Discretion in granting Bail in Non-Bailable Offences

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MEANING OF BAIL

Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. The law lexicon[1] defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation.

Courts have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide.

What is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court."

A reading of the above definition make it evident that money need not be a concomitant of the bail system. As already discussed above, the majority of the population in rural India, lives in the thrall of poverty and destitution, and don't even have the money to earn one square meal a day. Yet, they are still expected to serve a surety even though they have been charged with a bailable offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened criminals and effectively being treated as a convict.

The offences committed by an accused fall under two categories:

1. BAILABLE OFFENCES:

Bailable offences are offences mentioned in the I schedule of the Indian Penal code as bailable offences. When any person accused for a bailable offence is arrested or detained without warrant by police officer or is brought before a Court, he must be released on bail, if a request for bail is made. In case of a bailable offence, bail is a matter of right .If such officer or Court thinks it fit, such person maybe released on a personal bond without sureties.  If for any reason, the police doesn’t give bail, the arrested person must be produced before a Magistrate within 24 hours of arrest.

2.NON-BAILABLE OFFENCES:

In case a person is accused of a non-bailable offence it is a matter of discretion of the court to grant or refuse bail and and application has to be made in court to grant bail.A person will not be released if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (or) Such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.  However a person under the age of sixteen years or a woman or a sick or infirm person may be released on bail. If, at any time after the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court feels that the accused is not guilty of any such offence, it shall release the accused on bail.  

Introduction

Purpose of arresting a person is to secure the presence of the accused at the time of enquiry, trial or other proceedings. However, consequences of pre-trial confinement are grave, therefore, the provision of Bail is provided. Objective is to release on bail maximum number of accused persons without seriously endangering the objective of arrest and trial since there is presumption of innocence of an accused till he is found guilty.

It is improper to release on bail a person who-

a. Absconds or jumps bail

b. Is likely to destroy evidence

c. Tempers with prosecution witness or is likely to commit more offences

Circumstances in which release on bail is mandatory.

1. Arrestee not accused of non-bailable offence

a. Ready to execute / furnish bond

b. Bail- not excessive

c. Detention illegal (contravention of Section 436) (Officer will be guilty of wrongful confinement under section 342 of IPC)

2. Investigation not complete within time prescribed

a. Maximum detention

b. 90 days - when punishment from the crime is more than 10 years

c. 60 days - all other cases

d. Object - investigation must be completed expeditiously and within reasonable time

3. No reasonable ground exists for believing the accused guilty of non-bailable offence

4. Trial before Magistrate not concluded within 60 days

5. No reasonable ground exists for believing the accused guilt after conclusion of trial but before judgment.

Discretion in granting bail in cases of non-bailable offences.

a. "May" clearly indicates discretion

b. Allowance of bail is the rule and refusal of it is an exception

c. Circumstances for granting bail

d. Severity of punishment

e. Evidence in support

f. Danger of witness being tempered

g. Likelihood of accused fleeing from justice

h. Access to his counsel

i. Health, age and sex of the accused

j. Accused required for identification parade not a ground for refusing bail

No bail in case of offence punishable with death or imprisonment for life

k. Exception

l. Person under 16 years

m. Woman

n. Sick or infirm person

o. Conditions for bail

p. Comply with conditions of bail bond (Chapter 33)

q. Ensuring the accused shall not commit similar offence

r. In the interest of justice

s. When Conditions to be imposed

t. When Conditions to be imposed

u. Imprisonment more than seven years

v. Chapter 16 of IPC (Offences affecting human body)

w. Chapter 17 of IPC (Offences against property )

x. Chapter 6 of IPC (Offences against State)

y. Abetment, Conspiracy and attempt of abovementioned offences.

Granting of Bail with conditions.

Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides:

When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary: -

(a)In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b)In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c)Otherwise in the interests of Justice.

It will be noticed that: -

1)The power to impose conditions has been given to the court and not to any police officer

2)The power to impose conditions can only be exercised -

i)Where the offence is punishable with the imprisonment which may extend to seven years or more or

ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or

iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii).

Power of High Court and the Court of Sessions.

The Court may-

a. Impose conditions

b. Conditions may be set aside or modified

Before granting bail, in cases of offences triable exclusively by Sessions Court the Court must give notice to the Public Prosecutor. The powers of High Court in granting bail is very wide.

Anticipatory Bail (Section 438 Cr.P.C.).

Section 438 provides for discretion to release a person on bail issued even before the person is arrested. The ingredients of the section are:

1. Only High Court and Sessions Court

2. Commission of non-bailable offence

3. Apprehension of arrest

4. Event of arrest - release on bail

5. Conditions and directions

i. Available for interrogation by the police

ii. No inducement, threat or promise to any person acquainted with the facts

iii. Person shall not leave India

iv. Fulfill conditions for bond, if any

v. Not commit similar offence

vi. In the interest of justice

6. Shall be released on bail

7. Magistrate may issue bailable warrant in conformity with the direction of the Court

 

It may be mentioned that Section 438 applies to both bailable and non-bailable offences and it is not necessary that FIR or police complaint has been registered before granting Anticipatory Bail. This is an extraordinary power - exercised sparingly and in exceptional cases. However, the power not unguided or uncanalised - all limitations of Section 437 to apply.

In case incriminating material is found (under section 27 Evidence Act) - anticipatory bail must not be granted. Anticipatory Bail is also not granted in case of economic offence and dowry death cases. It may further be pointed out that Prosecution must be given notice - opportunity to oppose application and no order for granting anticipatory bail after person is arrested.

Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act provides for exclusion of provision for granting anticipatory bail. The Courts have consistently held that the said section is not violative of Article 21 of the Constitution.

Cancellation of Bail.

a. Obstructs the smooth progress of a fair trial

b. Jumps bail

c. Absconds

d. Runs away to foreign country

e. Conditions of the bail regarding time/ place of attendance

f. Discretionary

g. Cancellation necessarily involves review of decision already made ( Public Prosecuter v. George William alias Victor )

Cases where Bail is cancelled.

a. Commits the same offence again

b. Hampers investigation

c. Tempers evidence

d. Runs away to foreign country

e. Acts of violence against police or prosecution witness.

IMPORTANT JUDGEMENTS IN THIS REGARD.

M. Hanumantha Reddy vs Government Of Mysore on 7 April, 1952

Bench: Balakrishnaiya

ORDER

Balakrishnaiya, J.

1. This petition was filed under Section 497, Cr.P.C. and another petition under Section 498 was filed on 4.4.52 in Court, supported by an affidavit and a Doctor's certificate. Both these petitions contain a prayer for enlarging the petitioner on bail. The Advocate-General stated that there was no objection to treat the earlier petition itself as having been filed under Section 498.

2. For an alleged attempt made on 24.3.1952 to commit murder by strangulation, the petitioner was arrested and a case against him was registered under Section 307, I.P.C. The applications for bail filed by him in the Court of the City Magistrate, ' Bangalore, before whom he was produced in the course of investigation, have been rejected.

3. The offence under Section 307, I.P.C. is a non-bailable one. The Criminal Procedure Code under Section 495 provides for granting bail in offences other than non-bailable, and Section 497 regulates the admission to bail in non-bailable cases. While under Section 496 a person may be released on bail invariably On an application in that behalf, Section 497 places a limitation on the powers of a Magistrate in that respect. A distinction is drawn under Section 497 between non-bailable offences which are punishable with death or transportation for & life and other non-bailable offences. A Magistrate is vested with discretion to release any person accused of a non-bailable offence on bail except in cases where there appear reasonable grounds for believing that the person is guilty of an offence punishable with death or transportation for life. It is argued for the prosecution that the offence alleged to have been committed by the petitioner is of a grave and serious character punishable with transportation for life, that in the light of the evidence so far collected, the Magistrate has come to the reasonable belief that such an offence has been committed and refused to admit the petitioner to bail and that in such circumstances the High Court ought not to interfere with the discretion exercised by the Magistrate unless the order rejecting the bail is per verse or manifestly wrong. On the other hand, it is contended on behalf of the petitioner that no offence punishable with transportation for life has been committed and even so, the High Court has unfettered discretion under Section 498, Cr.P. C. to grant bail if the circumstances of the case permit, irrespective of the limitations imposed by Section 497 on the trial Magistrate.

4. The most important point for consideration is whether the High Court has extended powers under Section 498, Cr.P.C. The latter part of Section 498 runs thus:

and the High Court or Court of Session may, in any case whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced.

The powers of the High Court and the Court of Session under Section 498 are of a concurrent jurisdiction with that of a Magistrate. It is seen on a comparison of Sections 497 and 498 that the High Court is invested with power under Section 498, Cr.P.C. as a Court of superior, appellate or revisional jurisdiction and has vast powers to direct that any person be admitted to bail in any case. Prom the wording of Section 498, Cr.P.C.:

It is manifest that the discretion given to this Court and also to the Court of Session, is unrestricted in any way by the terms of the statute. Two things follow from this, firstly that the discretion is one which must be judicially exercised and secondly that the Court has power if it does grant bail to grant it on such conditions as the circumstances of the case and the public interest may require." (Per Boys J. in-Emperor v. H.L. Hutchinson AIR 1931 All. 356 at p. 360 (A)).

5. It has been strenuously argued that the direction given by Section 498 is limited by, or in practice limited by, the conditions found in Section 497 and there is some support for the proposition in reported decisions but the preponderance of authority appears to be in favour of the view that under Section 498 the High Court has unrestricted powers for directing bail in any case to any person. The discretion of the High Court is not limited to the consideration set out by Section 497 but that consideration is to be considered along with all the circumstances of the case. I am therefore of opinion that Section 498 is not controlled by Section 497 so as to preclude the consideration by the High Court of the other circumstances in order to entitle any person to bail. No reported decision of this Court, directly bearing on this point, was brought to my notice but two unreported decisions were cited by the learned Advocate-General as supporting the proposition that Section 498 is controlled by Section 497. I am inclined to think that those cases do not support that view. In-Cr. Petns. Nos. 7 and 13 of 1951-52 (B) the learned Judge observed that:

the High Court is bound to follow the general law as a rule and not depart from it except under special circumstances, especially so in the initial staged of a case; see-Boudville H.M. v. Emperor AIR 1925 Rang 129 (C).

In other petition-Cri. Petn. No. 121 of 1951-52 (D) where the argument that the High Court has extended powers was advanced at the Bar his Lordship Vasudevamurthy j. observed that:

While it may be that this Court has under Section 498, Cr.P.C. some such larger powers, I am not prepared to say that in the present case there are any special grounds for so enlarging the petitioner on bail.

It is seen that these decisions do recognise the attended powers of the High Court in the matter of granting bail under Section 498, but such powers should be exercised only where there are special grounds or exceptional circumstances. The general trend of opinion as expressed in the several decisions of the High Courts in India is also the same. Thus in-AIR 1931 All. 356 (A) Mukerji J. observed:

The High Court's power of granting bail is conferred on it by Section 498 and is entirely unfettered by any conditions.

Boys J. the other Judge constituting the Bench In the same case observed that:

the Legislature has given the High Court and the Court of Session discretion (to act under Section 497) unfettered by any limitation other than that which controls all discretionary powers vested in a Judge viz., that the discretion must be exercised judicially.

6. A later Pull Bench decision of the same Court reported in-Joglekar K.N. v. Emperor AIR 1931-All 504 (E) has in fact approved and reiterated the opinion of the Division Bench; Sir Sulaiman Ag.C.J., Young and King JJ. held that:

Section 498, Cr.P.C. gives an unfettered discretion to the High Court or the Court of Session to admit an accused person on bail. It is a mistake to imagine that Section 498 is controlled by the limitations of Section 497 except when there are not reasonable grounds for believing that the accused committed the offence, or there are reasonable grounds for believing that he is not guilty, in which cases it becomes a duty to release him. Magistrates can proceed under Section 497 only and their discretion is regulated by the provisions of that section; but Section 498 confers upon a Sessions Judge or the High Court wide powers to grant bail which are not handicapped by the restrictions in the preceding section. The discretion is unfettered, but of course it cannot be exercised arbitrarily but must be exercised judicially. There is no hard and fast rule and no inflexible principle governing such discretion. The only principle that is established is that there should be a judicial exercise of that discretion. It is not any one single circumstance which necessarily concludes the decision, but it is the cumulative effect of all the combined circumstances that must weigh with the Court. The considerations are too numerous to be classified or catalogued exhaustively.

This, if I may say so with great respect, is a correct statement of the present position of the law on the point. This decision has been followed by a recent case of the High Court of Madhya Bharat reported in-Vasant v. State AIR 1951 Madh-B 104 (F), Rege J. observed that:

The wide powers conferred by Section 498, Cr.P.C. are not intended to be exercised in an arbitrary manner, but judicially and so as not to make a violent departure from the provisions of Section 497 of the Code. This, I may add with respect is the 'ratio decidendi1 of decisions of High Courts In India of which I would refer to-Joglekar K.N. v. Emperor AIR 1931 All 504 (FB) (E);Keshav Vasudeo v. Emperor AIR 1933 Bom 492 (G);-Ashraf Ali v. Emperor AIR 1915 Cal 784 (H);-Boudville H.M. v. Emperor AIR 1925 Rang 129 (C). Section 498 as look at it provides for cases in which considerations other than the gravity of the case make it expedient that the accused should have freedom during the trial.

7. A substantially similar view was taken by Thomas C.J. in-Emperor v. Abhairaj Kunwar AIR 1940 Oudh 8 (I) in connection with an application for bail in a case where the offence was under Section 307, I.P.C. as in the present case. The learned Judge held that

under Section 498 the High Court has power to release a person on bail in any case, that is to say the power in granting bail in non-bailable offence is unrestricted, but that power has to be used judicially and not in an arbitrary manner.

The High Court of Lahore in-Emperor v. Krishnagopal AIR 1933 Lah 925 (J) has followed the Pull Bench decision of Allahabad cited above and expressed that

under Section 493, Cr.P.C. the High Court, and the Court of Session have an unlettered discretion in the matter of granting bail, but the discretion must be exercised judicially and not arbitrarily and that in the exercise of the powers under that section the limitations imposed by Section 497 on the power of other authorities to grant bail should ordinarily be taken into consideration.

A similar interpretation has been put in a recent case of Patna High Court reported in-Sagri Bhagat v. State of Bihar . At page 500 the learned Judge observed thus:

Lastly I mast point out that Section 498, Cr.P.C. under which a High Court passes an order for bail has given an unfettered discretion to the High Court or the Court of Session to admit an accused person to bail and as was pointed out by a F.B. of the High Court in-AIR 1931 All 504 (FB) (E)

8. I shall now proceed to examine some of the decisions which have been cited in four of the view that the powers under Section 493. Cr.P.C. are limited and controlled by the conditions laid down by Section 497. In -AIR 1915 Cal 784 (H) it was held that:

We think that the rule laid down in Section 407 for the guidance of Courts other than the High Court is a rule founded upon justice and equity and one which should be followed by us as well as by every other Court unless anything appears to the contrary. The extended powers given to the High Court under Section 498 are certainly not to be used to get rid of this very reasonable and proper provision of the law.

9. This case is followed by-Gill v. Emperor AIR 1928 Sind 142 (L), in which the learned Judges lay down that:

both on principle and authority Section 498 must be interpreted as being controlled by the provisions of Section 497:-Emperor v. Sowrindra Mohan 37 Cal 412 (M) and AIR 1915 Cal 764 (H) followed.

10. It is seen that the extended powers vested in the High Court under Section 498 is recognised by the Calcutta case which is followed by the High Court of Sind, These cases do not very much further the  view advanced by the prosecution. Duckworth J. in -AIR 1925 Rang 129 (C) held thus:

but a High Court in not limited within the bounds of Section 497 and it has absolute discretion in the matter. As however, the Legislature has placed the initial stage of dealing with crimes with Magistrates and having, in effect, enacted that persons accused of non-bailable offences shall be detained in custody except when there are, in the opinion of the Magistrate dealing with the case, no reasonable grounds for believing that the accused has committed the offence charged against him, a High Court is bound to follow the general law as a rule and not to depart from it except under very special circumstances especially so in the initial stages of a case.

It may be mentioned in passing that this case has been noticed in one of the unreported cases of this Court referred to above. The question sub-sequently came up for decision before the Pull Bench of the same Court-Emperor v. Nga San Htwa AIR 1927 Rang 205 (FB) (N), which rends thus:

With regard to the decision in-AIR 1925 Rang 129 (C) while I agree that the learned Judge exercised his discretion properly in that case, certain of his dicta are not happily worded. I do not think that the amended Section 497 limits the powers of Magistrates in granting bail in case-of non-bailable offences except in cases punishable with transportation for life or with death.

The learned Judge goes on to say:

But a High Court is not limited within the bounds of that Section 497. It has absolute discretion in the matter.

This, of course, is quite accurate. That absolute discretion is given by Section 498. In the subsequent passage the learned Judge states:

A High Court is bound to follow the general law as a rule.

The word 'bound' is not happy and would seem to negative the absolute discretion given by Section 498. The more accurate method of stating the principle seems to be this. Though the discretion is absolute the High Court must exercise it judicially, and since the Legislature has chosen to entrust the initial stage of dealing, with questions of bail to Magistrates and white giving Magistrates an unfettered discretion of granting of bail in all cases except two classes, i.e., cases punishable with drain and cases, punishable with transportation for life, the High Court ought not to grant bail in such cases except for exceptional and very special reasons.

11. The same question and substantially in the same form came up for decision before the Bombay High Court reported in-AIR 1933 Bom 492 (G) where Broomfield and Divatia JJ. Held:

Having regard to Section 498 it is clear that the power of the Sessions Judge like the power of the High Court, is unlimited and not fettered, as the discretion of the Magistrate is by the provisions of Sub-section (1), Section 497 except of course in this case that the Sessions Judge like the High. Court will naturally not grant bail in a case which comes under the clause in question unless there are some good grounds for doing so.

12. It is thus seen that the earlier view of the single Judge has been modified and the general view of the majority has been accepted. The principles deducible from a consideration of these decisions are that under Section 493 the High Court and the Court of Session are vested with extended jurisdiction and that such extended jurisdiction should only be used in exceptional circumstances. I therefore hold that the High Court has unfettered discretion under Section 498 and is not precluded from spacing special circumstances into, consideration for granting bail regard being hart to the rule of general law under Section 497, Cr.P.C.

13. The grant or refusal of bail depends upon the particular circumstances of each case. The mere fact that an offence is punishable by transportation for life is not by itself sufficient to refuse bail under Section 498. There is abundant authority for the view that even in cases punishable with death or transportation for life Courts have granted bail in view of the special circumstances in those cases. To illustrate from the cases considered herein bail is granted for offences under Section 121A in-AIR 1931 All 356 (A) and-AIR 1931 All 504 (E); so also for an alleged offence under Sections 307 and 302 read with Section 109, I.P.C. in-AIR 1940 Oudh 8 (I) and-AIR 1933 Lah 925 (J) respectively. In AIR 1933 Bom 492 (G) the offence was under Section 409 and bail was granted. All these cases at any rate are punishable with transportation for life.

14. Considering the circumstances of the present case I am of opinion that there exist special circumstances which make it just and proper to release the accused on bail. On behalf of the petitioner an affidavit has been filed countersigned by the father of the petitioner who is a responsible officer in Government service but who happens to be at present disabled by an accident and undergoing treatment as an in-patient in the hospital and in that affidavit it is affirmed that the petitioner is mentally very much depressed showing tendencies to commit suicide and otherwise subject to delusions, that the petitioner was under the treatment of one Dr. K. Subba Rao in December 1951 and was lat.fr obtaining prescriptions from the Victoria Hospital and that he still continues to be in a depressed state of health requiring treatment. Dr. Subba Rao referred to therein has issued a certificate to the effect that he was treating the petitioner for neurasthenia associated with mental delusions and a suicidal frame of mind. The doctor must be presume to be a disinterested person, interest only with the health of his patient; his certificate is therefore entitled to some weight. As against this, the Investigating officer in an affidavit filed by him avers that the story of sickness is merely an afterthought and that the petitioner pleaded unsoundness of mind only in his second petition for bail and this fact presumably may go to indicate that the sickness is a mere fake and set up to concoct false defence. I am not inclined to express any opinion on the merits of the case nor about the alleged sickness. The affidavit on behalf of the petitioner supported by the Doctor's certificate indicates prim a facie that the petitioner is sick and in a bad stale of health. The trial Magistrate at the conclusion of his order has stated that the police will be instructed to afford all medical facilities to the accused till he is produced before Court on 31.3.52.

The prosecution frankly admitted that they have neither got the petitioner examined by a Doctor nor afforded any facility for his treatment, the explanation being that in the opinion of the Investigating Officer the petitioner is not apparently sick. It is rather difficult to proper the diagnosis of the Investigating Officer to the certificate of a qualified doctor. To a suggestion by the Court that the prosecution may arrange at the cost of the petitioner to get him examined by an expert doctor, and if need be, to admit him into the Mental Hospital the prosecution expressed its unwillingness to do so. If a person is sick and is suffering from neurasthenia, associated with mental delusion as the certificate of the Doctor testifies, I think it is but just and reasonable to afford facilities for treatment by enlarging him on bail. It is stated that the investigation is now complete and consequently no question of any danger of the evidence of the prosecution being tampered with arises.

15. In the affidavit filed by the Investigating Officer two objections are raised viz. that it is apprehended that if the petitioner is released on bail he is likely to get up a false defence in his favour and that the petition will escape the ends of justice by not attending the Court and making himself scarce. If it is intended that the petitioner should be locked up so as to hamper in his defence I am unable to subscribe to that view. The policy of have is to grant bail rather than refuse it in cases of under-trial prisoners and the Court should be lenient till they are convicted. It is the glorious principle of criminal justice that a man is considered to be innocent till he is found guilty & when he is accused of an offence he must have freedom to defend himself. I am supported in this view by the observations of Mukherji J. in the case reported in-AIR 1931 All 353 (A). The learned Judge states thus:

The principle to be deduced from Sections 496 and 497 is that grant of bail is the rule and refusal is the exception. An accused person is presumed under law to be innocent till his guilt is proved. As a presumably innocent person he is entitled to every freedom and every opportunity to look after his case. An accused person if he enjoys freedom will be in a much better position to look after his case and to properly defend himself than if he were in custody.

The next objection that the petitioner will escape the ends of justice by not attending to the Court and making himself scarce is really an important one. The only legitimate purpose to be served by keeping a person under trial in detention is to secure attendance at the trial. The circumstances-as gathered from the affidavits in this case are that the petitioner is a Law Graduate and an Advocate; his father is one of the Deputy Commissioners in the State service and that the petitioner is willing to furnish adequate security to-appear whenever called upon. It appears to me that in the circumstances there are no reasonable grounds for apprehension of the prosecution that the petitioner is likely to abscond or otherwise make himself scarce.

16. What remains for consideration is regarding the terms of security upon which the petitioner may be enlarged. Taking all the aspects of the case into consideration I direct that the-petitioner shall furnish two sureties for Rs 10,000/- (ten thousand) each and in addition execute a personal bond for a. like sum to the satisfaction of the trial Court. The special circumstances existing in tills case as can be gathered from the affidavits and other papers filed do justify the petitioner to be released on bail at present and I order accordingly on the terms indicated above. It must of course be specifically understood that the principal ground upon which the bail is granted is the consideration of health and when the deterioration of health vanishes and the petitioner regains his normal state, nothing prevents the prosecution from applying for the cancellation of the bail if such a step is deemed necessary in the interests of justice.

2.  The Supreme Court has added several criteria of its own to the list of factors to be taken into account when granting bail in non-bailable offences, such as probability of recommission of the offence, possibility of frightening witnesses, probability of evidences being tampered, the seniority of the accused and his consequent circles of influence in affecting the investigation if released. Prominent cases on this point include State through CBI v. Amarmani Tripathi AIR 2005 SC 3490,Gurcharan Singh v. State of Delhi, AIR 1978 SC 179. The other significant judicially evolved dictum regarding the grant of bail in non-bailable offences is the rule of ‘bail not jail’, implying that as far as possible the Courts must try and grant bail and only in exceptional circumstances can bail be refused.

The present 2G Spectrum case, seen in light of the above propositions on the law of bail, conjures up  a unique scenario. The accused are charged with offences ranging from cheating to criminal breach of trust, punishable with upto 7 years imprisonment. As the Delhi HC rightly noted, offences involving injury to person or property can affect one, two or a few people, whereas economic offences affect every citizen and undermine the bedrock of democratic governance itself, and hence must be seen as being of the highest gravity.

Nevertheless, the Court has granted bail, presumably on the basis of the facts that the investigation was over, so witness tampering is ruled out; the involvement of the relevant accused is also shown to be rather remote and the usual tom-tomming of the ‘bail, not jail’ rule. What also seemed to jar me was that on hearing the news of the release of accused on bail, I instinctively felt a sense of wrong, that the release should not have happened, that the persons concerned are ex facie guilty of the most disgusting sort of offences born out of the rush that power gives and that the very fact that the best legal minds, from Siddarth Luthra to Soli Sorabjee and Ram Jethmalani to KTS Tulsi, were on the side of the accused was indicative of patent unfairness in our criminal justice system.

However, if the matter were to be seen from a ‘neutral’ point of view (whatever that is), perhaps the bail not jail rule should apply, and in fact should have applied even earlier. The fact is that the Courts, while supplying adequate legal reasons while disposing of the bail applications, would nevertheless have been influenced by public opinion, the media circus built up and the ramifications of the grant of bail on a nation in the throes of a veritable revolution. In either case, my instinctive vehement opposition on hearing of the grant of bail most clearly brought out the inherently complex nature of the legal profession and the ethical duty to defend a person, no matter how guilty or what the offence the person is accused of.

Neutrality, on the bench or at the bar, is clearly not something that comes naturally, and it is evidently that spirit that is so hard to cultivate and mantain for our honourable judges.

 

3. In words of Krishna Iyer J. .. the subject of bail:-

" ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process."

Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.

Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty".

In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail.

CONCLUSION

It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. Thus the law of bails must continue to allow for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of criminal justice system and to sensitize the same to the needs of those who must otherwise be condemned to languish in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail matters or to furnish the bail amount itself.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases.

 

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TEENA BANSAL 
on 08 January 2013
Published in Criminal Law
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