top of page
Search
  • Writer's pictureLLC

Bail Part 2

GROUNDS FOR CANCELLATION OF BAIL ARE DIFFERENT THAN THOSE OF REJECTION and BURDEN OF PROOF REQUIRED:-


State (Delhi Admn.) v. Sanjay Gandhi, (1978) 2 SCC 411, observed that the cancellation of bail stands on a different footing from the rejection of bail. The Court held that the following grounds are available for cancellation of a bail already granted:


if the accused made an attempt to flee from justice;

if he tried to tamper with the evidence;

if supervening circumstances show that it would no longer be conducive to a fair trial to allow the accused to retain his freedom during the trial;

if the order granting bail was without jurisdiction;

if there was a wrongful exercise of power by the Magistrate in granting bail.

The burden which rests on the State in 'an application for cancellation of bail is of a limited nature. All that is necessary for the State to show, in support I of its plea that bail be cancelled, is that there is a reasonable apprehension that by tampering with witnesses, 95 5 the accused is interfering with the course of justice. It'is neither necessary to prove the fact of tampering with mathematical certainty nor indeed beyond a reasonable doubt. The test to be adopted in such matters is one of 'reasonable apprehension'.But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the same rigorous standard. Indeed, proof of facts by preponderance of probabilities as: in a civil case is not foreign to criminal jurisprudence.

He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused.


The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.

Bail on ground of compromise? whether allowed?


Supreme Court of India

Biman Chatterjee vs Sanchita Chatterjee & Anr on 10 February, 2004


Here we hasten to observe first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfilling the terms of such compromise does not arise. That apart non-fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law. Therefore, in our opinion, the High Court has erred in passing the impugned order.

Definition of custody :-


Supreme Court of India

Sundeep Kumar Bafna vs State Of Maharashtra & Anr on 27 March, 2014


The Corpus Juris Secundum under the topic of ‘Escape & Related Offenses; Rescue’ adumbrates that ‘Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of a person against his or her will, or of the exercise of control over another to confine the other person within certain physical limits or a restriction of ability or freedom of movement.’ This is how ‘Custody’ is dealt with in Black’s Law Dictionary, (9th ed. 2009):-


“Custody- The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man’s person by virtue of lawful process or authority.

The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term “custody” within statute requiring that petitioner be “in custody” to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty.

There is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. The complainant or informant or aggrieved party may, however, be heard at a crucial and critical juncture of the Trial so that his interests in the prosecution are not prejudiced or jeopardized. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbours the opinion that the prosecution is likely to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing.



Can bail be granted to person who surrenders before court :


Supreme Court of India

Niranjan Singh & Anr vs Prabhakar Rajaram Kharote & Ors on 10 March, 1980



When is a person in custody, within the meaning of s.439 Cr. P.C. ? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence.

In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe, enabled the accused persons to circumvent the principle of s. 439 Cr.P.C. We might have taken a serious view of such a course, indifferent to mandatory provisions by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but sitting under Art. 136 do not feel that we should interfere with a discretion exercised by the two courts below. How long can it take to dispose off bail petitions ? ordinarily within a week!


Supreme Court of India

Hussain And Anr vs Union Of India on 9 March, 2017


Delay in disposal of bail applications and cases where trials are stayed are priority areas for monitoring. Timeline for disposal of bail applications ought to be fixed by the High Court. As far as possible, bail applications in subordinate courts should ordinarily be decided within one week and in High Courts within two-three weeks. Posting of suitable officers in key leadership positions of Session Judges and Chief Judicial Magistrates may perhaps go a long way in dealing with the situation. Non performers/dead word must be weeded out as per rules, as public interest is above individual interest.In view of the above, we do consider it necessary to direct that steps be taken forthwith by all concerned to effectuate the mandate of the fundamental right under Article 21 especially with regard to persons in custody in view of the directions already issued by this Court. It is desirable that each High Court frames its annual action plan fixing a tentative time limit for subordinate courts for deciding criminal trials of persons in custody and other long pending cases and monitors implementation of such timelines periodically


In view of the above, we do consider it necessary to direct that steps be taken forthwith by all concerned to effectuate the mandate of the fundamental right under Article 21 especially with regard to persons in custody in view of the directions already issued by this Court. judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time.



To sum up:


(i) The High Courts may issue directions to subordinate courts that –


(a) Bail applications be disposed of normally within one week;


(b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;


(c) Efforts be made to dispose of all cases which are five years old by the end of the year;


(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;


(e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.



(ii) The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest;


(iii) The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts;


(iv) The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time;


(v) The High Courts may take such stringent measures as may be found necessary In view of judgment of this Court in Ex. Captain Harish Uppal versus Union of India, suspension of work or strikes (by lawyers ) are clearly illegal and it is high time that the legal fraternity realizes its duty to the society which is the foremost. Condolence references can be once in while periodically say once in two/three months and not frequently. Hardship faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on undertrials in custody on account of such avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps. In any case, this needs attention of all concerned authorities – the Central Government/State Governments/Bar Councils/Bar Associations as well as the High Courts and ways and means ought to be found out to tackle this menace. Consistent with the above judgment, the High Courts must monitor this aspect strictly and take stringent measures as may be required in the interests of administration of justice.


Whether accused on bail can be arrested by police on addition of offence without permission of court?



In the Supreme Court of India

Pradeep Ram v. State of Jharkhand and Another

Criminal Appeal Nos. 816-817 of 2019

Decided on July 1, 2019

Citation: 2019 SCC OnLine SC 825,AIR 2019 SC 3193


Supreme Court arrived at the following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:—

(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.

(ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody.

(iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offences or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.


THIS CASE IS ALSO REFERRED TT ANTHONY CASE :


Supreme Court has consistently laid down the law on the issue interpreting the Code, that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but it violates Article 21 of the Constitution. In T.T. Antony v. State of Kerala, (2001) 6 SCC 181, this Court has categorically held that registration of second FIR (which is not a cross-case) is violative of Article 21 of the Constitution. The following conclusion in paras 19, 20 and 27 of that judgment are relevant which read as under: (SCC pp. 196-97 & 200)

“19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of subsection (8) of Section 173 CrPC.

From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.

A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.”

In sexual offences hearing of complainant / informant mandatory : Refer Section 439 (1A)


In Miss G vs State it was held that trial courts were bound to hear victims of sexual offences before granting bail to the accused, the Delhi High Court has directed its Registrar General to again circulate the Practice Directions issued in this regard, to all the District & Sessions Judges for their compliance.

Reena Jha & Anr. Vs. Union of India & Ors, these practice directions were extended to POCSO Act cases and a direction was also issued to the District Judges, National Commission for Protection of Children Rights and State Commission for Protection of Children Rights to strictly comply with the same.


The Petitioner’s grievance was directed against a trial court order which released the accused on interim bail for one month without issuance of notice of the application.


The counsel for the Petitioner contended the trial court extended interim bail to the accused in a routine manner, without complying with the law.


It was stated that the order suffered from a procedural lapse as it was done without issuance of notice to the complainant of FIR/mother, thereby, denying the opportunity of being heard.The counsel pointed out that in terms of the amended Section 439 of the Code of Criminal Procedure, 1973, the presence of the informant or any person authorized, was obligatory at the time of hearing of the application for bail to the person under Sections 376/ 376(3)/ 376-AB/ 376-DA and 376-DB IPC


POSITION OF IMPOUNDING OF PASSPORTS:


Supreme Court of India

Suresh Nanda vs C.B.I on 24 January, 2008



In our opinion, even the Court cannot impound a passport. Though, no doubt, Section 104 Cr.P.C. states that the Court may, if it thinks fit, impound any document or thing produced before it, in our opinion, this provision will only enable the Court to impound any document or thing other than a passport. This is because impounding a passport is provided for in Section 10(3) of the Passports Act. The Passports Act is a special law while the Cr.P.C. is a general law. It is well settled that the special law prevails over the general law vide G.P. Singh's Principles of Statutory Interpretation (9th Edition pg. 133). This principle is expressed in the maxim Generalia specialibus non derogant. Hence, impounding of a passport cannot be done by the Court under Section 104 Cr.P.C. though it can impound any other document or thing.





Punjab-Haryana High Court


Capt. Anila Bhatia vs State Of Haryana on 9 October, 2018


No doubt, as per Section 102(1) of Criminal Procedure Code, the power of police officer is there to seize certain property. The police may have the power to seize a passport under Section 102(1) of the Criminal Procedure Code but it does not have the power to impound the same. Impounding of a passport can only be done by the passport authority under Section 10(3) of the Passports Act, 1967. There is a difference between seizing of a document and impounding a document. A seizure is made at a particular moment when a person or authority takes into his possession some property which was earlier not in his/her possession. Thus, seizure is done at a particular moment of time. However, if after seizing of a property or document, the said property or document is retained for some period of time, then such retention amounts to impounding of the property or document. In the Law Lexicon by P. Ramanath a Aiyar (2nd Edition), the word "impound" has been defined to mean "to take possession of a document or thing for being held in custody in accordance with law". Thus, the word "impounding" really means retention of possession of a good or a document which has been seized.

Hence, impounding of a passport cannot be done by the Court under Section 104 Criminal Procedure Code though it can impound any other document or thing.



BAIL IN UAPA CASES - SPECIAL STATUES WILL HAVE SPECIAL CONSIDERATIONS IN LAW OF BAIL :


Supreme Court of India

National Investigation Agency vs Zahoor Ahmad Shah Watali on 2 April, 2019


In the present case, however, we are called upon to consider the prayer for bail in the context of the purport of the proviso to Section 43D(5) of the 1967 Act which mandates that the accused person involved in the commission of offence referable to Chapters IV and VI of the 1967 Act shall not be released on bail or on bond. However, the Court may release such accused on bail only if it is of the opinion, on perusal of the case diary and/or the report made under Section 173 of Cr.P.C. that there are “no reasonable grounds” for believing that the accusation against such person is prima facie true.


Conversely, if in the opinion of the Court, there are reasonable grounds for believing that the accusation against such person is prima facie true, the question of granting bail would not arise as the bar under the first part of the proviso of no bail in such cases would operate.

The fact that there is a high burden on the accused in terms of the special provisions contained in Section 43D(5) to demonstrate that the prosecution has not been able to show that there exists reasonable grounds to show that the accusation against him is prima facie true, does not alter the legal position expounded in K. Veeraswami (supra), to the effect that the charge­sheet need not contain detailed analysis of the evidence. It is for the Court considering the application for bail to assess the material/evidence presented by the Investigating Agency along with the report under Section 173 of Cr.P.C. in its entirety, to form its opinion as to whether there are reasonable grounds for believing that the accusation against the named accused is prima facie true or otherwise.


The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. … What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea

By virtue of the proviso to sub­section (5) OF 43D, it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise.




Delhi High Court

Syed Mohd Zishan Ali vs The State (Nct Of Delhi) on 29 April, 2019


At the outset, we must observe that the relevant provision of the UAP Act, in relation to the grant or release on bail to an accused person is enunciated as a non-obstante clause, which clearly and unequivocally postulates that, if the Court is of the opinion that, there are reasonable grounds for believing that the accusations against such person are prima facie true, he shall not be released on bail. Further, the provision stipulates that the restrictions contained in Section 437 (1) Cr.PC, are also applicable. In the present case, it is an admitted position that the appellant is standing trial pursuant to the charges being framed against him under Sections 18, 18-B and 20 of the UAP Act. A perusal of the order on charge dated 6th March, 2018, leads to one inescapable conclusion, that of the prima facie involvement of the appellant in grave and serious offences, which attract a sentence that may extend to imprisonment for life upon conviction.

Furthermore, a perusal of the report under Section 173 Cr.PC filed against the appellant and the circumstance that, he was declared a Proclaimed Offender in the present proceedings, as well as, his propensity to furnish fabricated documents, suffice in our view to believe that, he represents a flight risk.



APPROACH IN NDPS ACT SECTION 37 ?

Section 37 in The Narcotic Drugs and Psychotropic Substances Act, 1985

1[37. Offences to be cognizable and non-bailable.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.]


IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 154­157 OF 2020

(Arising out of SLP(Crl.) No(s). 7309­7312 of 2019)

STATE OF KERALA ETC. …..APPELLANT

VERSUS

RAJESH ETC. ….RESPONDENT


The Supreme Court has observed that there cannot be liberal approach in the matter of bail in NDPS Cases.

Court has to record a finding mandated under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the same is a sine qua non (an essential condition) for granting bail to the accused under the NDPS Act.

"reasonable grounds" means something more than prima facie grounds. It said:

"It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." In the case ofAmit Ranjan vs Narcotic Control Bureau,AIROnline 2019 Del 1066, the Delhi High Court refused the grant of Anticipatory Bail even though the accused was being framed based on just disclosure by co-accused in the case. But since the court found bank transfers between the co-accused and the applicant as valid corroborative evidence, they denied Anticipatory Bail. Although in the same judgement it was reaffirmed by the Delhi High Court that Anticipatory Bail could be granted “when there is material on record to show that prosecution was inherently doubtful or where there is material on record to show that there is a possibility of false implication.” Saiyad Mohd. Saiyad Umar Saiyed & Ors. Vs. The State of Gujrat, 1995 SCC (3) 610 where it stated “ Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it “for the possession of which he fails to account satisfactorily “ OM Prakash v. State of H.P (decided on 10th july 2020) Principles in granting bail under section 37 when matters deals with commercial quantity of drugs:- The limitations on granting of bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549].

In case the Court proposes to grant bail, two conditions are to be mandatorily satisfied in addition to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738]. Apart from granting opportunity to the Public Prosecutor, the other twin conditions which really have relevance are the Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721].

The satisfaction contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substantial probable causes for believing and justifying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549] Twin conditions of S. 37 are cumulative and not alternative. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549]. f) If the statements of the prosecution witnesses are believed, then they would not result in a conviction. [ Babua v. State of Orissa, (2001) 2 SCC 566].

At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624]

While considering the application for bail concerning Section 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798].

In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705].

Bail must be subject to stringent conditions. [Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84]. JUDICIAL PRECEDENTS of Supreme Court ON S. 37 OF NDPS ACT to elaborate and elucidate the true scope of the guidelines so held :- In Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, a

three Judges Bench of Supreme Court holds,


"7. The limitations on granting of bail come in only when

the question of granting bail arises on merits. Apart from

the grant of opportunity to the public prosecutor, the

other twin conditions which really have relevance so far

the present accused-respondent is concerned, are (1)

the satisfaction of the Court that there are reasonable

grounds for believing that the accused is not guilty of the

alleged offence and that he is not likely to commit any

offence while on bail. The conditions are cumulative and

not alternative. The satisfaction contemplated regarding

the accused being not guilty has to be based for

reasonable grounds. In Satpal Singh v. State of Punjab, (2018) 13 SCC 813, a bench of

three judges of Supreme Court directed that since the quantity involved was

commercial, as such High Court could not have and should not have passed

the order under sections 438 or 439 CrPC, without reference to Section 37 of

the NDPS Act."

In Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705,

Supreme Court holds:-


"6. Section 37 as amended starts with a non-obstante

clause stating that notwithstanding anything contained

in the Code of Criminal Procedure, 1973 no person

accused of an offence prescribed therein shall be

released on bail unless the conditions contained therein

were satisfied. The Narcotic Drugs And Psychotropic

Substances Act is a special enactment as already noted

it was enacted with a view to make stringent provision

for the control and regulation of operations relating to

narcotic drugs and psychotropic substances. That being

the underlying object and particularly when the

provisions of Section 37 of Narcotic Drugs And

Psychotropic Substances Act are in negative terms

limiting the scope of the applicability of the provisions of

Criminal Procedure Code regarding bail, in our view, it

cannot be held that the High Court's powers to grant

bail under Section 439 Criminal Procedure Code are

not subject to the limitation mentioned under Section 37

of Narcotic Drugs And Psychotropic Substances Act.

The non-obstante clause with which the Section starts

should be given its due meaning and clearly it is

intended to restrict the powers to grant bail. In case of

inconsistency between Section 439 Criminal Procedure

Code and Section 37 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 Section 37 prevails."

In Babua v. State of Orissa, (2001) 2 SCC 566, Supreme Court holds,


In view of Section 37(1)(b) of the Act unless there

are reasonable grounds for believing that the accused

is not guilty of such offence and that he is not likely to

commit any offence while on bail alone will entitle him to

a bail. In the present case, the petitioner attempted to

secure bail on various grounds but failed. But those

reasons would be insignificant if we bear in mind the

scope of Section 37(1)(b) of the Act. At this stage of the

pression "reasonable

grounds" means something more than prima facie

grounds. It contemplates substantial probable causes

for believing that the accused is not guilty of the alleged

offence. The reasonable belief contemplated in the

provision requires existence of such facts and

circumstances as are sufficient in themselves to justify

satisfaction that the accused is not guilty of the alleged

Offence.


in case all that could be seen is whether the statements

made on behalf of the prosecution witnesses, if

believable, would result in conviction of the petitioner or

not. At this juncture, we cannot say that the accused is

not guilty of the offence if the allegations made in the

charge are established. Nor can we say that the

evidence having not been completely adduced before

the Court that there are no grounds to hold that he is

not guilty of such offence. The other aspect to be borne

in mind is that the liberty of a citizen has got to be

balanced with the interest of the society. In cases where

narcotic drugs and psychotropic substances are

involved, the accused would indulge in activities which

are lethal to the society. Therefore, it would certainly be

in the interest of the society to keep such persons

behind bars during the pendency of the proceedings

before the Court, and the validity of Section 37(1)(b)

having been upheld, we cannot take any other view.

In Bijando Singh v. Md. Ibocha, 2004(10) SCC 151, Supreme Court

holds,


3. Being aggrieved by the order of the Special Court

(NDPS), releasing the accused on bail, the appellant

moved the Guwahati High Court against the said order

on the ground that the order granting bail is contrary to

the provisions of law and the appropriate authority

never noticed the provisions of Section 37 of the

Narcotic Drugs And Psychotropic Substances Act. The

High Court, however, being of the opinion that if the

attendance of the accused is secured by means of bail

bonds, then he is entitled to be released on bail. The

High Court, thus, in our opinion, did not consider the

provisions of Section 37 of the Narcotic Drugs And

Psychotropic Substances Act.

In N.C.B.Trivandrarum v. Jalaluddin, 2004 Law Suit (SC) 1598,

Supreme Court observed,


3. ...Be that as it may another mandatory requirement

of Section 37 of the Act is that where Public Prosecutor

opposes the bail application, the court should be

satisfied that there are reasonable grounds for believing

that the accused is not guilty of such offence and he is

not likely to commit any offence while on bail. In the

impugned order we do not find any such satisfaction

recorded by the High Court while granting bail nor there

is any material available to show that the High Courtapplied its mind to these mandatory requirements of the

Act.

In Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798,

Supreme Court holds,


6. As the provision itself provides no person shall be

granted bail unless the two conditions are satisfied.

They are; the satisfaction of the Court that there are

reasonable grounds for believing that the accused is not

guilty and. that he is not likely to commit any offence

while on bail. Both the conditions have to be satisfied. If

either of these two conditions is not satisfied, the bar

operates and the accused cannot be released on bail.

7. The expression used in Section 37(1)(b)(ii) is

"reasonable grounds". The expression means

something more than prima facie grounds. It connotes

substantial probable causes for believing that the

accused is not guilty of the offence charged and this

reasonable belief contemplated in turn points to

existence of such facts and circumstances as are

sufficient in themselves to justify recording of

satisfaction that the accused is not guilty of the offence

charged.

8. The word "reasonable" has in law the prima facie

meaning of reasonable in regard to those

circumstances of which the actor, called on to act

reasonably, knows or ought to know. It is difficult to give

an exact definition of the word 'reasonable'. Stroud's

Judicial Dictionary, Fourth Edition, page 2258 states

that it would be unreasonable to expect an exact

definition of the word "reasonable'. Reason varies it, its

conclusions according to the idiosyncrasy of the

individual, and the times and circumstances in which he

thinks. The reasoning which built up the old scholastic

logic sounds now like the jingling of a child's toy. (See :

Municipal Corporation of Delhi v. M/s Jagan Nath Ashok

Kumar and another, (1987)4 SCC 497 and Gujarat

Water Supplies and Sewerage Board v. Unique

Erectors (Gujarat) Pvt Ltd and another [(1989)1 SCC

532].


10. The word 'reasonable' signifies "in accordance with

reason". In the ultimate analysis it is a question of fact,

whether a particular act is reasonable or not depends

on the circumstances in a given situation. (See :

Municipal Corporation of Greater Mumbai and another

v. Kamla Mills Ltd., 2003(4) RCR(Civil) 265 : (2003)6

SCC 315)."

11. The Court while considering the application for bail

with reference to Section 37 of the Act is not called

upon to record a finding of not guilty. It is for the limited

purpose essentially confined to the question of

releasing the accused on bail that the Court is called

upon to see if there are reasonable grounds for

believing that the accused is not guilty and records its

satisfaction about the existence of such grounds. But

the Court has not to consider the matter as if it is

pronouncing a judgment of acquittal and recording a

finding of not guilty.

12. Additionally, the Court has to record a finding that

while on bail the accused is not likely to commit any

offence and there should also exist some materials to

come to such a conclusion." In N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Supreme Court

holds,


9. ...The limitations on granting of bail come in only

when the question of granting bail arises on merits.

Apart from the grant opportunity to the Public

Prosecutor, the other twin conditions which really have

relevance so far as the present accused-respondent is

concerned, are: the satisfaction of the court that there

are reasonable grounds for believing, that the accused

is not guilty of the alleged offence and that he is not

likely to commit any offence while on bail. The

conditions are cumulative and not alternative. The

satisfaction contemplated regarding the accused being

not guilty has to be based on reasonable grounds. The

expression "reasonable grounds" means something

more than prima facie grounds. It contemplates

substantial probable causes for believing that the

accused is not guilty of the alleged offence. The

reasonable belief contemplated in the provision requires

existence of such facts and circumstances as are

sufficient in themselves to justify satisfaction that the

accused is not guilty of the alleged offence. In the casehand the High Court seems to have completely overlooked underlying object of Section 37.


In Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624,

Supreme Court holds,


14. We may, however, hasten to add that while

considering an application for bail with reference to

Section 37 of the Narcotic Drugs and Psychotropic

Substances Act, the Court is not called upon to record a

finding of 'not guilty'. At this stage, it is neither

necessary nor desirable to weigh the evidence

meticulously to arrive at a positive finding as to whether

or not the accused has committed offence under the

Narcotic Drugs And Psychotropic Substances Act. What

is to be seen is whether there is reasonable ground for

believing that the accused is not guilty of the offence(s)

he is charged with and further that he is not likely to

commit an offence under the said Act while on bail. The

satisfaction of the Court about the existence of the said

twin conditions is for a limited purpose and is confined

to the question of releasing the accused on bail.

In Union of India v. Niyazuddin & Anr, (2018) 13 SCC 738, Supreme

Court holds,


7. ...Section 37 of the NDPS Act contains special

provisions with regard to grant of bail in respect of

certain offences enumerated under the said Section.

They are :- (1) In the case of a person accused of an

offence punishable under Section 19, (2) Under Section

24, (3) Under Section 27A and (4) Of offences involving

commercial quantity. The accusation in the present

case is with regard to the fourth factor namely,

commercial quantity. Be that as it may, once the Public

Prosecutor opposes the application for bail to a person

accused of the enumerated offences under Section 37

of the NDPS Act, in case, the court proposes to grant

bail to such a person, two conditions are to be

mandatorily satisfied in addition to the normal

requirements under the provisions of the Cr.P.C. or any

other enactment. (1) The court must be satisfied that

there are reasonable grounds for believing that the

person is not guilty of such offence; (2) that person is

not likely to commit any offence while on bail.

8. There is no such consideration with regard to the

mandatory requirements, while releasing the respondents on bail.

9. Hence, we are satisfied that the matter needs to be

considered afresh by the High Court. The impugned

order is set aside and the matter is remitted to the High

Court for fresh consideration. It will be open to the

parties to take all available contentions before the High

Court.


In Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84, in the

given facts, Supreme Court granted bail, by observing,


10. The prosecution story is that the appellant was

aware of what his brother was doing and was actively

helping his brother. At this stage we would not like to

comment on the merits of the allegations levelled

against the present appellant. But other than the

few WhatsApp messages and his own statement which

he has resiled from, there is very little other evidence.

At this stage it appears that the appellant may not have

even been aware of the entire conspiracy because even

the prosecution story is that the brother himself did not

know what was loaded on the ship till he was informed

by the owner of the vessel. Even when the heroin was

loaded in the ship it was supposed to go towards Egypt

and that would not have been a crime under the NDPS

Act. It seems that Suprit Tiwari and other 7 crew

members then decided to make much more money by

bringing the ship to India with the intention of disposing

of the drugs in India. During this period the Master

Suprit Tiwari took the help of Vishal Kumar Yadav and

Irfan Sheikh who had to deliver the consignment to

Suleman who had to arrange the money after delivery.

The main allegation made against the appellant is that

he sent the list of the crew members after deleting the

names of 4 Iranians and Esthekhar Alam to Vishal

Kumar Yadav and Irfan Sheikh through WhatsApp with

a view to make their disembarkation process easier.

Even if we take the prosecution case at the highest, the

appellant was aware that his brother was indulging in

some illegal activity because obviously such huge

amount of money could not be made otherwise.

However, at this stage it cannot be said with certainty

whether he was aware that drugs were being smuggled

on the ship or not, though the allegation is that he made

such a statement to the NCB under Section 67 of the

NDPS Act.

11. At this stage, without going into the merits, we feel

that the case of the appellant herein is totally different

from the other accused. Reasonable possibility is there

that he may be acquitted. He has been behind bars since his arrest on 04.08.2017 i.e. for more than 2 years

and he is a young man aged about 25 years. He is a

B.Tech Graduate. Therefore, under facts and

circumstances of this case we feel that this is a fit case

where the appellant is entitled to bail because there is a

possibility that he was unaware of the illegal activities of

his brother and the other crew members. The case of

the appellant is different from that of all the other

accused, whether it be the Master of the ship, the crew

members or the persons who introduced the Master to

the prospective buyers and the prospective buyers.

12. We, however, feel that some stringent conditions

will have to be imposed upon the appellant.


BAIL IN PMLA CASES : economic offences are considered serious offences.



Supreme Court of India

Rohit Tandon vs The Enforcement Directorate on 10 November, 2017


As per section 45 of PMLA, while considering grant of bail to accused, the court has to satisfy that:­ i. There are reasonable grounds for believing that accused is not guilty of such offence and that ii. He is not likely to commit any offence, while on bail.


In the present case, accused has failed to satisfy this court that he is not guilty of alleged offence punishable under section 3 of PMLA. He has not been able to discharge the burden as contemplated under section 24 of the Act.

Accused is alleged to have been found involved in a white collar crime. The alleged offence was committed by accused in conspiracy with other co-­accused persons in a well planned and thoughtful manner. It has been observed in a catena of decisions by Hon’ble Superior Courts that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public, funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.”



Court reiterated as follows:


34. “We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is a sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45­A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure.” The decisions of this Court in the case of Subrata Chattoraj Vs. Union of India, Y.S. Jagan Mohan Reddy Vs. CBI , and Union of India Vs. Hassan Ali Khan have been noticed in the aforesaid decision.

The consistent view taken by this Court is that economic offences having deep­rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Further, when attempt is made to project the proceeds of crime as untainted money and also that the allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifts on the accused persons under Section 24 of the Act of 2002.

(That the Hon'ble Supreme Court in the case of Nikesh Tarachand Shah vs. Union of India & Anr., Writ Petition (Criminal) No. 67 OF 2017 had struck down Section 45(1) of the Prevention of Money Laundering Act, 2002 nsofar as it imposes two further conditions for release on bail, for the offences punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the PMLA is involved, to be unconstitutional as it is violative of the fundamental rights.)

Section 45 of the PMLA Act provides that no person can be granted bail for any offence under the Act unless the public prosecutor, appointed by the Government, gets a chance to oppose his bail. If the public prosecutor does so, the court has to be convinced that the accused was not guilty of the crime and additionally that they were not likely to commit any offence while out on bail. The excessive bail conditions imposed by Section 45 had been previously set aside in November, 2017 by the Supreme Court of India on grounds of unconstitutionality.

In a move to remove the vice of PMLA proceedings from those in scheduled offences pursued by other agencies, an amendment has been brought to  Section 45(1) which proposes uniform applicability of bail conditions, instead of only those crimes listed in its schedule that attract more than three years’ imprisonment. The amendment reads, “[It] is clarified that the expression ‘offences’ to be cognisable and non-bailable shall mean to have always meant that all offences under the Act shall be cognisable notwithstanding anything to the contrary contained in the Code of Criminal Procedure.”

BAIL TO JUVENILES :


Allahabad High Court

Raju @ Ashish vs State Of U.P. & Another on 7 July, 2018


(A juvenile has to be released on bail unless the court has a reasonable ground to believe that his release will bring him into association of some known criminal, or will expose him to moral, physical or psychological danger or his release would defeat the ends of justice. Therefore Court said that while rejecting the bail application of such juvenile, it cannot be the criteria that the alleged offence is of serious and heinous nature. The order must show that the grant of bail to the juvenile-accused is against his interest as there is possibility of his being associated with known criminals, or there is some short of moral, physical or psychological danger to him or there is likelihood of end of justice being defeated. All these conditions have been incorporated in law in order to ensure justice to the juvenile.)


Under the Act, as it now stands there is further guidance much more than what was available under the Act, 2000 carried in the provisions of Section 15 and 18 above extracted and the definition of certain terms used in those sections. A reading of Section 18 of the Act shows that the case of a child below the age of 16 years, who has committed a heinous crime as defined in the Act is made a class apart from cases of petty offence or the serious offence committed by a child in conflict with the law/juvenile of any age, and, it is further provided that various orders that may be made by the Board as spelt out under clause (g) of Section 15 depending on nature of the offences, specifically the need for supervision or intervention based on circumstances as brought out in the social investigation report and past conduct of the child. Though orders under Section 18 are concerned with final orders to be made while dealing with the case of a juvenile, the same certainly can serve as a guide to the exercise of power to grant bail to a juvenile under Section 12(1) of the Act which is to be exercised by the Board in the first instance.

Read in the context of the fine classification of juveniles based on age vis-a-vis the nature of the offence committed by them and reference to a specifically needed supervision or intervention, the circumstances brought out in the social investigation report and past conduct of the child which the Board may take into consideration, while passing final orders under Section 18 of the Act it is, in the opinion of this court, a good guide for the Board while exercising powers to grant bail to go by the same principles though embodied in Section 18 of the Act, when dealing with a case under the last part of the proviso to Section 12 (1) that authorizes the Board to deny bail on ground that release of the juvenile would "defeat the ends of justice."


Thus, it is no ultimate rule that a juvenile below the age of 16 years has to be granted bail and can be denied the privilege only on the first two of the grounds mentioned in the proviso, that is to say, likelihood of the juvenile on release being likely to be brought in association with any known criminal or in consequence of being released exposure of the juvenile to moral, physical or psychological danger. It can be equally refused on the ground that releasing a juvenile, that includes a juvenile below 16 years would "defeat the ends of justice." In the opinion of this Court the words "defeat the ends of justice" employed in the proviso to Section 12 of the Act postulate as one of the relevant consideration, the nature and gravity of the offence though not the only consideration in applying the aforesaid part of the disentitling legislative edict. Other factors such as the specific need for supervision or intervention, circumstances as brought out in the social investigation report and past conduct of the child would also be relevant that are spoken of under Section 18 of the Act.

Going by the aforesaid principle it cannot be said that bail to a juvenile can be denied on the first two grounds mentioned in the proviso alone or that the 3rd ground that speaks about the result of release being to defeat the ends of justice would have no reference to the nature and gravity of the offence. Its impact on the society certainly deserves some consideration of the prosecution case prima facie. Of course, other facts such as specific need for supervision or intervention or circumstances brought out in the social investigation report and past conduct of the child would also be relevant that find mention in Section 18 of the Juvenile Justice Act. Differences between JJ System and Criminal Justice System


Pre-trial Processes Filing of FIR:


Criminal Justice System: The system swings into action upon receipt of information (oral or written) by the officer in charge of a police station with regard to the commission of a cognizable offence.


JJ System: Rule 11(11) of the JJ Rules, 2007 states that the Police are not required to file an FIR or a charge-sheet while dealing with cases of juveniles in conflict with the law. Instead, they must only record the information of the offence in the general daily diary, followed by a report containing the social background of the juvenile, circumstances of the apprehension and the alleged offence.


An FIR is necessary only if the juvenile has (i) allegedly committed a serious offence like rape or murder, or (ii) has allegedly committed the offence with an adult.


Investigation and Inquiry:


Criminal Justice System: Ss. 156 and 157, CrPC deals with the power and procedure of police to investigate cognizable offences. The police may examine witnesses and record their statements. On completion of the investigation, the police officer is required to submit a Final Report to the Magistrate u/s 173(2).


JJ System: The system contemplates the immediate production of the apprehended juvenile before the JJ Board, with little scope for police investigation. Before the first hearing, the police is only required to submit a report of the juvenile’s social background, the circumstances of apprehension and the alleged offence to the Board (Rule 11(11)). In cases of a non-serious nature, or where apprehension of the juvenile is not in the interests of the child, the police are required to intimate his parents/guardian that the details of his alleged offence and his social background have been submitted to the Board (Rule 11(9)). Arrest Criminal Justice System: Arrest of accused persons is regulated under Chapter V of the CrPC. The police are empowered to arrest a person who has been accused of a cognizable offence if the crime was committed in an officer’s presence or the police officer possesses a reasonable suspicion that the crime was committed by the accused. Further, arrest may be necessary to prevent such person from committing a further crime; from causing disappearance or tampering with evidence and for proper investigation (S.41). Persons accused of a non-cognizable offence may be arrested only with a warrant from a Magistrate (S.41(2)).


JJ System: The JJ Rules provide that a juvenile in conflict with the law need not be apprehended except in serious offences entailing adult punishment of over 7 years (Rule 11(7)). As soon as a juvenile in conflict with the law is apprehended, the police must inform the designated Child/Juvenile Welfare Officer, the parents/guardian of the juvenile, and the concerned Probation Officer (for the purpose of the social background report) (S.13 & R.11(1)). The juvenile so apprehended is placed in the charge of the Welfare Officer. It is the Welfare Officer’s duty to produce the juvenile before the Board within 24 hours (S. 10 & Rule 11(2)). In no case can the police send the juvenile to lock up or jail, or delay the transfer of his charge to the Welfare Officer (proviso to S.10 & R.11(3)). Bail Criminal Justice System: Chapter XXXIII of the CrPC provides for bails and bonds. Bail may be granted in cases of bailable and non-bailable offences in accordance with Ss. 436 and 437 of the CrPC. Bail in non- bailable offences may be refused if there are reasonable grounds for believing that the person is guilty of an offence punishable with death or imprisonment for life, or if he has a criminal history (S.437(1)). JJ System: A juvenile who is accused of a bailable or non-bailable offence “shall” be released on bail or placed under the care of a suitable person/institution. This is subject to three exceptions: (i) where his release would bring him into association with a known criminal, (ii) where his release would expose him to moral, physical or psychological danger, or


(iii) where his release would defeat the ends of justice. Even where bail is refused, the juvenile is to be kept in an observation home or a place of safety (and not jail).


Trial and Adjudication The trial of an accused under the criminal justice system is governed by a well laid down procedure the essence of which is clarity of the charge brought against the accused; the duty of the prosecution to prove the charge by reliable and legal evidence and the presumption of innocence of the accused. Culpability is to be determined on the touchstone of proof beyond reasonable doubt but if convicted, punishment as provided for is required to be inflicted with little or no exception. The accused is entitled to seek an exoneration from the charge(s) levelled i.e. discharge (amounting to an acquittal) mid course.


JJ System: Under S.14, whenever a juvenile charged with an offence is brought before the JJ Board, the latter must conduct an ‘inquiry’ under the JJ Act. A juvenile cannot be tried with an adult (S.18).


Determination of the age of the juvenile is required to be made on the basis of documentary evidence (such as birth certificate, matriculation certificate, or Medical Board examination).


The Board is expected to conclude the inquiry as soon as possible under R.13. Further, the Board is required to satisfy itself that the juvenile has not been tortured by the police or any other person and to take steps if ill-treatment has occurred. Proceedings must be conducted in the simplest manner and a child-friendly atmosphere must be maintained (R.13(2)(b)), and the juvenile must be given a right to be heard (clause


(c)). The inquiry is not to be conducted in the spirit of adversarial proceedings, a fact that the Board is expected to keep in mind even in the examination of witnesses (R.13(3)). R.13(4) provides that the Board must try to put the juvenile at ease while examining him and recording his statement; the Board must encourage him to speak without fear not only of the circumstances of the alleged offence but also his home and social surroundings. Since the ultimate object of the Act is the rehabilitation of the juvenile, the Board is not merely concerned with the allegations of the crime but also the underlying social causes for the same in order to effectively deal with such causes.


The Board may dispense with the attendance of the juvenile during the inquiry, if thought fit (S. 47). Before the Board concludes on the juvenile’s involvement, it must consider the social investigation report prepared by the Welfare Officer (R.15(2)).


The inquiry must not prolong beyond four months unless the Board extends the period for special reasons due to the circumstances of the case. In all non-serious crimes, delay of more than 6 months will terminate the trial (R.13(7)).


Sentencing: The Board is empowered to pass one of the seven dispositional orders u/s 15 of the JJ Act: advice/admonition, group counseling, community service, payment of fine, release on probation of good conduct and placing the juvenile under the care of parent or guardian or a suitable institution, or sent to a Special home for 3 years or less. Where a juvenile commits a serious offence, the Board must report the matter to the State Govt. who may keep the juvenile in a place of Safety for not more than 3 years. A juvenile cannot be sentenced to death or life imprisonment.


Post-trial Processes JJ System: No disqualification attaches to a juvenile who is found to have committed an offence. The records of his case are removed after the expiry of period of appeal or a reasonable period.


S. 40 of the JJ Act provides that the rehabilitation and social reintegration of the juvenile begins during his stay in a children’s home or special home. “After-care organizations” recognized by the State Govt. conduct programmes for taking care of juveniles who have left special homes to enable them to lead honest, industrious and useful lives.




1. FIR and charge-sheet in respect of juvenile offenders is filed only in ‘serious cases’, where adult punishment exceeds 7 years.


2. A juvenile in conflict with the law is not “arrested”, but “apprehended”, and only in case of allegations of a serious crime.


3. Once apprehended, the police must immediately place such juvenile under the care of a Welfare Officer, whose duty is to produce the juvenile before the Board. Thus, the police do not retain pre- trial custody over the juvenile.


4. Under no circumstances is the juvenile to be detained in a jail or police lock-up, whether before, during or after the Board inquiry.


5. Grant of Bail to juveniles in conflict with the law is the Rule.


6. The JJ board conducts a child-friendly “inquiry” and not an adversarial trial. This is not to say that the nature of the inquiry is non-adversarial, since both prosecution and defence submit their cases. Instead, the nature of the proceedings acquires a child-friendly colour.


7. The emphasis of criminal trials is to record a finding on the guilt or innocence of the accused. In case of established guilt, the prime object of sentencing is to punish a guilty offender. The emphasis of juvenile ‘inquiry’ is to find the guilt/innocence of the juvenile and to investigate the underlying social or familial causes of the alleged crime. Thus, the aim of juvenile sentencing is to reform and rehabilitate the errant juvenile.


8. The adult criminal system does not regulate the activities of the offender once s/he has served the sentence. Since the JJ system seeks to reform and rehabilitate the juvenile, it establishes post- trial avenues for the juvenile to make an honest living. (vide - Dr. Subramanian Swamy And Ors vs Raju Thr.Member Juvenile Justice ... on 28 March, 2014)



Under which circumstances the court can cancel the bail granted to accused even when there are no supervening circumstances? The State (NCT of Delhi) Vs. Sanjeev Kumar Chawla decided on 06.05.2020


1.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. 2.Once the court deems it appropriate to grant bail to an accused and thus, allow him some freedom through the concession of bail during trial, it would require very cogent and overwhelming circumstances for the court to withdraw that concession. 3.It is settled that once bail granted should not be cancelled in a mechanical manner without considering any supervening circumstances which is not conducive to fair trial. It cannot be cancelled on a request from the side of the complainant/investigating agency unless and until it is established that the same is being misused and it is no longer conducive in the interest of justice to allow the accused any further to remain on bail. 4.The principles that can be gleaned from Supreme Court judgments to guide the courts in such situations may be illustratively stated as below:-


a) Where the court granting bail ignores relevant material and takes into account irrelevant material of substantial nature and not trivial nature;


b) Where the court granting bail overlooks the position of the accused qua the victim especially if the accused is in some position of authority such as a policeman and there is prima facie, a misuse of position and power, including over the victim;


c) Where the court granting bail ignores the past criminal record and conduct of the accused while granting bail;


d) Where bail has been granted on untenable grounds;


e) Where the order granting bail suffers from serious infirmities resulting in miscarriage of justice;


f) Where the grant of bail was not appropriate in the first place, given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified;


g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case. Delhi High Court - As A General Rule, Copy of The Jail Superintendent's Report Must Be Given To The Bail Applicant


Petitioner complained that : '...it has become a trend before the trial courts not to supply the copy of status report/report by the jail superintendent/ reply filed on behalf of the prosecution in response to the bail applications filed by the accused persons under section 437 CrPC, 438 CrPC and 439 CrPC, thereby not only violating Article 21 and 22 of the Constitution but also the principles of Natural Justice.'

Delhi High Court held :- "Ordinarily, as a general rule, it ought to be kept in mind by the Courts that whenever any report is called for from the Jail Superintendent and is given to the Court either directly or through APP, copy thereof should be given to the applicant of the bail application. Whenever such copy is not supplied to the applicant of the application under Code of Criminal Procedure, especially under Sections 437, 438 and 439 of the Code of Criminal Procedure, then reasons will be recorded by the Court in the order. In fact of the present case the report of the Investigating Officer as well as of the Jail Superintendent should be given to the Court in advance. Similarly, copies of these reports should also be given to the accused/applicant in advance so that they can

also defend their case effectively and efficiently in the Court of law."



Can Court can direct convict to perform community service, meditative drill while releasing him on bail during pendency of appeal? Answer : Yes , if facts and circumstances show the chances of redemption .

Criminal Appeal No(s).196/2018

PRAHLADBHAI JAGABHAI PATEL Vs THE STATE OF GUJARAT

in Babu Singh and others vs. State of U.P . (1978) 1 SCC 579

“19. A few other weighty factors deserve reference.

All deprivation of liberty is validated by

social defense and individual correction along an

anti-criminal direction. Public justice is central

to the whole scheme of bail law. Fleeing justice

must be forbidden but punitive harshness should be

minimised. Restorative devices to redeem the man,

even through community service, meditative drill,

study classes or other resources should be innovated,

and playing foul with public peace by tampering

with evidence, intimidating witnesses or

committing offences while on judicially sanctioned

“free enterprise”, should be provided against. No

seeker of justice shall play confidence tricks on

the Court or community. Thus, conditions may be

hung around bail orders, not to cripple but to

protect. Such is the holistic jurisdiction and humanistic

orientation invoked by the judicial discretion

correlated to the values of our Constitution.”

It could, thus, be seen that this Court has held that punitive

harshness should be minimized and restorative devises to redeem the man, even through community service, meditative drill, etc. should be innovated. We, therefore, find that it will be appropriate in the circumstances to direct the release of the appellants on bail. While doing so, we also find appropriate that the appellants be directed to engage in any spiritual programme or to do some social/community services.


How to appreciate evidence of a victim of sexual assault while considering bail application of accused?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

Date: 21st JULY 2020 Jitin Mothukiri Vs. The State of Maharashtra

There cannot be a straight jacket formula as to how a

woman will react to an act of outrage by a male, since all

women are borne into different circumstances in life, go

through different things and faces, experience and react

differently and necessarily each woman would turn out to be

different from the other. The concept of consent of the victim

or as to at what stage the consent was revoked and the act of

physical indulgence was attempted to be restrained is a matter

of trial. The long lived notion as expressed in the words of

Warren Buffet - “If a lady says No, she means may be” or in

the expression of Rich Santos for Marie Claire - “Most of us

guys have been there; the night ends, we invite the girls come

home with us. When a girl says no, we launch into our second

and third attempts. Sadly, these attemps are filled with

incentives such as promise of guitar playing, of 'fabulas

chicken tenders at the dinner by my place' or even promises:

'I will definitely call on the next day' etc; I have taken girls

home after long discussions, changing Nos to Yeses” are the

old hat tricks and the issue as to whether the girl really

consented freely for a physical indulgence with her is to be

searched by applying the new standards of modern life and the

present social scenario. The freedom guaranteed to a woman to

continue with her bodily integrity and autonomy, free from

sexual violence are the emerging concepts which will have to be

traversed during the course of a trial. This can all be

established during the course of the trial by evaluating the

version of the victim in the backdrop of the psychological

framework, which would be expounded through a trial.


Comments


bottom of page