Bail
By: Hifajatali Sayyed
Introduction
• Commission of an offence is followed by the arrest of the accused
person.
• The object of arrest is to secure the presence of the accused at the time
of trial and to ensure that in case if he is found guilty, he is available to
receive the sentence.
• It would be unjust to deprive the liberty of the accused during the
pendency of the trial if his presence is reasonably ensured otherwise
than by his arrest.
• The provisions of bail are aimed at ensuring the presence of the
accused at the trial without unreasonably interfering with his liberty.
Introduction
• If the release on bail is denied to the accused, it would mean that
though he is presumed to be innocent till the guilt is proved, he
would be subjected to the psychological and physical deprivations of
jail life.
• On the other hand, where a person has committed a serious crime,
he would be prone to abscond in order to avoid the trial and
consequential sentence.
• So the law of bail has to balance the liberty of citizen on one side and
the security of the community on the other side.
Introduction
Vaman Narain Ghiya vs. State of Rajasthan [(2009) 2 SCC 281]
• In this case, the Court stated that personal liberty is fundamental
and can be circumscribed only by some process sanctioned by law.
Liberty of a citizen is undoubtedly important but this is to
balance with the security of the community. A balance is
required to be maintained between the personal liberty of the
accused and the investigational right of the police. It must result in
minimum interference with the personal liberty of the accused and
the right of the police to investigate the case.
• Cont next slide…
Introduction
Vaman Narain Ghiya vs. State of Rajasthan Cont….
• The Court further stated that it has to balance two conflicting
demands, namely, on one hand, the requirements of the society for
being shielded from the hazards of being exposed to the mis-
adventures of a person alleged to have committed a crime; and on
the other, the fundamental cannon of criminal jurisprudence, viz,
the presumption of innocence of an accused till he is found guilty.
Liberty exists in proportion to wholesome restrain, the more
restraint on others to keep off from us, the more liberty we have.
Introduction
Moti Ram v. State of Madhya Pradesh[AIR 1978 SC 1594]
• In this case, the Supreme Court clarified that the definition of the
term bail includes both release on personal bond as well as
with sureties.
Bailable Offence
• Sec 2(a) of CrPC provides that “Bailable Offence" means an
offence which is shown as bailable in the First Schedule, or which is
made bailable by any other law for the time being in force; and
"non-bailable offence" means any other offence.
• ‘Bail’ means the release of the accused from the custody of the
officers of law and entrusting him to the private custody of persons
who become bound as sureties to produce the accused to answer the
charge at the stipulated time or date.
Bailable Offence
• A ‘bailable offence’ is an offence where bail can be claimed as of
right. In the case of bailable offences, thus, the Court or the officer-
in-charge of the Police-station is bound to release the accused on
bail, provided he is prepared to give bail.
• Whether an offence is bailable or not is to be ascertained from
Schedule I of the CrPC (where all offences are enumerated) or any
other law which makes an offence there under to be bailable.
Non-Bailable Offence
• Sec 2(a) of CrPC provides that bailable offence means an offence
which is shown as bailable in the First Schedule, or which is made
bailable by any other law for the time being in force; and "non-
bailable offence" means any other offence.
• The analysis of the relevant provisions of the schedule would show
that the serious offences are have been considered as non-bailable
offence.
Sec 436 of CrPC- Bailable Offence
• It provides that when any person other than a person accused of a
non-bailable offence is arrested or detained without warrant by an
officer in charge of a police station, or appears or is brought before a
Court, and is prepared at any time while in the custody of such officer
or at any stage of the proceeding before such Court to give bail, such
person shall be released on bail.
• This provision is applicable to bailable offence. Here the accused can
claim to be released on bail as of right.
• Sec 50 (2) of CrPC makes it mandatory for a police officer to inform the
accused that he has the right to be released on bail in bailable offence.
Sec 436 of CrPC
• Section 436 of Cr.PC is mandatory in nature and the court or the
police has no discretion in the matter. Any accused person
arrested for a bailable offence willing to provide bail must be
released.
• In cases where the accused is unable to provide bail, the police
officer must produce the accused person before the Magistrate
within 24 hours of arrest as specified under s. 57 of Cr.P.C.
Sec 436 of CrPC
Rasiklal vs. Kishore Wadhwani [AIR 2009 SC 1341 ]
• Here the Supreme Court held that the right to bail for bailable
offences is an absolute and indefeasible right and no
discretion can be exercised as the words of s. 436 Cr.P.C are
imperative and the person accused of an offence is bound to be
released as soon as the bail is furnished.
• It further observed that there is no need for the complainant or the
public prosecutor to be heard in cases where a person is charged
with a bailable offence.
Default Bail
• Persons who are detained for committing an offence and undergoing
investigation are statutorily eligible for bail under Section 167(2)
of Code after ninety days where the investigation relates to an
offence punishable with death, imprisonment for life or
imprisonment for not less than ten years; and sixty days where the
investigation is relating to any other offence, if the investigating
authorities fail to complete their investigation and file a charge-
sheet within this period.
Default Bail
Suresh Jain v. State of Maharashtra [(2013) 3 SCC 77]
• Here the Supreme Court held that a person accused of an offence
acquires an “indefeasible right” to be granted bail on meeting the
bail conditions if investigation is not completed within the periods
mentioned in s. 167(2) of Cr.P.C, and the Magistrate is mandatorily
required to release the accused person.
Default Bail
Sanjay Dutt v. State, Through CBI [(1994) 5 SCC 410.]
• Here the Supreme Court held that the right of the person accused of
an offence to be released on bail under s. 167(2) of Cr.P.C would not
apply if the accused person does not file an application to “avail” the
right before filing of charge-sheet. The Court held that if the
charge-sheet is filed after the period specified in s. 167 (2) of Cr.PC
but before the application for bail is considered, then the right to
bail under s. 167(2) of Cr.P.C would not be available and the
application for bail will then be considered only on merits.
Sec 437 of CrPC- Non-Bailable Offence
• Bail is not a matter of right for a person accused of a non-bailable
offence. Section 437 of the Cr.P.C enlists the powers of the
magistrate to grant bail in non-bailable matters subject to
restrictions. It provides that Magistrates have the discretion to
release such persons on bail, subject to certain restrictions.
• However, in certain cases, where the nature and the gravity of the
crime is significant, pre-trial detention does not offend principles of
natural justice which are so rooted in the traditions and the
conscience of the people as to be ranked as fundamental to the
jurisprudence of law.
Sec 437 of CrPC- Non-Bailable Offence
• Sec 437 (1) states that when any person accused of, or suspected of,
the commission of any non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station or appears
or is brought before a Court other than the High Court or Court of
session, he may be released on bail, but-
• (i) such person shall not be so released if there appear
reasonable grounds for believing that he has been guilty of
an offence punishable with death or imprisonment for life;
Sec 437 of CrPC- Non-Bailable Offence
• Sec 437 (1) states that when any person accused of, or suspected of, the
commission of any non-bailable offence is arrested or detained without
warrant by an officer in charge of a police station or appears or is
brought before a Court other than the High Court or Court of session,
he may be released on bail, but-
• (ii) such person shall not be so released if 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 cognizable offence punishable with imprisonment
for three years or more but not less than seven years
Sec 437 of CrPC- Non-Bailable Offence
• Provided that the Court may direct that a person referred to in
clause (i) or clause (ii) be released on bail if such person is under
the age of sixteen years or is a woman or is sick or infirm:
• Provided further that the Court may also direct that a person
referred to in clause (ii) be released on bail if it is satisfied that it is
just and proper so to do for any other special reason:
Sec 437 of CrPC- Non-Bailable Offence
• Provided also that the mere fact that an accused person may be
required for being identified by witnesses during investigation shall
not be sufficient ground for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an undertaking that he shall
comply with such directions as may be given by the Court:
• Provided also that no person shall, if the offence alleged to have
been committed by him is punishable with death, imprisonment for
life, or imprisonment for seven years or more, be released on bail
by the Court under this sub-section without giving an
opportunity of hearing to the Public Prosecutor.
Sec 437 of CrPC- Non-Bailable Offence
Rao Harnarain Singh Sheoji Singh v. The State [AIR 1958 P&H
123]
• Here the court provides an early commentary on the standards to be
used for determining grant or denial of bail. The court observes that
subject to the restrictions in s. 437 (1) of Cr.P.C., the Magistrate’s
discretion must be exercised judicially.
• The Court listed the following as non-exhaustive but relevant factors in
making bail decisions (1) the enormity of the charge; (2) the nature of
the accusation; (3) the severity of the punishment which the conviction
will entail; (4) the nature of the evidence in support of the accusation;
(5) the danger of the applicant absconding if he is released on bail;
Sec 437 of CrPC- Non-Bailable Offence
Rao Harnarain Singh Sheoji Singh v. The State Cont….
• (6) the danger of witnesses being tampered with; (7) the protracted
nature of the trial; (8) opportunity to the applicant for preparation
of his defence and access to his counsel and; (9) the health, age and
sex of the person accused of an offence.
• There are also other considerations and the above is by no means an
exhaustive catalogue of the factors which should weigh with the
courts.
Sec 437 of CrPC- Non-Bailable Offence
• According to s. 437 (3) of Cr.PC, when an person is suspected of
commission of an offence under Chapter VI (State), XVI (Human
Body) or XVII (Property) of IPC punishable with seven years or
more, the Court has the duty to impose conditions upon such person
accused of an offence as follows:
• that such a person shall attend in accordance with the conditions of
the bond executed under Chapter XXXIII (Bail) of Cr.P.C.
• that such person shall not commit any offence similar to the offence
of which he is accused or suspected of the commission.
Sec 437 of CrPC- Non-Bailable Offence
• that such a person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted of the facts
of the case so as to dissuade him from disclosing such facts to the
court or to any police officer or tamper with the evidence.
Anticipatory Bail
• The expression “anticipatory bail” is also not defined in Cr.P.C.
• However, the Supreme Court in Balchand Jain vs. State of M.P. (AIR
1977 SC 366) has characterized anticipatory bail to mean ‘a bail in
anticipation of arrest’.
• When a competent court grants “anticipatory bail”, it issues an order
that in case of an arrest, the person shall be released on bail.
• Anticipatory bail is a device to secure the individual's liberty, and
neither a passport for the commission of crimes nor a shield against
any and all kinds of accusations likely or unlikely.
Anticipatory Bail
• Sec 438 provides that When any person has reason to believe that he
may be arrested on an accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session
for a direction under this section; and that Court may, if it thinks fit,
direct that in the event of such arrest, he shall be released on bail.
• When the High Court or the Court of Session makes a direction under
sub-section (1), it may include such conditions in such directions in the
light of the facts of the particular case, as it may think fit, including—
• (i) a condition that the person shall make himself available for
interrogation by a police officer as and when required;
Anticipatory Bail
• (ii) a condition that the person shall not, directly or indirectly, make
any inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing such facts
to the Court or to any police officer;
• (iii) a condition that the person shall not leave India without the
previous permission of the Court;
• (iv) such other condition as may be imposed under sub-section (3)
of section 437, as if the bail were granted under that section.
Anticipatory Bail
Balchand Jain vs. State of M.P. (AIR 1977 SC 366)
• In this case the Court held that the power of granting anticipatory bail
is extraordinary in character and it is only in exceptional case where it
appears that a person might be falsely implicated, or frivolous cases
might be launched against him, or there are reasonable grounds for
holding that a person accused of an offence is not likely to abscond or
otherwise misuse his liberty while on bail, then such power has to be
exercised.
• The court further went on to observe that apart from the conditions
mentioned in s. 437 Cr.P.C., a special case must be made out by the
petitioner for obtaining anticipatory bail.
Anticipatory Bail
State of M.P. v. Ram Krishna Balothia (AIR 1995 SC 1198)
• In this case the Court held that It must be borne in mind that s. 438
of the Cr.PC does not form a part of Article 21 of the Constitution of
India and it provides discretionary power to the High Courts and the
Court of Sessions, in appropriate cases.
Anticipatory Bail
Sumit Mehta vs. State of N.C.T. of Delhi ([2013] 15 SCC 570)
• In this case the Court observed that there must be a balance between
the individual’s right to freedom and personal liberty and the
duty of investigation by police.
• Thus, any appropriate conditions may be imposed under s. 438 (2)
of Cr.PC to ensure uninterrupted investigation.
• The conditions may be imposed only insofar as they are necessary to
avoid the possibility of the person obstructing the course of justice.
Anticipatory Bail
Gurbaksh Singh Sibbia vs. State of Punjab (AIR 1980 SC 1632)
• In this case the Court observed that Section 438(1) of the Code lays down
a condition which has to be satisfied before anticipatory bail can be
granted. The applicant must show that he has "reason to believe" that he
may be arrested for a non-bailable offence.
• The use of the expression "reason to believe" shows that the belief that the
applicant may be so arrested must be founded on reasonable grounds.
• Mere 'fear' is not 'belief', for which reason it is not enough for the
applicant to show that he has some sort of a vague apprehension that
some one is going to make an accusation against him, in pursuance of
which he may be arrested.
Anticipatory Bail
Gurbaksh Singh Sibbia vs. State of Punjab Cont…..
• The Court further provided that 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 the Magistrate
concerned under Section 437 of the Code, as and when an occasion
arises.
• Such a course will defeat the very object of Section 438.
Anticipatory Bail
Gurbaksh Singh Sibbia vs. State of Punjab Cont…..
• The Court also stated that the filing of a First Information Report is
not a condition precedent to the exercise of the power under Section
438.
• The imminence of a likely arrest founded on a reasonable belief can
be shown to exist even if an F.I.R. is not yet filed.
• Anticipatory bail can be granted even after an F.I.R. is filed, so long
as the applicant has not been arrested.
Anticipatory Bail
Gurbaksh Singh Sibbia vs. State of Punjab Cont…..
• The Court further stated that the provisions of Section 438 cannot
be invoked after the arrest of the accused.
• The grant of "anticipatory bail" to an accused who is under arrest
involves a contradiction in terms, in so far as the offence or offences
for which he is arrested, are concerned. After arrest, the accused
must seek his remedy under Section 437 or Section 439 of the CrPC,
if he wants to be released on bail in respect of the offence or offences
for which he is arrested.
Anticipatory Bail
Siddharam Satlingappa Mhetre vs. State of Maharashtra
and others [(2011)1 SCC 694]
• In this case the Court has provided the following factors and
parameters can be taken into consideration while dealing with the
anticipatory bail:
• i. The nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
• ii. The antecedents of the applicant including the fact as to whether
the accused has previously undergone imprisonment on conviction
by a Court in respect of any cognizable offence;
Anticipatory Bail
Siddharam Satlingappa Mhetre vs. State of Maharashtra
and others Cont……
• iii. The possibility of the applicant to flee from justice;
• iv. The possibility of the accused's likelihood to repeat similar or the
other offences.
• v. Where the accusations have been made only with the object of
injuring or humiliating the applicant by arresting him or her.
• vi. Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people.
Anticipatory Bail
Siddharam Satlingappa Mhetre vs. State of Maharashtra
and others Cont……
• vii. The courts must evaluate the entire available material against
the accused very carefully. The court must also clearly comprehend
the exact role of the accused in the case. The cases in which accused
is implicated with the help of sections 34 and 149 of the Indian
Penal Code, the court should consider with even greater care and
caution because over implication in the cases is a matter of common
knowledge and concern;
Anticipatory Bail
Siddharam Satlingappa Mhetre vs. State of Maharashtra
and others Cont……
• viii. While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors namely, no prejudice
should be caused to the free, fair and full investigation and there
should be prevention of harassment, humiliation and unjustified
detention of the accused;
• ix. The court to consider reasonable apprehension of tampering of
the witness or apprehension of threat to the complainant;
Anticipatory Bail
Siddharam Satlingappa Mhetre vs. State of Maharashtra
and others Cont……
• x. Frivolity in prosecution should always be considered and it is only
the element of genuineness that shall have to be considered in the
matter of grant of bail and in the event of there being some doubt as
to the genuineness of the prosecution, in the normal course of
events, the accused is entitled to an order of bail.
Cancellation of Bail
• The object underlying the cancellation of bail is to ensure fair trial
and secure justice for the society by preventing the person accused
of an offence who is set at liberty by bail from tampering with the
evidence (especially in heinous crimes) or committing further crime;
and any delay in cancelling bail would lose all its purpose and
significance to the greatest prejudice of the prosecution.
• Sections 437 (5) and 439 (2) of Cr.P.C. are related to cancellation of
bail.
Cancellation of Bail
• Sections 437 (5) of CrPC provides that Any Court which has
released a person on bail under sub-section (1) or sub-section (2),
may, if it considers it necessary so to do, direct that such person be
arrested and commit him to custody.
• Sec 439 (2) of CrPC provides that A High Court or Court of Session
may direct that any person who has been released on bail under this
Chapter be arrested and commit him to custody.
Cancellation of Bail
Manjit Prakash vs. Shobha Devi (AIR 2008 SC 3032)
• In this case, the Court held that as cancellation of bail deprives the
liberty of the person accused of an offence, the court must assign
reasons for the cancellation.
• If the High court fails to indicate any reason for directing the
cancellation of the bail, the order cannot be maintained and must be
set aside.
Cancellation of Bail
Following are the factors that justify the cancellation of
bail:
• While on bail the accused commits the very same offence for which
he is being tried or has been convicted;
• Accused hampers the investigation of the case;
• Accused tampers with the evidence and threatens the witnesses;
• Accused runs away to a foreign country or goes underground or
beyond the control of his sureties;
• Accused commits acts of violence, in revenge, against the police and
the prosecution witness;
Cancellation of Bail
Following are the factors that justify the cancellation of
bail:
• It is discovered by fresh evidence that the accused is guilty of an
offence punishable with death or imprisonment for life;
• Where it seems imminent that the accused will jump bail;
• When the charge is amended or there is a change of circumstances;
• When the accused in contravention of the bail-bond fails to appear
before the court on the date fixed for such purpose;
• If the bail was obtained upon concealment of material facts; and/or
Cancellation of Bail
Following are the factors that justify the cancellation of
bail:
• The superior court finds that the court granting bail acted on
irrelevant facts or materials or if there was no application of mind or
that there has been manifest impropriety.
Cancellation of Bail
Ram Govind Upadhyay vs. Sudarshan Singh (AIR 2002 SC
1475)
• In this case, the Court held that the consideration for cancellation of
bail under s. 439(2) Cr.P.C., differ from the consideration applicable
for the grant or refusal of bail.
• However, in a case for cancellation, the Court may delve into
assessing considerations behind the grant of bail in the first
instance, if it finds the reasons for granting bail to be insufficient.
