Law of Bail 9389176360, 9789389176360

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Law of-

BAIL

R K NAROOLA UDAYAN MUKERJI

Foreword by

JUSTICE A K SIKRI

Former Judge, Supreme Court of India

Introduction by

PROF. (DR) M C SHARMA Former Member, Law Commission of India

arg

(oN

OakBridge

Law of

BAIL

Law of

BAIL 2020

R K Naroola Advocate

Udayan Mukerji Advocate and Retired IPS Officer

Foreword by

Justice A K Sikri Former Judge, Supreme Court of India

Introduction by

Prof. (Dr)

M C Sharma

Former Member, Law Commission of India

OakBridg

Published by

OakBridge Publishing Pvt. Ltd. M 35, Ist Floor, Old DLF, Gurugram, 122001, Haryana, India

Tel.: +91 124 4305970, E-mail: [email protected] www.0oakbridge.in Copyright

© R K Naroola, Udayan Mukerji and Oakbridge Publishing Pvt. Ltd., 2020

The views and opinions expressed in this book are the author’s own and do not necessarily reflect the policy or position of the Income-tax Department. Further the facts are as reported by him which have been verified to the extent possible, and the publishers are not in any way liable for the same. All rights reserved. No part of this publication may be reproduced, transmitted, or stored in a retrieval system, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publishers. Due care has been taken while preparing this book. Neither the author nor the publisher of the book holds any responsibility for any mistake that may have inadvertently crept in. The publishers shall not be liable for any direct, consequential or incidental damages arising out of the use of this book. ISBN: 978-93-89176-36-0 Printed and bound at Saurabh Printers Pvt.Ltd.

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JUSTICE A.K. SIKRI Former Judge Supreme Court of India 144, Sunder Nagar, New Delhi 110003 Phone: +91-11-41802321

FOREWORD The problem of Jail or Bail in India has a colonial origin, when people were locked up in chambers

even for petty offences by their masters.

The law

enforcement system in our country had probably engrained and adopted this practice as an inevitable part of investigation.

An

accused

admittance

could

be tortured

of crime,

in custody

for extortion

for numerous

of a confession,

reasons

—

for

for the imputation

of

evidence. Reports have shown this has also been done for the refusal to pay bribes or on account of personal grudges,

and sometimes,

merely for the

show of power and authority.

Though

crimes

in last few decades,

has

changed

along

the societal contexts,

with

the arbitrariness

its relations, pattern of

in exercising judicial

discretion while granting bail.

The

concept

covenants

of bail

has

been

and instruments

talk about the International

recognized

in the

various

international

upholding human values. For Instance, Covenant

on Civil and Political Rights,

if we 1966

Article 9(8) of ICCPR states that the general rule shall not be detention in custody of persons awaiting trial and release may be conditioned on the guarantees to appear at the trial. Similarly, Article 10 (2) (a) of ICCPR also

refers to the same principle as it states that accused must not receive same treatment

as a convict.

Above all, Article 14 (2) cardinally provides for the presumption of innocence until proven guilty as an axiomatic principle of law. This principle imposes Page 1 of 8

Foreword

JUSTICE A.K. SIKRI Former Judge Supreme Court of India 144, Sunder Nagar, New Delhi 110003 Phone: +91-11-41802321

on

the prosecution

the burden

of proving the charge,

ensures

that the

accused has the benefit of doubt and obliges public authorities to refrain from

prejudging

trial

outcome.

It shifts

the

burden

of proof on

the

prosecution and postulates for an unbiased trial.

Thereafter coming to the Indian Statute,

Section 49 of Code of Criminal]

Procedure provides that an arrested person shall not be subjected to more restraint than is necessary to prevent his escape.

Personal liberty and the rule of law find its rightful place in the Constitution in Article

22 which

includes

measures

against arbitrary

and indefinite

detention. Article 22 further provides for four basic rights to the arrested

persons. An individual has to be informed of the grounds of arrest, should be made

available with legal counsel and should be produced before the

Magistrate

within

24 hours

of arrest.

Article

20 protects

the prisoners

against self-incrimination. Article 21, which seeks to ensure a dignified life for the citizens, includes in its ambit the right against torture.

The bedrock of criminal jurisprudence

lies on the principle — ‘there is a

presumption of innocence, till a person is found guilty.’ In this backdrop, the

issue whether a person accused of crime should be granted bail pending trial or not assumes

significance.

This issue is not confined

to criminal

law

simpliciter. [t has overtones of right to liberty, which is a fundamental right

granted to every person in this country under Article 21 of the Constitution. It is this right to liberty of human beings which brings its significance of

concept of bail in the criminal jurisprudence as well. While on the one hand assumption of innocence till proven guilty confers right upon a person to get bail pending

trial,

there

are

few pressing

circumstances

which

would Page 2 of 8

vi

Foreword

JUSTICE A.K. SIKRI Former Judge Supreme Court of India 144, Sunder Nagar, New Delhi 110003 Phone: +91-11-41802321

warrant

denial of bail to an undertrial as those circumstances would tilt the

scales in the interest of society at large and to ensure fair trial at the same time. In this whole process, striking a fine balance between

the right to

liberty of a person accused of an offence and the public interest, becomes a

difficult task. The provisions of bail contained Procedure balance.

(and special provisions At the

same

time,

in the Code of Criminal

in particular

notwithstanding

statutes)

these

strike

provisions

such

a

the fact

situations in particular cases make it difficult for the judiciary to choose

between bail or jail. Justice V.R. Krishna lyer, in one of his judgments! has captured the dichotomy in the following words: “Bail or jail?’ — at the pre-trial or post-conviction stage — belongs to the blurred area of the 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 the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.

As Chamber Judge in this summit court I have to deal with this uncanalised caseflow, ad hoe response

to the docket being the flickering candle light. So it is

desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict. is fundamental, suffering lawful eclipse only in terms of “procedure established by law’. The last four words of Article 21 are the life of that human right.

2. The doctrine of police power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of A society, specified in the Constitution. 3. What, then, is “judicial discretion” in this bail context? In the elegant words of Benjamin Cardozo [ The Nature of the Judicial Process — Yale University Press

(1921)] :

“The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will

in pursuit of his own ideal of beauty or of goodness. He is to draw 1 Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P.,

(1978) 1 SCC 240 Page 3 of 8

vil

Foreword

JUSTICE A.K. SIKRI Former Judge Supreme Court of India 144, Sunder Nagar, New Delhi 110003 Phone: +91-11-41802321 his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.” Even so it is useful to notice the tart terms of Lord Camden that [1 Bovu, Law Dict., Rawles' HII] Revision p. 885 — quoted in Judicial Discretion — National College of the State Judiciary, Rano, Nevada p. 14]

“the discretion

of a Judge is the law of tyrants:

it is always

unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable....”

After spelling out the judicial discretion,

which is an appeal to judicial

conscience of a Judge, this judgment also lays down the test that should be applied while examining as to whether bail to an accused should be granted or not, pending trial.

Justice Krishna lyer was not the first Judge who had laid down the test for grant of bail. Law on this subject had been discussed by the apex Court as well as High Courts in umpteen number of judgments before that as well,

which stood crystallised in the aforesaid judgment.

There have been umpteen number of judgments even thereafter reinforcing

the principles laid down in the aforesaid judgment. The principle of law that firmly stands established is that an accused, in order to get a bail pending trial

has

to

meet

the

following

circumstances

which

is

given

the

nomenclature of “triple test”:

1. There

is no

likelihood

of tampering

with

the

investigation

and/or

evidence, or

2. Influencing the witnesses, thereby impinging upon the fair trial, and Page 4 of 8

vill

Foreword

JUSTICE A.K. SIKRI Former Judge Supreme Court of India 144, Sunder Nagar, New Delhi 110003 Phone: +91-11-41802321

3. The accused will not flee the justice and would continue to participate in the criminal trial.

At the same

time, there have been certain pronouncements

Court which lay down

that bail can be denied

of the apex

in certain circumstances

where the charges are very serious and grave. The Supreme Court in Ram Govind Upadhyay,

laid down that the nature of offence is one of the basic

considerations

for acceptance or rejection of bail application.

Court

with

dealing

the application

for bail is required

In that the

to exercise

its

discretion in a judicious manner and not as a matter of course. In Prahlad Singh Bhatti, the Court revealed following well-settled principles regarding circumstances to consider while granting or refusing bail. The Court noted:

"8. The jurisdiction to grant bail has to be exercised on the basis of well-settled

principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, cireumstances which are peculiar to the accused,

reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing” instead of "the evidence” which means the Court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. [t is not expected, at this

stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

The same principles were summoned up in case of UP v Amarmani Tripathi, in following terms: “18. It is well settled that the matters to be considered in an application for bail

are (1)

Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii)

Nature and gravity of the charge;

(iii)

Severity of the punishment in the event of conviction;

Page 5 of 8

ix

Foreword

JUSTICE A.K. SIKRI Former Judge Supreme Court of India 144, Sunder Nagar, New Delhi 110003 Phone: +91-11-41802321

(iv) (v) (vi) (vii) (viii)

Danger of the accused absconding or fleeing; if released on bail; Character, behaviour, means, posttion and standing of the accused; Likelihood of the offence being repeated; Reasonable apprehension of the witnesses being tampered with, and Danger, of course, of Justice being thwarted by grant of bail

The position that emerges is that in a given case, the Court is to strike a

balance between the two sets of principles viz,, triple test on the one hand and gravity of the offence on the other hand and apply it to the fact situation in the given case, in order to exercise its discretion as to whether the accused should be granted bail or not.

However,

in real practice, it is seen that the courts may lean in favour of

one set of principle as against the other. It generally happens that many a time, the courts dealing with the bail matters initially go by the gravity of charge and deny the bail. It is also seen that in this situation, even initial bail is denied to an accused on the ground that charges are serious, the said accused is granted bail after some time on the satisfaction of triple test, even

when the requirement of triple test stood met at the initial stage as well, when the bail was denied. Two classical examples of adopting such a course are 2G trial cases, where bail was granted after a period of 8 to 9 months and most recent case of Mr. P. Chidambaram,

the bail after he remained

who again, has been granted

in jail for a period of 105 days. It would be

interesting to note that in both the cases, the reasons given by the Court in

its Orders initial

granting bail were

stage

as well.

It has

the reasons created

some

which were uncertainty

applicable

at the

insofar

as bail

jurisprudence is concerned.

The irony is that even after more than 40 years from the said judgment, the law on bail remains in /imbo, when it comes to applying the laid down tests

in a given case and the legal position remains blurred.

This can be so Page 6 of 8

Foreword

JUSTICE A.K. SIKRI Former Judge Supreme Court of India 144, Sunder Nagar, New Delhi 110003 Phone: +91-11-41802321

discerned from the judgments on bail pronounced by various courts from

time to time which would reflect the judicial approach of taking one step further and two steps backward. Some judgments on bail jurisprudence by the courts in last couple of years, including the aforementioned two cases. would be a testimony to the aforesaid statement and would prove that law on the subject remains

In such a scenario, paramount

blurred.

discussing the ‘Law of Bail’ at this juncture assumes

importance. Time has come to instil clarity and consistency in

the approach by the courts while dealing with the application of bail of the undertrials since the very concept ofbail is rooted in Article 21 and 22 of the Constitution and touches upon the personal liberty of a person. It is to be taken seriously and needs clarity. In the process, it is the need of the hour to comprehensively revamp the bail jurisprudence.

It is for this reason that | feel immense pleasure to introduce you to the book themed

on “LAW

OF BAIL’

authored

by Mr. R K Naroola

and Udayan

Mukerji which is going to hit the stands. Though essentially this book has been written for legal practitioners, budding Law Graduates and other law

enthusiasts,

I believe

it will be equally beneficial

for the teachers

and

judges.

The Chapters to the book have very well taken care of all the aspects to the concept of Law of Bail, discussing the fallacies and suggestions to overcome them. The learned authors in the present book have comprehensively dealt

with all the aspects of Bail with comprehensive coverage of Default Bail, Anticipatory Bail, Special Powers of High Courts as to Bail , Whither Bail, etc. All these aspects are dealt with elaborately taking note of finer nuances, Page 7 of 8

xl

Foreword

JUSTICE A.K. SIKRI Former Judge Supreme Court of India 144, Sunder Nagar, New Delhi 110003 Phone: +91-11-41802321

with the support of necessary and relevant ca’se laws. The beauty of the book is that it has been made so easy to understand and therefore it will serve as

a useful tool for understanding this subject by not only those who are the

practitioner

or

enforcer

of the

concerned

provisions,

but

also

those

categories of persons who are supposed to follow these provisions, even if

they do not possess any legal background.

I am confident that the book

proves to be an enlightenment for all the readers looking forward to it.

fee New Delhi 5 December 2019

Justice A.K. Sikri Former Judge, Supreme Court of India

Page 8 of 8

Xil

Prof (Dr) Mool Chand Sharma

Formerly:

Prof Emeritus, BML Munjal University

Full-time Member Law Commission of India Vice-Chairperson, UGC

Director (Vice Chancellor) National Law Institute University Bhopal

Advisor (Policy-Research) to the Hon’ble President of India Mrs Patil

National Research Advisor NHRC Joint Registrar Research - Supreme Court of India

Introduction

Challenges of Introducing ‘‘Law of Bail” I felt extremely honoured and elated when was asked by MR RK Naroola (Advocate) and Mr Udayan Mukherjee

(Sr IPS Officer Retd, presently practitioner of law) to

write a brief Introduction to their work Law of Bail and being published by Oakbridge Publishing for publishing a work on contemporary issues. I had known Mr Naroola as an expert in commercial laws, arbitration laws and constitutional laws and was deeply stuck by learning the kind of jobs Mr Mukerji handled in some of very challenging areas as an IPS officer, but, going through ‘Law of Bail’ revealed me the depth of knowledge, faculties of superb craftsmanship as writers, finer research skills and scholastic approach the authors possess. The simplicity, clarity and brevity of language the authors bring along with them in writing their work, could be the matter of envy to many in the profession of law as well as academics. Congratulations and best compliments to both, Mr Naroola and Mr Mukherjee for producing “Law of Bail”.

My pride and happiness got further elated by many folds, when was told that Honorable Mr Justice A K Sikri (Former Judge, Supreme Court of India) a rarest of rare judges who possesses critical legal thinking, have judicial conviction combined with judicial courage and judicial craftpersonship to unfold, fold and create laws and legal techniques to meet the requirements of assuring social and economic justice without transgressing boundaries of jurisprudence, has agreed to Foreword the Work “Taw of Bail” of Mr Naroola and Mr Mukerji. Let me confess candidly that while feeling elated, also I got nervous and pondered whether it would be possible for me to do justice with the task assigned to me especially knowing of the ‘excellence’ which is deeply weaved into Justice Sikri’s judicial persona whether he is writing judgments he gave on different subjects of law including on the subject of bail (while talking of his superb contribution to the development of bail law in India one can cite number of cases, but as an example I am reminded of the judgment he wrote on his behalf and on behalf of another juristic judge, Mr Justice Rohinton F Nariman! which 1. Bhadresh Bipinbhai Sheth v. State of Gujarat, delivered on September

Appeal Nos 1134-1135 of 2015.

1, 2015 in the Criminal

Introduction

dealt with various nuances of anticipatory bail. It not only clarified the confusion prevailing but was path breaking in many ways, which the authors of “Law of Bail” have so beautifully analyzed. As I was pondering, suddenly I was reminded of a saying that neither a job is small, nor it is big-all depends upon the hard work, sincerity and integrity with which one takes the task assigned to him. I collected the courage and let me assure the readers and especially to the authors of Law of Bail and Justice Sikri of the sincerity and integrity of the efforts I have roped in performing the task, it is for them to judge how far I have succeeded and if failed I ask for forgiveness right in advance.

Constitution, Constitutionalism “Bail Law”

and

Constitutional

Morality

and

the

It is noon, have just come to use the IIC library from the UGC where I was invited to give a lecture to the entire University Grants Commission fraternity, from the highest echelons of the administrative structure to the facilitators and others. Being the Constitution Day the lecture was to highlight the importance, growth and dynamics of India’s Constitution, its making, constitutional philosophy and constitutionalism; constitutional morality and conventions that guided the Founders of India’s Constitution to give us the text, which by any reckoning has been admired as on the of the most dynamic Constitution in the world. The role that Dr Ambedkar, Nehru, Maulana Azad, Sardar Hukam Singh, Sir Alladi Krishnaswami and others played in framing the Constitution, how they reconciled and balanced the differences amongst themselves on various aspects of the document. I was especially asked to emphasise the relationship amongst the trio comprising the Preamble, Fundamental Rights and Directive Principles of State Policy; and the Chapter on Fundamental Duties which was added in 1976. As I prod and try to collect some thoughts as to how to introduce the subject of Bail, I recalled what I had said in the morning at the UGC. Paying my tributes to Dr Ambedkar who was the Chairman of the Drafting Committee and who worked tirelessly sometimes working 24 hours, studied almost every important Constitution available, constitutional conventions, constitutional morality, had long interactions and exchange of ideas with stalwarts like Nehru,

Krishnaswami,

Maulana

Azad; Judges from US, UK

K M Munshi, Alladi and other western countries;

had meetings with jurists and scholars from around the world and completed the draft and on 26" November 1949 presented the draft to the Chairman of the Constituent Assembly, Dr Rajendra Prasad, who felt too proud of Dr Ambedkar for having come out with so detailed text of the Constitution. Many thought that looking at the violence, tension, hatred amongst

various communities

and atmosphere

of unease

created by the partition, the need of the hour was to come out fast, not spending too much time, with the text of the Constitution especially the part dealing with the subject of civil rights that enunciates the general principles like the constitution of US which has a very short chapter of Civil Rights, to be precise only three provisions. It was pleaded by many of them that the Chapter on Civil Rights has to be couched in flexible language so that it can be developed through judicial interpretation or by interpretation of other institutions responsible for that to meet the X1V

Introduction

requirements as the context demands. Ambedkar thought differently. In his views India should examine and adopt or adapt the experience that had already emanated from the working of the constitutions in various parts of the world such as the US, UK and other western liberal countries. No doubt at geo-political level there were experiences available from the countries which did not believe in liberal philosophy and thus unlike few members of the Constituent Assembly, Dr Ambedkar and Nehru

preferred to look into experiences of only liberal democracies. Constitution being a document which should instil stability and clarity, it is important that it should not be a constrained document and ultimately the document which the Ambedkar’s Drafting Committee on Fundamental Rights gave was elaborate, detailed and to some extent using rigidity, but it is to be admired that the document has stood the test of the time. It is this document which is being hailed all around the world for transforming a feudal society into a vibrant, dynamic and sensitive democracy. It is this document that proved wrong the prophecy made by Constitutional experts like Sir Ivor Jennings who in 1951 predicted that because of its rigidity, the volume and details the Indian Constitution and the democracy itself is likely to be a failure. He said these words at the Banaras Hindu University where he was invited to give three lectures in the year 1951. Later he was invited to frame the Constitution of Sri Lanka in 1960. Surprisingly in Sri Lanka the Constitution he gave failed and the project of building Sri Lanka democracy was doomed within two years and dictatorship emerged. Almost majority of States in the neighbourhood of India, which adopted their Constitutions around the same time as India did have either resulted into faring,

falling or faltered State while to the contrary Indian democracy is seeped too deep. It may be noted that despite many tensions, unmet needs, prevailing exploitative tendencies and political class growingly becoming insensitive to demands cast on them by Rule of Law, the democratic, pluralistic and multi-ethnic character of India has remained intact. It is neither the occasion nor the time affords us to talk about the recent unanimous judgment of November 9, 2019 of the Apex Court about Ayodhya matter but despite there being a vast Muslim population of Indians and many including amongst Hindus considering that the judgment is not sound on legal footing have pleaded that for the sake of retaining harmony and peaceful atmosphere, both the communities should take the judgment as win-win or no lose-no lose for both. The inculcation of this attitude is largely because of the liberal values incorporated in the Preamble, various provisions in the chapter on Fundamental Rights and the chapter of Fundamental Duties.

There is no doubt that there is another side of the story that tells us that what does the text of Constitution preaches is not Constitution in reality or what is being practiced is largely contrary to what it preaches. It is pointed out, and I too have written at many places that most of us especially the elite and political class adopt every technique to raid the Constitution when it suits rather than reading it. Otherwise what explanation has to be given about what has happened in Maharashtra. Both camps have blatantly raided the Constitution and never bothered to read it. Despite this let us not forget that if we did not have the present Constitution, we would have still remained slave, if not of British Empire, of some XV

Introduction

Army dictator or religious leader. And thus, what I told the UGC gathering was that what an emotional moment it must be for Dr Ambedkar to present the document 70 years ago for adoption, which came into enforcement on 26" January 1950. How he or leaders like him would have felt if they were on the scene today. Even they would have gathered mixed feelings — feeling that at least unlike other nations Indian democracy has survived and the feeling that not only the normative changes document called constitution need to be introduced but efforts have to be made to imbibe the spirit of constitutional morality all around. The culture of constitutional morality has to be practiced not only by individuals but more by the Institutions including the judiciary. Perhaps the judiciary has got the message and that is why it has through its power of interpretation has culled out a sensitive jurisprudence and from the point of view of the topic of “bail” its creative interpretation to Article 21 read along with Articles 14 and 19 is path breaking and thus I decided to write my Introduction with how crucial it is for Judges and other enforcement agencies to be guided by constitutional morality.

Working of “Bail Law” — Pitfalls, Gaps, Paradoxes and Conundrums I am conscious, that too much has been penned down and readers must naturally ask me that though what has been said so far does not appear to be so directly related to the theme of the book and even if there is some relation where is the need to write so long. To me above background is very relevant and of significance as the evolution of ‘bail jurisprudence’ is symbolic of (a) text of legal norms of bail law; (b) the context in which the text of these norms was determined and how and what changes the context has gone through- have earlier norms become ineffective, burdensome or unrealistic in practice; (c) what role institutions created under the Constitution and statues dealing with Criminal law or law of privileges for interpretation and enforcement of these norms are expected to discharge, whether these arrangements and structures in themselves and the personnel operating them have discharged their respective roles faithfully and with due diligence and care, if not or even if they have, the changing context and rising expectations of a liberal democracy with deep and vast diversity of culture, caste, creed and religion may demand newer solutions and greater sensitivity to social and political needs and how to meet those demands- should it be through education, training, impartation of new skills, use of modern technologies and judicial reforms is a question. Each stakeholder in above raised questions need to think over, deliberate and come out with some ways to carry forward the journey of ‘bail law’ in India. To us judiciary has a great role to play, as it has already played by evolving creative, imaginative and visionary criminal jurisprudence through giving expansive interpretation to Fundamental Rights, especially Article 21 dealing with life and liberty and reading it along with Articles 14 and 21 and setting down in this regard through its judgment in Maneka Gandhi’s case.

Despite Maneka there are circumstances and instances where the judiciary has exercised the discretion enjoyed by it in granting bail is little problematic. Just to give one example how the Former Finance Minister P C Chidambaram had pleaded

XVI

Introduction Sa

before the Apex Court on 27" of November that bail is his right and same be offered to him. He had argued that it defeated all rules of interpretation and smacked of premeditated decision of the Delhi High Court to deny him the bail. He argued that even after “satisfying” itself (the Delhi High Court) that he (Mr Chidambaram) was not a flight risk or likely to tamper with evidence or influence witnesses, the Court did not grant him bail. The only ground the High Court gave for denying him bail was the “gravity ” of the alleged crime of money laundering he was accused of. It is significant to note what he had argued in respect of the High court taking recourse to the gravity of the alleged charge of serious economic offence of money laundering was that- “if this (gravity argument ) is accepted, all undertrials will be incarcerated till trial ends in almost every case.” “Once the attendance (for trial) is secured, bail cannot be denied except in extraordinary situations like in case of terrorist or a reported or habitual offender.” Arguing further Chidambaram had said, “Gravity will remain till end of trial. By that logic, I should be in jail till trial ends. There is no other way and that would be a ridiculous conclusion.” November 27" the day above arguments were made was the 99" day of incarceration of Mr Chidambaram. His argument of “ridiculousness” sounds very logical and exposes as to how does the Court sometimes become so insensitive towards the right of the accused. Let us make it clear at this stage we are not concerned about the merits and other dynamics of the case, like, if the charge of “money laundering” which was alleged was meant or might have gone to support the terrorists and militants pursuing their agenda or if the ED had. in its possession and was ready to share with the petitioner any solid evidence or records that on the face of itself and on prima facie basis supports its (ED) case or demolishes the arguments of the bail applicant, then the whole arguments of judiciary being “insensitive” falls. In the light of preceding we strongly believe that Courts have to be more sensitive to protect and safeguard individual’s right to liberty, movement, privacy and human rights which are inallowable rights, as it is the judiciary which is the bulwark between the power of the state and a poor citizen who in the power structure remains vulnerable to the monolithic power that State enjoys over him. Thus why we wrote so long - it is only to highlight that it is the symbiotic relation between the law, judiciary and enforcement agencies as described above which becomes so fundamental in the operationalization of law of bail and to be more precise on the question of how much role the court can play in realizing the social justice to poor, undertrials, and socially marginalized. While concluding this short para I am reminded of what a mind Eugen Ehrlich had said in his classic work, Fundamental Principles of the Sociology of Law. He had said, “At present as well as at any other time, the center of gravity of legal development lives not in legislation, nor in juristic science, nor in judicial decisions, but in society itself.”” Therefore, I strongly believe till the governing elite of whose ‘judiciary’ happens to be one of the most important constituent, performs its role as a custodian of constitutionally guaranteed values to ensure that the governing system deals with the material

2.

(1936:W.L. MO II Trans).

XV

Introduction

economic and social conditions of masses more sensitively, not only the “judiciary” but the “law” itself will lose the credibility in the eyes of these poor and marginalized masses. Let us remind ourselves that ‘justice can never rise superior to the social and economic conditions of the time’ and same is true so far as evolution of bail jurisprudence is concerned. This branch of law (branch of law called bail law) needs to be more objective, neutral, sensitive and reflective in striking a balance between individual’s freedom and Public’s demand for its safety and security. We feel bold in expressing our above views demanding greater sensitivity, objectivity and neutrality on the part of the judiciary in administering the bail law to see the apex court’s judgment that a Constitution Bench of three Judges delivered on December 4, 2019 in the matter of Mr P C Chidambaram which we mentioned in detail in the foregoing discussion. A Bench of Justices R Bhanumati, A S Bopanna and Hrishikesh Roy granting the bail to Mr Chidambaram who is facing money laundering charges levelled against him by the ED in the INX Media Case said, that though economic offences re grave, bail is still the rule and jail the exception. Justice Bopanna, for the Bench, observed in his judgment — “Basic jurisprudence relating to bail remains the same inasmuch the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.”

While granting the bail, the Court was conscious that it was not deciding on merits of the case (which argument possibly was missing in High Court’s approach while dealing with bail petition of Mr Chidambaram a point that apex court has objected to) and thus number of important conditions have been attached on Mr Chidambaram while releasing him on bail after 106 days of his incarceration in the jail. The court’s bail conditions include the furnishing of bail bonds of Rs 2 Lakh with two sureties subject to satisfaction of the special Judge hearing the case. Mr Chidambaram’s passport would remain confiscated and he would not be able to leave the country without permission. He would make himself available for interrogation. He would not give any press interviews or make public comments on the case. Further, he would not intimidate nay case witnesses (To us the approach adopted by the court is an example of a comprehensive way of striking the balance between the integrity and effectiveness of the legal system with the freedom of Mr Chidambaram. By prohibiting him for any press interview or making public statement in relation to his case, the court has not only taken care of causing unnecessary confusion in the mind of the public about the neutrality and a political approach of the court but has also blunted the chance of its order and the court’s over all approach in the operationalization of bail law to a political match. The Court remains sensitive to the changing times and changing context. It is mindful that new kind of economic offences with huge amount of corruption at stake and also the possibilities of such proceeds from the corruption or commission being used for all kind of harmful activities including the support to traffickers, terror groups and militants, thus it while agreeing with the ED said that economic offences affect entire societies and that the court has always held that such offences are of grave nature, being a class apart, and rise out of deep-rooted conspiracies. The effect XVIil

Introduction

of such offences on society has to be indeed kept in view while granting bail. However, on the other hand, there cannot be a blanket ban against granting bail to accused in such cases. It is held in the judgment that “Even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislator nor does the bail jurisprudence provide so.” The Court further said that each case for bail has to be weighed according to its individual circumstances. Courts cannot blindly follow any uniform precedent while dealing with bail applications in economic offences.

On ED’s objection to the grant of bail, arguing that they still wanted Mr Chidambaram for extensive questioning in connection with money laundering, Justice Bopanna pointed out that Mr Chidambaram was in custody of ED for over 45 days and he was available for questioning. The Court similarly rejected the ED claim that Mr Chidambaram would tamper with evidence and intimidate witnesses. The judgment reasoned that he neither enjoys political power nor holds any government post and thus the question of his tampering with evidence and intimidating witnesses is remotest of remote chance and thus he cannot be denied his right to bail. The Court showing maturity said: “The appellant is aged about 74 years...has suffered two bouts of illness during incarceration and was put on antibiotics...In that circumstance, the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized. He is already held to be not a ‘flight risk’ and there is no possibility of tampering with the evidence or influencing/intimidating the witnesses. Taking these and other circumstances including the duration of the custody into consideration the appellant in our considered view is entitled to be granted bail.” In our view the above is not only restoration of the bail law which was already in operation (at least idealistically speaking) but also a very thoughtful articulation and application of that jurisprudence to the fact of the case. However, what is most significant about the Court’s judgment in Chidambaram’s case is that the Apex Court came down heavily on how the prosecution side presents documents in sealed covers to courts and the Judge base their entire findings on bail on the material in these documents, thus denying the accused a chance for fair trial. Both the CBI and ED had given sealed covers to the Delhi High Court which surprisingly seems to have relied on some of the information those documents contained.

In short, the judgment is brilliant and timely articulation of the principle that “prejudging offence to deny bail is against the right of an accused to a fair trial.” After the judgment of December 4, 2019 in the hands of the Apex Court, it is required of us to say more and thus we would attempt to be as brief as possible.

The growth and development of socially sensitive judicial process is inseparably connected to the growth and development of bail jurisprudence. Imposing unjust or harsh conditions, while granting bail is a violation of Article 21 of the constitution which says: “no person shall be deprived of right to life and personal liberty except in accordance with the procedure established by Law” and the highest court of the XX

Introduction

land in number of cases have said that the “procedure established by law” has to be non-arbitrary, non-discriminatory and reasonable in the sense that it strikes a balance between the individual’s desire to have freedom with the demand of the society for the integrity, credibility and accountability of the person asking the bail and demands and needs for ensuring public safety, and integrity and unity of the State. Seen this way imposing any harsh conditions would necessarily amount to violation of Article

21 read along with Articles 14 and 19.° Talking about the importance of balancing personal freedom with social security Lord Denning in his unequivocal style had said: “Powers may be abused, and if those powers are abused, there is no tyranny like them. It leads to a state of affairs when the police may arrest any man and throw him into prison without cause assigned. It leads to the search of his home and belongings on the slightest pretext- or on none. It leads to the hated gestapo and the police state. It leads to extorted compressions and to trials which are a mockery of justice.” After having said this all he gave the punch line: “The moral of it all is that a true balance must be kept between personal freedom on the one hand and social security on the other.” In short, bail is therefore the setting of an accused person on liberty subject to such safeguards as may be needed to ensure that his presence is ensured when required. The biggest justification for bail is that it preserves a person (who is to be tried for an offence) from the rigours of confinement, more so if he is subsequently found to be not guilty (See how Black’s Law Dictionary defines meaning of bail). In this context it may be relevant to note that between October 2017 and October 2019, at least there are half a dozen cases where the accused who were charged and convicted with serious offences and thus were denied bail ultimately found themselves acquitted and now they are asking the system how the system would redeem them of their youth; the opportunities to grow, develop, and get education of their choice. No doubt under the new kind of jurisprudence evolved by the Court and cited as ‘compensatory jurisdiction’ they can enforce their right to seek compensation, but what is involved is something rather lot more than the monetary compensation. What is involved are dreams of future which has gone bleak for no fault of theirs but of the system. The questions like above make the task of the judges a challenging one and mounts great responsibility on their shoulders. To resolve above questions judges need to be imaginative, creative and futuristic (of course remaining within the domain ofjudicial discipline of decision-making and especially not crossing the limits that legal jurisprudence imposes on them) and whatever and how much caution a judge exercises in performing the above role to some extent of subjectivity like the judge’s education, his background, the philosophy of law he believes in would always trickle to his decision-making. How to keep this element of 3. The triangular reading of Articles 14, 19 and 21 in not required, as the readers are fully aware of the journey that jurisprudence from the days when fundamental rights were considered exclusionary of each other took to the creative era when the court giving good bye to the old approach started inferring Fundamental rights with each other in giving them meaning according to the demands of social change and changing context of today. 4. Lord Denning, Freedom under the Law, Steven & Sons Ltd., 1949. XX

Introduction

subjectivity as restrained as possible especially in operationalization of bail law and more so anticipatory bail law is a serious question. And this the result of judicial process becoming too subjective which in turn is putting bail jurisprudence into a paradoxical situation as — ‘two are inseparably connected’ as we have mentioned in the beginning of this section.

Evolution of ‘Bail Law’ — Historical Perspective to Present Day Perspective The authors have thrown us a wonderful treat of some of their sharp insights into the historical journey of concept of Bail. They deserve as much of our thanks as can be registered for their arduous task. There is neither any need nor it is of any additional value for us to say or reflect on this part of the work which is so exhaustive. This part begins with their fine reading of the Byzantine Emperor Justinian I Codified (529 to 565 AD) the collection of laws and legal interpretations which prevailed in his time into the Codex Justinianus or the Code Justinian wherein Book IX, Title 3(2) of the

Code lays down that “no accused person, shall under any circumstances, be confined in prison before he has been convicted.” The Magna Carta (which according to us is the real foundation or source from where all rights and for that matter all legal principles in a Constitutional democracy governed by Rule of Law flows) being a charter of rights that was signed by King John of England on 15 June 1215 under pressure from leaders of the clergy and barons who wished to put some check on the arbitrary powers of the king, the authors have attempted to trace as to what kind of right to bail is contemplated in the charter. Again, demonstrating their skills in researching and digging out the hidden treasure of jurisprudence they claim that “Although the Magna Carta does not provide for bail it does have some provisions that could be regarded as the progenitors of the subsequent concept of bail.” To corroborate this inference, with which I am in full agreement with, as I have also said the same somewhere else.’ The authors have in particular referred to Clauses 9, 39 and 44 of the Charter. (Please see pages 3 and 4 chapter | of the work of two authors. We are giving page numbers, so that readers can easily refer to).

Going forward in their historical journey of bail the authors have marked the Statute of Westminster issued in 1275 AD which codified the existing law in England into 51 chapters with caption of chapter XV being: “Which prisoner be mainpernable, and which not. The penalty for unlawful bailment.” The authors have taken pain to explain us the word “mainpernable” which according to them, “is the adjectival form of mainprise which provided for a surety to furnish and undertaking given to a magistrate or Court that even without bailing an accused in custody one will be liable for the appearance of the accused on a fixed day to defend any and all charges to be brought against. (Please note as we would discuss in the later part of this Introduction, how the requirement of furnishing a security rather than a personal bond for poor and remember most of undertrials are from the poor category has made their being in jail for more than sometimes even twice or thrice of the period for 5.

See, Mool Chand Sharma, “Democracy, Development and Diversity”, Convocation Address (2010),

Chennai.

XXi

Introduction

which they will be in jail if convicted. We will point out a study in this regard and would also refer to Justice Krishna Iyer who believes that entire bail jurisprudence is anti-poor). The author next move to the Habeas Corpus Act of 1677 which was passed by the Parliament. We agree when authors point out that though the administration of the bail law become better regulated in the wake of Habeas Corpus Act 1677, the hurdles posed by excessive bail requirement continued and the consequence, an accused could be enlarged on bail and yet remain in durance due to inadequate finances. It was in order to ameliorate this problem that the Parliament enacted the English Bill

of Rights, 1689.° The authors note that it is the Criminal Justice Act of 1826 and in particular in its section III made a significant forward movement in English law on bail. But the focus of the author largely goes to the Criminal Justice Act of 1848, Section XXIII which for the first time, apart from stipulating granting of bail upon procuring and producing such surety or sureties as in the opinion of such justice will be sufficient to ensure the appearance of such accused person at the time and place when and where he is to be tried for such offence,

also stipulated that even

if bail was

initially

declined to an accused, the same could be granted subsequently at any time before the commencement of the trial proper. The authors have very interestingly invited attention of readers to the fact (mostly ignored for study by the scholars of criminal jurisprudence) that despite the passage of series of Criminal Consolidation Acts in 1861 none of them mentioned/included the issue of bail. Reforms and simplifications proposed during 1878 to 1880 did not culminate in legislation.’ The authors finally mark that the legislature, in England, enacted the Criminal Justice Administration Act of 1914 which introduced the provision of “Continuous Bail” that is the accused would not have to seek bail afresh at each stage of hearing of a trial. In the context prevailing presently in India, where high profiled accused have to often seek bail afresh, The Criminal Justice Act of 1914) assumes relevance .

Taking us through the historical journey of emergence of bail jurisprudence in India the authors invite us to peep into the tenure of Lord Warren Hastings, as Governor of Bengal (1773 - 1785) when Sudder Diwani Adalat was created as the highest court to try civil matters and Sudder Nizami Adalat to try (foujdari) cases with mofussil adalats (Diwani & Nizami) being established in the town. They point out that two forms of bail were then in existence. One was the Muchalka, a personal bond whereby the accused would be released on his personal recognizance subject to such penal provisions (in the event he jumped bail) as would be directed by magistrate. The other form was Zamanat where a surety (Zamin) or sureties would undertake to produce on the days and dates desired by the magistrate and for the 6. I discuss this issue in detail in my forthcoming work, already under print the rule of law an Article 370 and 35A of the Constitution — Challenges and Opportunities being published by the Oakbridge Publisher Pvt. Lid. 7. Please refer to pages 6 and 7 of Author’s Work.

XX

Introduction

police, failing which the security lodged by the surety would be forfeit. Taking history of bail jurisprudence further the authors point out that British Crown through the Government of India Act 1858 passed by the British Parliament assuming direct rule and sovereignty over the territory of India from East India Company brought three major Acts that then defined the criminal law in India. These were the Indian Penal Code

of 1860, the Indian Evidence

Act of 1872 and the Code of Criminal

Procedure of 1882. The authors have noted that prior to 1882 a uniform law of criminal procedure,

operative throughout India, was absent and further there were separate laws for the presidencies and the mofussil; mostly rudimentary in character and were mere guides to numerous

courts in the provinces and in the presidency towns (Calcutta, Madras

and Bombay). The procedures applying to the presidency towns were first consolidated by the Criminal Procedure Supreme Courts Act (XVI of 1852) which was subsequently replaced by the High court Criminal Procedure Act (XIII of 1865). The Acts of procedure applying to the provinces, the Criminal Procedure Code (Act XXV of 1861) was brought only to be replaced by the Act of 1872. Which in turn was replaced by the Criminal Procedure Code or CrPC of 1882 (Act X of 1882).

With the idea of reform aiming at ensuring that there is uniform law of criminal procedure across the territory of India (regardless of whether the courts were in the presidency or in the mofussil areas) the authors taking course of history little further point out that after the culmination of the First World War in 1918, a new bill was prepared, in 1921 that was examined by the Select Committee of the British parliament. It may be noted that original proposal was that undertrial prisoner should be released on bail if the trial is not concluded within six weeks from the date of his appearance before the magistrate, however when the subject reached the Select Committee it considered that the period should be increased to two months and that it should be counted from the first date fixed for taking evidence in the case. The amendments suggested by the Select Committee, according to the authors definitely advanced the concepts and scope of law of bail under the Indian Law and also set the thinking on the subject in motion. In dealing with provisions relating to bail under Old Code of Criminal Procedure (1898) were considered by the Law Commission of India in its 41° Report made some important suggestions for improving and reforming the law on the subject contained

in the Old Code

of Criminal

Procedure

(1898).

We

do not intend to

replicate the details of the 41° Law Commission Report except to say following few words.

Most of the recommendations made by the Law Commission in its 41" Report were incorporated, after due consideration by the Parliament, in the new Code of Criminal Procedure, 1973 that completely replaced the old Code. Enunciating the broad principles touching upon bail, the commission thought: (a) Bail is a matter of right if the offence is bailable.

(b) Bail is a matter of direction if the offence is non bailable. XX1il

Introduction

(c) Bail is not to be granted if the offence is punishable

with death or

imprisonment for life, but the court has discretion, in limited cases, to order

release of a person also that court has discretion in limited cases, to order release of a person. Also, that in relation to such offences, i.e. those punishable by death or imprisonment for life, the Sessions and the High Court should enjoy a wider discretion in the matter of granting bail. Thus, in respect of serious offences inviting major punishment, the Commission, favored the placing of greater reliance on the wisdom and discretion of the Sessions and High Court including the attaching of such conditions to the bail order as the court may deem fit and proper. The suggestion made above was to ensure that while extending the benefit of personal liberty to the accused at the trial, the integrity of the evidence, the security of witnesses and the overall interests of society. In respect of bailable offences (where bail was a matter of right), the new code (1973) did not in any way exonerate the offender by enlarging him on jail. The evolving jurisprudence merely recognized the fact that a category of wrongs does not require the custodial detention of the alleged wrong doer over the period he is charged, tried and judged. Probably one of the most valuable reform that was introduced in the new code of 1973 that it recognized and gave legal basis for the grant of bail to a person, even before his arrest, who might be apprehensive and have grounds to believe that the law enforcement official could seek to temper with his liberty. The provision that flows from the 41“ Law Commission Report observed “...the necessity of granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.”

Before we proceed and for the sake of highlighting in next few pages how the legislative, judiciary and the enforcement machinery has attempted to strike a balance between the requirements of social interests on one side and the need to protect the liberty of individual or group of individuals who are accused of having committed the crimes, which may fall in any of these (a), (b) & (c) categories of

offences. Let us state clearly that the journey of law of bail as depicted earlier in these few pages introducing the ‘Bail’ has been a forward journey, yet the system of bail in India still remains ‘antiquated’. It is oppressive and weighed against the poor and weak. It is important to note that the Supreme Court in its diagnosis found that one of the root causes for long pre-trial incarceration is the unsatisfactory and irrational rules for bail which insist merely on financial security from the accused and their sureties. Many of the undertrials being poor and indigent are unable to provide any financial security. Consequently, they have to languish in prison awaiting their trial. However, it is rational and legitimate that incarceration of persons charged with non-bailable offences during pendency of trial cannot be questioned as volatile of Article 21, since the same is authorized by law (Kalyan Chandra Sarkar v. Rajesh XXIV

Introduction

Ranjan, (2005)2 SCC 42 : AIR 2005 SC 921). Improvement of the system is very necessary as the court insists in Babu Singh v. State of Uttar Pradesh (AIR 1978 SC 527,529) “...the issue is one of liberty, justice, public safety and burden on public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitive judicial process.”

The court has made the constructive suggestions to change legal provisions for bail so that these provisions need no longer be based merely on financial sureties but that other factors should also be taken into account so that poor can get their release from the prison pending their trial. The Apex Court has laid down guidelines to enable the lower courts to determine whether the accused has his roots in the community which would deter him from fleeing from justice. Imposing unjust or harsh conditions, while granting bail, is volatile of Article 21 (Babu Singh ibid, Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632). Ordinarily in cases under TADA (The Terrorist and Disruptive Activities (Prevention) Act, 1987 though the operation of TADA has not been extended, but still the law is applicable to the cases which were registered under it and still waiting disposal), release of undertrials on bail is extremely restricted. But the Supreme Court has ruled (the authors have also pointed out in their work) that even in TADA

cases, where these is no prospect of a trial being concluded within a reasonable times, release on bail may be necessary as this can be taken to be embedded

in the

right to speedy trial under Article 21. In A Geetha v. State of Tamil Nadu (AIR 2006 SC 3053), the Supreme Court has held that the consideration, namely, that in similar cases orders granting bail were passed by various courts (e.g. in Rajesh Gulati v. Government of NCT Delhi, AIR 2002 SC 3094).

The Working of “Anticipatory Bail Law” — Experiences, Expectations

and Challenges Coming now to one of the most complicated and complex aspects of bail law i.e. ‘Anticipatory Bail.’ Anticipatory Bail is a statutory right and it does not arise out of Article 21. Anticipatory Bail cannot be granted as a matter of right as it cannot be considered an essential element of Article 21 (State of Madhya Pradesh v. Ram Kishna Balothia, AIR 1995 SC 1198). The Supreme Court has suggested that liberal use of parole be made

(Suresh Chandra

vy. State of Gujarat, AIR

1976 SC 2462).

Parole is conditional release of a prisoner after he has served a part of the sentence imposed on him. The authors in their work fully acknowledge that the law of anticipatory bail is most complicated area of the subject. It is ridden with different views sometimes even conflicting. The law is in complete flux and remains highly a domain occupied by the ‘discretionary’ power of the Judges. It is Judges’ discretion, which sometimes might be completely out of tune of the time and context or which is guided by the personal background, or philosophy of a judge becomes the magna carta of

XXV

Introduction

anticipatory bail law, putting either the liberty or the public safety and sometimes both in jeopardy. In this context Justice Krishna Iyer, an activist, visionary and a creative Former Judge of the Supreme Court (now no more with us) had said bail is a right and bail is not jail. He propounded this thesis in the case of State of Rajasthan, Jaipur v. Balchand @ Baliay (AIR 1977 SC 2447). This thesis found profuse reflection and appreciation in the hands of Justice A K Sikri in the case of Bhadresh Bipinbhai Sheth v. State of Gujarat (citation already provided at earlier place). The authors too have very cogently and lucidly analyzed Justice Krishna lyer’s above judgment and the doctrine of “Bail and not jail’. The authors have devoted chapter five (Anticipatory Bail) and Chapter six (Special Powers of Higher Courts as to Bail) and chapter seven which according to us really needs serious debate and arriving at some guidelines (Bail under Special Laws and Provisions).

Chapter 5 starts out with the exposition on Section 438 of CrPC and its rationale, which lays down the provision relating to anticipatory bail drawing from the Law Commission Reports (40", 48" 177" and 203"); Report of the National Police Commission, and landmark decisions in Gurbaksh referred by us in earlier part of this Introduction. The authors have taken pain to scientifically present through comparison of the parameters that are to be considered in case of bail under Sections 437 and 438. And more applaudable is the tabular comparison of the observations made by the court in P. Chidambaram v. Director of Enforcement with that Sibbia v. State of Punjab, and Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors (2011 ISCC 694).

The bottom line of the comparison of the parameters that are to be considered in case of bail under Section 437 and 438 by the author is that ‘the grounds for following an anticipatory bail application under section 438 are substantially the same as those for enlarging on bail an accused person, under Section 437 of the CrPC who has been arrested or detained or appears or is brought before a court other than the High Court or Court of Sessions. Only two additional grounds were specified by the court in regard to dealing with an application for anticipating bail namely (a) whether the accusations are intended to humiliate or injure the applicant by his arrest. Let us pause for a second and consider how in recent times people of name, fame and more than that enjoying the image of honesty and integrity have been accused with seeming intention to humiliate or injure the applicant and do everything in reach to get them arrested. Story of Mr Chidambaram is so fresh in our image, not because we are politically aligned or not aligned with him. (b) The impact that the grant of anticipatory bail may have in cases where a very large number of people may be affected. Again pausing for a second let us consider how some of the resource people involved in Ponzi scheme or those who had committed grave economic offences like Vijay Mallya and Nirav Modi siphoned off the public money or funds belonging to state exchequer putting burden on innocent poor masses or on RBI resources taking advantage of anticipatory bail could escape from the country and now even red alert is being litigated in various foreign jurisdiction on their behalf. XXV1

Introduction

Moving further to Mhetre’s case in which nine grounds-these grounds can be read at pages 61-62 of the ‘Law of Bail’ were delineated by the Supreme Court of which only four grounds have subsequently found their place in sub- section (1) of section 438 of the Code of Criminal Procedure (Amendment) Act, 2005 (No 25 of 2005), namely (i)The nature and gravity of the accusation; (ii) the antecedents of the

applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offense. In this regard please see the discussion J Krishna Iyer enters into in his judgment in State of Rajasthan v. Balchand Baliay and the similar discussion generated by Justice A K Sikri in Bhadresh Bipanbhai Shethi v State of Gujarat; (iii) the possibility of the applicant to flee from justice. In this regard, please go through the recent fugitive law enacted by the NDA government where the assets of the fugitives can be attached and put to public auction even when they are not present at that time, as was the earlier requirement under the law. In fact, Mallya’s property in India were subjected to public auction and the Court refused to grant the stay as prayed on behalf of Mallya). And (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him arrested. It may not be out of place to mention here that in spite and despite the above mentioned fourth ground, an entirely new dimension to the P Chidambaram vy. Director of Enforcement (Criminal Appeal No. 1340 of 2019 decided by the Supreme Court on 5" September 2019, the matter is still lingering on and we have referred to that in detail at earlier place in this section of the Introduction) which significantly affected and differed from the judgments of the Supreme Court in earlier Sibbia

case

and Mhetre

case.

In Chidambaram

case

the Supreme

Court,

inter alia gave following directions for grant of bail to person apprehending arrest. The

authors

have captured

these directions

(see page

63 of their work).

These

directions are (1) Anticipatory bail could not be considered an essential ingredient of Article 21 of the Constitution, which as per successive Supreme Court judgments is now taken to mandate that no person shall be deprived of his life or liberty without a fair, just and reasonable procedure established by law; (2) Granting anticipatory bail, under Section 438, could amount to interference in investigation (e.g. custodial interrogation - as is the case of Chidambaram discovery under Section 27 of the Evidence Act, 1872 etc.); (3) Anticipatory bail can be granted only if the court prima facie feels that the anticipatory bail applicant has been falsely implicated; and (4) Economic offences are a class apart in terms of gravity and hence need to be approached differently while considering an anticipatory bail application. Investigation in such cases, could be hampered if anticipatory bail were to be granted.°

8. We are reminded in this regard cases of Proprietary and Directors of DLF, Padmani builders and UNITECH builders - granting them anticipatory bail would defeat the demand of providing justice to thousands who somehow saved every single penny to realize their dream of having their own independent dwelling - and thus the enactment of a new law.

XXVil

Introduction

Thus, a plain comparison of the Chidambaram’s case with cases like Sibbia, Mhetre and Sanjay Chandra would reveal how different the approach has been in the first case from the rest of cases mentioned here. The authors have given a comparative chart in this regard. However, we do not intend to repeat what is captured in this chart, as we have already dealt with some of the key differences in the above discussion. However, another major issue that arose is about the duration of anticipatory bail, once granted. The issue has kept the judicial mind engaged. For how long should an order of anticipatory bail survive? After working into number of cases like Sibbia the Supreme Court in Sushila Aggarwal & Ors v. State of NCT of Delhi & Anr observed that, “In light of the conflicting views of the different Benches of varying strength, we are of the opinion that legal position needs to be authoritatively settled in clear and unambiguous terms.” Ultimately the matter was taken up by the Law Commission more seriously (it was already working on the subject suo moto but got impetus from the observations and questions framed by the Court in Sushila Aggarwal case). The Commission recommended limiting the duration of anticipatory bail by limiting this duration to whatever time the Court prescribed subject to the maximum duration being until the date of the investigating agency filing the charge sheet.’ However the legislature did not incorporate this recommendation into the statute. In consequence therefore as authors also point out, the duration of validity of an anticipatory boil order remains open ended and unanswered question until such time as it is finally decided by a larger bench of the Supreme Court as recommended in the Sushila case. In this regard it needs to be reminded to ourselves that anticipatory bail, once granted, can be cancelled at any time, by the Court of Sessions or the High Court that enjoy untrammeled powers to do so in terms of Section 439 of the Code which explicitly says so in sub section (2) thereof. It would be logical therefore to infer that any person who has been granted anticipatory bail under Section 438 could, if found to have violated the conditions pegged to the anticipatory bail order, could be arrested and committed to custody by the High Court or Court of Sessions with his anticipatory bail getting curtailed/revoked/cancelled forthwith. The kind of conditions that the Court granting anticipatory bail are not limited or circumscribed, in any manner by the CrPC. Again, it be noted that according to the law of bail in Section 438 as developed through the judicial interpretation it is clear that it is not for the Court considering a bail application to weigh and sift the evidence. Similarly on the question- can anticipatory bail application be moved directly before High Court the position that seems to be settled as in the words of the authors, “also the comfort of geographical proximity to a Court of Sessions or the High Court is for the bail applicant to consider and exercise his choice and not for the court to impose. By the same logic, the provision (under Section 438) is neither unworkable, nor highly unreasonable nor 9. See Law Commission of India Report No. 268, May 2017, Pages 46-53.

XXVIil

Introduction

arbitrary and hence the choice or option provided in the Section cannot be read out of it on grounds of administrative imperatives or the burden of pending cases.” (Page74)

The authors moving further to Chapter 6: Special Powers of the High Court as to Bail deal in detail with Section 439 of the CrPC that deals with powers of High Court and Court of Sessions. The focus of this chapter also includes the latest legislative amendment brought in 2018 that has imposed additional burden on High Courts and Court of Sessions. It is a brilliantly written chapter and does not require any detailed elaboration on our part, as we are only concerned with Introduction of the work and not critiquing of the work. The authors have again discussed in detail the difference between the concept of custody and arrest to provide clarity on the intent behind the provision on the issue in Section 439. Cancellation of bail under Section 439 and grounds related to it have been detailed by the authors especially considering the judicial precedent on the subject, including Abdul Basit alias Raju and Others v. Mohd. Kadir Chaudhary and Anr; and State (Delhi Administration) v. Sanjay Gandhi. Another major topic covered in this chapter is about the power to re-arrest an accused person on bail and delegation of power under the provision to Magistrate. The whole chapter has been lucid, cogent and finely researched and hence without spending any more time we move ahead and talk about Law of bail as provided under Special Laws.

Recent Special Laws and Bail Jurisprudence — Challenges Involved Though the authors have dealt with The Unlawful Activities (Prevention) Act, 1967 (UAPA); The Prevention of Money Laundering Act, 2002 (PMLA); Narcotic Drugs

and Psychotropic Substance Act, 1985 (which Mr Mukerji mastered while serving on various assignments dealing with various nuances of the Act, 1985 within the country and outside); Protection of Children from Sexual Offences Act, 2012, and;

Juvenile Justice (Care and Protection of children) Act, 2015 we will deal with only few of these laws and also the powers and responsibilities of the Enforcement Directorate and the CBI in the working of these laws.

[A] The ED and Enforcement of PMLA, FEMA Tragedies and Possibilities of Political Abuse

and FEOA

- Recent Trends,

‘One of the great tragedies of contemporary Indian politics is corrosion of the autonomy of our law enforcement agencies. It probably, dates back to the emergency in the mid-70s, after which every political party has continued this unhealthy practice with varying degrees of doggedness.’ us The other large democracy, the USA, has seen this battle play out in its history. Mr Aroon Purie, the Editor-in-Chief of India Today reminds us of John Edgar Hoover,

the legendary

head of the Federal

years, who battled with several American

10.

See Indian Today, October 14, 2019 page 3.

XXIX

Bureau

of Investigation

Presidents.

(FBI) for 37

Recently we are watching

Introduction

everyday how American enforcement agencies and the US Congress have been challenging the President of the US Donald Trump for malfeasance. We firmly believe that for any democracy to thrive, the checks and balances of its institutions must be allowed to work to prevent abuse of power by those in Office . In the above context, it be noted that in the past few months, the sudden hyperactivity of one central agency- the Enforcement Directorate (ED) — in its pursuit of India’s economic offenders, mainly politicians and businessmen- has led to raising questions about its functioning. The ED has been around for decades and is not quite a new ‘sheriff’ in town. What has changed, however is its empowerment through a troika of postliberalisation laws designed to be serve with economic offenders. The Prevention of Money Laundering Act (PMLA), the Foreign Exchange Management Act (FEMA) and more recently, the Fugitive Economic Offenders Act (FEOA) can be unsparing towards transgressors. FEMA introduced in 1999, treats offences related to foreign exchange as civil offences and is hence relatively milder. The FEOA, which came into force in January this year i.e. January 2019, is meant to pursue economic offenders who might have fled by confiscating their property, sometimes way in excess of their dues.'' It is however PMLA that has made the ED a fearsome agency. The 2002 Act aims to curb money-laundering and confiscate the proceeds from it. Earlier, an offence under PMLA

was something called a ‘predicate’ offence, a crime

that was part of a larger crime, and was tried under Prevention of Corruption Act.’ PMLA came into force as an independent Act in 2005, and all violations under it were treated as cognizabie and non-bailable. This instantly placed enormous powers in the hands of ED, allowing it to make arrest without warrants and seize the properties of those accused of receiving proceeds from money-laundering.

The ED has, in the past five years, attached properties worth over Rs 55,000 crore. It be noted that under the PMLA

(2002) confessions before an investigating officer

are admissible as evidence and bail provisions are stringent. Significantly by a tweak in the year 2013 in the Act has made even possession of the proceeds of moneylaundering a criminal offence. This was largely aimed at discouraging the concept of benami property" and properties held by others for the use of militants and drug traffickers. Since 2005, when the revised PMLA

and FEMA

gave it more teeth, the

ED has registered over 2500 money-laundering cases and over 16000 cases of foreign exchange violations. However, there have been only 18 convictions so far.

It has been rightly said that defending the corrupt cannot be any body’s brief and same applies to us. However, what we are more bothered is about the way the PMLA is applied sometimes raises concern. The classic case (which in Justice Krishna Iyer’s philosophy of criminal jurisprudence including the subject of cancellation of anticipatory bail is ultra vires Article 21) of harassment that goes against all norms of 11.

Please refer to our earlier discussion of cases involving Mallya and Nirav Modi.

12.

For detailed discussion please see Siddhartha Luthra, in SCC (Jr Section) 2018.

13. Please mark it is using the provisions of this Act that properties of some of leaders like the Chairman of Hurriyat in Kashmir has been confiscated and put to auction. XXX

Introduction

natural justice is the issuing of look out circulars (LOCs) without informing the concerned. The person discovers it only when stopped at point of departure. The other problem is that investigations drag on for years. Agencies rush off on a tangent without solid evidence. Headlines are made and a person’s reputation sullied even before a charge-sheet is filed. In the past, CBI used to be the weapon of choice to settle political scores. In recent months, however, it is the ED that has become the agency pursuing investigations against those who are irritants for the system. The timing of many ED raids and summons issued to politicians-just before an election- also lends itself to scrutiny (stories from Karnataka, Chennai and even Haryana are in galore).

[B] Preventive Detention Jurisprudence

Laws

like — NSA,

UAPA

and JKPSA

and Bail

After dealing with gaps and pitfall in using the powers and discharging responsibilities by the Enforcement Directorate and evolving a sensitive criminal jurisprudence including the bail jurisprudence, let us now shift to enforcement of preventive detention laws, especially the recent amendment in UAPA and more importantly the enforcement in today’s context of the Jammu and Kashmir Public Safety Act (JKPSA ).

Without putting efforts to with microscopic approach National Security Act (NSA) of the ruling establishment -

deal with UAPA, as it has been dealt with in detail and by the authors we will prefer to say few words of and JKPSA, laws which can be used to silence critics sometimes for years by twisting the language and style

of the norms written in NSA and JKPSA in a manner that obtaining bail, what to talk

of anticipatory bail, becomes a very remote possibility. The law is so insensitively drafted and even the enforcement agencies have established tenacity in discharging their responsibilities with concern for human dignity and rights.

The JKPSA, the State’s own preventive detention law, has been deployed repeatedly since its enactment in 1978, and has been the instrument of choice in the recent spate of arrests of prominent political persons in the wake of revocation of Article 370 of the Constitution. The three times Chief Minister of the State of J&K, former Union Minister and sitting Member of Parliament from Srinagar Dr Farooq Abdullah’s detention for being a ‘threat to public order,’ was in response to the habeas corpus petition that was filed by a Tamil Nadu leader and a sitting Member of Parliament Mr Vaiko. The case of Dr Abdullah is an example of how laws with stringent preventive detention provisions, such as the JKPSA

or the National Security Act (NSA) can sometimes

lead to crisis and may affect the credibility of the concept of ‘law’ itself. The JKPSA comprises provisions that grant sweeping powers to detain and allow hearing behind closed doors, besides denying detainees basic rights such as immediate information on the reasons for arrest, legal assistance and the right to seek bail, which ‘arrested’ persons have but ‘detainees’ do not.

XXX1

Introduction

For instance, under the NSA and

JKPSA, the Government can detain persons up to

10 days before disclosing any reasons to them. And then too, only if the Government does not prohibit this disclosure as being against public interest, making it difficult to effectively challenge the detention order. All detention orders undergo scrutiny by an Advisory Board, headed by retired Judges, and must either be confirmed or revoked by it, and this can take up to 12 weeks. But rather than being effective monitors, Boards have shown the tendency to generally confirm detention orders. This has been the recent experience of Dr Abdullah who even after more than 100 days remains detained under JKPSA - where is the question of bail and the question of anticipatory bail for those who may suspect being detained under JKPSA seems laughable to say the least. It be please noted that as per media reports, the information obtained under RTI Act, over 99 percent of detentions between April 2016 and December 2017 were confirmed by J&K Advisory Board, but more troubling, is the fact that 81 percent of these confirmations were later quashed by the High Court of J&K. To sum up this portion of the discussion we will only say that evolution of a culture informed by the high values and beautiful goals which the Founding Fathers enunciated in our Constitution especially in the Preamble is the need of the hour. Gandhi’s message of love, peace and non-violence and Nehru’s articulation of Tryst with Destiny on the midnight of 14" August, 1947 should constitute magna carta for the legislatures, judiciary, bureaucrats and political executive - without which thinking of evolution of a modern and matured bail jurisprudence is a non-real proposition. Conclusion The work produced by Mr educative that one does not foreword from someone like motivated to think more and went so long and sometimes should put a stop.

Naroola and Mr Mukerji has been so engaging and feel like stopping commenting on it and the idea of Hon’ble Justice A K Sikri comes to mind, one gets so more - and it is precisely because of these two factors I in circles (for which I seek your forgiveness) but now I

Before putting the full stop, I would like to congratulate the authors for the wonderful “Law of Bail” and appreciation for Oakbridge for agreeing to publish the work on such timely subject. Looking to the width of the canvas covered and the multidisciplinary approach adopted with deep insights into working of legal profession I am sure the work of Mr Naroola and Mr Mukerji will be a rich addition to the literature available on the subject. In my view “Law of Bail” is a must reading for lawyers, judges, jurists, scholars and media persons. “Law of Bail” would prove a great source of learning for students not only belonging to discipline of law but equal to students from disciplines such as: sociology, political science, history, economics, philosophy, forensic science and digital science and technology of digitization.

Once again, my congratulations to the authors and thanks, thanks and thanks to them for inviting me to introduce their work.

XXX

Preface The subject of bail is of paramount interest to any civilised society which firmly believes that pre-conviction incarceration, but for a few cases, should be the exception rather than the rule. Jail imposes its own trauma and a lasting shadow on the psyche of any person especially one who undergoes imprisonment only to be acquitted subsequently. Bail is also a subject of great interest to lawyers who, as a community, have generally tended to favour a just and humane law and dispensation. However, the global outrage over economic crimes, the lowered threshold of tolerance towards violence caused by

terrorist acts and a perceived increase in criminality in an aspirational but impatient generation have all led to a curbing of the liberal spirit and a hardening of attitudes towards law breakers of any kind. All of this has led to the establishment of changed legislative paradigms followed by the enactment of special laws (or provisions in existing laws) which have rendered bail increasingly elusive. The guiding principle of “bail not jail”, famously enunciated by Justice V R Krishna Iyer, in the closing years of the seventies, now seems to be headed the way Shakespeare predicted when he said “And enterprises of great pith and moment; with this regard their currents turn awry; and lose the name of action.” The changes that have been ushered in by new interpretations, laws and mores impelled the authors of this book to attempt a serious study of the law of bail aimed at achieving clarity in how the law of bail operates currently in the context of different laws, judicial pronouncements and legislation. Although there are numerous books, on different criminal laws, the authors going by their own experience, found that the law of bail merits independent as well as thorough expounding and elucidation.

Unlike in the nineteenth and for much of the twentieth century, when statues (or the common law) maintained an unchanging steadfastness and breadth of application over the years; the decades after 1950, in India, have seen a proliferation of legislation as

well as the micromanaging and enactment of laws or amendments to address narrow or specific requirements. Consequently, the authors found changes in legislation and judicial interpretation, in regard to the law of bail, even as they were writing this book. Every possible effort has been made to keep this book as up to date and contemporaneous as possible but with with our national penchant for legislation (the Prevention of Money Laundering Act, for instance, has seen amendments almost every other year since its notification in 2005), it is distinctly possible that another edition may be needed one year down the line.

What this book hopes to engender among the practitioners and students of law is a clearer understanding of the fact that bail - be it subject to whatever conditions the law may prescribe - is an adjunct to the fundamental right to life and liberty assured under Article 21 of the Constitution of India. Doubtless the life and liberty of an individual may be taken or curtailed respectively, by the State, under certain circumstances but it

Preface

must be done according to the “procedure established by law” and, over the years, the judicial dictum has been that such a procedure must be “just, fair and reasonable”. The

objective of the authors of this book has been to explore and explain the different facets of the “law of bail” and developments that have shaped the evolution of this law, in the light of the overarching principle of personal liberty.

R K Naroola and Udayan Mukerji

Delhi

XXXIV

About the Authors R K Naroola has 36 years of experience in Indian industry with specialisation in laws relating to mining, ports, power, infrastructure, environment, banking, labour laws and

industrial relations. During this time he has been involved in setting up of companies and Joint Ventures both in India and abroad. He has acquired highly specialised experience in Collaborations, Joint Ventures, Banking, Industrial Relations, Labour Law, International Financial Institutions,

Foreign Trade, Contract Law and Negotiations. Mr. Naroola is also a Certificated Associate of the Indian Institute of Bankers (CAIIB) and Life Member of the Indian Institute of Bankers. Besides, he is a Life Member of the Indian Council of Arbitration and Member of the SCBA and HCBA. He had a distinguished academic career with distinctions in both, the Bachelor of Laws and Master of Laws degrees.

Udayan Mukerji retired from the Indian Police Service after more than three decades of service. During his career, Udayan

Mukerji functioned at various levels and garnered immense experience as well as thoroughgoing expertise in areas dealing variously with homeland security, the security of Indian Missions abroad, internal security, communications security and investigations into security deficiencies. He is the recipient of the prestigious Indian Police Medal for Meritorious Service and the President’s Medal for Distinguished Service. Udayan Mukerji is a Membe of the Supreme Court Bar Association and has handled litigation/legal counselling in diverse areas including criminal matters, torts, writ petitions under the Chapter on Fundamental Rights in the Constitution, personal laws, arbitration and contracts.

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Foreword by—Justice A K Sikri

Vv

Introduction by—Prof (Dr) Mool Chand Sharma

xii

Preface

XXXII

About the Authors

XXXV

General Contents

XXXVIL

Detailed Contents

XXXIX

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Detailed Contents Chapter [. Concept and Meaning of Bail Judicial view on Bail: Justice V R Krishna Iyer’s Approach

A Brief History of Bail The Evolution of Bail in India

41" Report of the Law Commission Chapter II. Default Bail Section 167. Procedure when investigation cannot be completed in twenty-four hours

Judicial intervention to modify the ninety-day or sixty-day period Method to calculate the period of ninety/sixty days Section 41. When police may arrest without warrant

Section 42. Arrest on Refusal to Give Name and Residence Section 44. Arrest by Magistrate Section 151. Arrest to prevent the commission of cognisable offences

Section 173. Report of police officer on completion of investigation Chapter III. Bail in Bailable Offences Section 436. In what cases bail to be taken Valid conditions for bail under Section 436

Cancellation of bail granted to a person accused of a bailable offence Re-arrest of a person bailed under Section 436 of the CrPC Bond for appearance under Section 88 of the Code of Criminal Procedure vis-a-vis bail provisions in Chapter XX XIII

Section 88. Power to take bond for appearance Section 436A. Maximum can be detained

period for which an undertrial prisoner

xl

Detailed Contents

Chapter IV. Bail in Non-Bailable Offences

Bail in case of non-bailable offence Section 437. When bail may be taken in case of non-bailable offence Bail Applications under Section 437: Rationale and Considerations Effect of not arresting an accused person during investigation upon the subsequent plea for bail Whether the Court should weigh the evidence while hearing a bail application Can successive bail applications be filed before a judge other than the one who heard and refused the Bail plea in the first instance? Do the provisions of Section 437(6) confer a right to bail on an undertrial when trial by Magistrate exceeds 60 days?

Section 437A. appellate Court

Bail to require accused

to appear

before

next

Chapter V. Anticipatory Bail

Section 438. Direction for grant of bail to person apprehending arrest What is the duration of anticipatory bail, once granted? Can anticipatory bail application be moved directly before the High Court Chapter VI. Special Powers of Higher Courts as to Bail Section 439. Special powers of High Court or Court of Session regarding bail Section 376 (3)

Section 376AB

Section 376DA Section 376DB Custody vs Arrest

Cancellation of Bail

Re-arrest of an accused person on bail by direction of the Court rather than cancellation of bail

Delegation of power of the High Court or the Court of Sessions under Section 439(2)to the Court of a magistrate

Detailed Contents

xli

Chapter VII. Bail under Special Laws and Provisions

89

A. The Unlawful Activities (Prevention) Act, 1967 (UAPA)

90

S. 43D. Modified application of certain provisions of the Code

90

S. 37. Offences to be cognizable and non-bailable

94

S. 207. Supply to the accused of copy of police report and other documents

95

Report of the Public Prosecutor

97

B. The Prevention of Money Laundering Act, 2002 (PMLA)

So)

S. 45. Offences to be cognizable and non-bailable

99

Section 3. Offence of Money-Laundering

103

C. Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985

107

S. 37. Offences to be cognizable and non-bailable

107

D. Protection of Children from Sexual Offences (POCSO) Act, 2012

111

S. 31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court

Heh

The impact of Section applications

29 of the POCSO

Act on bail

S. 29. Presumption as to certain offences E. Juvenile Justice (Care and Protection of Children) Act, 2015

S. 12. Bail to a person who is apparently a child alleged to be in conflict with law

115 I Is LF,

17

Grounds for Denial of Bail under Section 12 of the Act

118

Appeal against an Order by the Board pertaining to Bail

P19

S. 101. Appeals

ne)

S. 102. Revision

PA

Anticipatory Bail for Juvenile Chapter VIII. Of Bonds, Sureties and Deposits

122 123

Section 440. Amount of bond and reduction thereof

123

Section 441. Bond of Accused and sureties

125

S. 43. Arrest by a private person and procedure on such arrest

127

Section 441A. Declaration by Sureties

127

Section 442. Discharge from Custody

27

Section 443. Power to order sufficient bail when that first taken in insufficient

128

xlii

Detailed Contents

Section 444. Discharge of sureties Section 445. Deposit instead of recognisance | Sectiion 446. Procedure when bond has been forfeited Section 446A. Cancellation of bond and bail bond

Section 447. Procedure in case of insolvency or death of surety or when a bond is forfeited Section 448. Bond required from minor Section 449. Appeal from orders under section 446 Section 450. Power recognizances

to direct levy of amount

due

on

certain

Chapter IX. Whither Bail

SCHEDULE Schedule I. The First Schedule

157

Chapter I CONCEPT AND MEANING OF BAIL The

word

“Bail”

is not defined

in the Criminal

Procedure

Code,

1973

(CrPC).

Chapter XXXIII of the CrPC deals with “Provisions as to Bail and Bonds” elaborately explaining the process and conditions of bailment without defining the word itself. Black’s Law Dictionary, however, defines bail as follows,

To procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court. To set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called “bail,” because the party arrested or imprisoned is delivered into the hands of those who bind themselves for his forthcoming, (that is, become bail for his due appearance when required,) in order that he may be safely protected from prison.

Bail is therefore the setting of an accused person on liberty subject to such safeguards as may be needed to ensure that his presence is ensured when required. The biggest justification for bail is that it preserves a person (who is to be tried for an offence) from the rigours of confinement, more so if he is subsequently found to be not guilty of the offence charged. Lord Denning, in his book “Freedom Under the Law”! stressed the importance of

balancing personal freedom with social security, Powers may be abused, and, if those powers are abused, there is no tyranny like them. It leads to a state of affairs when the police may arrest any man and throw him into prison without cause assigned. It leads to the search of his home and belongings on the slightest pretext—or on none. It leads to the hated gestapo and the police State. It leads to extorted confessions and to trials which are a mockery of justice. The moral of it all is that a true balance must be kept between personal freedom on the one hand and social security on the other.

Judicial view on Bail: Justice V R Krishna Lyer’s Approach Perhaps the best exposition of the principle, logic, necessity for and philosophy of bail was made by Justice V R Krishna lyer in Gudikanti Narasimhulu & Ors v. Public Prosecutor, High Court of Andhra Pradesh.’ In his opening remarks, Justice Iyer said, 1. Lord Denning, Freedom Under the Law, Steven & Sons Ltd, 1949. 2 AVIS SECRIO)BI1E

2

Chapter !—Concept and Meaning of Bail

Bail or jail? - at the pre-trial or post- conviction stage - belongs to the blurred area of the criminal justice system and largely binges 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 the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.

Justice Iyer was clear in his view that bail was an essential tool to assure the personal liberty envisioned in the Indian Constitution. Thus, bail was not just a routine legal direction given at the discretion of the court but a means to ensure the Constitutional obligation that nobody was deprived of his personal liberty unless such deprivation was fully justified by the exceptions/ safeguards to the fundamental rights contained in the Constitution. To this effect he said, Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.

Justice [yer acknowledged that historically, down to contemporary law, enlargement on bail was at the discretion of the judge; but he quoted Lord Camden to say, the discretion of a judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, foliy and passion to which human nature is liable...

Justice Iyer cited authorities to contend that bail cannot be withheld as a punishment and that the requirements of bail (or denial thereof) are merely to ensure the presence of the prisoner at the trial. Therefore, bail should be first option and may be declined only if there were reasonable, evident and strong grounds (e.g. being accused of a crime that invites major punishment) to conclude that the prisoner would abscond from the trial. Thereby, Justice Iyer stated, 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.

Very perceptively, Justice [yer pointed out that the machinery of the prosecution would use the means at its disposal to have the bail denied but emphasised that it is for the court to sift the facts and decide. Justice Iyer observed, Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. 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. Realism is a component of humanism which is the heart of the legal system. We come across cases where parties have already suffered 3, 4 and in one case (the other day it was unearthed) over 10 years in prison. These persons may

Concept and Meaning ofBail

perhaps be acquitted-difficult to guess. innocence long in rigorous incarceration curial processes, is an irrevocable injury.

3)

If they are, the injustice of inflicted by the protraction of

Thus, denial of bail should be based on a studied balance of the interests of the

individual vis-a-vis those of the society. It is on these basic lines that the jurisprudence of bail evolved in India over subsequent years with the Supreme Court laying down precise guidelines for considering bail applications. Unfortunately, however, over time courts have tended to become excessively circumspect in the matter of bail and denial has started to become the rule rather than the exception. It can be argued that the growth of terrorism, the rising magnitude of economic offences, incremental violence in society have all resulted in a hardening of judicial perceptions and may have caused a shift in sentiment from bail to jail.

A Brief History of Bail The Byzantine Emperor Justinian I codified (529 to S65AD) the collection of laws and legal interpretations which prevailed in his time into the Codex Justinianus or the Code Justinian. Book IX, Title 3 (2) of the Code lays down that,

No accused person shall, under any circumstances, be confined in prison before he has been convicted

The Magna Carta or the Great Charter was a charter of rights, agreed to by King John of England and signed by him on 15 June 1215 at Runnymede near Windsor in England under pressure from leaders of the clergy and barons who wished to put some check on the arbitrary powers of the king. Although the Magna Carta does not provide for bail, it does have some provisions that could be regarded as the progenitors of the subsequent concept of bail. These are: Clause 9 of the charter, which stipulates, Neither we nor our officials will seize any land or rent in payment of a debt, so long as the debtor has movable goods sufficient to discharge the debt. A debtor’s sureties shall not be distrained upon so long as the debtor himself can discharge his debt. If, for lack of means, the debtor is unable to discharge his debt, his sureties shall be answerable for it. If they so desire, they may have the debtor’s lands and rents until. they have received satisfaction for the debt that they paid for him, unless the debtor can show that he has settled his obligations to them.

This clause clearly mentions that sureties who would provide surety for the debt of a debtor would be answerable for the repayment of the debt. Once the sureties discharged a debt on behalf of a debtor then they would enjoy the lands and rents of the debtor until the debtor redeemed the same by paying the sureties their dues. Clause 39 of the charter stipulates, No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

4

Chapter i—Concept and Meaning of Bail

This clause was directed against arbitrariness in arrest and detention except as per the law of the land which then meant a judgment by the peers and equals. Clause 44 of the charter stipulates, People who live outside the forest need not in future appear before the royal justices of the forest in answer to general summonses, unless they are actually involved in proceedings or are sureties for someone who has been seized for a forest offence.

This clause carries the inherent assumption that someone seized for a forest offence could have sureties who, in turn would have to appear before royal justices as and when summoned. The inference would be that the accused would have been enlarged on bail whereby the attendance of sureties would be required.

The concept of Bail received significant elaboration in the Statute of Westminster issued in 1275 AD which codified the existing law in England into 51 chapters. The caption of Chapter XV is, Which Prisoners be mainpernable, and which not. The Penalty for unlawful bailment

The word mainpernable is the adjectival form of mainprise which provided for a surety to furnish an undertaking given to a magistrate or court that even without having an accused in custody one will be liable for the appearance of the accused on a fixed day to defend any and all charges to be brought against him. The statute stipulated that such persons as were indicted for petty larceny (a mainpernable offence) not exceeding the amount of 12 pence would henceforth be let out on the strength of sufficient surety, without having to part of their goods as security and the Sheriff would be responsible for the correctness of the bailment. The benefit of bail would not, however, accrue to those who broke out of the King’s prison, were known thieves, were

guilty of arson, were

accused of murder,

were

counterfeiters

of the

King’s seal, were charged with treason against the King himself or those who had been taken into custody at the request of the Bishop. Thus, by listing which offences were bailable and which were not, Statute of Westminster in 1275 eliminated the discretion of sheriffs with respect to which crimes would be bailable. The Sheriffs, nonetheless, remained vested with the authority to decide the amount of bail and the rationale for arriving at the amount. The Statute,

however, was far from a universal right to bail. The judges (justices of peace) were kept outside the mechanism entirely and the Statute aimed at punishing such sheriffs as had hitherto exploited the arbitrary system of bail to further their own interests. Michael Dalton in “The Country Justice” specified the following for bailment, e The authority, earlier vested in sheriffs and constables, to grant bail, had

been taken away from them and vested in the Justices of Peace.

3. The Country Justice was published in 1614 AD. It contains the Practice of the Justices of the Peace out of their Sessions gathered for the better help of Such Justices of Peace as have not been much conversant in the Study of the Laws of This Realm.

Concept and Meaning of Bail

e In cases of manslaughter or felony or suspicion of these offences being bailable by law, at least two have to be present together at the time of bailment certify the fact of bailment, in writing by their own

5)

manslaughter or felony; Justices of Peace would and they would have to hands.

The question of the applicability of the statute of 1275 to judges continued to fester right through to the early ahs century when King Charles I (1600 to 1649) failed to secure funds from Parliament. He then coerced some noblemen into extending him loans and those that resisted were imprisoned without bail. Five such jailed noble knights filed a habeas corpus petition demanding either trial or bail. Charles I declined to respond and it was argued, on behalf of the king in court, that it was his sovereign right to imprison and this sovereign function could not be challenged on the basis of the doctrine that the king could do no wrong. The court upheld this sovereign prerogative argument. It was much later that the Parliament passed the Habeas Corpus Act of 1677. The Act rescued bail from the clutches of sovereign caprice by directing that a magistrate, Shall discharge the said Prisoner from his Imprisonment taking his or their Recognizance, with one or more Surety or Sureties, in any Sum according to their discretion, having regard to the Quality of the Prisoner and Nature of the offense, for his or their Appearance in the Court of the King’s bench...unless it shall appear...that the Party (is)...committed...for such Matter or offenses for which by law the Prisoner is not Bailable.

Though the administration of bail law became better regulated in the wake of the Habeas Corpus Act of 1677, the hurdles posed by excessive bail requirements continued. In consequence, an accused could be enlarged on bail and yet remain in durance due to inadequate finances. It was in order to ameliorate this problem that the Parliament enacted the English Bill of Rights, 1689, the Preamble to which observed,

...excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects”. It added however that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

As Caleb Foot explained, ...English protection against pretrial detention evolved it came to comprise three separate but essential elements. The first was the determination of whether a given defendant had the right to release on bail, answered by the Petition of Right, by a long line of statutes which spelled out which cases must and which must not be bailed by justices of the peace or (in the early period) by sheriffs, and by the discretionary power of the judges of the king’s bench to bail any case not bailable by the lower judiciary. Second was the simple, effective habeas corpus procedure which was developed to convert into reality rights derived from legislation which could otherwise be

6

Chapter !—Concept and Meaning of Bail

thwarted. Third was the protection against judicial abuse provided by the excessive bail clause of the Bill of Rights of 1 689."

The year 1826 marked a significant forward movement in English law with the passage of the Criminal Justice Act of 1826. Section III of the 1826 Act formally stipulated,

Every Justice of the Peace before whom any Person shall be taken on a Charge of Misdemeanor, or Suspicion thereof, shall take the Examination of the Person charged, and the Information upon Oath of those who shall know the Facts and Circumstances of the Case, and shall put the same, or as much thereof as shail be material, into Writing, before he shall commit to Prison or require Bail from the Person so charged; and in every Case of Bailment shall certify the Bailment in Writing

Thus, we observe that the concept of bail had gradually, over time, come to be recognised as being integral to criminal proceedings. The next step forward, in English law, was the Criminal Justice Act of 1848, Section XXIII of which provided that, That where any Person shall appear or be brought before a Justice of the Peace charged “with any HEGLOnVins. etek: atte ete tena ore canoe eee such Justice of the Peace may, in his Discretion, admit such Person to Bail, upon his procuring and producing such Surety or Sureties as in the Opinion of such Justice will be sufficient to ensure the Appearance of such accused Person at the Time and Place when and where he is to be tried for such Offence The

1848 Act, for the first time, also stipulated that even

if bail was

initially

declined to an accused, the same could be granted subsequently at any time before the commencement of the trial proper. The provision states, ...In all Cases where a Person charged with any indictable Offence shall be committed to Prison to take his Trial for the same, it shall be lawful, at any Time afterwards, and before the First Day of the Sitting or Session at which he is to be tried, or before the Day to which such Sitting or Session may be adjourned, for the Justice or Justices of the Peace who shall have signed the Warrant for his Commitment, in his or their Discretion, to admit such accused Person to Bail in manner aforesaid ; or if such committing Justice or Justices shall be of opinion that for any of the Offences herein-before mentioned the said accused Person ought to be admitted to Bail, he or they shall in such Cases, and in all other Cases of Misdemeanors, certify on the Back of the Warrant of Commitment his or their Consent to such accused Party being bailed, stating also the Amount of Bail which ought to be required, it shall be lawful for any Justice of the Peace, attending or being at the Gaol or Prison where such accused Party shall be in Custody, on Production of such Certificate, to admit such accused Person to Bail in manner aforesaid; 4 Caleb Foote, The Coming Constitutional Crisis in Bail: I, University of Pennsylvania Law Review,

Vol. 113, No. 7 (May 1965), p 968.

Concept and Meaning of Bail

i

The Act provided that in offences of libel, certain conspiracies, night poaching, some misdemeanours etc., bail could not be declined. So, over the millennia, not only had the subject of bail acquired specific mention in the statute but also it was postulated that bail could be granted even at a later stage if denied to the accused in the first instance. Despite the passage of a series of Criminal Consolidation Acts in 1861 none of them mentioned/included the issue of bail. Reforms and simplifications proposed during 1878 - 1880 did not culminate in legislation. The legislature, in England, enacted the Criminal Justice Administration Act of 1914 which introduced the provision of “Continuous Bail’ i.e. the accused would not have to seek bail afresh at each stage or hearing of a trial. As per Section 19 of the Act, Where a person is remanded on bail the recognisance may be conditioned for his appearance at every time and place to which during the course of the proceedings the hearing may be from time to time adjourned, without prejudice, however, to the power of the court to vary the order at any subsequent hearing.

The Evolution of Bail in India Commencing from the time of Lord Warren Hastings, in his tenure as Governor of Bengal (1773 -1785) the Sudder Diwani Adalat was created as the highest court to try civil matters and the Sudder Nizami Adalat to try criminal (foujdari) cases with mofussil adalats (Diwani and Nizami) being established in the towns. Two forms of bail were then in existence. One was the muchalka, a solemn engagement or personal bond whereby the accused would be released on his personal recognisance subject to such penal provisions (in the event he jumped bail) as would be directed by the magistrate. The other form was zamanat where a surety (zamin) or sureties would undertake to produce the accused on the days and dates desired by the magistrate and/ or the police, failing which the security lodged by the surety would be forfeit. The discretionary power to grant or refuse bail was vested in the nizami adalats under the Islamic doctrine of tazir where the discretion to punish offences was vested in the judge.

After the War of Independence in 1857, direct rule and sovereignty over the territory of India previously governed by the East India Company was assumed by the British Crown through the Government of India Act, 1858 passed by the British Parliament on August 2, 1858. This transition was followed by three major Acts that then defined the content of the criminal law in India. These were the Indian Penal Code or IPC (Act XLV of 1860), the Indian Evidence Act of 1872 and the Criminal Procedure Code or CrPC (Act X of 1882).

Prior to 1882 a uniform law of criminal procedure, operative throughout India, was absent. There were separate laws for the presidencies and the mofussil; mostly rudimentary in character. These served as mere guides to numerous courts in the

8

Chapter I—Concept and Meaning of Bail

provinces and in the presidency towns (Calcutta, Madras and Bombay). The procedures applying to the presidency towns were first consolidated by the Criminal Procedure Supreme Courts Act (XVI of 1852) which was subsequently replaced by the High Court Criminal Procedure Act (XIII ‘of 1865). The Acts of procedure applying to the provinces, the Criminal Procedure Code (Act XXV of 1861) was brought in only to be replaced by the Act X of 1872 which, in turn was replaced by the Criminal Procedure Code or CrPC of 1882 (Act X of 1882).

The CrPC of 1882 was followed by the CrPC of 1898 that ushered in a gamut of reforms aimed at a uniform law of criminal procedure applicable across the territory of India (regardless of whether the courts were in the presidency or in the mofussil areas). After the culmination of the First World War in 1918, a new Bill was prepared, in

1921, that was examined by the Select Committee of the British Parliament. As regards the legislative changes in law relating to Bail in the Code of Criminal Procedure the Select Committee said,

It was pressed upon us that the provisions as to bail in non-bailable cases are much too stringent. One suggestion made to us was that in Section 497, we should delete all words after ‘may be released on bail’ in sub-section (1) and the whole of sub-section (2). The result would have been to give all Courts full discretion in the matter of allowing bail in non-bailable cases

and we felt generally that this was going too far. What we have done is to allow the Court or police officer to release on bail in a non-bailable case unless there appear to be reasonable ground for believing that the accused has been guilty of an offence punishable with death or transportation, and as some safeguard against this we have provision for a review by the Sessions Court or the High Court of any order admitting to bail in a nonbailable case. Some of us including all the official members or the Joint Committee are of the opinion that this decision goes too far and that in the end it will not tend towards the administration of justice.

The original proposal was that an undertrial prisoner should be released on bail if the trial is not concluded within six weeks from the date of his appearance before the Magistrate. The Select Committee, however, considered that the period should be increased to two months and that it should be counted from the first date fixed for taking evidence in the case. The Intention of the Select Committee appears to have been that the trial of a criminal case should be concluded within two months and if it is not so concluded the prisoner should not be made to suffer and he should be released on bail. In exceptional cases the Magistrate has the discretion not to grant bail, but then he has to record his reasons for doing so. The amendments inserted in the law definitely advanced the concept and scope of law of bail under the Indian law. It also set the thinking on the subject in motion. The Law Commission took the opportunity to review the scheme while undertaking the revision of the Code. In dealing with the provisions relating to bail under Section 497 of the Old Code of Criminal Procedure (1898) the 41° Report of the Law Commission observed that,

Concept and Meaning of Bail

9

Cases often arise under Section 497, where, though the court regards the case as fit for the grant of bail, it regards the imposition of certain conditions as necessary in the circumstances. .......... As regards the power ofa Court to cancel bail granted by it, the relevant part of Section 497(5) is obviously intended to apply to the High Court or Court of Session also, when bail is granted by that Court.°

According to the Commission the phrase ‘every other Court’ however created a contrary impression. It suggested that the words ‘any Court’ should be substituted to correct this impression. It further recommended that in Section 497, a provision should be inserted to provide that the Court releasing a person on bail may direct that such person be arrested and commit him to custody, and suggested that the existing sub-section (5) be omitted. Clause 446 in The Bill of Code of Criminal Procedure was inserted to clarify that the power to grant bail includes power to impose conditions on the person accused. It also emphasised cancellation of the bail on an order of re-arrest. Before the Bill was put on the legislative anvil, the Joint Committee incorporated an additional proviso in Clause 446 of the Bill with the remark that,

It was brought to refused by Courts the investigating imminent. In the otherwise accused

the notice of the Committee that sometimes bail is being on the sole ground that the accused may be required by officer for an identification parade which may not be Committee’s opinion this should not be permitted if person is entitled to be released on bail.

The realisation that the liberty of the subject should unnecessary restraints had gradually been making headway.

not be subjected

to

The original Section 498 of the Code was renumbered as sub-section (1) and subsection (2) was inserted by Section 9E of the Code of Criminal Procedure (Amendment) Act 26 of 1955. The need for amendment in this Section was guided by the consideration that, Under the existing law doubts have been expressed whether a person who has been admitted to bail under Section 498 of the Code can be caused to be re-arrested except in exercise of the inherent powers of the High Court. In order to remove these doubts. a new sub-section has been added to Section 498.

Section 96 of the Amendment Act 26 of 1955 added Section 499(3) to the Code

provided for acceptance of affidavits while considering the question of sufficiency of sureties. Prior to this whenever sureties were arranged by the bail applicant, he could not be immediately released on bail because the procedure required that the credibility and worth of the sureties be first verified so as to ensure that they had the means and the standing to act as sureties. The introduction of an affidavit attesting to these requirements did away with the requirement for lengthy verification. This step 5 41° Law Commission Report, Paras 39.5 and 39.7.

10

Chapter I—Concept and Meaning of Bail

facilitated the efficacy of the bail system in Indian law as even after the grant of bail, the utility of it could not be availed as the matter rested on the verification of the sureties which in practice was a cumbersome affair. The Act of 1955 which amended the Code was guided by a serious thought to provide adequate facilities to every accused person to defend himself in a proper manner and at the same time, to ensure speedy disposal of all criminal judicial proceedings, so that, innocent persons should not suffer from protracted proceedings and the real offenders should be punished as early as possible after proper trial. The law amending the Code aimed at achieving the above-mentioned aim. Chapter

XXXIX

of the

Code

of Criminal

Procedure,

1898

consisting

of

Sections 496 to 502 dealt with questions of granting of bail to accused persons before trial and conviction. No reference was made to the granting of bail to persons who had been tried and convicted. Such convicted persons were to invoke the provision in Section 426, which formed part of the power of the Appellate Court to grant bail to a convicted person. It dealt with the power of the Appellate Court to grant bail to a person convicted of non-bailable offences when such convicted persons satisfied the Court that they intended to present appeals against their orders of conviction. This is the effect of Section 426(2)(a) which was added in 1955.

41" Report of the Law Commission The recommendations of the Law Commission in its 41“ Report were incorporated, after due consideration by the Parliament, in the new Code of Criminal Procedure, 1973 that completely replaced the previous Code. The broad principles touching upon bail were enunciated by the Law Commission as follows, (i) Bail is a matter of right if the offence is bailable. (ii) Bail is a matter of discretion if the offence is non-bailable.

(iii) Bail is not to be granted if the offence is punishable with death or imprisonment for life, but the court has discretion, in limited cases, to order release

of a person.

Also,

that is relation

to such

offences,

i.e. those

punishable by death or imprisonment for life, the Sessions and the High Court should enjoy a wider discretion in the matter of granting bail. It would thus be seen that, in respect of serious offences inviting major punishment, the Law Commission favoured the placing of greater reliance on the wisdom and discretion of the Sessions and High Courts including the attaching of such conditions to the bail order as the court may deem fit and proper. This was to ensure that while extending the benefit of personal liberty to the accused, the court also made certain of the presence of the accused at the trial, the integrity of the evidence, the security of witnesses and the overall interests of society. In respect of bailable offences (where bail was a matter of right), the new Code did not in any way exonerate the offender by enlarging him on bail. The evolving jurisprudence merely recognised the fact that a category of wrongs does not require

Concept and Meaning of Bail

i

the custodial detention of the alleged wrong doer over the period that he is charged, tried and judged. A great leap forward was made in the new Code of Criminal Procedure,

1973. It

recognised and gave legal basis for the grant of bail to a person, even before his arrest, who might apprehend and have grounds to believe that the law enforcement officials could seek to tamper with his liberty. This proviso too flowed from the Report of the 41°' Law Commission which observed, ...the necessity of granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.

This view later found mention in the Supreme Court judgment in Balchand vy. State of MP.° wherein the Court found,

The Legislature in enshrining the salutary provisions of Section 438 of the Code, which applies only to non — bailable offences, was to see the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers...

In a historical perspective, therefore, the bail mechanism in Indian law has evolved from the efforts to bridge the requirements of social interests with those of personal liberty. What we shall, however, see in this book is to whether, through the mechanism of various legislative measures and judicial pronouncements, the law has taken away with one hand what it gave with the other.

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Chapter II DEFAULT BAIL The subject of bail is dealt with in Chapter XXXIII

of The Code of Criminal

Procedure, 1973 (the Code) under the heading “Provisions as to Bails and Bonds” containing Sections 436 to 450 of the Code. However, there is another section in the

Code that provides for bail by default or default bail if the charge sheet in respect of an offence (for which the accused is under custody) is not filed within periods prescribed therein. This provision is enshrined in Section 167(2)(a) of the CrPC the

relevant portion of which reads as follows:

Section 167. Procedure when investigation cannot be completed in twenty-four hours

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction;

Provided that,'[ (a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, 7. Subs. by Act 45 of 1978, s. 13, for paragraph (a) (w.e.f. 18-12-1978).

13

14

Section 167

Chapter II—Default Bail

(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to an does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIll for the purposes of that chapter; *[Explanation I—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.] The Code provides for the arrest of a person by various authorities and means. *These include e

Section 41 (When police may arrest without warrant);

e

Section 42 (Arrest on refusal to give name and residence);

Section 44 (Arrest by Magistrate); Chapter VI-B (Processes to Compel Appearance) and; e Section 151 (Arrest to prevent the commission of cognizable offences). In all such cases, after arrest, bail shall enure to the accused, if the investigation in the offence (in relation to which the accused was arrested):

(a) is not completed within ninety days of the arrest where the punishment for the said offence is death, imprisonment for life or imprisonment for a term not less than ten years. (b) is not completed within sixty days in respect of all other offences. Simply put, this confers a right upon a person who is in custody, to seek bail under the aforesaid section after ninety days or sixty days, as the case may be, if the investigation has not been completed and a Final Report to that effect has not been filed, by the police, as prescribed under Section 173 of the CrPC. This can be referred to, in general terms, as “default bail’.

It is important, of course, that a person seeking bail upon expiry of the ninety/ sixty day period must furnish the bail as fixed by the Magistrate which includes the execution of the bail bond for such a sum and sureties, as also the imposition of such 8. Ins. by Act 45 of 1978, s. 13 (w.e.f. 18-12-1978). 9. These provisions are set out at the end of the chapter.

Procedure when investigation cannot be completed...

Section 167

15

conditions, for the attendance of the accused person, as the Magistrate may, in his wisdom, decide.

Judicial intervention to modify the ninety-day or sixty-day period The question relating to judicial intervention affecting the ninety-day or sixty-day period came up in Achpal @ Ramswaroop & Anr v. State of Rajasthan.'° In response to a petition filed before the High Court of Rajasthan, the complainant in a criminal case sought a “fair and impartial investigation in the matter”. Thereupon, the High Court recorded the submission of the Public Prosecutor as follows: The learned Public Prosecutor for the State, to allay the apprehension of the petitioner, at the outset, has submitted that not only fair investigation shall be conducted by a gazetted police officer, not below the rank of Additional Superintendent of Police but the report of the investigation along with the opinion of the Investigating Officer shall be submitted in the concerned Court within a period of two months from the date of receipt of certified copy of this order by the Investigating Officer.

The certified copy of the High Court order embodying directions in line with the undertaking given by the Public Prosecutor, were issued on 03.07.2018. As the accused,

in this case,

had been

in custody

since 08.04.2018

and the

appurtenant offences merited a punishment which allowed the accused to seek bail in terms of Section 167(2) of the Code, upon the expiry of ninety days, this right accrued to them on 07.07.2018. A report under

Section

173 of the Code

was

filed, by the police, before

the

Magistrate on 05.07.2018 i.e. two days before the deadline. However, as the said report was filed by an officer below the rank of Additional Superintendent of Police, the same

was not in conformity with the High Court order and the Magistrate, accordingly, returned the report to the police for compliance with the High Court directive.

Meanwhile, the accused, immediately upon the expiry of ninety days on 07.07.2018, filed an application for bail under Section 167(2) of the Code. The question that arose for consideration was whether the High Court order of 03.07.2018 amounted to a judicial extension of the time limit prescribed for completion of investigation by two months from 03.07.2018? In his judgment, Uday Umesh Lalit, J, adverted to the judgment of the Supreme Court in Uday Mohanlal Acharya vy. State of Maharashtra‘! wherein it had been categorically laid down that: On the expiry of he said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of

10. CA No. 1218 of 2018 @ SLP (Crl) No. 6453 of 2018. 11. (2001) 5 SCC 453.

16

Section 167

Chapter II—Default Bail

the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.

Given the “indefeasible right” conferred upon the accused under Section 167(2) of the Code, as established in the Uday Mohanlal Acharya case, the Supreme Court (Uday Umesh Lalit, J) opined that,

...the provisions of the Code do not empower anyone to extend the period within which the investigation must be completed nor does it admit of any such eventuality.

It was also held that, the Magistrate having returned the report to the police for compliance with the High Court directive, it could not be said that the investigation had been completed and the report filed by the police within the 90 day limit for doing so because, by returning the report, the consequence was that “there were no papers of investigation before the concerned Magistrate”. Accordingly, the Supreme Court ordered that the accused were entitled to bail in terms of Section 167(2) of the Code albeit this would not prohibit or otherwise prevent the arrest or re-arrest of the accused on cogent grounds in respect of charge in question (i.e. after the filing of the report by the Additional Superintendent of Police) and upon arrest or re-arrest the accused would be entitled to petition for grant of regular bail which application would then be considered on its own merit.

Construing the phrase “imprisonment for a term of not less than ten years” in the context of the ninety day rule for completion of investigation. The operative portion of Section 167 of the Code is reproduced below:

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he

Procedure when investigation cannot be completed...

Section 167

M7,

may order the accused to be forwarded to a Magistrate having such jurisdiction;

Provided that,—'”[ (a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,—

(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) Sixty days, where the investigation relates to any other offence,] ... Should the term “imprisonment for a term of not less than ten years” be strictly construed to mean exactly what it says, in which case in the matter of any offence where the punishment is less than ten years but “can extend to ten years”, it would require the investigation to be completed within sixty days. It is only where an offence invites punishment of a minimum of ten years or higher that the greater period of ninety days would be available for investigation before the accused get entitled to “default bail’.

This question was addressed by the Supreme Court in Rakesh Kumar Paul v. State of Assam,'° The accused, in this case, was arrested on 05.11.2016 and going by the sixty-day rule, he would have been eligible for default bail on 03.01.2017. However, it was argued, by the State, that the accused had committed offences which could entail “imprisonment for a term not less than ten years” and thereby, the period of custody, without the benefit of default bail accruing to the accused, stood at 90 days. Ultimately, the charge sheet was filed against the accused on 24.01.2017 i.e. after 60 days of his being detained but before the expiry of the ninety-day period.

The accused did file an application for bail on 20.12.2016 i.e. after the expiry of 60 days but before the elapse of 90 days, which was rejected both by the Special Judge and then the High Court on the grounds that the prescribed period of 90 days, available to the investigation for filing the charge sheet, had not yet lapsed. This was so because the offences allegedly committed by the accused could result in ‘imprisonment for a term not less than ten years” and that this firmly placed the case 12.

Subs. by Act 45 of 1978, s. 13, for paragraph (a) (w.e.f. 18-12-1978). 13. AIR 2017 SC 3948.

4

18

Section 167

Chapter [I—Default Bail

(in the opinion of the Special Judge and the High Court) in the category of offences, covered

by Section

167(2)(b)(i)

of the

Code,

that

allowed

ninety

days

for

investigation during which time the accused could be kept under custody. A three judge Bench of the Supreme Court, by majority decision (Madan B Lokur and Deepak Gupta, JJ; and Prafulla C. Pant, J dissenting) ruled that merely because a crime was “punishable” by up to ten years could not be taken to mean that it provided for “imprisonment for a term of not less than ten years”. Applying the rule of interpretation in law, their lordships opined that the words “not less than” occurring in Clause (i) to proviso (a) of Section 167(2) of the Code must be given their natural and obvious meaning which is to say that only in case of offences where the minimum threshold of punishment was ten years should the investigation have the leeway for investigating up to ninety days. Therefore, if the punishment prescribed was, say, seven years that may extend up to ten years, it would fall squarely within the ambit of Clause (ii) to proviso (a) of Section 167(2) of the CrPC

and the accused could be detained, pending investigation, for a maximum of only 60 days. The Court remarked that only “if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the Courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used.” The Court cited the principle laid down in Jugalkishore Saraf v. Raw Cotton co. Pde namely “The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning.” It is pertinent to note that the Literal Rule of statute interpretation necessitates that a statute must be construed in the ordinary and natural meaning of the words and sentences. The Latin phrase litera legis is used in this context of statute interpretation which means going by the words of the law in ascertaining the law. It is a general assumption that legislation has said what it meant and meant what it said. According to Maxwell,” the golden rule, in the construction of a statute, is that words of the statute must prima facie be given their ordinary meaning and the court must adhere to the ordinary meaning and grammatical construction of the words used.

The Supreme Court pointed out that offences “punishable with imprisonment for a term of not less than ten years” had been kept in the same compartment as “death, imprisonment for life” in Section 167(2)(a)(i). All other offences carrying the provision of a punishment up to ten years as one of the punishment options would obviously be placed in the second compartment i.e. Section 167(2)(a)(ii)

with the cut off period for investigation being 60 days in such cases.

14.

AIR 1955 SC 376.

15.

Sir Peter Branson Maxwell, Interpretation of Statutes,

14 August 1969,

12th Revised Edition, Maxwell

Paperback,

Procedure when investigation cannot be completed...

Section 167

19

Besides, the Court observed, interpretation must also be viewed in the context of personal liberty. Clearly, it has always been the legislative intent to prefer personal liberty over prolonged periods of incarceration even as balance is maintained between the gravity of the punishment and the period allowed for investigation.

Averting to observations made in Mohamed Iqbal Madar Sheikh y. State of Maharashtra'® the Court echoed the disapproval and deprecation therein of the practice in some courts to keep the application for “default bail” pending for some days so that, in the meantime, a charge sheet is submitted.

The Court also disparaged excessive technicality in matters relating to personal liberty. They held that whether an accused makes a written application for “default bail” or an oral application, is of no consequence. The concerned court must see only to the statutory’ requirement i.e. whether or not the statutory period for filing the charge sheet has expired or otherwise and decide accordingly. The Court went on to say that “adapting this principle, it would equally be the responsibility of a court on coming to know that the accused person before it is entitled to ‘default bail’ to at least apprise him or her of the indefeasible right.”

Method to calculate the period of ninety/ sixty days This issue was answered by the Supreme Court in the case of Ravi Prakash Singh @ Arvind Singh v. State of Bihar.'’ In this case, the accused surrendered before the Chief Judicial Magistrate (CJM) on 05.07.2013. As the offences allegedly committed

by the accused included that of murder, which was punishable with death or imprisonment for life, the accused was remanded to custody from time to time, the last such remand being till 03.10.2013. On that date (03.10.2013), the CJM endorsed

on the order sheet that, as per the report of the clerk of the court, the charge sheet had already been received. Besides, the CJM had mentioned “seen” on 03.10.2013, and had signed at the top of the first page of the charge sheet.

The contention of the accused was that he was entitled to default bail in terms of Section

167(2)(a)(i)

as the date, 03.10.2013,

was

the 91“ day of detention.

The

question, for consideration of the Court was from which date is the first day counted upon arrest and which day thereafter would be the 90" day. In answer, their lordships, cited with approval the Supreme Court judgment in State of MP vy. Rustam and Ors'® which laid down that,

While computing the period of ninety days, the day on which the accused was remanded ... should be excluded, and the day on which challan is filed in the court, should be included.

16.

(1996) 1 SCC 722.

17.

(2015) 1 MLJ (Cri) 594 (SC).

18.

1995 Supp (3) SCC 221.

20

Section 41

Chapter II—Default Bail

The Supreme Court also clarified, by referring to the subsequent judgment in Chaganti Satyanarayana and Ors v. State of Andhra Pradesh"” that, ...the period of ninety days under Section 167(2) of the Code shall be computed from the date of remand of the accused and not from the date of his arrest under Section 57 of the Code.

Thus, it would be clear, in the light of judicial pronouncements that the countdown for the 60/90 day period within which the investigation must be completed and charge sheet filed, in terms of Section 167(2)(a)(i) & (ii) of the CrPC, includes the

day after which the arrested person is remanded to custody and the day on which the charge sheet is submitted by the investigating agency, to the concerned court.

Section 41. When police may arrest without warrant.— (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person— 20[(a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:—

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary— (a) to prevent such person further offence; or

from

committing

any

(b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to 19.

(1986) 3 SCC 14i.

20.

Subs. by Act 5 of 2009, s. 5, for cls. (a) and (b) (w.e.f. 1-11-2010).

When police may arrest without warrant

Section 41

21

dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:

*'[Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.]

(ba)

against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;]

(c)

who has been proclaimed as an offender either under this Code or by order of the State Government; or

(d)

in be be to

whose possession anything is found which may reasonably suspected to be stolen property and who may reasonably suspected of having committed an offence with reference such thing; or

who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or who

has been concerned

in, or against whom

a reasonable

complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

2A.

The proviso ins. by Act 41 of 2010, s. 2 (w.e.f. 2-11-2010).

27

Section 42

Chapter II—Default Bail

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

*°T(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate. ] Section 42. Arrest on Refusal to Give Name and Residence—

|. When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. 2. When the true name and residence of such person ascertained, he shall be released on his executing a bond, with sureties, to appear before a Magistrate if so required; Provided person is not resident in India, the bond shall be secured by sureties resident in India.

have been or without that, if such a surety or

3. Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.] Section 44. Arrest by Magistrate—

|. When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. 22.

Ins. by s. 6, ibid. (w.e.f. 1-11-2010).

Report of police officer on completion of investigation

Section 173

23

2. Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant.

Section 151. Arrest to prevent the commission offences—

of cognisable

|. A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented.

2. No person arrested under Sub-Section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force. Section gation—

173. Report of police officer on completion of investi-

|. Every investigation unnecessary delay.

under this Chapter shall be completed

without

23[1A. The investigation in relation to 24[an offence under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code shall be completed within two months] from the date on which the information was recorded by the officer in charge of the police station.] 2(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating—

(a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and, if so, by whom; 23.

Ins. by Act 5 of 2009, s. 16 (w.e.f. 31-12-2009).

24.

Sub. by 22 of 2018, s. 14, for “rape of a child may be completed within three months” (w.e.f. 21-4-

2018).

24

Section 173

Chapter II—Default Bail

(e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170.

(h) 25[whether the report of medical examination been

attached

where

investigation

relates

of the woman

to an

offence

has under

26[sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code (45 of 1860)].] 3. The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given. 4. Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

5. Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. 6. When such report is in respect of a case to which section |70 applies, the police officer shall forward to the Magistrate along with the report— (a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

6. If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request. 7. Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in Sub-Section (5). 25. 26.

Ins. by Act 5 of 2009, s. 16 (w.e.f. 31-12-2009). Subs. by Act 22 of 2018, s. 14, for “sections 376, 376A, 376B, 376C, 376D” (w.e.f. 21-4-2018).

Report of police officer on completion of investigation

Section 173

US

8. Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-Section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding, such evidence in the form prescribed; and the provisions of Sub-Sections (2) to (6) ‘shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-Section (2).

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Chapter III

BAIL IN BAILABLE OFFENCES Chapter

XX XIII of the Code of Criminal Procedure,

1973 deals with “Provisions as

to Bail and Bonds” which covers Sections 436 to 459 of the Code. Of these, Section 436 deals with bail in the case of bailable offences.

Section 436. In what cases bail to be taken

|. 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:

Provided that such officer or Court, if he or it thinks fit, 2”[may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail] from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.

28[Explanation.—WVhere a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.] Provided further that nothing in this section shall be deemed to affect the provisions of Sub-Section (3) of section 116 2°[or section 446A]. 2. Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.

27. 28. 29.

Subs. by Act 25 of 2005, s. 35, for certain words (w.e.f. 23-6-2006). Ins. by s. 35, ibid. (w.e.f. 23-6-2006). Ins. by Act 63 of 1980, s. 4 (w.e.f. 23-9-1980).

PA

28

Section 436

The words

“other than...a non-bailable

Chapter I1]—Bail in Bailable Offences

offence”

in sub-section

(1) above

are

derived from the definition of “bailable offence” provided in Section 2(a) of the Code which reads: “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 First Schedule of the CrPC is a compendious “Classification of Offences”. It lists 511 offences contained in the Indian Penal Code (IPC) along with the following in respect of each offence:

(i) The punishment for the offence.

(ii) Whether the offence is cognisable or non-cognisable (cognisable offences being those where the police may arrest without a warrant). (iii) Whether the offence is bailable or non-bailable.

(iv) By what court is the offence triable.

Hence, if the offence for which any person is either arrested or detained without a warrant by an officer in charge of a police station, or is brought before a Court, is not a non-bailable offence (i.e. it is a bailable offence), the arrested person “shall be

released on bail” if such person is prepared to give bail, at any time while in custody of the said officer, or in proceedings before the court. The words “shall be released on bail” are of the utmost importance. The section is clear in its direction that bail, if offered, has to be accepted by the police or the Court and the arrested person has to be enlarged on bail and neither the police nor the Court enjoy the discretion to deny bail when offered, in the first instance, in the case of a bailable offence. This section of the Code recognises that personal liberty should enjoy precedence over custody and detention in cases where the offence alleged does not attract severe punishment and the accused, who is presumed innocent untl proven guilty, is unlike to either abscond, to withhold cooperation from investigation or prove inimical to society or to subvert the delivery of justice.

The first proviso to Section 436(1) broadens providing that if the court deems fit it may, if the insufficient means, discharge the accused on the bond for appearance without his having to put up

the liberal ambit of the section by person under arrest or custody is of strength of his executing a personal the bail amount and minus sureties.

It is only in the second provision to Section 436(1) that cautionary steps are taken to ensure that those from whom a breach of peace or disturbance of public tranquillity or threat to public safety is apprehended may be detained by the Court in custody until they execute a bond for keeping the peace, under Section 116(3) of the CrPC even though they would not actually have committed a non-bailable offence. Also, the proviso makes another exception, in cases where a bond, once executed, is

forfeited and in such cases even though the forfeiture of the bond would not spring from or result in a non-bailable offence, the Court shall, acting under Section 446A of the Code, deny the release of such a person only on his own bond.

In what cases bail to be taken

Section 436

29

By way of example, two people may be involved in the committing of an affray, which is defined in Section 159 of the IPC as “When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray”. The offence of affray is punishable, under Section 160 of the IPC, “with imprisonment of either description for a term which may extend to one month, or with fine which may extend to one hundred rupees, or with both”. Affray is a cognisable but bailable offence in terms of the First Schedule of CrPC and so those taken into custody under Section 160 of the IPC enjoy an unfettered right to bail either when taken into custody by the officer in charge of a police station or when brought before the Court. It may, however, happen that a Magistrate undertaking an inquiry under Section 116(1) of the CrPC may feel the need of immediate measures to prevent a further breach of peace or disturbance of public tranquillity by those accused of the affray and may direct those concerned to execute a bond with or without sureties and may detain those accused in custody until either the bond is executed or, in default thereof, the inquiry is concluded as provided in Section 116(3). This would explain how the non obstante clause in second proviso to section 436(1) of the Code operates, in specific cases, vis-a-vis the general and untrammelled right to bail, in case of bailable offences, conferred by Section 436(1). However, the application of Section 116(3) and Section 446A to enable detention of persons, by Court, notwithstanding the bailable nature of the proceedings, is the

only exception that the CrPC permits to the broad and mandatory prescription that any person, arrested or in custody for a bailable offence, shall be released if he is prepared to furnish bail. Sub-section

(2) of Section

436 deals with a situation

where

a person,

who

is

released on bail, fails to abide by the conditions of the bail bond “as regards the time and place of attendance” (and nothing else). In such an event, where the person concerned fails to comply, say with a condition that he be present in Court on such and such a day and time; the Court may refuse to release him on bail when he subsequently appears before the Court or is brought before the Court in custody in consequence of his non compliance. Apart from refusing to release on bail, the Court may also, as provided in Section 446 of the Code, levy a penalty on the person whose bail bond is forfeit. The legal imperative that a person detained for a bailable offence “shall be released on bail” was forcefully brought out by the Supreme Court in Rasiklal v. Kishore s/o Khanchand Wadhwani.°° The accused, in this case, was alleged to have committed the offence of “defamation” under Sections 499 and 500 of the IPC which is a bailable offence as per the First Schedule of the CrPC. Accordingly, the accused were admitted to bail on furnishing a surety in the sum of Rs 5000/- and a bond of like amount besides which conditions were imposed as to the time and place of attendance. The bail was cancelled by the Indore Bench of the High Court of Madhya Pradesh on the ground that lower Court had granted the bail without 30.

(2009) 4 SCC 446.

30

Section 436

Chapter liI—Bail in Bailable Offences

giving the complainant an opportunity to be heard and this amounted to a violation of natural justice. The Supreme Court set aside the order of the. High Court cancelling the bail and observed that: There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him. The position of persons accused of non-bailable offence is entirely different. The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative. The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 cannot be taken into custody unless they are unable or unwilling to offer bail or to execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by accused as of right and the officer of the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him. Even if notice had been issued to the respondent (complainant) before granting bail to the appellant, the respondent could not have pointed out to the court that the appellant had allegedly committed non-bailable offences. As observed earlier, what has to be ascertained by the officer or the court is as to whether the person accused is alleged to have committed bailable offences and if the same is found to be in affirmative, the officer or the court has no other alternative but to release such person on bail if he is ready and willing to abide by reasonable conditions, which may be imposed on him. Having regard to the facts of the case this Court is of the firm opinion that the bail granted to the appellant for alleged commission of bailable offence could not have been cancelled by the High Court on the ground that the complainant was not heard and, thus, principles of natural justice were violated. Principles of natural justice is not a ‘mantra’ to be applied in vacuum in all cases. The question as to what extent, the principles of natural justice are required to be complied with, will depend upon the facts of the case. They are not required to be complied with when it will lead to an empty formality.

In what cases bail to be taken

Section 436

31

The same dictum was forcefully iterated by the Bombay High Court in Sultan Kamruddin Dharani v. Union of India & Ors’ wherein it was stated: Perusal of section 436 of the Code of 1973 shows that there is no provision therein which gives power to the Court to impose any condition while enlarging an accused on bail in a case where bailable offence is alleged. In fact, the first proviso of the said section lays down that if an accused is indigent and is unable to furnish surety, the Court is under an obligation to discharge him on his executing a bond without sureties for his appearance. The explanation to sub-section (1) of section 436 provides that when a person is unable to give bail within a week of his arrest, it shall be a sufficient ground for the Officer or a Court to presume that he is an indigent person for the purposes of this proviso. Thus, the law makes it clear that when an accused who is alleged of commission of a bailable offence is unable to furnish bail in the form of surety within a week from his arrest, he has to be discharged on his executing a bond. Thus, not only subsection (1) but the first proviso and the explanation thereto clearly show that an unfettered right is granted to be enlarged on bail to a person, other than a person accused of non-bailable offence, arrested or detained without any warrant by an Officer in charge of a police station or when such a person appears or is brought before a Court. Such a person has to be enlarged on bail provided he is prepared to offer bail. If such person is indigent and is unable to furnish surety, by dispensing with the requirement of furnishing bail or surety, he has to be discharged on his executing a personal bond without sureties. If such a person is unable to give bail within a period of one week from the date of his arrest, by legal fiction, the law presumes that the person is an indigent person and thus he will have to be discharged on executing a personal bond without sureties.”

Valid conditions for bail under Section 436

Sub-section (2) of Section 436 of the Code unequivocally stipulates that the conditions of a bail bond under this section have to be “as regards the time and place of attendance”. The imposition of any other condition, by Court, is impermissible. This limitation on the imposing of conditions was succinctly elucidated by the Allahabad High Court in Rex v Genda Singh & Ors:*? It is clear from these provisions that the bail bonds provide for the accused's appearance at the hearing of the case, and that the Court has to exercise its discretion with respect to the amount of the bond and not with respect to any other matter when it is called upon to determine whether an accused in a case in which bail should be granted ought to be granted bail. The imposition of conditions in an order granting bail may amount ultimately to a refusal of bail and, therefore, the imposition of conditions 31. 32.

Crl WP No. 865 of 2007; (2008)110 BOMLR 3273. AIR 1950 All 525.

29

Section 436

Chapter liI—Bail in Bailable Offences

in an order for bail in a bailable case will be against the provisions of Section 496, Criminal P.C. (of the old CrPC corresponding to Section 436 of the Criminal Procedure Code, 1973), which contemplates that a person shall be released on bail when the person*is prepared to give the bail in conformity with the order of the Court...

The Bombay High Court added clarity and detail to the stipulations contained in Section 436(2) governing the conditions that a Court could attach to a bail bond under this section in Sultan Kamruddin Dharani v. Union of India & Ors,*>

Thus, the position of the law is that a person who is alleged to have committed a bailable offence has an unfettered and absolute right to be enlarged on bail and the Court or the Police Officer concerned, as the case may be, has no discretion to grant or refuse bail. Subject to first proviso to sub-section (1) of section 436 of the Code of 1973, the Court may modulate the condition of bail as regards the bail amount and the number of sureties. However, the Court cannot impose a condition which is not a term as to the bail. The condition of requiring a person accused of a bailable offence to surrender his passport to the court is not a term as to bail. If in such a case a condition is imposed that bail is granted subject to condition of deposit of passport, such a condition will defeat the absolute right of the accused under section 436(1) of the said Code to be set at liberty. Thus,

the overarching

right to bail

in the case

of bailable

offences,

is not

susceptible to the discretion of the officer in charge of police station who takes a person into custody for having allegedly committed the bailable offence or the Court before which the said person is brought in custody. The only conditions that the Court can impose pertain to appearance of the accused at subsequent hearings, the bail amount and the number of sureties. Nothing else is left to judicial discretion. Lord Camden described judicial discretion in the following lucid terms: The discretion of a judge is said to be the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable**

Cancellation of bail granted to a person accused of a bailable offence Prior to the enactment

of the Code

of Criminal

Procedure

Code,

1973, the old

CrPC lacked any specific provision for cancellation of bail once granted; but High Courts enjoyed the discretion to cancel bail under their inherent powers contained in Section 561-A (now enshrined in Section 482 of the Code). However, the Code,

enacted in 1973, incorporated Section 439(2) of which provided that either a High Court or a Court of Session may direct that any person who has been released on bail be arrested and commit him to custody. 33. (2008) 110 BOMLR 3273. 34. https://archive.org/stream/bouvierslawdicti0 |bouv/bouvierslawdicti0lbouv_ on 27 September 2019).

djvu.txt

(last accessed

In what cases bail to be taken

Section 436

33

Although the power to cancel bail vests in the High Court and the Sessions Court as well; this power must needs be judiciously exercised in the light of the importance placed on personal liberty in our Constitution. The 41° Law Commission Report™ stated: 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.

The broad grounds for cancellation of bail, once granted, were spelt out by the

Supreme Court in Abdul Basit v. Mohd. Abdul Kadir Chaudhary’® in summary form as: (i) the misuse of liberty by the person accused of an offence by indulging in criminal activity, (ii) interference with the course of investigation,

(iii) attempts to tamper with evidence or witnesses, (iv) threatening witnesses investigation,

or

indulging

in similar

activities

that

hamper

(v) likelihood of fleeing to another country, (vi) attempts to make oneself scarce by going underground or being unavailable to the investigating agency,

(vii) attempts to be beyond the reach of the surety. Cancellation of bail by the Sessions Court or High Court, by recourse to the authority contained in Section 439 of the Code is entirely different from the curtailment of bail by a Court acting under Section 436(2) of the Code. Although a Court lower than a Sessions Court cannot “cancel” the bail accepted by it under Section 436(1), the Court, acting under Section 436(2) can curtail the bail and refuse

to release on bail a person — who has failed to comply with the conditions of the bail bond in so far as the time and place of attendance are concerned — when such a defaulter either subsequently appears before the Court or is brought there in custody.

Re-arrest of a person bailed under Section 436 of the CrPC If a person, arrested for the commission of a bailable offence under Section 436 of the CrPC is subsequently additionally charged by the police with having committed a non-bailable offence as well; then two questions arise 1.e.:

(i) Can such a person be re-arrested by the police without an order, to that effect, being passed by the Sessions Court or High Court? (ii) Can the Sessions Court cancel the bail order passed under Section 436 of the Code? 35. Law Commission of India, 41" Report, para 7.2. 36.

(2014) 10 SCC 754.

34

Section 88

Chapter III—Bail in Bailable Offences

These questions were addressed by the Rajasthan High Court in Mayank Kumar Sharma vy. State of Rajasthan.” The facts of the case were that when the accused was released on bail under Section 436 of the CrPC, the investigating police officer was of the view that the offences committed wefe punishable under Sections 323 (voluntarily causing hurt) and 341 of the IPC (wrongful restraint), both of which are bailable

offences,

and

so

the

accused

was

enlarged

on

bail.

However,

the

investigating officer later found that the offence under Section 308 of the IPC (attempt to commit culpable homicide) was also made out and hence the arrest of the

accused was required. The accused contended that the bail, already granted to him, could not be cancelled by mere addition of penal sections of the IPC. While upholding the power of the Sessions Court to cancel bail inter alia upon the addition of sections of the law involving non-bailable offences, the Rajasthan High Court cited its own earlier decision in Vijendra v. State of Rajasthan’* to specify that: (i) The police does not have the authority to cancel bail that was granted under Section 436 of the CrPC. (11) Bail that is granted in terms of sections under Chapter XX XIII of the Code - Provisions as to Bail and Bonds — can be cancelled only by the Sessions Court and the High Court under Section 439 of the CrPC.

Bond for appearance under Section 88 of the Code Procedure vis-a-vis bail provisions in Chapter XXXIII

of Criminal

Section 88 of the CrPC is part of Chapter VI (“Processes to Compel Appearance’”’) of the Code and reads as,

Section 88. Power to take bond for appearance.—When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial. The question that arises is whether Section 88 can be used to bypass the bail provisions of the Code, in so far as the Court is concerned, as the power of the Court to ensure appearance of a person brought before it in Section 436, namely to make such person “to comply with the conditions of the bail-bond as regards the time and place of attendance” would resemble and overlap the power conferred on Court under Section 88 i.e. to “require such person to execute a bond, with or without sureties, for his appearance in such Court’.

37. 38.

1 CRLMB 8468/2015. 1988 WLN UC 128 decided by Rajasthan High Court on 30 October 2018.

Power to take bond for appearance

Section 88

35

In Pankaj Jain v. Union of India & Anr°’ the accused was not arrested at any stage of the investigation of offences under the IPC and the Prevention of Corruption Act, 1988. The Special Judge CBI, after taking cognisance of the case upon filing of the charge sheet, issued summons to the accused to appear before the CBI Special Court. When the accused failed to appear, the Special Judge CBI ordered the issuing of non bailable warrant against the accused. The accused then maintained that the Special Court should release him by accepting a bond under Section 88 of the CrPC on the ground that he had not been arrested during investigation and hence could not now be arrested and produced before the Court.

The Supreme Court while considering the appeal by the accused, held that the word “may” in the phrase “such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court” cannot be construed as binding upon the Court i.e. it would be entirely within the discretion of the Court to accept a bond under Section 88 or otherwise. The Supreme Court said, Discretion given under Section 8& to the Court does not confer any right on a person, who is present in the Court rather it is the power given to the Court to facilitate his appearance, which clearly indicates that use of word ‘may’ is discretionary and it is for the Court to exercise its discretion when situation so demands. It is further relevant to note that the word used in Section 88 “any person” has to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses... Thus, on conjoint reading of Section 88 and 437 Cr.P.C., it is obvious that Section 88 Cr.P.C. is not an independent Section and it is subject to Section 437 Cr.P.C.

The Supreme Court drew upon the judgment of the Punjab & Haryana High Court in Arjun Sharma vy. Union of India & Ors*® to point out that Section 88 applies to a person who is present in Court and is free because it speaks of his being bound over, to appear on another day before the Court. “That shows that the person must be a free agent whether to appear or not”. However, in this case, the accused was not a free agent as he was already issued non bailable warrant of arrest. Accordingly, it may be argued in conclusion that, for someone who is either subject to non bailable warrant of arrest or is brought before the Court, the relevant section of Chapter XX XIII “Provisions as to Bail and Bonds” would apply and not Section 88 which is merely a discretionary power vested in Court to accept a bond for appearance only when the person concerned is a free agent and is not in actual, constructive or impending custody under a non bailable warrant of arrest.

39. Crl Appeal No. 321 of 2018 decided by Supreme Court on 23 February 2018. 40. 2016 (3) RCR (Criminal) 883.

36

Section 436A

“Section 436A. Maximum prisoner can be detained

Chapter IiI—Bail in Bailable Offences

period

for

which

an _ undertrial

Where a person has, during the period .of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation—In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.] This section was inserted in the Code by the Criminal Law

(Amendment)

Act,

2005. The import of this section was elucidated by the Supreme Court in Bhim Singh v. Union of India and Ors” The Court said that the Section 436A was inserted by the Criminal Law (Amendment) Act, 2005 to reduce undue delay of justice and overcrowding in prisons. It stated that undertrial prisoners (UTPs) serving for more than half of their maximum sentence have the right to bail on personal bond. It was imperative that undertrials do not languish in jails longer than their maximum sentences under Section 436A of the CrPC. This provision, however, did not address (and the advantage does not accrue to) those undertrials facing death sentence. In order to ensure that the advantages, in law, offered by Section 436A are translated into reality, the Supreme Court directed the institution of a “Under Trial Prisoners (UTP) Review Mechanism” with the following composition and functions: e Composition - It shall be composed Magistrate and Sessions Judge.

of the Magistrate, Chief Judicial

e Function - They shall hold one sitting every week in jails/prisons for two months, commencing from Ist October 2014. In the meetings, the judicial officers will identify undertrial prisoners who have spent half of their maximum sentences in jail and will also provide an order for release in the jail. 41. 42.

Ins. by Act 25 of 2005, s. 36 (w.e.f. 23-6-2006). W.P. (Criminal) No. 310/2005 decided by Supreme Court on 4 September 2014.

Maximum period for which an undertrial prisoner...

Section 436A

37

e Reports of Meetings to Registrar General — The report of each sitting will be forwarded to the Registrar General of the High Court, and at the end of two months, the Registrar General will submit the report to the Secretary.

e Obligation of the Jail Superintendent — The Jail Superintendent is directed to provide all necessary facilities for holding the court sittings. The Court’s directions were addressed to all States, whereby, implementation was to be ensured irrespective of existing or non-existing provisions of review committees in jail manuals, or even the absence of jail manuals.

Subsequently, the Gujarat High Court in Ketan @ Archit Pravinbhai Patel v. State of Gujarat” cited the Supreme Court orders in Bhim Singh v. Union of India™* wherein the Apex Court had interpreted Section 436A of the CrPC and had directed that the period of imprisonment of all those undertrials who had undergone the detention for the period extending one-half of the maximum period of imprisonment specified for that offence under the law, should be released by the Court on his personal bond with or without sureties. The Supreme Court in Pramod Kumar Saxena v. Union of India & Ors* recalled the Statement of Objects and Reasons for inserting Section 436A in the code, There had been instances, where under-trial prisoners were detained in jail for periods beyond the maximum period of imprisonment provided for the alleged offence. As remedial measure section 436A has been inserted to provide that where an under-trial prisoner other than the one accused of an offence for which death has been prescribed as one of the punishments, has been under detention for a period extending to one-half of the maximum period of imprisonment provided for the alleged offence, he should be released on his personal bond, with or without sureties. It has also been provided that in no case will an under-trial prisoner be detained beyond the maximum period of imprisonment for which he can be convicted for the alleged offence.

In this case the petitioner had been in jail since more than a decade. Various cases had been instituted against him in six States. Even though the petitioner had been ordered to be enlarged on bail in some of the cases, he was unable to come out since

in other cases, either the investigation was in progress or the petitioner had not been produced before the Magistrate for trial. It was also argued, for the petitioner, that even if he were to be convicted in the pending trial cases, incarceration suffered by him had already exceeded ten years and hence, the period spent in prison would be more than the sentence which could be imposed on him. 43. 44. 45.

Order R/CR.MA/22317/2015 decided by the Gujarat High Court on 21 March 2016. W.P. (Criminal) No. 310/2005 decided by Supreme Court on 4 September 2014. 2008 (9) SCC 685.

38

Section 436A

Chapter liI—Bail in Bailable Offences

The Supreme Court observed that the charges against the petitioner ante dated the insertion of Section 436A in the Code and the section had not been given retrospective effect in law. However, the Supreme Court, having drawn attention to

the logic and purpose of Section 436A (as delineated in the Statement of Objects and Reasons), while adverting to the overall facts and circumstances of the case, opined that these entitled the petitioner to relief. Hence, it was ordered that if the petitioner

would apply for bail, an appropriate Court would executing a bond to the satisfaction of such Court.

release him on bail on his

Chapter IV BAIL IN NON-BAILABLE OFFENCES Chapter

XX XIII of the Code of Criminal Procedure, 1973 deals with “Provisions as

to Bail and Bonds” which covers Sections 436 to 459 of the Code. Of these, Section 437 deals with bail in the case of non-bailable offences.

Bail in case of non-bailable offence

Section offence

437. When

bail may

be taken

in case of non-bailable

46[(1) 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;

(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 47[a cognizable offence punishable with imprisonment for three years or more but not less than seven years:] Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it 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: 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

46. 47.

Subs. by Act 63 of 1980, s. 5, for sub-section (1) (w.e.f. 23-9-1980). Subs. by Act 25 of 2005, s. 37, for “a non-bailable and cognizable offence” (w.e.f. 23-6-2006).

52

AO

Section 437

Chapter

IV-—Bail In Non-Bailable Offences

bail and gives an undertaking that he shall comply with such directions as may be given by the Court:] 48[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.]

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt 49[the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or

of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), 5°[the Court shall impose the conditions,-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) that such 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 or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.]

(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its 5'[reasons or special reasons] for so doing. 48.

The proviso ins. by s. 37, ibid. (w.e.f. 23-6-2006).

49, 50.

Subs. by Act 63 of 1980, s. 5, for certain words (w.e.f. 23-9-1980). Subs. by Act 25 of 2005, s. 37, for certain words (w.e.f. 23-6-2006).

51.

Subs. by Act 63 of 1980, s. 5, for “reasons” (w.e.f. 23-9-1980).

When bail may be taken in case of non-bailable offence

Section 437

4]

(5) 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. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7)

If, at any time after the conclusion of the trial of a person accused of

a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody,

on the execution by him of a bond without sureties for his appearance to hear judgment delivered. Even a cursory perusal of Section 437 and its contents would reveal the following points of interest,

I. A “non-bailable offence’, unlike what its name implies, does not preclude bail altogether but (as opposed to Section 436 where bail in the case of a bailable offence is an indefeasible right) stipulates that such a person “may be released on bail” (as against “shall be released” in Section 436).

II. The person accused of having committed a non-bailable offence must either appear or be brought before a Court other than the High Court or Court of Sessions. III. The benevolent proviso “may be released” does not operate in cases where there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or appears to be a repeat offender who has been convicted once (or more) earlier of offences that incur punishment by way of death, imprisonment for life or incarceration in excess of seven years or has at least two previous convictions for offences punishable with imprisonment for three years or more but not less than seven years. IV.

The rest of the provisos and clauses deal with (a) exceptions to be made in

case of juveniles below 16 years of age, women, the sick and the infirm; (b) special reasons that the Court may deem just and proper to grant bail; (c) where the Public Prosecutor must be heard before the Court releases a person on bail; (d) conditions to be imposed by Court while granting bail to persons who have committed offences attracting punishment of seven years or more or have committed an offence under Chapter VI (Offences against the State), Chapter XVI (Offences against the Human Body) and Chapter

42

Section 437

Chapter

IV--Bail In Non-Bailable Offences

XVII (Offences against Property); (e) the release, on bail, of accused in offences triable by Magistrate (as against a Judge) subject to the satisfaction of the Magistrate if the trial exceeds sixty days and the person has been in custody throughout and (f)*bail to a person upon conclusion of trial and prior to delivery of judgment if the Court believes, on reasonable grounds, the person to be not guilty.

Bail Applications under Section 437: Rationale and Considerations The principle, that personal liberty, enshrined in Article 21 of the Constitution of India, should not be lightly taken away by the machinery of the State, has been the running theme in scores of Supreme Court judgments over the decades. This would mean that a person arrested/ detained for a non-bailable offence should not be denied bail in the normal course for reasons: (a) Personal liberty should not become

the handmaiden

of the State. It is a

right to be guarded and preserved by the instrumentalities of the law. (b) As an accused person is to be presumed innocent until proven guilty, it would be contrary to fairness and justice to deny him his liberty i.e. keeping him in custody while denying bail. (c) A person can invariably better prepare his defence in a case if he is not confined within the four walls of a prison. However, a careful balance has to be preserved and maintained between the need for personal liberty and the requirements that justice is not thwarted by the accused, on bail, manipulating or interfering with the processes leading to the delivery of justice. The cardinal point to be borne in mind is that the personal liberty of one is not warranted if pushing the case for that person’s liberty results in undermining the liberties, rights and safety of others.

The 41“ Report of the Law Commission,” while suggesting changes in the CrPC; succinctly mentioned that the Court has the discretion in limited cases, to release a person on bail even in non-bailable offences that invite the maximum punishment: e

Bail is a matter of discretion if the offence is non-bailable.

e Bail is not to be granted if the offence

is punishable

with death or

imprisonment for life, but the court has discretion, in limited cases, to order release of a person. Also, that is relation to such offences, i.e. those

punishable by death or imprisonment for life, the Sessions and the High Court should enjoy a wider discretion in the matter of granting bail. What then should be the considerations that should weigh in with the Court while granting bail under Section 437? The issue was addressed by the Supreme Court in Sanjay Chandra y. CBI. This case had attracted considerable media notoriety and 52.

41° Law Commission Report; Chapter

53.

(2012) 1 SCC 40.

XX XIX Para 39.1.

When bail may be taken in case of non-bailable offence

Section 437

43

attention being then generally known as the 2G Scam Case. The prosecution opposed grant of bail to the accused on the grounds that even though the offences involved did not attract the embargo on bail in respect of offences involving the maximum punishment or in certain kinds of repeat offences [Section 437(1)(i) & (ii)], they were

of a nature that put to risk the economic fabric of the country and that the interest of the society at large outweighed the imperative of the personal liberty of the accused. The Supreme Court opined that, In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

Personal liberty, deprived when bail is refused, is too precious a value of our Constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right. 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. It would, thus, be seen that the words “he may be released on bail” in Section 437(1)

do not confer an unbounded discretion on the Court to grant or to withhold bail. The discretion, which exists, has to be exercised keeping in view the value attached to personal liberty in the Constitution. To quote the eminent jurist Benjamin Cardozo,” The judge, even when he isfree, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague

54.

Benjamin N Cardozo, The Nature of the Judicial Process, OUP

44

Section 437

Chapter

IV-—Bail In Non-Bailable Offences

and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.

In the light of judicial observations regarding the importance of personal liberty vis-a-vis imprisonment by denial of bail, what then would be the factors that the Court would have to specifically consider while considering an application for bail so as to exercise optimal judicial discretion while deciding upon bail or jail? A lucid answer to this was provided by the Supreme Court in State of UP v. Amarmani Tripathi>> where the Court held It is well settled that the matters to be considered in an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension ofthe witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail.

The likelihood of a person being imprisoned, for long durations, while still an undertrial, as a factor while considering a bail plea, was also alluded to by the Supreme Court in State of Kerala v. Raneef:** In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic ofall the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.

Effect of not arresting an accused person during investigation upon the subsequent plea for bail The arrest of an accused and his lodgement in judicial custody after the filing of the charge sheet would, on the face of it, appear to be an incongruity. One of the grounds for considering (or denying) bail is the likelihood of the accused tampering with the 55. 56.

(2005) 8 SCC 21. (2011) 1 CC 784.

When bail may be taken in case of non-bailable offence

Section 437

45

evidence or with witness, thereby impeding the process of justice. In normal circumstances, this would appear unlikely once the charge sheet has been filed i.e. the investigation has been concluded and the evidence placed before the Court. The need for striking a careful and just balance between the precept of personal liberty and detention of a person undertrial was underscored by the Supreme Court in Dataram Singh v. State of Uttar Pradesh & Anr’’ The Supreme Court stated, Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

If the investigating officer did not find it necessary to arrest the accused person during the investigations, a convincing case would have to be made out for curtailing the personal liberty of that person by placing him under judicial custody and denying him bail. The Supreme Court pointed out, ...Jt is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems...

The sense of the above judgment may, thus, be inferred to the effect that though doubtless the discretion to grant bail, or otherwise, vests squarely in the Court hearing the bail application; it is incumbent upon the Court, in such cases, to give

weightage to the fact that the accused person was not regarded as being a threat to society or a possible absconder or someone who could interfere with the prosecution

bie

QOL8)iS SCC 22:

46

Section 437

Chapter

IV-—Bail In Non-Bailable Offences

of the case. This approach is entirely in keeping with the numerous iterations by the Supreme Court on the subject of personal liberty, overcrowding as well as inhumane conditions in prisons and the presumption, in law, that an accused person ought to be deemed innocent until proven guilty.

Whether the Court should application

weigh the evidence

while hearing a bail

The Court should not undertake to do at a bail hearing what it ought to be doing during the course of the trial itself. In brief, a bail application does not provide a ground for the Court to examine, weigh and then presume upon the finality or merits of the evidence or otherwise. The Court should address itself only to ascertaining whether the materials before it go to show that there is a prima facie case against the accused person and then exercise its discretion to grant or deny bail in line, broadly, with the factors enunciated by the Supreme Court in the Amarmani Tripathi Case (Supra).*® It was stated by the Supreme Court in Anil Kumar Yadav v. State of NCT of

Delhi,”

The probability or improbability of the prosecution version has to be judged on the basis of materials available to the Court at the time when bail is considered and not on the basis of discrepancies.

The Supreme Court also cited the judgment of the Court in Kanwar Singh Meena v. State of Rajasthan & Anr® wherein it has been held that,

But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial.

In the case of State of UP v. Amarmani Tripathi (Supra),°| the Supreme Court while detailing matters to be considered in an application for bail had also observed that,

58. 59. 60. 61.

(2005) 8 SCC 21. (2018) 12 SCC 129. (2012) 12 SCC 180. (2005) 8 SCC 21.

When bail may be taken in case of non-bailable offence

Section 437

A7

Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence.

Can successive bail applications be filed before a judge other than the one who heard and refused the Bail plea in the first instance? This question was fully answered in the negative by the Supreme Court in a number of cases. In Shahzad Hasan Khan vy. Ishtiaq Hasan Khan® the Court stated, The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in the creditability of the court and the confidence of the other side being put in issue and there would be wastage of courts’ time. Judicial discipline requires that such matters must be placed before the same Judge, ifhe is available for orders...

What happens if the judge, who heard the original application, is not available on account of having superannuated or having been transferred? Only in such cases would the bail applicant have the right to seek recourse to a different judge. This was clarified oy the Supreme Court in Jagmohan Bahl and Anr v. State (NCT of Delhi) and Anr, ...when the Additional Sessions Judge-6 had declined to grant the bail application, the next Additional Sessions Judge should have been well advised to place the matter before the same Judge. However, it is the duty of the prosecution to bring it to the notice of the concerned Judge that such an application was rejected earlier by a different Judge and he was available. In the entire adjudicatory process, the whole system has to be involved. The matter would be different if a Judge has demitted office or has been transferred. Similarly, in the trial court, the matter would stand on a different footing, if the Presiding Officer has been superannuated or transferred. The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum-shopping, which is

decriable in law.”

62 (1987) 2 SCC 684. 63. (2014) 16 SCC S501. 64. Lbid.

48

Section 437

Chapter

IV-—Bail In Non-Bailable Offences

Do the provisions of Section 437(6) confer a right to bail on an undertrial when trial by Magistrate exceeds 60 days? For the sake of convenience, 437(6) is reproduced hereunder:

... (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

Cases triable by any Magistrate, Magistrate of the First Class and the Court of Session are listed under the column “By what court triable” in THE FIRST SCHEDULE to the CrPC. The two issues in this section that need to be emphasised are: e@ When does a trial commence in a case triable by a Magistrate (so as to calculate the period of sixty days thereafter), and e Does the use of the word “shall” in Section 436(6) make it mandatory for the Magistrate to release on bail, a person who has been in custody throughout,

after sixty days of the first date fixed for taking evidence in the case. Judicial pronouncements have clarified that the date from which a trial commences is to be reckoned from the date on which the charges are framed by the Court and not from the date when cognisance is taken by the magistrate. In Hardeep Singh y. State of Punjab & Ors,” the Supreme Court observed, ...after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences...

The Supreme Court also cited the prescription laid down in the earlier case of Common Cause v. Union of India & Ors®° laying down that: (i) In case of trials before Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the concerned cases. (ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973, while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the concerned accused under Section 246 of the Code of Criminal Procedure, 1973. 65. 66.

(2014) 3 SCC 92. AIR 1997 SC 1539.

When bail may be taken in case of non-bailable offence

Section 437

49

The next issue is whether the use of the word “shall” renders it mandatory for a Magistrate to release on bail a person who has been in custody for all of the sixty days after commencement of the trial. The use of the word “shall” as rendering an action mandatory, and that of “may” as making an action discretionary, has been a subject of much judicial (and juristic) examination from time to time. For our purposes, we may take into account the interpretation, as applicable to Section 437(6), by the High Court of Punjab and Haryana in Pargat Singh & Anr v. Pipal Singh & Anr®’ wherein the Court held that the “shall” was conditioned by the closing phrase of Section 437(6) viz. “unless for reasons to be recorded in writing, the Magistrate otherwise directs.” The Court quoted, with approval, People v. De Eenna®® which cited Earl T Crawford from his treatise “The Construction of Statutes”

The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other...

This logic [that the word “shall” in Section 437(6) could not be construed as being mandatory] was further reinforced by the Court by excerpting the following from Mukesh kumar Ravishankar Dave v. State of Gujarat:”° Therefore, if the provisions of section 437(6) of the Code are closely considered, it appears that enough care has been taken by the legislature. There is an inbuilt exception provided leaving it to the discretion of the magistrate or the court when the words used are "unless for reasons to be recorded in writing." These words carve out an exception to the general proposition or the rule which is provided in sec. 437(6) of Cr. P.C. Therefore, on the one hand, when this provision has been made enabling the court to exercise the discretion, the exception is also carved out that while exercising such discretion or considering such application, if such application is turned down, the magistrate is obliged to record reasons for that. In other words, this itself would suggest that when the discretion is left with the magistrate as per the language of section 437(6) itself, it cannot be said to be mandatory.

The Court concluded by stating, The upshot of the discussion is that the provision of Section 437(6) Cr. P.C. cannot be held to be mandatory and the Magistrate for reasons to be recorded in writing is entitled to refuse to release the accused on bail.

67. CRM-M-7568 of 2017 (O&M). 68. 2N.Y.S. (2) 694, 166 Misc. 582. 69. Earl T Crawford, The Construction of Statutes, Thomas Law Book Company (194); Article 261, p 516. 70. 2011 (6) R.C.R. (Criminal) 2650.

50

Section 437A

In sum,

therefore,

Chapter

IV--Bail In Non-Bailable Offences

Section 437(6) does not enable

a person,

who has been in

custody for all sixty days since the commencement of a trial (i.e. upon framing of the charges) by a Magistrate, to seek bail as a matter of right. Likewise, a Magistrate denying bail to an applicant under Section 436A, does not have to assign only those reasons that are germane to the delay. He can refuse bail for any reasons (like interfering with justice, possibility of absconding etc.) that are the usual grounds for consideration of a bail application.

Section 437A. appellate Court

Bail to require accused

to appear

before

next

7\[(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months. (2) If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.] The rationale for the insertion of Section 437A was contained in the 154” Report of the Law Commission” wherein the Commission opined, The Code of Criminal Procedure 1973 is silent on the point of securing attendance of the accused at a later stage after acquittal in cases where appeals against acquittals have been filed or in cases where appeals for enhancement of sentence are filed. There are many instances where the appellate courts having admitted an appeal against acquittal are not in a position to secure presence of acquitted accused. Even though non-bailable warrants are issued the police agency has been unable to serve the notices as well as the non-bailable warrants on the respondents accused in spite of lapse of ling time. Some time they are returned saying that the police have no information whatsoever regarding the respondents or their whereabouts. A large number of such appeals after admission have been pending in various appellate courts including the Supreme Court without being disposed of since the service could not be effected or where the presence the presence of acquitted accused could not be secured in spite of issuance of non-bailable warrants. Number of such matters for want of service are piling up and have added to the pendency.

71. 72.

Ins. by Act 5 of 2009, s. 31 (w.e.f. 31-12-2009). Law Commission of India 154" Report, Chapter VII Page 31.

Bail to require accused to appear before next appellate Court Section 437A

St

The Law Commission also cited a decision of the Gujarat High Court in State of Gujarat v. Harish Laxman Solanki” in support of its contentions, namely: Accordingly, we direct that while accepting the bail and bail-bonds for securing attendance before the Officer in-charge of the Police Station or Court, as provided in Form No. 45 in Schedule-11 of the Code, all the Criminal Courts shall also take the same covering the appellate as well as revisional stage. Incidentally, it may be pointed out that in cases for whatever reasons pending trial, if the accused are not on bail, in such cases, at the time either of refusing the bail application and/or thereafter approximately three months prior to conclusion of the trial, the accused should be informed to be ready with bail and bail-bond in the said regard, in the event of necessity, at the end of trial.

It is a distinct probability that Section 437A may not pass the test of the fundamental right to personal liberty enshrined in the Constitution. It was firmly established by the Supreme Court in Maneka Gandhi v. Union of India™ and has been subsequently cited in successive judicial pronouncements that the phrase “procedure established by law” contained in Article 21 of the Indian Constitution must be taken to mean a “just and fair” rather than “arbitrary” process. Thereby, the Supreme Court inducted the requirement for “due process” in any law which aims to curtail the personal liberties guaranteed in the Constitution. So far as constitutional rights are involved due process of law imports a Judicial review of the action of administrative or executive officers... If one may so put it, the field of “due process” for cases of preventive detention is fully covered by Article 22, but other parts of that field, not covered by Article 22, are “unoccupied” by its specific provisions. I have no doubt that, in what may be called “unoccupied” portions of the vast sphere of personal liberty, the substantive as well as procedural laws made to cover them must satisfy the requirements of both Articles 14 and 19 of the Constitution...Equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Article 14 strikes at arbitrariness in State action and ensures fairness and equality, of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omni-presence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive. a

Now let us see if the provisions of Section 437A of the Code measure up to the requirement of being just and fair. Assuming that a person being tried in a Court, who is asked to execute a bail bond with sureties, to appear before the higher Court if

73. 74. 75.

(1994) 1 GLR 581. 1978 SCR (2) 621. Ibid.

52

Section 437A

Chapter

IV—-Bail In Non-Bailable Offences

and when required; is subsequently acquitted by the said trial Court. What does this acquittal amount to? It would naturally mean that the erstwhile accused is shorn and cleansed of the taint of any guilt and, in consequence, enjoys the benefit of fundamental rights — including personal liberties— conferred upon him in Part III of the Constitution. There is no such thing in the CrPC as a “provisional acquittal”. An acquittal is a clear and unequivocal judicial pronouncement to the effect that the person tried has been subjected to the inquiries, rigours and proceedings of a Court and has been found not guilty. Going by that logic, the law has no right to curtail, truncate or compromise the personal liberty of an acquitted person and require such person to furnish bail and sureties for his appearance at some unspecified future date, even if that date be limited to within a period of six months of being so bound. Liberty cannot be sacrificed at the altar of administrative convenience and so an acquitted person cannot be figuratively tied down or placed under bond simply on some past experience in other cases or on the speculative premise that he may not be available for receiving service of summons or being arrested if, as and when there is an appeal, the said appeal is accepted and processes are issued thereafter. This is reminiscent of the Hollywood movie “Minority Report” where the police utilised technology to arrest and convict alleged criminals before they committed a crime. Consider the case of a person who was denied bail during trial and remained under custody throughout because he was unable to post a bond and arrange sureties of adequate means. Even though such an indigent person may be acquitted, he would have to continue to languish in prison upon being required, prior to the conclusion of the trial, by the trial Court, to execute a bail bond with sureties pending the filing of an appeal, if any, before a higher Court.

Chapter V

ANTICIPATORY BAIL Section 438. Direction for grant of bail to person apprehending arrest

(1) Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely—

(i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and. (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court, [(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.]* Do

54

Section 438

Chapter V—Anticipatory Bail

(2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including— (i) a condition that the person shall make himself interrogation by a police officer as and when required; (ii) a condition that the inducement, threat facts of the case so the Court or to any

available

for

person shall not, directly or indirectly, make any or promise to any person acquainted with the as to dissuade him from disclosing such facts to 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. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1). 76[(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.] *Yet to be notified. The notification was withheld in view of the remarks, by the Law Commission of India in its 203" Report, on Anticipatory Bail””” namely, As regards sub-section (1B) relating to the presence of the applicant at the time of final hearing, the Law Commission has gone in depth in the nitty gritty of restraint and custody to which the applicant may be subjected to in terms of the Court’s order under sub-section (1B). The Law Commission has come to the conclusion that when the applicant appears in the Court in compliance of the Court’s order and is subjected to the Court’s directions, he may be viewed as in Court’s custody and this may render the relief of anticipatory bail infructuous. Accordingly, the Law Commission has recommended omission of sub-section (1B) of Section 438 Cr.P.C.

76.

Inserted by Criminal Law (Amendment) Act, 2018.

77.

Law Commission of India 203" Report, December 2007, Page 4.

Direction for grant of bail to person apprehending arrest

Section 438

55

Simply put, the argument of the Law Commission was that Section 438 is a provision whereby a person who is not under arrest but only has reason to believe that he may be arrested, can apply to the High Court or the Court of Sessions for anticipatory bail. The provision itself becomes meaningless if the presence of the applicant is made obligatory at time of final hearing of his application. The very word obligatory means curtailment of the liberty of the applicant and constructive custody of the Court. Though the words “anticipatory bail” do not appear anywhere in this section, their usage originates from the time when the proposal was first mooted by the Law Commission of India in its 41~ Report’® as follows,

The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where 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, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

By and large, for any person, being arrested/ detained is a traumatic and a humiliating experience; the effects of which, if he is innocent, cannot be effaced by any subsequent enlargement on bail or exoneration. This must be viewed in conjunction with the fact that our Constitution has accorded the greatest importance to personal liberty; something that has been emphatically reiterated, over the years, by the Supreme Court in numerous judgments. Given the very fact that almost any person would be afraid of the social and psychological consequences of arrest, it is a common ploy among those with influence to lodge first information reports of cognisable offences that would invariably result in the arrest and disgrace of their hapless victims. Equally, the police in this country has, more often than not used arrest as an expression of power rather than as an instrument in the service of justice and peace. The 3” Report of the National Police Commission, in its averments on “Guidelines for Avoidance of Vexatious Arrests”, noted Presently the powers of the arrest available to the police give ample scope for harassment and humiliation of persons, prompted by mala_ fide considerations. In actual practice, several persons who ought to be arrested are let free on account of political influence or other considerations, while 78.

Law Commission of India 41“ Report, Page 320 — 21, Para 39.9.

56

Section 438

Chapter V—Anticipatory Bail

harmless persons who need not be arrested at all are often arrested and even remanded to police custody on inadequate grounds. Some mala fide arrests get exposed on habeas corpus petitions filed in High Courts but such exposures are rare compared to the large number of unjustified arrests that take place all the time.

Much the same view was put forth by the Law Commission of India, in its one hundred and seventy seventh Report, submitted in December 2001:” Misuse of power of arrest.—Notwithstanding the safeguards contained in the Code of Criminal Procedure and the Constitution referred to above, the fact remains that the power of arrest is wrongly and illegally exercised in a large number of cases all over the country. Very often this power is utilized to extort monies and other valuable property or at the instance of an enemy of the person arrested. Even in case of civil disputes, this power is being resorted to on the basis of a false allegation against a party to a civil dispute at the instance of his opponent. The vast discretion given by the CrPC to arrest a person even in the case of a bailable offence (not only where the bailable offence is cognizable but also where it is noncognizable) and the further power to make preventive arrests (e.g. under section 151 of the CrPC and the several city police enactments), clothe the police with extraordinary power which can easily be abused. Neither there is any inhouse mechanism in the police department to check such misuse or abuse nor does the complaint of such misuse or abuse to higher police officers bear fruit except in some exceptional cases. We must repeat that we are not dealing with the vast discretionary powers of a mere civil service simpliciter, we are dealing with the vast discretionary powers of the members of a service which is provided with firearms, which are becoming more and more sophisticated with each passing day (which is technically called a civil service for the purposes of Service Jurisprudence) and whose acts touch upon the liberty and freedom of the citizens of this country and not merely their entitlements and properties.

The persistence of vexatious arrests was sharply criticised by the Supreme Court in Arnesh Kumar v. State of Bihar*° with the observations, It (the police) has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive. 79.

Law Commission of India, 177" Report, Annexure — III, Para 1.8.

80.

(2014) 8 SCC 273.

Direction for grant of bail to person apprehending arrest

Section 438

oT

It is in the above context that the scope and ambit of Section 438 of the Code of Criminal Procedure was explained in detail by the Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab.*' Their lordships of the Supreme Court were of the opinion that the use of the word “may” as an adjunct to the discretion to grant anticipatory bail or to reject it, reposed unlimited discretion on the Court (Sessions or the High Court) considering the anticipatory bail application. Doubtless the Court would need to temper such discretion with balance and due consideration to related factors but the Court could not be hemmed in by a straitjacket of conditions that would absolutely have to be met while considering an anticipatory bail application. The Court observed, ...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. 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 overgenerous 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.

While emphasising the preponderant requirement of complete discretion resting with the Court for deciding on an anticipatory bail plea under Section 438, the Supreme Court, in the Sibbia Case* felt it necessary to list out the principles to be considered by courts in such cases,

(a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India.

(b) Filing of FIR is not under section 438.

a condition

precedent

to exercise

of power

(c) Order under section 438 would not affect the right of police to conduct

investigation. (d) Conditions mentioned in section 437 (Sub Clauses (i) and (ii) of Subsection (1) of Section 437) cannot be read into section 438.

(e) Although the power to release on anticipatory bail can be described as of an “extraordinary” character this would not justify the conclusion that the power must be exercised in exceptional cases only. Powers are discretionary, to be exercised in light of the circumstances of each case.

81. 1980 SCR (3) 383. 82. Lbid.

58

Section 438

(f) Initial

order can

Chapter V—Anticipatory Bail

be passed

without

notice

to the Public

Prosecutor.

Thereafter, notice must be issued forthwith and question ought to be re-examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant. The opening words of Section 438 “Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence...” are important in that an anticipatory bail application born out of mere whimsical or imagined apprehension ungrounded in a realistic appreciation of the surrounding circumstances would not meet the requirement posed by the words “reason to believe”. The Court observed,

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 someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined hy the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.*>

It is on the same logic that no Court will issue a blanket order for anticipatory bail without detailing the likely offence and corollary matters whereby the applicant fears arrest. Thus, the applicant should have a well-founded “reason to believe” that he may be arrested, and such reasons should be cognate to accusation of his having committed a particular non-bailable offence or connected offences. The bail applicant cannot take the Court on a fishing expedition over an expanse of uncharted and unexplained offences and expect the Court to issue an all-encompassing anticipatory bail order leaving the applicant to do pretty much what he likes with impunity. In the words of the Supreme Court in the Sibbia Case,“ A blanket with both because, committed

83. Ibid. 84. Ibid.

order of anticipatory bail is bound to cause serious interference the right and the duty of the police in the matter of investigation regardless of what kind of offence is alleged to have been by the applicant and when, an order of bail which comprehends

Direction for grant of bail to person apprehending arrest

Section 438

59

allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum.

The judgment in the Sibbia Case (Supra)? was reiterated affirmatively by the Supreme Court in Siddharam Satlingappa Mhetre vy. State of Maharashtra And Ors.*° Their lordships pointed out that checks and balances, against the misuse of Section 438 had been built into the Section itself i.e. the “reasonable opportunity of

being heard” to be afforded to the Public Prosecutor after the grant of interim anticipatory bail and its regularisation as full-fledged anticipatory bail by the Court considering the anticipatory bail application. This was explained by the 48" Law Commission,*” in reference to the Criminal Law (Amendment) Section 438 into the Code of Criminal Procedure, as:

Bill which inserted

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests ofjustice. It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith.

It was, in keeping with this recommendation that Sub-sections (1A) and (1B) were added to Section 438 mandating that while the Court hearing the anticipatory bail application, might well allow anticipatory bail to the applicant on an ad interim basis, it should, forthwith, issue a notice of not less than seven days with a copy of the ad interim order to be served on the Public Prosecutor and the Superintendent of Police, so that the Public Prosecutor received ample opportunity to be heard when the interim application came up for final hearing before the Court. Their lordships, in the Mhetre Case** further elaborated upon the judgment in the Sibbia Case.*” They pointed out that recourse to Section 438, i.e. applying for anticipatory

85. 86. 87. 88. 89.

bail, could

not, in law, be restricted

Ibid. (2011) 1 SCC 694. Law Commission of India, 48" Report, (July 1972), Para 31. Ibid. 1980 SCR (3) 383.

to the rarest of cases.

Such

a

60

Section 438

Chapter V—Anticipatory Bail

restriction would act to the detriment of personal liberty and the fundamental precept of presuming the innocence of the accused until proven guilty. The Court stated, Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases... According to the report of the National Police Commission, the power of arrest is grossly abused and clearly violates the personal liberty of the people, as enshrined under Article 21 of the Constitution, then the courts need to take serious notice of it. When conviction rate is admittedly less than 10%, then the police should be slow in arresting the accused. The courts considering the bail application should try to maintain fine balance between the societal interest vis-a-vis personal liberty while adhering to the fundamental principle of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court.

As to the procedure to be adopted, the Court prescribed, The proper course of action ought to be that after evaluating the averments and accusation available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the public prosecutor. After hearing the public prosecutor the court may either reject the bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of bail. The public prosecutor or complainant would be at liberty to move the same court for cancellation or modifying the conditions of bail any time if liberty granted by the court is misused. The bail granted by the court should ordinarily be continued till the trial of the case.

This prescription stands duly reflected in Sub-section (1) of Section 438 which stipulates: ...(1A) Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court...

The Supreme Court in the Mhetre Case (Supra)”? then proceeded to lay down the factors and parameters to be taken into consideration while dealing with the anticipatory bail. These are reproduced below alongside the factors and parameters required for consideration in the case of regular bail in the case of non-bailable offences

(under Section 437 CrPC)

as enunciated

Amarmani Tripathi Case.’'

90. 91.

(2011) 1 SCC 694. State through CBI v. Amarmani Tripathi, (2005) 8 SCC 21.

by the Supreme

Court

in the

Direction for grant of bail to person apprehending arrest

Section 438

_ Factors and Pz

61

tersto be

Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence.

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.

Nature and gravity of the charge.

The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.

Danger Of the accused absconding or fleeing, if released on bail.

The possibility of the applicant to flee from justice.

Character,

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.

position

behaviour,

and

means,

standing

of

the

accused.

Likelihood of the offence being repeated.

The possibility of the accused's likelihood to repeat similar or the other offences.

Reasonable apprehension of the witnesses being tampered with.

The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant.

Danger,

of

course,

of

justice

being thwarted by grant of bail.

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.

92.

As laid down by the Supreme Court in the Amarmani Tripathi Case, Ibid.

93.

As laid down by the Supreme Court in the Mhetre Case, (2011) | SCC 694.

62

Section 438

Chapter V—Anticipatory Bail

Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. It would thus be seen that the grounds for allowing an anticipatory bail application, under Section 438 of the CrPC are substantially the same as those for enlarging on bail an accused person, under Section 437 of the CrPC, who has been arrested or detained or appears or is brought before a Court other than the High Court or Court of Sessions. Only two additional grounds were specified by the Court in regard to dealing with an application for anticipatory bail namely (a) whether the accusations are intended to humiliate or injure the applicant by his arrest and (b) the impact that the grant of anticipatory bail may have in cases where a very large number of people may be affected. Of the above nine grounds delineated by the Supreme Court in the Mhetre Case," four grounds were subsequently incorporated in Sub-section (1) of Section 438 by The Code of Criminal Procedure (Amendment) Act, 2005 (No. 25 OF 2005), namely, (i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.

Ain entirely new dimension, to the jurisprudence of anticipatory bail, was ushered in by the Supreme Court in P. Chidambaram vy. Directorate of Enforcement” which significantly affected (and differed from) the judgments of the Supreme Court in the earlier Sibbia Case*® and the Mhetre Case.’ In the Chidambaram Case’® the Supreme Court, inter alia, held,

94.

(2011) 1 SCC 694.

95.

Criminal Appeal No. 1340 of 2019 decided by the Supreme Court on 5 September 2019.

96. 1980 SCR (3) 383. 97. (2011) 1 SCC 694. 98. Criminal Appeal No. 1340 of 2019 decided by the Supreme Court on 5 September 2019.

Direction for grant of bail to person apprehending arrest

Section 438

63

1. Anticipatory bail could not be considered an essential ingredient of Article 21 of the Constitution (which, as per successive Supreme Court judgments is now taken to mandate that no person shall be deprived of his life or liberty without a fair, just and reasonable procedure established by law). 2. Granting of anticipatory bail, under Section 438, could amount to interference in investigation (e.g. custodial interrogation, discovery under Section 27 of the Indian Evidence Act, 1872 etc.)

3. Anticipatory bail can be granted only if the Court prima facie feels that the anticipatory bail applicant has been falsely implicated. 4. Economic offences are a class apart in terms of gravity and hence need to be approached differently while considering an anticipatory bail application. Investigation, in such cases, could be hampered if anticipatory bail were to be granted.

Now, let us see how the prescriptions of the Supreme Court in the Chidambaram Case’ measure up against what was held by the Supreme Court in the Sibbia Case,” the Mhetre Case’ and the Sanjay Chandra Case*

Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deeprooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious ile 2. 3. 4. S: 6. WU 8.

The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and _ political power, the discretion under Section 438 of the Code should not be exercised.” How can the Court, even if it had a third eye, assess the

blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the

Ibid. 1980 SCR (3) 383. (2011) 1 SCC 694. (2012) 1 SCC 40. Criminal Appeal No. 1340 of 2019 decided by the Supreme Court on 5 September 2019. 1980 SCR (3) 383. (2011) 1 SCC 694. (2012) 1 SCC 40.

64

threat

___

Section 438

to the financial

accusation

will

suffice

Chapter V—Anticipatory Bail

for

rejecting bail, even if the applicant's conduct is painted

health of the country

in colours true?

too

lurid to be

When the even flow of life |Mhetre Case: becomes turbid, the police Some courts of smaller can be called upon to strength have erroneously inquire into charges arising observed that section out of political antagonism. 438 Cr.P.C. should be The powerful processes of invoked only in excepcriminal law can then be tional or rare cases... perverted for achieving According to the report of extraneous ends. Attendant the National Police upon such investigations, Commission, the power when the police are not free of arrest is grossly abused agents within their sphere and clearly violates the of duty, is a great amount of personal liberty of the inconvenience, harassment people, as — enshrined and humiliation...The foul under Article 21 of the deed is done when an Constitution, then the adversary is exposed to courts need to take social ridicule and obloquy, serious notice of it no matter when and whether a conviction is secured or is at all possible. Anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Articles 2b son, the Constitution. And its

An overgenerous infusion Sanjay Chandra Case: of constraints and condiPersonal liberty, deptions which are not to be rived when bail is found in Section 438 can refused, is too precious a make its provisions value of our Consticonstitutionally vulnerable tutional system recosince the right to personal gnised under Article 21 freedom cannot be made to that the curial power to depend on compliance with negate it is a great trust unreasonable __ restrictions. exercisable, not casually The beneficient provision | put judicially, with lively

non-application

contained

to

certain special catego

a

must

be

in Section

saved,

438 | concer

tormthe cost to

not} the individual and the

Direction for grant of bail to person apprehending arrest

of offences cannot be considered as violative of Article 21.

jettisoned. No doubt can linger after the decision in Maneka Gandhi that in order to meet the challenge On Articles eis ol tthe Constitution,

the procedure

established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in

the form in which it is conceived by the legislature, iS Open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We

ought, at all

costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed

The

court

ordinarily

will not interfere with

the investigation

of a

crime or with the arrest of the accused in a

While granting relief under Section 438 (1), appropriate conditions can be imposed under Section 438 (2) so as

to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on

bail shall be liable to be taken in police custody for facilitating the discovery.

cognizable offence. An

For similar reasons, we are

interim training

unable

order _ resarrest, if

to

agree

anticipatory bail should

that be

Section 438

rise orders

as

65

impressionistic discretionary

may, on occasions, make

a litigative gamble decisive of a _ fundamental

right.

After

all,

personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right.

66

Section 438

ee

_ Chapter V—Anticipatory Bail

ations

ChidambaramC. passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.

Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.

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.

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. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.

The jurisprudence pertaining to bail again underwent mid-stream review by the Supreme Court in a subsequent judgment in the Chidambaram matter — P. Chidambaram y. Directorate of Enforcement.’ A three judge Bench of the Supreme Court (R Banumathi, A S Bopanna and Hrishikesh Roy, JJ) while, ordering the enlargement of the appellant on bail affirmed that:

(i) The grant of bail remained the rule and its refusal the exception. (11) Economic offences (of the kind the appellant was charged with) should be viewed as grave offences notwithstanding that the punishment prescribed, under statute, for such offences, was only a maximum of seven years. Nevertheless, there was no rule against the granting of bail in such cases. (iii) Ultimately, the grant of bail or otherwise could not be decided on the basis of judgments in other cases and would have to be considered on a case to case basis.

9. Criminal Appeal No.1831/2019 decided by the Supreme Court on 4 December 2019.

Direction for grant of bail to person apprehending arrest

Section 438

67

In relation to the time-honoured maxim of bail not jail, the Court held,

“...it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.”

That said, the Supreme Court abridged the considerations, before the courts, while considering bail applications, from the seven parameters enunciated in the Amarmani Tripathi Case to a “tripod” of considerations, with a fourth leg being the gravity of the (economic) offence. The Court, drawing from an earlier judgment (P. Chidambaram v. CBI,’ of the same Court prescribed the three legs of the tripod as: “(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering apprehension of threat to the complainant.

with

the

witness

or

(c) Prima facie satisfaction of the court in support of the charge.”

In addition to these three factors, the Court held that: “Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused.”

However, the Supreme Court clarified that a bail applicant being accused of having committed an economic offence did not necessarily occlude his claim to bail and stated: “In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so.”

Yet another dictum laid down by the Supreme Court was that judicial precedent did not constitute the sole guide in deciding bail applications stating that: “Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.”

10.

Criminal Appeal No. 1603 of 2019 decided by Supreme Court on 22 October 2019.

68

Section 438

_ Chapter V—Anticipatory Bail

This last observation by the Supreme Court would seem to significantly reduce the importance of judicial precedent in deciding bail application cases and could expose decisions, in such matters, to the personal assessment or perception of courts, at every level, hearing such applications, thereby imparting uncertainty to the law of bail.

What is the duration of anticipatory bail, once granted? This question has significantly agitated the judicial mind. For how long should an order of anticipatory bail survive, (i) Indefinitely until such time as the beneficiary of the anticipatory bail becomes an accused and is tried and convicted or acquitted, in either of which event, the anticipatory bail comes to a natural end; OR

(ii) Until such time as the investigation agency files the charge sheet, where after the anticipatory bail would come to an end and the accused would have to seek regular bail from the Court; OR (iii) Until the framing of charge by the Court, whereupon the anticipatory bail would come to an end and the accused would have to seek regular bail from the Court; OR

(iv) Until such time as the anticipatory bail is cancelled by Court (the High Court or the Court of Sessions) acting under Section 439(2) of the Code of Criminal Procedure. The Law Comiunission of India, in its 268" Report!! remarked

that,

While on the question of considering the duration of anticipatory bail, the law on this point remains highly divergent and ambiguous. It is pertinent to note that the Parliament has not prescribed any duration fer an anticipatory bail. It is vague, as it does not mention whether the order should be limited in time or if it is transient in nature until regular bail is obtained. With regards to the determination of the operational period of the anticipatory bail, some courts follow the Gurbaksh Singh Sibbia®® stance where it was held that the court may limit the operation of the order if there are cogent reasons, keeping it operational for a short period after filing of FIR (First Information Report). In such an eventuality the applicant must move the court under s. 437 of Cr.P.C within a reasonable time after filing of FIR. However, the court has stated that there cannot be an absolute rule to limit the operation of the order and make it time bound.

However, it can be deduced that the Supreme Court has indeed consistently held that anticipatory bail should be for a limited period and it should come to an end on the expiry of the duration or extended duration fixed by the court granting anticipatory bail. It is for the regular court to deal with the matter after appreciating the evidence filed before the court, once the investigation has made substantial progress or the charge-sheet has been submiitted. 11.

Law Commission of India, Report No. 268, May 2017, Pages 46-53.

12. Id. at Para 6.9, p 50.

Direction for grant of bail to person apprehending arrest

This issue came

up for consideration

Section 438

before the Supreme

Court

69

in Sushila

Aggarwal & Ors v. State (NCT of Dehi) & Anr'> wherein the Court took cognisance of the fact that, in the Sibbia Case’ it had been held that: The bail granted by the court should ordinarily be continued till the trial of the case.

However, this line of judgment was not followed by the Supreme Court in the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra'> where the Court took the view that, It must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted.

However, the Supreme Court in Mhetre Case'® found the decision in the Salauddin Case'’ to be per incuriam (i.e. through or characterized by lack of due regard to the law or the facts); because it disregarded the law laid down by the Constitution Bench of the Supreme Court in the Sibbia Case.'* In view of these contradictions, the Supreme Court concluded, in the Sushila Aggarwal case'” that, In the light of the conflicting views of the different Benches of varying strength, we are of the opinion that the legal position needs to be authoritatively settled in clear and unambiguous terms.

Accordingly, the Court decided that the following considered by a larger Bench (of the Supreme Court),

questions

needed

to be

(1) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to 17 surrender before the Trial Court and seek regular bail.

(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court

[37 14. 15. 16. 17. 18. 19.

20S) ESC 1980 SCR (3) (1996) 1 SCC (2011) 1 SCC (1996) 1 SCC 1980 SCR (3) (018) 7 SCC

ol: 383. 667. 694. 667. 383. 731.

70

Section 438

Chapter V—Anticipatory Bail

The Law Commission, in a draft “The Code of Criminal Procedure (Amendment) Bill, 2017”, serving as Annexure A to the 268" Report of the Law Commission,”

proposed that Section 438 be amended as follows,— (i) after sub-section namely:-—

(2), the following sub-section

shall be inserted

(2A) Any order made by the High Court or the Court of Sessions under this section shall be for a limited period of time as the Court may deem fit, or until the charge-sheet is filed, whichever is earlier. ; (ii) after sub-section (3), the following sub-section shall be inserted, namely:— (4) On the date indicated in the interim order under sub-section (2), the court shall hear the Public Prosecutor and the complainant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order made under sub-section (1).

Clearly, the Law Commission intended to address the divergence of views, found in Supreme Court judgments regarding the duration of anticipatory bail, by limiting this duration to whatever time the Court prescribed subject to the maximum duration being until the date of the investigating agency filing the charge sheet. However, this recommendation was not brought into the statute by the Legislature. In consequence, therefore, the duration of the validity of an anticipatory bail order remains an open ended and unanswered question until such time as it is finally decided by a larger Bench of the Supreme Court as recommended in the Sushila Aggarwal Case.” While, in the light of the above, it has been left to a larger Bench of the Supreme Court to decide on the duration of the validity of an anticipatory bail order; it would be useful to marsha! some facts below. Firstly, anticipatory bail, once granted, can be cancelled at any time, by the Court of Sessions or the High Court that enjoy untrammelled powers to do so in terms of Section 439 of the Code which explicitly says in Sub-section (2) thereof 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.

Tt would be logical therefore to infer that any person who has been granted anticipatory bail under Section 438 could, if found to have violated the conditions pegged to the anticipatory bail order, could be arrested and committed to custody by the High Court or Court of Sessions with his anticipatory bail getting curtailed/ revoked/ cancelled forthwith. The kind of conditions that the Court granting anticipatory bail are not limited or circumscribed, in any, manner by the CrPC. In fact, Sub-section (2) of Section 438 says,

20. Law Commission of India, Report No. 268, May 2017, Pages 46-53. P2018) 7 SCE Tale

Direction for grant of bail to person apprehending arrest

Section 438

yi

(2) When the High Court or the Court of Session makes a direction under sub-section (I), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including— (i) a condition that the person shall make himself interrogation by a police officer as and when required; (ii) a condition that the inducement, threat facts of the case so the Court or to any

available

for

person shall not, directly or indirectly, make any or promise to any person acquainted with the as to dissuade him from disclosing such facts to 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. Armed with such comprehensive powers to impose conditions attaching to the grant of anticipatory bail, the Court can revoke the said anticipatory bail, acting under the authority of Section 439(2) to cancel the said bail and relegate the accused to custody. Why then should it be necessary for the law to place some kind of an upper limit on the duration of an anticipatory bail order? Why should it be necessary for a Court granting the anticipatory bail to place a due date upon it, almost as if the requirements of personal liberty shall not avail on or after a prescribed day or date? Secondly, as we have seen hereinabove, in the comparison of grounds for granting bail vis-a-vis those for granting anticipatory bail; these grounds are virtually identical (please see the comparative table at page 61 supra). Not only are the grounds identical, it is seen that the Court in the Mehtre Case** has prescribed two additional grounds over those seven grounds that are common

to both, the consideration of bail

or anticipatory bail pleas. Why then is it, that a person who is granted regular bail cannot be arrested for the duration of the trial whereas a person who is granted anticipatory bail, on virtually identical grounds, must be allowed only a brief period of liberty to end summarily and without sufficient cause as soon as a charge sheet is filed or the Court takes cognisance of the case. To accept the argument advanced by the Law Commission” or the averments of the Supreme Court in the Salauddin Case** would entail doing away the personal liberty of a person, simply as a function of an event or a point in time, without regard to the requirement of reasonable, fair and just (due process) of the law which was

D2) ESCEC94, Law Commission of India, Report No. 268, May 2017, Pages 46-53. 24. (1996) 1 SCC 667.

23.

72

Section 438

__ Chapter V—Anticipatory Bail

enunciated in the Maneka Gandhi Case’ and has been approbated in numerous judgments of the Supreme Court thereafter. Thirdly, the observation by the Court in the Salauddin Case”° that,

It must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender.

It is not in keeping with the law, as laid down by the Supreme Court that it is not for the Court considering a bail application to weigh and sift the evidence. It was stated in the case of Kanwar Singh Meena v. State of Rajasthan & Anr’’ that, But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts...The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial.

It is felt, therefore, that any restrictions on the durational aspects of anticipatory bail would be both, peremptory in nature, out of sync with the Constitutional emphasis on personal liberty and contrary to the meaning and spirit of Sections contained in Chapter XXXIII (Provisions as to Bail and Bonds) of the Code of Criminal Procedure.

Can anticipatory bail application be moved directly before the High Court A plain reading of Sub-section (1) of Section 438 of the Code, reproduced below, would indicate that an anticipatory bail applicant can submit his application for anticipatory bail “to the High Court or the Court of Session”. In effect, the plain import of this Section ought to be that a person seeking anticipatory bail has the option to choose one of the two viz. the High Court or the Court of Sessions and is not constrained to apply only before the lower Court before moving the higher forum.

(1) Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely... However, the fact is that High Courts, by and large, decline the hearing of anticipatory bail applications until such time as they have run their course before the Sessions Court. This practice was formalised by the Allahabad High Court in

Py, 26. 27.

(Oks) 2 SOR CHA. (1996) | SCC 667. (2012) 12 SCC 180.

Direction for grant of bail to person apprehending

arrest

Section 438

73

Harendra Singh @ Harendra Bahadur v. The State of UP.** Although the Court agreed that on a plain and meaningful reading of this provision, it was crystal clear that it confers concurrent jurisdiction on the High Court as well as Court of Sessions; the Court relied on a judgment of the High Court of Karnataka in K. C. lyya v. State of Karnataka’

wherein

it was opined that,

Since both the Courts, the Court of Sessions and this Court have concurrent powers in the matter, it appears desirable, for more than one reason, that the Sessions Court should be approached first in the matter.

The Allahabad High Court went on to opine that as Section 438 could not be exercised as a matter of right by any party, it was purely within the discretionary power of the Court (High Court) to direct the party to go first before the Court of Sessions even though “there is no embargo under the statute itself”.

Further justification following lines:

for this view

was

provided

by the High Court

on the

...dt is appropriate that the party should apply to the subordinate Court first, because the higher Court would have the advantage of considering the opinion of the Sessions Court. Moreover, the party will get two opportunities to get the remedy either before the Sessions Court or before the High Court but if once he approaches the High Court, he would run the risk that, the other remedy is not available to him if he failed to get the order in the High Court, he cannot go before the Sessions Court for the same remedy. However, vice versa is possible. Moreover, considering the work load of the courts in the country, the superior courts particularly, the High Courts are flooded with heavy pendency of cases. In order to facilitate the other parties who come before the Court with other cases before the High Court (which has got exclusive Jurisdiction) and also in order to provide alternative remedy to the parties, it is just and necessary that the party shall first approach the Sessions Court under Section 438 of Cr.P.C. so that the High Court can bestow its precious time to deal with other pending cases which requires serious attention and expeditious disposal, where the parties who have come to the High Court after exhausting remedy before the Magistrate Court or the Sessions Court for grant of bail and for other reliefs.

The object is that if the party who is residing in the remote area can directly approach the Sessions Court which is easily accessible. In order to obviated the very object and purpose, the party has to explain why he did not go to that Court. Otherwise, it amounts to making that provision redundant, so far as the Sessions Courts are concerned.

28.

Criminal Misc. Application No.6478 of 2019 (Bail) decided by the Allahabad High Court on 8 July 2019.

29.

1983 (2) KLJ 8.

74

Section 438

_

Chapter V—Anticipatory Bail

It can, perhaps, safely be argued that while a person does not have the right to secure bail under the provisions of Section 438 of the CrPC; the Section certainly confers the right on every person, desirous of doing so, the right to apply for anticipatory bail. Sections 438 does not, in any way, categorise or specify any class or classes of persons who would have the right to apply for anticipatory bail under the Section. This right [which, as per the judgment of the Constitutional Bench in the Sibbia Case*’| owes its existence to the right to personal liberty enshrined in the Constitution. The relevant paragraph of the Sibbia Case’! reads, ...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. 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 overgenerous 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.

The mere factum of geographical proximity of an applicant to a Court of Sessions or grounds of administrative convenience for the High Court burdened with pending cases may not be sufficient to read down the plain and obvious words of the statute namely, Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail.

Justice Sir Peter Branson Statutes””* clarifies,

Maxwell

in his treatise “On

the Interpretation

When indeed the language is not only plain but admits of plain but admits of but one meaning, the task of interpretation can hardly be said to arise. Absoluta sententia expositore non indiget (A complete statement requires no interpreter). The legislature must be intended to mean what it has plainly expressed, and consequently there is no room for construction. It matters not in such a case what the consequences may be. Where, by the use of clear and unequivocal language, capable of only one meaning, anything is enacted by the legislature, it must be enforced, even though it may be absurd or mischievous. They (words) cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. When once the intention

30. 1980 SCR (3) 383. 31. Ibid. 32. Second Edition, 1883, Pages 3-5.

of

Direction for grant of bail to person apprehending arrest

Section 438

IS

is plain, it is not the province ofa Court to scan its wisdom or its policy. Its duty is not to make the law reasonable but to expound it as it stands, according to the real sense of the words.

The above masterful exposition, by Maxwell, of the requirement to take plain and clear language to mean exactly what it says, has been borne out in judgments of the Supreme Court from time to time. In Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi”

the Supreme Court held, We share the view that where the words of a statute are plain and unambiguous effect must be given to them. Plain words have to be accepted as such but where the intention of the legislature is not clear from the words or where two constructions are possible, it is the Court's duty to discern the intention in the context of the background in which a particular Section is enacted.

In Arul Nadar v. Authorised Officer, Land Reforms” the Supreme Court stated: As has been stated by this Court in the case of State of Uttar Pradesh vs. Vijay Anand Maharaj, ‘When a language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises, for the Act speaks for itself.’ In the Sussex Peerage case’ Tindal C.J. stated thus ‘If the works of the statue are in themselves precise and unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense and the words do alone in such cases best declare the intent of the law giver’.

It was also clearly laid down by the Supreme Court in the Rakesh Kumar Paul Case’ ‘that,

...Uf the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the Courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used.

The language of Section 438 is not in the least ambiguous or obtuse. It says unequivocally that,

Where any person has reason to believe that he may be arrested on 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 that in the event of such arrest he shall be released on bail. _ AIR 1986 SC 84. (1998) 7 SCC 157. 1963 (1) SCR 1. (1844) 11 CI&F 85, p.143. _ AIR 2017 SC 3948.

76

Section 438

__ Chapter V—Anticipatory Bail

Also, the comfort of geographical proximity (to a Court of Sessions or the High Court) is for the bail applicant to consider and exercise his choice and not for the Court to impose. By the same logic, the provision is neither unworkable, nor highly unreasonable nor arbitrary and hence the choice or option provided in the Section cannot be read out of it on grounds of administrative imperatives or the burden of pending cases.

Chapter VI SPECIAL POWERS OF HIGHER COURTS AS TO BAIL Section 439. Special powers of High Court or Court of Session regarding bail (1) A High Court or Court of Session may direct— (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when person on bail be set aside or modified:

releasing any

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

38[Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.]

39[(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.]

(2) 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. 38.

The proviso ins. by s. 23, ibid. (w.e.f. 21-4-2018).

39.

Ins. by s. 23, ibid. (w.e.f. 21-4-2018).

Ta,

78

Section 439

Section

439

imbues

Chapter VI—Special Powers of Higher Courts as to Bail

the Court

of Sessions

and

the

High

Court

with

both,

overarching and unrestricted powers as to the grant or cancellation of bail including, inter alia, directing — without the formality of cancelling bail — that any person previously released on custody be arrested and committed to custody. Thus, none of the following restrictions contained in Section 437 imposed on a Court other than a Court of Sessions or a High Court apply to the High Court or Court of Sessions in Section 439:

(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; (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: 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: Until the year 2018, the only burden imposed on the Court of Sessions and the High Court was that, in granting bail to a person accused of an offence triable exclusively by the Court of Session or which even if not so triable is punishable with imprisonment for life, the Court shall give notice (of the bail application) to the Public Prosecutor. However, even this burden has been diluted vide Amendment in 2018 with the closing words of the provision viz “unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such a notice.” Post 2018, an additional burden devolved on the Court of Sessions and the High Court by virtue of The Criminal Law (Amendment) Act, 2018*° which inserted the second proviso under Sub-Section (1) of Section 439 of the CrPC which made it mandatory for the High Court or Court of Sessions, hearing a bail application under Section 439, to give a notice of the bail application to the Public Prosecutor within fifteen days of receiving such a bail application if the bail applicant, brought to the Court under custody, is accused of an offence triable under the following Sections/ Sub-Sections of the Indian Penal Code (IPC):

40.

No. 22 of 2018 w.e.f. 11 August 2018.

Special powers of High Court or Court of Session...

Section 439

79

Section 376 (3) : Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this sub-section shall be paid to the victim. Section 376AB : Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim. Section 376DA : Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall be paid to the victim. Section 376DB : Where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.

80

Section 439

Chapter VI—Special Powers of Higher Courts as to Bail

A second additional burden placed upon the Court of Sessions or the High Court, hearing a bail application under Section 439 of the CrPC is by way of the addition of Sub-Section (1A) to Section 439. Section 439(1A) mandates that in a bail hearing

where the applicant is accused of having committed defined in Sections 376(3), 376AB, 376DA and above); the informant (on whose information the authorised by the informant, is obliged to be present such an accused.

an offence (rape in certain cases) 376DB of the IPC (please see FIR was

registered) or person

at the time of the bail hearing of

In effect, therefore subject to conditions regarding a priori notice to the Public Prosecutor in certain cases and the procedural requirement for having the informant (or person authorised by the informant) being present at the time of hearing of the bail application in cases of rape of women below a certain age; Section 439 vests almost unfettered authority on the higher courts to grant bail, to refuse bail, to cut short bail and to cancel bail as well as to impose, add, reduce or modify the conditions attaching (or otherwise) to the bail granted by the lower court.

Custody vs Arrest Sub-section 1|(a) of Section 439 states that directions of the Court of Session and the High Court, under the Section, have to be in respect of a person “accused of an

offence and in custody”. On the other hand, Section 437 stipulates that the bail applicant should be someone who is “arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court.” The question that arises is whether the legislature intended the word “custody” (used in Section

439) to mean

differently

from

the words

“arrested,

detained,

appears, brought before” (used in Section 437). It was argued that if the intended meanings of the words were different, then an accused person could not “surrender” himself directly before the Court of Sessions or the High Court. Instead, such an accused person would first have to be arrested, detained and brought before the Magistrate’s Court or to appear before it. Thereafter, only if the Magistrate, acting under Section 167, authorised the detention of the said accused person in “custody” would such an accused person be enabled to seek bail from the higher courts. This seeming discrepancy was addressed by the Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra & Anr"’ in the following words, The futility of the Appellant’s endeavours to secure anticipatory bail having attained finality, he had once again knocked at the portals of the High Court of Judicature at Bombay, this time around for regular bail under Section 439 of the Code of Criminal Procedure (CrPC), which was declined with the observations that it is the Magistrate whose jurisdiction has necessarily to be invoked and not of the High Court or even the Sessions Judge. The legality of this conclusion is the gravamen of the appeal before us.

41.

(2014) 16 SCC 623.

Special powers of High Court or Court of Session...

Section 439

81

In the impugned Judgment, the learned Single Judge has opined that when the Appellant’s plea to surrender before the Court is accepted and he is assumed to be in its custody, the police would be deprived of getting his custody, which is not contemplated by law, and thus, the Appellant is required to be arrested or otherwise he has to surrender before the Court which can send him to remand either to the police custody or to the Magisterial custody and this can only be done under Section 167 of CrPC by the Magistrate and that order cannot be passed at the High Court level. The Supreme Court then analysed, in detail, whether arrest, detention and custody

all had completely different meanings or whether they were cognate words with the very same roots i.e. an accused person, thereafter detained and placed in custody, was de facto in custody throughout. The Court cited the following words of Krishna Iyer J in Niranjan Singh and Anr v. Prabhakar Rajaram Kharote*™ When is a person in custody, within the meaning of s.439 Cr. P.C.? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of s. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide-andseek 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. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. Custody, in the context of s. 439, (we are not, be it noted, dealing with anticipatory bail under s. 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can, be stated to be in judicial custody when he surrenders before the court and submits to its directions. Thus, the Supreme Court in the Bafna Case” concluded,

It appears to us that till the committal of case to the Court of Session, Section 439 can be invoked for the purpose of pleading for bail. If administrative difficulties are encountered, such as, where there are several 42. 43.

(1980) 2 SCC 559. (2014) 16 SCC 623.

82

Section 439

Chapter VI—Special Powers of Higher Courts as to Bail

Additional Session Judges, they can be overcome by enabling the accused to move the Sessions Judge, or by further empowering the Additional Sessions Judge hearing other Bail Applications whether post committal or as the Appellate Court, to also entertain Bail Applications at the precommittal stage. Since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a superior Court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered under Section 439 of the CrPC.

Cancellation of Bail

The grounds for cancellation of bail provided under Section 439 of the CrPC would be much the same as those availing in the case of cancellation by lower courts acting under Section 437 CrPC. The broad grounds for cancellation of bail, once granted, were spelt out by the Supreme Court in the Abdul Basit Case“ in summary form as, (i) the misuse of liberty by the person accused of an offence by indulging in criminal activity, (ii) interference with the course of investigation, (iii) attempts to tamper with evidence or witnesses,

(iv) threatening witnesses investigation,

or

indulging

in similar

activities

that hamper

(v) likelihood of fleeing to another country,

(vi) attempts to make oneself scarce by going underground or being unavailable to the investigating agency, (vii) attempts to be beyond the reach of the surety. Cancellation of bail by the Sessions Court or High Court, by recourse to the authority contained in Section 439 of the CrPC is entirely different from the curtailment of bail by a Court acting under Section 436(2) of the Code. A Court lower

than a Sessions Court cannot “cancel” the bail accepted by it under Section 436(1), it can only “refuse to release on bail” (on a subsequent appearance before the lower Court) a person who has flouted conditions in the bail bond pertaining to the time and place of attendance. However, when the prosecution seeks cancellation of bail granted earlier, it is not incumbent upon the prosecution to prove the grounds for cancellation with the same rigour and exactitude as would characterise the proving of evidence in a criminal trial. It would suffice if the Court is of the opinion that, all things considered, the cancellation of bail is necessary for the effective and unhampered delivery of justice. 44. Abdul Basit alias Raju and Ors v. Mohd. Abdul Kadir Chaudhary and Anr, (2014) 10 SCC 754.

Special powers of High Court or Court of Session...

Section 439

83

This position was lucidly explained by the Supreme Court in the case of State

(Delhi Administration) v. Sanjay Gandhi,” Before we go to the facts of the case, it is necessary to consider what precisely is the nature of the burden which rests on the prosecution in an application for cancellation of bail. Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because they are won over by the accused? We think not. The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. Whether an accused is absconding and therefore his property can be attached Under Section 83 of the Criminal Procedure Code, whether a search of person of premises was taken as required by the provisions of Section 100 of the Code, whether a confession is recorded in strict accordance with the requirements of Section 164 of the Code and whether a fact was discovered in consequence of information received from an accused as required by Section 27 of the Evidence Act are all matters which, fall peculiarly within the ordinary sweep of criminal trials. But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the same rigorous standard. Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his, defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a _ criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on

a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail. Section 439(2) of the CrPC confers jurisdiction on the High Court or Court of Sessions to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. 45.

(1978) 2 SCC 411.

84

Section 439

Chapter VI—Special Powers of Higher Courts as to Bail

It is to be borne in mind that an appeal against the cancellation of bail (or an appeal seeking cancellation of bail) could be on two grounds: (i) That the Court inadequately or broad grounds pleaded (by the

cancelling the bail (or granting it in the first instance) has inaccurately appraised the correctness or adequacy of the adduced (by the prosecution) for cancelling the bail or accused) for granting it in the first instance.

(ii) That the Court cancelling the bail (or granting it in the first instance) had exceeded legalities or been arbitrary in its decision of cancelling the bail (or granting it in the first instance). This important difference was spelt out by the Supreme Bhimabhai Bharwad v. State of Gujarat and Ors*®

Court in Bharatbhai

It is well settled that the consideration applicable for cancellation of bail and consideration for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like tampering of evidence either during investigation or during trial, threatening of witness, the Accused is likely to abscond and the trial of the case getting delayed on that count etc. Whereas, in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration is whether there was improper or arbitrary exercise of discretion in grant ofbail.

Much the same principle (regarding cancellation of bail if the grant thereof, by a lower Court, had been arbitrary or out of sync with legality) was elaborated on by the Supreme Court in State of Bihar v. Rajballav Prasad @ Rajballav Pd’’ which pertained to an accused having been granted bail by the High Court who was charged with offences under Sections 376 (Punishment for Rape), 420/34 (Cheating read with Common _ Intention), 366-A (Procuration of Minor Girl), 370 (Trafficking of Person), 370-A (Exploitation of Trafficked Person), 212 (Harbouring Offender), 120-B (Criminal Conspiracy) of the Indian Penal Code, Sections 4, 6 and 8 of the Protection of Children from Sexual Offences Act, 2012 (/bid Chapter VII) as well as Sections 4 (Punishment for Living on Earnings of Prostitution), 5 (Procuring,

Inducing or Taking Person for Prostitution) and 6 (Detaining Person in Premises where Prostitution is Carried On) of the Immoral Traffic Act, 1956. While cancelling the bail

granted by the High Court, the Supreme Court made the following observations, The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court wouid be justified in 46. 47.

Criminal Appeal Nos. 1162-1163 of 2019 decided by the Supreme Court on 30 July 2019.

(2017) 2 SCC 178.

Special powers of High Court or Court of Session...

Section 439

85

cancelling the bail. Such orders are against the well-recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society.

The Supreme Court cited an earlier judgment in the case of Puran v. Rambilas &

Anr*> and held,

...where order granting bail was passed by ignoring material evidence on record and without giving reasons, it would be perverse and contrary to the principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. This ground for cancellation, the Court held, is different from the ground that the accused misconducted himself or some new facts call for cancellation.

Re-arrest of an accused person on bail by direction of the Court rather than cancellation of bail In normal circumstances, Courts have held that a prerequisite for cancellation of bail is giving the bailed accused person an opportunity to be heard prior to passing orders cancelling bail or otherwise. This view was pronounced by the Supreme Court in Gurdev Singh and Anr v. State of Bihar and Anr® namely, Petitioners are the accused who are aggrieved by the order of cancellation of their bail, on the ground that even before cancellation of bail, no notice was served upon them. Mr. Singh, learned Counsel appearing for the State of Bihar, says that no doubt the Process Server has indicated that there has been service of notice inasmuch as the accused-persons refused to accept the same. But, that report cannot be sacrosanct, and the accused is entitled to hearing before the bail is cancelled.”

While the entitlement of the accused to being heard prior to cancellation of bail is not in doubt, in the wake of the Gurdev Singh Case,” the situation is materially

different when the Court gives a direction, simpliciter, for the person earlier released on bail “under this Chapter” (i.e. Chapter XXXII of the Code captioned “Provisions as to Bails and Bonds”) to be arrested and committed to custody. In such an instance (possibly in cases where the conditions imposed while granting bail have been violated), there would be no requirement for cancellation of bail proceedings but only a straightforward consignment of the accused person to custody. This position 48. 49. 50.

(2001) 6 SCC 338. (2005) 13 SCC 286. (2005) 13 SCC 286.

86

Section 439

Chapter VI—Special Powers of Higher Courts as to Bail

was clearly articulated, by the Supreme Court, in Pradeep Ram

v. The State of

Jharkhand.” The issue framed by the Supreme Court was, Whether in a case where an accused has béen bailed out in a criminal case,

in which case, subsequently new offences are added, is it necessary that bail earlier granted should be cancelled for taking the accused in custody? The Court observed, Both Sections 437(5) and 439(2) empowers the Court to arrest an accused and commit him to custody, who has been released on bail under Chapter XXXII. There may be numerous grounds for exercise of power under Sections 437(5) and 439(2)... Cancelling the bail granted to an accused and directing him to arrest and taken into custody can be one course of the action, which can be adopted while exercising power under Sections 437(5) and 439(2), but there may be cases where without cancelling the bail granted to an accused, on relevant consideration, Court can direct the accused to be arrested and committed to custody. The addition of serious offences is one of such circumstances, under which the Court can direct the accused to be arrested and committed to custody despite the bail having been granted with regard to the offences with which he was charged at the time when bail was considered and granted.

A plain reading of the aforesaid provisions indicates that (these) provision(s) do

not mandatorily provide that the Court before directing arrest of such accused who has already been granted bail must necessary cancel his earlier bail. A discretion has been given to the Court to pass such orders to direct for such person be arrested and commit him to the custody which direction may be with an order for cancellation of earlier bail or permission to arrest such accused due to addition of graver and noncognizable offences. Sections 437(5) and 439(2) cannot be read in a restricted manner that order for

arresting the accused and commit him to custody can only be passed by the Court after cancelling the earlier bail.” Having argued as above, the Supreme Court held, In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:— (i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.

(ii) (The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody. 51.

Criminal Appeal Nos. 816 — 817 of 2019 decided by the Supreme Court decided on 1 July 2019.

Special powers of High Court or Court of Session...

(iii) The Court, in exercise

Section 439

87

of power under Section 437(5) or 439(2) of

Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and noncognizable offences which may not be necessary always with order of cancelling of earlier bail. (iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it needs to obtain an order to arrest the accused from the Court which had granted the bail.

Delegation of power of the High Court or the Court of Sessions under Section 439(2)to the Court of a magistrate Section 439(2) of the CrPC stipulates,

(2) 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. Thus, a plain reading of the above Sub-section would convey that only the Court of Sessions and the High Court have the power to direct that any person, earlier released on bail, under any of the bail provisions contained in Chapter XX XIII of the Code, be arrested and committed to custody.

However, the scope of Section 439(2) was expanded by the Supreme Court in P.K. Shaji @ Thammanam Shaji v. State of Kerala.”* In the judgment, the Supreme Court also held that a Court of Sessions could even direct a Magistrate’s Court to re-arrest an accused person enlarged on bail if he was found violating the bail conditions imposed by the higher Court. In effect, this judgment allows a High Court or Court of Sessions to delegate its powers, under Section 439(2) to the Court of a Magistrate. The case pertained to an accused person enlarged on bail, under Section 439, by

the Court of Sessions, on whom conditions were imposed. Elaborating on this, the Supreme Court observed, Lastly, the Sessions scrupulously ensure imposed therein and conditions and the conditions have been

52.

Court directed that the Investigating Officer shall that the appellant complied with all the conditions shall report to the Magistrate in case of any breach of Magistrate shall take appropriate action as if the imposed by the Magistrate himself.

Appeal (Crl.) 1476 of 2005 decided by Supreme Court on 27 October 2005.

88

Section 439

Chapter VI—Special Powers of Higher Courts as to Baii

The Investigating Officer filed a report before the learned Magistrate alleging that the appellant herein did not comply with the conditions as he had failed to report before the Investigating Officer on all Mondays and Fridays. Pursuant to this report, learned Magistrate issued a notice and the learned Counsel entered appearance and submitted that the appellant apprehended assault at the hands of the police and, therefore, he did not report before the Investigating Officer. The learned Magistrate was not satisfied with the explanation given by the learned Counsel for the appellant and he cancelled the bail granted to the appellant.

Having spelt out the above background, the Supreme Court held, The superior court can always give directions of this nature and authorise the subordinate court to pass appropriate orders and the trial Magistrate would be the competent authority to decide whether any condition had been violated by the person who had been released on bail. When there is a specific direction to pass appropriate orders as if the conditions for granting bail had been imposed by the learned Magistrate himself, the impugned Order is legai and valid.

Chapter VII BAIL UNDER SPECIAL LAWS AND PROVISIONS Given the provisions Therefore, study and

very large number of special laws extant in the country, examining the bail in respect of each such law would become a very voluminous exercise. only the following important special laws have been identified for the understanding of their bail provisions:

A. The Unlawful Activities (Prevention) Act, 1967 (UAPA)

B. The Prevention of Money Laundering Act, 2002 (PMLA) C. Narcotic Drugs and Psychotropic Substances Act, 1985

D. Protection of Children from Sexual Offences Act, 2012 E. Juvenile Justice (Care and Protection of Children) Act, 2015 According

to the Law

Commission,

in its 268" Report,» a total of 48,57,230

persons were arrested for crimes under Special and Local Laws during the year 2015. Of these, by the end of the year, only 6.6 per cent persons (3,20,392 out of 48,57,230 persons) were able to secure bail for themselves. Way back in 1996 the Supreme Court found that, out of 9,203 cases reviewed by Review Committee under the Act,

7,968

persons

had been

wrongly

accused

of TADA

(Terrorist

and

Disruptive

Activities Act, 1985 - lapsed in 1995) offences.

Small wonder that Special Laws have come in for substantial criticism over time. While their requirement, to contain vicious crimes, economic offences and terrorism, is undisputed; it is also a fact that, in several cases, people charged under Special Laws have ultimately been acquitted after the trauma of long years in detention. When trying cases under Special Laws, the inquisitorial (as opposed to adversarial) form of trial comes into play which means that the onus is on the accused to satisfy the searching inquiries by the Court, of his innocence, rather than the accused being presumed innocent until proven guilty, as obtaining in the adversarial system. This puts the accused at a substantial disadvantage because he is required, in his application for bail, not to adduce reasonable grounds against having prima facie committed the offence but to convince the Court that he is prima facie not guilty. The Supreme Court in the case of Ranjit Singh Brahmajeet Singh Sharma v. State of Maharashtra,” held that unless the Judge is satisfied that a conviction is not likely, which is a very high threshold, bail would not be granted.

53. 54.

Law Commission 268" Report, Chapter-VIII, Paragraph 8.1. AIR 2005 SC 2277. A case dealing with MCOCA (Maharashtra Control of Organised Crime Act,

1999).

89

90

Section 43D

Chapter VII—Bail under Special Laws and Provisions

It is in the light of this hardship that the Law Commission” observed (in relation to terrorism cases) that, “However, mere classification of an act as an act of terrorism should not result in the automatic denial of bail or reversal of the burden of proof. Denial of bail should not be used as a potential tool of manipulation to legitimizing actions of the State.

A. The Unlawful Activities (Prevention) Act, 1967 (UAPA) The UAPA, in its amended form, has come into its own as a law to counter terrorist offences after the Prevention of Terrorism Act, 2002 (POTA) was repealed under the

Prevention of Terrorism (Repeal) Act, 2004. Section 43D of the UAPA deals with bail and is reproduced hereunder.

S. 43D. Modified application of certain provisions of the Code.— (1) Notwithstanding anything contained in the Code or every offence punishable under this Act shall be deemed to offence within the meaning of clause (c) of section 2 of “cognizable case” as defined in that clause shall be construed

any other law, be a cognizable the Code, and accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in subsection (2),— (a) the references to “fifteen days’, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and (b) after the proviso, the following provisos shall be inserted, namely:—

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.”.

55. Law Commission 268" Report.

Modified application of certain provisions of the Code

Section 43D

il

(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that—

(a) the reference in sub-section (1) thereof— (i) to “the State Government” shall be construed as a reference to “the Central Government or the State Government”, (ii) to “order of the State Government” shall be construed as a reference to “order of the Central Government or the State Government, as the case may be”; and

(b) the reference in sub-section (2) thereof, to “the State Government” shall be construed as a reference to “the Central Government or the State Government, as the case may be”. (4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act. (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in sub-section (5) is in addition eu ule restrictions under the Code or any other law for the time

being in force on granting of bail. (7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing. The distinctive features of Section 43D are, 1. Police custody of a person accused under UAPA can extend up to thirty days as against the maximum of 15 days prescribed in Section 167(2)(a) of the CrPC which specifically says, the Magistrate may authorise the detention of the accused person otherwise

than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so.

O2

Section 43D

Chapter VII—Bail under Special Laws and Provisions

2. Whereas the maximum duration of custody (including police custody), during investigation, stipulated in Section 167 of the CrPC is ninety days (where offence investigated is punishable with death, imprisonment for life or imprisonment for a term not less than ten years) and sixty days (where investigation is into any other offence); UAPA provides for a uniform maximum custody period of 90 days during investigation into any offence under UAPA. 3. Even after the ninety-day period has elapsed, the Court may extend the detention, while under investigation, to 180 days, if satisfied with the report of the Public Prosecutor which specifies the reasons why the investigation has to continue beyond ninety days. 4. The Government (State or Centre) may direct that an accused in custody, under UAPA, shall not be removed from the prison in which he is confined. Thus, if a Government so directs, then the provisions of Section 267 of the CrPC (which empower a Criminal Court to order that a person, in detention on any other matter, be brought before the said Court to answer charges or to depose before it) shall not be operative. 5. Anticipatory bail will not be available to someone apprehending arrest for a UAPA offence. 6. In a bail application the public prosecutor shall have the right to be heard, and the person accused of an offence shall not be released on bail if the records show that there are reasonable grounds to believe that the accusations are prima facie true. This is a Significant

departure

from

TADA

which

was

a predecessor

of the

UAPA.

The

corresponding provision, pertaining to the satisfaction of the Court, in respect to a bail application, was set out in Sub-sections (8) and (9) of Section 20 of the TADA Act.

20m (8)

Notwithstanding anything contained in the Code, no person accused

of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. /

(9) The limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.”

Modified application of certain provisions of the Code

Section 43D

93

The two provisions under UAPA and TADA are placed hereunder for comparative reference.

po

A

.

No person accused of an offence | Provided that such accused person punishable under this Act or any rule | shall not be released on bail or on his made thereunder shall, if in custody, be |own bond if the Court, on a perusal of released on bail or on his own bond | the case diary or the report made under unless-...the court is satisfied that there | section 173 of the Code is of the are reasonable grounds for believing that |opinion that there are reasonable he is not guilty of such offence and that |grounds for believing that the he is not likely to commit any offence | accusation against such person is while on bail. prima facie true. The UAPA respects:

provision is liberal, as compared to the TADA

provision, in two

(i) Whereas the TADA provision requires the Court considering the bail application to be satisfied as to reasonable grounds that the accused person is not guilty of the offence alleged, the Court, as per the UAPA has to have reasonable grounds to believe that the accusations against the applicant are prima facie true. The TADA provision was far more unfavourable to the accused because, expectedly, the investigating agency would only place such materials before the Court as would militate against the accused establishing that he was, at first glance, not guilty. Now, under the UAPA, the accused does not have to establish his prima facie innocence and it is for the Court to satisfy itself whether the materials submitted by the investigating agency ring prima facie true. (ii) Under TADA the Court also had to satisfy itself that the accused would not commit any offence while he was out on bail. Such a sweeping phrase would, literally, render enlargement on bail improbable as how was the Court to satisfy itself that the accused would not commit any offence like,

say, a traffic violation while out on bail. Thankfully, provision does not find place in the UAPA.

this ludicrous

However, Section 21(4)(b) of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) has retained the harsher (inquisitorial) requirement for bail, earlier postulated in TADA. It reads, Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless... where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

94

Section 37

Chapter VII—Bail under Special Laws and Provisions

The MCOCA provision was upheld by the Supreme Court in Ranjit Singh Brahmajeetsing Sharma vy. State of Maharashtra and Anr’® wherein the Court held, If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence.

The constraining bail provision of MCOCA is also contained in the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) mimicking the provision in the defunct TADA viz:

“S. 37. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything Procedure, 1973 (2 of 1974),—

contained

in

the

Code

of Criminal

(a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an oppose the application for such release, and

opportunity

to

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.” It is submitted

that the phrase

“any offence

while

on

bail”

is both, a legal

absurdity and an incongruity. It violates the requirement that a person may be deprived of his personal liberty only under a fair, just and reasonable procedure laid down in law, as read into Article 21 of the Constitution by the Supreme Court in the Maneka Gandhi Case”’ and in subsequent judgments. This phrase is neither just nor fair or reasonable. It renders an accused on bail vulnerable to the vicissitudes of happenstance that could, wittingly or unwittingly, land him into some minor or trivial offence — bailable or non-cognisable — but which would nevertheless precipitate the rigours imposed in such a provision. 7. Bail, under the UAPA, shall not be available to a foreigner, who has entered the

country illegally or without authority.

56. 57..

AIR 2005 SC 2277. AIR 1978 SC 597.

Supply to the accused of copy of police report...

Section 207

95

A comprehensive and detailed judgment on bail, in the case of UAPA offence, was delivered by the Supreme Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali.°> The matter pertained to a First Information Report dated 30th May, 2017, registered by the Officer-in-charge of Police Station, NIA, Delhi, for offences punishable under Sections 120B, 121 and 121A of the Indian Penal

Code

(IPC)

and

Sections

13

(punishment

for

unlawful

activities),

16

(Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act), 18

(Punishment for conspiracy etc.), 20 (Punishment for being member of terrorist gang or organisation), 38 (Offence relating to membership of a terrorist organisation), 39 (Offence relating to support given to a terrorist organisation) and 40 (Offence of raising fund for a terrorist organisation) of the UAPA. The Special Designate Court turned down the bail application of the accused. However, the High Court on appeal, granted bail (on conditions) to the accused, on the argument that the statements of the proposed/prospective witnesses recorded under Section 161 of the CrPC did not constitute admissible evidence. Those could only be used to confront the witnesses who would subsequently appear at the trial. As to the statements by witnesses under protection, which had been made before a magistrate under Section 164 of the CrPC, the High Court noted that these were kept in a sealed cover and were presumably not seen by the Special Court. The High Court opined that, in withholding the statements of protected witnesses, from the accused, even though the Charge Sheet had been filed, transgressed the mandate of Section 207 of the CrPC, the relevant portion of which reads as under.

“S. 207. Supply to the accused of copy of police report and other documents In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(iv) the confessions and statements, if any, recorded under section |64;...” The Supreme Court, on appeal by the NIA, agreed that the basic grounds for considering a bail application remained those enunciated in the Amarmani Tripathi Case’ namely,

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; 58.

Criminal Appeal No. 578 of 2019 decided by Supreme Court on 2 April 2019.

I

(2005) SiS CO.

96

Section 207

Chapter VII—Bail under Special Laws and Provisions

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with; and; (viii) danger, of course, of justice being thwarted by grant of bail.

That said, the Supreme Court annulled the bail order of the High Court on the following grounds: “The High Court did not advert to Section 48 of the 1967 Act (UAPA), which makes it amply clear that the provisions of the Act (UAPA) shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act (UAPA) etc.

When it comes to offences punishable under special enactments, such as the 1967 Act, something more is required to be kept in mind in view of the special provisions contained in Section 43D of the 1967 Act. it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. By its very nature, the expression ‘prima facie true’ would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. In effect, this provision restricts the right to life and liberty enshrined in Article 21 of the Constitution and bypasses the need for the detention and denial of bail, under UAPA, to be a fair, just and reasonable procedure established in law... the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act (UAPA).

A priori, the exercise to be undertaken by the Court at this stage — of giving reasons for grant or non-grant of bail — is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

In the light of the above, the Supreme Court held that, ...taking into account the totality of the report made under Section 173 of the Code and the accompanying documents and the evidence/material already presented to the Court, including the redacted statements of the protected witnesses recorded under Section 164 of the Code, there are reasonable grounds to believe that the accusations made against the respondent are prima facie true.

Supply to the accused of copy of police report...

Section 207

97

Report of the Public Prosecutor Section 43D(2)(b) of the UAPA, inter alia, provides,

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days...” Clearly, therefore, if the investigating agency finds the period of ninety days inadequate for the purpose of completing its investigation, the Court may extend the period by another ninety days if it is “satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days’’. This would mean that the report of the Public Prosecutor cannot be subjective nor can it tantamount to merely forwarding or endorsing the application for extension filed by the investigating agency. The Public Prosecutor has to apply his mind and independently submit his reasoned report. This matter came up before the Supreme Court in Surendra Pundlik Gadling & Ors v. The. State of Maharashtra.’ The accused person sought bail on the grounds that the investigating agency had failed to submit the charge sheet within the prescribed period of ninety days. Also that, though the application of the period to 180 days had indeed been filed, the application did not meet the requirements whereby it was for the Public Prosecutor to indicate the progress of the investigation and adduce the specific reasons for detaining the accused beyond ninety days.

It was argued that, in this case, an application for extension of time had been filed by the Investigating Officer (IO) detailing the reasons as to why additional ninety days were needed. This application had been counter signed by the Public Prosecutor. Then again, on the very same day that the application was lodged by the IO, another application was submitted purportedly by the State of Maharashtra (through the Assistant Commissioner

of Police, Swargate Division, Pune City). A

perusal of the document suggested that it is was application under Section 43D of the said Act, for an extension for a period of 90 days, for further investigation and filing of charge sheet in the said crime. This application too had the signatures of the Public Prosecutor appended thereto. Thus, the Public Prosecutor ended up signing two applications, one by the IO and another by the State. Neither application originated from the Public Prosecutor.

It was thus argued, on behalf of the accused, that the

Public Prosecutor had not applied her mind and had mechanically appended her signatures to both applications.

60.

Criminal Appeal No. 264 of 2019 decided by Supreme Court on 13 February 2019.

98

Section 207

Chapter VII—Bail under Special Laws and Provisions

The Court, cited the case of Hitendra Vishnu Thakur v. State of Maharashtra®' to the effect that, ...the emphasis laid by this Court was on the legislature, in its wisdom, not leaving it to the IO to make an application for seeking an extension of time from the Court and, thus, requiring the investigating agency to submit itself to the scrutiny of the Public Prosecutor, in the first instance, and satisfying him about the progress of the investigation and furnishing reasons for seeking further custody of an accused. Otherwise, an accused could be kept in continued detention, during unnecessarily prolonged investigation, at the whims of the police.

...the Public Prosecutor is not a part of the investigating agency, but is an independent statutory authority and, thus, is expected to independently apply his mind to the request of the investigating agency, before submitting a report to the Court for extension of time with a view to enable the investigating agency to complete its investigation. Thus, he is not merely a post office or a forwarding agency. A Public Prosecutor may or may not agree with the reasons given by the investigating officer for seeking extension of time and may find that the investigation had not progressed in the proper manner or that there has been unnecessary, deliberate or avoidable delay in completing the investigation. In that event, he may not submit any report to the Court to seek extension of time... ...lt is not merely a question of the form in which the request for extension is to be made, but one of substance, as it is to assist the designated court to independenily decide whether or not to grant such extension. It cannot be a mere presentation and forwarding of the request of the IO to the Court. The mere labelling of the document as a report or an application was stated to be not of much consequence, but what was held to be of consequence was that there could not be a mere reproduction of the application or request of the IO by the Public Prosecutor in his report, without demonstration of the application of his mind and a recording of his own satisfaction.”

However, in the Surendra Pundlik Gadling Case,” the Supreme Court found that though both documents (application by the IO and application by the State) had been signed at the end by the Public Prosecutor [rather than the Public Prosecutor independently originating the Report as required in Section 43D(2)(b) of the UAPA], the document received for the State, contained the grounds for seeking a further ninety days had been advanced in extenso (in detail) and this would go to show that there had been an application of mind, in the case of the request on behalf of the State, by the Public Prosecutor. Hence the endorsement of the application on behalf of the State would have entailed the required scrutiny by the Public Prosecutor. Therefore, the finding was that the Public Prosecutor has applied her mind “in substance” to the application on behalf of the State, the Supreme Court. 61. 62.

AIR 1994 SC 2623. Criminal Appeal No. 264 of 2019 decided by Supreme Court on 13 February 2019.

Offences to be cognizable and non-bailable

Section 45

99

The Supreme Court judgment in the Surendra Pundlik Gadling Case°’ would, therefore, indicate, that even if the Public Prosecutor were to simply sign an application furnished by the State seeking an extension in time for investigation under UAPA, it would still be regarded as “the report of the Public Prosecutor” provided it could be shown that the Public Prosecutor, regardless of the formal procedure prescribed in the UAPA, had applied his mind to the document in substance. It could become very burdensome for the Court, each time the Public Prosecutor countersigns or endorses an application (rather than submitting his independent Report) whether or not the Public Prosecutor had indeed applied his mind “in substance” to the application to which he has appended his signatures at the end.

B. The Prevention of Money Laundering Act, 2002 (PMLA) Section 45 of the PMLA which deals with bail under the Act, has undergone radical transformation

due

to amendments

made

by virtue

of the Finance

Act, 2018s

However, in order to understand the import of the amendments, it would be necessary to study Section 45 as it existed prior to the said date. The pre Amendment Section 45 of the PMLA read as follows.

S. 45. Offences to be cognizable and non-bailable.— (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs:

Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made hi

(i) the Director; or 63. Ibid. 64.

Act

13 of 2018 notified in The Gazette of India (Extraordinary), 29.03.2018.

Part Il — Section

| dated

100

Chapter VII—Bail under Special Laws and Provisions

Section 45

(ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. (1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. In so far as sub-clauses (i) and (ii) of Clause (1) are concerned, they mimic the

provisions in the MCOCA and the NDPS Act, namely (a) the public prosecutor must be given an opportunity to oppose the bail application prior to any order for release and (b) the Court should be satisfied that there are reasonable grounds to believe that the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail. As in the case of MCOCA,

the provisions of Sub-section (1) (ii) places the burden

squarely on the bail applicant to establish the “reasonable grounds” for the Court to believe that “he is not guilty of such offence”. This imposes a virtually impossible requirement on the accused person because he has to marshal his defence and evidence of his innocence even before the charges have been framed and/ or trial commenced. How else can he be expected to reassure the court of there being reasonable grounds to believe that he is not guilty of the offence alleged against him. Assuming that the bail applicant does succeed in establishing reasonable grounds for the Court to be satisfied that he is not guilty of the offence alleged, he would be hard put to convince the Court that he was not likely to commit “any offence” while on bail. Taken at their literal meaning, the words “any offence” would mean that the bail applicant should be able to carry conviction with the Court that, while out on bail, he would

not commit

even

the most

trivial of infractions

of the law like

jaywalking, littering, having his cheque bounced, jumping a red light or smoking in a public place. Going by the letter of the law, the term “any offence” includes, in its sweep, not only offences under the IPC but any offence (however minor it may be) under the hundreds of national and local laws legislated at the Central and State level from time to time. Another controversial

aspect of Section 45, as it stood before the Amendment,

was that the onerous bail provisions under PMLA applied not committing an offence under PMLA but to anybody whe had offence, punishable for a term exceeding three years, under Schedule to the PMLA. A table showing the various statutes placed

to any person committed an Part A of the under Part A of

Offences to be cognizable and non-bailable

Section 45

101

the Schedule to the PMLA along with the number of offences under each Act — all of which, when coupled with a charge under PMLA — invoked the onerous burden of Section 45 of the PMLA, on bail applicants, is given below.

—

|

_offencesin | — __ the Statute

3. | included in PARTA of | mention in

No. | The ScheduleofPMLA | PARTA

/

|

-

Comments

i

Indian Penal Code (IPC)

43

Offences include criminal conspiracy, counterfeiting, murder and culpable homicide (including attempts) extortion, robbery, dacoity, being a fence, cheating and forgery of various kinds.

2.

NDPS Act

13

Planting and cultivation of poppy, cannabis, illegal trade

al

in

drugs

financing traffic.

4.

and __ narcotics,

and

abetting

drug

Explosive Substances Act

3

Causing or attempting explosion or making explosives in suspicious circumstances.

UAPA

it)

Membership of unlawful association, terrorist act, harbouring,

raising funds organisation.

os

for

terrorist

Arms Act

Having or dealing in unlicensed arms or ammunition or prohibited weapons, their use in violation of licence terms and attempts to do so.

Wildlife (Protection) Act

Hunting wild animals, uprooting specified plants, dealing in /acquisition of trophies of prohibited animals.

Immoral Traffic (Prevention) Act

4

Procuring, seducing, soliciting, detaining for prostitution.

102

Chapter VII—Bail under Special Laws and Provisions

Section 45

Cor Corrupt and/or _ illegal gratification taken by public servant and abetment thereof. Offences by companies.

Export of treasures.

10. | Antiquities Treasures Act

SEBI Act

antiquities

and

Insider Trading, manipulation. Duty evasion etc.

. |Bonded

Labour

System

(Abolition) Act

Enforcing bonded abetment thereof.

labour,

Child Labour (Prohibition and Regulation) Act

Child employment vention of the Act.

Transplantation of Human Organs Act

Unauthorised

Juvenile Justice (Care and Protection of Children) Act

Cruelty to and/ or exploitation of a juvenile.

Emigration Act

Offences under the Act.

in contra-

removal

and/ or

dealing in human organs.

Passports Act

Foreigners Act

Using forged abetment etc.

Copyright Act

Infringement of copyright. 5

Trade Marks Act

Information Act

Technology

passport,

Applying and/ or selling goods with false trade marks, abetBreach of confidentiality privacy.

and

Biological Diversity Act Protection Varieties

Rights Act

of and

Farmers’

Applying and selling varieties with false denomination.

Offence of Money-Laundering

Section 3

103

_ Number of |

Name Ss.

offencesin

|

the Statute

of the Statute 7 finding

‘incuded in | PART A of mention in

No. | The Schedule ofPMLA Environment Act Water

Protection

(prevention

Fo

| PART A

and

Comments Discharging harmful pollutants, non-compliance with procedural safeguards. Pollution of water, stream etc.

Control of Pollution) Act

Air (prevention and Control of Pollution) Act

Non — compliance’ provisions.

with

Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act.

Offences against the ship and facilities.

Thus, more than 140 offences covered by 30 different statutes fell under the mischief of Part A of the Schedule to the PMLA whereby, once attached with a PMLA offence, bail would become palpably difficult to obtain whereas, standing alone by themselves,

these offences

did not attract the harsher,

stricter and more

demanding stipulations for bail postulated in Section 45 of the PMLA. This anomalous and legally untenable situation was addressed by the Supreme Court in Nikesh Tarachand Shah v. Union of India & Anr.© The Court pointed out that the PMLA, by itself, has just one offence, namely Section 3 of the PMLA then read (prior to the 2018 Amendment) as under.

which

Section 3. Offence of Money-Laundering.— Offence of money-laundering—Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected I[proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. The Court analysed Section 45 of the PMLA in the context of Article 14 of the Indian Constitution which establishes equality before the law as a Fundamental Right.

65.

(2018) 145 SCL 96.

104

Section 3

Chapter VII—Bail under Special Laws and Provisions

Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Judgments, over the course of the years have recognised that certain restrictions, on the right to equality, can be imposed under both, substantive and procedural law. However, the metes and bounds for such restrictions were delineated by the Supreme Court in State of Bombay and Anr v. F.N. Balsara® as follows, While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.

Applying this test of reasonableness to Section 45 of the PMLA, Supreme Court in the Nikesh Tarachand Shah Case®’ postulated some hypothetical situations where obvious incongruities and anomalies came to the fore in the application of Section 45 where bail was not granted or denied on the basis of any offence under Section 3 of the PMLA but was a function of any of the 142 offences under 30 different statutes that constituted Part A of the Schedule to the PMLA. The first illustration was when the charge was only that of money laundering and nothing else because the predicate offence contained in Part A of the Schedule had already been charged, tried and disposed of (conviction or acquittal) by the trial Court. Thereafter, the person concerned may be discovered as having laundered the proceeds from the Scheduled offence and, upon being arrested under PMLA, he may apply for bail. Such a person would no longer be subject to the stringent provisions of Section 45 because he had already been tried and acquitted/ convicted of the Scheduled offence. Therefore, he could now seek bail under Section 439 of the CrPC

without having to submit to the rigours of Section 45 of the PMLA. The second illustration was when the accused was charged with the offence of money laundering — under Section 3 of the PMLA - but the predicate offence featured in Part B of the Schedule (as against PART

A). PART B of the Schedule

mentions just one offence under the “Offence Under the Customs Act, 1962 namely “False declaration, false documents etc.”. In this case, again, the rigours of Section 45 of the PMLA would not apply and the accused would be at liberty to apply for bail under Section 439 of the CrPC. The third illustration was when the predicate offence to the charge of money laundering (Section 3 of the PMLA) was listed in Part A of the Schedule but was of

the kind that attracted a maximum punishment of three years or less. Section 45(2) of the PMLA says,

66. 67.

(1951) SCR 682. (2018) 145 SCL 96.

Offence of Money-Laundering

Section 3

105

...10 person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless....

Therefore, such an accused would not be bound by the twin conditions for bail postulated in Section 45 of the PMLA namely (i) an opportunity to the Public Prosecutor to oppose the release and (ii) the Court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Accordingly, the accused, in such an instance, could move for bail under Section 439 of the CrPC. The

fourth

illustration

would

be one

where

the accused,

charged

with money

laundering offence (under Section 3 of the PMLA) was alleged to have committed the predicate offence listed in Part A of the Schedule inviting punishment by way of imprisonment exceeding three years. In this case, the Special Court meant to try money laundering cases would also try the predicate offence (listed in Part A of the Schedule) at the same trial. This has been provided in Section 43(2) of the PMLA which reads,

S. 43(2). While trying an offence under this Act, a Special Court shall also try an offence... with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. In this case, the hardship of the twin conditions for bail, contained in Section 45 of the PMLA, would be visited on the accused, and it would be that much harder for the accused to secure bail. The

above

four

illustrations,

described

by the

Supreme

Court

in the Nikesh

Tarachand Shah Case®* graphically bring out the inequalities, foisted by the PMLA, on the same class of accused i.e. those charged with the offence of money laundering. To cite the Court,

The likelihood of Mr. X being enlarged on bail in the first three illustrations is far greater than in the fourth illustration, dependant only upon the circumstance that Mr. X is being prosecuted for a Schedule A offence which has imprisonment for over 3 years, a circumstance which has no nexus with the grant of bail for the offence of money laundering. The mere circumstance that the offence of money laundering is being tried with the Schedule A offence cannot naturally lead to the grant or denial of bail [by applying Section 45(1)] for the offence of money laundering and the predicate offence.

The anomalous nature of Section 45 of the PMLA was further detailed by the Court by citing an example where one X may commit an offence listed in Part A of the Schedule and receive some money thereby. That money is ultimately traced to one Y who holds it out as untainted. Now Y is charged for money laundering under the PMLA as also with the predicate offence under Part A of the Schedule. As the 68. Lbid.

106

Section 3

Chapter VII—Bail under Special Laws and Provisions

trial for both offences is to be held jointly in the same Special Court, X is also tried along with Y and though X had no role in the money laundering, he is, nevertheless, constrained by the twin conditions of bail contained in Section 45 of the PMLA and can no longer seek bail under Section 439 of the CrPC. In the light of the above

and other examples,

the Supreme

Court struck down

Section 45 of the PMLA as being ultra vires of the Constitution saying, All these examples show that manifestly arbitrary discriminatory and unjust results would arise on the application or non-application of Section 45, and would directly violate Articles 14 and 21, inasmuch as the procedure for bail would become harsh, burdensome, wrongful and discriminatory depending upon whether a person is being tried for an offence which also happens to be an offence under Part A of the Schedule, or an offence under Part A of the Schedule together with an offence under the 2002 Act. Obviously, the grant of bail would depend upon a circumstance which has nothing to do with the offence of money laundering. On this ground alone, Section 45 would have to be struck down as being manifestly arbitrary and providing a procedure which is not fair or just and would, thus, violate both Articles 14 and 21 of the Constitution.

In the wake of the Supreme Court striking down the validity of Section 45 of the PMLA, this Section was amended by The Finance Act, 2018 as follows:

Section of Provision prior to the 2018 amendment

Provision subsequent to the —

the PMLA

|

_

2018amendment

Section 45(1)

Notwithstanding contained in the

anything | Notwithstanding anything Code of contained in the Code of Criminal Procedure, 1973 (2 of Criminal Procedure, 1973 (2 of 1974), no person accused of an 1974), no person under this Act offence punishable for a term shall be released on bail or on his of imprisonment of more than own bond unless ... three years under Part A of the Schedule shall be released on bail or on his own bond unless ...

Section 45(1)

Provided that a person who is | Provided that a person who is under the age of sixteen years or | under the age of sixteen years or

Proviso

is a woman

or is sick or infirm, | is a woman

may be released on bail, if the special court so directs -

=>

or is sick or infirm,

or is accused either on his own or along with other co-accused of money laundering a sum of less than one crore rupees may be released on bail, if the special court so directs .

Offences to be cognizable and non-bailable

Section 37

107

C. Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985

S. 37. Offences to be cognizable and non-bailable.— 69[(1) Notwithstanding anything Procedure, 1973 (2 of 1974),—

contained

in the

Code

of Criminal

(a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for 3 7[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity]* shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an oppose the application for such release, and

opportunity

to

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.] The odious nature of the stipulations that (i) the Court be satisfied that there are

reasonable grounds for believing that the accused is not guilty and (ii) that the accused is not likely to commit any offence while on bail were examined, in detail, by the High Court of Punjab and Haryana in Ankush Kumar @ Sonu v. State of Punjab."' As the accused, in this case, was allegedly found in possession of 300 grams of intoxicating powder (above the Commercial Quantity threshold), bail was denied to him, under Section 37 of the NDPS Act, by the Sessions Court. The accused then applied to the High Court for bail under Section 439 of the CrPC. In considering the appeal, the High Court adverted to the “Object” of the NDPS Act, which reads as under: 69.

Subs. by Act 2 of 1989, s. 12, for section 37 (w.e.f. 29-5-1989).

70.

Subs. by Act 9 of 2001, s. 17, for “a term of imprisonment of five years or more under this Act”

(w.e.f. 2-10-2001). * Section 19: embezzlement of opium by cultivator; Section 24: external dealings in narcotic drugs and psychotropic substances in violation of restrictions thereon; Section 27A: financing illicit traffic and harbouring offenders; “Commercial Quantity”: any quantity of narcotic drugs and psychotropic substances in excess of quantity specified by Central Government by notification in the Official Gazette. 71. CRM-M-30643 of 2018 (O&M) decided by Punjab & Haryana High Court on 9 August 2018.

Section 37

108

Chapter VII—Bail under Special Laws and Provisions

An Act to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances, to provide for the forfeiture of property derived from, or used in, illicit traffic in narcotic drugs and psychotropic substances, to implement the provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith. The High Court then went on to cite the Supreme Court’s observations in R.C. Cooper v. Union of India” to the effect that, ...it is not the ‘object’ of the state action or the ‘form' thereof, which is material, it is the ‘direct effect’ upon the right of the individual which shall be the determining factor for judging the constitutional validity of the state action.

In effect, the High Court was of the view that however exalted the ‘object’ of an Act may appear or however express be the ‘form’ in which it is worded, it still would have to be tried upon the touchstone of its ‘direct effect’ on right to personal liberty of the accused guaranteed in the Constitution. The

High Court buttressed

this argument

Supreme Court in Indian Express Newspapers India” viz,

by citing the observations (Bombay)

of the

(P) Limited v. Union

of

The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even if the end is desirable and permissible, the means employed must not transgress the limits laid down by the Constitution; if they directly impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal. In the context of the direct effect of a statute (or its provisions) upon an individual,

notwithstanding howsoever imposing and lofty the object and form of an Act, the High Court alluded to such a statute betraying a manifest arbitrariness, not in consonance with the prescriptions of personal liberty, that could not be defended in the garb of being reasonable restrictions on the personal liberty of an individual. This view had been definitively enunciated by the Supreme Court in Shayara Bano vy. Union of India” wherein the Court had stated, Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate,

72. 73. 74,

AIR 1970 SC 564. (1985) 1 SCC 641. 2017 (5) RCR (Criminal) 878.

Offences to be cognizable and non-bailable

Section 37

109

such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.

The High Court” then spelled out the anomalies in relation to bail under the NDPS Act which render the restrictions on bail, under Section 37 of the NDPS Act, untenable and which tantamounted to manifest arbitrariness and failed to meet the requirements of a just, fair and reasonable procedure under law.

‘By way of the first anomaly, the High Court pointed out that, as per Section 36A(c) of the NDPS Act:

The Special Court may exercise, in relation to the person forwarded to it under Clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that Section. The High Court” quoted the Supreme Court in Union of India v. Thamisharasi and Ors’’ wherein it had been decided that until such time as the investigating agency submits the charge sheet (under the NDPS Act) to the designated Special Court, only the provisions of Section 36(A)(c) of the Act would apply. Thereby, the accused person would have the right to seek anticipatory bail, under Section 438 of the CrPC and would also be eligible for default bail, under Section 167(2) of the CrPC if the investigations were not completed within 60 days. The High Court observed that this could engender an anomalous situation when one accused under the NDPS Act could secure bail either before the charge sheet was submitted or if the investigation was not completed within sixty days. On the other hand, another accused, charged with exactly the same offence under the NDPS

bail, once

the charge

sheet

was

filed, because

he could

not

Act could be denied

meet

the exacting

requirements for bail postulated in Section 37 of the NDPS Act. The High Court referred to the condition imposed in Section 37(1)(b)(ii) to the effect that, in the process of considering bail under Section 37, the Court “should be

satisfied that there are reasonable grounds for believing that he is not guilty of such an offence...” Commenting on this restriction, the High Court” said, This language also creates an inconsistency in itself, because if a Court granting bail records a satisfaction that there are reasonable grounds for believing that the petitioner is ‘not guilty’ of such an offence then this may, 75.

Ankush Kumar @ Sonu v. State Haryana High Court on 9 August 76. Ankush Kumar @ Sonu y. State Haryana High Court on 9 August 77. 1995(2) RCR (Criminal) 531. 78. Ankush Kumar @ Sonu vy. State Haryana High Court on 9 August

of Punjab, CRM-M-30643 2018. of Punjab, CRM-M-30643 2018.

of 2018 (O&M) decided by Punjab &

of Punjab, CRM-M-30643 2018.

of 2018 (O&M) decided by Punjab &

of 2018 (O&M) decided by Punjab &

110

Section 37

Chapter VII—Bail under Special Laws and Provisions

at least to some extent, foreclose the option of the trial Court for holding that the petitioner ‘is guilty’ of such an offence although this may or may not be the intention of the legislature ... What is required to be done after a full-fledged trial of an accused cannot be sought to be considered and recorded at the initial stage of trial. If a language of a Statute does not satisfy the test of constitutional validity then that language cannot be retained on the statute book at all, except at the cost of creating avenues for its discriminatory use. If by leaning towards the presumption of the validity of a Statute, a particular language used in Statute is upheld, by reading it in a language different than the language actually used in the Statute, so as to assign it a meaning within the scope of constitutional validity, then it can create a dichetomy or multifariousness in its operation. In such situation, it is bound to be used in different manners by different Courts. One Court can apply it in a read down language while the other Court may insist upon the actual language used in the Statute.

The second anomaly that the High Court pointed out was that the choice lay with the Public Prosecutor to oppose a bail application under Section 37 of the NDPS Act (“where the Public Prosecutor opposes the application’). Hypothetically, the banned substance, seized from an accused, may be of the magnitude of a “commercial! quantity” and yet, the Public Prosecutor, in his discretion, may decide not to oppose the bail application. Not only did this provision devolve a quasi-judicial power on the Public Prosecutor but also, there was no way for the Court to determine whether the decision, of the Public Prosecutor not to oppose, was proper or ill informed. The third anomaly identified by the High Court lay in the requirement, postulated in Section 37(1)(b)(i) of the NDPA

Act that the designated Court should also have

reasonable grounds to believe that the accused “is not likely to commit any offence while on bail”. In reference to this admittedly peculiar requirement, the High Court” commented, ...this language is also arbitrary on that count because it requires the Court to satisfy itself that the petitioner is not likely to commit any offence on the earth while on bail. Had this Section restricted the requirement of the satisfaction of the Court that the accused is not likely to commit any offence under NDPS Act, then probably it could have some rationale behind it. However, since the language of the second part has been thrown open the entire criminal arena to be considered by the Court before grant of bail under NDPS Act, therefore, this language does not have even the nexus to the object to be achieved by NDPS Act.” Moreover, a Court of law would always be well advised to keep in mind that ‘prophesy is not thy domain’. No Court, howsoever trained, can be “reasonably” satisfied that a person would not commit any offence, may be even under NDPS Act, after coming out of the custody. 79. Ankush Kumar @ Sonu v. State of Punjab, CRM-M-30643 Haryana High Court on 9 August 2018.

of 2018 (O&M) decided by Punjab &

Application of Code of Criminal Procedure, 1973...

Section 31

111

Hence, the second part of Section 37(i)(b)(ii) requires a humanly impossible

act on the part of the Court. Since the second part of Section 37 (1)(b)(ii) requires a satisfaction of the Court, which is impossible by extension of any human logic, therefore, this is an irrational requirement.

The High Court opined that though the Constitutional validity of the odious parts of Section 37 of the NDPS Act would be for Constitutional Courts to decide, “it may not be appropriate to tell the petitioner to wait in jail till the constitutional validity is formally considered and decided.”

D. Protection of Children from Sexual Offences (POCSO) Act, 2012 There are no separate provisions relating to bail in respect of offences committed under the POCSO Act. The aspect of bail is included in Section 31 of the Act.

S. 31. Application of Code of Criminal proceedings before a Special Court.—

Procedure,

1973

to

Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. The difficulty arises in ascertaining which offences under the POCSO Act are cognisable and which non-cognisable. Because, if there are any non-cognisable POCSO Act offences, these would be inherently bailable and thus bail should be a matter of right, in such cases, under Section 436 of the CrPC.

This issue was addressed by the High Court of Delhi in Santosh Kumar Mandal v. State.*° The Court construed Section 19 of the POCSO Act to mean that all offences under POCSO Act are cognisable and non-bailable offences.

19. Reporting of offences.— (1) Notwithstanding anything contained inthe Codeof Criminal Procedure, 1973, any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information (fo) ——

(a) the Special Juvenile Police Unit; or

(b) the local police.

80.

Bail Appln. No. 1763/2016 decided by the Delhi High Court on 28 September 2018.

Section 31

It2

Chapter VII—Bail under Special Laws and Provisions

(2) Every report given under sub-section (1) shall be— ascribed an entry number and recorded in writing; (a) be read over to the informant;

(b) shall be entered in a book to be kept by the Police Unit. (3) Where the report under sub-section (1) is given by a child, the same shall be recorded under sub-section (2) in a simple language so that the chiid understands contents being recorded.

(4)In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same. (5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and

protection,

then, it shall, after recording the reasons

in writing, make

immediate arrangement to give him such care and protection including admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report, as may be prescribed.

(6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard. (7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1). The

inference

that all offences,

under

the POCSO

Act,

are

cognisable,

was

apparently drawn by the Court, from the language of Section 19 which makes it incumbent upon a “Special Juvenile Police Unit” or “the local police” to record, in writing, the report of any offence under the Act be it something that actually occurred or is apprehended. Every such “report” must be “ascribed an entry number”; it should be “read over to the informant” and “be entered in a book to be kept by the Police Unit”. In effect, the procedure prescribed in Section 19 significantly emulates the procedure for recording and reporting “information in cognisable cases” contained in Section 154 of the CrPC. The conclusion reached by the High Court of Delhi, to the effect, that all offences under the POCSO Act are not only cognisable but were also non-bailable, may be attributed to the fact that almost all offences listed in the POCSO Act attract punishment of three years or a longer duration including The Protection of Children from Sexual Offences (Amendment) Act, 2019." 81.

Act 25 of 2019 dated 16 August 2019.

Application of Code of Criminal Procedure, 1973...

2 Section,

.

4(1). Punishment for

penetrative sexual assault.

4(2). Punishment for

penetrative sexual assault on a child below sixteen years of age.

Punishment

Section 31

LI

©

Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. Whoever commits penetrative sexual assault on a child below sixteen years of age shall be punished with imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine. Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment

6(1). Punishment for

aggravated penetrative sexual assault.

for a term which shall not be less than twenty years, but which may extend to imprisonment for life,

which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death. 8. Punishment for sexual assault.

Whoever, commits sexual assault, shall be punished

10. Punishment for aggra-

Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

vated sexual assault.

14(1).

Punishment

using child for graphic purposes.

for

porno-

with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.

Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine, and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.

14(2). Punishment for | Whoever using a child or children for pornographic using child for | purposes under sub-section (1), commits an offence pornographic purposes | referred to in section 3 or section 5 or section 7 or

114

Chapter VII—Bail under Special Laws and Provisions

Section 31

oe Dl

Section andVdlrectly aarieipaiie in pornographic acts.

section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under section 4, section 6, section 8

and section 10, respectively, in addition punishment provided in sub-section (1). 15(3).

Punishment

for

storage or possession of child pornographic material, in any, form, for commercial purpose and subsequent convictions.

to the

Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both, and

in the event of second or with imprisonment of either not be less than five years seven years and shall also be

subsequent conviction, description which shall which may extend to liable to fine.

However, though the conclusion that offences under the POCSO Act are both cognisable and non-bailable, is by and large borne out; there are two other sections where the punishment prescribed is less than three years namely Section 12 and Section 15 (1) & (2) besides the abetment of any offence covered by these two sections. : Sectio

12. Punishment for sexual |Whoever, commits sexual harassment upon a child harassment. shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. 15(1). Punishment for | Any person, who stores or possesses pornographic storage of pornographic | material in any form involving a child, but fails to material involving child. delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees, and in the event of second or subsequent offence, with fine which shall not be less than ten

thousand rupees. 15(2). Punishment for storing or possessing child pornographic material for transmitting, propagating, displaying or distributing.

Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or

Presumption as to certain offences.—

Section

Section 29

115

Punishment for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.

17. Punishment ment

for abet- |Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence.

18. Punishment for attempt |Whoever attempts to commit any to commit an offence punishable under this Act or to cause

offence such an

offence to be committed, and in such attempt, does

any act towards the shall be punished description provided which may extend to

commission of the offence, with imprisonment of any for the offence, for a term one-half of the imprisonment

for life or, as the case

may

be, one-half of the

longest term of imprisonment provided offence or with fine or with both.

for that

Punishments for offences under Sections 12, 15(1) and 15(2) attract imprisonment for three years or less. Similarly, the punishment for abetment of an offence covered by Section 12 or 15 will also be three years or less whereas punishment for an attempt to commit an offence under either of these Sections (12 or 15) would attract a maximum imprisonment for just one and a half years.

Going by the First Schedule (Classification of Offences) to the Code of Criminal Procedure, it would be observed that the bulk of the offences, under the Indian Penal

Code (IPC) attracting imprisonment of three years or less, are categorised as bailable offences. Therefore, the judgment of the High Court of Delhi, to the effect that all offences,

under the POCSO Act, are both cognisable and non-bailable may be in need of judicial re-appraisal. The impact of Section 29 of the POCSO Act on bail applications Section 29 of the POCSO Act places the onus of proof on the accused in regard to offences under certain sections of the Act.

S. 29. Presumption as to certain offences.— Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved

116

Section 29

Chapter VII—Bail under Special Laws and Provisions

The direct consequence of Section 29 is that any accused person charged with “Penetrative Sexual Assault” (Section 3); “Aggravated Penetrative Sexual Assault” (Section 5); “Sexual Assault” (Section 7) and “Aggravated Sexual Assault” (Section 9) or either abetting or attempting any of these offences shall be presumed, by the Court, to be guilty unless the accused persons has the resources and access to evidence (usually the jurisdiction of the investigating agency) to prove that he is innocent.

What effect does such an involuted proposition have on the accused person’s prospects of securing bail? Going by the words and the logic of Section 29, he would have a very scant chance, if any, of success in his bail application. A person accused of the offences contained therein would have to be regarded as prima facie guilty regardless of the material, if any, submitted by the prosecution at the time of the hearing of the bail application. By simply prosecuting (not proving or even providing any material to that effect) an accused person for the stipulated offences, the prosecution would have satisfied the first three conditions specified in the Amarmani Tripathi Case** to establish: (i) that there is prima facie or reasonable ground to believe that the accused had committed the offence (such being presumed in terms of Section 29 of the POCSO Act) (ii) the nature and gravity of the charge; (iii) the severity of the punishment in the event of conviction.

Fortunately, the rigours of Section 29 of the POCSO Act were tempered, to a degree, by the High Court of Kerala in Joy V.S v. State of Kerala.’ The High Court observed that the provisions of Section 29 were not sacrosanct and would have to be applied in the light of incongruities and anomalies that may be evident from the material on record. The Court said, However, the statutory presumption under Section 29 of the Act does not mean that the prosecution version has to be accepted as gospel truth in every case. The presumption does not mean that the Court cannot take into consideration the special features of a particular case. Patent absurdities or inherent infirmities or improbabilities in the prosecution version may lead to an irresistible inference of falsehood in the prosecution case. The presumption would come into play only when the prosecution is able to bring on record facts that would form the foundation for the presumption. Otherwise, all that the prosecution would be required to do is to raise some allegations against the accused and to claim that the case projected by it is true. The courts must be on guard to see that the application of the presumption, without adverting to essential facts, shall not lead to any injustice. The presumption under Section 29 is not absolute. The statutory presumption would get activated or triggered only if the prosecution proves the essential basic facts.

82. 83.

(2005) 8 SCC 21. 2019 SCC OnLine Ker 783.

Bail to a person who is apparently a child alleged...

Section 12

[47

E. Juvenile Justice (Care and Protection of Children) Act, 2015 The Juvenile Justice (Care and Protection of Children) Act (JJCPCA)

is unique in

that it applies only to such an accused who is a child or juvenile not having attained 18 years of age as on the date of committing an alleged offence. The power to try a juvenile vests in a body called the Juvenile Justice Board

or, if the Board,

after

preliminary assessment, passes an order that there is a need for trial of the said child as an adult, then the Board may order transfer of the trial of the case to the Children’s Court having jurisdiction to try such offences.

The provision for bail of a juvenile apprehended for being “in conflict with law” (the JJCPCA uses this term rather than the usual terminology of the person apprehended “being accused of a — cognisable — offence’’) is contained in Section 12 of the Act.

S. 12. Bail to a person who is apparently a child alleged to be in conflict with law |. When any person, who is apparently a child and is alleged to have committed a bailable or non-bailable offence, is apprehended or detained by the police or appears or brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person: Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. 2. When such person having been apprehended is not released on bail under subsection (1) by the officer-in-charge of the police station, such officer shall cause the person to be kept only in an observation home in such manner as may be prescribed until the person can be brought before a Board. 3. When such person is not released on bail under sub-section (1) by the Board, it shall make an order sending him to an observation home or a place of safety, as the case may be, for such period during the pendency of the inquiry regarding the person, as may be specified in the order. 4. When a child in conflict with law is unable to fulfil the conditions of bail

order within seven

days of the bail order, such child shall be produced

before the Board for modification of the conditions of bail.

118

Section 12

Chapter VII—Bail under Special Laws and Provisions

As would be seen, there is a major non-obstante mandate in Sub-section (1) of Section 12 namely “notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force” any person, who is apparently a child, shall have to be released on bail regardless of whether he has committed a bailable or non-bailable offence. Bai! shall have to be allowed to this person, who is apparently a child, by the police which apprehends or detains him or by the Board before which the said juvenile appears. Thus, there is no application, under the JICPCA of Chapter XXXIII of the Code of Criminal Procedure which deals with “Provisions as to Bail and Bonds”. The only statute that governs bail to a juvenile is Section 12 of the JJCPCA.

As to who is “apparently” a child, this is obviously a matter of the subjective satisfaction of the police officer or the Board depending upon the appearance presented and the impression given by the person apprehended. Obviously, questions can arise, after an apprehension, that the person detained was actually a child or, on

the contrary, that he was not a child. These questions cannot be answered at the time of the apprehension of the person and the application of Section 12 shall depend purely on the subjective judgment of the police or the Board when the person is detained (by the police) or first appears (before the Board). However, there is a subsequent mechanism, under Section 94 the Act, whereby if the Board has “reasonable grounds for doubt” regarding the person brought before it being a child or otherwise, may seek evidence of age by way of: (i) the date

of birth certificate

from

the school,

or the matriculation

or

equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (11) above, age shall be determined by an ossification test or any other latest medical age determination test

conducted on the orders of the Committee or the Board. Grounds for Denial of Bail under Section 12 of the Act

As would be seen from the proviso to Sub-section (1) of Section 12 above:

Provided that such person shall not be so released if there appears reasonable grounds for believing that the release is likely to bring that person into association with any known criminal or expose the said person to moral, physical or psychological danger or the person’s release would defeat the ends of justice, and the Board shall record the reasons for denying the bail and circumstances that led to such a decision. Three reasons have been postulated for not releasing a juvenile on bail, subject to there being reasonable grounds to believe in them, namely:

Appeals

Section 101

119

(1) The release is likely to bring that person into association with any known criminal; (2) Expose the said person to moral, physical or psychological danger;

(3) Person’s release would defeat the ends of justice. The question which arises here is that can the denial of bail be solely on the ground (3) that it would “defeat the ends of justice” or does this ground have to be read ejusdem generis i.e. in tandem and of a likeness with the foregoing grounds (1) and (2). In brief, can bail be denied on the ground of defeating the end of justice alone or would it have to be a consequence of the possibility that the juvenile could be brought into association with any known criminal or that the juvenile could be exposed to moral, physical or psychological danger? This question was addressed by the Allahabad High Court in Raju @ Ashish v. State of U.P. & Anr. ** The Court observed, It seems thus that the suggestion...that bail to a juvenile or more properly called a child in conflict with law can be denied under the last ground of the proviso to Section 12 ejusdem generis with the first two and not with reference to the gravity of the offence, does not appear to be tenable. The gravity of the offence is certainly relevant though not decisive. It is this relevance amongst other factors where gravity of the offence committed works and serves as a guide to grant or refuse bail in conjunction with other relevant factors to refuse bail on the last ground mentioned in the proviso to Section 12 (1) of the Act, that is to say, on ground that release would ‘defeat the ends of justice’. Going by the aforesaid principle it cannot be said that bail to a juvenile can be denied on the first two grounds mentioned in the proviso alone or that the 3rd ground that speaks about the result of release being to defeat the ends of justice would have no reference to the nature and gravity of the offence. Its impact on the society certainly deserves some consideration of the prosecution case prima facie. Of course, other facts such as specific need for supervision or intervention or circumstances brought out in the social investigation report and past conduct of the child would also be relevant.

Appeal against an Order by the Board pertaining to Bail Section 101 of the JJCPCA provides the framework for appeal against an Order by the Juvenile Justice Board (including an Order with respect to bail) as follows,

S. 101. Appeals |. Subject to the provisions of this Act, any person aggrieved by an order made by the Committee or the Board under this Act may, within thirty days from the date of such order, prefer an appeal to the Children’s Court, except 84.

Criminal Revision No. 2492 of 2017 decided by High Court of Allahabad on 3 July 2018.

120

Section 101

Chapter VII—Bail under Special Laws and Provisions

for decisions by the Committee related to Foster Care and Sponsorship After Care for which the appeal shall lie with the District Magistrate: Provided that the Court of Sessions, or the District Magistrate, as the case may be, may entertain the appeal after the expiry of the said period of thirty days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time and such appeal shall be decided within a period of thirty days. 2. An appeal shall lie against an order of the Board passed after making the preliminary assessment into a heinous offence under section |5 of the Act, before the Court of Sessions and the Court may, while deciding the appeal, take the assistance of experienced psychologists and medical specialists other than those whose assistance has been obtained by the Board in passing the order under the said section. 3. No appeal shall lie from,— (a) any order of acquittal made by the Board in respect of a child alleged to have committed an offence other than the heinous offence by a child who has completed or is above the age of sixteen years; or (b) any order made by a Committee in respect of finding that a person is not a child in need of care and protection. 4. No second appeal shall lie from any order of the Court of Session, passed in appeal under this section. 5. Any person aggrieved by an order of the Children’s Court may file an appeal before the High Court in accordance with the procedure specified in the Code of Criminal Procedure, 1973. It is seen, from Section 101 of the Act that, inter alia, an appeal against denial of bail by the Juvenile Justice Board, can be preferred, within 30 days of such an order before the designated Children’s Court; albeit if the appeal is filed beyond 30 days, it may be entertained by the Sessions Court if satistied that there was sufficient cause for the delay. However, if the Sessions Court decides, in any manner, on the delayed appeal, there would be no second appeal from the decision of the Sessions Court. However, a direct appeal, against any decision by the Children’s Court does lie with the High Court.

Can the High Court, separately or in addition to the procedure prescribed in Section 101 of the Act, accept and decide on an appeal acting under Section 439 of the CrPC ? Or, does the Juvenile Justice Act limit the metes and bounds within which matters related to bail orders and appeals therefrom are to be dealt? This question was addressed by the High Court of Chhattisgarh in the case of Tejrum Nagrachi Juvenile v. State of Chhattisgarh. 85.

MCRC No. 8523 of 2016 decided by High Court of Chhattisgarh on _.

Revision

Section 102

PA

The Court opined that the non obstante clause in Section 12 of the Act viz “such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 or in any other law for the time being in force, be released on bail with or without surety or placed under the supervision of a probation officer or under the care of any fit person” was a legislative device employed to give overriding effect to this provision over some contrary provisions that may be found either in the same enactment or in some other enactment. The Court also observed that, ...under the statutory scheme of the Act of 2015, a comprehensive provision has been made as to how a child in conflict with law has to be dealt with when he is apprehended and not released on bail.

This meant that Section 12 (Bail to a person who is apparently a child alleged to be

in

conflict

with

law)

combined

with

Section

8

(Powers,

functions

and

responsibilities of the Board) and Section 10 (Apprehension of child alleged to be in conflict with law) of the Act, comprised a self-sufficient legal framework in relation to the apprehension and grant of bail to a child “in conflict with law”. The Court concluded by observing, Therefore, Section 12 of the Act of 2015 having included ‘notwithstanding anything contained in the Code or in any other law for the time being in force’, the provisions as contained in the Code in respect of grant of bail under Sections 437 and 439 of the Code have to be excluded and shall not apply while considering the juvenile's right to be enlarged on bail for which a specific provision has been made under Section 12 and thereafter the appellate and revisional powers of the Court of Sessions and the High Court as contained in Sections 101 and 102 of the Act of 2015, as the case may be.

Thus, while recourse to Section 439 of the CrPC is not available to a bail applicant under the JJCPCA, an appeal against denial of bail, by the Children’s Court can be lodged before the High Court under Section 101(5) of the JICPCA.

The Act also confers overriding power (by way of power of revision) upon the High Court in respect of any orders made by any authority or judicial body under the JJCPCA by virtue of Section 102. S. 102. Revision

The High Court may, at any time, either on its own motion or on an application received in this behalf, call for the record of any proceeding in which any Committee or Board or Children’s Court, or Court has passed an order, for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit:

Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.

122

Section 102

Chapter VII—Bail under Special Laws and Provisions

Anticipatory Bail for Juvenile

The question whether a juvenile apprehending detention under the JJCPCA is eligible to apply for anticipatory bail under Section 438 of the CrPC was considered by the High Court of Madhya Pradesh in Undisclosed v. State of MP.*° The Court clarified, The Act, 2015 further makes it clear that bail plea of a juvenile can only be entertained when he is arrested or detained or appears or is brought before the Board, and not otherwise. In fact, no provision in the Act or in the Code of Criminal Procedure enables the juvenile to move an application for anticipatory bail (under Section 438 IPC) either before the Court of Sessions or High Court or even before the Board, which has been exclusively constituted for the purpose of dealing with the proceedings pertaining to a juvenile.

86.

Miscellaneous Criminal Case No.10345 of 2019 decided by High Court of Madhya Pradesh decided on

Chapter VIII

OF BONDS, SURETIES AND DEPOSITS Sections 440 to 450 of Chapter XXXIII of the Code of Criminal Procedure deal with bonds, sureties and deposits which the Court may prescribe for a person being admitted to or enlarged on bail. Section 440. Amount

of bond and reduction thereof

(1) The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. (2) The High Court or the Court of Session may direct that the bail required by a police officer or Magistrate be reduced. The provision for an accused person having to execute a bond, as a condition for enlargement

on

bail, finds

mention

in Section

436(1),

Section

437(3)(a)

and

Section 437A. Besides, Section 438, pertaining to anticipatory bail, provides that, in the event of the High Court or the Sessions Court allowing an application for anticipatory bail, may include “such other condition as may be imposed under subsection (3) of section 437, as if the bail were granted under that section.” Thus, but for Section 439 which deals with the “Special powers of the High Court or Court of Session regarding bail’, all other sections of Chapter XX XIII of the Code provide for directions, by the authority granting bail, for the bail applicant to execute a bond. The issue for consideration is the language of Sub-section (1) of Section 440 which stipulates that “The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive’. The sentiment against an excessive amount dates back to the English Bill of Rights of 1689. In the Preamble, the bill lamented that: ...excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects. Therefore, to demand excessive or highly burdensome or impractical bail bond amounts would, more often than not, result in a bail applicant of insufficient means

being denied of his liberty i.e. being confined to prison. This militates against the

judicial interpretation of Article 21 of the Constitution whereby no one should be denied of his personal liberty bereft of the just, fair and reasonable procedure established by law. The issue of the amount of a bail bond was addressed by the 123

124

Section 440

Chapter VIII—Of Bonds, Sureties and Deposits

Madras High Court in Amaldoss v. State*’ which opined that the imposition of conditions that were excessively onerous would tantamount to denying the bail itself. The High Court cited the Supreme Court judgment in Hussainara Khatoon & Ors v. Home Secretary, State of Bihar** where the Supreme Court observed, Sometimes the Magistrates also refuse to release the undertrial prisoners produced before them on their personal bond but insist on monetary bail with sureties, which by reason of their poverty the under-trial prisoners are unable to furnish and which, therefore, effectively shuts out for them any possibility of release from pretrial detention.

One reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is the highly unsatisfactory bail system, which suffers from a_ property oriented approach. It proceeds on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. Even after its reenactment, the Code of Criminal Procedure continues to adopt the same antiquated approach. Where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial... ...The result is that either they are fleeced by the police and revenue Officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence, and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family.

...In the first place it is virtually impossible to translate risk of nonappearance 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.

Relying on the above, the Madras High Court observed that, ...While granting the bail, the Court of law is entitled to put certain conditions at its discretion, however, it should not be ignored that such conditions must be reasonable and judicious and should not be arbitrary. In fact, no provision in Code of Criminal Procedure contempiates cash

deposit as a condition precedent for grant of bail but may permit the

87. Crl.0.P. (MD) Nos. 19196 of 2014 decided by Madras High Court on 5 February 2015. 88. AIR 1979 SC 1369.

Bond of Accused and sureties

Section 441

|

person to deposit a sum of money in lieu of executing a bond and giving surety of one or two persons. It is needless to state that granting or denying the bail depending upon the circumstances of each case, is within the exclusive discretion of the Court of law or authority, however, such discretion should not be exercised arbitrarily.

Section 441. Bond of Accused and sureties

(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency of fitness. Sub-section (1) of Section 441 has two postulates: (i) a person his own bond by the police officer or Court as the case may be may be released on bail, in which case the police officer or Court bail be secured by sureties who shall stand surety that the person at the time and place mentioned in the bond and shall continue otherwise directed by the authority that granted the bail.

can be released on and (ii) the person may direct that the bailed shall attend to so attend unless

The language of this Sub-section clearly establishes that the person being released must execute a bond regardless of whether he is being released on his own bond or he is being released on bail. The bond by the person being released/ admitted to bail constitutes the principal undertaking and the sureties only serve to undertake responsibility for the performance of that undertaking. Thus, if the person being enlarged on bail does not execute a bond, the surety cannot be held liable for the performance of his undertaking. A clarification, to this effect was provided by the Orissa High Court in Govinda Chandra v. State.*” The Court observed, 89.

AIR 1951 Ori 18.

126

Chapter VIII—Of Bonds, Sureties and Deposits

Section 441

...there should be two bonds, one taken from the accused undertaking to appear on the dates of hearing on pain of forfeiting the bond of any amount fixed by the Court, and the other from the surety chosen by him (accused) undertaking, on accused's failure, to make good the sum forfeited by the accused and, for the matter of that, by him. I cannot conceive that without an accused himself executing a bond, any surety could be thought of. The very conception behind the word "surety" and the liability implied in that status as recognized by law is to reimburse the loss sustained by the principal on account of failure of performance on the part of the obligor. The principal (i.e., the State in this case) has double remedy — one against the principal obligor and the other against his surety. Not taking a bond from the accused person to appear on the dates fixed amounts to leaving him to act at his own option. If the accused is not bound to appear, there is no meaning requiring the surety to make him appear. It is well established in law that if the principal by his laches or otherwise releases the debtor from the liability sought to be assumed by the surety, his remedy against the surety is frustrated.

What rights does a surety have over the person enlarged on bail, if the former suspects that the latter may not comply with the conditions of the bond including, inter alia, jumping bail? Despite the fact that the CrPC does not provide any lawful recourse to the surety against the person bailed against the assurance provided by the surety, some courts have tended to perceive some kind of rights (albeit undefined) that the surety enjoys (or may enjoy) vis-a-vis the person on bail. This matter was addressed by Allahabad High Court in Chotey Lal and Anr v. Emperor” where the Court observed,

The main question is as to what are the rights of a surety with respect to the person for whose appearance in Court he stands as a surety. There is nothing express in law that a person, who stands surety for the appearance of another in Court, can exercise such control over the movements of the other as be against his will in order to ensure his appearance in Court. It, however, stands to reason that, as the surety is responsible for the appearance of the other person in Court and his liability to the forfeiture of the bond will arise by the mere fact of the non-appearance of the other party, he should have some sort of control over the other person.

A similar view was held by the Madurai Branch of the Madras High Court in Pillappan @ Ravikumar v. State represented by the Inspector of Police West Police Station Kumbakonam

Thanjavur District’' namely,

... The effect ofgranting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a

90. AIR 1948 All 72. 91. Crl. R.C. (MD) No. 148 of 2018 decided by Madras High Court on 18 April 2018.

Discharge from Custody

Section 442

127

specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.

The obiter of the Courts in the two judgments cited above may, perhaps, come up for review at some stage. This because, unlike in civil law where the surety is the guarantor of another person’s liabilities, e.g. a debtor, and whereby the guarantor can contractually secure for himself direct recourse to and remedies against the debtor; a surety under the CrPC is not in a contractual relationship with the person who has been admitted to or enlarged on bail on the strength of the surety. Instead, a bond executed by the surety is a commitment to the Court that if the person bailed fails to abide by the conditions prescribed in the order of bail, the amount assured by the surety would be forfeit to the Court. Thus, if a surety feels that the person bailed could breach the conditions of bail, the surety (going by the CrPC alone) cannot effect a private arrest, under Section 43 of the CrPC and apprehend the person on bail. The language of Section 43 CrPC is explicit in that,

S. 43. Arrest by a private person and procedure on such arrest.—(l) Any private person may arrest or cause to be arrested any person who in his presence commits a non bailable and cognisable offence... Obviously, a person on bail, planning to transgress the conditions contained in bail bond, shall not commit such transgression in the “presence” of the surety. that a surety should be able to do, when he apprehends a breach of the bond by person bailed, is to apply to the Magistrate to discharge his surety bond for attendance of the person bailed.

The following amplification.

two

sections

are

purely

procedural

in nature

and

need

his All the the

no

2[(Section 441A. Declaration by Sureties Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.]

Section 442. Discharge from Custody (1) As soon as the bond has been executed, appearance it has been executed shall be released; the Court admitting him to bail shall issue an order in charge of the jail, and such officer on receipt of him.

92.

Ins. by Act 25 of 2005, s. 39 (w.e.f. 23-6-2006).

the person for whose and, when he is in jail, of release to the officer the orders shall release

128

Section 443

Chapter VIII—Of Bonds, Sureties and Deposits

(2) Nothing in this section, section 436 or section 437 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed. Section 443. Power to order sufficient bail when that first taken in insufficient

If, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and, on his failing so to do, may commit him to jail. Can the Magistrate order an increase in sureties and amounts without giving the person on bail an opportunity to be heard? This question was answered by the High Court of Bombay in Anand Krishnaya Kondiya v. Assistant Collector of Customs and Anr® with the following observations, In my view, it would not be open to a Magistrate or for that matter for any Court to take this resort to Section 443 and order enhancement of the amount of bail without giving an opportunity to the accused of being heard and this is implicit in view of the principles of natural justice.

Section 444. Discharge of sureties (1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants. (2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him. (3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail. It was held by the High Court of Kerala in Ernakulam in ABU T.S. v. State of Kerala’ that “Under Section 444 of the Cr.P.C. a surety of an accused may at any time apply to the court to discharge the bond. It is a right conferred on him by the Code.” Would sureties be ipso facto discharged of their liability under the bond if the accused, who was on bail, is arrested by the warrant or surrenders before the Court? i.e. is the bond of a surety coterminous with the arrest of the person on bail under 93. 1988 (1) BomCR 8. 94. Crl.MC. No. 1477 of 2015 decided by High Court of Kerala on 17 November 2015.

Deposit instead of recognisance

Section 445

129

Sub-section (3) of Section 444, for whom a bond had been executed by the surety? This question was answered in the negative by the High Court of Bombay in Mr Parkar Hasan Abdul Gafoor vy. State of Maharashtra & Ors. The High Court held, ... sub-section (3) of section 444 is preceded by sub-section (1) and (2) and

subsection (3) depends on a contingency which is provided in the earlier sub-sections therefore sub-section (3) cannot be isolated from the earlier sub-sections and cannot be read as an independent provision. Section 444(1) gives power to the surety to apply to the Magistrate to discharge him from his bond. If such an application is made the Magistrate has to issue warrant of arrest against the accused for whom the bond was given by the surety and thereafter sub-section (3) provides that if such a person is produced pursuant to the warrant, the Magistrate shall direct the bond to be discharged and shall call upon the accused to find other surety.” Clearly, the bond executed by the surety would hold good, even after the arrest/

appearance of the accused before the Magistrate until the surety bond is formally discharged by the Magistrate which, the Magistrate may do either upon finding alternate sufficient sureties or, failing which, committing the accused to jail.

Section 445. Deposit instead of recognisance When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond. The Court (or officer authorised to enlarge on bail — see Section 436 CrPC) should

seek the deposit of money (in lieu of a bond and/ or sureties) only as the exception rather than the rule. This was clarified by the Madras High Court in Sagayam @ Devasagayam v. State’ wherein the Court remarked, Sometimes an accused, who is an utter stranger to the area or he has no friends or relatives in the area or he could not secure a person to stand as surety can offer cash surety. The Court can accept cash surety, instead of personal surety. But the Court cannot demand personal surety, property

surety and cash surety, at a time. It is not cumulative. It is alternative. While granting bail, the Court can direct the accused to execute bail bond. As per Section 440 Cr.P.C., the bond amount should not be excessive. When a person so directed to execute the bond either with surety or without surety is not able to furnish the sureties, then under Section 445 Cr.P.C., he has 95. 96.

1999 (5) BomCR 481. Crl.M.P.No.3888 of 2017.

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the option to offer cash security. But even then, it must be a reasonable amount. It should not be an arbitrary, excessive amount. It should not be in the nature of deprivation of grant of bail by fixing an heavy amount as surety amount. If heavy amount is directed to be deposited as cash security, the bailee/accused will not be in a position to comply it. If heavy amount is demanded from the surety, then the bailor will not be forthcoming. And ‘haves’ will go out, while ‘have nots' will remain in jail.

Sectiion 446. Procedure when bond has been forfeited

(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court, or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shail record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. Explanation—A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred. (2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: 97[Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.]

(3) The Court may, [after recording its reasons for doing so], remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond 97. 98.

The proviso added by Act 63 of 1980, s. 6 (w.e.f. 23-9-1980). Subs. by Act 25 of 2005, s. 40, for “at its discretion” (w.e.f. 23-6-2006).

Procedure when bond has been forfeited

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131

executed judgment used as sureties,

in lieu of his bond under section 448, a certified copy of the of the Court by which he was convicted of such offence may be evidence is proceedings under this section against his surety or and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved. The significant features of this Section are,

I Before the Court takes any coercive action to recover the penalty upon forfeiture of a bond (executed by the accused or the surety), the Court shall

first record the grounds to establish that the bond indeed stands forfeited (for non-appearance or non-production of property). The Court should then “call on” the defaulter, of the bond, to either pay the penalty or to show cause why it should not be paid.

It is only if the defaulter fails to show sufficient cause and then fails to pay the penalty that the Court has the power to recover the fine through coercive action i.e. by issuing a warrant for the levy of the fine under Section 421 of the CrPC which may include (i) attachment and sale of any moveable property of the deliberate defaulter and (ii) authorising the Collector of the district authorising him to recover the penalty as arrears of land revenue from the moveable and immovable property of the defaulter. . If the above method of recovery of the penalty fails, the Court may imprison the deliberate defaulter in civil jail for a period of up to six months.

Latitude for leniency has also been built into this Section whereby the Court may, after recording reasons for the same, reduce the amount of the penalty payable and enforce payment of only the balance amount. In cases where a person has been bound for (a) keeping the peace (section 106 of the CrPC); (b) keeping the peace and maintaining good behaviour (Section 117 of the CrPC); (c) being on probation of good conduct (Section 360 of the CrPC) and (d) executing a bond in lieu of a bond by a minor (Section 448 of the CrPC); then if a Court certifies that the person so bound has been convicted for breach of conduct under the aforesaid sections, the certified copy of the Court order by which an accused under those sections was convicted would suffice for the (another) Court proceeding to forfeit the bond for non-appearance and/ or non-production of property to presume that the offence was committed as certified (in cases such as these, the certificate

would serve as adequate reason/ grounds for non-appearance and/ or nonproduction of property in matters where the defaulter is a surety).

Courts have made it clear that the confinement to civil prison, in the proviso to Sub-section (2) of Section 446 applies only when the other means to recover the penalty (recording the grounds on which the forfeiture has been decided, calling

162

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Chapter VIII—Of Bonds, Sureties and Deposits

upon the person so bound to pay the penalty upon forfeiture or to show cause why it should not be paid) fail and then taking coercive steps for the recovery of the unpaid penalty.

It was held by the High Court of Kerala In re Against The Order In Crmc 79/2014 of Court of Additional Sessions Judge-l, Thiruvananthapuram' that, ..A careful scanning of the provisions under Section 446, Cr.P.C. would undoubtedly reveal that it actually enjoins fixation of a date for payment of penalty, iffixed after forfeiture of the bond or to show cause why it should not be paid. In short, it is the failure on the part of the concerned surety to show cause why he should not be made liable to pay the penalty or to pay the penalty within the appointed time that would make him liable to face the proceedings for recovery under Section 421, Cr.P.C. It is only after exhaustion of such procedures an order can be issued by the court for imprisonment in civil prison for a term which may extend to six months under the proviso to Section 446(2) Cr.P.C.

Just as harsh bail conditions or steep amounts for bonds have been discouraged by the judiciary; there is a similar trend towards moderation in the imposition of penalties. The Rajasthan High Court remarked in Ramchandra v. State.” Although as a surety appellant was duty bound to produce accused before the learned trial Court on each and every date of hearing but any sort of omission in this behalf by the surety cannot be viewed as an act of defiance of the judicial process. For imposition of harsh penalty under Section 446 Cr.P.C., the Court is required to see as to whether surety has connived with the accused or had remote scent that the accused would abscond after release on bail. Otherwise, it is expected of the Court to take a benevolent view while imposing penalty.

3[Section 446A. Cancellation of bond and bail bond

Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition— (a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and (b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that

1. CRL.A. No. 700 of 2015 decided by High Court of Kerala on 5 January 2015. 2. Criminal Appeal No. 2003 / 2017. 3. Ins. by Act 63 of 1980, s. 7 (w.e.f. 23-9-1980).

Cancellation of bond and bail bond

Section 446A

133

there was no sufficient cause for the failure of the person bound by the bond to comply with its condition: Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.] This Section contemplates and prescribes for a situation where the bond executed by a person (person on bail or surety) stands forfeit on account of breach of conditions of the bond. In that event, the Section postulates (a) such a bond (or bonds — if executed by sureties as well) stands cancelled and (b) once the bond stands cancelled after being forfeit, the person hitherto on bail shall no longer be released on bail only on his own bond if the Police Officer or Court before whom the bond had been executed (including such Officer or Court as enlarged that person on bail upon the execution of the bond) was satisfied that the person providing bond did not have adequate cause or justification to breach the conditions of the bond.

However, there is a saving grace (it is not as if the person whose bond gets cancelled loses all hope of liberty). The proviso to the Section that, unless any other provision of the CrPC militates against it, the Police Officer or the Court concerned may release the defaulter upon the execution of a fresh personal bond for a specified sum of money and a bond by one or more of such sureties that the Police Officer or the Court, as the case may be, deem to be sufficient.

It was clarified by the High Court of Karnataka in Vinayak s/o Pandurang Yanakanchi’ that Section 446 and Section 446A are completely independent of each other. Section 446 only provides for the imposition of a penalty when a bond is forfeit. It does not speak of cancellation of a bond (that has been forfeit). Section 446A, on the other hand, has nothing to do with penalties. It delineates the procedure to be followed when a person has breached the terms of his bond (which becomes

forfeit as per Section 446) leading to the bond getting cancelled (and thereby the liberty of the person on bail getting curtailed) and the means whereby such a defaulter may be released on a fresh ‘bail bond subject to one or more sureties 1.e. a person who skips bail or breaches conditions of the bail granted to him on his own bond can no longer hope to be released on the strength of his own personal bond alone. The Officer or Court may yet again consider his release but this time round he would have to produce one or more sureties as the Officer or Court may require and regard as sufficient. The following two Sections are purely procedural in application and need no amplification.

4. Criminal Petition No. 101629 of 2018 decided by Karnataka High Court on 11 September 2018.

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Chapter VIII—Of Bonds, Sureties and Deposits

Section 447. Procedure in case of insolvency or death of surety or when a bond is forfeited When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of section 446, the Court by whose order such bond was taken, or a Magistrate of the first class may order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order, and if such security is not furnished, such Court or Magistrate may proceed as if there had been a default in complying with such original order.

Section 448. Bond required from minor When the person required by any Court, or officer to execute a bond is a minor, such Court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only.

Section 449. Appeal from orders under section 446 All orders passed under section 446, shall be punishable,— (i) in the case of an order made by a Magistrate, to the Sessions Judge; (i) in the case of an order made by a Court of Session, to the Court to which an appeal lies from an order made by such Court. It has been seen in Section 446 ante that when a person on bail or a surety forfeits the bond undertaken for appearance or the production of property, the Court will call on the defaulter to pay the amount under the bond or to show cause why it should not be paid. If, thereafter, the Court is satisfied that the bond is forfeit and the amount thereunder has to be paid, the Court can issue a warrant for the levy of the fine under

Section 421 of the CrPC by way of attachment and sale of the moveable property of the defaulter or authorise the Collector of the district to recover the penalty as arrears of land revenue from the moveable and immovable property of the defaulter. The Court, if recovery fails despite the aforesaid measure, may imprison the deliberate defaulter in civil jail for a period of up to six months. Section 449 provides for appeal against the Order made by a Court in terms of Section 446. If the Order has been made by a Magistrate, the appeals shall lie to the Court of Sessions and if the Order has been made by the Court of Sessions, appeal shall lie to the higher court where appeals lie from an Order made by the Court of Sessions (invariably the High Court). It has been held that penal action like the imposition of penalty and recovery thereof, may not be resorted to by Court if the forfeiture of the bond was unwitting, not deliberate and unintended by the defaulter. The High Court of Kerala at

Power to direct levy of amount...

Section 450

135

Ernakulam held in Meenakshi Kutty v. State of Kerala? that it is the executor of the bond who forfeits the bond and the Court cannot, suo moto, order forfeiture. Thus, it

is by defaulting by way of appearance or production of property, as undertaken in the bond, that the defaulter (be it the person bailed or the surety) forfeits the bond. It is

only then that the Court can act in terms of Section 446 and call upon the defaulter either to pay the penalty or to show reasons why it should not be paid. The Court also said that, ...mere non-appearance before the Court due to reasons beyond a person's control will not be sufficient for any person to incur a penalty.

The provision, contained in Section 446 for the defaulter to be provided an opportunity to show cause why a penalty, proposed under that Section, should not be paid, has been held by Courts to be mandatory, the absence of which provides rightful grounds for appeal against the penalty (and recovery thereof) under Section 449. It was held by the Supreme Court in Ghulam Mehdi v. State of Rajasthan® that, ...before a surety becomes liable to pay the amount of the bond forfeited it is necessary to give notice why the amount should not be paid and if he fails to show sufficient cause only then can the Court proceed to recover the money. Before a man can be penalised, forms of law have to be observed and an opportunity has to be given to a surety to show cause why he should not be made to pay and as in this case that was not done, proceedings cannot be said to be in accordance with law and should therefore be quashed.

Section 450. Power recognizances

to direct levy of amount

due on certain

The High Court or Court of Session may direct any Magistrate to levy the amount due on a bond for appearance or attendance at such High Court or Court of Session. This Section may be read in the context of Section 441 which relates to “Bonds of accused and sureties”. Sub-section (3) of Section 441 stipulates that,

If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.

So, just as the Court bailing out an accused person on a bond (so as to ensure his appearance or attendance at the time and place mentioned in the bond) can impose a condition, within the bond, for the person bound to appear before the High Court, Sessions Court or other Court; so also (as an obvious corollary), the High Court or Court of Session, may direct the Magistrate binding a person for appearance/ 5. CRL.A.No. 397 of 2009 decided by High Court of Kerala on 20 March 2009. 6. AIR 1960 SC 1185.

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Section 450

Chapter VIII—Of Bonds, Sureties and Deposits

attendance, to levy such amount on the bond as may be needed to ensure the presence/ attendance of the bound person if and when he is called upon by the High Court or Court of Sessions to answer the charge for which he has been bound. Thus,

in such a case, the Magistrate will serve as the instrumentality of the superior courts to bind an accused person, being bailed out, on their behalf.

Chapter IX

WHITHER BAIL The lofty visions of personal liberty, in the context of bail, that have featured so frequently and prominently in judgments delivered by the Supreme Court, from time to time, have unfortunately

not resulted in the conundrum

of “Bail or Jail”

being answered in favour of the former alternative through the length and breadth of the justice delivery system. The Annual Report of “Prison Statistics in India” for the year 2016, published by the National Crime Records Bureau (NCRB) presents a dismal picture.

yf Other |Total No. of | Undertrial |Detenues*

nates* | Prisoners*

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|.

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4,18,536 4,19,623 4,33,003

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of the total number

| | of

4,33,003 prisoners, lodged in jails throughout India, were undertrial prisoners. This means that a full 67.68% of those confined to jails were persons whom our judicial system generally regards as “innocent until proven guilty”. Evidently, despite the presumption of innocence being a cornerstone of our criminal jurisprudence (but for certain Special Acts), our jails continue to be filled beyond capacity by persons who would probably have been enlarged on bail only if they had the wherewithal in terms of sureties and were not financially challenged. Another aspect of concern, emerging from the NCRB Report, was the age of the undertrial prisoners in jails as reflected TT in the table: 50 years and | vee above

*

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ae

120201

;

Figures are as on 31st December of each year.

137

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3

6

sae of | Under oe -trials

293508

138

Chapter [X—Whither Bail

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140

Chapter IX—Whither Bail

Although the above table is not a comprehensive extract of the tables in the NCRB Report classifying undertrials according to type of offences; it does clearly show that as many as 64,000 undertrials could have tried to secure bail under the provision of Section 437 of the CrPC but appear to not have been able to do so due to their impecunious condition. The Supreme Court has, from time to time, considered and passed directions on the need for speedy disposal of cases of undertrial persons as well as matters related to it. In In Re: Speedy Trial Of Undertrial Prisoners’ the Supreme Court observed, We also found cases of adjournments being leisurely granted in respect of long custody in petty cases and financially poor accused continuing in detention on account of non-furnishing of bail bonds. Many persons are iit custody for default of payment of maintenance for long periods. Detention of persons who have no means to pay maintenance because of poverty may be uncalled for which may need monitoring.

The importance of personal liberty received a major shot in the arm with the dissenting judgment of Justice H R Khanna in ADM Jabalpur v. Shivkant Shukla® (later to become popularly known as the ADM Jabalpur case). In the course of his judgment, Justice Khanna observed,

The right to life and personal liberty is the most precious right of human beings in civilized societies governed by the rule of law... According to Blackstone, the absolute rights of Englishmen were the rights of personal security, personal liberty and private property. Preventive detention, though not strictly punishment, is akin to punishment, because of the evil consequences of being deprived of one’s liberty...

Courts in the country have often tended to draw a dividing line between Article 21 of the Constitution on the one hand and the provisions for bail contained in Chapter XXXII of the Code of Criminal Procedure on the other. The judicial argument has been that personal liberty is a fundamental right conferred by the Constitution whereas the right to bail as contained in Section 436 of the CrPC is a creature of procedural criminal law and cannot be viewed in the same light as Article 21. Likewise, “presumption of innocence until proven guilty”, the sine qua non for trials in criminal matters — which is the corner stone of the philosophy of bail and a corollary to the right to liberty — has been carefully distanced from the fundamental right to liberty by Courts. The Supreme Court, in Noor Aga v. State of Punjab & Anr’ opined, Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. 7. WP (Civil) 749/2018 decided by Supreme Court on 13 July 2018.

8.—(1976) 2 SC@621. 9. (2008) 16 SCC 417.

Whither Bail

141

This position is disputable for a number of reasons,

(1) Personal liberty is a right vested in human beings since the advent of civilized society and cannot be viewed in different colours; a pristine hue for Article 21 and a grey pallor for bail.

(2)

In fact, the right to bail is an adjunct of personal liberty because it may be denied to a person only in accordance with the provisions of Chapter XXXIII of the CrPC, each provision of which has to pass the test of being “just, fair and reasonable procedure established by law”. The prescription of the procedure having to be just, fair and reasonable was enunciated first in the Maneka Gandhi Case'® so as to render the procedure in conformity with the due process of law and was upheld by the Supreme Court in subsequent cases. So, though unfettered or unconditional personal liberty has been circumscribed and whittled down in the CrPC so as to keep a balance between personal liberty of the individual and the well-being as also security of the society, the provisions relating to bail have to be consistently viewed in the light of the guiding beacon that is Article 21 of the Constitution.

(3) Fundamentally, considerations for denial of bail resemble the prerequisites for preventive detention in that both, purportedly, are aimed at forestalling future offences (in effect, predicting future crimes). One of the definitive factors, to be taken by the Court, while considering an application for bail, was prescribed by the Supreme Court in the Amarmani Tripathi Case'' is “likelihood of the offence being repeated’.

Similarly, the Supreme Court in the Mhetre Case'* identified “The possibility of the accused's likelihood to repeat similar or the other offences” as one among the factors and parameters to be considered in the case of anticipatory bail. Justice Khanna in the ADM Jabalpur Case’ voiced his scepticism in regard to deciding on preventive detention by connecting past offences with the prediction of future crimes in the following words, But the indications are that any system of predicting future crimes would result in a vastly larger number of erroneous confinements — that is, confinements of persons predicted to engage in violent crime who would not, in fact, do so. Indeed, all the experience with predicting violent conduct suggests that in order to spot a significant proportion of future violent criminals, we would have to reverse the traditional maxim of the criminal law and adopt a philosophy that it is ‘better to confine ten people who would not commit predicted crimes, than to release one who would’.

AIR 1978 SC 597. . AIR 2006 SCW 4339. . (2011) 1 SCC 694. (1976) 2 SCC 521.

142

Chapter IX—Whither Bail

Thus, denial of the presumption of innocence, by certain statutes, has become a

major impediment to the granting of bail resulting in long periods of incarceration even though the accused may ultimately be acquitted of the offence alleged. An example of such a statute is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 wherein Section 37 of the Act provides that a person accused of specified offences under the NDPS

Act shall not be released on bail unless, inter alia, the

Court is satisfied that there are reasonable grounds to believe that the accused person is not guilty of the offence alleged and also that he is not likely to commit any offence while on bail. Article 11(1) of the Universal Declaration of Human India is a signatory, states:

Rights (1948) — to which

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

However, statutes like the NDPS Act put the “reverse burden” of proof on the bail applicant whereby it becomes his responsibility to adduce material and evidence before the Court, at the bail application stage itself, that he is neither guilty of mens rea nor of having committed/ participated in/ attempted/ abetted the offence or made preparations to that effect. The importance of presumption of innocence was tellingly brought out by the South African Constitutional Court in State v. Coetzee'* in the following words, There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book. Heice the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption . .. the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.

14.

[1997] 2 LRC 593.

Whither Bail

143

Unfortunately, statutes like the NDPS Act, PMLA and the MCOCA have tended to rely heavily in placing the “reverse burden” on the accused and to let the facts speak for themselves (res ipsa loquitur) rather than it being the burden of the prosecution to prima facie convince the Court, at a bail hearing, of the possible guilt of the accused (Amarmani Tripathi Case).'> Given the rising enormity and gravity of economic offences in this country, Courts have tended to place the public weal over the general requirement of presumption of innocence and have taken to a detailed indictment of the person seeking bail (or anticipatory bail) whereby denial of bail has become a kind of impromptu punishment of the accused much before the trial itself has commenced. Given below are the observations of the High Court of Delhi in P. Chidambaram v. Central Bureau of Investigation'® where the Court remarked,

This Court is conscious of the fact that personal liberty of a citizen is sacrosanct, but no one is above the law. Law makers cannot be allowed to turn into law breakers with impunity, particularly in cases of this magnitude. What is so far to be seen is the tip of the ice berg. Pre-arrest is not meant for high profile economic offenders. Time has come to recommend to the Parliament to suitably amend the Law to restrict the provisions of pre-arrest bail and make it inapplicable to economic offenders of high profile cases like the instant one. It is the need of the hour. The law must come down upon economic offenders with a heavy hand. It is often seen that when economic offenders are on pre-arrest bail, then the investigation conducted is at a superficial level; like in the instant case. This not only weakens the mega scam cases but it actually stiffs the prosecution. This Court cannot permit the prosecution in this sensitive case to end up in smoke like it has happened in some other high profile cases. Tendering of charge-sheet after obtaining sanction for prosecution of petitioner cannot dilute the gravity of the offence in question. Both the sides have cited legal precedents but the facts of the instant case prima facie reveal that the petitioner is the king pin i.e. the key conspirator in this case. Law enforcing agencies cannot be made ineffective by putting legal obstacle of offences in question being Scheduled or not Scheduled, as these legal pleas are sub-judice before the Supreme Court and cannot persuade this Court to grant pre-arrest bail, as the gravity of the offence committed by petitioner is quite evident from case diaries etc. produced by the Investigating Agencies. The gravity of the offence committed by petitioner demands denial of pre-arrest bail to him.

15. AIR 2006 SCW 4339. 16. Bail Appin. 1316/2018 & Crl. M. A. 10976/2018 decided by High Court of Delhi on 30 September 2019.

144

Chapter IX—Whither Bail

The remarks of the High Court of Delhi quoted above may be contrasted with the obiter of the Supreme Court in the Noor Aga Case'’ noted below, It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima facie, shaking the conscience of any court but it is well settled that suspicion, however high may be, can under no circumstances, be held to be a substitute for legal evidence. Andrew

Ashworth,

Vinerian

Professor

of Law

at the University

of Oxford,

described the threats to the presumption of innocence in the following words, My argument tonight is that the presumption of innocence needs to be debated and defended because there are threats to it from at least four sources — confinement, by defining offences so as to reduce the impact of presumption; erosion, by recognizing more exceptions; evasion, by introducing civil law procedures in order to circumvent the rights conferred on accused persons; and side-stepping, by imposing restrictions on the liberty of unconvicted but not depriving them of their liberty.

Balancing the need public security and the degree of dichotomy in the “reverse burden of

of presumption of innocence and personal liberty against public perception of the gravity of the offence has led to a judicial averments and decisions on the subject. Adverting to proof’ imposed by statutes like the Negotiable Instruments

Act, 1881!” the High Court of Delhi, in Wilson Mathew v. The State NCT of Delhi” stated that,

The presumption of innocence is a human right. Article 6(2) of the European Convention on Human Rights provides: "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused's rights and the interest of the society is required to be taken into consideration. In India, however, subject te ine statutory interdicts, the said principle forms the basis of criminal jurisprudence. In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. 17. (2008) 16 SCC 417. 18. Andrew Ashworth, Four Threats to the Presumption of Innocence, Sage Journals. 19. Section 139 of Negotiable Instruments Act, 1881 stipulates “Presumption in favour of holder—It’ shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section

20.

liability.” 224 (2015) DLT 291.

138 for the discharge, in whole or in part, of any debt or other

Whither Bail

145

“We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of adeveloping country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely, the doctrine and presumption human rights of innocence as of reverse burden introduced by Section 139 should be delicately baianced.

Perhaps our jurisprudence would have to work out a fair and just balance between “presumption of innocence” and the “reverse burden of proof’. Jurists like David Hamer have suggested that this can be attempted by splitting “reverse burden” into two kinds; (a) “reverse persuasive burden” and (b) reverse evidential burden’. In the

former case, i.e. “reverse

persuasive burden”,

accused of an offence under, say the

it would

NDPS Act or MCOCA,

require a bail applicant to satisfy the Court as to

reasonable grounds for believing that he is not guilty of “such offence” by demonstrating that the balance of probabilities is in his favour. In the latter case, i.e. “reverse evidential burden”, the bail applicant will simply have to adduce what evidence he has, in his defence, at the bail hearing and it would be up to the prosecution to carry the “reverse burden” of negating the evidence.”! Another enigma facing lawyers and jurists is the requirement for the Court, considering the bail application of an accused under laws like the NDPS Act and MCOCA, to satisfy itself that, if bailed, the accused person “is not likely to commit any offence while on bail” [S. 37(1)(b)(ii) of the NDPS Act and Section 21(4)(b) of the MCOCA]. Given the rather vague and general terminology employed in the statute, the satisfaction of Courts as to the possibility and predictability of the accused committing any offence, in the future, can at best be subjective. The Supreme Court tried to narrow the meaning of “any offence” while upholding this provision in MCOCA in the Ranjit Singh Brahmajeet Singh Sharma Case” stating, Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence

whatsoever? We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability 21.

22.

See, David Hamer, ‘The Presumption of Innocence and Reverse Burdens: Cambridge Law Journal, 66(1), March 2007, pp. 142-171. AIR 2005 SC 2277.

A Balancing Act’,

146

Chapter IX—Whither Bail

he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code (Rash driving or riding on a public way) may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shail consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility ofhis having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA.

ft would appear that globally there is an increasing emphasis on public and social security. The worries have been caused by high profile economic crimes and terrorist funding (which includes funding through diverse instrumentalities like traffic in drugs and narcotics, counterfeit currency, hawala, dark Internet and the like). Major

crimes attract significant and persistent media attention such that the dramatis personae are often tried and convicted by the media even before they file their bail or anticipatory bail applications. To parody Lewis Carroll from Alice in Wonderland: T'll be judge, I'll be jury”, said the cunning old Fury: “I'll try the whole cause and condemn you to death.’

Inevitably, such developments tend to prejudice a just, fair and reasonable consideration of a bail application. In consequence, the interpretation of bail provisions tends to become tighter and narrower. On the other end of the spectrum are the thousands of impoverished undertrials who cannot meet the conditions set for bail by the Court and hence remain miserably incarcerated. During the year 2016 alone 1655 prison inmates died in jail of which 231 were classified as “unnatural deaths”.”’ In reference to unnatural deaths the Supreme Court had remarked in ReInhuman Conditions in 1382 Prisons,

The distinction made by the NCRB between natural and unnatural deaths is unclear. For example, if a prisoner dies due to a lack of proper medical attention or timely medical attention, would that be classified as a natural death or an unnatural death?

There is no gainsaying the fact that bail should not be readily available to those who pose a danger to society. However, it is equally important to remember that denial of liberty should occur only within the well-defined framework of rationally and logically 23.

24.

See, The Annual Report of “Prison Statistics in India” for the year 2016, published by the National Crime Records Bureau. AIR 2016 SC 993.

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147

worded statutes that are not open ended in their interpretation or provide a very wide amplitude, to the prosecution, to oppose bail as in the case of the prescription that the bail applicant “is not likely to commit any offence while on bail”. The comity of civilised nations has unhesitatingly attached prime importance to bail as a means to liberty for an accused who should be presumed innocent until proven guilty. Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR), 1966 (which India has both signed and ratified on 10 April 1979) stipulates that, It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. Article 14.2 of the ICCPR declares,

Everyone charged with a criminal offence shall have presumed innocent until proved guilty according to law.

the right to be

Delivering his judgment in Woolmington v. DPP*° Viscount Sankey L.C. said, Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

This fundamental jurisprudence of criminal trial (and bail) finds mention in the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) which states in Rule 84(2) — (pre-revised version) — that, Unconvicted prisoners are presumed to be innocent and shall be treated as such.

In his landmark judgment in Stack v. Boyle’® Chief Justice Vinson, of the United States Supreme Court remarked,

This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction... Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. 25. 26.

[1935] AC 462 [HOUSE OF LORDS]. 342 US. 1 (1951).

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Chapter IX—Whither Bail

The most telling commentary on the system of bail, in India, was contained in the

268" Report of the Law Commission of India,”” The present system of bail is heavily influenced by economic status and discriminates against the impoverished and the illiterate. Our judicial system seems to have evolved two approaches to bail—bail as a right for the financially able; and for rest, bail is dependent on the judicial discretion, exercised through manipulation of the amount of “reasonable” bail that will be required. Often the criteria for setting bail amounts fails to take into account the accused person’s ability to pay, hence, the loss of liberty is imminent in the pre-trial detention. Accused person’s economic status appears to have become the decisive factor for granting pre-trial release.

Another feature of the law of bail in India, which is completely out of sync with the liberal principles of personal liberty, is the imposition of past convictions upon the Court as a criterion for rejecting the bail application of an accused person under Section 437 of the Code of Criminal Procedure. Sub-section (1) of Section 437 is reproduced below,

(1) 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;

(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: ... Apparently, Section 437(1)(ii) is meant to forestall the likelihood of a habitual offender reverting to his unlawful ways upon securing bail. This conjecture is not borne out by the statistics of recidivism contained in the Annual Report of “Prison Statistics in India”, for the year 2016, published by the National Crime Records Bureau (NCRB)** reproduced in the table below:

27. 28.

At Page 12, para 2.11. http://ncrb.gov.in/StatPublications/PSI/psimainpage.htm.

Whither Bail

149

_ Number of convicts admitted _ during theobec |

Number of _ Habitual

% Share of Habitual Offenders to Convicts

Offenders

Admitted

200102 Note: The above figures are based on convictions only. Repeat offenders among undertrials have not been taken into account. Evidently, recidivism is more an imagined problem than a real one. Not only does the provision of Section 437(1)(ii) tar every single person, with a past conviction for a major offence, with the same brush of probable recidivism but also, the provision is

manifestly arbitrary and punitive in that it prejudges every accused person with such a conviction record without a thought to (a) the possibility of reform and (b) the probability that denial of bail and confinement to prison might inexorably trap the accused person into a life of crime because his chance at freedom and the pursuit of a lawful avocation gets denied. In the US, the matter of preventive denial of bail on subjective grounds of the bail applicant lapsing back into crime, was addressed by the US Court of Appeals, Second Circuit in United States v. Salerno’? as follows, The Government contends that section 3142(e) [US Code: Title 18: Crimes and Criminal Procedure: Part II: Criminal procedure: Chapter 207: Release or Detention of a Defendant Pending Trial] is to be upheld simply because preventive detention is a rational means of advancing the compelling state interest in public safety. That cannot be the test for determining the constitutionality of preventive detention. The fallacy of using such a test can be readily seen from consideration of preventive detention as applied to persons not arrested for any offense. It cannot seriously be maintained that under our Constitution the Government could jail people not accused of any crime simply because they were thought likely to commit crimes in the future. Yet such a police state approach would undoubtedly be a rational means of advancing the compelling state interest in public safety. Incarcerating dangerous persons not accused of any crime would exceed due process limits not simply for lack of procedural protections. Even if a statute provided that a person could be incarcerated for dangerousness only after a jury was persuaded that his dangerousness had been established beyond a reasonable doubt at a trial surrounded with all of the procedural guarantees applicable to determinations of guilt, the statute could not be upheld, no matter how brief the period of detention. It would be constitutionally infirm, not for lack of procedural due process, but because the total deprivation of liberty as a means of preventing future crime exceeds the substantive limitations of the Due Process Clause. 29.

794 F.2d 64 (2d Cir. 1986).

150

Chapter IX—Whither Bail

This fetches up the moot point: Whither Bail? The journey of the law of bail, since the liberal exposition by Justice V. R. Krishna Iyer in the Gudikanti Narasimhulu Case*’ has been towards limiting and circumscribing the availability of bail and the restrictive provisions have, sometimes, been occasioned by the requirement of the security of the State and its people. Parts of diverse statutes (and, at times, their

interpretation) as well as connected/ corollary developments, that have contributed to the tightening of bail provisions (or a more conservative dealing with bail applications) can be briefly recapitulated as follows, 1. Notwithstanding the observation by the Supreme Court in the Kanwar Singh Meena Case’! that “The court must not undertake meticulous examination of evidence collected by the police and comment on the same (at the stage of considering a bail application). Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial”; there has been an increasing tendency among lower courts to embark on a lengthy evaluation of the evidence and, frequently, painting the accused in extremely unflattering terms. In effect, the accused stands convicted even before he has been tried besides the infamy and trauma that the accused has to incur at a stage where the law should be presuming him to be innocent until proven guilty. 2. Section 437(6) of the CrPC provides that, in the event of the trial of an accused — in a Magistrate’s Court — exceeding 60 days, from the first date

fixed for taking evidence in the case, such person if in custody for the entire period shall be released on bail to the satisfaction of the Magistrate unless the Magistrate otherwise directs. Judicial pronouncements have, however, given preponderance to the word “unless” carried in the latter part of the Section, over the word “shall” interpreting that the “shall” stands limited by “unless” and hence it is not mandatory for the Magistrate to release an accused on bail if the Magistrate otherwise directs. As per the Cambridge Dictionary (online edition)” We use the conjunction unless to mean ‘except if’. The clause which follows unless is a subordinate clause (sc): it needs a main clause (mc) to make a complete sentence.

Going purely by the dictionary meaning of “unless”, it operates to usher in an exception whereas the proposition that precedes it is the rule. Perhaps the meaning and import of Section 437(6) of the CrPC could do with judicial reappraisal especially as the “unless” in the Section is not preceded by anon obstante clause.

3. Section 437A also lends itself to testing on the lodestone of the jurisprudence of bail because it not only denies the presumption of innocence to an accused but it also tentatively holds an acquitted person to 30. 31. 32.

AIR 1978 SC 429. (2012) 12 SCC 180. https://dictionary.cambridge.org/grammar/british-grammar/conditionals-and-wishes/unless.

Whither Bail

Sil

be possibly guilty until the appeal against his acquittal is heard and disposed of. The Section authorizes the Court trying an offence or the appellate Court to require an accused (even if later acquitted by the trial Court) to execute bail bonds with sureties for appearance before the appellate Court in case any appeal or petition is filed against the judgment of the trial Court (be it acquittal or conviction). Such a provision, which puts an acquitted person under a cloud and restricts his movements, is a curtailment of his freedom. A bail bond extracted from a person who is acquitted flies in the face of the requirement of a just, fair and reasonable procedure prescribed by law and is arbitrary in nature. 4. How long is an order of anticipatory bail valid, has become a vexatious issue. There have been conflicting judgments on this score, some among them maintaining that anticipatory bail continues till the trial of the case; whereas others have held that such orders should be of a defined limited duration i.e. coterminous with the commencement of proceedings before the trial Court. Given the fact that the parameters for the grant of anticipatory bail and regular bail (as delineated by Courts) are virtually identical, it would seem pointless for a person, on anticipatory bail, having to suffer the ignominy of arrest — as well as denial of his personal liberty — and then again apply for bail (because Section 437 mandates that only a person arrested or detained and brought before the Court “may be released on bail’), on much the same grounds as those adduced during the application for anticipatory bail, before the trial Court. 5. Although Section 438 of the CrPC postulates that a bail applicant “may apply to the High Court or Court of Session” for anticipatory bail, High Courts have generally declined to take up an anticipatory bail application until it has run the gauntlet of the Court of Sessions. While doing so may be administratively convenient besides allowing the applicant a second opportunity to knock on the doors of courts for anticipatory bail; it goes against the clear and unambiguous language of Section 438. There may be instances where the bail applicant may be uncomfortable with the idea of approaching the Court of Sessions with his application, for a variety of reasons, in which case it would be unfair and unjust to deny him the option granted to him and enshrined in Section 438. 6. A rather generalized deterrent to the granting of bail under the Maharashtra Control of Organised Crime Act, 1999 (MCOCA) is that the Court may refuse bail unless the Court is, inter alia, satisfied that the bail applicant is “not likely to commit any offence while on bail”. A similar stipulation finds place in the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). While the Supreme Court, in the Ranjit Singh Brahmjeet Singh Sharma Case* has narrowed “any offence” to mean an offence 33.

AIR 2005 SC 2277.

Chapter IX—Whither Bail

152

under the Act and not just any other minor or major offence; this sweeping requirement continues to be illogical and capable of varying interpretations by Courts. For instance, the consumption of “other drugs” invites imprisonment up to 6 months or a fine of ~ 10,000/-, or both under the NDPS Act and any addict volunteering for treatment would enjoy immunity from prosecution. Nevertheless, although an addict may enjoy immunity from prosecution, he cannot escape the mischief perpetrated by the words “any offence” when his bail application is being considered in another NDPS Act case because, it would need the gift of a soothsayer for the Court to decide that the addict would not relapse into consuming drugs (ic. “any offence”) if let out on bail. Such provisions are manifestly arbitrary and thoughtless being neither just and fair nor evocative of a reasonable procedure established by law. 7. The prevailing legislative requirement of linking previous convictions to the possibility of future offences is both irrational and places an unnecessarily speculative burden on the judiciary. Such requirements would be more at home with fictional conceptions of technology that can anticipate crimes like in the film “Minority Report” where police officers were able to predict murders and apprehend murders even before they were fully contemplated by the accused. Besides, the argument that denial of bail, as a preventive measure against the commission of future crimes, is belied by the NCRB statistics of recidivists in prison** which reveals that only 2.8% of the prison inmates in India (not including undertrials) have past convictions. Couple this with the overcrowding in Indian jails and the prevalence of undertrial prisoners (who could have secured bail but for their inability to produce sureties) and the need for reform in the law of bail becomes evident.

8. Terms like “enormity of an offence”; the “clout of the appellant” and the media focus on so called sensational cases carry the inherent risk of judicial prescriptions transiting from judgment to judgmental. Also, very often, inconsistencies seem to surface in the way the judiciary adjudges bail applications and lays down the framework of parameters for deciding on matters of bail. One set of judgments may hold that bail must be withheld so as to allow the investigating agency to conduct custodial investigation/ interrogation, while another set of judgments may opine that setting an accused person on bail is not an obstacle to “discovery” in terms of Section 27 of the Indian Evidence Act, 1872. Application of the law must be vested with a degree of certainty harmoniously derived from both, the words of the statute and judicial pronouncements/ interpretations.

The path forward, shown by numerous Supreme Court decisions (including those cited ibid) needs to be formalized, by the Legislature as the highway to Bail Reform. An example to consider could be the Bail Reform Act, 1966 of the US which 34.

http://ncerb.goy.in/StatPublications/PSI/psimainpage.htm.

Whither Bail

153

expanded the bail rights of federal criminal defendants by conferring on “non — capital defendants” (those not charged with an offence punishable with death) the right to be released, pending trial, on their personal recognizance or bond unless the judicial officer imposed any additional set of conditions. The Bail Reform Act was preceded by the “Manhattan Bail Project’ which ended on August 31, 1964. During the three year Project, 3505 accused persons were released on the recommendations of the Project staff. Of these, 98.4% returned to Court whenever required. By April 1965, all but 203 of these 3505 accused persons had their cases finally disposed of in courts with 48% either being acquitted or their cases being dismissed. Of the 52% convicted, 70% received suspended sentences while only 10% were awarded prison terms. The Project, followed by the US experience post the passage of the Bail Reform Act, demonstrates fully well that liberally legislated and construed bail provisions while sustaining the dignity and liberty of the individual presumed innocent until otherwise proved, do not in any way lead to aggravate or increase offences. The high human

cost of pre-trial detention,

in the US, is adverted

to by John

Logan Koepke and David G Robinson in their research paper’ in the following terms, Second, and relatedly, the human cost of pretrial detention is staggering. A growing body of research indicates that pretrial detention itself directly increases the probability of worse case outcomes for the defendant— meaning a guilty plea or conviction at trial. Further, recent research shows that pretrial detention worsens the risks that judges aim to predict. That is, pretrial detention itself leads to higher rates of pretrial rearrests, more failures to appear, and greater long-term recidivism than the same defendants would have shown if immediately released.

It is to be hoped that the need to harmonise the law of bail with Constitutional prescriptions for personal liberty reinforced by judicial pronouncements, from time to time, shall grab the attention of law makers in the country and, possibly bail reforms shall follow thereby.

35. https://www.ncjrs.gov/pdffiles 1/Photocopy/355NCIRS.pdf. 36. ‘Danger Ahead: Risk Assessment and the Future of Bail Reform’, Washington Law Review, 1746, Vol. 93:1725.

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