BAIL
1.Criminal Procedure Code, 1973 - Sections 436, 437, 440 and
441 - Bail system operates - Harshly against the poor - Non-poor
can take advantage - System in the Criminal Court is unsatisfactory
- Court must abandon and antiquoted concept of release only against
bail with surities - Safely release the accused on person bond
- Consideration of the factor - Accused has his roots in the community.
The bail system, administered in the Criminal Courts today, is
extremely unsatisfactory and needs drastic change. In the first
place it is virtually impossible to translate risk of non- appearance
by the accused into precise monetary terms and even its basic
premise that risk of financial loss is necessary to prevent the
accused from fleeing is of doubtful validity. Of course, it may
be necessary into provide an amendment of the penal law that if
the accused wilfully fails to appear in compliance with the promise
contained in his personal bond, he shall be liable to penal action.
But even under the law as it stands today the Courts must abandon
the antiquated concept under which pre-trial release is ordered
only against bail with sureties. That concept is outdated and
experience has shown that it has done more harm than good. The
new insight into the subject of pre-trial release which has been
developed in socially advanced countries and particularly the
United States should now inform the decisions of our Courts in
regard to pre-trial release. If the Court is satisfied, after
taking into account, on the basis of information placed before
it, that the accused has his roots in the community and is not
likely to abscond, it can safely release the accused on his personal
bond. To determine whether the accused has his roots in the community
which would deter him from fleeing, the Court should take into
account the following factors concerning the accused :
1. The length of his residence in the community.
2. his employment status, history and his financial condition,
3. his family ties and relationships,
4. his reputation, character and monetary condition,
5. his prior criminal record including any record of prior release
on recognizance or on bail,
6. the identity of responsible members of the community who would
vouch for his reliability,
7. the nature of the offence charged and the apparent probability
of conviction and the likely sentences insofar as these factors
are relevant to the risk of non-appearance, and
8. any other factors indicating the ties of the accused to the
community or bearing on the risk of willful failure to appear.
If the court is satisfied on the consideration of the relevant
factors that the accused has his ties in the community and there
is no substantial risk of nonappearance, the accused may, as far
as as possible, be released on his personal bond. Of Course, if
facts are brought to the notice of the court which go to the show
that having regard to the condition and background of the accused,
his previous record and the nature and circumstances of the offences,
there may be a substantial risk of his non-appearance at the trial,
as for example, where the accused is notorious bad character or
confirmed criminal or the offence is serious (these examples are
only by way of illustration), the Court may not release the accused
on his personal bond and may insist on bail with sureties.
[Hussainara Khatoon and Others (I) vs. State Of Bihar.1979-(066)-AIR
-1360 –SC;
1979-(085)-CRLJ -1036 –SC;1980-(001)-SCC -0081 –SC]
2. Constitution of India - Article 21 - Undertrials prisoners
- Order passed in Hussainara (I) reviewed and clarified - Review
of cases of all the prisoners confined in jail - Withdrawal of
cases of undertrials for more than two years - In regard to women
and children released on personal bond the Jail Authorities and
Social Welfare Department of the Government make arrangement for
their being taken care and looked after
Immediate review of the cases of all the undertrial prisoners
confined in jails of their respective districts and take necessary
legal steps for the withdrawal of cases in accordance with this
policy decision. The State Government has activised itself and
responded in some measure to the observations made by this Court
and decided to withdraw certain specific kinds of cases against
the undertrial prisoners in the jails. In regard to women and
children who have been released on personal bound pursuant to
the order made by this Court inasmuch as there is no one to take
care of them and they do not know where to go. The Social Welfare
Department of the Government of Bihar to contact the women and
children who have already been released on their personal bound
and to arrange for looking after them until the hearing and final
disposal of the writ petition. Court also direct the Jail authorities
that as and when they release any women and children on their
personal bond, they will immediately contact the Social Welfare
Department of the Government of Bihar or the District Officer-in-charge
of this Department and make arrangements for their being taken
care of and looked after by the Social Welfare Department as soon
as they are released on personal bond. Jail authorities and Social
Welfare Department must take care and looked after the women and
children who have been released on personal bond, where there
is no one to take care of them.
[Hussainara Khatoon And Others (Ii) vs. State Of Bihar, 1980-(001)-SCC
-0091 –SC]
3. CRIMINAL PROCEDURE CODE Sec. 437(1) & (6) -- IPC -- Secs.120-B
r/w. 420 - Non-bailable offence - Bail - The paramount consideration
would always be to ensure that the enlargement of such persons
on bail will not jeopardise the prosecution case - Complaint relates
to an offence alleged to have been committed by the appellants
nearly 16 years ago - Not much progress has taken place in the
conduct of the proceedings but the examination-in- chief and a
part of the cross-examination of the complainant, the main witness,
has been completed - Where the appellants are released on bail,
they would not be in a position to influence the witnesses, the
main witness being the complainant himself, or tamper with the
evidence - Sec. 437(1) provides that when any person accused of,
or suspected of, the Commission of any non- bailable offence is
brought before a Court, he may be released on bail unless his
case falls in cls. (i) or (ii) thereof and the instant case is
not covered by the said two clauses - Therefore, a person who
is suspected of having committed an offence u/s. 120-B r/w. s.
420 IPC would be entitled to bail - Accused- appellants entitled
to be released on bail
Sec. 437(1) provides that when any person accused of, or suspected
of, the Commission of any non-bailable offence is brought before
a Court, he may be released on bail unless his case falls in cls.
(i) or (ii) thereof and the instant case is not covered by the
said two clauses. Therefore, a person who is suspected of having
committed an offence u/s. 120-B r/w. s. 420 IPC would be entitled
to bail.
[Chandraswami And Another vs. CBI, 1996-(006)-SCC -0751 –SC]
4. Terrorist & Disruptive Activities (Prevention) Act, 1987
- Sec. 20(8) - Bail - For granting the bail, TADA detenue under
trials divided into four classes namely (a) hardcore under trials
whose release would prejudice the prosecution case and whose liberty
may prove to be a menace to society in general and to the complainant
and prosecution witnesses in particular; (b) other undertrials
whose overt acts or involvement directly attract ss. 3 and/or
4 of the TADA Act; (c) undertrials who are roped in, not because
of any activity directly attracting ss. 3 and 4, but by virtue
of s. 120-B or 147, IPC, and; (d) those undertrials who were found
possessing incriminating articles in notified areas and are booked
u/s. 5 of TADA - Different direction to deal them given - Hardcore
undertrials cannot receive liberal treatment - The Designated
Court will be at liberty to cancel the bail if any of these conditions
is violated or a case for cancellation of bail is otherwise made
out - Before granting bail, a notice shall be given to the public
prosecutor and an opportunity shall be given to him to oppose
the application for such release - The Designated Court may refuse
bail in very special circumstances for reasons to be recorded
in writing Held
Ordinarily, it is true that the provisions of ss. 20(8) and 20(9)
of TADA would apply to all the aforesaid classes. But while adopting
a pragmatic and just approach, no one can dispute the fact that
all of them cannot be dealt with by the same yardstick. Different
approaches would be justified on the basis of the gravity of the
charges. Adopting this approach we are of the opinion that undertrials
falling within group (a) cannot receive liberal treatment. Cases
of undertrials falling in group (b) would have to be differently
dealt with, in that, if they have been in prison for five years
or more and their trial is not likely to be completed within the
next six months, they can be released on bail unless the Court
comes to the conclusion that their antecedents are such the releasing
them may be harmful to the lives of the complainant, the family
members of the complainant, or witnesses. Cases of undertrials
falling in groups (c) and (d) can be dealt with leniently and
they can be released if they have been in jail for three years
and two years respectively. Those falling in group (b), when released
on bail, may be released on bail of not less than Rs.50,000 with
one surety for like amount and those falling in groups (c) and
(d) may be released on bail on their executing a bond for Rs.30,000
with one surety for like amount, subject to the following terms:
(1) The accused shall report to the police station concerned once
a week; (2) The accused shall remain within the area of jurisdiction
of the Designated Court pending trial and shall not leave the
area without the permission of the Designated Court; (3) The accused
shall deposit his passport, if any, with the Designated Court.
If he does not hold a passport, he shall file an affidavit to
that effect before the Designated Court. The Designated Court
may ascertain the correct position from the passport authorities,
if it deems it necessary; (4) The Designated Court will be at
liberty to cancel the bail if any of these conditions is violated
or a case for cancellation of bail is otherwise made out; (5)
Before granting bail, a notice shall be given to the public prosecutor
and an opportunity shall be given to him to oppose the application
for such release. The Designated Court may refuse bail in very
special circumstances for reasons to be recorded in writing. These
conditions may be relaxed in cases of those under groups (c) and
(d) and, for special reasons to be recorded, in the case of group
(b) prisoners. Also these directions may not be applied by the
Designated Court in exceptionally grave cases such as the Bombay
Bomb Blast case where a lengthy trial is inevitable looking to
the number of accused, the number of witnesses and the nature
of charges unless the Court feels that the trial is being unduly
delayed. However, even in such cases it is essential that the
Review Committee examines the case against each accused bearing
the above directions in mind, to ensure that TADA provisions are
not unnecessarily invoked.
It was on this basis that in the case of Supreme Court Legal Aid
Committee representing Undertrial Prisoners v. Union of India
[(1994) 6 SCC 731 : 1995 SCC (Cri) 39] this Court considered similar
provisions restricting the grant of bail under Narcotic Drugs
and Psychotropic Substances Act, 1985 and directed release of
undertrials on bail in certain situations and subject to the terms
and conditions set out there. The Court while doing so observed
: (SCC p. 748, para 15)
"... we have felt that deprivation of the personal liberty
without ensuring speedy trial would also not be in consonance
with the right guaranteed by Article 21. Of course, some amount
of deprivation of personal liberty cannot be avoided in such cases;
but if the period of deprivation pending trial becomes unduly
long, the fairness assured by Article 21 would receive a jolt.
It is because of this that we have felt that after the accused
persons have suffered imprisonment which is half of the maximum
punishment provided for the offence, any further deprivation of
personal liberty would be violative of the fundamental right visualised
by Article 21, which has to be telescoped with the right guaranteed
by Article 14 which also promises justness, fairness and reasonableness
in procedural matters".
It is in this context that it has become necessary to grant some
relief to those persons who have been deprived of their personal
liberty for a considerable length of time without any prospect
of the trial being concluded in the near future. Undoubtedly,
the safety of the community and of the nation needs to be safeguarded
looking to the nature of the offences these undertrials have been
charged with. But the ultimate justification for such deprivation
of liberty pending trial can only be their being found guilty
of the offences for which they have been charged. If such a finding
is not likely to be arrived at within a reasonable time some relief
becomes necessary.
The petition thus poses the poses the problem of reconciling conflicting
claims of individual liberty versus the right of the community
and the nation to safety and protection from terrorism and disruptive
activities. While it is essential that innocent people should
be protected from terrorists and disruptionists, it is equally
necessary that innocent people should be protected from terrorists
and disruptionists, it is equally necessary that terrorists and
disruptionists are speedily tried and punished. In fact the protection
to innocent civilians is dependent on such speedy trial and punishment.
The conflict is generated on account of the gross delay in the
trial of such persons. This delay may contribute to absence of
proper evidence at the trial so that the really guilty may have
to be ultimately acquitted. It also causes irreparable damage
to innocent persons who may have been wrongly accused of the crime
and are ultimately acquitted, but who remain in jail for a long
period pending trial because of the stringent provisions regarding
bail under TADA. They suffer severe hardship and their families
may be ruined.
Bearing in mind the nature of the crime and the need to protect
the society and the nation, TADA has prescribed in Section 20(8)
stringent provisions for granting bail. Such stringent provisions
can be justified looking to the nature of the crime, as was held
in Kartar Singh case [(1994) 3 SCC 569 : 1994 SCC (Cri) 899],
on the presumption that the trial of the accused will take place
without undue delay. No one can justify gross delay in disposal
of cases when undertrials perforce remain in jail, giving rise
to possible situations that may justify invocation of Article
21.
These competing claims can be reconciled by taking a pragmatic
approach.
The proper course is to identify from the nature of the role played
by each accused person the real hardcore terrorists or criminals
from others who do not belong to that category; and apply the
bail provisions strictly insofar as the former class is concerned
and liberally in respect of the latter class. This will release
the pressure on the courts in the matter of priority for trial.
Once the total number of prisoners in jail shrinks, those belonging
to the former class and, therefore, kept in jail can be tried
on a priority basis. That would help ensure that the evidence
against them does not fade away on account of delay. Delay may
otherwise harm the prosecution case and the harsh bail provisions
may prove counter-productive. A pragmatic approach alone can save
the situation for, otherwise, one may find that many of the undertrials
may be found to have completed the maximum punishment provided
by law by being in jail without a trial. Even in cases where a
large number of persons are tied up with the aid of Section 120-B
or 147, IPC, the role of each person can certainly be evaluated
for the purpose of bail and those whose role is not so serious
or menacing can be more liberally considered. With inadequate
number of courts, the only pragmatic way is not reduce the prison
population of TADA detenus and then deal with hardcore undertrials
on priority basis before the evidence fades away or is lost. Such
an approach will take care of both the competing interests. This
is the approach which we recommend to courts dealing with TADA
case so that the real culprits are promptly tried and punished.
For the purpose of grant of bail to TADA detenus, we divide the
undertrials into three (sic four) classes, namely, (a) hardcore
undertrials whose release would prejudice the prosecution case
and whose liberty may prove to be a menace to society in general
and to the complainant and prosecution witnesses in particular,
(b) other undertrials whose overt acts or involvement directly
attract Sections 3 and/or 4 of the TADA Act; (c) undertrials who
are roped in, not because of any activity directly attracting
Sections 3 and 4, but by virtue of Section 120-B or 147, IPC,
and; (d) those undertrials who were found possessing incriminating
articles in notified areas and are booked under Section 5 of TADA.
Ordinarily, it is true that the provisions of Sections 20(8) and
20(9) of TADA would apply to all the aforesaid classes. But while
adopting a pragmatic and just approach, no one can dispute the
fact that all of them cannot be dealt with by the same yardstick.
Different approaches would be justified on the basis of the gravity
of the gravity of the charges. Adopting this approach we are of
the opinion that undertrials falling with group (a) cannot receive
liberal treatment. Cases of undertrials falling in group (b) would
have to be differently dealt with, in that, if they have been
in prison for five years or more and their trial is not likely
to be completed within the next six months, they can be released
on bail unless the court comes to the conclusion that their antecedents
are such that releasing them may be harmful to the lives of the
complainant, the family members of the complainant, or witness.
Cases of undertrials falling in groups (c) and (d) can be dealt
with leniently and they can be released if they have been in jail
for three years and two years respectively. Those falling in group
(b), when released on bail, may be released on bail of not less
that Rs. 50,000 with one surety for like amount and those falling
in groups (c) and (d) may be released on bail on their executing
a bond for Rs. 30,000 with one surety for like amount….
[Shaheen Welfare Association vs. Union Of India, 1996-(002)-SCC
-0616 –SC;
1996-(083)-AIR -2957 –SC;1996-(102)-CRLJ -1866 –SC]
5. Terrorist and Disruptive Activities (Prevention) Act, 1987
- Sec. 20(8) - Release of accused on bail - Designated Court should
persue the charge sheet/police report submitted u/s. 173 (5) of
CrPC.
The TADA Act makes special provisions for the prevention of, and
for coping with, terrorist and disruptive activities, some of
which are different from the provisions of the Code of Criminal
Procedure (Hereinafter referred to as "the Code"). In
view of the non-obstante clause in different section, the provisions
of the TADA Act have overriding effect over the provisions and
procedure prescribed under the Code and the Evidence Act. On a
plain reading of sub-s. 8 of s. 20 of TADA Act a person who has
been accused of an offence punishable under the Act aforesaid
before he is released on bail two conditions must be fulfilled
(a) an opportunity must be given to the Public Prosecutor to oppose
the application for such release, (b) the Court must be satisfied
that there are reasonable grounds for believing that the said
accused is not guilty of such offence. In view of the aforesaid
conditions, it cannot be disputed that an application for bail
filed on behalf of a person who has been accused of an offence
punishable under the Act has to be examined carefully and cautiously
on basis of the charges levelled in the first information report,
and the evidence collected in course of the investigation. It
need not be impressed that the Police Report submitted after the
investigation of an alleged offence is not just mere expression
of the opinion of the Investigating Officer having no connection
or nexus with the materials collected during the investigation.
In view of sub-s. (5) of s. 173 when such report is in respect
of a case to which s. 170 of the Code is applicable i.e. where
it appears to the Investigating Officer "that there is sufficient
evidence or reasonable ground ..." the Investigating Officer
shall forward to the Magistrate along with the report all documents
and the statements recorded u/s. 161 of the Code. The framers
of the Code have vested powers in the Magistrate u/s. 190 (1)(b)
to take cognizance of any offence upon such a Police Report. If
Magistrate can take cognizance of an offence on the basis of a
Police Report submitted u/s. 173 (2) of the Code, how such Police
Report can be held to be irrelevant while considering an application
for bail under sub-s. (8) of s. 20 of the TADA Act, as to whether
there are reasonable grounds for believing that the accused in
question is not guilty of such offence and as such he should be
directed to be released. The conditions for grant of bail specified
under sub-s. (8) of s. 20 of the TADA Act are in addition to those
under the Code. This position has been made explicit by sub-s.
(9) of s. 20 of the TADA Act. The Designated Court should have
perused the charge sheet/Police Report submitted after the conclusion
of the investigation before passing the order of release on bail.
Accordingly, the order dated Jan. 24, 1992 directing the release
of the respondent on bail is set aside. It was directed that the
Designated Court, before which the charge-sheet/Police Report
has been filed, to hear the application for bail filed on behalf
of the respondent afresh and to peruse the Police Report along
with the documents and statements recorded, which have been forwarded
under sub-s. (5) of s. 173 of the Code and to pass an order in
accordance with law.
[Union Of India vs. Mohd. Sadiq Rather,1993-(001)-SCC -0008 –SC;
1993-(080)-AIR -0379 –SC;1993-(099)-CRLJ -0072 –SC]
6. Criminal Procedure Code, 1973 - Section 438 - Constitution
of India - Article 21 - Denial of bail amounts to deprivation
of personal liberty - Liberal interpretation against the imposition
of unnecessary restrictions on the scope of Section 438 - Beneficent
provision contained in Section 438 must be saved, not jettisoned.
Section 438 is a procedural provision which is concerned with
the personal liberty of the individual, who is entitled to the
benefit of the presumption of innocence since he is not, on the
date of his application for anticipatory bail, convicted of the
offence in respect of which he seeks bail. An over-generous infusion
of constraints and conditions which are not to be found in Section
438 can make its provisions constitutionally vulnerable since
the right to personal freedom cannot be made to depend on compliance
with unreasonable restrictions. In order to meet the challenge
of Article 1 of the Constitution, the procedure established by
law for depriving a person of his liberty must be fair, just and
reasonable.
Denial of bail amounts to deprivation of personal liberty, the
Court should lean against the imposition of unnecessary restrictions
on the scope of Section 438, especially when no such restrictions
have been imposed by the legislature in the terms of that section.
The High Court and the Court of Session to whom the application
for anticipatory bail is made ought to be left free in the exercise
of their judicial discretion to grant bail if they consider it
fit so to do on the particular facts and circumstances of the
case and on such conditions as the case may warrant. Similarly,
they must be left free to refuse bail if the circumstances of
the case so warrant, on considerations similar to those mentioned
in Section 437 or which are generally considered to be relevant
under Section 439 of the Code. There is no risk involved in entrusting
a wide discretion to the Court of Session and the High Court in
granting anticipatory bail because, firstly, these are higher
Courts manned by experienced persons, secondly, their orders are
not final but are open to appellate or revisional scrutiny and
above all because, discretion has always to be exercised by Courts
judicially and not according to whim, caprice or fancy. On the
other hand, there is a risk in foreclosing categories of cases
in which anticipatory bail may be allowed because life throws
up unforeseen possibilities and offers new challenges. No warrant
for reading into the conditions subject to which bail can be granted
under Section 437(1) of the Code. The expression "if it thinks
fit", which occurs in Section 438(1) in relation to the power
of the High Court or the Court of Session, is conspicuously absent
in Section 437(1). The power under Section 438 should not be exercised
if the investigating agency can make a reasonable claim that it
can secure incriminating agency can make a reasonable claim that
it can secure incriminating material from information likely to
be received from the offender under Section 27 of the Evidence
Act.
An order of anticipatory bail does not in any way, directly or
indirectly, take away from the police their right to investigate
into charges made or to be made against the person released on
bail.
Criminal Procedure Code, 1973 - Section 46 - When a person offers
to give information leading to the discovery of a fact, he may
appropriately be deemed to have surrendered himself to the police.
When a person not in custody approaches a police officer investigating
an offence and offers to give information leading to the discovery
of a fact, having a bearing on the charge which may be made against
him he may appropriately be deemed so have surrendered himself
to the police. The broad foundation of this rule is stated to
be that Section 46 of the Code of Criminal procedure does not
contemplate any formality before a person can be said to be taken
in custody : submission to the custody by word or action by a
person is sufficient. For similar reasons, anticipatory bail should
not be refused if a legitimate case for the remand of the offender
to the police custody under Section 167(2) of the code is made
out by the investigating agency.
The applicant should surrender himself to the police for a brief
period if a discovery is to be made under Section 27 of the Evidence
Act or that he should be deemed to have surrendered himself if
such a discovery is to be made.
Criminal Procedure Code, 1973 - Section 438 - Use of the expression
"reason to believe" - The belief that the applicant
may be so arrested must be founded on reasonable grounds - Court
must apply its own mind to the question and a `blanket order'
or anticipatory bail should not be passed - It can be granted
even after an FIR is filed, so long as the applicant has not been
arrested - Provisions of Section 438 cannot be invoked after the
arrest of the accused - An order of bail can be passed under the
section without notice to the Public Prosecutor.
The use of the expression `reason to believe' in Section 438(1)
shows that the belief that the applicant may be so arrested must
be founded on reasonable grounds. Mere `fear' is not `belief'.
A belief can be said to be founded on reasonable grounds only
if there is something tangible to go by on the basis of which
it can be said that the applicant's apprehension that he may be
arrested is genuine. A blanket order i.e. an order which serves
as a blanket to cover or protect any and every kind of allegedly
unlawful activity, in fact any eventuality, likely or unlikely
regarding which, no concrete information can possibly be had,
should not generally be passed. The filing of an FIR is not a
condition precedent to the exercise of the power under Section
438. But the provisions of Section 438 cannot be invoked after
the arrest of the accused. An order of bail can be passed under
Section 438(1) without notice to the Public Prosecutor. But notice
should issue to the Public Prosecutor or the Government Advocate
forthwith and the question of bail should be re-examined in the
light of the respective contentions of the parties.
If an application for anticipatory bail is made to the High Court
or the Court of Session it must apply its own mind to the question
and decide whether a case has been made out for granting such
relief. It cannot leave the question for the decision of Magistrate
concerned under Section 437 of the Code, as and when an occasion
arise. Such a course will defeat the very object of Section 438.
Interpretation of statutes - Proof of legislative intent - Words,
as wide and explicit as have been used in Section 438, must be
given their full effect.
The proof of legislative intent can best be found in the language
which the legislature uses. Ambiguities can undoubtedly be resolved
by resort to extraneous aids but words, as wide and explicit as
have been used in Section 438, must be given their full effect,
especially when to refuse to do so will result in undue impairment
of the freedom of the individual and the presumption of innocence.
A person who has yet to lose his freedom by being arrested asks
for freedom in the event of arrest. That is the stage at which
it is imperative to protect his freedom, insofar as one may, and
to give full play to the presumption that he is innocent.
Interpretation of statutes - Provisions of Sections 437 and 439
furnished a convenient model for the legislature to copy while
enacting Section 438 - If it has not done so and has departed
from a pattern which could easily be adopted with the necessary
modifications, held, it would be wrong to refuse to give to the
departure its full effect by assuming that it has not intended
to serve any particular or specific purpose.
The departure, was made advisedly and purposefully : Advisedly,
at least in part, because of the 41st Report of the Law Commission
which, while pointing out the necessity of introducing a provision
in the Code enabling the High Court and the Court of Session to
grant anticipatory bail, it had "considered carefully the
question of laying down in the statute certain conditions under
which alone anticipatory bail could be granted" but had come
to the clusion that the question of granting such bail should
be left "to the discretion of the Court" and ought not
to be fettered by the statutory provision itself, since the discretion
was being conferred upon superior Courts which were expected to
exercise it judicially.
Departing from the terms of Sections 437 and 439, Section 438(1)
uses the language that the High Court or the Court of Session
"may, if it thinks fit" direct that the applicant be
released on bail.
[Gurbaksh Singh Sibbia vs. State Of Punjab,1980-(002)-SCC -0565
–SC;
1980-(067)-AIR -1632 –SC;1980-(086)-CRLJ -1125 –SC]
7. Criminal Procedure Code, 1973 - Section 439 - Criminal Procedure
Code, 1898 - Section 498 - While passing orders on bail applications,
it is needed that the Court should be satisfied about a prima
facie case but detailed examination of the evidence and elaborate
documentation of the merits should be avoided - Court must not,
in grave cases, gulibly dismiss the possibility of police-accused
intimidating the witnesses with cavalier case.
The police have the advantage that they prepare the preliminary
record which may `kill' the case against them. This disquieting
syndrome of policemen committing crimes of killing and making
up perfect paperwork cases of innocent discharge of duty should
not be ruled out when Courts examine rival versions. Indeed, the
trial Judge shall not be influenced by what this Court said and
shall confine himself to the evidence in the case when adjudging
the guilt of the accused. The Sessions Judge, quite unwarrantedly,
discussed at prolix length the probabilities of the police party's
exculpatory case. Detailed examination of the evidence and elaborate
documentation of the merits should be avoided while passing orders
on bail application. No party should have the impression that
his case has been prejudiced.
Intimidation by policemen, when they are themselves accused of
offences, is not an unknown phenomenon and the judicial process
will carry credibility with the community only if it views impartially.
Criminal Procedure Code, 1973 - Section 439 - Person in custody
- Held, accused can be stated to be in judicial custody when he
surrenders before the Court and submits to its directions.
This word is of elastic semantics but its core meaning is that
the law has taken control of the person. The equivocatory quibblings
and hide-and-seek niceties sometimes heard in Court that the police
have taken a man into informal custody but not arrested him, have
detained him for interrogation but not taken him into formal custody
and other like terminological dubieties are unfair evasions of
the straightforwardness of the law. Court need not dilate on this
shady facet here because the accused did physically submit before
the Sessions Judge and the jurisdiction to grant bail thus arose.
Custody, in the context of Section 439, control or at least physical
presence of the accused in Court coupled with submission to the
jurisdiction and orders of the Court.
Criminal Procedure Code, 1973 - Section 439 - Criminal Procedure
Code, 1898 - Section 498 - Where the police officers applied for
bail before a Magistrate who refused bail and still the accused,
without surrendering before the Magistrate, obtained an order
for stay to move the Sessions Court - Held, direction of the Magistrate
was wholly irregular and maybe, enabled the accused persons to
circumvent the principle of Section 439 CrPC.
Magistrate who refused the bail cannot stay issuance of non- bailable
warrant to enable the accused to move to higher Court.
The Sessions Court acquired jurisdiction to consider the bail
application. It could have refused bail and remanded the accused
to custody, but, in the circumstances and for the reasons mentioned
by it, exercised its jurisdiction in favour of grant of bail.
The High Court added to the conditions subject to which bail was
to be granted and mentioned that the accused had submitted to
the custody of the Court. We, therefore, do not proceed to upset
the order on this ground. Had the circumstances been different
we would have demolished the order for bail. Supreme Court might
not have granted bail but, sitting under Article 136 this Court
should not interfere with a discretion exercised by the two Courts
below.
[Niranjan Singh vs. Prabhakar Rajaram Kharote,1980-(002)-SCC -0559
–SC;
1980-(067)-AIR -0785 –SC;1980-(086)-CRLJ -0426 –SC]
8. CRIMINAL PROCEDURE CODE Secs. 436 to 450 -- Bail -- Granting
or refusing thereof - Consideration of relevant factor - Nature
of the charge is the vital factor and the nature of the evidence
also is pertinent - The punishment to which the party may be liable,
if convicted or conviction is confirmed, also bears upon the issue
- Another relevant factor is as to whether the course of justice
would be thwarted by him who seeks the benignant jurisdiction
of the Court to be freed for the time being - It is not only traditional
but rational, in this context, to enquire into the antecedents
of a man who is applying for bail to find whether he has a bad
record - Particularly a record which suggests that he is likely
to commit serious offences while on bail - Bail discretion, on
the basis of evidence about the criminal record of a defendant
is therefore not an exercise in irrelevance - Contrary factors
also to be answered - If public justice is to be promoted, mechanical
detention should be demoted - Restorative devices to redeem the
man, even through community service, meditative drill, study classes
or other resources should be innovated, and playing foul with
public peace by tampering with evidence, intimidating witnesses
or committing offences while on judicially sanctioned `free enterprise',
should be provided against - Bad record and police prediction
of criminal prospects to invalidate the bail plea are admissible
in principle but shall not stampede the Court into a complacent
refusal
While granting bail to accused or refusing of it, the Court must
consider relevant factors necessary for it.
Let us have a glance at the pros and cons and the true principle
around which other relevant factors must revolve. When the case
is finally disposed of and a person is sentenced to incarceration,
things stand on a different footing. We are concerned with the
penultimate stage and the principal rule to guide release on bail
should be to secure the presence of the applicant who seeks to
be liberated, to take judgment and serve sentence in the event
of the Court punishing him with imprisonment. In this perspective,
relevance of considerations is regulated by their nexus with the
likely absence of the applicant for fear of a serve sentence,
if such be plausible in the case. As Erle, J. indicated, when
the crime charged (of which a conviction has been sustained) is
of the highest magnitude and the punishment of it assigned by
law is of extreme severity, the Court may reasonably presume,
some evidence warranting, that no amount of bail would secure
the presence of the convict at the stage of judgment, should he
be enlarged (Mod. Law Rev. p. 50 ibid., 1852 I E & B 1). Lord
Campbell, C.J. concurred in this approach in that case and Coleridge,
J. set down the order of priorities as follows : (Mod. Law Rev.
ibid., pp. 50-51)
I do not think that an accused party is detained in custody because
of his guilt, but because there are sufficient probable grounds
for the charge against him as to make it proper that he should
be tried, and because the detention is necessary to ensure his
appearance at trial ... It is a very important element in considering
whether the party, if admitted to bail, would appear to take his
trial; and I think that in coming to a determination on that point
three elements will generally be found the most important : the
charge, the nature of the evidence by which it is supported, and
the punishment to which the party would be liable if convicted.
In the present case, the charge is that of wilful murder; the
evidence contains an admission by the prisoners of the truth of
the charge, and the punishment of the offence is, by law, death.
It is thus obvious that the nature of the charge is the vital
factor and the nature of the evidence also is pertinent. The punishment
to which the party may be liable, if convicted or conviction is
confirmed, also bears upon the issue.
Another relevant factor is as to whether the course of justice
would be thwarted by him who seeks the benignant jurisdiction
of the Court to be freed for the time being. (Patrick Devlin :
The Criminal Prosecution in England, (London) 1960, p. 75 - Mod.
Law Rev. ibid., p. 54)
Thus the legal principles and practice validate the Court considering
the likelihood of the applicant interfering with witnesses for
the prosecution or otherwise polluting the process of justice.
It is not only traditional but rational, in this context, to enquire
into the antecedents of a man who is applying for bail to find
whether he has a bad record - particularly a record which suggests
that he is likely to commit serious offences while on bail. In
regard to habituals, it is part of criminological history that
a thoughtless bail order has enabled the bailees to exploit the
opportunity to inflict further crimes on the members of society.
Bail discretion, on the basis of evidence about the criminal record
of a defendant, is therefore not an exercise in irrelevance.
The significance and sweep of Article 21 make the deprivation
of liberty a matter of grave concern and permissible only when
the law authorising it is reasonable, even-handed and geared to
the goals of community good and State necessity spelt out in Article
19. Indeed, the consideration I have set out as criteria are germane
to the constitutional proposition I have deduced. Reasonableness
postulates intelligent care and predicates that deprivation of
freedom by refusal of bail is not for punitive purpose but for
the bi-focal interests of justice - to the individual involved
and society affected.
We must weigh the contrary factors to answer the test of reasonableness,
subject to the need for securing the presence of the bail applicant.
It makes sense to assume that a man on bail has a better chance
to prepare or present his case than one remanded in custody. And
if public justice is to be promoted, mechanical detention should
be demoted. In the United States, which has a constitutional perspective
close to ours, the function of bail is limited, 'community roots'
of the applicant are stressed and, after the Vera Foundation's
Manhattam Bail Project, monetary suretyship is losing ground.
The considerable public expense in keeping in custody where no
danger of disappearance or disturbance can arise, is not a negligible
consideration. Equally important is the deplorable condition,
verging on the inhuman, of our sub-jails, that the unrewarding
cruelty and expensive custody of avoidable incarceration makes
refusal of bail unreasonable and a policy favouring release justly
sensible.
A few other weighty factors deserve reference. All deprivation
of liberty is validated by social defence and individual correction
along and anti-criminal direction. Public justice is central to
the whole scheme of bail low. Fleeing justice must be forbidden
but punitive harshness should be minimised. Restorative devices
to redeem the man, even through community service, meditative
drill, study classes or other resources should be innovated, and
playing foul with public peace by tampering with evidence, intimidating
witnesses or committing offences while on judicially sanctioned
'free enterprise', should be provided against. No seeker of justice
shall play confidence tricks on the Court or community. Thus,
conditions may be hung around bail orders, not to cripple but
to protect. Such is the holistic jurisdiction and humanistic orientation
invoked by the judicial discretion correlated to the values of
our Constitution.
[Gudikanti Narasimhulu and Others vs. Public Prosecutor,High Court
of Andhra Pradesh,1978-(001)-SCC -0240 –SC;1978-(065)-AIR
-0429 –SC;1978-(084)-CRLJ -0502 –SC]
9. Secs. 437, 441(3) & 209(b) -- Where the offence is triable
by the Court of Session Magistrate, while releasing the accused
on bail, may require execution of a bond binding the accused not
only to appear as and when required before him but also to appear
when called upon in the Court of Session
Criminal Procedure Code, 1973 - Section 437 - Whenever an accused
is released on bail he need not be required to appear before the
Court until the charge-sheet is filed and the process is issued
by the Court
In cases triable by the Court of Session, the practice followed
is that when an accused is released on bail by the Magistrate,
the bail is granted to him only during the pendency of the enquiry
before the Magistrate, with the result that when the case is committed
to the Court of Session, he is rearrested and brought before the
Court of Session where he has to apply once again for fresh bail.
This causes considerable inconvenience to the accused without
any corresponding advantage so far as the administration of criminal
justice is concerned. There is provision in s. 441, sub-s. (3)
of the CrPC under which bail can be granted to an accused so as
to bind him to appear before the Court of Session, in which event,
on committal, he would not have to be rearrested and brought before
the Court of Session. It is also clear from s. 209, cl. (b) of
the CrPC that the Magistrate has discretion to release the accused
on bail `during and until completion of trial' even in cases where
the offence is triable by the Court of Session. Magistrate, while
releasing the accused on bail, may require execution of a bond
binding the accused not only to appear as and when required before
him but also to appear when called upon in the Court of Session.
Magistrate, while releasing the accused on bail, may require execution
of a bond binding the accused not only to appear as and when required
before him but also to appear when called upon in the Court of
Session.
[Free Legal Aid Committee, Jamshedpur vs. State Of Bihar,1982-(003)-SCC
-0378 –SC;
1982-(069)-AIR -1463 –SC;1982-(088)-CRLJ -1943 –SC]
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