on the grounds that she was an elderly woman with heart problems. The Chief Court of Oudh did not intervene with the Sessions Judge's judgement and permitted her to remain on bail. The term "may" in the first proviso should not be interpreted as a requirement. A lady under the age of 16 may be released at the Magistrate's discretion.[37] The first proviso to section 437 (1) does not imply that those named in the proviso must be freed on bail. The proviso serves as an enabler. [38] There was no need to evaluate other variables like age or compassion if "May" was a "must".[39]  Where the applicant woman, despite being charged with the murder of another woman, was suffering from major depressions/prolonged treatment as certified by the Medical Officer Central Jail, two other accused women had been granted bail on the basis of illness, and the applicant was also granted bail on the basis of being a woman. Bail for women, the sick, and the elderly is not necessary in grave crimes like dowry death cases, but it is optional. The provisions of section 37 of the NDPS Act of 1985 take precedence over those of section 437. The accused woman, first and foremost, is not entitled to special treatment in the case of bail.[40]

 

PREVIOUS CONVICT WHEN NOT TO BE RELEASED ON BAIL

A person shall not be released on bail if the offence is a cognizable offence and he has previously been convicted of an offence punishable with death, life imprisonment, or imprisonment for seven years or more, or he has previously been convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years, unless he is under the age of 16 years or is a woman. The Cr.P.C. (Amendment) Act 2005 added this additional clause (25 of 2005)

 

DANGER OF REPETITION OF CRIME

When a court has grounds to suspect that an accused individual will commit a similar or other crime if released on bail, it will deny bail, regardless of any other factors in the accused's favour. Paras Ram, who was accused with charges under sections 302 and 307 read with section 34 in a case before the Himachal Pradesh Judicial Commissioner's Court, petitioned for bail on several grounds. His argument was that he had been acquitted by the Sessions Judge and was now facing a retrial on the orders of the judicial commissioner's Court, and that there was no way he could tamper with prosecution witnesses who were linked to the deceased, that he was the only adult in the family not in prison, that no one in the family was responsible for making suitable arrangements for his defence, that he had to raise money for his defence by selling property, and that he had been through a long ordeal in the last trial.

The High Court of Allahabad previously held in the cases of Achhaibar Misir v. K.E[41] and Hutchinson Vs. Emperor[42]: "Very great weight must be attached to the fact that, according to the allegations before the Magistrate, the complainant was under police prosecution and hardly left in a taxi, when he was surrounded by several persons and struck with knives and sticks." This is a heinous act, and if he is freed on bond, any of his assailants may resume the attack and try to kill him, so that his evidence cannot be used against them”. [43] As previously stated in this chapter, the factors that a Court considers while deciding whether or not to grant bail cannot be classified comprehensively. However, in general, the totality of all the circumstances in a particular instance determines whether or not bail should be granted. However, an accused person may not seek bail on the grounds that he has not been "charged" with a specific offence as long as he is "accused" of that offence. As a result, the fact that the Court did not issue a charge against the accused does not entitle him to bail as long as the accusation is not proven.[44]

 

BAIL: ANTI POOR

In our country, where poverty is a major issue, many people are imprisoned, even for minor offences that are being tried. This typically occurs when the accused is unable to provide the required amount of money for bail. The Supreme Court established some standards in this regard so that all segments of the population can seek bail.

The Supreme Court stated in Moti Ram v State of Madhya Pradesh[45] that:

"the primary aim of bail is to ensure that an accused person will return for trial if he is released after arrest. How is that purpose met under the present system? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps even years before trial.

• He does not stay in jail because he is guilty.
• He does not stay in jail because any sentence has passed.
• He does not stay in jail because he is any more likely to flee before trial.

He stays in jail for one reason only, because he is poor”

It offends one's conscience to require a mason, such as the petitioner, to provide sureties in the amount of Rs. 10,000. The Magistrate should be given the benefit of the doubt for failing to recognise that our Constitution, adopted by "WE THE PEOPLE OF INDIA," is intended for the butcher, baker, candlestick maker, bonded labourer, and pavement dweller. To make matters worse, the Magistrate has asked sureties from his own area. What should a Malayalee, Kannadiga, Tamilian, or Telugu do if they are caught in Bastar, Port Blair, Pahalgam, or Chandni Chowk for alleged misappropriation, theft, or criminal trespass? He cannot have sureties who hold property in these far-flung locations. He may not know anyone there and may have arrived in a group looking for work or in a morcha. Such provincial allergies are more likely to cause judicial disturbance in Indian unity.

Article 14 of the Constitution protects all Indians qua, Indian within the territory of India. Swaraj is made of united stuff. Drastically reducing the amount of the surety of Rs. 10,000 demanded by the Magistrate, the Supreme Court passed the following order “We direct the Magistrate to release the petitioner on his own bond for Rs. 1000.”

If indigents are not to be betrayed by the law, including the bail legislation, revising numerous procedures laws is a must, and the judiciary would do well to recall that the Central Codes' geographical borders cannot be deformed by cartographic dissection in the name of language or province.

Similar concerns were explored in the case of Babu Singh v The State of U.P[46], which held that deprivation of liberty through refusal of bail is not for punitive purposes, but for the bi-focal interests of justice—to the individual implicated and society as a whole.

1. It's reasonable to believe that a man on bail has a better chance of preparing or presenting his case than someone who is incarcerated. Mechanical detention should also be reduced if public justice is to be promoted.
2. In theory, a bad past and police predictions of criminal prospects can be used to invalidate a bail plea, but they should not force the Court to make a hasty decision.
3. The amount of time already spent in prison and the possibility of the appeal being postponed due to the stifling crowd
4. Unless the negative factors mandating that route are overcome, the delicate light of the law favours release. The law's coffective instinct plays on release orders by attaching protective and curative conditions to them.
5. Excessive bail for poor men is clearly unethical.

 

Ranjit Singh Brahmjeet Singh Sharma v state of Maharashtra[47] it is furthermore trite that “for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.”

 

BAIL A MATTER OF DISCRETION

Bail in non-bailable offences is at the discretion of the court. The courts examine each case individually before making a ruling. It cannot be claimed as a right or compared to other circumstances that appear to be similar. Each scenario is unique and requires a distinct approach.

 

"The provisions of the Criminal Procedure Code confer discretionary competence on criminal Courts to issue bail to accused pending trials or in appeals against convictions," the Supreme Court stated in Mansab Ali v. Irsan[48]. Because the authority is discretionary, it must be used with great care and prudence, striking a balance between an individual's valuable right to liberty and the interests of society as a whole. When granting or declining bail, the courts must state the reasons for granting or refusing release, even if they are only briefly stated. It is not permissible to exercise jurisdiction in a haphazard and careless manner.

 

BAIL NOT A COMMON PRACTICE

Bail isn't available to everyone. It depends on the case's facts and circumstances. It took place in the case of State of Uttar Pradesh v. Jairam[49]. "A order of release in detention cases for a limited period tailored to the needs of the particular occasion may be justified by grave illness or pressing and personal business." However, a detainee cannot be freed on bail as a matter of routine, based on reasons that apply to all cases of punitive imprisonment."

 

SUBSEQUENT APPLICATION FOR BAIL

In the case of Kalyan Chandra Sarkar[50], the Supreme Court issued the following observation: "When a person is denied bail once, he may ask for bail again on the basis of new circumstances and that he be given bail." "Under the criminal laws of our country, a person accused of non-bailable offences is subject to detention in custody until the pendency of their case unless he is expanded on bail in accordance with the law." Because such imprisonment is legal, it cannot be argued that it is in violation of Article 21.

 

Even those accused of non-bailable offences may be released on bail if the court determines that the prosecution has failed to establish a prima facie case against them, or if the court determines, for reasons to be recorded, that despite the existence of a prima facie case, there is a need to release such persons on bail where fact situations demand it. In that process, a person whose application for release on bail has previously been denied is not barred from filing a new application for bail if the facts have changed.

 

In such cases, if the circumstances at the time demand that such persons be freed on bail, notwithstanding the fact that his previous applications have been denied, the Courts have the authority to do so." However, each case is unique, as is the situation and the charges levied against the co-accused. As a result, if the co-accused is acquitted, the petitioner will not be granted bail.

 

"Simply because the co-accused has been granted bail cannot be the primary reason for awarding release to an accused," the court said in Nanha Khan v. State of Uttar Pradesh[51]. Even at the second or third bail stage, the Court must consider whether the applicant's case is distinguishable from that of other released co-accused and whether the applicant's role is such that it may disqualify him from bail, in accordance with the Supreme Court's ruling in Gurcharan Singh's case."

 

In Ram Sahodar v. State of Madhya Pradesh[52], the Division Bench decided that when dismissing a bail application, it is not permissible to impose an order that the applicant cannot be released on bail on any circumstances until the case against him is resolved.

 

APPLYING FOR BAIL BEFORE ANOTHER JUDGE ONCE REJECTED BY ONE

In Shahzad Hassan Khan v. Ishtiaq Hassan Khan[53], it was determined that the subsequent bail application should be brought before the Judge who had previously dismissed the previous bail application.

If successive applications on the same subject are allowed to be decided by a different Judge, there will be conflicting orders, and a litigant will pester every Judge until he gets an order that he likes, putting the Court's credibility and the other side's confidence in jeopardy, as well as wasting Court time. If the same Judge is available for orders, judicial discipline requires that the matter be brought before him. The Supreme Court's observations that a subsequent bail application must be filed before the same Judge, if one is available, are based on judicial discipline and long-standing High Court conventions to achieve the goal of preventing a litigant from shunning or selecting a Court and discouraging filing of successive applications without any new factor until he gets an order to his liking. If such a practise is authorised, there will be contradicting orders, the Court's reputation will be harmed, and Court time will be wasted.

 

IMPOSITION OF CONDITION

Bail is always given subject to certain restrictions. Even if the conditions aren't stated explicitly in the application, they are implied. "Even if no restriction is clearly given, the accused is not supposed to tamper with evidence while on bail," as stated in Rizvan Akbar Husain v Mehmood Husain[54]. It's an unspoken stipulation in every bail."

 

REFUSAL OF BAIL

Bail in non-bailable offences is granted at the Court's discretion. The Court investigates the case and then makes a decision on whether or not to issue bail based on the nature of the charge and other circumstances. Rajesh Ranjan Yadav v. CBI[55] is a case where the defendant, Rajesh Ranjan Yadav, sued the government. "The fact that the appellant's father died and there is no one to look after the case is no reason to increase the accused's bail when the allegations are serious." "The investigation needs to go a long way and hence ample time will be required for the investigating authorities to conclude the probe," according to Mool Chand v. State (through the director of CBI)[56]. Furthermore, given the nature of the charges brought against the petitioner, as noted by the designated Court, the petitioner's release on bail at this critical stage may stymie the investigating agencies' efforts to gather evidence. As a result, his bail application has been denied at this time."

"An accused who has mis-utilized the liberty that was granted to him earlier by committing murder while on bail was not entitled to the benefit of being freed on bail," the Court concluded in Ramesh Kumar Singh v. Jhabbar Singh[57]. "The fact that the accused did not abuse his liberty while on temporary bail is insufficient justification for granting bail in a murder case." [58]

 

BAIL ONCE GRANTED CANNOT BE REVIEWED, REVISED, OR SET ASIDE BY THE SAME COURT

The readers should be aware that an order of grant of bail issued by a competent court under section 437(1) of the Code of Criminal Procedure cannot be reviewed, altered, or set aside by the same court. No provision of the code gives the judge the authority to do so. As a result, bail can be revoked under section 437(5) of the Code of Criminal Procedure, but only in exceptional circumstances. [59]

 

CANCELLATION OF BAIL

Bail is not unconditional once given. It may be cancelled if a question develops that could jeopardise the usual course of justice. "Generally the grounds for cancellation of bail, broadly interference or effort to interfere with the right course of administration of justice, or evasion or try to escape the course of justice, or misuse of the liberty granted to him," it was determined in the case of Raghubir Singh v State of Bihar[60]. By intimidating or suborning witnesses, interfering with investigations, inventing or inducing the loss of evidence, and so on, the proper administration of justice may be harmed. By fleeing the country, going underground, or otherwise putting himself beyond the reach of the sureties, one can dodge or seek to evade the course of law. He may abuse the freedom he has been granted by engaging in similar or other illegal activities. When bail is granted under the proviso to section 167(2) for the prosecution's failure to complete the investigation within sixty days, the prosecution may seek to have the bail cancelled after the defect is corrected by the filing of a charge sheet on the grounds that there are reasonable grounds to believe the accused has committed a non-bailable offence and that it is necessary to arrest and commit him to custody. One would expect very solid grounds in the last-mentioned example."

 

SESSION COURT CANNOT CANCEL BAIL WITHOUT STRONG REASON

In the case of Gurcharan Singh v State,[61]  a High Court may commit a person freed on bail under Chapter XXXIII if it deems it suitable under Section 439(2) of the new Code. However, unless fresh circumstances occur throughout the course of the trial after an accused person has been accepted to bail by the High Court, a Court of Session cannot cancel a bail that has already been granted by the High Court. If, on the other hand, a Court of Sessions has granted bail to an accused person, the State has two alternatives. It may file a motion with the Sessions Judge if new circumstances have surfaced that the State was not aware of previously.

The State may also apply to the High Court, which is the superior court, to commit the accused to custody under s. 439(2). When the State is aggrieved by the Sessions Judge's order granting bail and there are no new circumstances that arise that are not already known to the Sessions Judge, it is futile for the State to petition the Sessions Judge again, and it is competent in law to petition the High Court for bail cancellation.

This is due to the Court of Session's inferior standing in relation to the High Court. The nature and gravity of the circumstances in which the offence is committed, the position and status of the accused with respect to the victim and witnesses, and the nature and gravity of the circumstances in which the offence is committed, the likelihood of the accused evading justice; of repeating the offence; of jeopardising his own life in the face of the possibility of a conviction in the case; of tampering with witnesses, the case's history, as well as its investigation, and other significant grounds, which, due to the large number of variables, cannot be thoroughly listed are all factors that must be considered when granting bail under Section 437(1) and Section 439(1), Cr. P.C. of the new Code.

 

BAIL FOR CHILDCARE

In Akhtari Bai v. State of MP[62] the Court made the following observation was made if woman has a child to take care of the son of the appellant and co-accused with her, has died while giving birth to a male child, who under the compulsion of circumstances was also kept in jail to be looked after by the appellant till he attained the age of three years. Now the said child has been sent out as the jail authorities did not permit the child to remain with the appellant after attaining the age of three years. Keeping the appellant further in jail is likely to deprive the said child of the parental love, affection and care which he needs at this stage. There is no law by which such a child can also be directed to be kept with the appellant in jail. Depriving the appellant from looking after the child would not only be against the interests of the child but against the interests of the society as well.

 

BAIL NOT TO BE ARBITRARY

It was emphasised in Shashi Agarwal v. State Of Uttar Pradesh[63] that the possibility of the Court granting bail is not sufficient, nor is a bald statement that the detainee would repeat his criminal activities sufficient to pass an order of detention, unless there is credible information and cogent reason apparent on the record that the detainee, if expanded on bail, would act prejudicially. The similar point was made in the Anand Parkash case[64], where the detainee was issued with a detention order because it was suspected that if he was freed on bail, he would engage in detrimental conduct. The argument that the bail application might be challenged, and that if granted, it could be challenged in a higher court, was refuted on the grounds that it was not the law that no order of detention could be legitimately issued against a person in prison under any circumstances.

 

ACTION AGAINST JUDICIAL OFFICER

Recklessness and negligence in dealing with judicial proceedings, particularly bail cases involving serious crimes such as rape, must be taken seriously, and if the act of the judicial officer is found to be nothing more than a reckless and negligent act contrary to well-established norms and principles of law in more than 30 cases, it must be prosecuted, then the petitioner, a Senior Judicial Officer with more than 20 years of service, can then be prosecuted for the action taken. It draws our attention to the limitations of judicial review.

 

ACCUSED TO BE GRANTED BAIL IF IN CUSTODY FOR LONG TIME

Many examples involve accused folks languishing in prison while the case progresses at a snail's pace. The Supreme Court has ordered that in situations where accused individuals are held needlessly for a lengthy period of time and the trial drags on, the accused persons be freed on bail in non-bailable offences. In situations where the accused had been in prison for more than eight months and it was unclear when the session judge would assess the evidence, it was decided that the accused must be freed on the same grounds. In Shailendra Kumar v. State of Delhi[65], the Supreme Court declared that if there is a protracted pendency of trial with little possibility of an early hearing, bail throughout the pendency of the appeal is warranted.

 

DELAY IN TRIAL ENTITLES THE ACCUSED TO BE RELEASED ON BAIL

In considering the suffering of the accused due to delay in the trail the Supreme Court held that we are told that the appellant is in jail from 4-4-1998 in connection with the offence under section 394 and 395 read with section 149 of the Indian Penal Code. It is quite a long period that he has been in custody without commencing the trial. There is no need to detain him further in custody, and therefore, we inclined to release him on bail notwithstanding the suppression of certain factual position when the bail was filed. It would not have been done by the appellant. We feel that the lapse on the part of the counsel should not in this case be allowed to prejudice the appellant who is languishing in jail.[66]

 

CONCLUSION AND RECOMMENDATIONS

In the lack of clear statutory requirements, courts have developed their own criteria for granting bail. Another difficulty has arisen as a result of the use of law and discretion in the grant or rejection of bail. The presumption of innocence is a legal notion that is occasionally invoked to persuade courts not to use their discretion against the accused. Until proven guilty, an accused person is assumed innocent. As a result, refusing bail tends to become a punitive tactic for which the law has no penalty. It can cause an individual to be treated unfairly by causing him to lose his job, be unable to maintain his dependents, disturb his social and familial connections, and make it impossible to arrange for his own defence.

 

The current legislation is unclear about the impact of the bail procedure on the presumption of innocence. In fact, the doctrine is rarely invoked since, if a plea is submitted, the courts skip it because they are convinced that the proof of guilt in police custody exceeds the presumption claim. If release is considered only as a policy in the administration of justice for the limited purpose of ensuring the presence of the accused without causing the co-equal values of freedom and security to be disturbed, the application of the presumption of innocence for purposes of considering the issue of pre-trial release may become redundant.

 

The state suffers in a variety of ways under the current situation. The detained convicts are placed in prison homes, which produce overcrowding. The state bears the cost of certifying and maintaining them. The welfare state may not adhere to the ideals of social justice that it avowedly professes by taking a cavalier attitude toward the wellbeing of the accused's dependents.

 

A genuine effort to gain public support and involvement in criminal justice administration, as well as the essential legislative, administrative, and judicial capabilities to act successfully, is most warranted. Such an endeavour alone can assist in meeting the pre-requisites for the bail system's successful operation. In this regard, immediate attention is required to: (a) the proper functioning of police power, (b) the development of devices to control police power, (c) the speedy trial of the accused, and (d) the availability of legal aid and legal service from the preliminary stage to the end of the criminal process.

 

 

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[1] Dr. Janak Raj, “Bail Law and Procedure”, Universal Law Publishing, Delhi, 3rd Edition 2004, P.136

[2] AIR 1981 SC 1036

[3] M P Singh v. Satish Chandra AIR 164 SC 1777

[4] Dr. Janak Raj  Jai, “Bail Law and Procedure”, Universal Law Publishing, Delhi, 3rd  Edition, 2004, P. 18   

[5] 1978 SCR (2) 371

[6] AIR 1979 SC 1360

[7] Sunil Batra v. Delhi Administration (1978) 4 SCC 409

[8] Bashina v. State of Uttar Pradesh (1969) SCR 3

[9] Gudikanti Narasimhulu v. Public Prosecutor AIR 1978 SC 429

[10] AIR (2002) 3 SC 598

[11]  AIR 2001 SC 1444

[12] AIR 1987 SC 1456

[13] AIR 2003 SCC (Cr)1195

[14] AIR 2006 SC 3248

[15] AIR  2001 SC 2369

[16] Ram chandra v.  State 1953 Cr LJ 17

[17] State of Kutch v. Aher Vasta 1953 Cr LJ 1916

[18] Hardwari Lal v. Emperor 33 Cr LJ 773

[19] State v. Pritam Dass AIR 1956 Bom 559

[20] Hikayat Singh v. Emperor 33 Cr LJ 574

[21] Cr LJ 1132: 81 IC 956.158

[22] 30 CrLJ 845

[23] Subbarama Ayer v. State 1953 Cr LJ 263

[24] AIR 2006 SC 3248

[25] Talab Haji Husain v. Madhukar Purshottam Mondker and another 1958 Cr LJ 701

[26] Nanda Kumar Shukla v. State 1952 Cr LJ 1085

[27] Fazal Nawaz Jung v. State of Hyderabad 1952 Cr LJ 873

[28] Rao Harnam Singh v. State 1958 Cr LJ 563

[29] 16 Cr LJ 705

[30] 9 Cr LJ 375

[31] Fazal Nawaz Jung v. State of Hyderabad 1952 Cr LJ 873

[32] Sucheta Singh v. State of Madhya Pradesh 1981 Cr LJ (MP) Notes 132

[33] Marie Andra Leclerc v. State (Delhi Administration) 1984 2 SCC 443

[34] Abhairam Bali v. Emperor 26 Cr LJ 1286

[35] AIR 2006 SC 3248

[36] 40 Cr LJ 841

[37] Pramod Kumar Manglik v. Sadli Ana Rani 1989 Cr LJ 1772 (All) [1986 CR.LJ] 365

[38] Prahlad Singh Bhati v. NCT Delhi AIR 2001 SC 1444

[39] B.S. Rawat, Asstt. Collector of Customs v. Andre Christopher Mydlar 1988 (2) Crimes

[40] Zarereefa v. State 2004 Cr. LJ 4088 (4089)) (J&K)

[41] 30 Cr LJ 718: AIR 1929 All 614

[42] 33 Cr LJ 94: AIR 1931 All 356

[43] Emperor v. Narainji  AIR 1928 Bom 244

[44] Osman Piroo v. Emperor AIR 1936 Sind. 187

[45] AIR 1978 SC 1594

[46] 1978 AIR 527

[47] AIR 2005 SC 2277

[48] 2002 AIR SCW 5391

[49] AIR 1982 SC 942

[50] AIR 2005 SC 921

[51] 1993 Cri LJ 938

[52] 1986 Cri LJ 279

[53] AIR 1987 SC 1613

[54] 2007 Cri LJ 3255 (3256) (SC)

[55] 2008 Cri LJ 1033 (1034) (SC)

[56] AIR1992 AC 1640

[57] 2004 SCC (Cr) 1067

[58] Gobabhai Naranbai Singla v.  State of Gujarat 2008 Cri LJ 1618

[59] Sanjay Gandhi v. Delhi Administration 1978 Cr LJ 952, Parsahant Kumar v. Manohar Lal, 1988 Cr LJ 1463

[60] AIR 1987 SC 149

[61] AIR 1978 SC 179

[62] AIR 2001 SC 1528

[63] (1988) SCC 436

[64] Anand Parkash v. State of Haryana 2008 Cri LJ 1825

[65] AIR 2000 SC 3404

[66] Vivek Kumar v. State of Utter Pradesh (2000) 1 JT 522 (SC)