Sunday, January 18, 2015

BAIL JURISPRUDENCE


Index

1.      General Meaning of Bail
2.      What are the circumstances under which Bail is taken
3.      Incidental Applications to Bail Application
4.      How Bail is taken
5.      What papers are required by Surety to stand as a Surety for the accused person
6.      Important grounds to seek Bail, as may be applicable, would always depend upon
7.      Release of Accused on execution of Bail Bond / Personal Release Bond
8.      SC binding guidelines before effecting Arrest
9.      SC binding guidelines after effecting Arrest
10.  Important judgments pertaining to grant of Bail / Anticipatory Bail / limited powers of arrest of Police
11.  Critical observations of Apex Court in the case of Sanjay Chandra versus CBI (2012) 1 SCC 40 (2G scam case), where in the Court extensively dealt with the issue of granting or refusing the grant of Bail, that is, circumstances under which only Bail should be refused, and ordinarily, as a general rule, Bail should be given.
12.  Factors relevant for rejecting bail in a non-bailable case and cancellation of bail already granted:
13.  Amount of Bail / Bond
14.  Factors to be considered by the Magistrate concerned while granting / refusing Bail – Some observations of the Apex Court / Bombay HC judgments
15.  Recording of Reasons while refusing Bail
16.  Section 172: Police Diary
17.  Section 167: Remand to Police Custody
18.  Legal options when Police illegally arrest


1. General Meaning of Bail:

The personal liberty of the person is secured by obtaining “Bail” in the form of, either furnishing “surety” or by “depositing of certain cash amount” in lieu of Surety, or by “executing a Personal Release Bond”, before the Court / Officer In-Charge of the Police station, thereby securing to the Court / Police that the person seeking the release, would make himself present during the trial of the offence for which he is alleged to have committed.

The Criminal law machinery is set into motion when a person makes a complaint to the Police station (under section 154 of CrPC) or when he makes a private complaint to the Magistrate (under section 200 of CrPC) or the Magistrate takes cognizance of any offence on its own (under section 190 of CrPC). Also, the Police officer (under section 157 of CrPC), on the basis of information he has received, is empowered to take cognizance of commission of an offence, on its own. Also, the Constitutional courts of India, i.e. High Courts and Supreme Court are empowered to direct investigation of any case by CBI, and set the criminal law into motion.

When a cognizable offence is alleged to have been committed and a FIR is thus filed (under section 154 of CRPC) before the Police station, naming a person therein having committed that offence, the designated Police officer may arrest and detain that person (sections 41, 41A, 41B, 41C, 41D of CrPC), but only in strict compliance and in accordance with the provisions of CrPC and the law laid down by Apex Court in its various Rulings. [Chapter V, Section 41 to 60A) of CrpC, 1973], more particularly the Joginder Kumar case & Arnesh Kumar case.

Joginder Kumar Versus State Of Uttar Pradesh [AIR 1994 SC 1349]

Arnesh Kumar case [JT 2014 (7) SC 527]

Notwithstanding whether the cognizable offence committed is Bailable or Non Bailable, when the said Police Officer, while strictly complying with said guidelines, in the light of circumstances of the complaint, decides that there is a need to arrest and detain that person, may arrest that person, and then, he is obliged to comply to provisions of CrPC and the law laid down by Apex Court in its various Rulings.

The Hon’ble Apex Court have framed very strict guidelines, before any person can be arrested. And, in the light of obligatory guidelines laid down in Joginder Kumar and Arnesh Kumar case stated hereinbefore, there is hardly any need to obtain anticipatory Bail.

The Police officers u/s 157 of CrPC, 1973, are expected to forthwith start with the investigation of the offence. Section 157 is in no uncertain terms contemplates immediate investigation, and, if any person is so arrested in pursuance to First Information Report, interrogation, must start immediately.


2. What are the circumstances under which Bail is taken:

(1) When False / malicious FIR is alleged to have been registered / or is anticipated that such false / frivolous FIR may be registered by any person, the person concerned may apply for Anticipatory Bail before the Sessions Court / High Court1.

(2) When false FIR / Complaint is registered before the Police station, and the Police, in exercise of their powers, have effected the arrest of the person named as accused in the said FIR, then, notwithstanding the offence alleged is Non-Bailable, the officers In-charge of the Police station, are empowered to grant Bail in Non-bailable offence cases, where if it appears to such officer, at any stage of the investigation, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused person may be released on Bail, whilst recording in writing his reasons or special reasons for so doing, on the execution by him of a bond without sureties for his appearance. (Section 169, 437).

In this respect, an Application may be moved before the concerned Police officer, requesting him that the Accused be released on Bail2.

(3) Any person who is arrested must be produced before the nearest Judicial Magistrates court within 24 hours of his arrest (Section 57 of CrPC, 1973). When the arrested person is produced before the Judicial Magistrates, the arrested person or his relative / friend may present a simple Bail Application, before concerned Magistrates Court and inform the Magistrate, among other things, that the said arrest is patently illegal, for being effected without following the due process of law and in wilful disregard / defiance of guidelines framed by SC in the case of Joginder Kumar versus State of U.P., 1994, and may pray for immediate release, on Bail on execution of Personal Release Bond; and where court insists for surety, then, some reasonable time may be sought for furnishing of surety and release may be sought on depositing of reasonable amount of cash in lieu of furnishing surety thereof; and before moving Bail Application, an Application for opposing the remand to the Police may be moved3.

(4) When the person is arrested by Police and is presented before the nearest judicial Magistrate within 24 hours of his arrest u/s 57 of CrPC, 1973, this Bail Application may be moved before the concerned Magistrates Court, on the conclusion of the Police Custody so granted by the Magistrate on the earlier occasion, and therefore opposing the further Remand; or where the maximum Remand period of 14 days is over, and thereby the Accused is compulsorily to be sent to Judicial Custody (Jail) 4.

(5) When a Criminal Prosecution is initiated by way of Complaint before Magistrates Court, and the offence alleged is a “Bailable offence, then, at the first hearing of the case, where the Accused “does not plead guilty” before the Magistrates, then he has to move an Application before the Magistrates Court, that he be released on  Bail, till the conclusion of trial5.

Also, sometimes, where the Offences alleged are only “Bailable” in the FIR, and where the arrest is effected; and where the In-charge of the Police Station, instead of granting Bail by himself, forward the Accused to the Magistrates Court; in that situation, the Bail may be obtained from the Magistrates Court5.

(6) When the Police fails to file the Chargesheet within the stipulated time as prescribed under section 167(2), the accused has a statutory right to be released on Bail6.

(7) Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period, extending up to one-half of the maximum period of imprisonment specified for that offence under that law, the said person may move a Bail Application, through Jail or through the Advocate, praying that he shall be released by the Court on his personal bond with or without sureties (Section 436A) 7.

(8) When the Police file the Chargesheet in the concerned Magistrates Court; or where under Private Complaint u/s 200, the Magistrate takes cognizance of the offence; and in either of cases, the Magistrate issues Summons / Warrant against the Accused persons, the Accused Person, in case he “Pleads not guilty”, he is required to secure Bail from the trial Court8.

(9) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs9. [(S.437(6)]

(10) Obtaining Bail securing to the Court the appearance before next Appellate Court, in case of conviction: Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months; and if such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply10 .(S.437A)

(11) When the Applicant person is convicted of any offence to which he is charged of, on the date and at the time of order of conviction, the said guilty person, may make a Bail application u/s 389(3) of CrPC, 1973, before the said trial court itself, so as to facilitate the said person to prefer an Appeal to the said order of conviction, before the higher court11.

(12) Where an appeal is filed by a convicted person and which is pending, the said person, u/s 389(1) of CrPC, 1973, may prefer a Bail Application before the said Appellate court, inter alia, praying that order of trial Court / Appellate Court may be suspended for the time being, and he be released on bail or on his own bond12.

Subsequent Bail Application after rejection of earlier Bail Application:
(13) When the Magistrates Court rejects the Bail Application, fresh Bail Application may be moved before Sessions or High Court. It may be noted that, when, pursuant to rejection of Bail Application by any Court, be it Magistrates / Sessions Court, when Bail Application is preferred to a higher Court, then, the said Application is considered as a fresh Bail Application, and said Application does not operate as a challenge to the Order of rejection of Bail by lower Court. It may further be noted that there is no limit to the number of Bail Application which may be preferred, either before Magistrates Court / Sessions Court / High Court, provided there must be substantial change in the circumstances from the time when the last Bail Application was preferred and was rejected.

An accused has right to file second, third and so on bail application, but upon change of circumstances that warrants a fresh application. Kalyan Chandra sarkar versus Rajesh ranjan and pappuYadav, (2005) 1 SCC 801.

Right of accused to move for bail at a subsequent stage. (1995) 3 Crimes 386 at page 388.

Bail for Bailable offences:
If the offence alleged is Bailable, then, the Accused is entitled for Bail as a matter of right, may be before Police station itself, or if forwarded to Magistrates Court, before Magistrates court. However, where the offences alleged are both Bailable and Non-Bailable, the offence would be tried as Non Bailable offence, and benefit of securing Bail on the premise of Bailable offence would not be available to the accused. State versus Basawanath  Rao, 1966 CrLJ 267.
Under 436 there is no discretion left to the court to impose a condition while releasing a person on bail when he is accused of a bailable offence. (1997) 1 Crimes 303 at page 308 (Kant)

Sections 169 / 437: Bail by Police in Non Bailable Offences
Even the officer in charge of Police station may by recording reasons in writing, release a person accused of or suspected of committing of any non bailable offence. Gurcharan Singh versus State (Delhi Adm), 1978 Cr LJ 129 (135).

Under provision of Section 169 of CrPC, officer in charge of Police station can release person even without even reference to Magistrate. 1974 Cri LJ 162 (167) Bom. This Section is applicable while case is still under investigation of Police. It cannot be applied to cases where accused has appeared before the Magistrate. AIR 1933 All 582 (585) (DB).
2008 CrLJ 133 (134) Bom


3. Incidental Applications to Bail Application:

(1) Application for Cash Bail in lieu of Surety (Section 445) 13;
(2) Application before Sessions / High Court, that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified [S.439(1)(b); 440(2)] 14;
(3) Application by a person who stands as a Surety for the accused person15;
(4) Application for Refund of Bail amount16.
(5) Application for discharge of Surety17.
(6) Application to the Magistrates Court / Sessions Court, for making Reference to the High Court to initiate Contempt proceedings against the concerned Police officer who has acted in willful disregard of Apex Court rulings, more particularly, rulings in D K Basu case, Joginder Kumar case / Arnesh Kumar case, etc18.


4. How Bail is taken:

(1) By furnishing Surety, one or two as directed by the Court;
(2) By Cash in lieu of Surety;
(3) By executing Personal Release Bond; No money is required to be deposited while executing this Bond.[S.437(2)]


5. What papers are required by Surety to stand as a Surety for the accused person. Not all the papers mentioned below are required, but either one of the mentioned in the category, that is to say, one document each of Residence proof, Income proof and personal identity proof:

Rent bills of Place of Residence
Ration Card
Rent bills of place of Business
Deed of Partnership / other document

Relating to Business
Certificate from the Employer
Certificate of Amount in the Provident Fund

Title deeds of Properties
Municipal bills of the Properties
Bank Pass Book
Income Tax Payment Receipt

Other Proof
Pan Card
Election Card


6. Important grounds to seek Bail, as may be applicable, would always depend upon:

(a) Facts and circumstances of each case;

(b) Ingredients of the concerned applicable section of CrPC, 1973 under which the Bail would be given, i.e. sections 436, 437, 438, 439, 167(2), 169, 389(1), 389(3), 436A, 437A, 437(6);

(c) depending upon the stage at which the Bail Application is moved, i.e.

a)      At the stage of apprehending arrest on the basis of false and frivolous FIR filed or may be filed(S,438);
b)      At the stage when the Accused person is produced for the first time after the registration of FIR and consequent arrest thereby;
c)      At the conclusion of Police Remand;
d)     At the stage when the Accused is forwarded to Judicial custody;
e)      At the stage when the Police fails to file Chargesheet, as contemplated u/s 167(2);
f)       After filing of charge sheet / Private Complaint;
g)      After conclusion of 60 days as contemplated u/s 437(6) of CrPC, 1973;
h)      Where the Accused has spend one half of the punishment in custody (436A);
i)        At the time when the trial / Appeal is nearly completion stage (437A);
j)        At the time and on the date when the accused is convicted by the trial court u/s 389(3);
k)      Before Revisional / Appellate Court u/s 389(1).

General Grounds on which Bail is demanded from the Court

a         That the complaint which is filed is malicious and mischievous and is devoid of any merit; OR That there is reasonable and grave apprehension that malicious and mischievous complaint may be filed by one _____ against the Applicant; and pursuant to filing of said false complaint, the concerned Police officer, in the exercise of their powers, may apprehend / arrest the present Applicant.

b        That the arrest of the Applicant is patently illegal, because the Police has arrested the accused without following the due process of law as contained in section 157(1), 41(1)(b)(i)(ii), 41(2) r/w section 60-A of CrPC, 1973;

c         That the arrest of the Applicant is patently illegal, because, the Police has arrested the accused in blatant disregard of binding guidelines issued by the Apex Court in the case of Joginder Kumar case and Arnesh Kumar case;

d        That the Police did not even informed the Applicant the grounds of his / her arrest as mandated u/s 50 of CrPC, 1973, and have merely stated that the complaint is registered against the Applicant for having committed the offence of …………

e         That the Complaint is made with the object of injuring or humiliating the Applicant by having him arrested, and that the Applicant has no connection with the offence with which he is alleged to have committed;

f         That the FIR contains “bare allegation” without attributing “acts or omission” on the part of the accused person, towards the commission of the offences;

g        That the “acts” and “omission” attributed towards the accused person in the FIR does not constitute any offence;

h        That No incidence of offence as alleged in the FIR has happened;

i          That there are unimpeachable evidence to show that the offence could not have been committed by the accused person as alleged (plea of alibi);

j          No purpose would be served to remand the Applicant to Police custody, as the nature of offence is such that no custodial interrogation is warranted;

k        That the Applicant is ready and willing to abide by any condition imposed by this Hon’ble Court if admitted to Bail, and will cooperate the Police in the Investigation of the offence;

l          That the Applicant hails from a respectable family, having deep roots in the society, having a permanent residence herein; has ailing and aged father and mother;

m      That the Applicant is a highly respectable member of the Society; is highly qualified____ and educated person;

n        That whereas the co-accused have been granted Bail, and the allegations against the co-accused and Applicant are identical;

o        That the Applicant gives the undertaking to this Court that he will not, in any manner, interfere with the investigation of the offence to which he is charged with, nor he will try to temper with the evidence, if there are any;

p        That the Applicant has no criminal antecedent whatsoever;

q        That the Applicant is the only earning member of his / her family and personal safety of member of his family is jeopardized in his absence;

r          That the Applicant will make himself available to the Police for his due interrogation whenever Investigating Officer would so demand, in accordance with law;

s         That there are vague allegations against the Applicant;

t          That the allegations made against the Applicant does not constitute any offence, least being cognizable offence;

u        That the deprivation of liberty seriously prejudices my case, as I am deprived of opportunities to prepare for my case, the opportunities which is otherwise available to Prosecution, notwithstanding the fact that burden of proving the guilt, beyond reasonable doubt, rests upon the Prosecution, nevertheless, this burden keeps on shifting, and sometimes it is expressly throws upon the Accused u/s 106 of the Evidence Act, 1872;

v        That the Prosecution has failed to make out a prima facie case against the Accused Applicant;

w      That, from the reading of Chargesheet / Complaint, it can safely be said that the Prosecution case is based on speculation / surmises / probabilities / suspicion / interested witnesses / forged documents;

x        That, from the reading of the Chargesheet / Complaint, it can safely be said that no offence is made out against the Accused, even if all the allegations are taken as true, for the acts and omissions attributed towards the Accused Applicant does not constitute any offence;

y        The Applicant has to make out a case suggesting that case of the Prosecution is frivolous and mischievous; that Applicant would not run away from the trial and would “receive the judgment” of the Court / would make him present at the time of judgment / will make himself present in the Court whenever he is called upon by the Court; and will make himself present before the Court, to take the judgment of the Court;

Life and Personal Liberty submissions:

a         My liberty is my life, in the absence of which I am left paralyzed, both in my rights and in my duties, right to life and duty to my family and duty towards my country.

b        Liberty is the most prized possession of any being and respect for liberty, i.e. freedom is not merely a policy of the State but is an essential requirement of any civilized society.

c         I am no danger to the peace of the society nor have I acquired animal spirit to be caged in prison.

d        My life reputation may be ruined if I am stamped as prisoner.

e         Imprisoned life, even for a moment, makes my character suspicious to the suspecting society.

f         Imprisoned life, even for a moment, strikes at my social dignity and self-esteem. 

g        My family feed on my income and they feel protected in my shadow. It is said that- “you take my life when you take away the means whereby I live”. The life of my family is in jeopardy if I am imprisoned. Who will then feed my family ? Who will then protect my family. Does the State Govt take responsibility of feeding and giving protection, to my family in return for my detention. ?

h        Detention of men on merely a complaint is an attractive and brilliant idea to harass all men who tries to disturb or expose the undisclosed agenda of men in power.


7. Release of Accused on execution of Personal Release Bond / Bail Bond:

a         If the Bail is secured by way of Surety, the Surety has to execute the Bail Bond, and if the Accused is present in the Court, he is also required to execute the Bail Bond;

b        And if the Accused is lodged in the Jail at the time of furnishing of Surety, then, afterwards being released from Jail, he is required to execute Bail Bond in the Court; and the Bail Bond shall contain the conditions on which the Accused is released;

c         And in case the Magistrate has ordered the Release of Accused on the execution of Personal Release (PR) Bond, the Accused is released on the execution of the said Bond;

d        In any case, the Accused has to execute the Bail Bond, whether alongwith Surety, if there are any, or of himself alone.

e         As soon as the Bond has been executed, the person for whose appearance it has been executed, shall be released; and when he is in jail the Court admitting him to bail, shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the orders shall release him.(Section 442)

f         It is expected from the Magistrate to accept Bail Bonds even after the court hours particularly when he is sitting in his chamber. Liberty of the subject must be given the top priority in a spirit of dedicated devotion. One must always remember that the rights of the subjects flow not from the mercy of the courts but from the guarantees of our system of laws, namely no person should be deprived of his liberty even for a moment except in strict conformity with law and spending a few minutes even after court hours would exhibit a better desire for fostering the administration of justice. 1969 Cri LJ 896: AIR 1969 Delhi 214 (SB).

g        Immediate release on execution of Bail Bond. If the accused is present in the court he should be released at once. If he is in jail, the court should issue order of release to the officer in charge of jail. Balroop Sharma versus State, 1956 Cri LJ 473 (All).

h        SC in Bekaru Singh versus State of UP, 1963 (1) Cri LJ 335, had observed that S.442(1) provides that as soon as Bail Bond has been executed the person for whose appearance it has been executed, shall be released.

i          Releasing the accused on personal Bond: In Afsar Khan versus Sate, 1992 CCR 2019 (Karnataka HC), observed – if the court is satisfied on a consideration of relevant factor that the accused has ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on personal bond. The decision as regards the amount should be an individualized decision depending on the financial circumstances of the accused individual and the probability of his absconding.

j          Motiram versus State of M P, 1978 Cri LJ (1709) SC


8. SC binding guidelines before effecting Arrest:

Joginder Kumar Versus State Of Uttar Pradesh
1994 (4) SCC 260 : AIR 1994 SC 1349

A critical and detailed observation of the Apex Court in respect of unabated practice of “mechanical arrests” in a very recent case deserves to be reproduced. [JT 2014 (7) SC 527]

9. SC binding guidelines after effecting Arrest:

In the historic judgment of Hon SC in D K Basu versu State of West Bengal [AIR 1997 SC 610], among other things, directed-

1) That Policemen must wear visible and legible identification when arresting a person and when carrying out interrogation. Names and Particulars of police personnel handling interrogation must be recorded in the register;

2) It is the right of every person detained or questioned by Police to know the grounds for detention or questioning;

3) The Person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or detention;

4) A person arrested must be produced before a Judicial Magistrate/ Judge within 24 hours of his/her arrest;

5) A person arrested should be medically examined at the time of arrest and major & minor injuries on arrested person be recorded in Inspection Memo duly signed by both Police officer carrying out the arrest and the person arrested and the copy of this memo be provided to the person arrested;

6) Any person arrested must be medically examined by a doctor from an independent and approved panel of doctors, every 48 hours during detention;

7) Arrest or Search of women should only take place in presence of Women Police Officers and it should not take place in night. And women should be detained separately from men;

8) While an accused is in Police custody, his lawyer should be permitted to visit him;

9) Information of the arrest of accused person should be given to the district Control Room and the State Police Headquarters;

10. Important judgments pertaining to grant of Bail / Anticipatory Bail / limited powers of arrest of Police:

a         Sanjay chnadra versus CBI – (2012) 1 SCC 40 (factors to be considered by Magistrate while granting or refusing to grant Bail)

b        Siddhram S. Mhetre versus State of Maharashtra (2011) 1 SCC 694, (Anticipatory Bail)

c         Gurbaksh Singh versus State of Punjab AIR 1980 SC 1632 (Anticipatory Bail)

d        Sajal Kumar Mitra Versus State Of Maharashtra – 2011 CrLJ 2744 (grant of Cash Bail initially to facilitate the accused to arrange for Surety in the mean time)

e         K K Girdhar versus M S Kathuria – 1989 CrLJ 1094 (Magistrate to decide Bail Application of the Accused along with Remand Application of the Police)

f         Lal Kamlendra Pratap Singh versus State of U.P – (2009) 4 SCC 437 (Interim Bail by Magistrate till the final decision in Bail Application) (arrest is not a must in all cases of cognizable offences; police officer must act according to the principles laid down in Joginder Kumar's case)

g        Joginder Kumar versus State of U.P – (1994) 4 SCC 260 (arrest is not a must in all cases of cognizable offences; police officer must act according to the principles laid down in this case);

h        Arnesh Kumar versus State of Bihar [JT 2014 (7) SC 527]

11. Critical observations of Apex Court in the case of Sanjay Chandra versus CBI (2012) 1 SCC 40 (2G scam case), where in the Court extensively dealt with the issue of granting or refusing the grant of Bail, that is, circumstances under which only Bail should be refused, and ordinarily, as a general rule, Bail should be given:

In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.

The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test.

In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. (Paras 21 to 23)

The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.(Para 25)

Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has refused to entertain the Special Leave Petition filed by one of the co-accused [Sharad Kumar v. CBI (supra)] and, therefore, there is no reason or change in the circumstance to take a different view in the case of the appellants who are also charge- sheeted for the same offence. We are not impressed by this argument. In the aforesaid petition, the petitioner was before this Court before framing of charges by the Trial Court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions. (Para 19)

Para 22: More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that "just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important." This Court further observed:  

"116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."

This Court has taken the view that when there is a delay in the trial, bail should be granted to the accused [See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].

Para 23: The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, thus :  

"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 the 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 expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, 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. This Court in Gurcharan Singh and Ors. v. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.


Other Rulings of Apex Court suggesting the factors which weigh the minds of the Court whilst refusing or granting Bail

State Through Central Bureau Of Investigation Versus Amarmani Tripathi AIR 2005 SC 3490

17 ……..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 u/s. 439 read with Sec. 437, continue to be relevant. We, however, agree that 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.

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

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of accused absconding or fleeing if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with; and
(viii) danger, of course, of justice being thwarted by grant of bail
(see Prahlad Singh Bhati V/s. NCT, Delhi, 2001 4 SCC 280 and Gurcharan Singh V/s. State (Delhi Administration), AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar V/s. Rajesh Ranjan, 2004 7 SCC 528:

"The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

a. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
b. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
c. Prima facie satisfaction of the court in support of the charge."


Ram Govind Upadhyay Versus Sudarshan Singh AIR 2002 SC 1475

Para 2: While liberty of an individual is precious and there should always be an all round effort on the part of Law Courts to protect such liberties of individuals - but this protection can be made available to the deserving ones only since the term protection cannot by itself be termed to be absolute in any and every situation but stand qualified depending upon the exigencies of the situation. It is on this perspective that in the event of there being committal of a heinous crime it is the society that needs a protection from these elements since the latter are having the capability of spreading a reign of terror so as to disrupt the life and the tranquillity of the people in the society. The protection thus to be allowed upon proper circumspection depending upon the fact situation of the matter. It is in this context the observations of this Court in Shahzad Hasan Khan V/s. Ishtiaq Hasan Khan and Anr. (1987 (2) SCC 684) seem to be rather apposite. This Court observed in Shahzad Hasan Khan (supra) as below :-

"Had the learned Judge granted time to the complainant for filing counter-affidavit correct facts would have been placed before the Court and it could have been pointed out that apart from the inherent danger of tampering with or intimidating witnesses and aborting the case, there was also the danger to the life of the main witnesses or to the life of the accused being endangered as experience of life has shown to the members of the profession and the judiciary, and in that event, the learned Judge would have been in a better position to ascertain facts to act judiciously. No doubt liberty of a citizen must be zealously safeguarded by Court, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the Court. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case."

Para 3: 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.

Para 4: 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.

Para 5: A recent decision of this Court in Prahlad Singh Bhati V/s. NCT, Delhi and Anr. (2001 (4) SCC 280) lends concurrence to the observations as above.

12. Factors relevant for rejecting bail in a non-bailable case and cancellation of bail already granted:

State Through Central Bureau Of Investigation Versus Amarmani Tripathi AIR 2005 SC 3490

Para 16: Reliance is next placed on Dolat Ram and others V/s. State of Haryana 1995 1 SCC 349, wherein the distinction between the factors relevant for rejecting bail in a non-bailable case and cancellation of bail already granted, was brought out:
"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are : interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

Para 17 ……..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 u/s. 439 read with Sec. 437, continue to be relevant.

Para 19 In Panchanan Mishra V/s. 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."

13. Amount of Bail / Bond:

The object of calling upon accused to furnish security is not to penalize accused but to ensure his presence in court and the amount of security is to be fixed with due regard to the nature of offence and the means of the accused. [Section 440]
Hussainara Khatoon versus State of Bihar, AIR 1979 SC 1360;
B Sardarilal versus Supdt. Central Jail, Tihar, 1969 Cri LJ 675 (Delhi) (DB).

While administering justice it is the duty of the court to see that any order to be passed or condition to be imposed shall always to be in the interest of the accused and the State. The conditions shall not be capricious. On the other hand, it shall be in the aid of giving effect to the very object behind the discretion. Insisting on local surety or cash surety is incorrect and indirectly results in denial of bail. 1992 CrLJ 1676 at page 1680-81 (Kant)

14. Factors to be considered by the Magistrate concerned while granting / refusing Bail – Some observations of the Apex Court / Bombay HC judgments:

a)      Justice Krishna Iyer, in one of his shortest judgment, one page judgment, in State of Rajasthan versus Bal Chand AIR 1977 SC 2447 had observed – “the basic rule perhaps be tersely put as bail not jail, except where there are circumstances, suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the Petitioner who seeks enlargement on bail from the court”.

b)      In the case of State of UP versus Amarmani Tripathi, AIR 2005 SC 3490, the Hon’ble SC laid down certain guidelines for consideration while granting or refusing bail.

c)      In the case of Joginder kumar versus State of UP, AIR 1994 SC 1349, the SC held that it shall be the duty of the Magistrate before whom the arrested person is produced to satisfy himself that requirements of pre-arrest have been complied with and shall be followed in all cases of arrest till legal provisions are made in this behalf.

d)     The SC in the case of Narendra versus B BGujral, AIR 1979 SC 420, observe that whenever the liberty of the subject is involved, whether under a penal law, or law of preventive detention, it is the bounden duty of the court, to satisfy itself that “all the safeguards provided by the law have been scrupulously observed”.

e)      Section 439: grant of bail – basic principle laid down: (2010) 4 Crimes 297 (SC)
f)       Section 439 – Bail – factors to be considered – AIR 2011SC 274 – Paras 11, 13, 14.
g)      Section 437 – Bail grant of – delay in concluding trial – important factor to be considered in grant thereof – AIR 2011 SC 340 – Para 12.
h)      Section 439 – factors to be considered while granting or refusing Bail – AIR 2011 SC 1945 – Paras 16 to 24.
i)        Section 437, 438 – Bail – Anticipatory Bail – 2011 (1) AIR Bom R 64 – Paras 10, 13 – Cr WP 847/2010 – Judg date: 07.05.2010
j)        Section 437 – Bail – 2011 (2) AIR Bom R 282 – Paras 8, 9, 15 – Cr Application – 5283/2010 – Judg date: 21.01.2011.
k)      Section 439 – Bail – Misuse of – AIR 2011 SC 3656 – Para 3
l)        Section 167(2)(b) – 173(8) – Grant of Bail - Mustaq Ahmed versus State of Maharashtra – (2010) 1 Bom CR (Cri) 194
m)    Section 439 – Bail Application – 2011 (3) AIR Bom R 333 – Para 12 – Cr. App No. 1397/2009 – Judg date: 25.03.2009.
n)      Section 439 – Bail – Surety – Tahsildar – Cash Bail – 2011 (3) AIR Bom R 89 – Paras 9, 10 – WP:584/2010 – Judg date: 24.01.2011.

o)      15. Recording of Reasons while refusing Bail [S.437(4)]
p)      In Prashant Kumar versus Manohar Lal 1988 CrLJ 1463, the SC held that “it must be said that the Magistrate as also the Sessions Judges while either granting or refusing bail must support their orders by cogent reasons and that is all the more so required as their orders are frequently subjected to scrutiny of the High Court. The SC further held that any order passed by the Court without giving any reason either for grant or refusal of bail could not sustain and had no force of law.

q)      In a case before Apex Court, the Order passed was –

r)       Heard counsel for the parties. Considering the facts and circumstances of the case, I do not find any merit in this application. It is accordingly dismissed.

s)       Being aggrieved by the aforesaid cryptic order of the Patna HC, the Petitioner approached the SC by way of SLP. The order of the SC reads as under: “we are unable to find from the aforesaid order as to any reason why the learned judge did not find any merit in the application for bail. We do not know, whether he urged such grounds before the HC, as the impugned order is silent. In such a situation we feel that a more feasible course is to permit the petitioner to move the HC again. If any such application is filed, we request the HC to pass a reasoned order while disposing of the application. Dhruv K Jaiswal versus State of Bihar, AIR 2000 SC 209.

t)       In the case of Mantoo Majumdar versus State of Bihar, AIR 1990 SC 846, the court found exceedingly bad the delay in police investigation and the mechanical operation of the remand process and the Magistrate’s insensitivity towards the personal liberty of under trials.

u)      In the case of Dr KS Rao versus State of Hydrabad AIR 1957 AP 416, it was held that – in remanding the accused to police custody the Magistrate ought to follow the provisions of section 167 of the Code and should give proper reasons for handing over the accused to the police custody.

v)      In Kalyan Chandra sarkar versus Rajesh Ranjan, AIR 2004 SC 1866, it was observed that while a vague allegation that the accused may temper with the evidence or witnesses may not be a ground to refuse a bail, if the accused is of such a 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 temper with the evidence, then bail may be refused.

16. Section 172: Police Diary:

The honesty, capacity and the discretion of the investigating police officer cannot be completely trusted and therefore the courts should have the means of ascertaining what was the information, true, false or misleading, which was obtained from day to day by the investigating police officer and what were the lines of investigation upon which the police officer acted; hence it is of utmost importance that entries in such a diary are made with sufficient promptness, in sufficient detail, mentioning all significant facts, in careful chronological order and with complete objectivity. The haphazard maintenance of diary would defeat the very purpose for which it is required to be maintained. (1983) 3 SCC 344; 1982 Cri LJ 269 at pg 271; (1988) 3 SCC 609.


17. Section 167: Remand to Police Custody

Remand is to facilitate investigation.

a)      The remand order has to be sought by a competent police officer on well founded grounds, to be made good from case diary, which has also to be transmitted as per the mandate while forwarding the accused. 1991 Cri LJ 1124 (FB) Delhi.

b)      At the stage of remand, a Magistrate u/s 167 of CrPC does not take cognizance of the offence, but the object of the section is to prevent abuses by investigating agencies. 1990 Cri LJ 704

c)      The scheme of the section after the amendment of the year 1978 is intended to protect the accused from unscrupulous police officers. Great care has now been taken to see that the accused persons are not unnecessarily remanded. The object of the section is to see that the person arrested by the Police are brought before the Magistrate with the least possible delay so that the Magistrate could decide whether the person produced should further be kept in Police custody and also to allow said accused to make such representation ashe wish to make, 1980 CriLJ 1195.

d)     If a person has been illegally arrested and detained, he should be released. A court of justice has to decide at that point of time whether or not the accused person has been legally arrested or if he is legally detained. That is the fundamental concept underlying the law relating to Habeas Corpus. Ram DeoMahto versus St of Bihar, 1978 CriLJ 1074.

e)      In no case the Police officer is justified u/s 57 of CrPC in detaining a person for one single hour, except upon some reasonable ground. It is for the Police officer to show that he has reasonable grounds. The belief that a Police officer is entitled to detain every arrested person in his custody for 24 hours is misconceived. S.57 merely prescribes the maximum period of detention. Queen versus SunnoGhousal, 6 W R 88.

f)       Perusal of the case diary is a must before remand of any kind – be judicial or police custody. It is a dereliction of duty if the Magistrate did not ask for and peruse the case diary before he authorizes any custody. 1981 CriLJ 1773 (1776 – Para 9).

g)      The Magistrate before whom case diary is produced has to scrutinize the act of Police and has to see whether the act of arrest was legal and proper and further that other formalities required by law had been complied with. AIR 1954 All 601.

h)      Before granting remand, Magistrate must satisfy himself that investigation reveals prima facie material against accused. 1975 CriLJ 83.

i)        With each remand, the necessity of producing incriminating evidence increases. 16 CriLJ 705.

j)        If after remand, evidence of an incriminating nature is not forthcoming, the court would conclude that there are no reasonable grounds to believe that the accused has committed a non bailable offence. In such a situation, it would be proper to release the accuse on bail irrespective of nature of accusation. 9 CriLJ 409 (Cal).

k)      If the evidence is not forthcoming, the Magistrate must not remand the prisoner in the hope that fresh evidence may turn up. Muthoora versus Heera, AIR 1951 M B 70; 17 W R 55.

l)        The Magistrate has to be watchful as the power to arrest without warrant on suspicion u/s 41 of CrPC is liable to be abused.1965 (2) CriLJ 139.

m)    S.167(2) only prescribes the maximum period of 15 days, but that does not authorize the Magistrate automatically to remand the accused for the period. At every stage when the Police seeks a remand, the Police must satisfy the Magistrate that there is sufficient evidence against the accused and further evidence might be obtained; and it is only when the Magistrate is satisfied, after looking into the case diary, that he should direct a remand. AIR 1956 Orissa 129.To authorize remand to Police custody is a very serious and sensitive judicial function of utmost responsibility.

n)      A remand to Police custody should not be given unless the officer making the Application is able to show definite and satisfactory grounds. Remand order should not be passed mechanically without proper application of mind. State of UP versus RamsagarYadav, (1985) 1 Crimes 344.

o)      The Magistrate should not authorize detention of an accused to any custody mechanically in routine. If the Law Officers charged with the obligation to protect the liberty of the person, are mindless of the constitutional mandate and the dictates of the Code, how can freedom survive for the ordinary citizen. MantooMajumdar versus State of Bihar, 1980 CriLJ 456; AIR 1980 SC 847.

p)      Magistrate must give reasons for authorizing detention of accused to custody. Such orders cannot be passed as a matter of course. Kana versus St of Rajasthan, 1980 CriLJ 344.

q)      Order of Remand is a judicial order to be passed on application of mind to the contents of the Remand report submitted by the investigating officer. It is not a empty formality or a routine course to extend remand time and again as and when sought by the police. The order therefore should contain the reason to extend remand further. 2003 CriLJ 701 at page 702.

r)       When the legality of an arrest without warrant is challenged in court, the burden is on the police officer to satisfy the court that he has reasonable ground for suspicion. Emperor versus VimlabaiDeshpande, AIR 1946 PC 123.

s)       Personal feelings of the police officer or vague surmise would not be enough. The word “reasonable” brings in the requirement of honest belief based on facts. The words “reasonable” and “credible” in section 41 of CrPC, 1973, have reference to the mind of the Police officer receiving information and such information must afford sufficient material for the exercise of an independent judgment at the time of making arrest. Subodh Chandra Roy versus Emperor ILR 52 Cal 319; K V Muhammed versus C Kannan AIR 1943 Mad 218; Tribhwan Singh versus Rex AIR 1949 Oudh 74; M BAskaran versus State 1989 CrLJ 653 (Del)

t)       State Rep by Inspector of Police and Ors V NMT Joy Immaculate 2004 5 SCALE 330
u)      CBI SIT New Delhi v Anupam J Kulkarni AIR 1992 SC 1768
v)      Mithabhai Pashabhai Patel & Ors Vs St of Gujarat CDJ 2009 SC 1014


Sr. No.
Nature of Remedy
Link
1
At the stage of apprehending arrest on the basis of false and frivolous FIR filed or may be filed(S.438)

2
Bail Application before Police in Bailable / Non- Bailable offences

3
At the stage when the Accused person is produced for the first time after the registration of FIR and consequent arrest thereby

4
At the conclusion of Police Remand

5
Bail in Bailable offences before Magistrates Court

6
At the stage when the Police fails to file Chargesheet, as contemplated u/s 167(2)

7
Where the Accused has spend one half of the punishment in custody (436A)

8
After filing of charge sheet / Private Complaint; and the Magistrate takes cognizance of the offence; and issues Summons / Warrant against the Accused Person

9
After conclusion of 60 days as contemplated u/s 437(6) of CrPC, 1973

10
At the time when the trial / Appeal is nearly completion stage (437A)

11
At the time and on the date when the accused is convicted by the trial court u/s 389(3)

12
Before Revisional / Appellate Court u/s 389(1)

13
Application for Cash Bail in lieu of Surety (Section 445)

14
Application before Sessions / High Court, that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified [S.439(1)(b); 440(2)]

15
Application by a person who stands as a Surety for the accused person

16
Application for Refund of Bail amount

17
Application for discharge of Surety

18
Application to the Magistrates Court / Sessions Court, for making Reference to the High Court to initiate Contempt proceedings against the concerned Police officer who has acted in willful disregard of Apex Court rulings, more particularly, rulings in D K Basu case, Joginder Kumar case / Arnesh Kumar case, etc