BAIL'S - THINGS YOU SHOULD KNOW ABOUT:-

GRANTING BAIL IS THE RULE AND JAIL IS AN EXCEPTION: -

Bail is written permission from a court, allowing a person charged with a criminal offence to be out of jail while they wait for their trial, or some other result in their case (such as a guilty plea or a withdrawal of their charges). Constitution of India, and the most prominent among them is the fundamental right to liberty guaranteed under article 21 of the constitution. Detention of an individual impinges upon his liberty and therefore courts, while interpreting the provisions of the criminal procedure code pertaining to arrest, ordinarily hold that unless indispensable, detention of an individual must be avoided.

What is Bail?

Bail materially refers to release of a person from legal custody on deposit of security and undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court. Law lexicon defines “Bail” as security for the appearance of the accused person on giving which he is released pending trial or investigation. The basis of bail lies in the principle that there is a presumption of innocence of a person till he is found guilty.

What is Bailable And Non-Bailable Offence?

Offences under the criminal law are classified into Bailable and Non-Bailable offence. Section 2(a) of the code of criminal procedure, 1973, provides that “Bailable Offence” refers to offences which are shown as bailable in the first schedule or which is made bailable by any other law and Non-Bailable Offence means any other offence not specified in the first schedule. A general reading of the bailable offences in the schedule indicates that by and large not so serious offences are considered as bailable and other offences are considered as non-bailable.

According to the first schedule offences under any law other than the Indian Penal Code which are punishable with imprisonment for 3 years or more have been considered as “non-bailable” and offences which are punishable with less than 3 years have been considered as “Bailable” offences. However, this rule is subject to any rule made to the contrary. Crpc legislation also provided some statutory rights to individuals detained or apprehending detention. The nomenclature given to such a statutory right under crpc is known as “Bail”. Bail in a strict sense is a form a security executed to release an accused from detention. Bails are broadly classified as: regular bail; anticipatory bail; statutory bail; interim bail. In this article, i wish to confine myself to the anticipatory bail. As the name implies, anticipatory bail is ordinarily sought when an individual anticipates arrest. Section 438 of the crpc deals with anticipatory bail and it reads as follows: (1) when any person has reason to believe that he may be arrested on an accusation of having committed a Non- Bailable Offence,

He may apply to the high court or the court of session for a direction under this section; and that court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. So, anticipatory bail in simple terms can be referred as a pre-arrest bail. Essentially, the reason for incorporation of such a provision in the crpc is multi-fold: the liberty of an individual is a fundamental right and therefore sacred and hence should not be allowed to be compromised for frivolous reasons. The fundamental principle of criminal jurisprudence: “presumption of innocence”. That is, until proven guilty beyond reasonable doubt every individual is innocent in the eyes of law.

The individual seeking anticipatory bail must pass a test famously known as a triple test for grant of pre-arrest bail. He must prove that he is not a flight risk, i.e, he doesn’t have an intention to flee from the country therefore will be present for investigation as and when the need arises. He will not tamper with evidence; he will not influence witnesses, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer. If this triple test is satisfied, ordinarily, courts grant anticipatory bail to the alleged accused. Also, while granting bail courts can impose such reasonable restrictions as they deems fit and in the larger interests of justice. However, the most contentious issue is: can courts invariably prescribe time limit while granting an anticipatory bail? This question takes us to one of the most significant judgments lately pronounced by the supreme court (sc.) in relation to the anticipatory bail. In the case of ‘Sushila Aggarwal and Others vs. State (NCT of Delhi) and another,’ the apex court made some critical observations. 

The sc held that the protection granted to a person under section 438 crpc should not invariably be limited to a fixed period. However, the apex court further added that based on the facts and circumstances of each case the jurisdictional court can impose fixed tenure of relief or condition relief to an event.the apex court also held that anticipatory bail granted by the jurisdictional court does not ordinarily end when the accused is summoned, or when charges are framed and therefore can continue until the end of trial. The court again specified a rider here: if circumstances warrant, the jurisdictional court can limit the tenure of an anticipatory bail. The court while citing the case of Shri Gurbaksh Singh Sibbia and Others v. State of Punjab held that the condition precedent of registering an fir before pleading/seeking for an anticipatory bail does not hold good and therefore plea for pre-arrest bail can be moved even earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

This can unequivocally be stated as one of the key takeaways of the verdict. The court further held that while the plea for anticipatory bail is pending before the court if circumstances so warrant the jurisdictional court can grant a limited interim anticipatory bail.the apex court also held that conditions imposed while granting an anticipatory bail must be assessed on a case-by-case basis, however, such limiting conditions may not be invariably imposed. It further added that the decision of courts granting anticipatory bail must be guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail or refuse it.the apex court in equal measure conferred the authority on the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non- cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

This judgment of the apex court is a path-breaking verdict on many counts. The verdict has references to our freedom-struggle, arbitrary and indefinite detentions during freedom movement and also about the lack of proper safeguards in pre-independent India against illegal detentions. The court has also cited that arbitrary and groundless arrests, even after independence, continue as a pervasive phenomenon. These vehement remarks from an institution regarded as the custodian of the constitution of India and the protector of the fundamental rights in India is unambiguously a welcome move and should be cherished by all right-thinking individuals.

Can a person accused for non-bailable offence, be ever released on bail?

Yes, it does not imply that a person who is accused of non-bailable offence would never be released on bail. The release of a person accused of a non-bailable offence is left to the discretion of the concerned authorities whereas in case of bailable offence, it is right of the accused to be released on bail.

If bail application has been rejected, can the same be filed again?

Yes, bail application can be subsequently filed even after rejection. The principle of constructive res judicata does not apply to such applications [gama v. State of u.p., crilj 242 (all)]. However, subsequent applications shall be placed before the same judge who had passed earlier orders to prevent abuse of process of court [shahzad hassan khan v. Ishtiaq hassan khan (1987)2 scc 684].

If accused has been granted bail, then can even similarly placed co-accused be granted bail i.e. grant of bail on parity?

At the very outset it is stated that a judge is not bound to always grant bail on parity. Such a decision would be taken by the judge in view of the facts and circumstances of each case.

The judicial dicta in this context which expounds the issue are:

1.    Chander @ chandra vs. State of u.p. (1998 u.p. cr.r. 263)– in this case, the allahabad high court enumerated the following for grant of bail on parity:

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

·      That failure of justice may be occasioned if bail is granted to an accused on the basis of parity with another co-accused whose bail order does not contain any reason.

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

2.    Nanha v. State of u.p. (1993 crilj 938)– this case elaborately discussed the issue of grant of bail on parity and concluded that:

·      Parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail application of the co-accused whose bail application had been earlier rejected are allowed and co-accused is released on bail.

·      That the court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, that there are sufficient grounds for releasing the applicant on bail.

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

IN WHICH CASES RELEASE ON BAIL IS MANDATORY?

Section 41 of the crpc categorically lays down grounds in which arrest of an individual can be ensured. 

The circumstances under which grant of bail is mandatory:

1.    Where the person is not accused of a non-bailable offence is arrested or detained without warrant. In such cases, the concerned police officer if he thinks fit shall if such person is indigent and unable to furnish surety discharge him on executing bond without sureties for his appearance as provided in Law.

2.    Where the investigation is not completed within the stipulated time period– Section 57 of CrPC provides that a person arrested without warrant cannot be detained for more than 24 hours. However, if the concerned police officer deems it necessary to detain such person for more than 24 hours for purpose of investigation he can do so after obtaining Magistrate’s order under Section 167 of CrPC.

3.    Where no reasonable ground exists to believe that the accused has committed a non-bailable offence- Section 437(2) of CrPC entails that if it appears to the concerned officer that there are not 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, then the accused shall be pending such inquiry, be released on bail.

4.    When trial of a person accused of a non-bailable offence is not completed within a period of 60 days– Section 437(6) of CrPC.

5.    When the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such, it shall release the accused on Bail- Section 437(7) of CrPC.

CAN A BAIL ONCE GRANTED BE CANCELLED?

Yes, the CrPC under Section 439(2) provides for cancellation of bail by a High Court or a Court of Session. The provision empowers the High Court or Court of Session to direct that any person who has been released on bail be arrested and commit him to custody.

WHAT ARE THE GROUNDS ON WHICH A BAIL CAN BE CANCELLED?

The Criminal Law does not specifically enlists the circumstances or grounds on which a bail order can be cancelled. CrPC extends a discretionary power on the High Court or Court of Session to cancel a bail. However, precedents indicate circumstances under which a bail can be cancelled.

In the case of Public Prosecutor v. George William, the Court listed 5 circumstances under which bail could be cancelled. They were:

·      Where the accused during the period of bail commits the same offence for which he is being tried;

·      Hampers investigation;

·      Tampers evidence, like intimidating prosecution witness;

·      Runs away or goes beyond the control of sureties;

·      Commits acts of violence against police or informant

Other grounds as inferred from judicial dicta are as under:

·      Misrepresentation of facts [Brijeshwar Dayal Verma v. State of U.P. [1992 Cri LJ 411 (All HC)]

·      Improper exercise of discretion by Judges [State of Maharashtra v. Anant Chintaman Dighe (1991)3 SCC 209]

·      Bail granted on the basis of irrelevant material [Rohit Bansal v. State & Anr. CRL.M.C. 844/2017 & CRL.M.A. No. 3554/17]