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Bail Guidelines Part 1

What, then, is "judicial discretion" in this bail context? In the elegant words of Benjamin Cardozo:

"The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life". Wide enough in all conscience is the field of discretion that remains." legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record--particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, "community roots" of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.

right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.

CONSTITUTIONAL PERSPECTIVE TO BE KEPT IN MIND : State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated :-

" In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail." (view reiterated in Sanjay Chandra vs Cbi on 23 November, 2011 by Supreme Court)

GENERAL GUIDELINES FOR GRANT OF BAIL:- In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under:


"It is well settled that the matters to be considered in an application for bail are

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)].

While a vague allegation that the 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. We may also refer to the following principles relating to grant or refusal of bail stated in.

No detailed examination of evidence or holding a mini trial at the stage of grant of bail:- Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11) "11. 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.



In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, Supreme Court took the view:


"22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.

Punjab-Haryana High Court

Rao Harnarain Singh Sheoji Singh ... vs The State on 12 August, 1957



It will be proper at this place to consider the principles which should guide the Courts in granting bail in a case like the present. There cannot be inflexible rules governing a subject which rests principally with the Courts' discretion in the matter of allowance or refusal of bail. The probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail, particularly in a case like this, in which evidence has not so far been led. For their guidance the Courts also look to other circumstances which may be determinative, as for example the Courts consider:


(a) the enormity of the charge,


(b) the nature of the accusation,


(c) the severity of the punishment which the conviction will entail, (d) the nature of the evidence in support of the accusation,


(e) the danger of the applicant's absconding if he is released on bail,


(f) the danger of witnesses being tampered with,


(g) the protracted nature of the trial, (h) opportunity to the applicant for preparation of his defence and access to his counsel and


(i) the health, age and sex of the accused. There are also other considerations and the above is by no means an exhaustive catalogue of the factors which should weigh with the Courts.


BAIL IN FINANCIAL CRIMES : Supreme Court of India

P. Chidambaram vs Directorate Of Enforcement on 4 December, 2019


Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.

Court has held that economic offences are also of grave nature, being a class apart which arises out of deep-rooted conspiracies and effect on the community as a whole is also to be kept in view, while consideration for bail is made.


DOCUMENT IN SEALED COVER WAS ALSO REFERRED IN THE JUDGEMENT :

"in present circumstance we were not very much inclined to open the sealed cover although the materials in sealed cover was received from the respondent. However, since the learned Single Judge of the High Court had perused the documents in sealed cover and arrived at certain conclusion and since that order is under challenge, it had become imperative for us to also open the sealed cover and peruse the contents so as to satisfy ourselves to that extent. On perusal we have taken note that the statements of persons concerned have been recorded and the details collected have been collated. The recording of statements and the collation of material is in the nature of allegation against one of the co-accused Karti Chidambaram- son of appellant of opening shell companies and also purchasing benami properties in the name of relatives at various places in different countries. Except for recording the same, we do not wish to advert to the documents any further since ultimately, these are allegations which would have to be established in the trial wherein the accused/co-accused would have the opportunity of putting forth their case, if any, and an ultimate conclusion would be reached. Hence in our opinion, the finding recorded by the learned Judge of the High Court based on the material in sealed cover is not justified."




PRIMA FACIE CASE A REQUIREMENT OF LAW :


Supreme Court of India

P Chidambaram vs Central Bureau Of Investigation on 22 October, 2019

Bench: R. Banumathi, A.S. Bopanna, Hrishikesh Roy


Expression of prima facie reasons for granting or refusing to grant bail is a requirement of law especially where such bail orders are appealable so as to indicate application of mind to the matter under consideration and the reasons for conclusion. Recording of reasons is necessary since the accused/prosecution/victim has every right to know the reasons for grant or refusal to grant bail. This will also help the appellate court to appreciate and consider the reasonings for grant or refusal to grant bail. But giving reasons for exercise of discretion in granting or refusing to grant bail is different from discussing the merits or demerits of the case. At the stage of granting bail, an elaborate examination of evidence and detailed reasons touching upon the merit of the case, which may prejudice the accused, should be avoided. Observing that “at the stage of granting bail, detailed examination of evidence and elaborate documentation of the merits of the case should be avoided”, in Niranjan Singh, it was held as under:-

“3.Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.”

ILLUSTRATIONS OF GENERAL CONDITIONS WHEN RELEASING ON BAIL , SC IMPOSED THESE CONDITIONS ON P CHIDAMBARAM :


i) The instant appeal is allowed and the judgment dated 15.11.2019 passed by the High Court of Delhi in Bail Application No.2718 of 2019 impugned herein is set aside;


ii) The appellant is ordered to be released on bail if he is not required in any other case, subject to executing bail bonds for a sum of Rs.2 lakhs with two sureties of the like sum produced to the satisfaction of the learned Special Judge;


iii) The passport ordered to be deposited by this Court in the CBI case shall remain in deposit and the appellant shall not leave the country without specific orders to be passed by the learned Special Judge.


iv) The appellant shall make himself available for interrogation in the course of further investigation as and when required by the respondent.


v) The appellant shall not tamper with the evidence or attempt to intimidate or influence the witnesses;


vi) The appellant shall not give any press interviews nor make any public comment in connection with this case qua him or other co-accused.


POSITION OF BAIL BY MAGISTRATE UNDER 437


Supreme Court of India

Prahlad Singh Bhati vs N.C.T., Delhi & Anr on 23 March, 2001


There is no gainsaying that the discretion conferred by the Code has to be exercised judicially.


Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negtivate the existence of reasonable ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail.


Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.


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 the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

Bail by police officer


Jodha Ram v. State of Rajasthan, 1994 Cri LJ 1962 at p. 1969 (Raj), it has been held by the Rajasthan High Court that the Code of Criminal Procedure contemplates grant of bail, both by a police officer conducting investigation as also by a Magistrate/Court, having jurisdiction over the matter, and that the power to grant bail is thus incidental to the power to conduct investigation as also to the power to try and convict an offender. (refer section 437 (1) and 437 (4) ) (Note : power to cancel bail is conferred on the courts not to the police officer . While magistrate can cancel bail he has granted , police officer cannot. However, under Sec. 439(2)of the Code, the Sessions Court / High Court can cancel the bail of a person who has been released on bail under Chapter XXXIII, which means that these Courts can cancel the bail of a person who has been released by the Magistrate even in a case involving a bailable offence. Now, the inherent power of the High Court under Sec. 482 of the Code need not be invoked for cancellation of bail. as usually inherent power is not used in derogation or substitution of statutory provision ) Difference between application for cancellation of bail and appeal against grant of bail :


Supreme Court of India

State Through C.B.I vs Amaramani Tripathi on 26 September, 2005

In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. But where , while considering and deciding appeals against grant of bail, where the accused has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail.



ADDITIONAL GUIDELINES : Supreme Court of India

Ram Govind Upadhyay vs Sudarshan Singh & Ors on 18 March, 2002


Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.


Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. The considerations being:


(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.


(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.


(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.


(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.


It will thus be seen that once an accused person has been released on bail by the thrust of the proviso to Section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to cancel his bail. In such a situation his bail can be cancelled only if considerations germane to cancellation of bail under Section 437(5) or for that matter Section 439(2) exist. That is because the release of a person under Section 167(2) is equated to his release under Chapter XXXIII of the Code.

Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation.

BAIL ON GROUND OF PARITY WHEN REFUSED?


Allahabad High Court

Ramu @ Sanjay Srivastava vs State Of U.P. on 25 January, 2011

if on examination of a given case it transpires that the case of the applicant before Court is identical, similar to the accused, on facts and circumstances, who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail .

Parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail application of the co-accused whose bail had been earlier rejected are allowed and co-accused is released on bail. Even then the Court has to satisfy itself that, on consideration of more material placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If on examination of a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should be also released on bail.







Allahabad High Court

Chander Alias Chandra vs State Of U.P. on 12 December, 1997


1. If the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to a co-accused on the ground of parity.


2. A judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail.-


3. A Judge hearing bail application of one accused cannot cancel the bail granted to a co-accused by another Judge on the ground that the same had been granted in flagrant violation of well settled principles. If he considers it necessary in the interest of justice, he may, after expressing his views, refer the matter to the Judge who had granted bail, for appropriate orders.


4. If it appears that a bail order has been passed in favour of an accused on the basis of wrong or incorrect documents it is open to any Judge to initiate action for cancellation of bail.




SUCCESSIVE BAIL APPLICATIONS :


Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr.:-

In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted.



Supreme Court - Daily Orders

M/S Gati Limited vs T. Nagarajan Piramiajee on 6 May, 2019


relying on :

Shahzad Hasan Khan v. Ishtiaq Hasan Khan, (1987) 2 SCC 684, in a similar matter concerning filing of successive applications for anticipatory bail, made the following observations:


“5. …The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up.


OBJECT ?


If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in the creditability of the court and the confidence of the other side being put in issue and there would be wastage of courts' time. Judicial discipline requires that such matters must be placed before the same Judge, if he is available for orders" Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court's time as a Judge familiar with the facts would be able to dispose of the subsequent application with despatch . It will also result in consistency.


WHOSE DUTY IS TO INFORM?

However, it is the duty of the prosecution to bring it to the notice of the Judge concerned that such an application was rejected earlier by a different Judge and he was available. In the entire adjudicatory process, the whole system has to be involved. The matter would be different if a Judge has demitted the office or has been transferred. Similarly, in the trial court, the matter would stand on a different footing, if the Presiding Officer has been superannuated or transferred. The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum­ shopping, which is decryable in law.








GUIDELINES FOR SUBSEQUENT BAIL APPLICATIONS :

Firose Ali V. State of Kerela 2017 cr LJ 478 (Kerela High Court Judgment)

we issue the following guidelines for subsequent bail applications :


a) The subsequent bail application by the same accused will be entertained only if there is change of circumstance for filing such application.


b) Subsequent bail application filed by the same accused shall be heard by the learned Judge who has considered and passed orders on the earlier bail application/applications in the same crime.


c) The application filed by the co-accused may be considered and ordered by any other learned Judge having roster during the relevant point of time and such application need not be placed before the Judge who passed orders earlier on the application filed by another accused.


d) The subsequent bail application filed by the same accused in the same crime during Onam and Christmas holidays may wait for orders till the end of the said holidays, in case, if the learned Judge who has passed orders on the earlier application is not available for orders during those holidays or if he is not designated as a Vacation Judge.


e) In case if the subsequent bail application is filed by the same accused during summer vacation and if the learned Judge who passed earlier order is not available for orders or if he is not a designated Vacation Judge, the memo filed under section 8 of the High Court Act on behalf of the accused-applicant be listed before the learned Judge nominated to hear the bail applications during the summer vacation. However, the fact that an earlier bail application in the same crime is dismissed is to be brought to the notice of that Vacation Judge. The factor of listing the matter during summer vacation or refusing to do so can be decided by the learned Vacation Judge sitting in summer vacation.


f) If the learned Judge who passed order on the earlier bail application filed by the same accused in the same crime is sitting in the Division Bench, the subsequent application for bail may be brought to the notice of the Hon'ble the Chief Justice by the Registry so as to enable the Hon'ble the Chief Justice to make necessary arrangement to have a special sitting of the said learned Judge.


g) The counsel for the accused who is filing the subsequent application for bail in the same crime shall mention in the application seeking bail about the disposal of earlier bail application filed by this very accused. A copy of the order passed on such application earlier in respect of the same accused shall also be produced along with the second or successive bail applications.


h) It is the duty of the Public Prosecutor concerned to bring to the notice of the court, as far as possible, about the earlier bail application filed by the same accused as well as about any application filed by the coaccused in the same crime and the result thereof, either by filing the statement of objections or at least at the time of arguments on the bail application.


There is no provision for appeal from bail (the term has definite connotations in the statutory law and moving to higher forum is in some Supreme court judgment is loosely called appeals , for sake of convenience . Judgments are not meant to be read like a statute )


Supreme Court of India

Dinesh M.N. (S.P.) vs State Of Gujarat on 28 April, 2008

It has been fairly accepted by learned counsel for the parties that in some judgments the expression "appeal in respect of an order of bail" has been used in the sense that one can move the higher court.


Plea of medical ground by itself may not be sufficient if on other considerations grant of bail is not sufficient:-

Rajesh Ranjan Yadav @ Pappu Yadav vs Cbi Through Its Director on 30 November, 2007

It has also been argued that as the appellant was grossly overweight, he was required to undergo some invasive surgical process which required special care and nursing which could not be made available while the appellant remained in custody. Several documents in support of the appellant's medical condition have been handed over to us in Court.

We have also carefully gone through the appellant's medical papers that have been produced before us in court. We are of the opinion that they do not as of now justify his release on bail even on medical grounds the more so as all facilities are being made available to him by the jail authorities. DELAY IN DISPOSAL OF APPEAL IS ONE OF THE FACTORS TO BE CONSIDERED:


Supreme Court of India

Kashmira Singh vs The State Of Punjab on 2 September, 1977

so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and- sentence. (if court cannot release accused , it must decide his appeal expeditiously)



DELAY OF TRIAL CAN ALSO BE AN IMPORTANT FACTOR :

Supreme Court of India

Dr.Vinod Bhandari vs State Of M. P on 4 February, 2015

It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time.



BAIL CAN BE GRANTED TO APPROVER UNDER SECTION 482 OF THE CrPC :


Delhi High Court

Prem Chand vs State on 30 November, 1984

Equivalent citations: 1985 (1) Crimes 99, 27 (1985) DLT 256

The crucial questions raised from the side of the petitioner are whether the provisions of Section 306(4)(b) in all their rigidity can be treated as constitutionally valid, and further whether in the exercise of inherent powers under Section 482 Cr.P.C., the Court can release an approver during the course of trial when it is in the ends of justice and his detention amounts to abuse of process of Court. (It was answered in affirmative)

In the case Stale of Karnataka v. L. Muniswamy and others, , it has been observed as under : "THE ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient juisdiction."

The power available under this provision is notwithstanding anything else contained in the Code. In case the High Court is satisfied that an order needs to be made to prevent abuse of the process of any court, or otherwise to secure the ends of justice, the inherent powers are available, and they are not limited or affected by anything else contained in the Code. We are not oblivious that these powers have not to be ordinarily invoked where specific provisions are contained in the Code or specific prohibitions enacted. However, in cases where the circumstances un-mitigating bring out that a grave injustice is being done, and an abuse of process of court is taking place either as. a result of the acts of the accused or the unavoidable procedural delays in the courts, we are of the firm opinion that the inherent powers should and need to be exercised. The approver's evidence in the present case has already been recorded, and no useful purpose is being served in his detention. The administration of justice is not in any manner likely to be affected by his release. There is no reason to suppose that the machinery of law would not be able to give protection to the petitioner in case any adventurism is sought to be displayed by his confederates, or their supporters. The conduct of the petitioner in seeking his release itself shows that the carries no apprehensions. It would not be, therefore, correct for the court to still create such fears and profess to provide him unsolicited protection by detaining him for indefinite period. Thus in the case of A.L. Mehra the Punjab High Court released the approver from confinement in exercise of inherent powers to prevent the abuse of the process of court, finding that he had been in confinement for several months. Similarly the Madras High Court in the case Karuppa Servai laid emphasis on the detention of an approver till he has deposed at the trial in the Sessions court truly and fully to matters within his knowledge.

We are further of the opinion that there is no rational basis for inflexible classification of approvers who are in detention, and those who because of fortuitous circumstances happen to be on bail at the time of grant of pardon A person being granted bail and still not in detention are not considered in law as incompatible. So far as allurement of release if allowed pardon, it is inherently there in any pardon. As such too much of significance and rigidity need not be attached to time factor. Moreover, a witness, even though an accomplice need not be detained for more than what is essential for procurement of or enabling him to give his evidence. His personal liberty can, therefore, be curtailed, if at all, for beneficial ends of administration of justice, and once they are served, his further detention becomes irrelevant. This detention till that earlier stage, may also be considered proper to avoid creation of the impression of too ready an approver to serve his personal end of immediate or early let off even in cases where the involvement of the other accused in that crime may turn out to be doubtful. The existence of the provision of detention thus may serve as a damper to opportunists who may be too keen to oblige the police, and also prevent a possible abuse of this process as a short-cut by investigating agencies when they find no other evidence available or dubiously seek to involve innocent persons.

RECORDING OF REASONS MANDATORY :

Supreme Court of India

Gajanand Agarwal vs State Of Orissa & Ors on 18 September, 2006


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. (Other circumstances are the same guidelines and factors for grant of bail referred above)

GUIDELINES FOR CANCELLATION OF BAIL: (VERY IMPORTANT)



In Panchanan Mishra vs. Digambar Mishra, 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."



general guidelines :

It is well settled that the grounds for cancellation of bail under Section 437(5) and 439(2) of the Code are identical, namely, bail granted under Section 437(1) or 439(1) of the Code can be cancelled broadly when one or more of the following conditions are fulfilled:


(i) The accused misuses his liberty by indulging in similar activity,


(ii) Interferes with the Course of investigation,


(iii) Attempts to tamper with the evidence,


(iv) Threaten witnesses or indulges in similar activities which would hamper smooth investigation,


(v) There is liklihood of the accused fleeing away to another country.


(vi) Attempts to make himself scare by going underground or becoming unavailable to the Investigating Agency,


(vii) Attempts to place himself beyond the reach of the surety,


(viii) Bail has been granted by an inferior Court in a case involving serious offence shocking to the conscience of the superior Courts


(ix) After investigation the facts disclose commission of graver offence.


The grounds referred to above are illustrative and not exhaustive.



Supreme Court of India

Aslam Babalal Desai vs State Of Maharashtra on 15 September, 1992


Sections 437(5) and 439(2) are identical, namely, bail granted under Sections 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of invistigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.


In Dinesh M.N. (S.P) v. State of Gujarat {2008 (5) SCC 66}, the three Judge bench of the Apex Court held that 19 MSM,J Crl.P.No.6659/2018 where the Court admits the Accused to bail by taking into consideration irrelevant materials and keeping out of consideration the relevant materials the order becomes vulnerable and such vulnerability warrants annulment of the order.



Supreme Court of India

Dolat Ram vs State Of Haryana on 24 November, 1994


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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted.

SOME SPECIAL DIRECTIONS BY DELHI HIGH COURT:


Delhi High Court

Court On Its Own Motion vs Central Bureau Of Investigation on 28 January, 2004

Equivalent citations: 109 (2003) DLT 494


Directions to the Police/Investigating Agencies like CBI etc.:


(1) Investigating Officer, be of police station or special agency like CBI shall not arrest any person accused of having committed a cognizable and non-bailable offence until it is very necessary for the purpose of investigation or custodial interrogation say for recovering incriminating articles or weapons of offence or eliciting information as to his accomplices etc. or for any other purpose that may help in gathering evidence to prove his guilt.


(2) Arrest should always be avoided if the investigation can be completed even otherwise and the accused gives full co-operation in completing the investigation.


(3) Arrest may be necessary, if the offence alleged is of grave nature and prescribes severe punishment and there is a likelihood of an offender either absconding or not appearing on being summoned or his fleeing away from justice or judgment.


Directions for Criminal Courts :


(i) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.


(ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.


(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.


(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.


(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.


(vi) That the Court shall always keep the mandatory provisions of Section 440, Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be "excessive" amount and take into consideration the financial condition, the nature of offence and other conditions, as "Excessive" amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less.


Principles that govern the grant of refusal of bail in other kinds of cases and shall be followed in letter and spirit are as under:

(a) bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it prescribed by law is of extreme severity;


(b) bail may be refused when the Court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;


(c) bail may be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being;


(d) bail may be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and


(e) bail may be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail;


(f) similarly, the Court shall not while releasing a person on bail put any condition, say in the form of deposit of extra amount or FDR etc. of any amount which is beyond the conditions permissible under Section 439, Cr.P.C.


SPECIAL DIRECTION IN COVID CASES :


SUO MOTU WRIT PETITION (C) NO. 1/2020

IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS


To avoid overcrowding in prisons in the wake of COVID pandemic, the Supreme Court directed all states and Union Territories to set up high level committees to determine class of prisoners who could be released on parole for four to six weeks


Supreme Court observed that the prisoners convicted of or charged with offences having jail term of up to seven years can be given parole to decongest jails.


The bench suggested that the High-level committee will work in consultation with State Legal Service Authority for release of prisoners.


"We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum".

"Taking into consideration the possibility of outside transmission, we direct that the physical presence of all the undertrial prisoners before the Courts must be stopped forthwith and recourse to video conferencing must be taken for all purposes.


Also, the transfer of prisoners from one prison to another for routine reasons must not be resorted except for decongestion to ensure social distancing and medical assistance to an ill prisoner.


Also, there should not be any delay in shifting sick person to a Nodal Medical Institution in case of any possibility of infection is seen."

Expressing concern over the overcrowding of prisons, the top court had said that there are 1,339 prisons in the country housing approximately 4,66,084 inmates.


Quoting a report of the National Crime Records Bureau (NCRB), it had said the occupancy rate of Indian prisons is at 117.6 per cent, and in states such as Uttar Pradesh and Sikkim, the occupancy rate is as high as 176.5 per cent and 157.3 per cent respectively.


The apex court was of the view that like most other viral diseases, the susceptibility of COVID-19 is greater in overcrowded places, mass gatherings and studies indicate that contagious viruses such as COVID-19 proliferate in closed spaces such as prisons.

(On 23 March 2020, the Supreme Court of India (SC), in Writ Petition (Civil) No. 3/2020, took suo motu cognisance of the difficulties faced by litigants due to the rapidly escalating corona virus outbreak (COVID-19).


The SC pronounced an order under Article 142 of the Constitution of India extending the period of limitation with effect from 15 March 2020 till further order(s) are passed by the SC.

The extension applies to all proceedings such as the filing of petitions , applications , suits , appeals, in any court , tribunal ,forum in India, irrespective of the limitation prescribed under the general law or special law (either central or state), whether condonable or not.)


Delhi high court also had held

“in consideration of the lockdown, there will be no insistence on filing of signed/attested vakalatnama, affidavits, or applications where the applicant is in jail and/or his family members reside outside Delhi since bail is moved for the benefit of a person who is in jail. (ARISING OUT OF SLP (CRL.) NO.2433/2020)


S.KASI ...APPELLANT(S)


VERSUS

Suo motu extension of

STATE THROUGH

THE INSPECTOR OF POLICE The Court held that the suo moto order extending limitation cannot be interpreted as extending the limitation period under Section 167(2) CrPC.

The SC held that the reasoning of the HC that the lockdown was akin to a proclamation of emergency under Article 352 of the Constitution was not right. Even otherwise, the fundamental right to personal liberty under Article 21 cannot be suspended during emergency, the court noted. Therefore, the rights of the accused cannot be taken away.

"The order dated 23.03.2020 cannot be read to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of the Code of Criminal Procedure. The Investigating Officer could have submitted/filed the charge sheet before the (Incharge) Magistrate. Therefore, even during the lockdown and as has been done in so many cases the charge-sheet could have been filed/submitted before the Magistrate (Incharge) and the Investigating Officer was not precluded from filing/submitting the charge-sheet even within the stipulated period before the Magistrate (Incharge)", the Court said.

437 A a short note :- From the language of section 437-A, it is apparent that the said provision is applicable only in cases where the Trial Court acquits the accused and it would not be applicable on conviction of the accused. Though the section states that Trial Court may direct the accused to execute the P.R. Bond with sureties the said directions of execution of P.R. Bond with sureties will have to be treated as directory order and not mandatory order since the said provision will have to be read alongwith other provisions which are there in the Cr.P.C. viz. Sections 441, 445 and, therefore discretion would vest in the Trial Court of directing the accused to execute a P.R. Bond Illustrative general direction under 437A to secure his attendance before the appellate court :- illustrative general directions to secure presence of the accused at the time of granting release on bail :-


(i) Name and address of the Accused shall be taken on record at the time of pronouncement of Judgment by the Trial Court.

(ii) The accused should submit his local address where he would reside after Order of acquittal as well as address of his native place.

(iii) Declaration of place of residence should be made and proof of it, if any, may be supplied. No insistence should be made about proof of residence if particulars are given.

(iv) The accused - Respondent should furnish the addresses of his near and dear relatives.

(v) The Accused be also directed to not to leave India without the prior permission of this Hon'ble Court.

(vi) Under certain circumstances, the Accused be directed to furnish the details of his passport and/or passport be deposited with the prosecution agency for a period of six months.

(vii) The Accused may also be released on his executing the same P.R. Bond and Surety Bond if the Accused were on bail pending trial.

(viii) If the Accused is not on bail pending trial then he may be released forthwith on P.R. Bond and time be granted to him to furnish surety to the satisfaction of the Trial Court.

(ix) The Trial Court may also release the accused on cash bail in appropriate cases and they may be directed to furnish surety within a reasonable period. (vide Bombay High Court

Farooq Abdul Gani Surve vs The State Of Maharashtra on 17 October, 2011)


Case: Arnab Manoranjan Goswami vs. State of Maharashtra [Criminal Appeal No. 742 of 2020]


The court observed that the Bombay High Court failed to discharge its adjudicatory function at two levels – first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first.


The court said that the High Court must consider the following settled factors while considering an application for the grant of bail under Article 226 in a suitable case:


(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the State and other similar considerations.

The bench added that the High Court must exercise its power with caution and circumspection, cognizant of the fact that this jurisdiction is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC. It said:




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