BAIL OR JAIL IN ECONOMIC OFFENCES BY SUPREME COURT
Economic Offences include Companies fraud, Corruption Cases, money laundering, tax evasion, trafficking, cyber law etc. Generally, Supreme Court held that grant of anticipatory bail is not to be done as a matter of rule, especially in matters of economic offences which constitute a class apart because at the stage of anticipatory bail, it may frustrate the investigating agency in interrogating the accused and in collecting useful information and also materials which might have been concealed.
The Court, while granting bail, is to consider the circumstances, the factors such as the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge are to be taken into consideration. In addition to aforementioned ingredients, the Court is to see the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses. In addition to that, Triple Test for pre-aresst bail i.e. abscond, tamper with evidence or influence witnesses other aspects to be taken note is the manner in which the offence has taken place, gravity of the offence.
In a landmark decision in Sanjay Chandra Vs. CBI 2011(4) R.C.R. (Criminal) 898 Supreme Court, crystallized the balance between necessity test and personal liberty as law in respect of regular bail in the following paragraphs:-
22. 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 unconvicted 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.
In the case of State v. Captain Jagjit Singh (1962) the Supreme Court enumerated relevant factors like nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the person accused of an offence, a reasonable possibility of the presence of the accused person not being secured at the trial, reasonable apprehension of witnesses tampering, the larger interests of the public or the State etc., which arise when a court decides on bail for a non-bailable offence.
In the case of State of Rajasthan v. Balchand (1977) the Supreme Court declared that the rule is “Bail not jail”. It further stated that denial of bail is therefore an exception, to be exercised only when there are circumstances indicating absconding 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 accused who seeks enlargement on bail.
The Supreme Court, in the matter of Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987), has observed that “Liberty is to be secured through the process of law, which is administered keeping in mind the interest 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 the parties do not lose faith in the institution and indulge in private retribution”.
In Gudikanti Narasimhulu and Others Vs. Public Prosecutor, reported in AIR 1978 Supreme Court 429, V.R. Krishna Iyer, J., observed that "Bail or Jail?" - at the pre-trial or post-conviction stage - largely hinged on judicial discretion. The learned Judge held that personal liberty was too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it was a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. It was further held that deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution. The learned Judge quoted Lord Russel who had said that bail was not to be withheld as a punishment and that the requirements as to bail were merely to secure the attendance of the prisoner at trial. According to V.R. Krishna Iyer, J., the principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. After holding that it makes sense to assume that a man on bail has a better chance to prepare and present his case than one remanded in custody the learned Judge observed that if public justice is to be promoted mechanical detention should be demoted.
The principles laid down by the Supreme Court in Gurcharan Singh and Others Vs. State (Delhi Administration) AIR 1978 Supreme Court 179 were followed by the Supreme Court in Miss Harsh Sawhney Vs. Union Territory reported in AIR 1978 SCC 1016 and in Mohan Singh Vs. Union Territory, Chandigarh. In Mohan Singh Vs. Union Territory, Chandigarh, reported in AIR 1978 Supreme Court 1095, even though the counsel for the State argued that the corruption of which the accused was prima facie guilty was substantial, the Supreme Court held that it was not sufficient reason to refuse bail. In paragraph 2 of the said judgment the Supreme Court held thus :-
"Counsel for the State pressed before us that the corruption of which the appellant was guilty prima facie according to the results of the investigation) was substantial. Let us assume so. Even then refusal of bail is not an indirect process of punishing an accused person before he is convicted. This is a confusion regarding the rationale of bail. This Court has explained the real basis of bail law in Gurcharan Singh Vs. State (Delhi Administration) AIR 1978 SC 179; (1978 Crl. L.J. 129).
In Kashi Nath Roy v. State of Bihar, the Hon’ble Supreme Court has reminded that,
“As embedded in the criminal jurisprudence obtaining in this country, courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of “presumption of innocence of an accused” gets jeopardized; and the structural principle of “not guilty till proved guilty” gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as to affect the merit of the matter”.
In P. Chidambaram vs. CBI (Crl. Appeal No. 1603/2019) has held that “at the stage of granting bail, an elaborate examination of evidence and detailed reasons touching upon the merit of the case, which may prejudice the accused, should be avoided.”
In P. Chidambaram vs Directorate of Enforcement (CRIMINAL APPEAL NO.1831/2019), Hon’ble Supreme Court has considered that, despite holding the if triple test was justified whether other consideration is permissible and for which this Hon’ble Court again reiterated that basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court.
In view of above, it is concluded that to convince Hon’ble Court to grant bail, it can be stated by any petitioner that he is a law-abiding citizen having deep roots in the society, he will surrender passport and is willing to abide by all conditions as may be imposed by the court while granting bail and if criminal case is based on documentary case and being a respectable citizen and will not tamper with the documentary record of the instant case which is currently in the safe and secure possession of prosecution and further state if triple test held in favour of petitioner and depending upon the role whether active or passive assigned to petitioner in FIR, he may be the liberty of bail.