Law Of Bail Bonds Arrest & Custody 8180384400

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Dr Ashok Dhamija

Law of Bail, Bonds, Arrest and

Custody

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Law of Bail, Bonds, Arrest

and Custody

Acomprehensive book containing detailed analysis of the legal provisions relating to the law ofbail, bonds, arrest and custody, with the help of case law discussion

of the Supreme Court and various High Courts. Covers detailed discussion on the subject from relevant provisions of the Code of Criminal Procedure, as also from various other criminal Acts, such as NDPS Act, TADA Act, POTA, MCOCA, Customs Act, FERA, S.C. and S.T. (Prevention of Atrocities) Act, Juvenile laws,

and other Central and State Acts of criminal nature.

by Dr Ashok Dhamija, M.Sc., LL.M., Ph.D. (Law), Advocate, Supreme Court of India, Ex-IPS Officer, Author of “Commentary on Prevention of Corruption Act”, “Need to Amend a Constitution and Doctrine of Basic Features”

*First Edition Reprint 2011

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preface to the first edition Personal liberty is one of the most precious human rights. Its protection is of utmost importance in a civilised society founded on the principle of rule of law. Article 21 of the Constitution of India places the personal liberty ofan individual

at the highest pedestal of protected rights, i.e., the fundamental right. It, inter alia, provides that no person shall be deprived of his personal liberty except according to procedure established by law. Thus, personal liberty of an individual cannot be taken away unless a validly enacted law authorises it. Moreover, for last about three decades, the basic spirit underlying the American concept of due process of law has been invoked in India for construing the above expression procedure established by law, notwithstanding the fact that the said American concept may not be applicable literally for this purpose. Accordingly, now it is well understood that the procedure established by law must also be reasonable, just and fair. This implies that an unreasonable, unjust or unfair procedure cannot be permitted to take away personal liberty of an individual even if it be sanctified by the legislature in the form ofa law.

Arrest and custody of an individual take away his personal liberty. Therefore, it is expected that the provisions relating to arrest and custody must be in conformity with the aforesaid requirements of Article 21 of the Constitution. They must also comply with the requirements of Article 19 of the Constitution in as much as arrest and custody, restrict the freedom of movement. Moreover,

they must also be in conformity with the provisions of Article 22 which inter alia, require production of a person arrested and detained in custody before a magistrate within 24 hours, excluding journey period; and further custody of such arrested person can be authorised only by such magistrate.

Howsoever, important personal liberty of an individual may be, desirable, it may be to not to put an individual under arrest and in custody, there are many occasions when it becomes essential in the collective interest of the society to arrest and detain an individual in custody and to deprive him of his personal liberty. For example, a person committing an offence of a serious nature may have to be arrested and detained in custody to maintain order in the society and / or to ensure that he is made to face the criminal trial for his offence to punish him therefor. As noted above, deprivation of personal liberty is not totally debarred and what is required is that such deprivation must be according toa law which must be reasonable, just and fair. Accordingly, there may be valid reasons for arresting a person and putting him in custody. Laws permit that. Ultimately, a balance is required to be maintained between the personal liberty of an individual and the collective interests of the society to maintain rule of law and to maintain order.

But, then, such arrest and detention lead to several questions. How long cana person be detained in custody, more so, if trial is going to take several years?

What if he be falsely or wrongly implicated in an offence for which he was

arrested? Is it necessary to arrest and detain a person in custody for each and

I

preface to the first edition (contd.) every offence? Even if it bea minor offence? What, ifthe subsequent investigation reveals no evidence for involvement of the arrested person in such offence? Is it not possible to release a person from detention pending investigation or pending trial, except in some serious cases? Is it not that Article 21 requires deprivation of personal liberty to be reasonable, fair and just? So, is it reasonable to detain a person for long without sufficient grounds? Or, is it fair or is it just to detain a person for long duration when he is still presumed to be innocent and is yet to be proved guilty? This list of questions is not exhaustive. Answer for many of such questions, though not all, is the law of bail and bonds.

So, an arrested person, instead of being committed to custody, may be released on bail. Therefore, pending trial or pending investigation, a person may be released on bail in situations wherever it is reasonable to do so in accordance with the provisions of law. The term bail basically means, release from restraint, more particularly, release from the custody of the police. It connotes security for a detained person’s appearance and its effect is simply the temporary release of the person pending trial. Bonds, whether the personal bond or the surety bond are essential to ensure that the person being released on bail would be available for facing the trial and would not abscond. This book deals with the law of bail, bonds, arrest and custody. Arrest and custody, as noted above, relate to deprivation of personal liberty of an individual. On the other hand, bail and bonds, relate to restoration of personal liberty to such individual, even if such restoration be only as a temporary measure. Yet, it deserves to be clarified at the outset itself that this book does not claim to deal

with all aspects of personal liberty, which may have much wider connotations. This book essentially deals only with the aforesaid limited aspect of personal liberty, viz., bail, bonds, arrest and custody, as the title of the book makes it amply clear. “Bail or Jail?”, the immortal phrase used by Justice Krishna Iyer, essentially lies at the foundation of each decision which a bail court has often to make,

namely, restoration of personal liberty or deprivation of personal liberty. This

decision is often a discretion, except in a bailable offence where bail is a right, and this discretion must be exercised judiciously. This book deals with making the task ofajudicious exercise of the aforesaid discretion a simpler one by way of a detailed study of the decided cases laying down innumerable principles

governing the exercise of the said discretion. Knowledge, of the nuances and niceties of law, of the intricate details of the legal principles laid down over the

years, of the finer aspects of the provisions of law including their construction and interpretation, goes a long way to introduce objectivity and balance towards a judicious approach in the exercise of such an important discretion dealing

with the personal liberty of individuals. This book makes a modest attempt to cover this knowledge on this subject. (contd. )

preface to the first edition (contd.) The book covers the relevant provisions existing in the Code of Criminal Procedure, as also in various other enactments dealing with criminal laws, such as NDPS Act, TADA Act, POTA, MCOCA, S.C. and S.T. (Prevention of Atrocities) Act, Juvenile laws, other Central and State Acts of criminal nature, etc. Provisions of some important dead laws, such as TADA Act, notwithstanding their repeal,

have also been incorporated in the book as many cases under such laws continue to survive; moreover, such laws dealt with some very important bail provisions;

it is no gainsaying the fact that such bail provisions keep getting repeated in different laws in one form or another. The book covers the detailed case law on the subject from the Supreme Court and various High Courts. A humble attempt is made to analyse such case law and present a balanced view.

The author has endeavoured to make the book useful for the members of the Bench, the Bar, the prosecuting agencies, the investigating agencies, and others interested in the subject. It is hoped that this book will find a ready acceptance from its distinguished readers and will be found useful. The author expresses his sincerest gratitude to LexisNexis Butterworths Wadhwa Nagpur, the leading law publishers, for having undertaken to publish this book and for their help in making available legal resources, wherever required, in the preparation of the book.

The author shall be obliged if the esteemed readers point out the mistakes and short-comings, if any, noticed in the book. The author shall gratefully

welcome comments and suggestions for the improvement of the book in its future versions.

Mumbai

September 3, 2008

"Ganesh Chaturthi Day"

--DR. ASHOK DHAMIJA

abou the autho:

Dr Ashok Dhamija is an advocate practicing mainly in the Supreme Court « India and at Mumbai, and is a former IPS officer. Has had a brilliant career & a student. Obtained his M.Sc. degree in Physics from Rajasthan Universit: LL.M. degree from Mumbai University in Constitutional Law and Commercic Law Groups, and Ph.D. degree in Constitutional Law from Mumbai Universit Has taught LL.M. students of the Constitutional Law Group in Mumbe

University Law Department as a Visiting Professor. Has also taught graduat

level Physics students in a Government College in Rajasthan. Served in th Indian Police Service of Maharashtra cadre for 14 years before resigning fror

it. During his tenure in IPS, he held senior positions in Mumbai City Police Central Bureau of Investigation (CBD, and other places of Maharashtr: Previously, he also had a short stint in Indian Defence Accounts Service (IDAS. Has contributed several articles in leading law journals and newspapers. He i also the author of a detailed law book on Prevention of Corruption Act an another analytical book on Need to Amend a Constitution and Doctrine of Basi Features, both published by the then Wadhwa and Company Nagpur.

The author welcomes suggestions or comments about this book, ifany, and th same may please be sent at [email protected] by email.

LAW OF BAIL, BONDS, ARREST AND CUSTODY FIRST EDITION 2008

GENERAL CONTENTS ili

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CHAPTER

2

IN WHAT CASES BAIL TO BE TAKEN.........ccccceceeceeee

22

CHAPTER

3

MAXIMUM PERIOD FOR WHICH AN UNDERTRIAL PRISONER CAN BE DETAINED .............ccsecccaseeceeseccees

54

WHEN BAIL MAY BE TAKEN IN CASE OF NONPRA ING Er os corer etc riere sco ccccocoattntatteemencs

57

CHAPTER

CHAPTER

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CHAPTER

DIRECTION

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APPREHENDING ARREST .......cccccescsscescaccusceccceeceececs

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SPECIAL POWERS

314

OF HIGH COURT OR COURT

OF SESSION REGARDING BAIL ..........cecccssecescceeceeees

539

CHAPTER

7

AMOUNT OF BOND AND REDUCTION THEREOF.......

821

CHAPTER

8

BOND OF ACCUSED AND SURETIES ......sscccseseseeeeeees

826

CHAPTER

9

DECLARATION BY SURETIES ceccccccscocececceeececeetecsecees

858

CHAPTER 10

DISCHARGE FROM CUSTODY ...ccccccccccccccccseseeeveteceees

859

CHAPTER 11

POWER TO ORDER SUFFICIENT BAIL WHEN THAT FIRST TAKEN IS INSUFFICIENT..........0ccccsesccesseeeseenes

861

CHAPTER 12

DISCHARGE OF SURETIES .occcccccccsccssescessesssestsescensees

862

CHAPTER 13

DEPOSIT INSTEAD OF RECOGNIZANCE.......ssssesessee

865

General Contents

CHAPTER 14

PROCEDURE WHEN BOND HAS BEEN FORFEITED.....

CHAPTER 15

CANCELLATION OF BOND AND BAIL-BOND...........

CHAPTER 16

PROCEDURE IN CASE OF INSOLVENCY OR DEATH OF SURETY OR WHEN A BOND IS FORFEITED...........

CHAPTER 17

BOND REQUIRED FROM MINOR .........00cccceeeeceeeeeeeeees

CHAPTER 18

APPEAL FROM ORDERS UNDER SECTION 446.........

CHAPTER 19

POWER TO DIRECT LEVY OF AMOUNT DUE ON CER TAIN Fe ECOG NE nein cnccccuetuasuibcscovevecceteoes

CHAPTER 20

SUSPENSION OF SENTENCE PENDING THE APPEAL; RELEASE OF APPELLANT ON BAIL.............0.-0

CHAPTER 21

PARQUE Bttisissecccccssnvieratiieevesceenen.:. ae

CHAPTER 22 CHAPTER 23

CHAPTER 24 CHAPTER 25 CHAPTER 26 CHAPTER 27

CHAPTER 28

PERSON ARRESTED TO BE INFORMED OF GROUNDS OF ARREST AND OF RIGHT TO BAIL ..............

CHAPTER 29

OBLIGATION OF PERSON MAKING ARREST TO INFORM ABOUT THE ARREST, ETC., TO A NOMINATED TERSON 3. ocisccMtere ee cvecsecccb eet oo. ee

CHAPTER 30

PERSON ARRESTED TO BE TAKEN BEFORE MAGISTRATE OR OFFICER IN CHARGE OF PORIGHSELA TION...dGe de Sad. 2. Re. cas

CHAPTER 31

PERSON ARRESTED NOT TO BE DETAINED MORE THAN TWENTY-FOUR HOURS ...........ccccccceccscecceccecee

CHAPTER 32 CHAPTER 33

PROCEDURE WHEN INVESTIGATION CANNOT BE COMPLETED IN TWENTY-FOUR HOURS ..................

CHAPTER 34

COMMITMENT OF CASE TO COURT OF SESSION WHEN OFFENCE IS TRIABLE EXCLUSIVELY BY IT.....

General Contents

CHAPTER 35 APPENDIX-A

POWER TO POSTPONE OR ADJOURN PROCEETHE FIRST ICTS.

SCHEDULE—CLASSIFICATION OF .., ccacsatiiitseessrsccocesseccstmens.

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LAW OF BAIL, BONDS, ARREST AND CUSTODY

Contents CHAPTER | CONCEPT OF BAIL PAGE

1. Right to Speedy Trial is a Fundamental Right... eeeeeeeeseeeees TC DO REA Renn 1 Se ARRAS RUM ae Ay = lp! tet ine,Ned bp Es TO" 10" SRERRRARMARE SRST Io SSS RRR aa A hc aR MI Sr fn a a eee nptnbetre dil el ell A ac die «Rl er Ae Rol Py 5. Criteria for judicial discretion to grant or refuse bail........... eee _ Mistory wr encent Of tall see: ...- ees. LL caer 7, Meaning Of anticipatory Tall hea 0-2 2c scticcak ce acer nenet sete i aw OF Ce ce re SER ON so oo sere wa ot 9. Bail provisions under new Cr.P.C. are wide enough ......0....... ceeeeeeeeeeees 10. Grant of bail under Chapter XXXIII of Cr.P.C. oo eeeceesteeeeeenees 11. General policy is to grant bail rather than to refuse ......... eee eeeeteeee

5 1] 12 13 14 15 16 16 17 17 17

12. Bail not to be refused as a punitive MEAaSUFE.............ccccccesseseseseseseseeeeees

18

RR lees ota eRe: easel Ae menateetaen i RENOReE PIES RRM MSINMEE SRPMS DEON EMIETI oo conc0socopancsasec¥eteeosseisccsesseareceusoccgassonanees 15. Every citizen entitled to liberty till he commits an offence .................... 16. Balancing personal liberty and investigational powers of police............ 17. Freedom of individual vis-a-vis security Of State ............ccceeceseeeereeeenee 18. Balance between individual liberty and interest of society.................0064 19. Deprivation of personal liberty only in accordance with procedure esESRD be 4 re Ro a oe CE ee tee 20. Supreme Court’s observations for improvements in bail law.................

19 19 19 20 20 21

21. 22. 23. 24.

Right to obtain bail is substantive right.........0..:.ccccecseseeseseseeeeeeeneeeeeeee Duty of Magistrate to ensure non-violation of liberty of citizens........... Order of bail can be effective only from time of arrest.............0cccee Cr.P.C. permits curtailment of liberty of anti-social and anti-national MTN ANN alates Jessrseccsrsere MAIO. 11ji61 ARIS. KIOBTQ ed oon ss MOL 25. Detention in non-bailable offence not violative of Article 21 ................ Rae CHORE II, A. 12151. IIH LIN AAA TAG hostess Ba

xii

21 21

22 22 22 22 23 23

Contents

XIV

PAGE

CHAPTER 2 IN WHAT CASES BAIL TO BE TAKEN Corresponding Old laW........-sececsessessssersertssrerseneansnssnsessnsncnsnnsesencanensenaens ny Legislative Changes........-s:sssesessssssesssssessessnsnesrsenssnsnnsrssscsnsensnncaneasensense Scope Of SECON. .......cssecesersesteneenesneneneerstertenssetsesessnsessessosessesecesnnensety Classification of offences into bailable and non-bailable ...............+02++++. Difference in bail provisions in bailable and non-bailable offences......

. . . _ .

. Application of Section .........:sssssecnssscssesecrssesessreneenenenssnsnsseansnsessrsnsessecs . Grant of bail mandatory under S. 436...........:csseesssecsseecereesscsseeressessenss . Invariable rule for bail in bailable OffENCES .............cceseceeserreeeeereeeeeneneees = WSN & anAMN Semen . Right to get released OM bail........scssessseresseeesesssrerssessensenenesserenenenenannees . Detention only if not prepared to furmish Dail ............cccs-ceeeseeereereerenenees . Indigent PersOM.........cssecscecscereresessenseerecsseecsseesanscesnrsnseesnengsstrecenensenunnae . Indigent person—test Of...........cescsssererererereeersesseetsnsesrsrersstsnannetensareaness . Power of bail cannot be abridged by executive instructions..............-.+-. . Police officer has no discretion to refuse release on bail ..........-...-.+00 dnes . Meaning of ‘Bail’...................sssssssscsssssresceoneedsbpeephsbenegerenspenndstsdsonenpens . Meaning of ‘Bail’ includes with Or without SUTCtICS........-.:0sc+erseeeeeeeeees epnea noane oevebodetan ort}nstuu apedeasnn » Meaning of ‘Court’ .................-u.csssrcsrssereerrsons . Meaning of ‘custody’—includes person who surrenders before court

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Meaning of words ‘appear’ and Bail when a person voluntarily Surrender of accused and grant Police to conduct investigation

GPPeArance ..........ceecccseceessecerseeeesseeeees ‘appears’ before Court..............::eee of bail Or CUStOdY...............:eeceeeeeereeneees without taking remand ................:10+

. Release forthwith or can be detained up to 24 hours? ..........e-sseessseese: . Grant of bail for bailable offences under S. 498(1) of old Code.............

. Bail and its cancellation in bailable offences under S. 498 of old Code. . Complaint or police report of a bailable OffENCE ...........:..cesesereeereeeeeeees - No anticipatory bail in bailable Cases ...........:::e-esseeesesseereeseesersesseneereeeess

. Can conditions be imposed in bailable OffeMCe?.............:scsssssererseseseneeens . Surrender of passport while granting bail .........-:csseeseecesseereeeerseenenenenes - Bail and Own bond without sureties..........-seseeeeeneeeenseesereeeetenrenesenees . Conditions as to sureties in bailable offence not to be excessive............

. . » . .

Bail amount to be fixed as per social status and not be excessive .......... Personal bond and surety-discretion in bailable OffeNCe.............0-:08 Reduction of unreasonably high bail AMOUMt ..........ssssssesesereereneseerenenenens Refusal of bail for failure to comply with conditions of bail bond......... Cancellation of bail under inherent powers under old Code...........:0++-++

- Cancellation of bail under S. 439(2)...........csscscsssssovsssssersersesssneseeseneeees - Only High Court and Sessions Court can cancel bail ...........:seeseeereres - Power to cancel bail in bailable offences must be used sparingly ..........

Contents

. . . . . . . ~ .

Cancellation of bail where accused absented himself... After cancellation, can accused demand bail again as of right? ............. Release on bail on later date in challenge to cancellation of bail ........... Conversion of case from bailable to non-bailable offence..................6. Under-trial prisoners languishing in jail in bailable offences................. Issuance of non-bailable warrant in a bailable offence...............0. pals Bailable offences —Illustrative Cases ..........ccccesesseesssseeeceecceesennseseeserees Disposal of bail-application on same day ::icciiicicisscisc caine... clicesnccenssensere eeen Person on bail is i COnStructiVe Custody ii

CHAPTER 3 MAXIMUM PERIOD FOR WHICH AN UNDERTRIAL PRISONER CAN BE DETAINED > Mbcrveeppemnchtnpe Cled laws aeriie nce. ss cc ceccttttnscevcodteccsscoucccoveste OPavedgdsosriess eee cdeselsvcesteedees Mies LateircssscvtereatteMzsoesersers nN» Deeper wwe Ces . Directions for under-trials in jail for more than half of maximum GE Ua are ee I TEE aot enone nnconecregemenresconene

CHAPTER 4

WHEN BAIL MAY BE TAKEN IN CASE OF NON-BAILABLE OFFENCE jo CTI NE a ticccneths ect hri pate yeiaracs eee alee IR ST A | Rp rane Bea A RE EE cas, ST a2 ee Cremer UL) CE CN an eas ebchcbonndestameatroee fess a BA te 8 ol a ee Se . “Notes on Clauses” for amendment of S. 437 by Act 25 of 2005.......... S emeRINNEETGDE RUMEN cose cscceten shite. IDEs Epct ee descr Fn oven meer carviespesber dears - Meaning of ‘Bail’ includes with or without sureties...............c.:ccseeees = wWN kh SCmnau eo EO a ES epee eet aes SE - Meaning of ‘custody’—surrender and submission to coutt................++ - Meaning of words ‘appear’ and appearance ..............seseesreeseeneteeeeeeseees - Bail when a person voluntarily ‘appears’ before Court... & AL PEESON Of MMCHIM DAN IS 11 CUSLODY’ ...-ecreive ores siceseesdarensesssborenyeryesbodvs - Surrender and furnishing bail bonds under anticipatory bail order is ee

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Words “reasonable grounds for believing” —meaning and effect.......... “Reasonable grounds for believing”—depends upon stage.............:+:+4+. Provisions of S. 437 applicable to complaint Cases ............::scsseeereeeee Three stages of a case contemplated under this sectiOn..........::.+s0 Classification of offences into bailable and non-bailable ............+0000:

54 54

55

Contents

Xvi

;

PAG

. Difference in provisions in bailable and non-bailable offences.............. . . . . . .

Power under S. 439 is wider than that under S. 437.......ssccssssseerstens Difference between bail under S. 167(2) and under Ss. 437/439 ........... Distinction between ordinary bail and anticipatory bail ...............000+0+ S. 437 and S. 438—independent and operate in different fields............. Different considerations for regular bail and anticipatory bail ............... Comparison of limitations on bail in S. 437 Cr.P.C. and S. 37 of NDPS

g&|

9 9 9 9

. Concept of liberty vis-a-vis provisions of arrest and bail...........-c--+e0e

9 9

. Personal liberty and investigational powers Of POliCe.............:.ss20c0e000+

9

. Bail petition can be rejected to avoid hurdles in investigation ............... . Balancing interests of accused and Of SOCICLY.............::sscessersseesersersensees . . . .

Police custody an inevitable concomitant Of arrest.............c::ccceeeeeeeees Consequences of pre-trial GEtOMIOM 1.1.1. Taek Tis scssdeesccscssencassvecsnoeees Bail can be granted in non-bailable offences also............scsseeeeereeeerseeees Power of police officer to grant bail under this SECtION. ..........:1:0.cee-eeeee S. 437 is concerned only with court of Magistrate and not with High Court and Sessions Comite xiii. bei. [o. lccts..bvesbceatiecbtbh btheb occceccanscepaiaancattet =

. Magistrate’s power to grant bail in non-bailable offences...................... . Power of Magistrate to grant bail governed by punishment prescribed TS) aeoy

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. Power to grant of bail in non-bailable is discretionary .......................... . Discretion to be exercised in judicious manner, and not in a casual or Cavalicr.Or. ariitr any siRPNNNG a anti btineaschetessicvsn ~+ancyupmevnuniapiaineiieens . Criteria for judicial discretion to grant or refuse bail.............0....ceeeeeeee . Tests for the exercise of discretion to grant bail ...............:ccccseeeesseeeeeeeee - Limitations on powers of Magistrate to grant bail ................ccseeeeeeeeees . Magistrate to decide bail matter on material placed before him............. . Grant of bail by Magistrate at initial stage... cseseeseeseeeeeeeeeeeeeees . General policy is to grant bail rather than to refuse .................:cccceceeeeeees » Principles for grant of beihqemenrenr 43 Pinca seevss-.cansceeereass eesti asenes - Matters to be considered for'grant Of bail .........i.........sscscceeceeonscenstoceeeeee - Considerations for grant of bail in non-bailable offences................00+4

- Factors to be considered for grant Of bail ..............scscssseseseeseseseeneeeeseees . Tests applied for grant of bail in non-bailable offences...............:.0000+-

. Circumstances to be considered for grant Of bail.............scsesssseseeeeees . -

Will accused stand trial or abscond—main question for bail.................. Tampering with evidence—relevance for bail application ..................... Is accused is likely to misuse his liberty if released on bail?................... Relevance of criminal antecedents in bail matters.............:.0seseeeeeeees No hard-aid fast tules in Gage gamttere 5 i ccageeets dome. cogent satan tates tans... Courts should take a balanced view in bail matters .............:cccseeeeeeeeees No detention for a period more than absolutely necessary ..............000+. Court may consider existence of prima facie CASC........sseseeseereneseseees:

99 9 9

Contents

Xvi PAGE

60. Test for determining prima facie case while considering bail................ eeeeeeeeeeeeeeee 61. Relevance of character and status in grant Of bail... . Submission of charge sheet no ground to release on bail ..................000. Person being wealthy and mighty no ground for bail... No law to release accused when no overt act attributed to him..............

.

. . . . . . . . . . 1

Non—misuse of temporary bail is no guarantee in a serious case with SOXUMOMNG DOTY Ee errctievvassccereabcsies escdilsllds as hitter oreevessdsebie at Severity of sentence likely to be imposed to be also kept in mind for ROGET sacoscennsennncchhhdenbRaMbogide Ghbssg0Us sALUEBRM sdLbs) ideSEGRE. OSM SI.jaLiid Case in complaint not conclusive with regard to bail ............:.ceeeeeeeees Consideration of defence version at bail stage..........cccseeseeeeeeeeeeeeeees Loss of reputation and esteem of person to be kept in mind................... Refusal of bail should be with great care and circumspection................ Presumption of innocence in favour Of accused ...........cccceeseeeeseeseneeeeens

Relevance of sections under which case registered ............. HEE

Qa

Bail not to be refused as a punitive MeASUTE........... eee ec eeteeeeeeeeeeee Requirement for identification by witnesses—relevance for bail........... Refusal due to being from different state or specific community ........... Repetition of crime may be sole reason to refuse bail ...................... feoeee pemmpmrmmticas Carrere 0 MN acctrcnc ech sens arsncnccnstomeeca ete crctreeteenecestees . Clause (i) of Sub-section (1)}—requirements undef ................ceceseeeeeeees . First proviso—person under age of 16 years or woman or sick or inFANEMDPCTS oi aiiscsgs scaacaasssscd ed iavedd HEPA MA dss co SOle CLT Lae. ON Rees . First proviso to Sub-section (1)—nature of sickness therein.................. . First proviso to Sub-section (1)}—meaning of ‘infirm’ ....................008 . First proviso to Sub-section (1)—age factor redundant? .................006

. Second proviso to S. 437(1)—bail for special reasons ................::cceeeee - Sub-section (2)—no reasonable grounds for believing.......... Wd Sd DID. 3 . Sub-section (4)—recording of reasons while deciding bail.................... . Sub-section.(6)—object. of 0.0 JOU. AAMAURIB ieee BA . Sub-section (6)—confined only to trials before Magistrates..................

. Sub-section (6)—duty of Magistrate...

seeseesesseseeseseeeeeeeeseeenees

. Sub-section (6)—whether mandatory? ..............:ccccccssssecessecceseecessesessenees

. Difference between bail under S. 167(2) and S. 437(6)...........:cccccccceeeees ; Sub-section (6)—discretion to be exercised judicially and not arbitrarSEY ac5ihcsss0cssss PY. ALATA AT eed Cele Late Ge Savidbed. BURL a

. -

Sub-section Sub-section Sub-section Sub-section

(6)—recording of reasons for refusal of bail...............0000 (6)—time on pre—charge evidence not to be counted ....... (6)—bail granted—cancellation thereof.............c:ccceeeeeees (7)—release on bail pending judgment ...............::ceceseeseeeee

- Contrast between Sub-sections (1) and (7) .......ccccccecceeesesssceseecneeeeeeeeeeens

122 122 122 123 123

123 123 124 124 125 125 125 126 126 128 128 128 129 130 131 133 134 134 134 135 135 135 137 137 138 140 140 140 141 141 142 142

- Power of Magistrate in serious offence exclusively triable by Sessions asian

ers

AUREL

Cr INGeitn Bytt Bros csi Wt vd. (ab ceevieds eos oo sd OiDRe

142

Contents

xvili

98. Magistrate’s power in offence punishable with death or imprisonment

densobiteiadb «0b onaeibadad «lapeke-440) crmtihitetar Stabteildga i> FOr Lifes ccccccccccccccceaceccacedeadiade 99. Expression “offence punishable with death or imprisonment for life’... 100. Refusal in non-bailable case which is not punishable with death or im-

prisonment fOr life........ssseceeseececseteneseneseerersessnsnensnencessenesensasantenanansnanenes

101. Grant of bail in offences Of SETIOUS NALUTC..........cccccccerereereerersesseeereneeeeens 102. Necessity of application of mind while deciding bail matter.................. 103. Necessity of a reasoned order in bail MAtterS.........:.sceserreeerreeereereeres

104. Giving reasons different from discussing merits or demerits ................. 105. Advantages of a reasoned bail OFdeT............ssseeeeseeseeeeseesereeseseesseesesseees 106. However, detailed examination of evidence at bail stage should be RVOICK cccccescnesdeddccas ath SGC 2G). 2d. CU AS an’ Sead NE saes 402% 107. Bail court not to function aS trial COUT... cccccecceseeceeeseetteeeeseeteetseeeeesees 108. Court not to express opinion on merits or demerits Of CaS€...........:00+

109. 110. 111. 112. 113. 114. 115.

. . . . . . . . » .

Hearing both parties in bail matter is essential ...........:.c:cceeeeeeereseeeeereees Successive bail applications—maintainability Of ............ccceeeeeeeeeeeeeeees Successive bail application without fresh ground..............cc:ccccseeeeeeeeeeees te in subsequent application which was earlier not considered speye, a ne). a ee en te ae an ore Successive bail application—to be placed before same Bench .............. Findings of higher court in earlier bail matter ..............ccccccssseeeeseeeeeeeeees Accused not to be debarred for bail for specified period....................2++. Successive bail applications—lIllustrative Cases ..............ccccceseseeeeneeeeeeees Right to speedy trial is a fundamental right ...............0:cccsecsseeeeeeteeeeeeee Speedy trial and pre-trial Getention ............cccscessseessesseeeeneeceetenseeeeeeeneness Duty to see that trial proceeds with reasonable promptitude.................. Bail on ground of delayanst tal 2503 12 Gated. (JL h.,8-Ge- ani tnng dc Bail due to delayed trial and long detention in a serious case ................ Bail granted in case with large number of witnesses .............c:cccceeeeeee Long pre-trial detention is not UNCONSTITULIONA ............ccececeesseeeeeteeeeeeeee No invariable rule for bail after a specified period of detention............. Detention without trial beyond maximum possible term...........c00cee Directions for under-trials in jail for more than half of maximum posSe) E-)))|

. . -

eee

ce

oe

Pe

No right to oppose bail application Directions issued by a High Court Delay in supply of charge sheet Or Power to cance) baits. aa ashGbies

bak

Be

ee

for delayed investigation ................ in delayed investigations ................. CaS€ Pape ............cc0cccceseseeseeeseeeeees ooinle-.9be amanaes..aehnainine«

. Magistrate can cancel bail where it was granted by him....................... - Bail continues to be in force till it is cancelled «0.0... eeceeecceeteeeeseeeeees

» -

Object underlying cancellation Of Dail ..........cccscceesseeseesecteseeteeeenesseees Power to cancel bail to be used very sparingly ...........ccccccsccsseeeeceeeeeeenes Cancellation of bail to be with care and circumspection ..................:000 Cancellation of bail may be done in appropriate Cases ...............ccccccee

Contents

XIX

PAGE

. Rigour of power to cancel bail and concept of welfare State ................. . Reasons for cancellation of bail are not enumerated under law.............. . Considerations for cancellation Of bail 0.0.0... cccccceccesececcesessceceeseeseees Criterion for cancellation OF, HA ev tesvva deh ck a, HED US 2. Ee

. Situations in which bail may be cancelled oo...

eee eeeeesereeeeeeeeueaeees

. Cancellation of bail before actual release ...............cccceccseecceeeeceeeecesneercees . Grant of bail in non-bailable offence is a concession which should not he ebedetiesd ):92)5 8005 to. Halsalags, isd. mcds-sikeol wimtoneane-

. Bail may be cancelled for goOd reasONs.............eeeeereeereegeeerseeeeeeeeeeenees . Mere plea that bail should not have been granted as offence was serious not. sufficient to.cancel bail ici. sasdawweay. cod ceeds. casacns adaceiasa hie. ac eccwnnces

. . . . . . . .

Cancellation of bail for interfering with course of justice ..............0.0 Cancellation of bail on ground of suppression Of faCtS.........ccceeeeeeeeeees Ground of tampering of evidence to cancel bail ..........cc eeeeeeeeeceeeeeeeeeees No cancellation of bail on past criminal record .................06 jitoaosibe Nature of proof required for cancellation Of ball ......... cece eeeeeeeeeneeee Misuse of liberty of bail by preponderance of probability..................... Cancellation of bail on application of private person .................ceeeeeeeeee Violation of terms of compromise not basis for cancelling bail .............

. Bail under S. 167(2) can be cancelled under S. 437(5) or S. 439(2)......

. . . . .

Opportunity of hearing before cancellation of bail.......... eee Opportunity of hearing while recalling mistaken order of bail............... Cancellation of bail by Supreme Court under Article 136..................... Nocancellation of bail due to acquittal in main matter .....................00.. Non-Challenge of earlier orders does not preclude application for canCOTTON ors

. . . .

ee

A

BERARDI, JAW.

EMR ONO

2i1 206

Sessions Judge empowering Magistrate to cancel bail ................. eee Order cancelling bail in a pending trial is interlocutory order................ Subsequent application to cancel bail when no change noticed ............. Setting aside unjustified, illegal or perverse bail order different from CNR

. . . .

ccc cect TE

si etastihtrie eit Pel diss rs, WHAT IOV ELT,,...-..-,, csccserscesokeoccsccccccccccet

Difference between cancellation and revision against bail..................... Forfeiture of bail bond does not amount to cancellation of bail............. Different considerations apply for grant of bail and cancellation of bail Different considerations for rejection of bail initially and cancellation

CRN ctcsateasnsececssscrettenice Aer ee PAGS JO. MO! VOM: - Accused on bail need not appear before court before charge sheet........ » ERP OMCANIOU TT A UIOSS “CASE. ee ee eee a cadanees

- Bail when minor offence converted into aggravated offence ................. - Long bail period and/or non-abuse

wibail considered

nee eis ientiad SF. Ricca at Aes

relevant

NE SR.

179 180 18] 184 185 186 187 187 188 188 188 188 189 189 192 193 195 197 197 198 198 199 199 199 199 200 200 200 202 203 203 205 207 207 207

for

208

Contents

. Long bail period considered for imposing less than prescribed miniIMUM SENIENCE..........ccecccceecceeerceeeeereeeeeeeeeeeeeeeeeseeneeeeeeneeeeesesesesssneuessseeueenes

. Long bail period held not relevant for reducing SCNLENCE........:.+0+0-sese000 p errors othestares . Grant of bail on ground Of parity ..........-..-sesrsscsscocsnedecnsecsertoe . Bail order not supported by reasons no ground for parity ............::se+00 . Cancellation of bail on ground Of PaPity .......ccccceseeeceeresesssererereesecenseeeeees

otinedete opntoiodecsde » No parity in rejection of bail .....ic1ss.caessnsbesdenasseeisseetsodsina . Not necessary to state that bail application of co—accused had been d>Ott-Oiabe aaleiie cvabeoLMit Hinesnanalld dheeeiaitts rsnssonsonnsa POJOCIOD ..0..cenrsncnonnensacasora . . . . . . . . .

Bail on ground of parity—lIllustrative Cases ..........:c:cceeeecsserersssencereers Imposition of conditions while granting bail .................::cseceeceeeeseeseeeerees Nature of conditions which can be imposed ............:c::ccesecceeseeeeceteeeeeens Imposing conditions while granting bail to make payments................... Condition to furnish bank security not permissible ..............0:eeeeeeeees Condition of not leaving country imposed while granting bail............... Condition of producing solvency certificate from surety permissible .... Surrender of passport can be insisted upon while granting bail.............. Condition of not tempering with evidence automatic...........0...:.cccceeees 189. Conditions imposed for earlier anticipatory bail do not ipso facto continue when regular bail granted later. .............cceceeceeeseeeeeeseeeeeeeeeenenenennees 190. Trial Magistrate has power to alter or amend or delete conditions of CAFLICT DRT CMIEE 5a tsi cers onssthaabaediscantedl ioteepe-addindbameniseenn Sorvertaseceeanian 191. Conditions for bail can be modified and such order can also be set SST CUT es A

vachna kee cee EEE dans ca ti ct tin von ok bccn cena

bcs ashasscateeducsietha

192. 193. Imposing condition while granting bail is interlocutory order, hence no SO VDI TS ito ev hain ited inline na ineernins deb pidinliniadtinséntintapesaiitincdgtnitaten 194. Failure to challenge conditions earlier no bar for approaching Supreme Court fOr seaieibtritign oojati, ciara sas deena ninnesorenecennnkeesnenvie> 195. Magistrate can release on bail for appearance not only before him but also before Sessions Court WHEN TOGUITET 2.0.0... .edcccrscoscsssosecesesecceesceeees 196. Courts have power to release on personal DONG...............:cccesceeseeseeeeeeees 197, Requirement Of Cash SCCUFILY OF SURRY ..0+-srssiseanlechnentabeodes 207. Power to direct court to decide bail application expeditiously or within SPECIFIC POTIGE .. .vvisevess ceveceseadclilllalelaiinies tkaweelnncna saan aiaicestes Uhcsainann

Contents

208. Person on bail is in constructive Custody Of COurt..........cccccceseeeeteeeens 209. Person on bail is subject to restraints and can therefore file writ of haHOGR COMDMB hii avira eis Desdi L2Giddd AlbdceAR MES SdeniMbAiT UA Dedede 210. Person released on bail continues to be an arrested person ...............0060 211. Power to grant interim bail or bail for a short periOd..............csceeseeeees 212. Bail granted in lesser offences when offence found to be a serious ofPGi chit bh a litidinc ch ha Be BAA 1d is LARD Brains sar diteniadon 213. Accused released on bail in a case which is subsequently found to be a TILE LLL LLL ORE LLL EE RS 214. Grant of bail when offence committed outside jurisdiction............00008 215. Bail where cause of action had allegedly accrued out of India............... 216. Question of bail to a foreign mational..............ceeessseeeeeesneeesserteeeeeeeneees 217. Magistrate has same power in bail matter under Extradition Act as the Sessions Cawrtsciads::.icon. beams. oalepelaniliacu + ottanenes 218. Magistrate can grant bail to fugitive criminal under Extradition Act if he has issued order Of His Q0tGSe:. S565. 45 oes ssisisescedivis)-sczceraan searedtvepembasenene 219. Grant of bail in extradition matter—lIllustrative CaS€S ............:cseeeeeeeeneee 220. Bail application is covered within “urgent application” in S. 10(3) of Cee ie. Sas EGA Ais iby desc ASUS vaca ste saceecy et nesazereseasctneres mee. Precedent value Of Dail ofdersics 2 iciz. cn cSiaews GQuies-- visi cease tees ae 222. Bail under Defence and Internal Security of India Rules, 1971 .............

mae Bail under Foreipner's Act 9946 iss. icts oe sdbyysiedunstllisigsvess Sobteen eahe obbevsesso 224. Applicability of Ss. 437 and 439 to Navy Act..........ccecssccesssseeceseerseeeees 225. Bail under Unlawful Activities (Prevention) Act, 1967 ............cceeeeee eee

226. Offences under Railway Property (Unlawful Possession) Act— WHEINET DAADIS OF NOM VAN AD IE. ), (Noth) ic5,-pssccepsesevane ++opsncop rpevengaseqgesttesese 227. Grant of bail under Karnataka Forest ACt..........:cssssscesessssesesseseeseseseseeens 228. Repeal of S. 438 in U.P. has no impact on Ss. 437 and 439................... 229. Bail under U.P. Dacoity Affected Areas ACt.............c:cccssccsseceteceneeeeneeess ul |) “al Re Sa aS A 231. J&K provision curtailing power to grant bail in certain cases............... 232. Bail under Essential Commodities Act ...........ccccccccscsseesseescessesssesecnsseneess 233. Question of detention or bail to an APprovel...........ccccceccceseeseeseeeeseenseees ee CORMUNL CB MIMD UEP MINIABIG! Sal cat1. doce S103. .1LISLISI%. Seder dds ossibisescovhsvbebabdecsed 235. Grant of bail to a juvenile ..........ccccccccceccccsssssccsvcsscvsscssvsssscessseessvacenesssazens 236. Grant of bail under Juvenile Justice Act, 1986 ........ccccccccccscescessceseseeeeees 237. Bail under Juvenile Justice (Care and Protection of Children) Act,

2000 - Bail can be granted in certain offences under S.C. and S.T. (Prevention SOTTO

SE PURER

HHT

H HHT

TTHTHETHEEHTHEEERTEEEHEEHOETEHOHEHETEEEE

HEHEHE

EEE

EHEHEHEHEHEEEHEEHHEEHEEHEHEEH

HEHEHE EE HEE

HS

MMIPEOU IA. 15... 20IIII Ic eC Us. ce liscdla de cCUldclcibe cidecvseecneddedeee¥edies

- Magistrate’s power to consider bail application under S.C. and S.T. CERO VENAION. OF PUPOOIIES) FLOUR (1011. 2s RAN Abbe dealisicseccsssscededtecvsesetbe - Bail under S.C. and S.T. (Prevention of Atrocities) Act, 1989—IllusSN,

cal

cara ey ae, cae, , avnsuda lddec vGulcducdeveseescosecvons ob¥O>bSEEONS

262 262

Contents

. Special Judge has exclusive power to grant bail for offence under PreVention Of Corruption ACt.....cc-cereceereseseessessnereterenesrereresstesennsnanensnessseses

. . . .

Bail Bail Bail Bail

in in in in

corruption matter—IIlustrative CASES... sssssreeseersrereesesesneesesesens economic offences—PprinCiples .........sccecerseeeeeeecressersertsctseseess economic offences—Illustrative CASES ........scccceererseeeenserseeseres tax—evasion matters—Illustrative CaS€S ........cccsceeeereeteeteeees

_ Whether offence under S. 135 of Customs Act is non-bailable? ............ . Offence under S. 135(1)(ii) of Customs Act—whether bailable or non-

Call bette eceeterse sro 55, os sccncR escent asagsscoseseaheneeaPieeterrceas crenesteterrmepentnceeteeres . S. 437 applies for person arrested under S. 135 of Customs Act............

. . . . .

Grant of bail under Customs Act—lIllustrative Cases..............0:::cceeeeeeeee Bail in cheating/misappropriation/forgery—lIllustrative cases................ Bail in Bihar fodder scam cases—lIllustrative Cases ..0..............ceceeeeeeeeees Bail on medical grounds—lIllustrative CaseS...............::cccsescessenseeseseeeses Disbelieving medical certificate for exemption from appearance should De TARGET

hccccicecetetedittecti rin coccncde recut tttircccenarccdectorseentaesiusatcecaces

. Bail in matrimonial matter—lIIllustrative ee ee Cee

eee

. Grant of bail—miscellaneous IIlustrative Cases .................0....-ceceeeeeceveees

. Where a person had been released on bail, writ of habeas corpus beGHITIC THENETON T

ces

Neen

once

a. coc doccaccccgneencnsanemesarsze

& Writ OF igeds COl pus —ainttpen ttt COSC, cea crsccrsoncesoncoccsosgosasspapnvnepoorsees . Cancellation of bail in economic offences—Illustrative cases ............... . Cancellation of bail in cheating/misappropriation/forgery Illustrative

. . . .

Cancellation of bail in matrimonial cases—lIllustrative cases................. Cancellation of bail—miscellaneous Illustrative cases ...............::ccceeee Asking for a tip after grant of bail held not offence..............:cccsseeereseees Effect of non—disclosure of name of bail applicant as a conspirator in PEMA AO PHCHIION....:;.,.ncab-lanaatesarase tanarnencg eagannaae aniad’ centre eee tae - No provision for complainant or witness making submission during hearing of. batPmatter..1.2.0. RG. iad, TOE BARR A. - Recall of a non-bailable warrant wherein stay had been issued by High COURT ccccsdaccaceccccdesncacecceccecccnccacll Vebcbehi SRG. Gk AAmnEL Se;..fttni creates Be eesndns

QUIPEG .,Rovedsovscaecvsdpcesenscnceereskeaersensestyeyes4naseegeniens canna aS:mit ana

- Question of bail when appeal is remitted back to High Court NEALE esnibnshd sore on. «< Sepia ea Ulta t di vgis weybiptubdcbesen es) . Insisting upon local sureties or cash security not proper ................:00006+ . Change from cash security to surety where such option given initially.. . Condition of producing solvency certificate from surety permissible .... - Benefit of S. 427 cannot be denied merely because convict was on SAN, MRE

CIs 322-3 AF EE

ietcccc ccc cre nccetttte connec sks ccoclaw clokiee teguahadboar

. Courts have power to release on personal bond................::esceseeeeeeeees ge Se a Die A i i ee.ai ee . Advocate identifying surety acts as IAWYET.............:cccccccscceseeeseeeneeeeeeeseees

. . » -

Conditions as to sureties in bailable offence not to be excessive..........-. Object of requiring accused to give security for appearance ..............00 Duty of court with regard to sureties ..........c.ccccccecscceseeeeeeceeeneenteeneneaeens Cash security cannot be demanded ...........ccccccccceescseceeceeseeeeteeteeneesesenes Asking for bail or bail bond while acquitting accused...

84] 842 842 843 843 843

843 845 845 846

846 846 847 847 847 847 848

848 848 850 85] 851 851 852 852 852 852 853 853 853 854 854 855 855 856

Contents

xl

PAGE

57. Fresh bail bonds when lesser offence converted into a more serious ss

aience.

es teeiie dac scennseeenee

58. Insistence of personal bond and surety a matter of discretion in oe EE

Ne

856

857

CHAPTER 9

DECLARATION BY SURETIES —

ces occassevesuseseveries » COrrespOndivie OO IAW. .....-.eecqnensteattiheoeeoey oocntecarmeanninee No time limit to execute bond after order of bail. .......... ccc eeeeceeeeeeeeeees Accused to be released on execution Of DONS. ...........::cecsseseeceeereeeeeeenees Issuance of order of release to jail authorities in respect of release

859 859 860

GCI SF. VO TUG Cesvarsss.0crocesesaeteliteiiipeeses nassstebeunvanmeabiontcere ns ane staeneaaennane

860

CHAPTER | 1 POWER TO ORDER SUFFICIENT BAIL WHEN THAT FIRST TAKEN IS INSUFFICIENT 5

COTES PONG

ON IAW. «0.03. cide Naval Wb Ieb lss4.0.ccccesseeheeabanescoegs ccgescsoessebinnneee

861

CHAPTER 12

DISCHARGE OF SURETIES >. Corresponding ale 1aW 755.2560. ATR i REA EASA ssstcnd eoe b. SCOPES Of SCRBOBN Tc. ..0s.,ccccncsskeadicdlintys «auil¥is othecheaqe MEAG Stas. bosedtth, eaaaESe . Provisions of section meant for continuity of surety bond. .................... . Procedure when a surety desires not to continue as such. ....................2. SN nk = . If surety not agreeable to modification in conditions, he must apply to GiSCharge’ WITT TovsWerss..:.....c.cdibdyeesdues oevvesshe EME DPomesetwsstoveccomonese, a . Direction for discharge of personal bond and surety bond on

862 863 863 863 863

ne. S

864

. Corresponding oldklaw:) ..: .icnemaetio.a.:\ccicd. coh abs obag-aeeddibs . Scope of Sectiogs:: sitacus. sees, 0:22.68 GORSe.onizianee dejan

865 865 866 866

Cancellation Of bail: .05.03.%68 eRR.

Bia

ET

Cn ea

CHAPTER 13 DEPOSIT INSTEAD OF RECOGNIZANCE

- Object of. SECTION .......:..,...:525.sdbbebpnbadeon clayeeGUeGsGNURRRGRNENNIEANS 05105(LsA7RasmEEnOnRC ae

S. 445 takes care-of purpose of bails...

Annee

ehgessd.

Contents

xli PAGE

5. Discretion to allow accused to deposit cash or Government promissory . . . . , . . . .

Difference between cash deposit and execution of bond..................064 Requirement of cash security OF SULCLY ...........cccccececesesseeteeeteseeeesseeeseeees Demanding cash security from accused—whether permissible? ............ Section available only to accused and not to Suretie€S ...........cccceeeeeereeees Casiiamenrity cannot Be GemManded....cc.crencvcseree....ccerssenenenssnes stbbedcctantea is Condition to furnish bank security not possible while granting bail....... Release on cash bail without executing any bond............ $20 OL. OGuy Bail and bond with or without SUretieS ............ ccc eeeeesseeeseesseeeeeesteeeeeens Acceptance of deposit of money in lieu of execution of bond for selmmmm annie SRG TB) nccisccaccscccccsccccccanntinateatianass saasancacateeaanassieee sb oe

866 867 867 867 867 867 868 868 868 869

. Condition of cash bail not to be harsh, oppressive and resulting in denteket bathed

20h

a6

bic. 22dStheges. 201. 2200

weed.

id

» Cash. security—llhistrative Cases ssciiisssscsisssicssscsccccicsd ietesteewessecssesessecese

869 869

CHAPTER 14 PROCEDURE WHEN BOND HAS BEEN FORFEITED . Corsesponding old law enn... 380A. AS, BRI 9 . Scope of section) WHRRUOREUL 206, MORAG Bae NG RIL 2.21 NOM . Meaning of ‘Bail’—includes with or without sureties.......0.......ccceeeees . Notice necessary before ordering person to pay penalty in bond ........... . Notice to surety not to be issued unless order of forfeiture is passed .... kh = Aun WSN . Node novo enquiry necessary where show cause notice to surety was IS 5 ES ES RCCK

ove

ee

. On forfeiture of bond of surety, steps under S. 446 can be taken Spamsh. surety and AeCGsOS i552. NR sie ek IG, BAL occas . Forfeiture of personal bond of accused not a condition precedent to forfeiture. of bond of surety .i...:.vacR Wa ck inais da vaibilavtlo.aauas . Forfeiture of bond of surety alone when no bond was executed by MCCUE TTITISEIT . coor

RN

Tere ah

ete

hi decdeuotterr a hina

wor scnees

. Proceeding for realisation of penalty from sureties without passing I sos coc vasedhcdiieaekctsbuesce+e. sesttinssisanssacnssesdreeso nies - Question of warrant of arrest against SUFeLY ............ceceesesseeteseeserseteeenees . Committing Magistrate can forfeit bonds where he granted bail............ - Remission of penalty imposed on surety under S. 446(3) ..........::ccece . Forfeiture of bond by CJM is appealable before Sessions Coutt............ - Penalty against each surety is for amount which he undertook in bond. . Imposing penalty on sureties —Illustrative CaSeS ...........ccsececceseeeseeeeeeees

. Discretion to grant remission to be exercised judicially ...............:0e000 . Court before which appearance to be made must be expressly stated in I

872 872 872 872 875 875

875 875 876 878 879 879 879 880 880 880 88]

881 882

xlii

Contents

PAGE

. Penalty reduced where sureties rendered help for securing arrest of

PT OT . Which court can take steps to forfeit a DONG? 0.0... cece eceteeteeneeeeeeneee

. Liability of surety cannot be unilaterally extended without his consent. . Status of bail bond during appellate stage ........)..Jiiclcessseeosesssccssosseecs Action where bond provided forfeiture of amount to court and not to baeAbe MOREL UUsd,LAUphde deedsdaIEeL EMEEaNORdacdedbe deste recseded GOVEINMENL ....-0-0sncesece

25. Only bond taken under Cr.P.C. could be forfeited under this section .... 26. Bail bond to be strictly construed and its language cannot be departed nsgunen MEIEEEEmNeINa alae aitSanam ciliaaeinesidet ofssessseedoe FTOIN........-., lee

ae

ae

en

ee

FINCGE Sagsieccs a Dhdeccccddes in nacatsctte te VO

RO

5

CTO

an

BRL

eee

1361

IR:

1362 1362

. S. 309 comes into operation after taking of cognizance ..............eeeeeeeee . No custody under S. 309 after expiry of prescribed period under S. 167 Be CMR EE FINI UN cnc rc ues os uac seca sat degeUeeReese duexexsvedesvevesesieveevuayeeeys . Ss. 167 and 309 together show release if no charge sheet filed.............. . Custody when charge sheet filed but cognizance not taken.................... . Magistrate’s power to remand after submission of charge sheet............ . Custody after filing of charge sheet is under S. 309.00... ee eeeeeeeeees . After taking cognizance, power to remand flows from S. 309 and not EE

OE

OR

Re

ete

ie ot ce

Ten oo

- Rectification of initial illegal remand by subsequent order ................06 . Delay in cognizance after charge sheet will not give right to bail..........

1364 1364 1364 1365 1366 1366 1368 1369

- No power to remand accused to custody under S. 309(2) if he was on

se

Eiatetern ites bhit icra. VRID Qe) 1G DIG TCE

a ica nsrancstgponeostgresvepy bresasbe “98 - Does “inquiry” in S. 309(2) cover proceedings of Magistrate acting ae

ve

cueweneuupeneveseqcqesecoppe sass

aeMemECMMIETETO WEY ER WNREUE TON WEETENIC! ccccc¥tcccceccc.s.ccocccsscessevccveseveneeseeseceee

1369 1369

1370 1372 1372 1372

Lxii

Contents

PAG} 41. 42. 43. 44.

Order in order-sheet is not a warrant for detention of accused............... Court expected to be vigilant while signing remand PapeFS .......1.0:0.00+6

Accused entitled for release where present detention is illegal .............. Order requiring production of accused on specified date is an order of Tt

i

re

ee

45. Under S. 309(1), Magistrate can stay his own orders including bail setr iaandas catenin aati isecpnenncuns diimieand tietnee senneindalticac GIGGLE «oa 46. Illegality in remand order not a ground for grant Of bail ............eeee++ 47. Relation between S. 209 and S. 309 ...........-ccces-seseerrereessvesesvvaveveressennnee 48. Custody under S. 309 —Illustrative CASES .....+::sscececseeeseeseeteatereneneeees eres 49. Accused found missing from judicial CUStOGY ..........:ccccccceeseeerenerseee 50. Does S. 309(2) come in way of detention of a subsequently arrested DCTSOMN? ........ageaeé> «pecs dasstonss bab a> “BOWMEPS> 7:2 OLR PERRY OH -b6>- Sore eee a 817 acon v. State of Orissa, 1982 Cri LJ 1954 at p. 1957 (Ori) (FB) seaee $4by "eae Cat L7-2295.,..qan. JMS Hetntianitinnansesunnsutitisnensnueussuns 113, 176, 205, 647, Ne Masai MNES. | ea Bik 5 res buoie ee 1189, 1227, 1228,

Bijendra Singh v. State of U.P., 2001 Cri LJ 1749 at p. 1750 (All).

Bijendra v. State of U.P. 2006 Cri LJ 2253 at p. 2759 (All)...salt dinslidit he ones

of Jharkhand, (2005) 11 SCC 179.0000. Gupta v. State BilashManemma Billa v. State of A.P., 1996 Cri LJ 3404 at p. 3408 (AP).

Bimal Kumar Khetan v. State of Orissa, 2007 Cri LJ 958 at pp. 963-64 (Oni) Bimal Lochan Das v. State of Orissa, 2008 Cri LJ (NOC) 239 MOND iictatek> « Bimal v. State, 1969 Cri LJ 1473 at p. 1474 (All) oeccccecccccc

1229

13

1265

3, 134, 797, 856 523 er. 1705

446 Bimaladak v. State, 1997 Cri LJ 1969 at p. 1971 (Cal) : 1997 Cal CriLR72..... 92, 329.330 331, issn eerie AEN KG RA fis: COC eee ee eeens See ereneee

Xie die saad

PPP eee

.

cee ee ee

Peete tee . . eeeee lad)

eeeC RC ali

e rere eee eeeeeereeeees

* 6% see eeeee

ee Peete

333, 338, 353, 354

» eees *

405, 426, 433, 569

Table of Cases

Lexiii

man Chatterjee . Sanchita Chatterjee, (2004) 3 SCC 388 : AIR 2004 SC ee Ae rt BGOE * 2008 SOO (Ori) BIG cssnnsarrancdedte Sibadecasedeab. 195, 196, 636, 637 mia Devi (Smt) v, State of Bihar, (1994) 2 SCC 8 at p. 9 : 1994 Cri LJ 638: See Res CO UR BSCS. COOL Se BA Ly ak UE. asvccscadacuid 144 ndu Mehra v. Sushil Kumar Mehra, 2007 Cri LJ 3455 at p. 3457 (Del)........... 522

nod Amat v. State of Orissa, 2004 Cri LJ 1021 at p. 1023 (Ori)...

nod Bihari Mishra v. State of Orissa, 1989 Cri LJ 2458 at p. 2460 (Ori)......... nod Paikray v. State of Orissa, 2008 Cri LJ (NOC) 528 (Ori) ..........ccccceeeee noy Jacob v. Central Bureau of Investigation, 1993 Cri LJ 1293 at p. 1295 I a as pin Shantilal Panchal (Dr) v. State of Gujarat, 1996 Cri LJ 1652 at p. 1653 : AIR 1996 SC 2897 : (1996) 1 SCC 718 : 1996 SCC (Cri) 200.0... ee. Diets Lintinoveandadih OOo GPbi Gt bb S dD MELCRED waned oversols r Bhadra Pratap Singh v. D.M. Azamgarh, AIR 1959 All 394 : 1959 Cri LJ DE Sci ocr chia RN PANEL. 5 EN nth o che bols-chadde fbb Chie Saa.stlacia & deosisal

185, 241, 622, 739

694 699

121, 766 979, 980, 1224, 1241, 1242 1302

rajit Sinha v. State of Tripura, 2004 Cri LJ 4485 at p. 4487 (Gau)...................

22, 108, 127, 691,

SE edvese-betenterndile SG la Miice i Sivan bs Std hes He, ERE is Aidaaidanves! rendra Singh v. State of Jharkhand, 2007 Cri LJ 1053 at pp. 1055-56 (Jhar)... shnu Mallick v. State of Orissa, 1993 Cri LJ 3817 at p. 3819 (Ori) «0.0... swanath Bhagat v. Sanjay Saha, 1992 Cri LJ 3105 at p. 3107 (Ori).............8.

753 201, 287, 641 795 291, 551

ttu v. State of Rajasthan, 1998 Cri LJ 3036 at p. 3045 (Raj) ou...

eee

799

by v. State of U.P., 1999 Cri LJ 2758 at p. 2759 (All)... eesessceresresteeenees 172, 686, 814 ydhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490 : AIR 1996 SC A RD IS an wri shaininthaitantnandsincavigi te bie hdeiea byRy a8 225 yrhen Singh vy. State through Dharam Pal Singh, AIR 1956 All 671 : 1956 Cri sR es ee aes Cm, eer ae ne ee 194, 635 ahma Nand Misra v. Emperor, 41 Cri LJ 85 : AIR 1939 All 682.0...ee 836, 837, 840, 841, Kassuswastendesdaags seaunaniiiiatsduadnnnanececenanraentbocahbe Alb Se) AGRE ORGIES: sel 844, 876 aj Kishore Thakur v. Union of India, AIR 1997 SC 1157 at pp. 1158-60 : (1997) 4.SCC 6921997 SOC (Cri) SIGs... 5852 DBhE BOOS... SAL30.5 975, 1028 ‘ij Mohan v. State, 1997 Cri LJ 4266 at pp. 4267-68 (Del) ........ cceeeeeeeseeeeees 685 ‘ijendra Narayan Choudhary v. S. M. Singh, 1967 Cri LJ 1441 at p. 1442 SE siseiaicMinyanes dans e-teb ebterem bd tO etal raion iN een 843 ‘ijesh Kumar v. State, 2002 Cri LJ 3873 at p. 3875 (Del).....c.ccesceceseesescnreenees 711 ‘ijesh Singh v. State of Karnataka, 2002 Cri LJ 1362 at pp. 1366-67 (Kant)... 229 ‘ijeshwar Dayal Verma v. State of U.P., 1992 Cri LJ 411 at p. 412 (All).......... 702, 738 iddha Singh y. State of U.P., 1997 Cri LJ 4101 at p. 4102 (All)... cece eens 787 ikke Ranuka v. State of A.P., 2005 (1) ALD (Cri) 874 (AP) ........cceecccseereseees 1188

ita Ram v. State of Haryana, 1981 Cri LJ 461 at p. 462 (P&H)...

eens

694

ABDUL HAMEED v. STATE OF KARNATAKA, CRAIN) i, cSice in AD PAN AS toe ected tad ickdoe EMT

1999 Cri LJ 3654 at p. 3657 BR Lois ite TH

463

Bhaskaran Nair v. State of Kerala, 1987 Cri LJ 170 at p. 173 (Ker)...............

HIE

ds BAG

AION

1316, 1317

Natesan v. State of T.N., 1999 Cri LJ 1382 at p. 1387 (Mad) ..........0ccceceeeeees Prakash Agarwal v. State of A.P., 2000 Cri LJ 4310 at p. 4310 (AP).............. H. Siva Prasad v. State of A.P., 1999 Cri LJ 1263 at p. 1268 (AP) : (1998) 2 NA vos Svedsdbeds eb dideesobabbiscadee ii AMD essetnds ANIMAS eA HAAN Pea LEA K. Boban v. Union of India, 2005 Cri LJ 2801 (Ker) ...........c:cccclecsseceseeeneeeeeees M. Eisaw v. State of Karnataka, 1989 Cri LJ 1159 at p. 1160 (Kant) ND. fbi P. Nangia, Asstt. Collector of Customs, Bombay v. Omprakash Aggarwal, FIOM S12160. af Do 2164. (BOM) en seiccsicsidoricoeveercesinteviossvecedsrsccesscsserssseoenes

242, 1094, 1112 855, 867

eee e 8 eS en ¢>Ee n OE yp Se Fan’ © ie | > Re T. Mathew v. Govt. of India, Home Dept. (C.I.B.), gsi Cri LJ 1316 at p. 1336. (Kerb: 2984 Ret LT 9492 1.5: die BR is ci airactoncscsccreetcenseens eae

266, 749

R. Patil v. State of Gujarat, (2005) 11 SCC 119 at pp. 121-22 :AIR 2005 SC

PPrTTTTrerrrrririil PPPTPT

TILT TIT

TRL

LITLE

LL

ie ee

eeeeeeeeeewerres

406 269, 275, 462 887

1303, 1374

91, 92, 97, 323, 325, 346, 436, 568, 1104

Table of Cases

lxxiv

a at p. 954 Capt. Satish Kumar Sharma v. Delhi Administration, 1991 Cri LJ 950 oy ste? osse ressnazo (Del): (4991)-1 Cri LR 480 .ccccssessssssosesssecatecnessssuonersestareesssesesescs CBI y. Akhand Pratap Singh, 2008 Cri LJ (NOC) 346 (Del) ......---.---» 1992)3 1049, 1112:1167 CBI v. Anupam J. Kulkarni, 1992 Cri LJ 2768 : AIR 1992 SC 1768 : (1992)

NER TAN E NR ene Ohio esecncck TOL AAA. caltn Neds ele ot bleh Se , ice oe arthAlois t-paincaeat ok I REMM TERT ee n e e 1 ee

eee

WER

a

CBI v. Dhan Singh, (2003) 9 SCC 248 at p. 249.....ssssscssssseseesesssesseseennnnnneees oh.

CBI yv. Pradeep Bhalchandra Sawant, (2007) 7 SCC 344 at p. 346 : 2007 Cri LJ

4708 : (2007) 3 SCC (Cri) 362........c:ccccsceseseeseesenseserserseessensssessessatenssesnansesees CBI v. Showkat Ahmed Bakshi, 1995 Supp (3) SCC 73 at p. 73 : 1995 SCC (CHI) T9G ciccccccccscessesscscsessssessdescocscscessscsseseseessnecssecsssecsnsorasersessesasauenassnanansnneys Central Bureau of Investigation v. Nazir Ahmed Sheikh, (1996) 2 SCC 367 at pp. 368-69 : 1996 Cri LJ 1876 : AIR 1996 SC 2980 : 1996 SCC (Cri) 314. Ch. Jagjit Singh v. State of Punjab, 2007 Cri LJ 3547 at pp. 3550-51 (P&H) 481 Chadayam Makki Nandanan v. State of Kerala, 1980 Cri LJ 1195 at p. 1197 CREB ees dacceccesccsvcssvveccnccevouveddnduvessdeabess ccsncestdvedbbedUlponestetestoWy -

1079, 1080, 1083, 1086

Chhaila Pradhan v. Randiihen Pradhan, (1986) 62 Cut LT 699 (Ori): (1986) 2

COPE Ee SO ose Re eee, ek. Lik OR OTE eccrine eM R ade. Chhajju Ram Godara v. State of Haryana, 1978 Cri LJ 608 at p. 609 (P&H)...... Chhotu v. State of Maharashtra,

1995 Cri LJ 875 at p. 878 (Bom)*:

179 383, 385, 507

1995 (1)

Pe Ee isi cs cacPUUKRRMNDREUEPRULAKAG( cic 0cahATUREMBNEDARAD Mah 0s0sc0,csc0SRDEEBEBDdanaiesso» Chikkappa v. State of Karnataka, 2002 Cri LJ 518 at pp. 521-22, 525 (Kant) : 2001 AIR Kant HCR 3127 : ILR 2001 Kant 5483.00.00... eceeeeeee Chimanlal Dharamdas Shah v. State, 1987 Cri LJ 2002 at pp. 2004-5 (Bom)..... Chinta Mani Tripathi v. State of U.P., 1991 Cri LJ 1662 at p. 1666 (All)............ Chittaranjan Mallick v. State of Orissa, 2008 Cri LJ (NOC) 122 (Ori)................ Choutmall Sarogi v. State, 1974 Cri LJ 1134 at p. 1138 (Cal) 0... Chowriappa Constructions v. Embassy Constrns and Devpt P Ltd., 2002 Cri LJ 3605 af p. 3865 (Kamp Gl Pink. 5.15 RR 1 RRR... Chuna Ram v. State of Rajasthan, 1997 Cri LJ 2727 at p. 2730 (Raj) ............0.... Chuni Lal v. State of H.P., 1996 Cri LJ 3864 at p. 3866 (HP)... Chuni Lal v. State of Punjab, 1996 Cri LJ 4474 at p. 4476 (P&H)...

951, 974, 1018 473 837 ~ 707, 788, 789 ' 267 653, 663 32, 34, 41 154, 589, 684 121, 709 731

Collector of Customs v. Ahmadalieva Nodira, (2004) 3 SCC 549 at pp. 552-53 : Bee Orr LE) 1810 vO BSCS (Cri) B94 i eacet aise iss. sst Ai e800.080. 947, 958, 960, 964 Common Cause, A Registered Society v. Union of India, (1996) 4 SCC 33 : AIR 1996 SC 1619 : 1996 SCC (Cri) 589 : : AIR 1997 SC 1539 : 1997 0G) Oe So ae Ds oo a 4 de 1054 Commr. of Police v. Syed Hussain, (2006) 3 SCC 173 at p. 177 : AIR 2006 SC 1246-2006 SOC CEG Heo fii). RRA AE 2... ERT SORTS... 313 Court on its own motion v. Sanjay, 1995 Cri LJ 1824 at pp. 1828-29 (P&H)...... 521, 1111 Court on its own motion v. Vishnu Pandit, 1993 Cri LJ 2025 at p. 2035 (Del).....

148, 708, 737, 778

D D. BHASKAR RAO v. STATE OF ORISSA, (1985) 60 Cut LT 228.0000...

eee

1312, 1313

D. Bhuvan Mohan Patnaik v. State of A.P., (1975) 3 SCC 185 at p. 191 : AIR

£974 SC 2092 © 1975 Crt LI 556 = 1974 SCC (Ori) BOF ier ccecerccssecesnces D. Chandran v. State, 1997 Cri LJ 1945 at pp. 1946-47 (Mad)........... cee D. Mallesham Goud v. State, 1999 Cri LJ 3864 at pp. 3867-68 (Del)............00.. D. Prabhakaran v. Inspector of Police, (2005) 12 SCC 399 ooo. eceeee cree

D. Veerasekaran v. State of T.N., 1992 Cri LJ 2168 at pp. 2177-78 (Mad).........

1119, 1120 521 267 524

1033, 1063

D.B. Binu v. State of Kerala, 2002 Cri LJ 4374 at p. 4380 (Ker)...

eee 669 D.K. Basu v. State of W.B., (1997) 1 SCC 416: AIR 1997 SC 610: 1997 Cri es POST BO rian nance eee oerce cs cecessecsge usgretarccrenntesscesss 23, 24, 1095, 1098, Lo ER diel oc =. er Sal ge Mr RRO AE. eae S 1106, 1107, 1108, po tle ca on et eR ee oe 9 te 1111, 1113, 1123, ant... cesceereeeeeeene chara t Se cerevec te ceMMMOMMtES cats ooo: s geteavpteneeniverares ses iagses 1128, 1129 D.K. Ganesh Babu v. P.T. Manokaran, 2007 Cri LJ 1827 : AIR 2007 SC 1450: 26, 92, 325, 331, cerrcclec ss scones eqeusesastsestesscvssccssesene Te LC, Fe. Me OG. WCRI 353, 355, 361, 332, A be ae ond bee ore oe Re Ee ees pep eh epee ee Oe yt Set a Pe Pagar le 399, 401, 409, 525, 569, 570, 1117 oa MiB SS IRR ss aati To NIRA Sn 511 cssessseseees D.N. Rao v. State, 2001 Cri LJ 3739 at p. 3744 (Ori) ..........c.cesscssscesse 15, 164, ae Bs D.S. Bhatnagar v. State, 1967 Cri LJ 1297 at p. 1299 (Del)...

Dadan Singh v. State of U.P., 1993 Cri LJ 1785 at p. 1794 (All)... cece Dadu vy. State of Maharashtra, 2000 Cri LJ 4619 : (2000) 8 SCC 437: AIR

1005

i tirrevesccsecsssccassteryuctefargeissscsceesss 903, 939, 942, 986, EE 5203S DOES BTN) POD 992, 993, 996 eae. Sut EMEC Caress cvssesscoccaseareteretyrarts snes scees° ee, , coerce 232, 932 Dal Chand v. State of U.P., 2000 Cri LJ 4579 at p. 4581 (All) un. Dalam Chand Baid v. Union of India, 1982 Cri LJ 747 (Del) :(1982) 2 Chand

EE

190. os seererm

PTT TT TTT TTrrererTeETEEEEEee

are raes cosets ee

ty sc sccsgpveocducesdtevoayeesseeseesee: ee,

270, 271, wae

Table of Cases

lxxv1

eener seneeee weapesedeseaanssesedocennqesse

p. 1054 (P&H) ...---reecreeee LJ 1051 at2004 Cri 2 199 , jab Pun of ate Cri LJ 4396 at p. 4396 Tharkhand, Daljit Singh v. St State of Damodar Kumar Kashera v. tvs Lead. che dei~Ghagtd haan eadant of v. Dharminder Kumar, 1995 Supp (3) SCC 242 at pp. 242-43 : eect «versyagvoaptese Rei BS iil aa Sy San 1984 SC AIR : 596 SCC 1 v. Jagdev Singh Talwandi, (1984) eat eli lel init I A, SSPE atth geen = SCC 147 at pp. 147-48 : 1990 Sie Supp 1990 Singh, v. Kewal ey rena in ttaertnds csacsucbaeiarraenris ucembgraoe open censsnc on’ wannatly + yayses yesneegeesees® v. Raninder Singh, (2008) 1 SCC 564 at pp. 565-66.............005

State of Punjab v. Sukhminder Singh, 1998 Cri LJ 3090 at p. 3095 (P&H).........

State of Rajasthan v. Balchand, (1977) 4 SCC 308 at'pp. 308-9 : AIR 1977 SC © Onl( Oy ) >) ee Oe bm ee Cs er Vo 9

9

924, 925, 926 wr.

966

150, 584 rin

395

1206, 1230 19, 107, 108, 575

Table of Cases

aaa

ET

daar ter p. 1982 (Raj) at en u Khan, 1975 Cri LJ 1981 Bhanwar v, n State of Rajastha amore) ae t eat ee

sea ah Geb, 5

a

ee a

NO

ere 1237 at p. 1241 (Raj)-.--ceceeerercrrere State of Rajasthan v. Bhera, 1997 Cri LJ

1270, 1362, 1364

1097, 1098, ae

p. 4292 (Ra)) «--------e~ 769, 783, 784, ine State of Rajasthan v. Fakir Mohd, 2000 Cri LJ 4289pp.at 270-7 714 1 (Raj)... at State of Rajasthan v. Lalsingh, 1987 Cri LJ 269 p. eer 2212 (SC) sated -vrrsrreetb--29 at State of Rajasthan v. N.K., 2000 Cri LJ 2205 Cri LJ 4216 at pp. 4228-29 State of Rajasthan v, Ravishankar Srivastava, 2005sacadianagsn Tikta etsten esco nestssetbe sisaest cese esetss ee ncen FEE sssasancsnospsutaptazccccsonsesssnvs : | SCC 393 at pp. 398-99 AIR State of Be teen v. Sukhpal Singh, (1983) 213.1... s-rrsererereervores ost 1984 SC 207 : 1983 Cri LJ 1923 : 1983 SCC (Cri) Cri LJ 207 at p. 210 (SikState of Sikkim v. Rolland Christopher Chettri, 1989 ieaR" Earks ones acOS Ss(MM uaeens snteese vo nneeseda apehona ca imerede da oxnnmgn METRY cc casssdusdece ...-rversresssssrnmanrernrcrrerens State of T.N. v. R.R. Gopal, (2003) 12 SCC 237 at p. 239

ma

210 Pe ’

;

109, 574, 106, iat

83 : AIR 2005 SC State of T.N. v. S.A. Raja, (2005) 8 SCC 380 at pp. 381ving snnaeachnnnghenteniotnasns Caansaines tiveness erry eye errant see A OS oT 30, 89, 111, 114, Metstwlatarvt weRee vee cbcsstubesehenaeeeeenteneeteseLetcakhacl eee eee eee ee 272, 561, 562, 572, DaThsvinnnsnsennnnesecititthnsttaieeeeyseeeeeab autre hh is cts aes taeheeammnteaeees ci:00 c01scskrtsansltlpGibetn + 573, 574, 576, 665, sdevtnpiesasunnvsnnssontsssnccushShSGeeberabareeee ies tone onan tea te hats mere ee ee ELA ” 666 State v. D. Rudra, ADM,1969 Cri LJ 1487 at pp. 1488, 1490 (Cal)........-ccccccc0.-. 299 State v. Dallu Punja, AIR 1954 Madh Bha 113 : 1954 Cri LJ 1052 (FB).............. 348 State v. Dawood Ibrahim Kaskar, AIR 1997 SC 2494 at p. 2497 : (2000) 10 SCC 438 : 1997 Cri LJ 2989 : 1997 SCC (Cri) 636 oo... ccccccccccscescsseecsceceseee 1162, 1328, 1377 State v. E. Veeramani, 1994 Cri LJ 184 at p. 187 (Mad).......ccccccccccsescscecescecessesees 127, 179, 183, 188, Fahad ee ass 5S sae aa aeRO 189, 291, 616, 620, Peaereteeiin sss+ MMiehte>, s SOS Grant of bail on ground of parity. ....ccscpese > ncuaietht cingeiRDbe aaieeee 216 Bail order not supported by reasons no ground for parity ................0..cccccesceeteeeneeeees 218 eb 219 ws... ..:>-Lasceae Cancellation of bathon ground of pareiiicdd. den

¥7&

0e0 45-26ae . 105fo No parity in rejection of bail...........diemmndeth MEd...:0 CMtes ess recuneur Bail under Defence and Internal Security of India Rules, 197]... ee SE Sekt Baibander Foreigner's Act; 1946.......: no Gsesd 2gnihossang. line ..5.00 5...0: Applicability of Ss. 437 and 439 to Navy ACt wo... ceceeeeeeeeeeneseesseeecsneeeesaeeees

240 241 242

243 243

243 244 245 245 245° 246 246

Bail under Unlawful Activities (Prevention) Act, 1967 .0.......ccccciieccccccececcecseeeceeeeee 247 Offences under Railway Property (Unlawful Possession) Act — whether bailable or

PIII « occ ceecacevtenettingnes vedas tet OMARION AAA 5055 0000teseseionabeupervios IDRSUIEEEE sces Grant of bail under Karnataka Forest ACt..........c.cccccccccecstseecesnneeeeseeeeesseesensesesensetes Repeal of S. 438 in U.P. has no impact on Ss. 437 and 439..0.0.......eeeeceeecceeeeneeeees Bail under U.P. Dacoity Affected Areas ACt......cccccecciccccccseeseneeeeesseeeessseeeensseseeuees

227. 228. 229. WOGr RG. niaciat. mle eye 7a sual Aad ain Lies aes 230. Ball ines 231. J&K provision curtailing power to grant bail in Certain CaSES............00ceeeeteeniee 232. Bail under Essential Commodities Act ........00c Ws). 2tus. 0. BUEN chia isabel bes hese cc ccc cee ceeeteeeeeseeeetteeertaneeetteeesenees 233. Question of detention or bail to an APPrOVer.........c.cc hvetdnvekebn swats vnvsssoneqenessssphetes 234. PSE GOS -CEE UE). NERIIMEIEs sanearncnepe cos scstecsroncvug sunntosype bapsnen ieee cceeeeteeccsesseeeeseceeesesesensaseenaasensaeesensseeensensnas 235. Grant of bail to a juvenile oo... cccccccceees eset csteeeerteeeeeteneeeenins Act, 1986.20.00... Justice Juvenile under 236. Grant of bail Act, 2000........ sseeeseens Children) of 237. Bail under Juvenile Justice (Care and Protection 238. Bail can be granted in certain offences under S.C. and S.T. (Prevention of Atrociticon Act: jan .chaleats laicoinit, wah tala a idiiisid BOUE ROHR Wssitees 239. Magistrate’s power to consider bail application under S.C. and S.T. (Prevention of ever vier Wires eters Madris limad tdien Asrpaities) Act..,..is cieai seeme ie soseeneesestecennes 1989-illustra tive cases ...... 240. Bail under S.C. and S.T. (Prevention of Atrocities) Act, 241. Denial of bail to person charged of high COrrupliONn...........cccccereeereere steerer aasaeens 242. Special Judge has exclusive power to grant bail for offence under Prevention of CREUEIOT AACE nx, ABRDbM UME Licicd. 19614 a RAAT UEN > VO). Gai 04 Se deeaan prev ene Hees deeenes +4 SIN ens tener eee seeteeten 243. Bail in corruption matter — illustrative CaSCS.........6:cccccccseeesee 244. Bail in economic offences—principles ............. cestuestsesdtvenscnssensuveneeneesenseseesesn#ingcgngnngs 245. Bail in economic offences — illustrative CASCS...........::.cccceesreeeererreeenrneesteeeetenaeeestegees

247 249 249 249

250 250 251 252 fin} 252 253

255 260

261 262 262

263 263 264 264

ilable offence When Bail may be taken in Case of Non-Ba

64

246. Bail in tax-evasion Ee . Whether offence under S.

ae a of Customs

[Chap. 4

a iss bi. 00 coseasens ta -ba

=

ns rh blehenenees bailaceeeeeee -non--:cceeee bleer r baila hethe ms Act-w Offence under S. 135(1)(ii) of Custo ...0.--ACL ms Custo of 135 S. under ed arrest n 249. S. 437 applies for perso i ....-++-+-+sssreserssrer re of bail under Customs Act—illustrative CASS

a

950. Grant CASES .escccseevesssersserssecsseeonensease roo 251. Bail in cheating/misappropriation/forgery—illustrative nsseonessnnye a 252. 253.

CASES ...e.ccececsesseeencsnenscersnessesensnn Bail in Bihar fodder scam rere nn rseeter sertese .......-.+-+-----srssrses Bail on medical grounds — illustrative CASES from appearance should be based =

255.

-----+errersseee Bail in matrimonial matter—illustrative CASES .......-

254. Disbelieving mnie certificate for exemption a Ae 00 Se s 008 e ON Material .........seeeerereeees seveeneenens sebci eats eseeteee cesessec ereerenenterersr

256.

257.

.........-. saseesessanennnannnnstaniconscsssssnnsctnastnass 280 Grant of bail—miscellaneous illustrative Cases s became

Where

a person

had been

released

on

bail, writ of habeas

corpu

tnnterceseese++++eeereS aaa 285 BAWOTIOUS ......+ ach isinansaseannesitnves sual eeasGedacantgeaatles debe 303.

Grant of bail to accused does not mean court will not do justice to complainant ...... ae

304. Accused added in a case by court to be treated like accused arrested by police ........ 308

305. Not necessary to incorporate all submissions in bail order .............0.cccccccccccccc 309 306. No need to issue process under S. 204 while passing order for accused on bail or in

qusngyetiy Hrereeern ne... 8o05 Sok Se a A 8 elie a ten 309 307. Jail authorities to comply with bail orders without raising hypertechnical 308. 309.

310. 311. 312. 313. 314. 315. 316. 317. 318. 319.

CRAPOGRIEINUS Rit RA Trt MFI ties Se ccecrtaptsiete eeate ©cte RET Se, icctit pene 309 tet Exclusion of persons who were on bail from remission of sentence.......................... 309

Disclosure

of fate of bail or anticipatory

bail application

in proceedings

for

SN I on ig Bisa Chih 55s Chet ga EN on signs ttnananan rp baacanvvie Cana psi cise since. Asking for bail or bail bond while acquitting accused 0.0.0.0... .ccccccccessesssecssecscseseessees Applicability of Ss. 267 and 268 for presence in bail matter and for investigation GUE GOS Sse ccare sets Regewceeverges fontecvcnsanedescsacupaes+ devi h GD PEMED. AME ERI, LEG Referring to case diary during hearing of bail application ...............c.cccccccssesseeeeeeeeees Duty of lower court in bail matter when bail application pending or disposed of in a SIE Ge ne en ann err fe a8 Fact of anticipatory bail granted by superior Court may be considered by ANNUNC WHRMMNEN ENNOMARTENGE EIGN cc ohoccs0205 ctdecc vena vascceeeneneada see eyasae santas eve snes terete wemtenerats NEU Rejection of anticipatory bail application by superior court is no bar to grant bail.... Rejection of bail inspite of name of accused not mentioned in charge sheet ............. Detention not necessary for making search and reCOVETY ............:ccceeeeseeeeseeeeeteeeenneees Police constable standing surety for accused who jumped bail...............cceeeeeeeeeees Grant of bail without hearing prosecution on a day earlier than that fixed for OSE sins 2 ne Sha es wei 8 pss aa Bg cig i on SindSect I ii an

310 310 311 312 312 312 312 312 313 313 313

COMMENTS 1. CORRESPONDING OLD LAW Thi s section corresponds to S. 497 of the old Cr.P.C. of 1898.

2. LEGISLATIVE CHANGES The earlier existing sub-section (1) of S. 437 Cr.P.C. was substituted with the

present sub-section (1) by S. 5(a) the amending Act No. 63 of 1980, w.e.f. 23rd Septe mber, 1980. The old sub-section (1), before its substitution, stood as under: “(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 he shall not be so released, if there appear

reasonable ground for believing that he has been guilty of an offence punishable with

death or imprisonment for life: Provided that the Court may direct that any person under the age of aa Si He: a woman or any sick or infirm person accused of such an offence be released on bail: Provided also that the mere fact that an accused person may be eoquitey pel Hh

vere ie identified by witnesses during investigation shall not be sufficient ground undertaking an gives and bail on released be to to grant bail if he is otherwise entitled

ilable offence When Bail may be taken in Case of Non-Ba

66

[Chap. 4

as may be g iven by the Court:” that he shall comply with such directions

ionnss OT of ,Section 446-A and provisisio “the accused shall, subject to the ” has been substituted in Breath the a neniithe hen Thaliry, be released on bail inquiry, be preg ai * as h suc g din pen l, shal d use acc e “th n sio expres 23r ession

, w.e.f. the Act No. 63 0 section (2) of S. 437 Cr.P.C. by S. 5(b) of September, 1980. | ” have been substituted in place of the word ds “reasons or spe , Th re as7 C P.C. by S. 5(c) of the Act 63 of 1980, w.e.f. cvauans” $ieiib eetttorl (4) of S. 437 Cr. 23rd September, 1980.

eos

Cr.P.C., the expression “‘a Subsequently, in clause (ii) of sub-section (1) of S. 437 more but not less cognizable offence punishable with imprisonment for three years or ilable than seven years” have been substituted in place of the expression ‘‘a non-ba and cognizable offence” by S. 37(i)(a) of the Act 25 of 2005, w.e.f. 23rd June, 2006. Likewise, the fourth proviso was inserted in sub-section (1) of S. 437 Cr.P.C., by

S. 37(i)(b) of the Act 25 of 2005, w.e.f. 23rd June, 2006. Moreover, by S. 37(ii) of the aforesaid Act 25 of 2005, w.e.f. 23rd June, 2006, another change was made in sub-section (3) of S. 437 of Cr.P.C., substituting the

following provision: “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.”

in place of the old provision shown below: “the Court may impose any condition which the Court considers necessary— (a) in order to ensure that such person shall attend in accordance with the conditions of the

bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c) otherwise in the interest ofjustice.”

3. SCOPE OF SECTION S. 437 of Cr.P.C. deals with grant of bail in a non-bailable offence. Unlike a bailable offence where bail is a matter of right (under S. 436 Cr.P.C.), grant of bail for a non-bailable offence under the present section is a matter of discretion. This section deals with the power of the Magistrate to grant bail in a non-bailable offence;

on the other hand, the Sessions Court and the High Court have the power to grant bail in such an offence under S. 439 of Cr.P.C. (see infra). It is pertinent to mention.

that the Magistrate’s power to grant bail in a non-bailable offence is limited in the following situations:

(i) The Magistrate cannot grant bail if there appear reasonable grounds for believing that such a person has been guilty of an offence punishable with death or imprisonment for life. This implies that even in such a case, the

Syn. 3]

Scope of Section

67

Magistrate does have the power to grant bail if there are no reasonable grou nds for believing that such a person has been guilty of an offence

punishable with death or imprisonment

for life. Therefore,

it is not

there is a complete bar on the power of the Magistrate to grant bail in that such

a case. Moreover, bail can still be granted in such a situation if the case is

covered under the first proviso to sub-section (1), i.e., when such a person

is under the age of 16 years, a woman, infirm or sick person. . (ii) The Magistrate cannot grant bail if such offence is a cognizable offence and such person 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. However, bail can still be granted in such a situation if the case is covered under the first proviso to sub-section (1), i.e., when such a person is under the age of 16 years, a woman, infirm or sick person; or if the case is covered under the second proviso to sub-section, i.e., if the Magistrate is satisfied that it is just and proper so to do for any other special

reason. S. 437 also deals with certain conditions which can be imposed while granting bail. This section further provides power to the Magistrate to cancel bail granted under sub-sections (1) and (2) under appropriate circumstances. Sub-section (6) of S. 437 deals with release of a person on bail in any case triable

by a Magistrate, if 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. It may be noted that even an officer in charge of a police station has been given some limited power to grant bail in a non-bailable offence under this section, as can be seen, in particular, from the language of sub-sections (2) and (4). However, the experience shows that such power is usually not being used in practice by such police officers. Section 436 of the Code provides for grant of bail to a person accused of a bailable offence, while Section 437 provides for grant of bail to any person accused of, or suspected of, the commission of any non-bailable offence. Nonetheless, sub-section (1) of. Section 437 imposes certain fetters on the exercise of the powers of granting bail on fulfilment of two conditions, namely (1) if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; and (2) if the offence complained of is a cognizable offence and that the accused had been previously convicted of an offence punishable with

death, imprisonment for life or imprisonment for seven years or more or he had previously been convicted on two or more occasions of a non-bailable and

cognizable offence. Of course, these two conditions are subject to three provisos attached to sub-section (1) of Section 437. However, sub-section (3) of Section 437 gives discretion to the court to grant bail attached with some conditions if it considers necessary or in the interest of justice.

Section 437 Cr.P.C. provides as to when bail may be taken in case of non-bailable

offences. Sub-section (1) of S. 437 Cr.P.C. makes a dichotomy In dealing with non-

bailable offences. The first category relates to offences punishable with death or 7. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at p. 703 : 1994 Cri LJ 3139 : 1994 SCC (Cri) 899 (per majority).

68

When Bail may be taken in Case of Non-Bailable offence

[Chap. 4

imprisonment for life and the rest are all other non-bailable offences. With regard to the first category, S. 437(1) Cr.P.C. imposes a bar to grant of bail by the Court or the

officer in charge of a police station to a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, if there appear reasonable grounds for believing that he has been so guilty. Naturally, therefore, at the stage of investigation unless there are some materials to justify an

officer or the court to believe that there are no reasonable grounds for believing that the person accused of or suspected of the commission of such an offence has been guilty of the same, there is a ban imposed under S. 437(1) Cr.P.C. against granting of

bail. On the other hand, if to either the officer in charge of the police station or to the court there appear to be reasonable grounds to believe that the accused has been guilty of such an offence there will be no question of the court or the officer granting

bail to him. In all other non-bailable cases, judicial discretion will always be

exercised by the court in favour of granting bail subject to sub-section (3) of S. 437 Cr.P.C. with regard to imposition of conditions, if necessary. ;

The grant of bail to a person accused of a non-bailable offence is discretionary

under S. 497 of the Cr.P.C. (of 1898) and the person released on bail may again be arrested and committed to custody by an order of the High Court, the Court of Session and the Court granting the bail. Section 497 of Cr.P.C. (of 1898) [equivalent to S. 437 of Cr.P.C. of 1973] deals

with the question of granting bail in the case of non-bailable offences. A person accused of a non-bailable offence may be released on bail but he 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. This is the effect of S. 497(1) of Cr.P.C. (of 1898). Sub-section (2) deals with cases where it appears to the officer

or the Court that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further enquiry into his guilt and it lays down that in such cases the accused shall, pending such enquiry, be released, on bail or at the discretion of the officer or Court, on the execution by him of a bond without sureties for his appearance as thereinafter provided. Sub-section (3) requires that, when jurisdiction under sub-section (2) is exercised in favour of an accused person, reasons for exercising such jurisdiction shall be recorded in writing. Sub-section (3) (a) which has been added in 1955 deals

with cases where the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first day fixed for taking evidence in the case and it provides that such person shall, if he is in custody during the whole of the said period, be released on bail unless for reasons to be recorded in writing the magistrate otherwise directs. The last subsection confers on the High Court and the Court of Session, and on any other Court in the case of a person released by itself power to direct that a person who has been released on bail under any of the provisions of this section should be arrested and committed to custody.

Section 497 of Cr.P.C. (of 1898) [equivalent to S. 437 of Cr.P.C. of 1973]

prescribes in what circumstances an accused charged with commission of nonbailable offences may be released on bail and the provision lays down that a person believed to be guilty of an offence punishable with death or imprisonment for life

(Dethi Admn.), AIR 1978 SC 179 at at p.p. 184 v. State 41. Gurcharan 8. LJ 184:: (1978) (1978) 1 SCC 118 : 1978 CriCri SCC(Cri) 129 :1978Singh 9. Ratilal Asstt.926 Collect or of C Customs, Bombay, : (1967) 3v. SCR Bombay, 1967 Cri Cri LJ 1576 at p. 1577 1967 SCBhanji 1639 Mithani 77: : AIR

10. Talab Haji Hussain v. Madhukar Purshottam 1226 :1958 Cri LJ 701.

ottam

Mond

Mondkar, A

IR 1958 7 58 SC 376 at p. 377 : 1958 SCR

Syn. 3]

Scope of Section

69

shall not be released on bail with the exception of persons under the age of 16 years or any woman or any sick or infirm person.''

Section 497 Cr.P.C. (of 1898) [equivalent to S. 437 of Cr.P.C. of 1973] deals with the powers of the trial Court to grant or refuse bail to persons accused of non-bailable offences. Sub-section (1) of this section refers to a stage when the person accused of or suspected of the commission of an offence first appears or is brought before the Court. At this stage there is little or no evidence for a Court to act upon and the matter of granting bail is entirely in the discretion of the Court subject to the restriction that if there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation for life, the accused shall not.be released on bail except when the accused is a minor under sixteen years of age or a woman or a sick or an infirm person in which case he may be released on bail. Under sub-section (2) if the accused is not released at the initial stage on his appearance in the Court, he may still be released subsequently during investigation, inquiry or trial if there are no reasonable grounds for believing that he has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt. Under sub-section (4) of this section, if after the conclusion of the trial before delivery of judgment the Court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of any non-bailable offence, then the Court shall release the accused if he is in custody on the execution by him of a bond without sureties for his appearance to hear the judgment delivered. Thus from the provisions of this section, it would follow that it gives discretion to the trial Court to order the release on bail in cases of non-bailable offences subject to the restrictions mentioned in sub-

sections (1), (2), (3-A) and (4)."”

Under Section 437(1) of the new Code when a 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 he 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. The first proviso to that sub-section is to the effect that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of

such an offence be released on bail. Almost to the same effect was sub-section (1) of

Section 497 of the old Code."

Section 437 of Cr.P.C. prescribes as to when bail may be taken in case of nonbailable offence. Sub-section (1) thereof envisages that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought

on before a Court other than the High Court or Court of Session, he may be released believing for grounds bail, but he shall not be so released if there appear reasonable that he has been guilty of an offence punishable with death or imprisonment for life; provided that the Court may direct that any person under the age of sixteen years or on any woman or any sick or infirm person accused of such an offence be released

for bail; provided further that the mere fact that an accused person may be required for ground identified by witnesses during investigation shall not be sufficient being an refusing to grant bail if he is otherwise entitled to be released on bail and gives

11.

Jayanti Dharma Teja (Dr.) v. State, 1972 Cri SP at p. 130 (Del).

12. State v. Om Parkash, 1973 Cri LJ 824 at p. 82

at pp. 848-49 (Del). 13. State (Delhi Administration) v. Vipin Kumar Jaggi, 1975 Cri LJ 846

ilable offence When Bail may be taken in Case of Non-Ba

70

[Chap. 4

ns as may be given by the ctio dire such with ply com l shal he that undertaking 14

ailab ll le on-ba in th e case of non-b bail ing Dal! 1n provides for granting md ion 437 of Cr.P.C. - sh ep or — ae bya Court other re the High Court ected of : the c person accused of or susp in that when any rant by an officer-in-charge of a bailable offence is ested or detained without war r than the High Court or police station or appears or is brought before the Court othe be so released if there l not Court of Session, he may be released on bail, but he shal e

been guilty of an offenc appear reasonable grounds for believing that he has eption e with death or imprisonment for life. However, it makes an exc

punishabl s or any woman or under the first proviso that any person under the age of 16 year or infirm person accused of such an offence may be released on bail.

any sick ion

437 of Cr.P.C. deals with

grant or refusal of bail in non-bailable offences

the hgleer other than the High Court A the Court of Session. ° Section 437( 1) of

Code provides that when any person accused 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 he 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.

Section 437 of Cr.P.C. empowers the Magistrate to release a person accused of a non-bailable offence and produced before the Magistrate to release him on bail; but an accused person is not to be so released if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Section 437 creates a dichotomy in regard to the non-bailable offences and deals with two stages of a case, viz., prior to the filing of the chargesheet and after the filing of the charge-sheet.'

4. COMPARISON WITH OLD SECTION The provisions contained in Section 437 of new Code (of 1973) are more or less the same as were contained in Section 497 of the old Code (of 1898). Even while bringing in the amendments in Section 437 of the new Code the only objection was to place some further restrictions on the discretion of the Magistrates to grant bail. The words “‘a court” under Section 497(1) Code of Criminal Procedure, 1898, are

not qualified, in any way to rule out the High Court or the Court of Session. In the proviso thereunder, the words used are “the Court”. In Sub-Section (5) of the said

section the specific words used are “a High Court or a Court of Session” etc. This is in clear contrast to the corresponding provisions in the new Code of 1973, viz., in Section 437(1) where the word “court” is qualified by the words “other than the High Court or Court of Session”. The provisions under Section 498 of the old Code of 1898 referred to “in any case” and the provisions of Section 439 of the new Code of 1973 also are unfettered and the imposition of conditions, as referred to therein is

discretionary if the High Court or the Court of Session considers necessary for the

purposes mentioned in Section 437(3) of the new Code of 1973. The aforesaid Tr Sealab 14, Sant Ram v, Kalicharan, 1977 Cri LJ 486 at p. 490 (Del). IS. Sangappa v. State of Karnataka, 1978 Cri LJ 1367 at p. 1368 (Kant).

Ht hee

v. State of Orissa, 1981 Cri LJ 1057 at p. 1058 (Ori) : (1981) 51 Cut LT 391.

: “os Mhatre v. Dattatraya Janu Vayale, 1981 Cri LJ 1605 at p. 1608

hy ha K. Chadha y. B. S. Subhedar, 1981 Cri LJ 1799 at p, 1805 (Bom). + “ramod Kumar Manglik

(Bom) : 1981 Cri LR (Mah)

vy. Sadhna Rani, 1989 Cri LJ 1772 at p. 1777 (Alb).

Syn. 5]

Object of Amendment of 1980

71

provisions, however, do not constitute a consideration for bail but mer the condition of bail, if and when deemed necessary. The nates Ag Section 439(1)(b) of the new Code of 1973 merely relates to the procedure ot to be

adopted before granting bail in cases triable exclusively by the Court of Session or though not so triable, punishable with imprisonment for life. Accordingly, the provisions of Section 439 of the new Code are not, in any way, controlled or coloured by the considerations incorporated in Section 437 of the new Code unlike the provisions of S. 498 of the old Code which had got reference to Section 497(1) of the said old Code laying down one of the many considerations to be taken in view by the High Court or the Court of Session in granting bail under Section 498 of the old Code. Applying “the principle of intent and that of meaning” to the relevant provisions relating to bail in the old Code as well as in the new Code, it was held that the provisions contained in the new Code of Criminal Procedure, 1973, clearly extend the periphery of the powers of the High Court to grant bail, in a case involving an offence punishable with death or imprisonment for life or imprisonment for a term of seven years or more. Although the provisions of Section 497(1) of the old Cr.P.C. (of 1898) [equivalent to S. 437(1) of Cr.P.C. of 1973] do not, in terms, control the provisions of Section

498 [equivalent to S. 439 of Cr.P.C. of 1973] but those nonetheless constitute one of the relevant considerations, amongst others, for the judicial exercise of the powers for granting bail by the High Court or the Court of Session, in cases of non-bailable offences, where there appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life or with imprisonment for a term of 7 years or more. The provisions of Section 437 of the new Cr.P.C. (of 1973), unlike those of Section 497(1) of the old Cr.P.C. (of 1898),

do not constitute such a relevant consideration.

The relevant provisions in respect of bail of the two Codes (of 1898 and of 1973) are quite distinct and the words used by the statute highlight such differences. New dimensions have been added to the provisions for bail in the new Code; new horizons have been opened. The provisions are not, therefore, by and large, the same; the differences are marked and material, sticking out for miles. The same is however, based, on good reasons, toeing the line with “the felt necessities of the time”. The mounting up exigencies of a welfare State cannot be overlooked and as has been aptly observed by Mr. Justice Frankfurter “Law is not mere abstraction. It is not a mere imprisonment of the past but unfolding of the future’. The provisions contained in the old Code and the new Code relating to bail in case of non-bailable offences are not materially different.

5. OBJECT OF AMENDMENT OF 1980 The

objects

and

reasons

for bringing

about

the Criminal

Procedure

Code

Amendment Act, 1980 (i.e., Amending Act 63 of 1980) states that in order to bring

of more checks on the discretion of the Magistrate to grant bail in certain types

accused, the second proviso [to S. 437(1) Cr.P.C.] was added. By the said proviso

special reasons for the release on bail of those accused, who are thereby covered, have to exist. It is of paramount importance to note that sub-section (4) of Section 437 of the new Code requires that where any accused is being released on bail under 20. In re 21. In re 22. In re 23. State

Sasti Charan Mondal, Sasti Charan Mondal, Sasti Charan Mondal, (Delhi Administration)

1974 Cri 1974 Cri 1974 Cri v. Vipin

LJ 1326 at pp. 1328-29 (Cal). LJ 1326 at p. 1329 (Cal). LJ 1326 at p. 1330 (Cal). Kumar Jaggi, 1975 Cri LJ 846 at p. 848 (Del).

ilable offence When Bail may be taken in Case of Non-Ba

72 b-section

(1) or sub-section

(2), reasons OF sp ecial reasons

[Chap. 4

shall have to be

retion to grant bail. Thus, if sub-section eeded by om Magistrate if he uses his discory did t Legislature enact to be interpreted as mandat , then why id the

_ 437 was special reasons was prmup (4) providing thatrecording of reasons OF ~ i once the law Heaps Beores E if bail is granted by the Magistrate? Therefore, of bail by Magistrate, pds

reasons or the special reasons a must for granting by referring to the sro s for r without saying that he will have to justify his orde sed on bail, to whom he can accu an which he is finding justification for releasing 437 itself or its first proviso normally not grant bail. If either sub-section (1) of S. e was absolutely were enacted to lay down mandatory release of accused on bail, ther

no need to enact sub-section (4) thereof.

_ “NOTES ON CLAUSES” FOR AMENDMENT OF S. 437 BY ACT 25 OF 2005 .

.

Section 437 has been amended to provide that if a person commits a cognizable

and non-bailable offence and he has previously been convicted on two or more

occasions of a cognizable offence punishable with imprisonment for 3 years or more but not less than 7 years, he shall not be released except in the circumstances

specified in the provision. It has further been provided that if an accused appears before the Court while in judicial custody and prays for bail, or a prayer for bail is made on his behalf, the Court shall grant bail only after giving an opportunity of hearing to the prosecution, if the offence alleged to have been committed by the accused is punishable with death, imprisonment for life or imprisonment for not less than 7 years. Under sub-section (3) the Court has got the discretion to impose certain conditions

for the grant of bail. Under section 441(2), where any condition is imposed for the release of a person on bail, the bond shall contain that condition also. In order to make the provision stringent and to see that the person on bail does not interfere or intimidate witness, sub-section (3) has been amended to specify certain conditions, which are mandatory.

7. MEANING OF ‘BAIL’ See, under the Chapter ‘“‘Concept of Bail’’, for details.

8. MEANING OF ‘BAIL’ INCLUDES WITH OR WITHOUT SURETIES Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond

without sureties, a person undergoing incarceration for a non-bailable offence either as under-trial or as convict who has appealed or sought special leave? This was the

question before the Supreme Court in the case of Moti Ram y. State of M.P.,

relating to connotation of the word ‘bail’. The Supreme Court answered this question in the affirmative. In this case, the petitioner, a poor mason from M.P., while his criminal appeal was pending in the Supreme Court, obtained an order for bail from the Supreme Court in his favour “to the satisfaction of the Chief Judicial Magistrate”.

The direction of the Supreme Court did not spell out the details of the bail. The

Magistrate ordered that a surety in a sum of Rs. 10,000 be produced. The petitioner

could not afford to procure that huge sum or manage a surety of sufficient prosperity. Further,

the Magistrate

demanded

sureties

from

his own

district,

rejecting

the

ee —__

24. Pramod Kumar Manglik v. Sadhna Rani, 1989 Cri LJ 1772 at pp. 1778-79 (All). 25. AIR 1978 SC 1594 at p. 1595 : :

SCC (Cri) 485.

p. 1595 : 1978 Cri LJ 1703 : (1978) 4 SCC 47 : 1979 SCR (1) 335 : 1978

Syn. 8]

Meaning of ‘Bail’ includes with or without Sureties

73

suretyship of the petitioner’s brother because he and his assets were | district. The petitioner moved the Supreme Court again to modify he ereina:since “to the extent that the petitioner be released on furnishing surety to the tune of Rs 2,000 or on executing a personal bond or pass any other order or direction” deemed fit and proper. Observing that it shocks one’s conscience to ask a mason like the

petitioner to furnish sureties for Rs. 10,000, the Supreme Court authorized the Magistrate to release the petitioner on his own bond for Rs. 1000. The Supreme

Court also held that it was not within the power of the Court to reject a surety because he or his estate was situate in a different district or State. Referring in detail to the Anglo-American and Indian literature on bail jurisdiction, the Supreme Court examined the legal provisions relating to bail. It observed that Section 436 of the Code speaks of bail but the proviso makes a contradistinction between ‘bail’ and “own bond without sureties”. Even here there is an ambiguity because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence “is prepared to give bail”. Here, ‘bail’ suggests “with or without sureties”. And, “bail bond” in Section 436 (2) covers own bond. Section

437(2) speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. Observing that such persons should not be refused release till sureties are arranged, the Supreme Court held that ‘bail’ here suggests release, the accent being on undertaking to appear when directed, not on the production

437(2) distinguishes

of sureties; but Section

between

bail and bond

without sureties. The Supreme Court further observed that Section 445 suggests, especially read with the marginal note, that deposit of money will do duty for bond “with or without sureties’. S. 441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation of bail as covering own bond with and without sureties. Superficially viewed, it uses the words ‘bail’ and ‘own bond’ as antithetical, if the reading is literal. Incisively understood, Section 441(1) provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub-section. The Supreme Court observed that to read ‘bail’ as including only cases of release with sureties would stultify the sub-section; for then, an

accused

released

on

his own

bond

without

bail, i.e. surety,

could

not be

conditioned to attend at the appointed place. Section 441(2) uses the word ‘bail’ to include “own bond” loosely as meaning one or the other or both. Moreover, an accused in judicial custody, actual or potential, may be released by the court to further the ends of justice and nothing in Sec. 441(1) compels a contrary meaning. Section 441(2) and (3) use the word

‘bail’ generically because the expression is

intended to cover bond with or without sureties. The Supreme Court went on to observe that Section 389(1) Cr.P.C. provides that pending any appeal by a tonvicted person the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed

against be suspended and, also, if he is in confinement, that he be released on bail, or

on his own bond. This means that the court of appeal may release a convict on his own bond without sureties. The Supreme Court clarified that, surely, it could not be

that an under-trial is worse off than a convict or that the power of the court to release

increases when the guilt is established. It is not the court’s status but the applicant’s

26. Ibid., at pp. 1600-1. ‘ / 27. Moti Ram’: State of M.P., AIR 1978 SC 1594 at p. 1599 : 1978 Cri LJ 1703 : (1978) 4 SCC 47: 1979 SCR (1) 335 : 1978 SCC (Cri) 485. : ' 4 SCC 28. Moti Ram v. State of M.P., AIR 1978 SC 1594 at pp. 1599-1600 : 1978 Cri LJ 1703 : (1978) 47 : 1979 SCR (1) 335 : 1978 SCC (Cri) 485.

ilable offence When Bail may be taken in Case of Non-Ba

74

ty man may lam pee guilt status that is germane. That a guilial cannot Is a reaucit while an under-tr

[Chap. 4 pro

ae j

tempore without sureties

0 ae a a, its se, ewi lik , that ed erv obs also The Supreme Court Sh ule (Supreme “ 27 e Rul 21, er Ord of ds wor e wid prisoner, as the that a murderer, concurrently nt mea ch whi , ties sure on ed bas on tati limi no n contai d on his own bond without sureties found to be so, might theoretically be release The Supreme Court observed while a suspect, resutiad fo be innocent, could not. eme it was true that the Supr that such a strange anomaly could not be, even though mspection. Court exercises wider powers with greater circu

i

t the truth,

perhaps, is that that indecisive and imprecise language is

for Ny the supteaie Bi held that if sureties are obligatory even Price after being juveniles, females and sickly accused while they can be dispensed with ary found guilty, if during trial when the presence to instruct lawyers is more necess

an accused must buy release only with sureties while at the appellate level suretyship

is expendable,

there

is unreasonable

restriction

on

personal

liberty

with

discrimination writ on the provisions. The hornet’s nest of Part III need not be

provoked if ‘bail’ is read to mean that it popularly does, and lexically and in American Jurisprudence is stated to mean, viz. a generic expression used to describe

judicial release from custodia juris. In this manner, the Supreme Court held that bearing in mind the need for liberal

interpretation in areas of social justice, individual freedom and indigent’s rights,

‘bail’ covers both release on one’s own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables. The Supreme Court further directed that poor men in monetary terms, indigents young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances, may be with reasonable conditions.

In regard to the exercise of the judicial power to release a prisoner awaiting trial on bail or on the execution of a personal bond without sureties for his appearance, it can be stated that there is an amplitude of power in this regard within the existing provisions of the Code of Criminal Procedure and it is for the courts to fully acquaint themselves with the nature and extent of their discretion in exercising it. It is no longer possible to countenance a mechanical exercise of the power. What should be the amount of security required or the monetary obligation demanded in a bond is a matter calling for the careful consideration of several factors. The entire object being only to ensure that the under-trial does not flee or hide himself from trial, all the

relevant considerations which enter into the determination of that question must be taken into account.”

A synoptic impression of what the considerations could be, for ensuring that the under-trial does not flee or hide himself from trial, may be drawn from the following provision in the United States Bail Reform Act of 1966, which should be kept in es

KT

29.

Moti Ram y. State of M.P., AIR 1978 SC 1594 at p. 1600 : 1978 Cri LJ 1703 : (1978) 4 SCC 47 :

30.

Moti Ram y. State of M.P., AIR 1978 SC 1594 at p. 1600 : 1978 Cri LJ 1703 : (1978) 4 SCC 47 :

1979 SCR (1) 335 : 1978 SCC (Cri) 485.

1979 SCR (1) 335 : 1978 SCC (Cri) 485.

31. Moti Ram y. State of M.P., AIR 1978 SC 1594 at p. 1600 : 1978 Cri LJ 1703 : (1978) 4 SCC 47 : 1979 33.

SCR (1) 335 : 1978 SCC (Cri) 485. - Moti Ram v. State of M.P., AIR 1978 SC 1594 at p. 1600 : 1978 Cri LJ 1703 : (1978) 4 SCC 47: 1979 SCR (1) 335 : 1978 SCC (Cri) 485.

Hussainara Khatoon (1) v. Home Secretary, State of Bihar, (1980) 1 SCC 81 at p. 90 : AIR 1979 SC 1360 : 1979 Cri LJ 1036: 1980 SCC (Cri) 23 (per PATHAK, J.).

Syn. 9]

Meaning of ‘Court’

75

mind when determining the amount of the security Or monetary obligation: determining which conditions of releases will reasonably assure appearance. “In the

judicial officer shall, on the basis of available information, take into account the

nature and circumstances of the offence charged, the weight of the evidence against the accused, the accused’s family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.””* These are considerations which should be kept in mind when determining the amount of the security or monetary obligation. Perhaps, if this is done the abuses attendant on the prevailing ie ee of pre-trial release in India could be avoided or, in any event, greatly reduced.

9. MEANING OF ‘COURT’ The power court before means Court Court which

to grant bail given under Sections 436 and 437 of Cr.P.C. vests in the whom an accused appears and is brought. The expression ‘Court’ here which has power to take cognizance of the case. It does not mean a has no power to take cognizance and has only power of remand under S.

167(2) of Cr.P.C.°

Under S. 497(1) of the old Cr.P.C. of 1898 [equivalent to S. 437(1) of Cr.P.C. of

1973], the High Court and the Court of Session were not excluded from the purview of the word ‘Court’. In other respects, dealing with the powers of the Courts in granting bail in a non-bailable offence, there is no change in the provisions of S.

497(1) of the old Cr.P.C. of 1898 and S. 437(1) of the new Cr.P.C. of 1973.”

The change in the provisions contained in S. 437(1) of the new Cr.P.C. of 1973 excluding the High Court and the Court of Session from the word ‘Court’ has not brought about any material change of far-reaching consequence in the powers of the High Court and the Court of Session in granting bail under the provisions of the new Cr.P.C. from that of the provisions of the old Cr.P.C. of 1898. A comparative reading of the provisions of Ss. 497(1) and 498 of the old Code and Ss. 437(1) and 439 of the new Code would clearly demonstrate that the provisions of S. 437(1) of the new

Code do constitute one of the relevant considerations among several others in the judicial exercise of the powers of granting bail by the High Court and the Court of Session as S. 497(1) of the old Code constituted one of the relevant considerations for granting bail under the old Code.** It is true that the words “a Court” occurring in S. 497(1) of the old Code (of 1898) [equivalent to S. 437(1) of Cr.P.C. of 1973] were not qualified in any way to rule out

the High Court or the Court of Session. In the proviso thereunder, the words used were “the Court”. Again the words “the Court” used under the proviso also did not in any way rule out the High Court or the Court of Session. However, the power of the High Court and the Court of Session granting bail was provided under S. 498(1) [equivalent to S. 439(1) of Cr.P.C. of 1973] of the old Code. The power of granting bail by the High Court and the Court of Session under S. 498(1) of the old Code was

“in any case”, thereby meaning without reference to any kind of offence. There was 34.

18 US S 314 (b), as quoted in Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1

38.

Sangappa v. State of Karnataka, 1978 Cri LJ 1367 at p. 1370 (Kant).

. SCC 81 at p. 90: AIR 1979 SC 1360: 1979 Cri LJ 1036 : 1980 SCC (Cri) 23. : AIR 1979 SC 90 p. at 81 SCC 1 (1980) Bihar, of State Secretary, 35. Hussainara Khatoon (I) y. Home J.). PATHAK, (per 23 1360 : 1979 Cri LJ 1036 : 1980 SCC (Cri) 36. Singeshwar Singh v. State of Bihar, 1976 Cri LJ 1511 at p. 1514 (Pat). 37. Sangappa vy. State of Karnataka, 1978 Cri LJ 1367 at p. 1369 (Kant).

76

ilable offence When Bail may be taken in Case of Non-Ba

[Chap. 4

Code which gave power to the High ‘n the old no reference to S. 497(1) in, S. 498(] is pent d person to bail in any case. There

‘fied byby th the S. 498 that it was controlled or qualified isi i indication the ipthe provis eteote while granting! bail by the High was no indicalian old Codeor did € the Court provisions of S. 497(1) of the old Code \ e di theo

Court and the Court of Session to ad

of used ,in S.it497(1 tin Was) I econ Court of Session. Even though the wor d ‘Court’ vt he High Court or the Court

3 Call

ae

in terms control or - pin “3 He Bovisions of §. 497(1) of the old Code did not

isions of S. 498 but the same, nonetheless constitute one of the exercise of the powers BP vcoy cantmltiarions amongst several others in the judicial relating to a non-bailable of granting bail by the High Court or the Court of Session the accused had offence where there appear reasonable grounds for believing that nt for life. been guilty of an offence punishable with death or imprisonme

In S. 497(1) of the old Code (of 1898), the word ‘Court’ is used without any.

qualification whereas in S. 437(1) of the new Code (of 1973), the word ‘Court’ 1s

of Session. specifically referred to the Court other than the High Court or the Court bail, the granting for So far as the powers of the High Court and the Court of Session

same are found elsewhere both in the old Code as well as in the new Code which are

controlled or unqualified without any reference to the limitations imposed either under S. 497(1) of the old Code or under S. 437(1) of the new Code. Courts have interpreted that the provisions of Section 497(1) of the old Code did not in terms

control or qualify the provisions of S. 498 of the old Code even though the word ‘Court’ used in S. 497(1) did not exclude the High Court or the Court of Session.

Nonetheless it is held that the provisions of S. 497(1) of the old Code did constitute one of the relevant considerations amongst several others while granting bail. The

only change that is brought about in the provisions of S. 437 of the new Code is that the word ‘Court’ used in S. 437(1) is made specifically clear in that it does not include High Court or the Court of Session thereby making it very plain that S. 437 of the new Code in terms does not control or qualify the provisions of S. 439. The change brought about in S. 437(1) of the new Code has only set at naught the

ambiguity of the word ‘Court’ used in S. 497(1) of the old Code and it has no bearing as to the powers of the High Court and the Court of Session in granting bail either under the provisions of the old Code or under the provisions of the new Code.

10. MEANING OF ‘CUSTODY’—SURRENDER AND SUBMISSION TO COURT Earlier, there was some controversy as to whether bail can be granted to a person who voluntarily surrenders before a court; as it was believed that bail can be granted only when such person is already in custody (due to arrest, for example) and that a person voluntarily appearing in court is not in custody. However, this issue was

resolved by the Supreme Court in the case of Niranjan Singh v. Prabhakar Rajaram Kharote, wherein it was held that a person who surrenders before a court and

submits to its direction is in ‘custody’ and thus bail can be granted to him.

Custody, in the context of §. 439 Cr.P.C., 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 ee m

Sangappa y. State of Karnataka, 1978 Cri LJ 1367 at p. 1370 (Kant).

rey eige < v. State of Karnataka, 1978 Cri LJ 1367 at p. 1370 (Kant). AIR 1980 SC 785 : 1980 Cri LJ 426 : (1980) 2 SCC 559 : 1980 SCC (Cri) 508.

Syn. 11] .

Meaning of Words ‘Appear’ and Appearance P

:

F

submits to its directions.

42

‘

,

77

’

It is pertinent to point out that the ratio of this decision is

applicable in cases under other bail provisions as well, such as under S. 437 CrAC, A person is 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. The word custody is of elastic semantics but its core meaning is that the law. has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.” Since the expression “custody”, though used in various provisions of the Code, including Section 439, has not been defined in the Code, it has to be understood in the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused-on bail under certain circumstances which can be characterised as ‘in custody” in a generic sense. The expression “custody” as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate.”

11. MEANING OF WORDS ‘APPEAR’ AND APPEARANCE The expression ‘appear’ occuring in Ss. 496 and 497 of J&K Cr.P.C. (of 1989 Smvt.) [equivalent to Ss. 436 and 437, respectively, of Cr.P.C. of 1973] includes “voluntary appearance” as when a person accused of an offence seeks bail by ‘appearing’ in court, he in fact surrenders himself to the custody of the court and the expression ‘appear’ in that sense means “presents and surrenders” himself before the court. In such circumstances there would be notional detention of the accused person. The first step, therefore, which must be taken by any person who wishes to be admitted to bail prior to his actual arrest or detention, would be to appear before a court and to surrender to the custody of the court. Once the accused surrenders to the court, he is in the custody of the court and, therefore, it can be said that he is then under an actual physical restraint from which he seeks to be released.

42.

43.

Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785 at p. 787 : 1980 Cri LJ 426 : (1980) 2 SCC 559 : 1980 SCC (Cri) 508. See also, In re Digendra Sarkar, 1982 Cri LJ 2197 at p. 2198 (Cal) : 1982 (2) Cal HN 317. Niranjan Singh v. Prabhakar Rajaram Kharote, AIR 1980 SC 785 at p. 787 : 1980. Cri LJ 426 :

(1980) 2 SCC 559 : 1980 SCC (Cri) 508. See also, Nirmal Jeet Kaur v. State of

M.P., (2004) 7 SCC

558 at p. 564 : 2004 SCC (Cri) 1989; Sunita Devi v. State of Bihar, (2005) 1 SCC 608 at p. 613 :

AIR 2005 SC 498 : 2005 SCC (Cri) 435; State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222 at . . p. 230; State v. Maguni Charan Sahu, 1983 Cri LJ 1212 at p. 1212 (Ori).

44. Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558 at p. 564 : 2004 SCC (Cri) 1989; Sunita Devi 45.

v. State of Bihar, (2005) 1 SCC 608 at p. 613-14: AIR 2005 SC 498 : 2005 SCC (Cri) 435. Kali Dass v. S.H.O. Police Station Reasi, 1979 Cri LJ 345 at p. 350 (J&K).

-Bailable offence When Bail may be taken in Case of Non

78

[Chap. 4

mean can seonly Cr.P.C. becau of Cola d 437 ions s teen ; by ce an 436 ns Sectio in The appearance e Wi an cn aacs Be physic) al appearance of the accused and not appear mentioned

;

:

straint of the accused an

;

d surrender before the Court. A person who is of Balngmesupposes FERgR notion to be released on bail is to appear an ire to be released on bail. not under any sort of restraint does not requ no bailil un under earlier Goa case, it was held that .C. of 1973] can be Pipe 1898) (equivalent to S. 437 of Cr.P In Section “appears accused is under some restraint; the word be on

Section 497(1) of granted unless the 497(1) refers to

account of a court also appearance in court and consequently the restraint must would permit him to surrender t order; the fact that an accused is wanted by he police such accused surrenders to the where to the police and not to the Court; therefore,

bail. Court, the Court has no jurisdiction to grant 4 person, who is not in custody (either police or magisterial), in notdca ae forbail under S. 439 of Cr.P.C. is not correct. It is true that S. 439 of

Cr.P.C. empowers the Sessions Court or the High Court to grant bail to a person accused of an offence and who is in custody. However what is the meaning of the

expression “person in custody”? A person, who goes before a Magistrate (or Court of Session) and applied for bail by personally appearing before him subjects himself to

the jurisdiction of the Magistrate. He can he be regarded as a person in custody for the purpose of grant of bail. When a person personally present in the Court makes application for bail, he subjects himself to the jurisdiction and command of the Court. He can be regarded as a person in custody of the Court and would be entitled to apply for bail.”

12. BAIL WHEN A PERSON VOLUNTARILY ‘APPEARS’ BEFORE COURT As noted earlier, the Supreme Court, in the case of Niranjan Singh v. Prabhakar Rajaram Kharote,’ held that a person who surrenders before a court and submits to its direction is in ‘custody’ and thus bail can be granted to him. Therefore, it should now be clear that if a person voluntarily surrenders before a court and submits to its direction, his bail application can be considered as he is in ‘custody’. However, earlier, there was some controversy as to whether bail can be granted to a person who voluntarily surrenders before a court; as it was believed that bail can be granted only when such person is already in custody (due to arrest, for example) and that a person voluntarily appearing in court is not in custody. The decisions quoted in the following paragraphs depict some of such decisions, which should now be read only in the light of what has been held by the Supreme Court in the aforesaid Niranjan Singh case.

In an earlier case, it had been held that the preponderance of judicial opinion is that the words, ‘bail’ and ‘released on bail’ imply the accused being already in restraint

and his being set at liberty from such restraint. Releasing an accused on bail means releasing him from custody or prison and delivering him into the hands of sureties.

Therefore, the concept of bail implies a form of previous restraint. The power to grant bail does not envisage the grant of bail to a person who is under no restraint. A person, who is under no previous restraint, does not need any order of bail as he is

free to go anywhere he likes. It is difficult to see how a mere threat or possibility of

A 46.

State 2527 of1998 W.B. SCC v. Pranab a Ranjar

Roy, I, (1998) 3 SCC 209 at p. 215 : AIR 1998 SC 1887 : 1998 Cri LJ 215: ,

yf Bai Laxmiben ¥. Makanbhai Ramjibhai, 1973 Cri LJ 1115 at

1117 (Goa). i Ritesh Prem Goval y. Senior Inspector of Police, Dist. Pune, p. 2008 Cri LJ 2118 at p. 2119 (Bom). - AIR 1980 SC 785 : 1980 Cri LJ 426 : (1980) 2 SCC 559 : 1980 SCC (Cri) 508.

Syn. 12]

Bail when a Person Voluntarily ‘Appears’ before Court

an accused person being arrested could amount to a restraint on

arrested, he is free to move about as he likes. On "tect

hi

79

il he is s

iri

find that there is not sufficient reason to arrest him; or on interrogation he may be hie to

give satisfactory explanation

which may convince the police that there is no reasonable material to proceed against him. It was held that, in the instant case, as the

respondents-accused had not been arrested nor was any warrant issued for their

arrest, nor was there any order issued by any police officer under S. 56 Cr.P C. (of

1898), for their arrest, the Magistrate could not have granted bail merely in anticipation of any such action against them.’? However, in a subsequent case st the

Karnataka High Court held that the aforesaid decision of the Mysore High Court in

the case of Baswanth Rao was no longer good law in view of the Supreme Court decision in the case of Niranjan Singh v. Prabhakar Rajaram Kharote,” wherein it had been held that a person can be stated to be in judicial custody when he surrenders

before the court and submits to its directions.

The grant of bail to a person presupposes that he is in the custody of the police or of the court or if not already in such custody is under a restraint. When a person is arrested or detained or is brought before a court he is no doubt under a restraint. The words ‘arrested’ and ‘detained’ are used to signify arrest and detention by a police

officer. The expressions ‘appears’ and “is brought” are used to signify appearance

and arrest in obedience to a process of the court. The expression “is brought before a court” is used in relation to the issue of a warrant while the expression ‘appears’ is used in relation to the issue of a summons. Sections 238 and 244, Cr.P.C., which

relate to trial of warrant cases by Magistrate also use similar expression. These expressions appear to have been used in the same sense in Section 437, Cr.P.C.° ‘Appearance’ is also possible in two other ways. If a Magistrate issues a bailable warrant and the officer to whom the warrant is directed, releases an accused on his furnishing a bail-bond, he is required to attend the court on the date fixed. In such a case, he appears in court in compliance with the bail-bond furnished by him. Similarly, a person, knowing that a warrant or summons has been issued against him, may voluntarily surrender and, thus, submit himself to the jurisdiction of the court. Evidentlyin such cases, the accused is under a restraint and he appears and moves for being enlarged on bail. If, however, he has not been arrested nor detained nor any process has been issued against him from the court, he cannot be said to be under a restraint and no bail will be granted to him merely because he appears before the court and prays for grant of bail in anticipation of any such action against him. A mere possibility of a person being arrested cannot amount to a restraint for the purpose of grant of bail under Sections 436, 437 and 439 of Cr.P.C. Until he is arrested or detained, he is free to move about as he likes. On investigation the police may find that there is no sufficient reason to arrest him or on interrogation he may be able to offer satisfactory explanation which may convince the police that he is innocent. Thus, Sections 437 and 439 do not confer powers on the Magistrate or the Court of Session or the High Court to grant bail to a person who had not been placed of under restraint by arrest or otherwise.’ However, this decision in the case Bhramar, has also subsequently been overruled by a Division Bench of Orissa High Court in State v. Maguni Charan Sahu. 50. State of Mysore y. Baswanth Rao, 1966 Cri LJ 267 at pp. 268-70 (Mys) : AIR 1966 Mys 71 : (1965)

(Kant)

woh ( 1335-50 Criri LJ 1334 at pp. 1335-36 508, (Cri) SCC 1980 : 559 SCC 2 (1980) : 426 LI Cri 1980 787 p, at 52. ‘AIR 1980 SC185 at pp. 1058-59 (Ori) : (1981) 51 ore 391.

51.

B. fy Narayanappa

v. State of Karnataka, |982

53. Bhramar v. State of Orissa, 1981 Cri LJ 1057 54.

Bhramar v. State of Orissa, 1981 Cri LJ 1057 at p. 1059 (Ori) : (1981) 51 Cut LT 391.

55.

at pp. 1213-14 (Ori). 1983 Cri LJ 1212

When Bail may be taken in Case of Non-Bailable offence

80

[Chap. 4

or It is pertinent to point out that in the aforesaid case of Bhramar v. State of Orissa,

the petitioners had committed theft. They had not been arrested nor was any warrant issued for their arrest, nor was there any order issued by the police under Section 55, Cr.P.C. for their arrest but they voluntarily appeared before the Magistrate for grant of bail under Section 437 of Cr.P.C. The Magistrate rejected their prayer for bail whereupon they invoked the jurisdiction of the High Court for bail under S. 439 of Cr.P.C. It was held that the Magistrate was justified in rejecting the prayer for bail since the basic condition of being under a restraint was not fulfilled and for the same reason bail could not be granted under S. 439. It was held that mere appearance in court by a person does not confer upon the court the powers to enlarge him on bail on

the ground that a case had been registered against him and the police was likely to arrest him in that case. A person who was under no previous restraint does not need any order of bail under Sections 436, 437 and 439, Cr.P.C. as he is free tomove about as he likes. In the instant case, the petitioners had invoked the jurisdiction of. the High Court under Section 439, Cr.P.C. and had not made out a special case for grant of anticipatory bail under S. 438, Cr.P.C. Accordingly, the application for bail filed by the petitioners was rejected. But, as pointed out above, this decision has subsequently been overruled.

As noted earlier, in Niranjan Singh v. Prabhakar Rajaram Kharote,’’ the Supreme

Court held that, custody, in the context of S. 439 Cr.P.C., 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. It is pertinent to point out that the ratio of this decision is applicable in cases under other bail provisions as well, such as under S. 437 Cr.P.C. Since the expression “custody”, though used in various provisions of the Code, including Section 439, has not been defined in the Code, it has to be understood in the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterised as “in custody” in a generic sense. The expression “custody” as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate

must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate.°® Speaking with regard to a bailable offence, it was held by Karnataka High Court that there is no doubt that there has been divergent opinion regarding the expression ‘appears’ as used in Section 436 Cr.P.C. (Section 496 of old Cr.P.C. of 1898). One view1s that the word ‘appears’ in the context of this section, means appearance in

obedience to summons or bailable warrant or in pursuance of an undertaking to

appear contained in a bond executed by a person when he is arrested and released by the police; the word does not refer to voluntary appearance of the accused to whom 56. 57.

1981 Cri.LJ 1057 at pp. 1059-60 (Ori) : (1981) 51 Cut LT 391. AIR 1980 SC 785 at p. 787 : 1980 Cri LJ 426 : (1980) 2 SCC 559 : 1980 SCC (Cri) 508. See also,

In re Digendra Sarkar, 1982 Cri LJ 2197 at p. 2198 (Cal) : 1982 (2) Cal HN 317.

58. Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558 at p. 564 : 2004 SCC (Cri) 1989; Sunita Devi v. State of Bihar, (2005) | SCC 608 at p. 613-14 : AIR 2005 SC 498 : 2005 SCC (Cri) 435.

Syn. 12]

Bail when a Person Voluntarily ‘Appears’ before Court

81

no summons or warrant has been issued or who has not undertaken so to appear. The other

view is that the word ‘appears’ is wide enough to include voluntary appea rance

of the person accused of an offence even where no summons or warrant has been issued against him.”

There is nothing in S. 436(1) of Cr.P.C. either to exclude

voluntary appearance or to suggest that the appearance of the accused must be in obedience to a process issued by the Court. No doubt the other expressions used in

the section as “is brought before Court” have reference to prior arrest and bringing of such person before Court by the police either in pursuance of a process issued by the Court or otherwise on account of the inability of such person arrested to give bail immediately on being arrested and detained by an officer in charge of the police station. The word

‘appears’ as used in the section is wide enough to ‘include the

voluntary appearance. It was observed in this case that the aforesaid earlier decision of the, Mysore High Court in the case of State of Mysore v. Baswanth Rao,°' to the contrary, was no longer good law in view of the Supreme Court decision in the case of Niranjan Singh v. Prabhakar Rajaram Kharote,” wherein it had been held that a person can be stated to be in judicial custody when he surrenders before the court and submits to its directions. Section 437(1) Cr.P.C. prescribes the circumstances

when bail may be granted,

namely, (1) when the accused has been arrested or detained without warrant by an officer-in-charge of a police station; in such circumstances production or appearance in Court is non-essential; (2) when the accused appears; or, (3) he is brought before a Court, other than the High Court or Court of Session, he may be enlarged on bail by “the Court’. Therefore, the conditions precedent to entertain application for bail are whether the person is an accused or suspected of the commission of any offence. If the Magistrate finds that he is accused of an offence or is suspected of commission of a non-bailable offence, the second condition comes into play, namely, whether he is under arrest or detention without warrant by an officer-in-charge of the police station. Apart from this an accused may be brought before the Court by any police officer or authority competent to arrest an accused or any person legally competent to arrest him. Therefore, in the first case the physical production of the accused before the Court is not at all necessary whereas in the case of bringing the accused before the Court requires production of his ‘corpus’. This production of the accused before a Court does not depend on the own volition of the accused. It is an act of the third party. In between, there is another class or type of persons who may be enlarged on bail under Section 437, that is, person who is accused of or suspected of a commission of a non-bailable offence appears voluntarily before the Court, what he should do on ‘appearance’ is to make an application before the Court asking for bail. The grant of bail or refusal thereof is absolutely within the discretion of the Court. His appearance in Court capacitates the Court to grant bail with condition or without condition. No sooner does he appear before the Court, the accused or the suspect surrenders to the custody of the Court. The act of appearance or surrender to the on bail by custody enables the accused to ask for bail. Such accused may be enlarged the order of the Court or the Court may straightway send the accused to jail if it does not grant bail. As such, whenever an accused appears voluntarily before the Court and surrenders to the Court he remains throughout in the custody of the Court until he is enlarged on bail. The question of granting bail to such an accused cannot arise unless he is not in custody of the Court. When an accused ‘appears’ and asks for bail, 59.

60. 61. 62. 63.

B. Narayanappa v. State of Karnataka, 1982 Cri LJ 1334 at p. 1335 (Kant).

B. Narayanappa v. State of Karnataka, 1982 Cri LJ 1334 at p. 1335 (Kant). ene 1966 Cri LJ 267 (Mys) : AIR 1966 Mys 71 : (1965) | Mys LJ 365. 508. (Cri) SCC 1980 : 559 SCC 2 (1980) : 426 LJ Cri 1980 : 787 p. AIR 1980 SC 785 at (Kant). 1335-36 pp. at 1334 LJ Cri 1982 Karnataka, of State v. B. Narayanappa

-Bailable offence When Bail may be taken in Case of Non

82

[Chap. 4

thd page ssse it suPsvibm pbysical ny o a fati upsOt . e‘custod r aniand remainterm r othe, Coumeaning he must ofsurrtheendeCourt. Oe ysis) cu of the The

or suspect ean ask for bail under Section .

’

,

2

9

custody coupled with submission to the Court In accused the of e presenc ! sheeice least e, the term ‘appears’ in S. pe: =e _ jurisdiction and order of the Court. Therefor y t without intervention oe includes voluntary appearance before the Cour on to Its directions. ,

,

with submissi and the act of surrender before the Court coupled

of the Court or he is When an accused appears and remains in the physicalandcontrol orders of the Court, the

physically present and submits to the jurisdiction

or suspect, if he is so Magistrate is empowered to grant bail to such an accused entitled to.

se, the accused mre

persons voluntarily appeared before the Chief Judicial

They made Senticacion for bail and surrendered

to the Court. The

CJM, having considered the facts and circumstances of the case enlarged them on bail. In such circumstances, on an application moved by the State, the Sessions Judge

took the view that the CJM had no jurisdiction vested in him by or under Section 437 of the Cr.P.C. to grant bail as voluntary appearance of an accused, neither arrested

nor brought before the Court, does not confer jurisdiction on a Magistrate to grant bail. The Sessions Judge concluded that grant of bail in the instant case amounted to grant of anticipatory bail or pre-arrest bail or pre-arrest legal process which was the

exclusive preserve of the High Court or the Court of Session and that other Courts cannot exercise the said power by the back door, in the garb of exercising power under S. 437 of the Code. When the matter went before the High Court, it was held that the term ‘appears’ in Section 437 means and includes voluntary appearance before the Court without intervention of any agency and the act of surrender before the court coupled with submission to its direction. It was held that in the instant case, the accused did not ask for grant of bail apprehending arrest. The accused persons surrendered before the Court and prayed for bail. Therefore, Section 438 had no application in the instant case. Accordingly, it was held that the CJM did not exercise the powers and functions under Section 438 of the Code, and that the exercise of the powers and functions were limited within the scope of S. 437 of the Code.”

Having regard to the express provisions of Section 437(1) of the Code and the decision of the Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote, explaining the word ‘custody’, it must be held that when a person accused of or suspected of the commission of a non-bailable offence appears before the Magistrate and surrenders or submits himself to the jurisdiction and orders of the court, he is in custody, and the Magistrate in such a case is required to accept the surrender of the petitioner and deal with his application for bail. Such a person is under duress and has placed himself under the power of restraint exercisable by the Court by his

physical presence before the Court and expressing his intention to submit himself to the orders of the Court. Where the Magistrate released the accused on bail when they voluntarily surrendered

before him, it could not be said that bail had been granted without jurisdiction as when 64. State of Assam v. Mobarak Ali, 1982 Cri LJ 1816 at p. 1817 (Gau) : (1982) | Gauhati LR 377. See also, State v. Maguni Charan Sahu, 1983 Cri LJ 1212 at p. 1214 (Ori).

65. State of Assam v. Mobarak Ali, 1982 Cri LJ 1816 at pp. 1817-18 (Gau) : (1982) | Gauhati LR 377. 66. — of Assam v. Mobarak Ali, 1982 Cri LJ 1816 at pp. 1816, 1818 (Gau) : (1982) | Gauhati LR

6. AIR 980 SC 785 at p. 787 : 1980 Cri LJ 426 : (1980) 2 SCC 559 : 1980 SCC (Cri) 508. ie 'gendra Sarkar, 1982 Cri LJ 2197 at p. 2199 aguni Charan Sahu, 1983 Cri LJ 1212 at p. 1215 (Cal) : 1982 (2) Cal HN 317. See also, Siate v. (Ori).

Syn. 12]

Bail when a Person Voluntarily ‘Appears’ before Cour t

83

the accuse the accused d perso pe ns surrendered to the juris diction of the cou rtand Isdict

agrto eed abid judicial direction, the Magistrate had full jurisdiction to deal with their case for sean

S. 437 of Cr.P.C. and their release on bail was, therefore, not open to objection.” If the accused is not absconding, the accused who appeared and s the Court and furnished bail bond, he is under the Eure of the Coit vig otek himself to the court’s jurisdiction, submitted to its orders by physical presence, or the person, 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 Section 439 of the Code of Criminal Procedure. Thus, a person is not only “in custody” when the police arrests

him or produces him before the Magistrate for remands or other custody but a person who surrenders before the Court and submits to its directions is also “in custody” within the meaning of Section 439 of the Code of Criminal Procedure. In the above case of Punam Arya v. State of Jharkhand,'' the applicant had been granted anticipatory bail. While on anticipatory bail, she had prayed for regular bail. It was held that she had already surrendered and furnished bail bonds in compliance

of the order of the anticipatory bail and was under control of the Court when she had moved an application for regular bail and for that purpose she could be stated to be “in custody” within the meaning of Section 439 of the Code of Criminal Procedure; therefore, the Sessions Judge should not have rejected her bail application holding the same not maintainable on the ground that she was not in custody physically at the time of filing the bail application under Section 439 of the Code of Criminal Procedure. Considering that she was a lady with a small baby in her lap and that no incriminating article had been recovered from her possession and also that the case was about 8 years old and after several years warrant had been issued and that too was not supported by any cogent material against her and also that she was a local permanent resident, there was no chance of her absconding, the High Court granted regular bail to the applicant lady.

For grant of bail under Section 437, Cr.P.C., by the Magistrate, the accused person need not be under detention or custody of any authority and it is sufficient that he appears before the Court. For offences under the Indian Penal Code and other criminal enactments, in order to obtain the benefit of bail an accused has to surrender to the custody of the court or j ps . 3

the police authorities before he can be granted the benefit thereunder.

The practice of some of the subordinate Magistrates not to permit an accused to surrender when they make such request and simply ask the Public Prosecutor to report is not proper. When an accused surrenders in court and makes an application stating that he is wanted in the crime, his prayer should be accepted. The practice of postponing surrender application is not fair and must be strongly disapproved. Things may, however, stand differently if the surrender application does not specifically mention that the person surrendering is wanted in a case or that the police may be asked to report if he is wanted at all. 69.

State v. Maguni Charan Sahu, 1983 Cri LJ 1212 at p. 1215 (Ori); relying upon Niranjan Singh v.

Prabhakar Rajaram Kharote, AIR 1980 SC 785 : 1980 Cri LJ 426 : (1980) 2 SCC 559 : 1980 SCC

(Cri) 508. See also, In re Digendra Sarkar. 1982 Cri LJ 2197 (Cal) : 1982 (2) Cal HN 317. The LJ

decision of a Single Bench of the Orissa High Court in Bhramar y. State of Orissa, 1981 Cri 1057 (Ori) : (1981) 51 Cut LT 391, which had taken a contrary view, was overruled. Punam Arya v. State of Jharkhand, 2006 Cri LJ 3922 at p. 3924 (Shar).

70. 71. 2006 Cri LJ 3922 at pp. 3924-25 (Jhar). 72. Ashireddygari Narasimhareddy y. State of A.P., 2001 Cri LJ 2010 at p. 2013 (AP). 73. State of Haryana v. Dinesh Kumar, (2008) 3 SCC 222 at p. 231. : 1993 All Cri C 455. 74. Devendra Singh Negi v. State of U.P., 1994 Cri LJ 1783 at p. 1787 (All)

{[Chap. 4

Non-Bailable offence When Bail may be taken in Case of

84

ae self “ie scot him r ende surr to ing will was d use acc Where the be expedient in t " pee e eee | l shal it that held was it t, Cour re befo ar appe ti pee a _ he e4 non-bailable warrant issued against him by ni vi ere WCCKS. € the execution of non-bailable warrant was slaye an application for bail, w make directed to appear before the trial Court and possible. as directed to be considered as expeditiously STODY’ 13. A PERSON ON INTERIM BAIL IS IN ‘CU P

76

°

the High Court had ksinh Mohansinh Mangrola v. State of Gujarat, 439 Cr.P.C. mainly on the pty ihebail application filed by the accused under S. le as the petitioner ground that application under S. 439 Cr.P.C. was not maintainab ved that on the was not in custody. On appeal, however, the Supreme Court obser im date of filing of the bail application the accused was In custody as he was on inter bail for 15 days and as such his application could have been considered on merits

instead of dismissing the same on the ground of non-maintainability. Accordingly,

the impugned order of the High Court was set aside and the matter was remitted back to the High Court to consider the matter afresh on merits.

14. SURRENDER AND FURNISHING BAIL BONDS UNDER ANTICIPATORY BAIL ORDER IS ‘CUSTODY’ In the case of Punam Arya v. State of Jharkhand,” the applicant had been granted anticipatory bail. While on anticipatory bail, she had prayed for regular bail. It was held that she had already surrendered and furnished bail bonds in compliance of the order of the anticipatory bail and was under control of the Court when she had moved an application for regular bail and for that purpose she could be stated to be “in custody” within the meaning of Section 439 of the Code of Criminal Procedure; therefore, the Sessions Judge should not have rejected her bail application holding the same not maintainable on the ground that she was not in custody physically at the time of filing the bail application under Section 439 of the Code of Criminal Procedure. In the facts of the case, the High Court granted regular bail to the applicant lady. While an accused remaining under the protective umbrella of the anticipatory bail order appears before the competent Court and moves for regular bail it would be deemed that he is in custody and his bail application can be considered on merits.

Even if his application for grant of regular bail is rejected at the Court of first Instance he can move the higher Court under S. 439 of the Code and he would be deemed to be in custody if the protective order passed under S. 438 of the Code is in

continuance.”*

1S. WORDS “REASONABLE GROUNDS FOR BELIEVING” MEANING AND EFFECT For the purpose of granting the bail, the legislature has used words “reasonable grounds for believing” instead of “the evidence”, which clearly envisage that the

Court dealing with the grant of bail can only satisfy it as to whether there is genuine

Case against the accused and ‘that the prosecution is able to produce prima facie evidence in support of the charge. It is, however, not excepted at this stage to have the evidence establishing the guilt of the accused beyond reasonable doubt. Of as. ___ ne an 75.

Yogesh Kumar Bhargava y. State of U.P., 2001 Cri LJ 2835 at p. 2836 (All).

76. (2009 6) SCC 540 at p.540 54 SCC (2 ) :: 0 (2006 (Cri) 224. 22 77. 2006 Cri LJ 3922 at pp. 3924-25 har)3,SCC py 78. Vinod Kumar y. State of

M.P., 1999 Cri LJ 4364 at p. 4369 (MP).

Syn. 15]

Words “Reasonable Grounds for Believing”, etc.

85

course, the reasons, must be recorded, but withou t discussion of merits and demerits

of the application.

The two expressions “reasonable grounds for believing” and “evidence” are not

interchangeable. The Legislature has advisedly used the words “reasonable grounds for believing” instead of “evidence”. In the instant case, there are reasonable grounds to believe that the petitioners have committed the offences alleged against them. The

material is sufficient to hold that there is prima facie evidence in support of the

charges. It may be beyond the scope of the bail proceedings to examine whether the

prima facie evidence would be sufficient to establish the guilt of the petitioners

beyond reasonable doubt. All that can be said from the material is that there are

sufficient reasonable grounds for believing that the petitioners have committed the

offence punishable with imprisonment for life. Accordingly, in the instant case, the application for bail was rejected. | The words “reasonable grounds for believing”. appearing in S. 497(1) of Cr.P.C, (of 1898) [equivalent to S. 437(1) of Cr.P.C. of 1973] mean such grounds as are based on reasons and logic and are not bereft of reasons. The grounds should be such as

may lead one to believe that the accused is guilty of such an offence. It is not only the probability of the ground being creative of a belief but even the possibility of such a belief which is sufficient to give rise to the interdiction referred to in S. 497(1). The angle of consideration and the approach under Section 497(1) of Cr.P.C. (of 1898) must be wholly different from the angle and the approach of the consideration to be adopted while finding a man guilty or not guilty. In the former case the degree of certainty of belief is far less then the degree of conviction which a court is required to possess while finding a man guilty of an offence. In one case it is with a view to determine whether, or not the accused shall remain at large during the trial and in the other whether a man has to go to gallows or be at large for his life. It is the degree of enormity of the consequence of an order finally convicting a person of such an offence and an order under Section 497(1) of the Cr.P.C. (of 1898) which

is creative of the corresponding difference in the approach and the angle of consideration in the two cases. To put it differently in one case the belief must exclude every reasonable doubt of its correctness whereas in the other even the presence of a possibility of a conviction must bring forth a refusal from the court to enlarge a person on bail. The principle behind the provision under S. 497(1) of Cr.P.C. (of 1898) [equivalent to S. 437(1) of Cr.P.C. of 1973] is that a person who is accused of an offence, the

sentence in which can extend to death or life imprisonment the accused with ordinary human instinct for avoiding death or loss of liberty for life is most likely to make a choice whether he should be available to receive sentence or should abscond to escape it. The prohibitory dictate from the legislature to the court to grant bail in cases of capital sentence or life imprisonment, is therefore, to disable an accused to make a choice. It is true that an accused is presumed to be innocent unless he is proved to be guilty and that the detention of an under-trial attendance in the court and make him receive the sentence but is the least possibility of the trial being rendered infructuous penal law being rendered emasculated the safer course is to

is only to procure his in cases in which.there and the rigour of the refuse bail as an error

otherwise is most likely to result in the total frustration of the trial and avoidance of

the penal consequences. It is this stage of thinking which reinforces the view that the presence of some material which may ultimately be even insufficient to warrant a 79, 80. 81.

Sanjay Sharma v. State of J&K, 2004 Cri LJ 1473 at p. 1474 (J&K). M.P. Ramesh vy. State of Karnataka, 1991 Cri LJ 1298 at pp. 1310-1 1 (Kant). State v. Harbans Lal, 1975 Cri LJ 1705 at p. 1706 &K).

When Bail may be taken in Case of Non-Bailable offence

86

[Cha

i offence must be deemed to be sufficient for holding that ictiion for a capital convict

are reasonable grounds for believing that the accused is guilty of such an offence case therefore the triability of the issue regarding the guilt o It is ine el the touchstone to decide whether a person Is entitled to a person me J or not. After having examined the material before it if the court pay unmistakably comes to the conclusion that the accused is not guilty of any re: offence, it is a case where the court can say that there do not

grounds for believing that the accused is guilty of such offence, but if

examination of the material before it the court is put to thought and that tho!

detains the court even for a while, such a situation is one in which it can be said there are reasonable grounds for believing that the accused Is guilty of suc offence. It is not necessary that the court must believe the reasonable Oral suggestive of the guilt of the accused. It is sufficient if there is a possibilit | believing the accused to be guilty of the offence on that ground. reasonable grounds” appearing in S. 497(1) of Cr.P.C The words “there a 1898) [equivalent to § 437(1) of Cr.P.C. of 1973] suggest nor that the evidence the circumstances of the case do not admit of any possibility of an acquittal oi accused of such an offence but that the circumstances and the evidence might rn in a conviction of the accused for such an offence. The word ‘appear’ preceding the words “reasonable grounds” also has s significance. The word ‘appear’ suggests that reasonable ground is availab believing that the accused is guilty. It is not, however, necessary that a belief universally and unfailingly be created that the man is guilty of such an offence. | words “if there appear reasonable grounds for believing” convey a substant different meaning than the words, “if the court believes” that he has been guilt such an offence. In the latter case it is the actual belief which is determinative o decision on the question of bail whereas in the former it is the existence | reasonable ground to believe that the accused is guilty of such an offence whic decisive of the question of bail. The court has to address itself to the questio’

there anything on the record which can be said to be a reasonable ground believing that the accused is guilty; the court in such a case does not reach the s of believing or disbelieving but arrives only upto the stage where it can. be whether there are reasonable grounds for believing that the accused is guilty. There is a noticeable trend in S. 437(1) and S. 437(7) of Cr.P.C. that even in of such non-bailable offences a person need not be detained in custody for any

more than it is absolutely necessary, if there are no reasonable grounds for belie that he is guilty of such an offence. There will be, however, certain overri considerations. Whenever a person is arrested by the police for such an offence, t should be materials produced before the courts to come to a conclusion as tc

nature of the case he is involved in or he is suspected of. If at that stage from

materials available there appear reasonable grounds for believing that the person been guilty of an offence punishable with death or imprisonment for life, the c has no other option than to commit him to custody. At that stage, the cou

Pi ir 82. 83. 84. 85.

State State State State

v. Harbans v..Harbans v. Harbans v. Harbans

Lal, Lal, Lal, Lal,

1975 1975 1975 1975

Cri Cri Cri Cri

LJ LJ LJ LJ

1705 1705 1705 1705

at at at at

pp. 1706-7 (J&K). p. 1707 (J&K). p. 1706 (J&K). p. 1707 G&K).

yn. 19)

Classification of offences into Bailable and Non-Bailable

mecemed with the existence of the materials against hether those materials are credible ornot on the pan

87

ac cused and not as to

16. “REASONABLE GROUNDS FOR BELIEVING” DEPENDS UPON STAGE .

—

ion as to whether there are reasonable grounds for believ

i that the bie is guilty of an offence punishable with death or imprison ment forlifeis to be

peiiiitieres® regard to the stage of investigation at which the bail application is : :; For considering at the initial stage of investigation for the purpose of bail, whether

ere are reasonable grounds for believing that an offence punishable with death or aprisonment for life had been committed it would be enough if there is some material r accus the ation or even far strong suspicion of commission of such an offence.

17. PROVISIONS OF S. 437 APPLICABLE TO COMPLAINT CASES

The provisions of Section 437 Cr.P.C. are not limited to a case arising out of a jlice report. They also squarely apply in respect of cases instituted otherwise than

| police report, generally called “complaint case”. In the section both the words or ‘appear’ are mentioned and, as such, in a complaint case where process issued under Section 302 or similar sections of the Indian Penal Code or other law, here the punishment provided is death or imprisonment for life, the rigours of

ction 437 Cr.P.C. shall apply.”

18. THREE STAGES OF A CASE CONTEMPLATED UNDER THIS SECTION Section 497 of Cr.P.C. (of 1898) [equivalent to S. 437 of Cr.P.C. of 1973]

mtemplates three stages in a case namely (1) at the time of accusation (2) during

vestigation, inquiry or trial (3) after the conclusion of trial and before judgement idprovides for bail differently for different stages. At the initial stage of mere cusation dealt with under sub-section (1) bail may not be refused; but if the

cuSation indicates that the person is involved in an offence punishable with death imprisonment for life bail is restricted only to persons under the age of 16 years or woman or a sick or infirm person. If the case is under investigation, inquiry or trial d there are’ no reasonable grounds to believe that the accused is guilty of any non-

ilable offence he has a right to be released on bail. There is no inequality between aay inof non-bailable offences in the matter of grant of bail at stages after

in any sub-section other than sub-section (1) of S 497 of Cr.P.C. (of

19. CLASSIFICATION OF OFFENCES INTO BAILABLE AND NON-BAILABLE

The Cr.P.C. classifies offences into two categories — bailable and non-bailable. isclassification is done mainly on the basis of the gravity of the offence and the t provided for such offence. Generally speaking, a bailable offence is

:

.

‘

Garcharan Singh v. State (Dethi Admn.}, AIR i978 SC 179 at p. 185 : (1978) | SOC 118 : 1978 Cn LJ 129 : 1978 SCC (Cr) 41. a > ‘kkim) ofSikkim v. Roliand Christopher Chettri, 1989 Cri LJ 207 at p. 210 (Si am

. State ofSikkim v. Rolland Christopher Chettri, 1989 Cri LJ 207 at p. 210 (Sikkim). - Inre Siate of Assam, 2007 Cri LJ 927 at p. 933 (Gau—FB).

_

Nirmal

Kumar Banerjee v. State, \972 Cri LJ 1582 at p. 1583 (Cal).

ilable offence When Bail may be taken in Case of Non-Ba

88

[Chap. 4

a non-bailaie offence Manat and considered to be less grave and serious than of A a5 S. 2 of the Cr.P. , non-bailable offences are defined in clause (a) “(a)

“bailable

ble in the First shown as bailaAbie is ich offence” ” means an offence which Is s bailable by any other law for the time being in force; and

ieiote- orwhich is made “non-bailable offence” means any other offence;

yahaved

‘call

ave been specifically t that individual offences under to OoP.C. es t ‘a epan’ Me leepe ilable |in the first part of thec first Schedule or non-ba as bailabl ed ranen declar Act

ions of that particular For offences under other Acts, one has to refer to the provis however, in the absence aye to find out whether that offence is bailable or non-bailable; t in mentioned rules general the Act, ch declaration under such parent f for deciding

seco ert of the first Schedule to Cr.P.C. have to be referred to, whether that offence is bailable or non-bailable.

Criminal Procedure Code has classified offences into two groups, namely bailable

and non-bailable

depending

on the gravity of the offences and the punishment

prescribed therefor. The provisions regarding bail are laid down in Sections 496 to 502, Criminal Procedure Code (of 1898) (now, see under Ss. 436 to 450 of Cr.P.C. of 1973). The main provision relating to bail in bailable cases is contained in Section 496, Criminal Procedure Code (of 1898) [equivalent to S. 436 of Cr.P.C. of 1973] and that relating to non-bailable cases is given in Section 497, Criminal Procedure Code (of 1898) [equivalent to S. 437 of Cr.P.C. of 1973]. Section 4(1)(b) of Cr.P.C. (of 1898) defines bailable offence: bailable offence means an offence shown as bailable in the second schedule, or which is made

bailable by any other law for the time being in force; and “non-bailable offence” means any other offence. Bailable offences have been defined under clause (a) of Section 2, Cr.P.C., which means offence which is shown as bailable in the first Schedule, or which is made bailable by any other law for the bail being in force and “non-bailable offence”’ means any other offence. The first Schedule of Cr.P.C. consists of two parts, the first part is regarding the offences under the I.P.C. and second part is regarding offences against other law. The second part provides that if the offence is punishable with imprisonment for less than three years or fine only it shall be bailable and can be tried by any Magistrate.”

20. DIFFERENCE IN PROVISIONS IN BAILABLE AND NON-BAILABLE OFFENCES

In the matter of admission to bail, the Code of Criminal Procedure makes a

distinction between bailable and non-bailable offences. The grant of bail to a person accused of a non-bailable offence is discretionary under S. 497 of the Cr.P.C. (of

1898) [equivalent to S. 437 of Cr.P.C. of 1973] and the person released on bail may again be arrested and committed to custody by an order of the High Court, the Court of Session and the Court granting the bail. Under S. 498 of the Cr.P.C. (of 1898)

[equivalent to S. 439 of Cr.P.C. of 1973], the High Court and the Court of Session may release any person on bail and by a subsequent order cause any person so

admitted to bail to be arrested and committed to custody. A person accused of a

bailable offence is treated differently; at any time while under detention without a warrant and at any stage of the proceedings before the Court before which he is

TO

91. Nirmal Banerjee v. State, 1972 Cri LJ 1582 at p. 1583 (Cal). 92. KanubhaiKumar | Chhag Ch i anlal Brahmbhatt v. State of Gujyarat, 1973 Cri LJ 533 at p. 536 (Guj). 93. Abdul Aziz v. State of U.P., 2002 Cri LJ 2913 at p. 2915 (All). 3 i

Syn. 21]

Power under S. 439 is Wider than that under S. 437

89

brought, he has the right under S. 496 of the Cr.P.C. (of 189 i of Cr.P.C. of 1973] to be released on bail.” 8) [equivalent to S. 436 s Whenever an application for bail is made to a court, the first questi i decide is whether the offence for which the accused is being Preeied ete . otherwise. If the, offence is bailable, bail will be granted under S. 496 of the Code of Criminal Procedure (of 1898) [equivalent to S. 436 of Cr:P.C. of 1973] without more ado; but if the offence is not bailable, further considerations will arise and the Court

will decide the question of grant of bail in the light of those further considerations such as, nature

and

seriousness

of the offence,

the character

of the evidence

circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations which arise when a court is asked for bail in a non-

bailable offence.

The basic distinction as to grant of bail in bailable and non-bailable offences is that whereas a person accused of a bailable offence has a right to be released on bail under S. 496 of J&K Cr.P.C. (of 1989 Smvt.), the grant of bail to a person accused of a nonbailable offence is in the discretion of the court under S. 497 of the said Code.”° If the offence is bailable, bail must be granted under Section 496, Criminal Procedure Code (of 1898) [equivalent to S. 436 of Cr.P.C. of 1973]. But if the

offence is non-bailable, the Court should decide the question of granting the bail in the light of considerations

namely,

the nature and seriousness

of the offence, a

reasonable possibility of the presence of the accused being secured at the trial, a reasonable apprehension of the evidence being tampered with and the quantum of punishment. The contrast between Ss. 496 and 497 of Cr.P.C. (of 1898) [equivalent to Ss. 436

and 437, respectively, of Cr.P.C. of 1973] is apparent. Under S. 496 the Magistrate has no discretion and he has got to enlarge the person, accused of a bailable offence, on bail provided he is prepared to give bail; while under Section 497, the Magistrate may refuse to enlarge him on bail in view of certain circumstances which may be brought to his notice. '

21. POWER UNDER S. 439 IS WIDER THAN THAT UNDER §S. 437 A perusal of Section 437 of Cr.P.C. reveals that when a 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, is brought before a Court or appears before the Court, the Court may release him on bail but he 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. The powers of the High

Court or a Court of Session in enlarging a person on bail are, however, wide in their amplitude as provided in Section 439 of Cr.P.C. 94,

95.

Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay, 1967 Cri LJ 1576 at p. 1577: AIR 1967 SC 1639 : (1967) 3 SCR 926. : State v. Capt. Jagjit Singh, AIR 1962 SC 253 at p. 255 : (1962) | Cri LJ 2036 (1962) 3 ie aoe See also, Jayanti Dharma Teja (Dr.) v. State, 1972 Cri LJ 127 at p. 130 (Del); sev? 13674 00

Singh, 1975 Cri LJ 1348 at p. 1350 (J&K); Sangappa v. State of Karnataka,

at p.

1978 Cri

1371 (Kant).

96.

Kali Dass v. S.H.O. Police Station Reasi, 1979 Cri LJ 345 at p. 349 (J&K),.

97. Nirmal Kumar Banerjee v. State, 1972 Cri LJ 1582 at p. 1583 (Cal).

35-36 (Gui)

98. Kanubhai Chhaganlal Brahmbhatt v. State of Gujarat, 1973 Cri LJ 533 at pp. 53599.

Sant Ram vy. Kalicharan, 1977 Cri LJ 486 at p. 490 (Del).

ay

-Bailable offence When Bail may be taken in Case of Non

90

[Chap. 4

of nces like is concerne d in serious offe bail in cases where the accused ‘ine death or imprisonment for . - — ete a sesePabences punishable with the : . the higher Courts like by not and tes stra Magi the by only e strict adherenc 437, Cit ts ipo the eon Y ing S. e Whil t. Cour High the and ion Sess of & 439, CP.C. diel or , impr death rsons A ee sha le with i the case of offences puniishab Magistrate in ( an di sick en, wom , dren chil of case the i except in Court of Session or the High cribe any such limitation on the powers of the Bhes not Courts cannot grant bail indiscriminately or

Court.

No doubt,

even these higher

of judicial discretion or refusal should be by proper exercise itrari it would be hazardous Pic icrcros tethe tacts and circumstances of each case and kind of cases where to lay down any hard and fast rule or enumerate any particular ations for bail the bail should be or should not be granted. In dealing with applic tion in Court of Session or the High Court will have to exercise judicial discre

accordance with established principles. Section 498 of Cr.P.C. (of 1898) [equivalent to S. 439 of Cr.P.C. of 1973] deals with three matters, namely (1) fixing the amount of bond; (2) the power of the High

Court and the Court of Session to admit any person to bail in any case, whether there

be an appeal on conviction or not; and (3) the power of the High Court and the Court of Session to reduce the bail required by the police officer or a Magistrate. It is true that Section 498 invests the Sessions Court and High Court with wider powers in the matter of granting or refusing bail. The power there is not fettered by any of the conditions imposed in Section 497 of Cr.P.C. (of 1898) [equivalent to S. 437 of Cr.P.C. of 1973]. The unfettered powers there contemplated relate to the granting of bail in cases, relating to offences punishable with death or imprisonment for life, but it does not refer to anticipatory bail. The powers of the High Court or the Court of Session under S. 439 of Cr.P.C. are considerably wider than the powers of the Magistrate in S. 437 for the reason that the limitation in S. 437 and the distinction drawn between non-bailable offences punishable with death or life simprisonment and other non-bailable offences with lesser penalty are non-existentin S. 439, nor is there the condition that bail shall be refused if there appear reasonable grounds for believing that the accused has committed an offence falling under the first category. The discretion, therefore, in S. 439 is wholly unfettered and is wide enough to allow bail in any case even when charged with non-bailable offence of a most serious character. The powers given in S. 439 are unfettered by any limitation other than that which controls all discretionary powers vested in a Court. Though the discretion is absolute and unfettered by restrictions of any kind, like all discretionary powers, it has to be

exercised judicially and on well-established

principles.

Therefore,

though

the

discretionary power under S. 439 is much wider than in S. 437(1) and is uncontrolled by the latter, the reasonable limitations in S. 437(1) which are founded upon a rule of

prudence ought not, ordinarily, to be departed from by the High Court or the Court of

Session except in special cases. The provisions of S. 437(1) of the new Code (of 1973), like those of S. 497(1) of the old Code (of 1898), do constitute one of the

relevant considerations amongst several others in the judicial exercise of the powers

of granting bail by the High Court or the Court of Session.”

ba K. Narayanaswamy v. State of A.P., 1980 Cri LJ 588 at p. 591 (AP). 2. ae fe ams Pulinthanam y. State of Kerala, 1967 Cri LJ 1152 at 1153 (Ker) : AIR 189. er 3. Sangappa y. State of Karnataka, 1978 Cri LJ 1367 at pp. 1370-71 (Kant); the decision of the Calcutta High Court in the case of In re Sasti Charan Mondal, 1974 Cri LJ 1326 (Cal), was dissented from.

Syn. 23

Distinction between Ordinary Bail and Anticipatory Bail

9]

S. 498 of J&K Cr.P.C. (of 1989 Smvt.) [equivalent to S. 439 of

empowers the High Court or the Court of Session “in any case” io ewe > ai , person be admit ted to bail’. No guidelines or limitations have been given in §

498 by itself. However, S. 498 immediately follows Ss. 496 and 497 of that Code [equivalent to Ss. 436 and 437 of Cr.P.C. of 1973] which are the main provisions

dealing with bail and therefore it is manifest that the restrictions and limita tions placed in Ss. 496 and 497 are implicitly contained in S. 498 also. The expression “may in any case” occurring in S. 498 governs only the language following namely “whether

there be an appeal

on

conviction

or not”

and does

not confer

any

independent wider power in the Sessions Court or the High Court to grant bail. The expression does not enlarge the power of the court in the matter of grant of bail.-The provisions of S. 498 are not unrelated to the general tenor of S. 497 and the

legislature did not intend to imply in that section that the restrictions imposed by Ss.

496 and 497 could be ignored.

22. DIFFERENCE BETWEEN BAIL UNDER S. 167(2) AND UNDER SS. 437/439 See, commentary under S. 167 Cr.P.C., for more details.

23. DISTINCTION BETWEEN ORDINARY BAIL AND ANTICIPATORY BAIL The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.” Pointing out the basic distinction between S. 437 and S. 438 of Cr.P.C., the Supreme Court has observed that S. 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. On the other hand, S. 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under it, must be able to show that he has reason to believe that “he may be arrested”, which plainly means that he is not yet arrested.

The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under S. 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under S. 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in S. 437(1), by reason

of which

the court cannot

release the applicant on bail is,

normally, the credibility of the allegations contained in the First Information Report. In the majority of cases falling under S. 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in S. 437 are to be read into the 4. Kali Dass v. S.H.O. Police Station Reasi, 1979 Cri LJ 345 at p. 349 J&K).

Ly

12s -

5. Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1637 : 1980 Cri (1980) 2 SCC 565 : 1980 SCC (Cri) 465. See also, Pokar Ram v. State of Rajasthan, AIR 1985 SC

969 at p. 970 : 1985 Cri LJ 1175 : (1985) 2 SCC 597 : 1985 SCC (Cri) 297; Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558 at p. 562 : 2004 SCC (Cri) 1989; Sunita mete rvs 4a} (2005) 1 SCC 608 at pp. 611-12 ; AIR 2005 SC 498 : 2005 SCC (Cri) 435; A. a akar hy

State of A.P., 1983 Cri LJ 872 at p. 874 (AP) : (1983) 1 APLJ 97; C.T. Mathew v.

Govi. ~ ndia,

Home Dept. (C.1.B.), 1985 Cri LJ 1316 at p. 1358 (Ker) : 1984 Ker LT 942; V.S. Norti v. Karnataka, 1989 Cri LJ 1050 at p. 1054 (Kant) : ILR (1989) Kant 943.

State of

[Chap. 4

When Bail may be taken in Case of Non-Bailable offence

92

provisions of S. 438, the transplantation shall have to be done without amputation. In

this process one shall have overlooked that whereas the poser under S. 438(1) can be exercised if the High Court or the Court of Session “thinks fit” to do so, S. 437(1) does not confer the power to grant bail in the same wide terms. The expression

if it

thinks fit” which occurs in S. 438(1) in relation to the power of the High Court or the

Court of Session is conspicuously absent in S. 437(1). The Supreme Court refused to

re-write S. 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting

it The right to ordinary bail does not furnish an exact parallel to the right to anticipatory bail.

Police custody is an inevitable concomitant of arrest for non-bailable offences. An

order of anticipatory bail constitutes, so to say, an insurance against police custody

following upon arrest for offence or offences in respect of which the order is issued. ~ In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on, the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order under Section 438 of the Code is that whereas the former is granted after arrest, and therefore means release from custody of the Police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.

24. S. 437 AND S. 438 - INDEPENDENT AND OPERATE IN DIFFERENT FIELDS Neither Section 437 nor 438 of the Cr.P.C. is a supplemental provision to each other nor the same can be interpreted to be a proviso to each other. They are independent of each other having different field for their applicability. Section 438 of the Cr.P.C. has no universal application which only could be applied in the restrictive field. It does not provide any discretion for the Court to enlarge a petitioner on

anticipatory bail which is available in Section 437 of Cr.P.c."°

25. DIFFERENT CONSIDERATIONS FOR REGULAR BAIL AND ANTICIPATORY BAIL Considerations to be weighed with the Court while dealing with a prayer for prearrest bail order are materially different from a post-arrest bail application.

Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. ~ 6. Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1643 : 1980 Cri LJ 1125 : (1980) 2 SCC 565 : 1980 SCC (Cri) 465. See also, Baldevbhai Natvarlal Barot v. State of Gujarat, 1982 Cri LJ 508 at p. 510 (Guj).

7. Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1646 : 1980 Cri LJ 1125 :

(1980) 2 SCC 565 : 1980 SCC (Cri) 465. 8. Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1637 : 1980 Cri LJ 1125 : (1980) 2 SCC 565 : 1980 SCC (Cri) 465. See also, C.T. Mathew v. Govt. of India, Home Dept. : bP.) daira LJ fy at p. 1318 (Ker) : 1984 Ker LT 942.

.

D.K.

Ganesh

Babu v.

P.T. Manokaran, 2007 Cri LJ 1827 at

p.

-

450:

SCC 434 ; (2007) 2 SCC (Cri) 345, Stic a 10. Bimaladak v. State, 1997 Cri LJ 1969 at p. 1974 (Cal) : 1997 Cal Cri LR 72. 11. Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria, AIR 1998 SC 696 at p. 698 : 1998 Cri LJ 841 : (1998) 1 SCC 52 : 1998 SCC (Cri) 261. 12. i, He the CBI v. Anil Sharma, AIR 1997 SC 3806 at p. 3807 : (1997) 7 SCC 187 : 1997 SCC

ri

Syn. 27]

Concept of liberty vis-a-vis provisions, etc.

93

Relevant considerations governing the court’s decision in grant ici under S. 438 Cr.P.C. are materially different from those shaven beatae bell is filed by a person who is arrested in the course of investigation as also by person who is convicted and his appeal is pending before the higher Court and bail isa sought during the pendency of the appeal. These situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the Courts would exercise. its discretion, one way or the other, are substantially different from each other,'

26. COMPARISON OF LIMITATIONS ON BAIL IN S. 43 | CR.P.C. AND S. 37 OF NDPS ACT See, commentary in the Chapter for bail under NDPS Act.

27. CONCEPT OF LIBERTY VIS-A-VIS PROVISIONS OF ARREST AND BAIL Liberty occupies a place of pride in our socio-political order. And who knew the value of liberty more than the founding fathers of our Constitution whose liberty was curtailed time and again under Draconian laws by the colonial rulers. That is why they provided in Article 21 of the Constitution that no person shall be deprived of his personal liberty except according to procedure established’ by law. It follows therefore that the personal liberty of an individual can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one such procedural law. That law permits curtailment of liberty of anti-social and anti-national elements. Article 22 casts certain obligations on the authorities in the event of arrest of an individual accused of the commission of a crime against society or the Nation. In cases of under-trials charged with the commission of an offence or offences the court is generally called upon to decide whether to release him on bail or to commit him to jail. This decision has to be made mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc.

The object of Article 21 is to prevent encroachment upon personal liberty by the Executive

save

in accordance

with

law, and

in conformity

with

the provisions

thereof, It is, therefore, imperative that before a person is deprived of his life or personal liberty, the procedure established by law must strictly be followed and must not be departed from, to the disadvantage of the person affected. In each case where a person complains of the deprivation of his life or personal liberty, the Court, in exercise of its constitutional power of judicial review, has to decide whether there is a law authorising such deprivation and whether in the given case, the procedure prescribed by such law is reasonable, fair and just, and not arbitrary, whimsical and fanciful. On account of liberal interpretation of the words ‘life’ and ‘liberty’ in Article 21, the said Article has now come to be invoked almost as a residuary right, even to an extent which the founding fathers of the Constitution never dreamt of. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. 13. Pokar Ram v. State of Rajasthan, AIR 1985 SC 969 at p. 970 : 1985 Cri LJ I 175 : (1985) 2 SCC 597 : 1985 SCC (Cri) 297.

:

Cri 14. State of Maharashtra vy. Captain Buddhikota Subha nt AIR 1989 SC 2292 at p. 2295 : 1989 LJ 2317 : 1989 Supp (2) SCC 605 : 1990 SCC (Cri). 126.

15. Narinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810 at p. 3827 : (2002) 2 SCC 210.

.

94

ilable offence When Bail may be taken in Case of Non-Ba

, e 2! which guarantees or However,| Articl

[Chap. 4

n e right also contemplates deprivatio this

—_ Under the criminal laws of

‘s liable to be detained , |‘ to be is liable non-bailable are hich he is enlarged on bail in accordance of offences W accused person a country, ; , less , of personal :iberty by procedure establi

as being violative of) Article 21 since in custody during the pendency of trial Un with law. Such detention cannot be questioned accused of non-bailable offences are the same is authorised by law. But even persons the conclusion that the saan entitled to bail if the court concerned comes to or if the court is satisfi has failed to establish a prima facie case against him and/ prima facie case there is a for reasons to be recorded that in spite of the existence of require it to do so. In that need to release such persons on bail where fact situations once rejected is not lis process a person whose application for enlargement on bai

is achange in precluded from filing a subsequent application for grant of bail if there ire that such the fact situation. In such cases if the circumstances then prevailing requ , the

g rejected persons be released on bail, in spite of his earlier applications bein

courts can do so.

While liberty of an individual is precious and there should always be an all round effort on the part of Law Courts to protect such liberties of individuals - but this protection can be made available to the deserving ones only since the term protection

cannot by itself be termed to be absolute in any and every situation but stands qualified depending upon the exigencies of the situation. It is on this perspective that in the event of there being committal of a heinous crime it is the society that needs a

protection from these elements since the latter are having the capability of spreading a reign of terror so as to disrupt the life and the tranquillity of the people in the society. The protection thus is to be allowed upon proper circumspection depending upon the fact situation of the matter. Examining the scope of invoking Article 21 of the Constitution, in a case, the Supreme Court observed that while it is true that Article 2] has not been incorporated in the Constitution to safeguard the offenders, provided however that, there is due sanction of law in the matter of having the petitioners in the custody.

Bail or jail? That’s the question. Every citizen is presumed to be law-abiding and innocent. But when the court speaks of presumption of innocence of the accused, it only means to stress that the burden of proving guilt lies entirely on the prosecution and that strict proof must be given for holding that the accused is guilty. This is based on the principle that every citizen is entitled to live in liberty tillhecommits an offence; and nobody, including the State, should take away his liberty without establishing before a court of law that he had committed

the offence

and thus

rendered himself disqualified for enjoying the liberties of a free citizen. _ It is true that personal liberty guaranteed under Article 21 of the Constitution

includes all the freedoms conferred by Article 19(1)(a) to (g). But that is also subject

to reasonable restrictions and subject to the due process of law or procedure established by law. It will not give unrestricted freedom in the sense of immunity from arrest according to the due process of law.

16. Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42 at p. 52 ; AIR 2005 SC 921 : 2005 Cri

LJ 944 :2005 SCC (Cri) 489. Also see, Ranjitsing Brahmajeetsing Sharma vy. State of Maharashtra, — 2005 Cri LJ 2533 at p. 2549 : (2005) 5 SCC 294 : AIR 2005 SC 2277 : 2005 SCC (Cri) 1057. 17. Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1476 : (2002) 3 SCC 598 : 2002 SCC (Cri) 688. 18. Narinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810 at p. 3814 : (2002) 2 SCC 210. 19. Bhola v. State, 1974 Cri LJ 1318 at p. 1319 (All).

20.

§. | i Meethal Thayyanbad 1985 Mad LJ (Cri) 263.Kunhiraman vy. v. S. 1. of Police, Panoor,

'

1985 Cri LJ 1111 at p. 1114 (Ker) :

Syn. 27]

Concept of liberty vis-a-vis Provisions, etc.

95

A provision which curtails personal liberty should be most stri , favour of the subject and the safeguards provided for protection ow eT must be liberally interpreted and applied. Surely enough accused person’s right of

personal liberty is important but in case of a conflict between accused person’s right of personal liberty and interest of public justice and welfare objectives of society, the former should be subordinated to the latter.” Liberty of a citizen is undoubtedly of importance but the same has to be in a matter as of a serious nature balanced with the

security of the community.” There is no gainsaying the fact that a citizen’s liberty should receive paramount consideration in all situations and the same can be denied to him for very cogent reasons and only when it is absolutely necessary in the interest of justice and the bail provisions in the Cr.P.C. are, undoubtedly, designed to achieve the aforesaid objective.

It is a settled principle that before a person is deprived of his liberty, the procedure established by law must be strictly and rigidly adhered to or followed and must not be departed from to the prejudice of the person affected. The Court, therefore, has to see whether the requirements of law and of procedure have been satisfied in the case and whether the deprivation of the personal liberty is according to the procedure

established by law.”

The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights guaranteed to a citizen under our Constitution. Under Article 21 of the Constitution no person shall be deprived of his life or personal liberty except according to the procedure established by law. Personal liberty is precious and the Courts have to zealously guard it against any onslaught from any quarter. Subtle inroads into this valuable right under the cover of legal power or procedural requirement have to be vigilantly watched and averted whenever it is found that such inroads are not strictly in accordance with the procedure established by law. Deprivation of personal liberty by detention before proof of guilt is permitted in the Code of Criminal Procedure not as a measure of possible punishment for the offence alleged but only to ensure fair and proper investigation and trial. Deprivation of personal liberty does not merely mean complete deprivation; even partial deprivation is deprivation. Any restraint on personal liberty, though does not amount to a complete deprivation of personal liberty, but constitutes merely a curtailment, can be effected only in accordance with the procedure established by law. The presumption of innocence is not a relevant consideration for grant of bail. If investigation is likely to be impeded or evidence likely to be tampered with, or accused likely to flee justice, bail could be declined. The salutary rule is to balance the cause of the criminal defendant, and the cause of public justice. Oversolicitous

homage to the criminal defendant’s liberty can sometimes defeat the cause of public

justice. In some quarters, a feeling seems to exist that the object of criminal law Is to protect the rights of the accused and that criminal justice system is envisioned as a sentinel of the rights of the accused. It is not so. The law is the sentinel of rights, of the society and of the individual. The rights of the criminal defendant will be as zealously guarded, as the cause of public justice. Pre-trial detention In itself is not an M.P., 1990 Cri LJ 1990 at p. 1992 (MP).

21.

Mari Appa vy. State of

23.

Dilip Shankar Koli v. State of Maharashtra,

be

;

22. Shalini Rawat v. State, 1998 Cri LJ 1815 at pp. 1817-18 (Del); relying upon Babu Singh v. State of U.P., AIR 1978 SC 527 : (1978) 2 SCR 777 : 1978 Cri LJ 651 : (1978) 1 SCC 579 : 1978 SCC (Cri) 133.

24.

25. 26.

1981 Cri LJ 500 at p. 503 (Bom).

Jagjit Singh v. State of Punjab, 1978 Cri LJ 759 at p. 760 (P&H).

Khinvdan vy. State of Rajasthan, 1975 Cri LJ 1984 at p. 1985 (Raj) : 1975 WLN 132.

Shaik Layak v. State, 1981 Cri LJ 954 at p. 957 (AP).

96

-Bailable offence When Bail may be taken in Case of Non

[Chap. 4

and e neti e.. Ensu aaapity innocenc cved secur ofti achiring aie i presumpttt l ions basic the to sed eppo e evil, nor hy x it , order is a permissible non-punitive objective, —In the nature aforesaid require denial ns detention. Where overwhelming consideratio of bail, it has to be denied. and of the individual. ee eatin w The law is the sentinel of rights of the society the rights of a crn e op “ as public justice had to be zealously guarded have also to be oe nip whi ; ce justi ic publ of cause also and ty socie of est Inter such nature which a pe he vig granting or refusing bail. When the offence is of on the social and family life, in suc interest of the society and has adverse effect rence to them. One of the matters the issue is to be considered with refe bail is a nature of the considerations which has to be weighed for granting or refusing s which are peculiar to the offence and its heinousness. Hence the circumstance be

to accused and larger interest of the public and cause of public justiceng have a heinous itti considered. The purpose of refusing bail to accused allegedly comm offence is that their remaining at large and their remaining outside may havea deleterious effect on the minds of the general public and thwart the cause of justice.

28. PERSONAL LIBERTY AND INVESTIGATIONAL POWERS OF POLICE The society has a vital stake in both interests - personal liberty and the investigational powers of the police, though their relative importance at any given

time depends upon the complexion and restraints of political conditions.

29. BAIL PETITION CAN BE REJECTED TO AVOID HURDLES IN INVESTIGATION A petition for grant of bail, if public interest requires detention of citizen in custody for purpose of investigation, could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence.

30. BALANCING INTERESTS OF ACCUSED AND OF SOCIETY Law of bail should balance between two conflicting demands: (i) shielding the society from misadventures of the persons allegedly involved in crime; and (ii) presumption of innocence of the accused till he is found guilty.

_ The courts below are supposed to be guided by the principle ‘Bail is the rule and jail is an exception” but that exception is further subject to an exception that the provisions of bail should not be interpreted only for the benefit of the accused but

also for the benefit of the prosecution as well as for the benefit of the society at large, which can also be affected directly or indirectly with the commission of an offence

against the society. ~ In a conflict between social security and individual liberty, Court need not sacrifice

security of the society at the altar of individual liberty.

27. State v. P. Sugathan, 1988 Cri LJ 1036 at pp. 1037-38 (Ker). 28. Chandrawan v. State of U.P., 1992 Cri LJ 3634 at p. 3635 (All). 29.

30.

Gurbaksh Singh Sibbia v. State of Punjab, AIR (1980) 2 SCC 565 : 1980-SCC (Cri) 465,

1980 SC

1632 at p. 1635 : 1980 Cri LJ 1125 :

K.K. Jerath v. Union Territory, Chandigarh, AIR 1998 SC 1934 at p. 1935 : (1998) 4 SCC 80 : 1998 SCC (Cri) 809.

31. Ramesh v. State of Haryana, 1997 Cri LJ 2848 at p. 2853 (P&H). 32. Ramesh v. State of Haryana, 1997 Cri LJ 2848 at p. 2853 (P&H). 33. K. Muthuramalingam y. Staite, 1997 Cri LJ 3501 at p. 3504 (Mad).

Syn. 34]

Power of Police Officer to Grant Bail, etc.

97

31. POLICE CUSTODY AN INEVITABLE CONCOMITANT

OF ARREST

Police custody is an inevitable concomitant of arrest for non-bailable offences.”*

32. CONSEQUENCES OF PRE-TRIAL DETENTION The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed

defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.’

33. BAIL CAN BE GRANTED IN NON-BAILABLE OFFENCES ALSO Even persons accused of non-bailable offences are entitled to bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so.*° Normally in the offence of non-bailable also, bail can be granted if the facts and circumstances so demand. In granting bail in non-bailable offence, the primary consideration is the gravity and the nature of the offence.’ In the cases of non-bailable offences as well, there are circumstances under which the accused may be admitted to bail.

34. POWER OF POLICE OFFICER TO GRANT BAIL UNDER THIS SECTION It is clear from the language of S. 437, Cr.P.C., in particular from sub-sections (2) and (4) thereof, that even officer in charge of a police station has been given the power to grant bail in a non-bailable offence under this section in certain situations. It is a different matter that in practice, this power is rarely, if at all, used by police officers for granting bail in a non-bailable offence. Code of Criminal Procedure contemplates grant of bail, both by a police officer conducting investigation as also by a Magistrate/Court, having jurisdiction over the matter. The power to grant bail is thus incidental to the power to conduct investigation as also to the power to try and convict an offender. The power of a police officer in charge of a police station to grant bail and the bail granted by him comes to an end with the conclusion of the investigation except in cases where the sufficient evidence is only that of a bailable offence, in which eventuality he can take security for appearance of the accused before the Magistrate on a day fixed or from day to day until otherwise directed. No parity can be claimed with an order passed by Magistrate in view of enabling provision, contained in clause (b) of S. 209, Cr.P.C., under which the Committal Magistrate has been empowered to grant bail until 34.

Gurbaksh Singh Sibbia v. State of Punjab, AIR (1980)

2 SCC

565 : 1980 SCC

1980 SC 1632 at p. 1637 : 1980 Cri LJ 1125 :

(Cri) 465. See also, C.7. Mathew

v. Govl. of India, Home

Dept.

| (C.1.B.), 1985 Cri LJ 1316 at p. 1318 (Ker) : 1984 Ker LT 942. 35. Moti Ram v. State of M.P., AIR 1978 SC 1594 at p. 1597 : 1978 Cri LJ 1703 : (1978) 4 SCC 47 : 1979 SCR (1) 335 : 1978 SCC (Cri) 485. 36.

Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42 at p. 52 : AIR 2005 SC 921 : 2005 Cri

37.

LJ 944 : 2005 SCC (Cri) 489. Satish Jaggi v. State of Chhattisgarh, 2007 Cri LJ 2766 at p. 2768 : (2007)

AIC 202 (SC).

.

11 SCC 195 : (2007) 56

38. Bakshi Sardari Lal vy. Superintendent, Tehar Central Jail, Delhi, 1968 Cri LJ 675 at p. 680 (Del). 39. Jodha Ram vy. State of Rajasthan, 1994 Cri LJ 1962 at p. 1969 (Raj)

When Bail may be taken in Case of Non-Bailable offence

98

[Chap. 4

conclusion of trial, which power was otherwise restricted to grant of bail by him during pendency of committal proceedings under clause (a) of S. 209, Cr.P.C.

35. S. 437 IS CONCERNED ONLY WITH COURT OF MAGISTRATE AND NOT WITH HIGH COURT AND SESSIONS COURT Section 437 Cr.P.C. is concerned only with the court of Magistrate. It expressly excluded the High Court and the Court of Session. It may be pointed out that power of the High Court and the Sessions Court to grant bail is laid down in S. 439 Cr.P.C. (see infra).

36. MAGISTRATE’S POWER TO GRANT BAIL IN NON-BAILABLE OFFENCES S. 437 of Cr.P.C. deals with the power of the Magistrate to grant bail in a nonbailable offence; on the other hand, the Sessions Court and the High Court have the power to grant bail in such an offence under S. 439 of Cr.P.C. (see infra). S. 437 empowers the Magistrate to grant bail to an accused person involved in a nonbailable offence; however, his power to grant bail in a non-bailable offence is limited in the following situations: (i) The Magistrate cannot grant bail if there appear reasonable grounds for

believing that such a person has been guilty of an offence punishable with death or imprisonment for life. This implies that even in such a case, the Magistrate does have the power to grant bail if there are no reasonable grounds for believing that such a person has been guilty of an offence punishable with death or imprisonment for life. Therefore, it is not that there is a complete bar on the power of the Magistrate to grant bail in such a case. Moreover, bail can still be granted in such a Situation if the case is covered under the first proviso to sub-section (1), i.e., when such a person is under the age of 16 years, a woman, infirm or sick person. (ii) The Magistrate cannot grant bail if such offence is a cognizable offence and such person 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. However, bail can still be granted in such a situation if the case is covered under the first proviso to sub-section (1), i.e., when such a person is under the age of 16 years, a woman, infirm or sick person; or if the case is covered under the second proviso to sub-section, i.e., if the Magistrate is satisfied that it is just and proper so to do for any other special reason. S. 437 also deals with certain conditions which!can be imposed while granting bail.

This section further provides power to the Magistrate to cancel bail granted under sub-sections (1) and (2) under appropriate circumstances.

When an accused is brought before the court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso 40.

to S. 437(1)

Cr.P.C.

and

in a case

where

the Magistrate

Haji Mohd. Wasim vy. State of U.P., 1992 Cri LJ 1299 at p. 1302 (All).

entertains

a

41. Gurcharan Singh v. State (Delhi Admn.), AIR 1978 SC 179 at p. 185 : (1978) 1 SCC-118 : 1978 Cri LJ 129 : 1978 SCC (Cri) 41.

Syn. 38]

Power to Grant of Bail in Non-Bailable is Discreti onary

reasonable belief on the materials that the accused has not been guilty

99

of

such offence. This will, however, be an extraordinary occasion since there will bsma

materials at the stage of initial arrest, for the accusation or for strong sus fhm commission by the person of such an offence. In other non-bailab le Cases a ie will

exercise its judicial discretion in favour of granting bail subject to sub-section

(3) of S. 437, .Cr.P.C.

if it deems

necessary

to act under it. Unless exceptional

circumstances are brought to the notice of the court which may defeat vo r investigation and a fair trial, the court will not decline to grant bail to a person Neg not accused of an offence punishable with death or imprisonment for life.” The whole of Section 437 is riddled and hedged in by restrictions on the power of

|

certain courts to grant bail.”

It is clear from Section 497 of Cr.P.C. (of 1898) [equivalent to S. 437 of Cr.P.C. of 1973] that the police officer as well as the court before whom the person accused or suspected is produced can release on bail even in a non-bailable offence provided that he shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. This

means that bail can be granted at that stage by a Magistrate even in a case where the charge is one of a nature which will be triable by a court of Sessions. Provisions of sub-section (3) of S. 497 clearly show that the release on bail can also be by an

officer, and it will be too much to suggest that a police officer in such a case will have the power to release such a person on bail but a Magistrate before whom he is

produced has no power to release him on bail if-it is of an offence which is triable by a Sessions Court. The only limitation imposed

in sub-section (3) is that the order

shall be for the reasons recorded.

37. POWER OF MAGISTRATE TO GRANT BAIL GOVERNED BY PUNISHMENT PRESCRIBED FOR OFFENCE The powers of the Magistrate in granting bail are not governed by the court which has jurisdiction to try the case, rather are governed by the punishment prescribed for commission of the crime. A Magistrate has no jurisdiction to grant bail only in such case where the prescribed punishment is imprisonment for life or death penalty. Under Section 366 of the Penal Code, punishment is that of 10 years; therefore, the Magistrate is empowered to grant bail.”

38. POWER TO GRANT OF BAIL IN NON-BAILABLE IS DISCRETIONARY

Unlike a bailable offence where bail is a matter of right under S. 436 Cr.P.C., grant of bail for a non-bailable offence under S. 437 Cr.P.C. under S. 439 Cr.P.C.), is a matter of discretion.

(or, for that matter, even

Leda Cri 42. Gurcharan Singh y. State (Delhi Admn.), AIR 1978 SC 179 at p. 185 : (1978) | SCC 118 at p. LJ Cri 1981 Subhedar, S. B. vy. Chadha K. Kamal also, (Cri) 41. See LJ 129 : 1978 SCC 1805 (Bom).

43.

76. Cri LJ 1125 : Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1639 : 1980 (1980) 2 SCC 565 : 1980 SCC (Cri) 465.

44. Khaliq War v. State, 1974 Cri LJ 526 at p. 527 (J&K). 45.

Aftab Ahmad v. State of U.P., 1990 Cri LJ 1636 at p. 1636 (All).

100

When Bail may be taken in Case of Non-Bailable offence

[Chap. 4

The grant of bail in non-bailable cases is generally a matter in the discretion of the authoriti€s in question. The grant of bail in respect of a person accused of or suspected of the commission of any non-bailable offence, is a matter of discretion and under Section 437 of the Code, if there is no prohibition otherwise and if the guidelines for enlarging on bail are satisfied, then, the Magistrate in his discretion may release such person on bail. It thus gives the jurisdiction that contains a discretion which must be utilised judicially.

It is stipulated that bail may not be denied only on the ground that the accused is

required for getting him identified by the witnesses. Certain conditions can be annexed to the liberty and in certain contingencies liberty already granted can be snatched by cancellation of bail. In addition to these provisions, there is a ban even on such discretionary power of the Magistrate when there appear reasonable grounds

for believing that the accused has been guilty of an offence punishable with death or imprisonment for life in which case, the Magistrate has no jurisdiction and power to release the accused on bail as it is well emphasized by the use of the words “but he shall not so release”. Exception to this general ban finds place in the proviso relating to young persons or sick or infirm persons or women. Bail is a matter of right if the offence is bailable. In the case of a non-bailable offence, bail is a matter of judicial discretion. Bail shall not be granted by the Magistrate if the offence is punishable with death or imprisonment for life if he is of the view that there appear reasonable grounds for believing that the person concerned accused of or suspected of the commission of the offence has been guilty of the offence, provided that he may, in his discretion, grant bail to a woman or a minor under the age of sixteen years or a sick or infirm person. In a case involving a nonbailable offence, a Court may impose reasonable conditions besides fixing of the bail amount for the attendance of the accused. Under S. 497 of Cr.P.C. (of 1898) [equivalent to S. 437 of Cr.P.C. of 1973], where the accused is suspected of the offence of non-bailable offence and is arrested or detained, he may be released on bail, but 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. Thus in the case of non-bailable offences, other than the one punishable with death or imprisonment for life, a discretion is conferred on the Court whether to enlarge or not to enlarge the accused on bail. An offence being non-bailable does not mean that bail can in no case be granted. A

perusal of S. 436 of the Code reveals that a person accused of a bailable offence is entitled to bail as of right. However, where a person is accused of a non-bailable offence, it is not so. All that “non-bailable” implies is that unlike the person accused of a bailable offence a person accused of non-bailable offence cannot claim bail as of right and the question of grant of bail to such a person is left by the legislature in the court's discretion to be exercised on a consideration of the totality of the facts and

circumstances of a given case. The discretion has, of course, to be a judicial one

informed by tradition methodized by analogy, disciplined by system and subordinated to the primordial necessity of order in social life.” Neither any Law Reforms Committee nor even the Law Commission has ever made suggestions that the discretion to reject bail in a non-bailable offence-case 46. Talab Haji Hussain vy. Madhukar Purshottam Mondkar, AIR 1958 SC 376 at p. 378 : 1958 SCR

1226 : 1958 Cri LJ 701.

47.

Datiatraya Samant y. State of Maharashtra, 1981 Cri LJ 1819 at p. 1824 (Bom).

49,

In re Saradamma,

48. State of Orissa v. Md. Abdul Karim, 1984 Cri LJ 905 at p. 907 (Ori) : (1984) 57 Cut LT 281. |965(2) Cri LJ 709-at p.

50. Shantilal v. State of

710 (AP).

M.P., 1989 Cri LJ 332 at p. 333 (MP).

Syn, 39]

Discretion to be Exercised in Judicious Manner, etc.

101

should not remain with Magistrate. It appears more than justifi é “LS and circumstances of different cases, ar as it may be i i.vm a justice for some persons to get bail though involved in non-bailable cases it might be equally necessary to contain some of them in jail. Therefore, it cannot be accept ed

that all persons accused of non-bailable offences should get bail.”! When a petitioner files an application for bail, it is the duty of the Court either to grant or refuse the prayer by exercising its discretion, taking into consideration the settled principles of law vis-a-vis the nature of the case, seriousness of the allegations made and conduct of the parties. The High Court need not give any advice to the petitioner about the course which he has to adopt. It is not proper for the High Court to suggest to the trial Court to consider the bail application if it is filed by the petitioner. ~

A discretion has to be exercised in granting bail in cases not punishable with imprisonment for life or death unless there may be some reasons for not exercising such a discretion in favour of the accused. Such reasons should be mentioned in the order while refusing bail. In cases of under-trials charged with commission of an offence or offences the court is generally called upon to decide whether to release him on bail or to commit him to jail. The decision has to be made mainly in nonbailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc.””

39. DISCRETION TO BE EXERCISED IN JUDICIOUS MANNER, AND NOT IN A CASUAL OR CAVALIER OR ARBITRARY MANNER Grant of bail though being a discretionary order-but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail - more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.’ The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. 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, circumstances which are peculiar to the accused, reasonable possibility of

51. Pramod Kumar Manglik v. Sadhna Rani, 1989 Cri LJ 1772 at p. 1777 (AI. 52. Gagan Behera v. State of Orissa, 2002 Cri LJ 696 at p. 698 (Ori). 53. Guddu v. State of U.P., 1990 Cri LJ 1531 at p. 1534 (All). (2002) 3 SCC 598 : 54. Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1477 : a 2002 SCC (Cri) 688. 55.

Chaman

1974.

2004 SCC (Cri) Lal vy. State of U.P., (2004) 7 SCC 525 at p. 527 : AIR 2004 SC 4267 :

When Bail may be taken in Case of Non-Bailable offence

102

{[Chap.

securing the presence of the accused at the trial, reasonable apprehension of th witnesses being tampered with, the larger interests of the public or State and similz other considerations. It has also to be kept in mind that for the purpose of grantin 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 ca only satisfy itself as to whether there is a genuine case against the accused and thé the prosecution will be able to produce prima facie evidence in support of the charge

It is not expected, at this stage, to have the evidence establishing the guilt of th accused beyond reasonable doubt.” In any event, the discretion to be used for grant of bail shall always have to b The provisions of th strictly in accordance with law and not de hors the same.’ Criminal Procedure Code confer discretionary jurisdiction on criminal courts to gran bail to the accused pending trials or in appeals against convictions. Since th jurisdiction is discretionary it is required to be exercised with great care and cautio:

by balancing valuable right of liberty of an individual and the interest of the society in general. In granting or refusing the bail, the courts are required to indicate, may b

very briefly, the reasons for grant or refusal of bail. The jurisdiction is not to b exercised in a casual and cavalier fashion.”®

The court granting bail should exercise its discretion in a judicious manner and no as a matter of course. Though at the stage of granting bail a detailed examination o evidence and elaborate documentation of the merit of the case need not b undertaken, there is a need to indicate in such orders reasons for prima faci concluding why bail was being granted particularly where the accused is charged o having committed a serious offence. Any order devoid of such reasons would suffe from non-application of mind.” Though it is correct that detailed examination of the merits of the case is not required by the courts while considering an application fo bail but, at the same time, the exercise of discretion has to be based on well-settlec principles and in a judicious manner and not as a matter of course.

Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bai applications, yet a court dealing with the bail application should be satisfied as t whether there is a prima facie case, but exhaustive exploration of the merits of thé case is not necessary. The court dealing with the application for bail is required t exercise its discretion in a judicious manner and not as a matter of course. There is : need to indicate in the order, reasons for prima facie concluding why bail was being so particularly where an accused was charged of having committed a seriou: offence. It was

held by the Hyderabad

High Court

in Fazal Nawaz

Jung

v. State o

Hyderabad,” that the discretionary power of the court to admit to bail is not arbitrary but is judicial and is governed by established principles; the object of detention of the accused is not punitive but to secure his appearance to abide by the sentence of law. the principal inquiry is whether a recognisance would effect that end, and in seeking 56. Prahlad Singh Bhati v. NCT, Dethi, AIR 2001 SC 1444 at p. 1446 : 2001 Cri LJ 1730 : (2001) ¢ SCC 280 : 2001 SCC (Cri) 674. 57.

Ram Govind Upadhyay v. Sudarshan aeSingh, AIR 2002 SC 1475

2002 SCC (Cri) 688.

p. 1478 :: ((2002) at at p.

3 SCC

59 598

| $8. Mansab Alt v. Irsan, (2003) | SCC 632 at p. 633 : AIR 2003 SC 707 : 2003 SCC (Cri) 399. . Cri Kalyan =2 v. Rajesh Ranjan, (2004) 7 SCC 528 hsat p. 535 : AIR 2 i 1866iyi 1977. SCC (Cri) : 2004Sarkar LJ 1796Chandra y. State of U.P., (2005) 7 SCC 507 at p. S08 : 2005 SCC (Cri) 1702. Sharma Kumar 60. Ajay 61. Deepak Singchi v. State of Rajasthan. 2007

62.

AIR 1952 Hyd 30: 1952 Cri LJ 873.

Cri LJ 4338 at p. 4340 (SC).

Syn. 39]

Discretion to be Exercised in Judiciou s Manner, ete.

103

an answer to this inquiry, the courts have to consider the serio us ness of a charge, the nature of the evidence, the severity of the punishment presc ribed for the in some instances, the character, means and standing of the accused, but offences and of the sentence has to be borne in mind in cases of offences punishable the severit with death 4 with transportation for life since the severity of the punishment is itself such as to | induce a person to escape the trial. The Court has to exercise judicial discretion keeping in view the recognised principles and factors while considering the application for bail.” While the Court exercises its discretion, whether it is under S. 437 or 438 or 439

Cr.P.C., it shall exercise the same properly and not in an arbitrary manner. The

discretion exercised shall appear a just and reasonable one. It is true that no norms

are prescribed to exercise the discretion. Merely because, norms are not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 Cr.P.C. that does not mean the discretion shall be left to the whims of the Court. The personal liberty as guaranteed under the Constitution has necessarily to be harmonized with the considerations under the ordinary law, one can understand

refusal of bail in matters eating into the very vitals of the society. In such matters the issue is always resolved by reference to what is in the interest of society and what is against. In the ultimate analysis the decision in matters in bail is always taken on the circumstances and facts of each case. It is for this reason that the discretion is vested in courts in matters of bail and has always been considered a great trust. This discretion has to be exercised judicially with all the concern to the facts of a particular case and the circumstances.° While it is true that Article 21 of the Constitution is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the court has also to take into consideration other facts and circumstances, such as the interest of the society. ‘Discretion’ when applied to court of justice, means ‘“‘sound discretion guided by law’’. It must be governed by rule, not by humour. It must not be arbitrary, vague and fanciful, but legal and regular, and in the case of granting bail the discretion of the Judge must be exercised not in opposition to, but in accordance with, the established principles of law. In granting bail, the Judge has to consider whether a prima facie case has been or has not been made out by the prosecution. If a prima facie case has been made out by the prosecution and if there appear reasonable grounds for believing that the person accused has been guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail pending disposal of the case

unless extraordinary circumstances intervene favouring the accused. 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 nenUre of

accusations, the nature of evidence in support thereof, severity of the punishment 63.

Rama Mhatre v. Dattatraya Janu Vayale, 1981 Cri LJ 1605 at p. 1612 (Bom) : 1981 Cri LR (Mah)

62. 64. Afsar Khan y. State, 1992 Cri LJ 1676 at pp. 1679-80 (Kant) : ILR 1992 Kant 2894 65. Rajender Singh Sethia v. State, 1988 Cri LJ 749 at p. 755 (Del). 66.

Rajesh Ranjan Yadav y. CBI, (2007) | SCC 70 at p. 79 : 2007 Cri LJ 304.

67. State v. Veerapandy, 1979 Cri LJ 455 at p. 458 (Mad).

7

[Chap. 4

ilable offence When Bail may be taken in Case of Non-Ba

104

icti et CONS circumstance accused, >

,

iy’

N

}

5

| behaviour, means and standingle of ; |, the character, Y the culiar to the accused, reasonable possibility of oe P 4 at the trial, reasonable apprehension of the which

are

e

-

j

‘the accuse

arger interests of the public or State and other the presence 0! securing witnesses being tampered with, the | similar considerations.

TION TO CRITERIA FOR JUDICIAL DISCRE GRANT OR REFUSE BAIL =

: if, is the “Bail or jail?”, to borrow the famous quote from KRISHNA BER discretion al question that repeatedly comes before courts wielding immense judician oft-quoted while exercising their bail jurisdiction. It may be pointed that in u y. observation, KRISHNA IYER, J., had stated in the case of Gudikanti Narasimhul Public Prosecutor, High Court of A.P.,”

“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.” These

observations still hold true, if not in the letter of law then at least in practice, inspite of several judicial pronouncements as well as provisions in the statutes, as to how the

judicial discretion has to be exercised. This judicial discretion has to answer one of the most important fundamental rights guaranteed under Article 21 of the

Constitution, namely, personal liberty. Grant of bail may gifting personal liberty to a person who has been arrested and who is anticipating an imminent arrest. On the other hand, refusal of bail implies sending that person to jai/, or to police custody, as the case may be, and thereby depriving that person of his personal liberty. In fact, the question of “‘bail or jail?” has a bearing not only on the individual concerned but also on the society in general, for, an innocent person sent to jail may not augur well for a just society whereas a dangerous and hardened criminal released on bail can do more harm to the society by way of destroying the evidence, threatening the witnesses, evading the judicial process or may be by committing more offences. The importance of this judicial discretion cannot therefore be understated. One of the main reasons for the uncertainty in the exercise of this judicial discretion in bail matters is the fact that without going into the full details of the evidence, which in fact might not even. have been collected till that time in many cases as the case concerned might still be under investigation, a Court has to decide whether a prima facie case exists which then becomes a grey area in which different shades of opinion could be possible.

Highlighting the need for caution for the said judicial discretion in bail matters, it

was observed that: ‘Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art 21 of the Constitution that the crucial 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. ... 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 Art. 21 are

the life of that human right.””” At the same time, His Lordship fully realised that the

exercise of this judicial discretion was a difficult matter, which

is clear from the

68. Sanjay Sharma v. State of J&K, 2004 Cri LJ 1473 at p. 1474 J&K).

69.

7

AIR 1978 SC 429 at p. 430 : (1978) | SCC 240 : 1978 Cri LJ 502 : 1978 SCC (Cri) 115. Also see, Babu Singh v. State of U.P., AIR 1978 SC 527 at p. 529 : (1978) 2 SCR 777 : 1978 Cri LJ 651 :'

(1978) 1 SCC 579 : 1978 SCC (Cri) 133; A. Prasad v. State of Karnataka, 1982 Cri LJ 542 at p. 545

(Kant); Mazahar Ali v. State, 1982 Cri LJ 1223 at p. 1226 (J&K) : 1982 Kash LJ 62. a, Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., AIR 1978 SC 429 at p. 430 :

Shab SCC 240 : 1978 Cri LJ 502 : 1978 SCC (Cri) 115. Also see, Babu Singh v. State of U.P.,

a 1978 SC 527 at p. 529 : (1978) 2 SCR 777 : 1978 Cri LJ 651 : (1978) 1 SCC 579 : 1978 SCC. Cri) 133; A. Prasad vy. State of Karnataka,

\982 Cri LJ 542 at p. 545 (Kant); Mangal Hemrum vy.

State of Orissa, 1982 Cri LJ 687 at p. 689 (Ori) : (1982) 53 Cut LT 259.

Syn. 42]

Limitations on Powers of Magistrate to Grant Bail

105

following observations: “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 develo ed jurisprudence of bail is integral to a socially sensitized judicial process.” ’ Speaking about the bail jurisdiction, in a case,” the Supreme Court observed that 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 society specified in the Constitution.

41. TESTS FOR THE EXERCISE OF DISCRETION TO GRANT BAIL For the exercise of the discretion to grant bail the universally approved tests are whether, if released on bail the accused person is likely to abscond and whether he is likely to misuse or abuse the privilege. If the answers to these questions are in the

negative, the accused shall have to be granted bail. If the answer to either of these questions is in the positive, bail shall have to be refused. In examining the questions, the Court has to see the gravity of the charge, the nature of the evidence available, the probability of the conviction and the likely sentence that may be awarded in the event of conviction and see whether these factors are likely to induce the accused to flee away from the law or indulge in interfering with the prosecution evidence.

42. LIMITATIONS ON POWERS OF MAGISTRATE TO GRANT BAIL S. 437 Cr.P.C. empowers the Magistrate to grant bail to an accused person involved in a non-bailable offence; however, his power to grant bail in a non-bailable offence is limited in the following situations: (a) The Magistrate cannot grant bail if there appear reasonable grounds for believing that such a person has been guilty of an offence punishable with death or imprisonment for life. This implies that even in such a case, the Magistrate does have the power to grant bail if there are no reasonable grounds for believing that such a person has been guilty of an offence punishable with death or imprisonment for life. Moreover, bail can still be granted in such a situation if the case is covered under the first proviso to sub-section (1) of S. 437, i.e., when such a person is under the age of 16 years, a woman, infirm or sick person. (b) The Magistrate cannot grant bail if such offence is a cognizable offence and such person 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 yearsor more but not less

than seven years. However, bail can still be granted in such a situation if

the case is covered under the first proviso to sub-section (1) of S. 437, Le.,

when such a person is under the age of 16 years, a woman, infirm or sick

person; or if the case is covered under the second proviso to sub-section. 71.

Gudikanti Narasimhulu (1978)

v. Public Prosecutor,

High Court of A.P., AIR

1978 ~ “e al p. vee

1 SCC 240 : 1978 Cri LJ 502 : 1978 SCC (Cri) 115. Also see, Babu Sing

Fees

AIR 1978 SC 527 at p. 529 : (1978) 2 SCR 777 : 1978 Cri LJ 651 : (1978) | SCC 579

(Cri) 133. 72.

73.

Babu Singh v. State of U.P., AIR

| LP.

1978 SCC

:

.

)

1978 SC 527 at p. 529 : (1978) 2 SCR 777 : 1978 Cri LJ 651 :

(1978) 1 SCC 579 : 1978 SCC (Cri) 133. K. Narayanaswamy v. State of A.P., 1980 Cri LJ 588 at p. 591 (AP).

[Chap. 4

When Bail may be taken in Case of Non-Bailable offence

106

ie., if the Magistrate is satisfied that it is just and proper so to do for any other special reason. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Session, Magistrate has

no jurisdiction to grant bail unless the matter is covered by the provisos attached to S.

437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction Aw entertain the application is distinguishable from the exercise of the jurisdiction.

No doubt, in criminal jurisprudence, the under-trials are supposed to be innocent, therefore, the general policy of law is to grant bail rather than to send to jail but Section 437 of the Code completely debars the Magistrate from granting bail in the offences punishable with death or imprisonment for life except where the accused person is woman or below the age of sixteen years or sick oF, infirm as provided in the first proviso to sub-section (1) of Section 437 of the Code. 43. MAGISTRATE TO DECIDE BAIL MATTER ON MATERIAL PLACED BEFORE HIM It is in course of the inquiry or trial that the Magistrate or the Sessions Court in case of Sessions trial will have the jurisdiction to decide whether the allegations constitute an offence and whether there is evidence to substantiate the charge and if that evidence is not rebutted the accused can be convicted. But that does not mean that a Magistrate is powerless and has no occasion to go into the merits of the allegations in the course of investigation of a case. After all the Magistrate is given the power under S. 437 of Cr.P.C. to grant or refuse to grant bail on the materials that are placed before him and for that purpose see how allegations have been made and how they are sought to be substantiated.°

44. GRANT OF BAIL BY MAGISTRATE AT INITIAL STAGE

Where a person charged with an offence triable by a Sessions Court is produced at an initial stage, the magistrate before whom he is so produced, is not barred in law from passing an order granting bail. The question of there being a committing magistrate does not arise at the stage when no challan in respect of offence triable by the Sessions Court is submitted and the case is not-committed for trial to the Sessions Court.

The

bar of jurisdiction

contemplated

by Section

497

Cr.P.C.

(of 1898)

[equivalent to S. 437 of Cr.P.C. of 1973] is not, therefore attracted at the initial stage of production of persons before a magistrate.

Section 437 Cr.P.C. deals, inter alia, with two stages during the initial period of

the investigation of a non-bailable offence. Even the officer in charge of the police Station may, by recording his reasons in writing, release a person accused of or suspected of the commission of any non-bailable offence provided there are no NS

74. Prahlad Singh Bhati v. NCT, Dethi, AIR 2001 SC 1444 at p. 1446 : 2001 Cri LJ 1730 : (2001) 4 » SCC 280 : 2001 SCC (Cri) 674.

75.

Rajendra Nath Srivastava v. State of U.P., 1998 Cri LJ 639 at pp. 641-42 It was held that the contrary view of the Allahabad High Court in Babooram Gupta v. State of (All). U.P., 1995 All Cr C 496, is Noi a good law in view of the Supreme Court decision in Gurcharan Singh v. State (Delhi Admn.), AIR 1978 SC 179 : (1978) | SCC 118 : 1978 Cri LJ 129 : 1978 SCC (Cri) 41. Also see, Vijay

76.

Ramdoss v. State of T.N., 1993 Cri LJ 2147 at p. 2155 (Mad).

77.

Kumar y. State of U.P., 1989 All WC 569.

Khalig War v. State, 1974 Cri LJ 526 at p. 528 (J&K).

—

Syn. 45]

General Policy is to Grant Bail rather than to Refuse

107

reasonable grounds for believing that the accused has committ ed a non-bailable offence. Quick arrests by the police may be necessary when there are sufficient materials for the accusation or even for suspicion. When such an accus ed is produced

before the court, the court has a discretion to grant bail in all nom-bailable cases excep

t those punishable with death or imprisonment for life if there appear to be

reasons to believe that he has been guilty of such offences. The Courts oversee the

action of the police and exercise judicial discretion in granting bail always beari ng in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the cause of justice does not suffer. After the court releases a person on bail under sub-section (1) or sub-section (2) of S. 437 Cr.P.C. it may direct him to be arrested again when it considers necessary so to do. This will be also in exercise

of its judicial discretion on valid grounds.

45. GENERAL POLICY IS TO GRANT BAIL RATHER THAN TO REFUSE In State of Rajasthan y. Balchand,” which related to a case of an appeal filed in the Supreme Court against an acquittal order passed by the High Court, the Supreme Court, speaking through KRISHNA IYER, V.R., J., laid down the principle for bail by holding that the basic rule could perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the accused who seeks enlargement on bail

from the Court. The Supreme Court clarified that this list was not exhaustive but only illustrative. It was further held that the gravity of the offence involved, which is likely to induce the accused to avoid the course of justice, must also weigh with the Court when considering the question of jail, and likewise the heinousness of the crime should also be taken into account. While granting bail to the accused in the instant case, it was further observed that any possibility of the absconsion or evasion or other abuse could be taken care of by a direction that the accused would report to the police station once every fortnight.

The provision under sub-section (6) of S. 437, Cr.P.C. is intended to speed up trial without unnecessarily detaining a person as an under-trial prisoner, unless for reasons to be recorded in writing, the Magistrate otherwise directs. One may also notice in this connection sub-section (7) of S. 437 Cr.P.C. which provides that if at any time after the conclusion of a trial of any person accused of non-bailable offence and before the judgment is delivered the court is of opinion that there are reasonable grounds for believing that the accused is not guilty of such an offence, itshall release the accused, if he is in custody, on the execution of him of a bond without sureties for his appearance to hear the judgment. The principle underlying S. 437 is, therefore, towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail.

78. Gurcharan Singh v. State (Dethi Admn.), AIR 1978 SC 179 at p. 184 : (1978) | SCC | 18 : 1978 Cri LJ 129 : 1978 SCC (Cri) 41.

1978 Cri LJ 195 ; 1977 SCC (Cri) 594. See | p . 308-9 : AIR 1977 SC 2447 : 19 79. (1977) 4 SCC 308 at LJ 559 at p. 560 (Mad) : 1984 Cri 1982 , Tuticorin Customs, also, E. Joseph v. nek pos Collector of (15) ELT 84. ; ; ' 184-85 : (1978) | SCC 118 : 80. Gurcharan Singh v. State (Delhi Admn.), AIR 1978 SC 179 at pp. 1978 Cri LJ 129 : 1978 SCC (Cri) 41.

ble offence When Bail may be taken in Case of Non-Baila

108

[Chap. 4

a lt is proved an sienell ; be innocent till his gui , end itled to eve‘ry freedom and facility to def pe rt mo e on ant pa ha e | hemes of our Code of Criminal he is entit innocent person, presumably ; Le One of the main salutary himself effectively.

an accused seep 2° ee Procedure is saiehtiieg sufficient opportunity to better posit in a much ot be gainsaid that an accused person will be

and it cann

ng the trial against him. The general captain his case if he is allowed freedom duri to refuse. policy of the law is to allow bail rather than

S. 437 46. PRINCIPLES FOR GRANT OF BAIL UNDER basic In State of Rajasthan v. Balchand,” the Supreme Court laid down that the

g from rule is bail, not jail, except where there are circumstances suggestive of fleein justice or thwarting the course of justice or creating other troubles in the shape of seeks repeating offences or intimidating witnesses and the like, by the accused who enlargement on bail from the Court. The Supreme Court clarified that this list was

not exhaustive but only illustrative. It was further held that the gravity of the offence

involved, which is likely to induce the accusedto avoid the course of justice, must also weigh with the Court when considering the question of jail, and likewise the heinousness of the crime should also be taken into account. While granting bail to the accused in the instant case, it was further observed that any possibility of the absconsion or evasion or other abuse could be taken care of by a direction that the accused would report to the police station once every fortnight. The following principles emerge for grant or refusal of bail under Section 437, Cresta: (i) Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it assigned by law is of extreme severity; (ii) Bail should be refused when the Court may reasonably presume,

some

evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment; (111) Bail should be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being; (iv) Bail should be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and (v) Bail should be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. The principles in granting bail to persons accused of offences are quite well settled. In connection with non-bailable offences (not punishable with death or imprisonment for life) one of the considerations is the danger of the accused absconding. In considering this danger, the Court has to consider the weight of the evidence against the accused, the nature and gravity of the charge and severity of the degree of

punishment that might follow. Another consideration is the danger of witnesses being

Se

be! K. Naravanaswamy v. State of A.P., 1980 Cri LJ 588 at p. 591 (AP). Z (1977) 4 SCC 308 at pp. 308-9 : AIR 1977 SC 2447 : 1978 Cri LJ 195 : 1977 SCC (Cri) 594. See i fetl v. Assistant Collector of Customs, Tuticorin, 1982 Cri LJ 559 at p. 560 (Mad) : 1984 83. Sidharth Vashisth alias Manu Sharma y. State of Delhi, 2004 Cri LJ 684 at p. 688 (Del). See also,

Birajit Sinha v. State of Tripura, 2004 Cri LJ 4485 at p. 4487 (Gau).

Syn. 47]

Matters to be considered for Grant of Bail

109

tampered with or of evidence being suborned. In considering these matters, the character, means and standing of accused persons have to be taken into consideration At the Same time, the Court has to see that there is no punit ive detention and that Opportunity is given as far as possible to the accused persons to prepa re their defence."

47. MATTERS TO BE CONSIDERED FOR GRANT OF BAIL 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; (i/) 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 of the witnesses being tampered with; and (viii) danger of course of

justice being thwarted by grant of bail. While a vague allegation that the accused

may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.®

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, circumstances 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 purpose 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 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. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

When bail is granted the court has to ensure that the accused would not abscond and/or that he would not tamper with the evidence or witnesses. In the instant case, the High Court did not apply its mind to this aspect at all; it did advert to these matters and made no provisions in respect thereof. If the Court has no reason to believe that the accused would abscond or that he would tamper with the evidence or try to intimidate or win over witnesses or that his

84. State v. Mahamed Hussain Kakroddin Maniyar, 1968 Cri LJ 1231 at p. 1232 (Bom) : AIR 1968 Bom 344. ; 85. State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 at p. 31 : AIR 2005 SC Seer oaaeae

86.

4149 : 2005 SCC (Cri) 1960 (2). Also see, Anil Kumar Tulstyani v. State of U.P. : “arat, (2008) 3 ) at p. 427 : (2006) 2 SCC (Cri) 565; Gobarbhai Naranbhai Singala y. State of Gwarat, SCC 775 at p. 783 : 2008 Cri LJ 1618. Criprc etl Prahlad Singh Bhati v. NCT, Delhi, AIR 2001 SC 1444 at p. 1446: 2001

SCC 280 : 2001 SCC (Cri) 674. See also, Shibedutta Sharma v. State of Orissa, pp. 4511-12 (Ori).

87. State of T.N. v. R.R. Gopal, (2003) 12 SCC 237 at p. 241.

rl

a

ble offence When Bail may be taken in Case of Non-Baila

110

[Chap. 4

pro ts ee ityY, it is only y proper being at large would be hazardous to the interests of - by ; prohibition that he is granted bail in the absence of any

his enlargement on bail from the rad The basic rule for an applicant who seeks ances amet 6) as bail, not jail, except where there are circumst

may be tersely put

of justice or cating other the applicant fleeing from justice or throttling the course esses and the like. ting witn trouble in the shape of repeating offences or intimida

een the f bail should be considered by making a balance betw

eo of ight

lie liberty Sota personal

of a p erson

and the effecat t of , ing in © the order of bail, keep

and ew tna natute of the offence, the manner in which it was allegedly committed

the conduct and antecedents of the applicant.

. CONSIDERATIONS FOR GRANT OF BAIL IN NON-BAILABLE OFFENCES : The overriding considerations in granting bail which are common both in the case of S. 437(1) and S. 439(1) Cr.P.C. of the new code are the nature and gravity of the

circumstances in which the offence is committed; the position and the status of the

accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice, of repeating the offence, of jeopardising his own life being faced with a grim prospect of possible conviction in the case, of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.

The considerations which normally weigh with the court in granting bail in nonbailable offences, basically, are—the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.””

_ It is trite that among other considerations which the Court has to take into account in deciding whether bail should be granted in a non-bailable offence is the nature and gravity of the offence.”

The question whether to grant bail or not depends for its answer upon a variety of

circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.

88. Saryan v. State, 1981 Cri LJ 1313 at p. 1315 (Ker).

89. Sajjan Kumar v. State, 1991 Cri LJ 645 at p. 653 (Del). 90. Antaryami Das v. State of Orissa, 2003 Cri LJ 2393 at p. 2394 (Ori). 91.

Gurcharan Singh vy. State (Delhi Admn.), AIR 1978 SC 179 at p. 186 : (1978) | SCC 118 : 1978 Cri LJ 129 : 1978 SCC

(Cri) 41. See also, Vimlaben

Ajitbhai Patel v. Vatslaben Ashokbhai

Patel,

(2008) 4 SCC 649 at p. 665; Sangappa vy. State of Karnataka, 1978 Cri LJ 1367 at pp. 1371-72 (Kant); Kamal K. Chadha vy. B. S. Subhedar, 1981 Cri LJ 1799 at p. 1805 (Bom); Uthaman y. State

of Kerala, 1983 Cri LJ 74 at p. 76 (Ker—FB); State of Orissa v. Md. Abdul Karim, 1984 Cri LJ 905

at pp. 907-8 (Ori) : (1984) 57 Cut LT 281, on State ef Gujarat v, Salimbhai Abdulgaffar Shaikh, (2003) 8 SCC 50 at p. 56 : AIR 2003 SC 3224. aa

» State of Maharashtra v. Ramesh Taurani, AIR 1998 SC 586 at p. 587 : 1998 Cri LJ 855 : (1998) | SCC 41 : 1998 SCC (Cri) 257.

; State of Orissa y. Rajendra Prasad Bharadia, (1994) 5 SCC 146 at p. 151 : 1994 SCC (Cri) 1372: relying upon, Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 : 1980 Cri LJ 1125: (1980)

2 SCC 565 : 1980 SCC (Cri) 465.

Syn. 48]

Considerations for Grant of Bail in Non-Bailable offen ces

111

In American Jurisprudence,” it is stated: “Where the granting of bail lies within the discretion

of the court, the granting or denial facts and circumstances of each particular case. imprisonment of the accused is to secure his jurisdiction and the judgment of the court, recognizance or bond would effect that end.”

is regulated, to a large extent, by the Since the object of the detention or appearance and submission to the the primary inquiry is whether a

One of the considerations for granting bail in a non-bailable offence must be the gravity and the nature of the offence. It was held that in the instant case, there were

no mitigating circumstances and that the High Court was not justified in granting

bail. It was also observed that without considering the material facts on record, and

without assigning any reason, the High Court had granied bail to the accused inspite of the fact that there was sufficient material on record against the accused. Moreover, it was a double murder case and there were eye-witnesses to the occurrence. The bail was accordingly cancelled.

The considerations which normally weigh with the court in granting bail in nonbailable offences are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other, similar factors which may be relevant in the facts and circumstances of the case. The Court before granting bail in cases involving non-bailable offences, particularly where the trial has not yet commenced, should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations. Certain relevant considerations for grant of bail, though only illustrative and not exhaustive—neither there can be any, are as under: (i) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(ii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. 95. American Jurisprudence (2nd, Vol. 8, page 806, para 39), as quoted in Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 at p. 1647 : 1980 Cri LJ 1125 : (1980) 2 SCC 565 : 1980 SCC (Cri) 465. See also, A. Prasad v. State of Karnataka, 1982 Cri LJ 542 at p. 545 (Kant). 96. State v. Eslian, (2006) 9 SCC 785 at p. 785 : (2006) 3 SCC (Cri) 399.

97. Chenna Boyanna Krishna Yadav vy. State of Maharashtra, (2007) 1 SCC 242 at p. 247 : (2007) |

SCC (Cri) 329 : 2007 Cri LJ 782 : (2007) 50 AIC 637 (SC). Also see, State v. Capt. Jagjit Singh, (Dethi AIR 1962 SC 253 : (1962) 1 Cri LJ 215 : (1962) 3 SCR 622; Gurcharan Singh v. State rat te

Admn.), AIR 1978 SC 179 : (1978) 1 SCC 118 : 1978 Cri LJ 129 : 1978 SCC (Cri) yi Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13 : AIR 2005 SC 716: eae —_ ~ oat : 20 5 Cri 2005 SCC (Cri) 481; Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, SG 11984) 1057. (Cri) SCC 2005 : at p. 2549 : (2005) 5 SCC 294 : AIR 2005 SC 2277 1984 SC 1503 at p. 1505 : 1984 Cri LFa

2

Pie as mie

98.

State v. Jaspal Singh Gill, AIR

99.

Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. L477 : (2002) 2002 SCC (Cri) 688.

1984 SCC (Cri) 444. See also, Sunita v. State of Punjab, 1996 Cri LJ 1420 at p. ea ‘3 9 a
ate time, the accused is free to move an application for early hearing of the

appeal. In every appeal against conviction whenever an appellant has been in jail for a period of 5 years or more, the appellant cannot be released on bail irrespective of the allegations made against him by the prosecution and the findings of the trial Court, 53. Kamal v. State of Haryana, (2004) 13 SCC 526 at p. 527: 54.

Mansingh v. Union of India, (2004) 13 SCC 42 at p. 43.

55. (2005) 7 SCC 387 at p. 392 : 2005 Cri LJ 4119 : 2005 SCC (Cri) 1674. 56. (2000) 1 Chan LR 74. 57. Santhanapandi v. State, 1999 Cri LJ 861 at p. 866 (Mad) (FB) : (1999) 1 CTC 49

918

Suspension of sentence pending the Appeal, etc.

[Chap. 21

Each case has to be examined on its own merits to find out whether appellant shouk

be released on bail during the pendency of his appeal and in this regard no hard an fast formula can be laid down. In the instant case of an appeal against conviction in ; murder case, the appellant was in jail for 6 years, he was apprehended on spot witl country made pistol after committing murder, the High Court declined to release hin on bail. However, the office was directed to place the record before the Chief Justic for passing necessary orders for early hearing of the appeal.

|

29. SUSPENSION OF SENTENCE CAN BE CONSIDERED LIBERALLY EXCEPT IN EXCEPTIONAL CASES When a convicted person is sentenced to fixed period of sentence and when he file:

appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. Of course i there is any statutory restriction against suspension of sentence it is a differen matter. Similarly, when the sentence is life imprisonment the consideration fo suspension of sentence could be of a different approach. But if for any reason the sentence of limited duration cannot be suspended every endeavour should be made tc dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate Court finds that due t practical reasons such appeals cannot be disposed of expeditiously the appellate Court must bestow special concern in the matters of suspending the sentence so as t make the appeal right meaningful and effective. Of course appellate Courts car impose similar conditions when bail is granted.

30. BAIL WHERE CONVICTION IS WITH SHORT TERM IMPRISONMENT When a person is convicted and sentenced to a short-term imprisonment the normal rule is that when his appeal is pending the sentence should be suspended anc rejection is only by way of exception. In the case of such rejection also, ever endeavour should be made to have the appeal posted for early hearing and disposal If the short-term sentence is allowed to run out during the pendency of the appeal, the

appeal itself will become, for all practical purposes, infructuous so far as the appellant is concerned. It does not mean that the appellate court should suspend the sentence, if,its consequence would be a danger to the society or any other simila:

difficulties.

In the aforesaid case of Kiran Kumar y. State of M.P.,°' the appellant wa: convicted under Sections 460, 376, 325 and 506 of the Indian Penal Code. The maximum sentence imposed on him was imprisonment for a period of seven years of the second count. During the pendency of the appeal, he moved an application f suspension of the sentence which was rejected by the High Court, and moreover, th

High Court had not directed the appeal to be boarded for hearing and dispos Observing that when a person is convicted and sentenced to a short-term imprison

ment the normal rule is that when his appeal is pending the sentence should b

A, CS Sh 1999AmmaCri nLJ 2568 : 2200 1999 SCC (Cri) 553.

un

lage ur

ON i ae a aan ek BP il:15 rely uponBad wan 61 OO TCE ata Ate GoaRRS Ce a eae se Gaps 2568 : 1999 SCC (Cri) 553.

.

:

Syn. 33]

Suspension ofSentence under old Code when Appeal, etc.

919

suspended and rejection is only by way of exception, the Supreme Court held that no

exceptional reason had been shown in the order for not suspending the sentence in the instant case. Accordingly, the Supreme Court suspended the sentence passed on Be Pppetiant during the pendency of the appeal and directed him to be released on bail.

31. SEEKING STAY AGAINST CONVICTION UNDER §. 389 Sub-section (1) of Section 389 of Cr.P.C. says that pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. This sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction. The legal position is clear that an appellate court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may _ arise if the conviction is not stayed. Unless the attention of the court is drawn to the ‘specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case. ~ |

32. S. 389(3) APPLIES ONLY WHERE THERE IS A RIGHT TO APPEAL Unless a person (accused) has a right of appeal in law under the Code of Criminal Procedure or the Constitution of India, he is not entitled for suspension of sentence or bail. The interpretation sought to be given to provisions enshrined in S. 389 (1) and (3), Cr.P.C., is that the Court which convicts an accused person by reversing an order of acquittal has power to suspend the sentence and release the convicted accused on bail provided the convicted person satisfies the Court by which he is convicted that he intends to present an appeal. S. 389(3) applies only to the case where there is a right of appeal and if Art. 134 of Constitution or S. 379 of Cr.P.C. does not confer any right of appeal, the accused cannot invoke S. 389(3) of the Cr.P.C. for suspension of sentence and release on bail.”

33. SUSPENSION OF SENTENCE UNDER OLD CODE WHEN APPEAL FILED BEFORE SUPREME COURT | Relying on a decision of the Privy Council

in Jairam Das v. Emperor,” the

Allahabad High Court observed in Gore Lal v. State,” that the High Court has no

Statutory or inherent power to grant bail to or suspend the execution of the sentence of a person whose conviction and sentence it has maintained, except where that person has been granted special leave to appeal under Article 136 of the Constitution, and in no other case. Indeed, except for the purpose of granting a certificate under Article 132(1) or Article 134(1)(c) of the Constitution, or granting bail or suspending the sentence under Section 426(2-B) of the Code (of 1898) [equivalent to S. 389 of

Cr.P.C. of 1973] the High Court becomes functus officio. Any other view would

62. Navjot Singh Sidhu v. State of Punjab, (2007) 2 SCC 574 at pp. 580-82 : AIR 2007 SC 1003 : 2007 Cri LJ 1427 : (2007) 1 SCC (Cri) 627.

63. Virabasayya Prabhayya Hallur y. State of Karnataka,.2003 Cri LJ 992 at pp. 995-96, 999 (Kant) (FB); relying upon Mammooty v. Food Corporation, 1988 Cri LJ 139-(Ker) (FB) : AIR 1987 Kerala 270; and B. Subbaiah y. State of Karnataka, 1992 Cri LJ 3740 (Kant) ; (1992) | Kant LJ 419. 64. 65.

AIR 1945 PC 94 : 46 Cri LJ 662 : 72 Ind App 120. AIR 1958 All 667 : 1958 Cri LJ 1107.

920

Suspension of sentence pending the Appeal, etc.

[Chap. 20

result in defeating the ends of justice in certain circumstances and in an alteration by the High Court of its judgment contrary to S. 369 of the Code (of 1898).

Similarly, in Kalawati v. State,° it was held that bail can be granted to a convicted person by the High Court under S. 426(2-B), Cr.P.C. (of 1898) [equivalent to S. 389

of Cr.P.C. of 1973] only where the Supreme Court has already granted him special leave to appeal to that court and not before or merely upon the certificate of the High Court under Article 132(1) or Article 134(1)(c) Constitution of India. It was observed

that a reference to the provisions of Articles 132, 134 and 136 of the Constitution would show that special leave is quite different from the certificate of fitness. The former can only be granted by the Supreme Court under Article 136, and all that a High Court can do is to grant a certificate under Article 132(1) or under Article 134(1)(c) of the Constitution.

|

On the other hand, in a Single Bench decision of the Andhra Pradesh High Court in the case of Jn re Madanlal,’’ it was observed that the expression “special leave to appeal” in Section 426(2-B) Cr.P.C. (of 1898) [equivalent to S. 389 of Cr.P.C. of 1973] should be given its ordinary and natural meaning and should not be construed as a term of art. It includes certificate of fitness granted by the High Court under Article 134(1)(c) and should not be confined only to special leave to appeal granted by the Supreme Court under Article 132(2) or Article 136 of the Constitution.

In K. Renganadha Reddiar v. State of Kerala,” the petitioner was convicted by the Kerala High Court under provisions of the Prevention of Food Adulteration Act and a certificate of fitness to appeal to the Supreme Court had been issued to him under Article

134(1)(c) of the Constitution.

He prayed before the High Court that his

sentence be suspended and he be enlarged on bail. The application was preferred under Sections 426(2-B) and 561-A of the Code of Criminal Procedure (of 1898)

[equivalent

to Ss. 389

and 482,

respectively,

of Cr.P.C.

of 1973].

In these

circumstances, it was held by the High Court that neither under Article 134(1)(c) of the Constitution nor under Section 426(2-B) or Section 561-A of the Code of

Criminal Procedure (of 1898), the petitioner was entitled to ask for the suspension of the sentence. It was observed that Section 426 of Cr.P.C. (of 1898) provided for the

suspension of sentence and admission of the accused to bail in cases where “special leave to appeal to the Supreme Court” had been granted by the Supreme Court and does not take in cases in which certificate of fitness to appeal to the Supreme Court had been granted by the High Court under Article 134(1)(c) of the Constitution.

Referring to the contention that the words “special leave to appeal to the Supreme

Court” in S, 426(2-B) of Cr.P.C. (of 1898) signify the same thing as the grant of a

certificate by the High Court to the effect that the case is a fit one for appeal to the Supreme Court, it was held by the High Court that a careful reading of the provisions of Articles 132, 134 and 136 of the Constitution would show that “special leave” was

quite different from “certificate of fitness” - the former to be dealt with by the Supreme Court and the latter by the High Court. So, it is only in cases where “leave

to appeal” had been granted by the Supreme Court, that the High Court would be in order in suspending the sentence and releasing the accused on bail. It was further. held that the inherent power vested in the High Court under S. 561-A ‘of Cr.P.C. (of. 1898) could also not be exercised with justification in such a situation.

Looking to the language of Section 426 of Cr.P.C. (of 1898) [equivalent to S. 389 of Cr.P.C. of 1973] and the context and purpose for which that provision has been 66. AIR 1952 HP 67 : (1952) 53 Cri LJ 1461. 67, AIR 1960 AP 622: 1960 Cri LJ 1546. 68. 1968 Cri LJ 935 at pp. 935-36 (Ker) : AIR 1968 Kerala 192.

Syn. 35]

Requirement of Supreme Court Rules to a.

a etc.

921

made, it is not correct to say that a High Court has the power under sub-section (2A) of the said S. 426 to release a convict after refusing him a certificate under Article 134 of the Constitution to enable him to apply under Article 136 for special leave to appeal to the Supreme Court. The reason is that a liberal interpretation of the words

“appellate court” occurring in the said S. 426 to include “Supreme Court” would

mean that the power to release a convict on bail must spring from Section 426 only, but it is not so in view of the fact that a specific provision has been made with regard to the granting of bail by the Supreme Court under Article 145 read with Rules 6 and 27 of Order 21 of the Supreme Court Rules.”

'34. CAN BAIL BE GRANTED UNDER §S. 389 TO SUPREME COURT?

FOR APPEAL

Section 389(3) of Cr.P.C. has application when there is a right of appeal. Where appeal in the Supreme Court is under Article 136 of the Constitution or under Article 134(A) of the Constitution there is no right of appeal involved. In such cases Section 389(3) has no application. Merely because somebody intends to file application under Article 136 of the Constitution and seek leave to appeal under Article 136 of the Constitution, Section 389(3) of the Code has no application. But the position is different when a case is covered under Article 134(1)(a) or Article 134(1)(b) being

covered under Section 2 of the Supreme Court (Enlargement of Criminal Appeal Jurisdiction) Act, 1970. The appeal in such a case was as a matter of right under the Enlargement Act.

S. 389 of Cr.P.C. is not intended to cover cases of appeal to the Supreme Court, whether it is as of right, by Special Leave or by Certificate granted by the High Court. S. 389 covers only cases of appeal under the Code and not under the Constitution or any other provision. Supreme Court is not a criminal Court as enumerated under S. 6 of the Code though that provision treats the High Court also as a class of criminal Court. Articles 132(1), 132(3), 134 [read with the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970], 134A, and 136 of the Constitution as well as Ss. 374 and 379 of the Code are the only provisions enabling an accused convicted and sentenced for an offence to approach the Supreme Court. Under Ss. 374(1) and 379 of the Code and under Article 134 read with the provisions. of the Supreme Court (Enlargement faleour, Appellate Jurisdiction), - Act, 1970, the Supreme Court may be an appel Sourt. Otherwise, the Supreme - Court is not an Appellate court as contemplated under S. 389(1) of the Code and the provisions of S. 389 are not applicable in the case of appeals to the Supreme Court. This is clear from the provisions of the Code itself. In cases of appeal to the Supreme Court the powers of the High Court are specifically enumerated in S. 415 of the Code. These powers do not cover suspension of sentence or release on bail covered by S. 389(3). If S. 389(3) covered cases of appeal to the Supreme Court also there would not have been any necessity for a separate provision as contained in S.415 GnP.c.

35. REQUIREMENT OF SUPREME COURT RULES TO SURRENDER WHILE FILING CRIMINAL APPEAL

Order XXI, Rule 13A of the Supreme Court Rules, 1966, is relevant in the context of the question whether or not the accused who prefers a criminal appeal, though as a — 69. Amratlal Gurdial Jain v. State of Gujarat, 1973 Cri LJ 1278 at pp. 1280-81 (Guj).

;

70. Mayuram Subramanian Srinivasan vy. CBI, 2006 Cri LJ 3285 at p. 3288 : AIR 2006 SC 2449 ; (2006) 5 SCC 752 : (2006) 3 SCC (Cri) 83.

71.

Bhaskaran v. State of Kerala, 1987 Cri LJ 1588 at p. 1591 (Ker).

922

Suspension of sentence pending the Appeal, etc.

[Chap. 20

matter of right, has to first surrender or seek exemption from surrendering. Order

XXI relates to special leave petitions in criminal proceedings and criminal appeals.

So far as special leave petitions are concerned, Rule 6 application thereto is in almost identical language as that of Rule 13A. In both cases it is stipulated that unless the

petitioner or the appellant, as the case may be, has surrendered to the sentence, the

petition/appeal shall not be registered and cannot be posted for hearing unless the Court on written application for the purpose, orders to the contrary. In both cases it is stated that where the petition/appeal is accompanied by such an application that application alone shall be posted for hearing before the Court for orders. Therefore,

the position is crystal clear that the criminal appeal cannot be posted unless proof of surrender has been furnished by the appellant who has been convicted. The requirements of Order XXI Rule 13A are mandatory in character and have to be complied with except when an order is passed for exemption from surrendering.

In Mayuram Subramanian Srinivasan v. CBI,” the question was whether or not the accused who prefers a criminal appeal, though as a matter of right, to the Supreme Court has to first surrender or seek exemption from surrendering, as required under Order XXI, Rule 13A of the Supreme Court Rules, 1966. The plea on behalf of the appellant was that the Rule cannot be at variance with the provisions of the Special Court (Trial of Offences Relating to Transactions

in Securities) Act, 1992, more

particularly in view of S. 9(4) of the said Act authorizing the concerned Court to regulate its procedure and adopt such procedure as it may deem fit consistent with the principles of natural justice; in exercise of that power the operation of the sentence had been suspended in the instant case. The Supreme Court however held that such a plea would not be tenable. Under S. 9(4) of the said Act, the special Court was authorized to formulate its own procedure to be adopted, but that could not do away with the requirement stipulated under O. XXI R. 13A. The Rules had been framed in exercise of the powers conferred by Article 145 of the Constitution and all other powers in this behalf, by the Supreme Court and the Rules had been made with the approval of the President. Accordingly, the Supreme Court directed that the appeals shall be posted only after the appellants had surrendered and proof of surrender was filed.

In Mayuram Subramanian Srinivasan v. CBI,’* held that the Special Court established under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, might have granted protection to the accused for some period

by suspending the sentence; it was the discretion of that Court whether to extend that

protection, but that would be subject to the provisions of Order XXI, Rule 13A of the

Supreme Court Rules, 1966, requiring an accused who prefers a criminal appeal to the Supreme Court to first surrender or seek exemption from surrendering. The Supreme Court held that Section 9(4) of the said Act only permits the Special Court to regulate the procedure before it, and that it in no way authorizes the Special Court to regulate the proceedings before the Supreme Court. The Supreme Court directed

that, in the instant case, the appeals shall be posted only after the appellants had surrendered and proof of surrender was filed.

The plea, that once bail has been granted to a convicted person by the trial Court, the Supreme Court cannot insist that he should surrender to the sentence in terms of Order XXI, Rule 13A of the Supreme Court Rules, 1966, before his appeal can be registered, would not be tenable. Sub-section (3) of S. 389, Cr.P.C. empowers the 72. Mayuram Subramanian Srinivasan v. CBI, 2006 Cri LJ 3285 at pp. 3288-89 : AIR 2006 SC 2449 73. 74.

(2006) 5 SCC 752 : (2006) 3 SCC (Cri) 83. 2006 Cri LJ 3285 at pp. 3288-90 : AIR 2006 SC 2449 : (2006) 5 SCC 752: (2006) 3 SCC (Cri) 83. 2006 Cri LJ 3285 at p. 3290 : AIR 2006 SC 2449 : (2006) 5 SCC 752 : (2006) 3 SCC (Cri) 83.

Syn. 36]

Suspension ofsentence by Governor gives no Exemption, etc.

923

trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section

(1), namely,

release on bail, and it is only for such period that the

sentence of imprisonment shall be deemed to be suspended. The provisions of S. 389 Cr.P.C. and that of the Supreme Court Rules, 1966, are independent provisions and will have to be considered on their own standing.”

36. SUSPENSION OF SENTENCE BY GOVERNOR GIVES NO EXEMPTION FROM SUPREME COURT RULES IN SLP Where the Governor in exercise of his powers under Article 161 of the Constitution had passed an order granting suspension of the sentence on a convict on the ground that he intended to file an appeal before the Supreme Court, the order could

only operate until the matter became sub-judice in the Supreme Court on the filing of the petition for special leave to appeal. After the filing of such a petition, it would be for the Supreme Court, when moved in that behalf, either to apply Rule 5 of Order XXI of the Supreme Court Rules, 1950, or to exempt the petitioner from the operation of that rule. It would be for the Supreme Court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such other or further orders as it might deem fit in all the circumstances of the case. It follows that the petitioner for special leave cannot be exempted from the operation of Order XXI, Rule 5 of the said Supreme Court Rules by reason of the order of suspension of sentence passed by the Governor under Article 161 of the Constitution.”° The ambit of Article 161 of the Constitution relating to the powers of the Governor of a State is much wider than Article 142 and it is only in a very narrow field that the power contained in Article 161 is also contained in Article 142, namely, the power of suspension of sentence during the period when the matter is sub-judice in the

Supreme Court. Therefore, on the principle of harmonious construction and to avoid a conflict between the two powers it must be held that Article 161 does not deal with the suspension of sentence during the time that Article 142 is in operation and the matter is sub-judice in the Supreme Court.

It is open to the Governor of a State to grant a full pardon at any time even during the pendency of the case in the Supreme Court in exercise of what is ordinarily called “mercy jurisdiction”. Such a pardon after the accused person has been convicted by the Court has the effect of completely absolving him from all punishment or disqualification attaching to a conviction for a criminal offence. That power is essentially vested in the head of the Executive, because the judiciary has no such “mercy jurisdiction”. But the suspension of the sentence for the period when the Supreme Court is in seizin of the case could have been granted only by the Supreme Court itself. If in respect of the same period the Governor also has power to suspend the sentence,

it would

mean

that both the judiciary and the executive

would

be

functioning in the same field at the same time leading to the possibility of conflict of

75.

Per ALTAMAS

KABIR, J., in Mayuram Subramanian Srinivasan vy. CBI, 2006 Cri LJ 3285 at p.

3290 : AIR 2006 SC 2449 : (2006) 5 SCC 752 : (2006) 3 SCC (Cri) 83.

16. K.M. Nanavati v. State of Bombay, AIR 1961 SC 112 at p. 125; (1961) 1 SCR 497 : (1961) | Cri LJ 77.

173 : 63 Bom LR 221. | K.M. Nanavati v. State of Bombay, AIR 1961 SC 112 at pp. 121-23 ; (1961) | SCR 497 . (1961) Cri LJ 173 : 63 Bom LR 221.

924

Suspension of sentence pending the Appeal, etc.

[Chap. 20

jurisdiction. Such a conflict was not and could not have been intended by the makers of the Constitution.’

So long as the Judiciary has the power to pass a particular order in a pending case, to that extent the power of the Executive is limited in view of the words either of Ss. 401 and 426 of the Code of Criminal Procedure (of 1898) [equivalent to Ss. 432 and 389, respectively, of Cr.P.C. of 1973] and Articles 142 and 161 of the Constitution. If that is the correct interpretation to be put on these provisions in order to harmonise

them it would follow that what is covered in Article 142 is not covered by Article

161 and similarly what is covered by S. 426 of Cr.P.C. (of 1898) is not covered by S.

401 of Cr.P.C. (of 1898). On that interpretation there is no conflict between

the

prerogative power of the sovereign state to grant pardon and the power of the courts to deal with a pending case judicially.

The power of the Supreme Court to pass an order of suspension of sentence or to

grant bail pending the disposal of the application for special leave to appeal has not been disputed and could not have been disputed keeping in view the very wide terms in which Article 142 of the Constitution is worded. When an application for special leave to appeal from a judgment and order of conviction and sentence passed by a High Court is made, the Supreme Court has been issuing orders of interim bail pending the hearing and disposal of the application, for special leave as also during the pendency of the appeal to the Supreme Court after special leave has been granted.

37. QUESTION OF BAIL TO ACCUSED ACQUITTED OF CAPITAL CHARGE WHILE PENDING APPEAL How should the grant of bail be governed to accused persons who stand acquitted after trial upon a capital charge but whose acquittal has been challenged by way of appeal by the State?

In State v. Badapali Adi,*' a specific contention was raised before the Division Bench of Orissa High Court that the presumption of innocence of the petitioner had been fortified by the order of his acquittal and therefore there was no further justification for his retention in custody and that he was entitled to his liberty during the pendency of the appeal against his acquittal. However, rejecting the said contention, the High Court held that the order of acquittal passed in favour of the petitioner did not alter his status as an accused against whom a capital charge was

made. It was further held that it was neither the practice nor was it desirable that in such cases the accused should be at large whilst his fate was being discussed in the Court. Accordingly, the High Court reaffirmed its order directing the accused to be remanded to custody. The view expressed in the aforesaid Badapali Adi case was followed by a Division Bench of the Punjab and Haryana High Court in Zora Singh v. State, and then again

78. K.M. Nanavati v. State of Bombay, AIR 1961 SC 112 at p. 123 : (1961) 1 SCR 497 : (1961) 173 :63 Bom LR 221. Nanavati v. State of Bombay, AIR 1961 SC 112 at p. 123 : (1961) 1 SCR 497 - (1961) K.M. 79, 173 : 63 Bom LR 221. 80. K.M. Nanavati v. State of Bombay, AIR 1961 SC 112 at p. 122 : (1961) 1 SCR 497 : (1961) | LR 221. :63 Bom 173 81. ILR (1955) Cut 589. and 82. Cri. Misc. No. 222 of 1967 in Cri. A. No. 1101 of 1966 (Punj.) decided by Punjab High Court on March 23, 1967, as quoted in State of Punjab v. Bachittar Singh Lal Singh, LJ 341 at p. 342 (P&H)(FB).

1 Cri LJ 1 CriLJ 1 Cri LJ

Haryana 1972 Cri

Syn. 37]

=Question of Bail to accused acquitted of Capital Charge, etc.

925

by another Division Bench of the same High Court in Punjab State v. Nand Singh,” and in both these cases, this issue was hardly agitated and the said view was followed without much discussion.

This question again arose before a Full Bench of the Punjab and Haryana High

Court in State of Punjab v. Bachittar Singh Lal Singh. In this case, the six petitioners were acquitted of the charges of murder during the trial before the Additional Sessions Judge; however, when the State preferred an appeal in the High Court against the said acquittal, the same was admitted and non-bailable warrants were issued against them in pursuance of which the petitioners surrendered to custody and thereafter they approached the High Court for the grant of bail during the pendency of the abovesaid State appeal. It was held by a majority decision of the Full Bench of the High Court that the presumption as to innocence of an accused stands fortified on his acquittal by the trial Court. The judgement under appeal acquitting an accused stands till it is reversed (if so at all) by a superior Court. The existence and the operation of such a judgement cannot be lost sight of while granting bail. The provisions of Section 427 of Cr.P.C. (of 1898) also exhibit an intention of the legislature that the grant of bail is the rule and its refusal is an exception in such cases. The section does not operate as a statutory bar against release of the accused on bail in such cases. Accordingly, all the six petitioners were released on bail during the pendency of the said appeal. The law is jealous of the right of personal liberty of the citizen. This is not to be curtailed except according to the procedure established by law and judicial detention must subserve to some purpose. The refusal of bail is never for the purpose of punishment. It is so done only to ensure a fair trial - fair both to the accused person and to the prosecution. In view of the long period usually taken for disposal of appeals it would cause hardships if the accused who are acquitted in trial are refused bail. Moreover, the High Court has always the discretion to compel the accused to surrender to custody if it feels it undesirable that the accused should remain at large.

It is apparent even on a cursory perusal of the language used in S. 427 of Cr.P.C. (of 1898) [equivalent to S. 390 of Cr.P.C. of 1973] that there exists no statutory bar

whatsoever for the release on bail of persons against whose acquittal appeals have been preferred. The statute draws no distinction whatsoever between appeals on capital charges and the others. In fact the section makes express provision for and obviously envisages the grant of bail pending the disposal of such appeal. Even the issuance of a warrant in the beginning is entirely discretionary and the appellate Court even at the initial stage of the admission of the appeal may well stay its hand and remain content with directing a notice, summons or bailable warrant without requiring the arrest or apprehension of the respondent accused-person. Far from suggesting any statutory bar, the relevant provisions of Section 427, Cr.P.C. (of 1898), exhibit an intention of the legislature, conforming with the judicial dictum that the grant of bail is the rule and its refusal is an exception. Comparing the provisions of S. 426 and S. 427 of Cr.P.C. (of 1898) [equivalent to Ss. 389 and 390, respectively, of Cr.P.C. of 1973], it is obvious that whilst Section 426 envisages the recording of the reasons for the suspension of the sentence and the 83. Cri. Misc. No. 872 of 1971 in Cri. A. No. 315 of 1971 (Punj and Har) decided by Punjab and Haryana High Court on June 8, 1971, as quoted in State of Punjab v. Bachittar Singh Lal Singh,

1972 Cri LJ 341 at pp. 342-43 (P&H)(FB). 84. 1972 Cri LJ 341 at pp. 342-46 (P&H)(FB).

,

85. State of Punjab v. Bachittar Singh Lal Singh, 1972 Cri LJ 341 at pp. 345-46 (P&H)(FB).

86. State of Punjab v. Bachittar Singh Lal Singh, 1972 Cri LJ 341 at pp. 344-45 (P&H)(FB).

926

Suspension of sentence pending the Appeal, etc.

[Chap. 20

grant of bail, no such restriction or qualification has been imposed by law under Section 427. A wholly unfettered power is thus given under Section 427, Cr.P.C. (of 1898), to release the accused-persons on bail if at all their custody has been originally directed. Again, in Section 427 bail may not only be granted by the High Court itself, but it may direct that the accused person may be brought before any subordinate Court and the power to admit such person to bail may be relegated to the subordinate Courts. Hence, far from suggesting any statutory bar, the relevant provisions of Section 427, Cr.P.C. (of 1898), exhibit an intention of the legislature,

conforming with the Judicial dictum that the grant of bail is the rule and its refusal is an exception.

38. ECLIPSING OF PRESUMPTION OF INNOCENCE FOR BAIL PENDING APPEAL

The presumption of innocence of a person comes under cloud as soon as an accusation is made and incriminating material comes before the investigating officer.

It is only because of this cloud that the law permits the arrest and consequential curtailment of personal liberty of the accused even before the guilt is established in a court of law. The cloud deepens and the matter oversteps the zone of presumption and enters the realm of evidence when the case goes to court and evidence starts. It then becomes a matter of evidence and is to be controlled by the rules contained in the Evidence Act. The /is has to be decided on the basis of evidence that might come in the case. The cloud gets removed and dispelled, when the court records a verdict of acquittal. The presumption of innocence, on the other hand, comes under an eclipse when the trial court on the basis of evidence, comes to the conclusion that the accused had committed the offence and convicts him. The strength of the presumption of innocence of an accused goes on decreasing with the development of the case from the stage of accusation to the stage of conviction by the trial court. This variance has a relevance on the exercise of a court’s discretion in granting bail to an accused in appeal.

39. NO PRESUMPTION BECAUSE OF APPEAL AGAINST CONVICTION LEADING TO REFUSAL OF BAIL Merely because the appeal is against a conviction, there should not be a presumption that the accused has committed the offence, as that would be to foreclose on the

plea of the accused that on the materials available, there is no justification to refuse

bail. The statement that a presumption of existence of reasonable grounds for believing that the accused has been guilty of an offence with death or imprisonment would arise by reason of a conviction is not a correct statement of the law.*”

40. EXERCISE OF POWER UNDER S§. 389(2) BY HIGH COURT IN APPEAL TO SUBORDINATE COURT Power is conferred on an appellate Court by S. 389 of Cr.P.C. to order suspension of the execution of the sentence appealed against and if the accused be in confinement to release him on bail or on his own bond. Under sub-section (2) of the section the power conferred on an appellate court may be exercised also by the High Court in the case of an appeal by a convicted person to a court subordinate thereto. Under sub-section (1) the suspension of the execution of sentence and release on bail

87.

State of Punjab v. Bachittar Singh Lal Singh, 1972 Cri LJ 341 at pp. 344-45 (P&H)(FB).

88. Bhola v. State, 1974 Cri LJ 1318 at p. 1319 (All). 89. State v. Mehboob Batcha, 1999 Cri LJ 5040 at p. 5045 (Mad).

Syn, 42]

Cancellation of Bail Granted under §. 389

927

must be ordered for reasons to be recorded by the court in writing. What those reasons could be is not specified in the section.

41. CONVICTING COURT HAS RESTRICTED POWER OF BAIL UNDER §. 389(3) Sub-section (3) of S. 389 Cr.P.C. confers only a restricted power to the convicting Court to suspend sentence and grant bail. That is to afford the convicted person an Opportunity to present an appeal and obtain orders from the appellate Court. For that purpose he will have to satisfy the convicting Court that he intends to present an appeal. So also sub-section (3) could be invoked only in cases where the convicted person is on bail and sentenced to imprisonment for a term not exceeding three years or where the offence for which he has been convicted is bailable and he is on bail. These restrictions are not there on sub-sections (1) and (2). While the appellate Court

including the High Court could exercise the powers under sub-sections (1) and (2) of S. 389 in any case of conviction, the jurisdiction of the convicting Court under S. 389(3) is limited to comparatively short and (ii) of S. 389(3); was for offences not

cover cases coming under Clauses (i) and (ii) alone term sentences. In the instant case, it did not cover the sentence awarded was imprisonment for life and bailable; therefore the prayer under S. 389(3) had to

which are clauses (i) conviction be rejected

outright.

42. CANCELLATION OF BAIL GRANTED UNDER S. 389 It may be pointed out that in S. 389 Cr.P.C., as it originally stood, there was no specific provision for cancellation of the suspension of sentence or bail granted to a convict pending his appeal. However, under the second proviso to S. 389(1) Cr.P.C., inserted by the amending Act of 2005 (w.e.f. 23rd June 2006), it is now specifically provided that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. But, even prior to the aforesaid amendment, it had been held that in an appropriate case, bail granted under S. 389 Cr.P.C. can be cancelled by the High Court by exercising its inherent powers under S. 482 Cr.P.C., as explained below. It is submitted that the cancellation of bail pending appeal should now be possible under S. 389 Cr.P.C. itself in view of the aforesaid amendment, instead of resorting to the inherent powers of the High Court for the said purpose. In Pampapathy v. State of Mysore,” a question of law arose before the Supreme Court as to whether, in the case of a person convicted of a bailable offence where bail had been granted to him under S. 426 of Cr.P.C. (of 1898) [equivalent to S. 389 of Cr.P.C. of 1973] pending appeal against his conviction, the bail can be cancelled in a proper case by the High Court in exercise of its inherent power under S. 561-A of Cr.P.C. (of 1898) [equivalent to S. 482 of Cr.P.C. of 1973]. It was contended on

behalf of the accused that:

e After the High Court had once made an order suspending the sentence and grating bail to the appellants under S. 426 of Cr.P.C. (of 1898), it had no power to cancel that order subsequently and recommit the appellants to jailcustody,

(FB). 90. Uthaman y. State of Kerala, 1983 Cri LJ 74 at p. 75 (Ker) 1589-90 (Ker).

91. Bhaskaran v. State of Kerala, 1987 Cri LJ 1588 at pp.

92. AIR 1967 SC 286 at pp. 287-89 : 1966 Supp SCR 477 : 1967 Cri LJ 287.

928

Suspension of sentence pending the Appeal, etc.

[Chap. 20

There was no express power granted to the appellate court to cancel its order regarding the suspension of sentence pending the appeal and the order of release of the appellants on bail. S. 497(5) of Cr.P.C. (of 1898) [equivalent to S. 437(5) of Cr.P.C. of 1973] specifically conferred power on specified courts to cancel the bail granted to a person accused of a non-bailable offence. Likewise, S. 498(2) of

Cr.P.C. (of 1898) [equivalent to S. 439(2) of Cr.P.C. of 1973] conferred power on the High Court and the Court of Session to cancel the bail granted to an accused person under S. 498(1). Therefore, if the legislature intended to confer a similar power on the appellate court under S. 426 of Cr.P.C. (of

1898) [equivalent to S. 389 of Cr.P.C. of 1973] it would have done so by adding an appropriate sub-section and making an express provision for such a power. The omission to make such an express provision was not a result of inadvertence but it is deliberate, and accordingly, it would not be permissible to take recourse to the inherent powers of the High Court under provisions of S. 561-A of Cr.P.C. (of 1898) [equivalent to S. 482 of Cr.P.C. of 1973] to clothe the appellate court with power to cancel the bail in a case falling under S. 426 of Cr.P.C. (of 1898).

Even if the appellants committed acts of violence during the period they were enlarged on bail and repeated the very offence for which they had been convicted the bail bond could not be cancelled but the further conduct of the accused might justify another prosecution under the IPC and that it would not justify the re-arrest of the appellants. Observing that there was no justification for the aforesaid arguments, the Supreme Court held as under [references to sections are from the old Cr.P.C. of 1898]: “It is true that in S. 496 and S. 497(5) the legislature has made express provision for

the cancellation of a bail bond in the case of accused persons released on bail during the course of the trial but no such express provision has been made by the legislature in the case of a convicted person whose sentence has been suspended under S. 426 and there has been an order of release of the appellant on bail. There is obviously a lacuna but the omission of the legislature to make a specific provision in that behalf is clearly due to oversight or inadvertence and cannot be regarded as deliberate. If the

contention of the appellants is sound, it will lead to fantastic results. The argument is that once an order of suspension of sentence is made under S. 426 by the appellate court and the appellant is ordered to be released on bail, the subsequent conduct of the appellant, howsoever reprehensible it may be, cannot justify the appellate court in revoking the order of bail and ordering the re-arrest of the appellant. The appellant may commit further acts of violence; he may perpetrate once again the very same offences for which he has been convicted; he may even threaten and criminally intimidate the prosecution counsel who may be in-charge of the case in the appellate

court; he may attempt to abscond to a foreign country to escape the trial; or he may commit acts of violence in revenge against the police and prosecution witnesses who have deposed against him in the trial court, but the appellate court will have no power to cancel the suspension of sentence and the order of bail made under S. 426, Criminal Procedure Code. Such a situation could not have been in the contemplation of the legislature and, in our opinion, the omission to make an express provision in that

behalf is manifestly due to oversight or inadvertence. In a situation of this description the High Court is not helpless and in a proper case it may take recourse to the inherent

power conferred upon it under S. 561-A of the Criminal Procedure Code.”? It was accordingly held by the Supreme Court that in a proper case the High Court

has inherent power under S. 561-A, Criminal Procedure Code (of 1898) to cancel the order of suspension of sentence and grant of bail to the appellant made under S. 426, 93. Please note that the sections quoted jn this para are from the o/d Cr.P.C. of 1898.

Syn. 42]

Cancellation of Bail Granted under §. 389

929

Criminal Procedure Code fof 1898) and to order that the appellant be re-arrested and committed to jail-custody. In a case, the accused persons had been granted bail under S. 389(1) Cr.P.C. by the High Court after their conviction. An application under S. 439(2) read with S. 482, Cr.P.C. was filed by the State praying for cancellation of the bail pending appeal on the ground that subsequent to being enlarged on bail they had made an abuse of the privilege by threatening the complainant and indulging in other criminal activities creating a terror in the village. A preliminary objection was raised contending that S. 439(2), Cr.P.C. which makes a provision for cancellation of bail is limited in its application to such persons only who have been released on bail under Chapter XXAXIII of Cr.P.C. and that no provision for cancellation of bail was to be found in S. 389, Cr.P.C. which is a self contained provision and hence a prayer for cancellation of bail of such a person could not be entertained by having resort to the provisions of S. 439(2) Cr.P.C. However, rejecting the said contention, it was held that the High Court is not powerless in cancelling the bail and recalling the order of suspension of sentence passed earlier under S. 389(1). apc”

A prayer for cancelling the bail furnished pursuant to an order for suspension of sentence under S. 389 Cr.P.C. can be entertained and such powers can he exercised by the High Court without having resort to the provisions contained in S. 439(2), Cr.P.C. Once a person has been held guilty of having committed an offence, be cannot claim suspension of sentence pending his appeal and consequent release on bail as a matter of right. The power to enlarge on bail after conviction, though discretionary, is not so wide as is under Chapter XXXIII of Cr.P.C. relating to bail before conviction. By passing an order under S. 389, Cr.P.C. the sentence is not set aside, but is merely suspended i.e. kept in abeyance and the appellant remains a convict for all practical purposes. The indulgence is shown because the appellate court feels that the guilt is required to be prejudged and pending such adjudication if the appellant has served out the sentence or a substantial part of it, in the event of his

ultimate acquittal, the suffering may become irreversible. Such suspension of sentence is intended to last ordinarily until adjudication of appeal on merits. In other words, it is an interim order, temporary in nature as opposed to such orders with which a finality is attached. In the very nature of the jurisdiction conferred by S. 389, Cr.P.C., it is inherent that the order may be recalled at any time provided that there may be reasons for doing so and in a judicial manner. The power to create includes the power to destroy and also the power to alter what is created unless the law vesting the power is accompanied by a limitation to the contrary either express or necessarily to be implied looking to the purpose and scope of the power conferred. Section 439(2) of the Cr.P.C.

cannot be invoked

for cancellation

of bail to a

convicted appellant who has been granted bail in his Criminal Appeal under Section 389(1) of the Cr.P.C. However, Section 482 of the Cr.P.C. recognizes existence of inherent powers of the High Court to be exercised in this regard in order to prevent abuse of the process of the Court or otherwise to secure ends of justice. Hence, application for cancellation of bail even though filed under S. 439(2) of the Cr.P.C.

was held to be maintainable under S. 482 of the Cr.P.C.

94. Pampapathy v. State of Mysore, AIR 1967 SC 286 at p. 289 : 1966 Supp SCR 477 : 1967 Cri LJ

; 287. Prosecutor v. 95. State of M.P. v. Chintaman, 1989 Cri LJ 163 at pp. 164-65 (MP); relying upon Public George Williams, AIR 1951 Mad 1042 ; 1952 Cri LJ 213. 96. State of M.P. v. Chintaman, 1989 Cri LJ 163 at p. 165 (MP). 97. Raj Pal Singh v. State of U.P., 2002 Cri LJ 4267 at pp. 4271-72 (All).

930

Suspension of sentence pending the Appeal, etc.

[Chap. 20

43. CANCELLATION OF ORDER VALID WHEN ACCUSED FOUND MISUSING LIBERTY

In Pampapathy y. State of Mysore,”* it was contended that it was not a proper case

in which the High Court should have cancelled bail in exercise of its inherent powers

under S. 561-A of Cr.P.C. (of 1898) [equivalent to S. 482 of Cr.P.C. of 1973], which

had earlier been granted to the accused by suspending sentence pending their appeal against conviction. Rejecting this contention, the Supreme Court observed that it was on record that the appellants were misusing the liberty granted to them, ever since they had been enlarged on bail, by committing acts of violence, creating trouble by instigating the labour unions of certain Mills with a view to paralyse the smooth working of the Mills; that there were allegations of the appellants taking part in

unlawful assemblies and having committed certain offences. The Supreme Court further observed that the allegations made against the appellants prima facie

indicated abuse of the process of the Court and that the High Court was entitled to cancel the bail under its inherent powers.

44. CANCELLATION OFBAIL IN MATTER RELATING TO REJECTION OF REQUEST FOR PREMATURE RELEASE In a case, the accused was convicted inter alia for the murder case and was sentenced to imprisonment for life and his appeal was dismissed. The accused claimed that he moved an application before the State Government for pre-mature release under U.P. Prisoners Release on Probation Act, 1938, and by that time he had undergone a sentence of five years three months and 19 days inclusive of remission. As the State Government did not pass any order on the application, the accused a writ petition before the Supreme Court which was disposed of with a direction to the State Government to consider and dispose of his application within five months. It was also directed that in case the application was not disposed of within the aforesaid period, the accused shall be released on bail. The order further provided that in the

event of the application being ultimately rejected by the State Government, it will be

open to the State Government to move the Sessions Judge for cancellation of bail granted to the accused. The accused subsequently was granted bail on the ground that his application for pre-mature release had not been disposed of by the State

Government. After almost seven years the State moved an application before the Sessions Judge for cancellation of bail granted to the accused on the ground that his application for premature release had been considered

and rejected by the State

held that the order passed

did not amount

Government. It was contended by the accused before the Allahabad High Court that his application for premature release had not been finally disposed of by the State Government and therefore the bail granted to him could not be cancelled. It was contended that the State Government had only passed an order postponing consideration of the application for premature release for a period of four years and had further directed that in case the conduct of the accused was Satisfactory, the matter shall be considered again. However, rejecting this contention, the High Court by ‘the State Government

to mere

postponement of the consideration of the application but was a final consideration of the application for pre-mature release and therefore the State was fully entitled to move an application for cancellation of bail.

98. AIR 1967 SC 286 at p. 290 : 1966 Supp SCR 477 : 1967 Cri LJ 287. 99. Ram Raksh Pal Singh v. State of U.P., 1998 Cri LJ 1587 at p. 1588 (All).

Syn. 45]

%

Successive Application for suspension of sentence, etc.

931

45. SUCCESSIVE APPLICATION FOR SUSPENSION OF SENTENCE PENDING APPEAL

Once bail application is rejected in pending appeal matter, without subsequent material change and in the fact situation, generally, second bail application cannot be entertained. Even if the accused remains in jail for sufficient time and for substantial period and the appeal could not be decided in a reasonable time, it can be one of the grounds for making fresh application for bail and the Judge can consider the same . and can exercise the discretion accordingly. It is manifest that successive applications can be filed, of course, on recurring cause of action or changed circumstances seeking bail. Merely, because a bail application filed by the accused is dismissed, it cannot be said that no second application can be maintained. That being the position, there is no reason as to why the appellate Court cannot exercise such a power of granting bail when once the request of the appellant has not been considered for enlarging him on bail after suspending the execution of sentence. There is no reason as to why the Court cannot consider a second application when once the first application having been dismissed. In fact, Section 390 of the Code envisages a situation subsequent to a situation obtained under Section 389 of the Code. Even while hearing the appeal, for any reasons, if the appellate Court feels that the accused is to be committed to the prison, pending final disposal of the appeal, who has already been enlarged on bail, or if it feels that the appellant may be released if he is already in confinement, either course is open to it. Therefore, it is manifest that the appellate Court can exercise the power for the second time at a later stage. One should not be oblivious of the fact that the Court is granting bail ultimately to the appellant who has been convicted by the trial Court and suspension of execution of sentence should precede the order granting bail. There is no legal bar to entertain the second application for grant of bail under Section 389(1) of the Code while suspending the execution of the sentence. Section 389 of the Code is meant to enable the convict-appellant to seek bail by suspending the order of execution of sentence so as to make the necessary arrangements for defending himself effectively in the appeal as the liberty of an individual is at stake. Therefore, the liberty of an individual cannot be ignored nor the object behind the incorporation of provisions under Section 389 of the Code be diluted with hypertechnical approach to the problem. The Courts are expected to render justice. If for any reason, the appellate Court is of the view that the convict appellant shall not be allowed to be enlarged on bail by suspending the execution of the sentence, it is at liberty to refuse to exercise jurisdiction vested in it. So long as that conclusion is not reached, the discretion vested in the Court is to be exercised ultimately to subserve the interests of justice. The Code of Criminal Procedure contains some provisions which create a bar

against rehearing the matter. Section 362, Cr.P.C., lays down that save as otherwise

provided by the Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. The bar created here is against altering or reviewing a judgment or final order disposing of a case. An interlocutory order or judgment is one made or given during the progress of an action, but which

does not finally dispose of the rights of the parties. There can be no dispute that the a

1. Santhanapandi v. State, 1999 Cri LJ 861 at p. 866 (Mad) (FB) : (1999) 1 CTC 49.

2. Duvvu Umapathi Reddy y. State of A.P., 2000 Cri LJ 4183 at p. 4184 (AP).

3. Duvvu Umapathi Reddy y, State of A.P., 2000 Cri LJ 4183 at p. 4185 (AP).

932

Suspension of sentence pending the Appeal, etc.

[Chap. 20

order passed on a bail application is an interlocutory order and cannot be said to be

“judgment or final order disposing of a case”. Therefore, S. 362, Cr.P.C., can have no application to rejection of a bail application. Section 300, Cr.P.C., lays down that a

person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not liable to be tried again for the same offence. This provision creates a bar against a second trial of a person who has once been tried by a Court of competent jurisdiction for an offence and has either been convicted or acquitted for such an offence. S. 300, Cr.P.C. will also not apply to a bail application as a decision

on the said application neither convicts nor acquits the accused. There is no other provision in the Code which may create a bar against maintainability of second bail application and consequently the statutory provisions of the Code of Criminal Procedure do not at all create a bar in entertaining a second bail application at the instance of a convicted accused in an appeal. The principle of “issue estoppel” can have no application to a hearing of a second bail application as no finding of fact touching any of the issues involved in the appeal is recorded while hearing first bail application (pending appeal) nor in the second bail application any evidence is sought to be adduced to disturb any such finding. Therefore, there is no such principle of criminal jurisprudence which may create a bar against the maintainability of a second bail application. A second bail application (pending appeal) would be maintainable only on some substantial ground where some point which has a strong bearing on the fate of the appeal and which may have the effect of reversing the order of conviction of the accused is made out. Apart from the ground on the merits of the case, a second application for bail would also be maintainable on the ground of unusual long delay in hearing of the appeal as in the event the appeal is not heard within a reasonable time and the convicted accused undergoes a major part of the sentence imposed upon him, the purpose of filing of the appeal itself may be frustrated. A second application for bail at the instance of a convicted accused is maintainable in a-criminal appeal.

46. SUSPENSION OF SENTENCE - ILLUSTRATIVE CASES Where the post-mortem report did not indicate any external injuries, the lungs, lever and spleen were found in diseased condition and the cause of death was mentioned as shock followed by chronic illness, the Supreme Court found that it was

a fit case for suspension of sentence pending hearing of criminal appeal by the High

Court and grant of bail to the accused.

Where the accused had been convicted under Sections 304-B and 498-A of I.P.C.

and had been sentenced to 7 years’ rigorous imprisonment under Section 304-B and

two years’ rigorous imprisonment under Section 498-A of I.P.C., his appeal against

conviction was pending in the High Court, the accused was in custody for more than three years and there was no likelihood of appeal being heard early, in these circumstances the Supreme Court directed release of the accused on bail. Dal Chand vy. State of U.P., 2000 Cri LJ 4579 at p. 4581 (All). Dal Chand y. State of U.P., 2000 Cri LJ 4579 at p. 4582 (All). Dal Chand y. State of U.P., 2000 Cri LJ 4579 at p. 4583 (All).

Dal Chand vy. State of U.P., 2000 Cri LJ 4579 at p. 4584 (All). Ballay Narain v. gl Bihar, (2004) 13 od ieBt88. LJ 2452 2452 :: (2000) 4 ORIN ANSShailendra Kumar v. State of Delhi, ATR 2000 SC 3404 (2) at p. 3404 : 2000 Cri LJ SCC 178 : 2000 SCC (Cri) 795.

Syn. 46]

Suspension of sentence—Illustrative Cases

933

Where pending appeal against conviction under S. 326 IPC against appellants wherein they had been sentenced to 3 years’ imprisonment, the bail application filed by them had been rejected by High Court, the appellants had been in jail for about one year and there was no likelihood of the appeal being heard in the near future, in these circumstances, the Supreme Court released the appellants on bail pending the appeal on the condition that each of the appellants shall execute a personal bond for Rs. 10,000 and also furnish a surety bond for the like sum to the satisfaction of the

Additional Sessions Judge.'° In a case, the appellants had been convicted under Sections 302/149 IPC and had been sentenced to imprisonment for life. Against the said conviction and sentence, their appeal to the High Court was pending. Their request for suspension of sentence and bail was rejected twice by the High Court. On appeal, the Supreme Court ordered their release on bail in view of the fact that the appellants were already in jail for over 3 years and 3 months, and there was no possibility of early hearing of the appeal in the High Court." Where the appellants were convicted for rioting and violation of curfew etc., considering facts and circumstances and evidence for the limited purpose, the ‘sentence was suspended and appellants were granted bail pending appeal against conviction. In cases of custodial rape, as in the instant case, the society suffers and the impact on the society will be much more if the bail already granted is not cancelled. The victim is insulted and her status will suffer and even she can be intimidated, if the accused are set free by an order of bail and her position is more secured if the bail already granted is cancelled. Further the offences complained of in the instant case are grave in nature. A person having been convicted with severe punishment will be tempted to jump bail and he may not be available to serve the sentence after the final disposal of the appeal. There may be a tendency to harm the victim by the accused in view of the verdict rendered by the trial Court. Taking into consideration of the above facts and circumstances of the case and further developments and more materials the bail granted to four accused persons was cancelled under S. 439(2) of Cr.P.C. and the other two accused were held not entitled to the relief of suspension of pen passed against them and of the consequent order of bail as prayed for by em. In Raj Pal Singh vy. State of U.P.,'* bail had been granted to the appellants at the time of admission of their criminal appeal. During the pendency of an application filed for expediting the final hearing of the criminal appeal, a prosecution witness was murdered. It was held that these facts and circumstances prima facie proved that the appellants had misused the privilege of bail granted to them. Therefore, in order to prevent abuse of the process of the Court and secure the ends of justice, it was held

that the bail bonds of appellants were liable to be cancelled under the inherent powers of the Court. The bail granted to them was cancelled accordingly. In a case application had been made for suspension of sentence and grant ofbail pending appeal in offences under Ss. 363, 366, 376 of IPC. The accused had given certain food to the victim girl of less than 16 years of age and made her unconscious, 10. Ganpat Shankar Mhatre y., State of Maharashtra, (2005) 12 SCC 279 at p. 279.

11. Takht Singh v. State of M.P., (2001) 10 SCC 463 at pp. 463-64. Also see, Vijay Singh v. State of U.P., 2000 Cri LJ 4494 at p. 4496 (All).

.

12. Ajudhia Prasad v. State, 1997 Cri LJ 693 at p. 696 (Del).

13. State v. Mehboob Batcha, 1999 Cri LJ 5040 at pp. 5050-51 (Mad). 14. 2002 Cri LJ 4267 at p. 4273 (All).

934

Suspension of sentence pending the Appeal, etc.

[Chap. 20

had thereby forcibly kept her for long time with him and had committed rape for considerable time. At time of trial, the victim had pregnancy of 7 weeks. Considering the clear and cogent evidence given by the victim against the accused, the application

filed by the accused for suspension of sentence and release on bail was rejected.

47. SHOULD APPLICATION FOR SUSPENSION OF SENTENCE BE HEARD ONLY BY BENCH HEARING APPEAL? An application for suspension of sentence under Section 389, Cr.P.C., filed in a pending criminal appeal is an integral part of such appeal and would move along with

the appeal and be posted before the Bench holding criminal appeal roaster. It cannot be treated as an ordinary bail application and detached from the appeal for posting before the Bench/Court who had handled a similar or first such application earlier. An

application for suspension of sentence under S. 389 Cr.P.C. is a class by itself

maintainable only in a pending appeal and this forms an integral part of the appeal. If the appeal falls under a different roaster from time to time, so would the application for suspension of sentence. This application cannot be detached or disintegrated from the appeal to be posted before the same Bench/Judge who had dealt with such like application earlier. Such a practise, if adopted, would lead to anomalous situations, besides hampering judicial functioning with appeal being handled by one Bench and the application for suspension of sentence by the other.” However, this decision was overruled by a Full Bench of M.P. High Court in Santosh Bhawani Singh v. State of M.P.,"” relying upon an earlier Full Bench decision of the same High Court in Narayan Prasad yv. State of M.P.,'® wherein it had been held that such application for bail would have to be heard by the same Bench which had heard it earlier.

48. NO HEARING OF APPEAL OUT OF TURN INSTEAD OF HEARING APPLICATION FOR CANCELLATION OF BAIL The plea, that instead of disposing of an application for cancellation of bail filed pending appeal, the Court should take up hearing of appeal out of turn in preference to criminal appeal 10 years older, was held to be not tenable.’”

49. NO INHERENT POWER OF BAIL WHERE COURT HAS NO POWER TO SUSPEND SENTENCE Where the Court has no power to suspend sentence and grant bail under S. 389(3) of the Cr.P.C., it has no inherent power to grant bail in exercise of its power under S. 482 of the Cr.P.C. The High Court has no inherent jurisdiction to grant bail in exercise of its power under S. 482, Cr.P.C. specially where the appellant is not entitled for suspension of sentence and bail under the provisions of S. 389(3), Cr.P.C.7°

50. REFUSAL TO HEAR APPEAL WHERE ACCUSED HAD JUMPED BAIL Section 423(1) of the Criminal Procedure Code (of 1898) deals with the powers of the appellate court to dispose of appeal after it is admitted. It requires the Court to

decide it after perusing the record and hearing the appellant or his pleader if he 15. 16. 17. 18. 19.

20.

Jakir Ishakbhai Nat v. State of Gujarat, 2008 Cri LJ 4172 at p. 4175 (Guj). Gopal v. State of M.P., 1999 Cri LJ 1438 at pp. 1439-40 (MP) : (1999) Vidhi Bhasvar 22. 2000 Cri LJ 1834 at pp. 1837-38 (MP) (FB). 1993 MPLJ | (FB). Raj Pal Singh v. State of U.P., 2002 Cri LJ 4267 at p. 4270 (All).

Virabasayya Prabhayya Hallur v. State of Karnataka, 2003 Cri LJ 992 at p. 999 (Kant) (FB). The contrary view on this point in the decision of the Karnataka High Court in B. Subbaiah v. State of Karnataka, 1992 Cri LJ 3740 (Kant) : (1992) 1 Kant LJ 419, was overruled.

Syn. 53]

No Power with Government to Suspend sentence, etc.

935

appears. This section would suggest, therefore, that even if the appellant does not appearto argue his appeal, the Court ought to hear the appeal on merits. It is because of this wording that it has been held in a large number of cases that merely because the appellant does not appear, his appeal cannot be dismissed for default. Even so, the principle of this section cannot apply to the case of an appellant who has obtained bail and jumped bail. Along with the section must be read Section 561-A of Cr.P.C. (of 1898) which speaks of the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure ends of justice. It is undoubtedly an abuse of.the process of the Court to obtain bail and then to leave its jurisdiction and render it impossible to enforce its orders. Inasmuch as the other provisions of the Code do not limit this power of the High Court to prevent an abuse of the process of the Court, the High Court would be justified in refusing to hear the appeal on merits and dismiss it in limine.

51. PERIOD IN CUSTODY AFTER CONVICTION BEFORE RELEASE ON BAIL CANNOT BE COUNTED AS SET OFF The contention of the accused that he was in jail for a month and six days after conviction before he was released on bail and that the said period should be given a set off is not tenable under Section 428 of Cr.P.C. (of 1898), since that Section applies only to a stage before conviction.

52. NO BAIL BOND CAN BE TAKEN WHERE SUSPENSION OF SENTENCE OF FINE IS SOUGHT Where suspension sought under S. 389 Cr.P.C. is only in respect of a sentence of fine, the court cannot require execution of bail bond. It can only ask for a suitable security bond. There can be no question of forfeiture of bail bond furnished in such circumstances. Where the taking of the bond, the breach whereof is complained of, cannot be supported by any provision of Cr.P.C., no action can be taken in respect of forfeiture of such a bond under S. 446, Cr.P.C.””

53. NO POWER WITH GOVERNMENT TO SUSPEND SENTENCE UNDER S. 432 WHEN APPEAL PENDING IN COURT Where the State Government passed an order suspending the sentence of imprisonment for life imposed on an accused M.L.A., from the date of his release till the end of the Assembly Session, purportedly under S. 432, Cr.P.C., and the said order was obtained by the accused applicant by concealing the facts of pendency of appeal against conviction and the refusal of his application for release on bail, it was held that the said order was illegal. It was held that the power under S. 432, Cr.P.C may not be exercised during the pendency of an appeal and in any case without consulting the appellate Court. It was also held that, apart from that, a convicted legislator has no special right to claim immunity from or a relaxation in serving his sentence for life.

1968 Bom 400; 1584 at p. 1610 (Bom)with: AIR v. State, ER1968669Cri : LJ(1965) Bhatia lal Chagan s Lakshmanda 21. referri to a similar respect 1202, WLR 3 All 3 (1965) ng to R. v. Flower, d, according to which where the appellant practice in the Court of Criminal Appeal in Englan of the appeal, either the appeal is adjourned hearing the at escaped from the prison and is not present or dismissed according to the justice of the case.

22. 23.

Param Dev v. State, 1975 Cri LJ 1346 at p. 1347 (HP). Kamal vy. State of H.P., 1987 Cri LJ 1838 at pp. 1839-41 (HP).

3026-27 (AP). 24. Thirumalareddy Thamasamma y. Govt. of A.P., 1992 Cri LJ 3016 at pp. 3021,

936

Suspension of sentence pending the Appeal, etc.

[Chap. 20

54. HIGH COURT RECOMMENDING SUSPENSION OR REMISSION OF SENTENCE OF ACCUSED TO GOVERNMENT In Suresh Chandra Panda vy. State of Orissa,” the accused persons were sentenced to undergo rigorous imprisonment for seven years in a dacoity case. There was no evidence that petitioners were habitual dacoits. By the date of occurrence all the accused persons were within the age group of 20 to 23 years. Petitioners belonged to

an undeveloped area. They were in jail custody all throughout till grant of bail by the High Court to some of them, After being released on bail accused persons might have led decent life during last 8 to 9 years. In view of these reasons, the High Court recommended to the Government to suspend or remit the sentence of the accused

persons in the event the State found that they had no further complicity in any crime like dacoity or any other heinous crime or offences involving moral turpitude.

55. COPY OF JUDGMENT TO BE GIVEN WITHOUT DELAY TO PROTECT RIGHT TO APPEAL AND RIGHT TO BAIL Section 371(1) of Cr.P.C. (of 1898) [equivalent to S. 363 of Cr.P.C. of 1973]

provides that on the application of the accused a copy of the judgement shall be given to him without delay. The words “without delay” in Section 371(1) emphasise the fact that there should not be much time lag between the pronouncement of the judgement and the supply of its copy to the accused. Where a judgement is merely dictated and not transcribed and as such not signed at the time of its pronouncement, it would not normally be possible to supply its copy without delay after pronouncement. Many an accused on being convicted and sent to jail by the trial court go up in appeal and apply for bail. Section 426(1) of Cr.P.C. (of 1898) [equivalent to S. 389 of Cr.P.C. of 1973] empowers the Appellate Court to suspend the sentence or order appealed against and to release the convicted person on bail during the pendency of the appeal. However, except in cases where the Appellate Court otherwise directs, no convicted person sent to jail can file an appeal and apply for bail unless he obtains a copy of the judgement appealed against. If the supply of the copy of the judgement is inordinately delayed, the consequence would inevitably be that the accused would not be able to file an appeal and obtain an order for his release on bail within a reasonable time even though it be a fit case for his release on bail. The right of appeal for such a convicted person would be thus rendered illusory even though he may have a good arguable case in appeal. As the prompt transcription of the judgement and the supply of its copy to the convicted person affects the liberty of the subject, the plea of paucity of staff can hardly provide a justification for the failure to do the needful in this respect. Notions of petty economy should not be allowed to override the regard that the Court has for the liberty of the subject. In the instant case, it was held that the delay of more than nine months in the supply of the copy of the

judgement was wholly unjustified.

56. RELEASE ON BAIL PENDING REQUEST FOR PREMATURE RELEASE AFTER CONVICTION Where the petitioner had undergone a total imprisonment of 19 years 3 months and 16 days inclusive of remissions and unexpired period of his imprisonment was hardly 8 months and 14 days, the only ground on which his case for premature release had been deferred was that the report of the Probation Officer was awaited, in the

25. 26.

2005 Cri LJ ee, at P.4499 (Ori). 9783 § Iqbal Ismail Sodawala v. State of Maharashtra, CC 140 at p . 144-45 : AIR 1974 SC J a 1880 : (1975) 1 SCR 710: 1974 Cri LJ 1291 : 1974 SCC (Cri) 764.

Syn. 58)

= Compensation for Non-Release on Bail Due to Poverty, etc.

937

circumstances of the case, the Supreme directed that this was a fit case where the

petitioner should be released on bail forthwith.

57, BAIL PENDING APPEAL AGAINST ACQUITTAL In a case of appeal against acquittal, the basic principle is that the accused were already subjected to trial and were found not guilty, and therefore, until the finding is reversed the accused are entitled for their liberty which is a constitutionally guaranteed right under Article 21. But there may be exceptional cases where such constitutionally guaranteed right of liberty is required to be deprived, but only in exceptional cases, where the Court comes to the conclusion that the accused are required to be remanded and not released on bail, only in such cases, order of remand should be passed; and such order of remand should be supported by reasons, clear and cogent. For, such an order takes away the liberty of an accused, who was found by one Court not guilty of the offences alleged against him. The orders of remand should not be made mechanically and as a matter of rule. It is not a correct practice that in some cases where on information of the admission of the appeal against acquittal when the accused appeared voluntarily before the concerned trial Court before whom they are otherwise required to be produced if the warrant under Section 390, Cr.P.C. were to be executed, the trial Courts decline to consider the possibility of enlarging such accused on bail on the ground that the warrant had not yet been executed. The purpose behind issuing warrant as per provisions of Section 390 of Cr.P.C., appears to be that in the event of the High Court reversing the order of the acquittal in appeal, steps are necessarily required to be taken to apprehend the accused for serving the sentence. In order to facilitate the execution of the sentence the procedure under Section 390 of Cr.P.C. is designed, as otherwise, the accused might or might not be available for serving the sentence in view of the fact that the accused is already acquitted and there are no fetters placed on the movement of the accused either within the country or outside. Therefore, in any case where an order under Section 390, Cr.P.C. directing the issuance of warrant is made, there is nothing in law, which prevents the accused to voluntarily appear and surrender before the Court. In the event of such voluntary surrender or appearance before the concerned trial Court, that Court shall consider enlarging such surrendered accused on bail in accordance with law.

58. COMPENSATION FOR NON-RELEASE ON BAIL DUE TO POVERTY IN APPEAL AGAINST ACQUITTAL In a case, after an appeal against the acquittal of the accused was admitted and he was required to give bail for being released, because of his poverty, he could not give any bail. However, subsequently, the appeal against the acquittal was dismissed. The result was that the accused had been incarcerated in the prison for no proven fault on his part for almost a period of 3 years. It was held that even after knowing that the evidence adduced by the prosecution against the accused was patently inadequate and unreliable, incapable of bringing home any conviction against the accused, the Government persisted in filing an appeal against his acquittal making the accused, his wife and possibly also children suffer for three additional years. It was observed

that the accused had the constitutional right of freedom; he had the right to carry on

his avocation peacefully; that was denied to him with a superficial justification which

turned out to be illusory and illegitimate. In these. circumstances, it was held that the

(Cri) 2. 210: AIR 1982 SC 1391 ; 1983 SCC(AP). Admn., (1982) 3 SCC 209 at p. cutor 27. Shri Niwas v. DelhiSham 3597 p. at 3595 , 2004 Cri LJ shad Begum v. Public Prose 28. Shaikh Mullapalli , 2004 Cri LJ 3595 at p. 3597 (AP). cutor Prose c Publi v, m Begu 29. Shaikh Mullapalli Shamshad

938

Suspension of sentence pending the Appeal, etc.

[Chap. 20

ends of justice required that, the Government should recompense him, at least partially, and accordingly, the State Government was directed to pay a sum of Rs. 2,000/- to the accused as compensation and direction was also given that he should

be set at liberty forthwith.”°

59, BAIL IN APPEAL AGAINST ACQUITTAL IN A BRIDE BURNING CASE Where in an appeal against acquittal of the accused of the charges of bride burning, on finding that the reasons given by the trial Court for acquittal were flimsy and not sustainable in view of evidence on record, the High Court had issued non-bailable

warrants against the accused, it was held that the same could not be said to be unwarranted,as in such a case, it could not be said that the accused who were acquitted by the trial Court would have to remain in jail for 5 to 7 years till the matter was finally disposed of, as it would be open for the accused to approach the court for

fixing an early date of final hearing after the paper book was received and appeal became ready for hearing.

60. ACCUSED REMAINING IN CUSTODY FOR SIX MONTHS PENDING APPEAL AGAINST ACQUITTAL In a case relating to theft of electricity, on an appeal filed by the State against acquittal of the accused conditional bail was granted to the accused asking him to appear before the Registry on a particular date. As the accused failed to appear on that date, he was-arrested and his bail was cancelled. His application for condonation for non-appearance on the said date and for grant of bail was also rejected by the High Court. On appeal, the Supreme Court noted that the effect of the impugned order was that the accused continued to be in jail for a period of about six months despite an order of acquittal. The Supreme Court set aside the impugned order and granted bail to the accused directing that he would not be required to appear before the Registry till the pendency of the appeal against acquittal by the High Court.”

30. State of Maharashtra v. Dadaji Kacharu Sonawane, 1984 Cri LJ 1023 at pp. 1027-28 (Bom). 31. Koli Bhima Hari v. State of Gujarat, 1994 Cri LJ 1705 at pp. 1706-7 (Guj). 32.

Sitaram v. State of Chhattisgarh, (2004) 13 SCC 672 at p. 673.

CHAPTER21 PAROLE SYNOPSIS Dien ie OF BRNO... 0555536) heii i SH GIG AO TG: Bi) aT ah cH alpeeed cei tess 2. Bail and parole have different conmotations in 1aW............ccccceeecceeessecsnccesseeeeseeerseeees 3. Difference between bail, furlough and parole ..............:cccscceeeseeereeeseseceseeeesseeeensereeesens 4. No statutory provisions dealing with parole ..............cccccscscsseesseeseceeneesscecatsesseeeeeeenees Be. Coren OF MARNIE 1c On CXECUIIVE MINCHON. ,......snorrsansi> Gaareh> opitebelacansrbanwsncsnerestesendkides se RTO ORS SIE TIO GTR GOT 7 aD a 7. Grant of furlough — illustrative Cases ............cc:cccessecesseeessseeenseeceeaterees Sah t Pea Ren

939 939 940 941 942 942 942

COMMENTS

1.

MEANING OF PAROLE

Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government Orders. “Parole” means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually being in jail serving part of sentence. ‘Parole’ is a form of “temporary release” from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence.

Parole is defined in Black’s Law Dictionary, as “‘a conditional release of a prisoner, generally under supervision of a Parole Officer, who has served part of the term for which he was sentenced to prison’. Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but sentence is actually continuing to run during that period also.

2.

BAIL AND PAROLE HAVE DIFFERENT CONNOTATIONS IN LAW

Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised

1. Dadu v. State of Maharashtra, 2000 Cri LJ 4619 at p. 4622 : (2000) 8 SCC 437 : AIR 2000 SC

3203 : 2000 SCC (Cri) 1528. 2. Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409 at p. 431 : AIR 2000 SC 1023 : 2000 Cri

LJ 1444 : 2000 SCC (Cri) 659 (per majority). : LJ Cri 2000 : 1179 SC 2000 AIR : 520 p. at 514 SCC 3 (2000) Singh, Nauratta v. Haryana of State 3. 1710 : 2000 SCC (Cri) 711.

939

[Chap. 21

Parole

940

through the conditions of the bond secured from him. The literal meaning of the word ‘Bail’ is surety. ‘Parole’, has a different connotation than bail even though the substantial legal

effect of both bail and parole may be the release of a person from detention or custody.

3.

DIFFERENCE BETWEEN BAIL,

FURLOUGH AND PAROLE

Terms bail, furlough and parole have different connotations. Bail is well understood in criminal jurisprudence. Provisions of bail are contained in Chapter

XXXIII of the Code. It is granted by the officer-in-charge of a police station or by the Court when a person is arrested and is accused of an offence other than nonbailable offence. Court grants bail when a person apprehends arrest in case of nonbailable offence or is arrested of a non-bailable offence. When a person is convicted of an offence he can be released on bail by the appellate Court till his appeal is decided. If he is acquitted his bail bonds are discharged and if appeal dismissed he is taken into custody. Bail can be granted subject to conditions. It does not appear to be quite material that during the pendency of appeal though his sentence is suspended he nevertheless remains a convict. In connection with the observations made by the Supreme Court as aforesaid, it is submitted that even in case of a non-bailable offence, under S. 437 of Cr.P.C., the officer-in-charge of a police station also has the power to grant bail in certain situations to an accused who has been arrested in a non-bailable

offence, as is clear from the language of sub-sections

(2) and (4)

thereof. ‘Furlough’ and ‘parole’ are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. These two terms have acquired different meanings in the statute with varied results. Dictionary meanings, therefore, are not quite helpful. Referring to the provisions of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, the Supreme Court observed that when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have P the8 period of release counted towards . the total é ‘ . : period of his sentence undergone by him.” When a circular specifically applies to the prisoners who are undergoing sentence and are confined in jail and even to those who are on parole or furlough the Court cannot extend such circular to convicts who are on bail and thus carve out another category to which Court is not entitled under Section 432 of the Code of Criminal Procedure. While considering the scope of para 637 in Chapter XX of the Punjab Jail Manual

as applicable in the State of Haryana, in the case of Jai Prakash

v. State of

Sunil Fulchand Shah y, Union of India, (2000) 3 SCC 409 at pp. 429-30 : AIR 2000 SCC 1023: 1023 : Cri LJ 1444 : 2000 SCC (Cri) 659 (per majority). Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409 at p. 430 : AIR 2000 SC 1023 : 2

LJ 1444 : 2000 SCC (Cri) 659 . State of Haryana v. Mohinder 394 : 2000 SCC (Cri) 645. . State of Haryana v. Mohinder 394 : 2000 SCC Se aed . State of Haryana v. Mohinder 394 : 2000 SCC (Cri) 645. nnwn Cm s. State of Haryana v. Mohinder 394 : 2000 SCC (Cri) 645.

2000

3 : 2000 Cri (per majority). Singh, AIR 2000 SC 890 at p. 894 : 2000 Cri' LJ 1408 : ((2000 )3 SCC Singh, AIR 2000 SC 890 at p. 895 : 2000 Cri LJ 1408 : ((2000) )33 S SCC ai

at p. 896 : 2000 Cri LJ 1408 : ((2000) )33 S SCC Singh, AIR 2000 SC 890 at p. 898 : 2000 Cri LJ 1408 : (2000) 3 SCC

Singh, AIR 2000 SC

Syn, 4]

No Statutory provisions Dealing with Parole

Haryana,°

and holding

that a convict

on bail is not entitled

remission system, the Supreme Court observed as under:

941 to the benefit

of

“On a reading of the aforesaid provision it is manifest that a prisoner who has been released on bail or whose sentence has been temporarily suspended and has afterwards been re-admitted in jail will be brought under remission system on the first day of the calendar month next following his readmission. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. The submission that the petitioners who were temporarily released on bail are entitled to get the remission earned during the period they were on bail, is not at all sustainable.”

Bail and parole have different connotation in law. Bail is well understood in Criminal Jurisprudence and Chapter XXXIII of Cr.P.C. contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a nonbailable offence or has been convicted of an offence after the trial. Bail is granted by the officer in charge of a police station or by the court when a person is arrested. The Court grants bail when a person apprehends arrest in a case of a non-bailable offence. When a person is convicted of an offence he can be released on bail by the appellate court till his appeal is decided. If he is acquitted his bail bonds are discharged and if his appeal is dismissed he is taken into custody. Bail can be granted subject to conditions. After granting of bail, if the accused is released from custody, still the Court would retain constructive control over him through the sureties. In case, the

accused

is released on his own

bond such constructive control would

still be

exercised through the conditions of the bond secured from him. Parole, however, has

a different connotation from bail eventhough the substantial legal effect of both bail and parole may be the release of a person from detention or custody. “Parole” is a form of “temporary release” of a convict from custody which provides conditional release from custody and changes the mode of undergoing sentence.’

Bail and parole operate in distinct fields although the ultimate end is the release of the prisoner on certain terms and conditions. There is clear distinction between ‘parole’ and ‘bail’. ‘Parole’ has nothing to do with the actual merits of the matter i.e. the evidence which has been led against the convicted prisoner but ‘parole’ is granted in cases of emergency like death, illness of near relative or in cases of natural calamity such as house collapse, fire or flood. It is pertinent to note that in case of death of near relative, the Superintendent of Prison is also competent to release the convict on parole for a limited period. Parole is resorted to in cases of contingency. Thus, bail and parole operate in different spheres and in different situations. In India, there are no statutory provisions dealing with the questions of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By an administrative instruction, however, rules have been framed in various States regulating the grant of parole. Thus, the action of grant of parole is generally speaking an administrative action.

4.

NOSTATUTORY PROVISIONS DEALING WITH PAROLE

There are no statutory provisions dealing with the question of grant of parole. The Code of Criminal Procedure does not contain any provision for grant of parole. By

SCC (Cri) 715. 10. (1987) 4 SCC 296 at pp. 299-300 : 1988 Cri LJ 193 : AIR 1987 SCat p.2225898 : :1987 Cri LJ 1408 : 2000 Also see, State of Haryana vy. Mohinder Singh, AIR 2000 SC 890 (2000) 3 SCC 394 : 2000 SCC (Cri) 645. | | 1522

11. S. Sant Singh v. Secretary, Home Department, Govt. of Maharashtra, 2006 Cri LJ 1515 at p. (Bom) (FB).

12. S. Sant Singh v. Secretary, Home Department, Govt. of Maharashtra, 2006 Cr! LJ 1515 at p. 1522 (Bom) (FB).

[Chap. 21

Parole

942 administrative

instructions,

however,

rules have been

framed

in various States,

regulating the grant of parole. Thus, the action for grant of parole is generally speaking an administrative action.

GRANT OF PAROLE IS AN EXECUTIVE FUNCTION

5.

Grant of parole is essentially an Executive function to be exercised within the limits prescribed in that behalf. It would not be open to the Court to reduce the period of detention by admitting a detenu or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it.

6.

PAROLE IS NOT A SUSPENSION OF SENTENCE

Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government Orders. “Parole” means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually being in jail serving part of sentence. It is clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of S. 32-A of the NDPS Act. Notwithstanding the provisions of the offending S. 32-A of the said Act, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions.

7.

GRANT OF FURLOUGH - ILLUSTRATIVE CASES

In a case a furlough application, made under Rule 2 of the Prisons (Bombay Furlough and Parole) Rules, 1959, was rejected on the ground of public peace and tranquillity. It was noticed that the petitioner had been on bail during his trial. In the

report of the Commissioner of Police, furlough was not recommended on the ground that relations of the victim apprehended danger to their lives. It was held that the rejection on the ground that relations of victim apprehended danger to their lives was

not the same as danger to public peace and tranquillity, and accordingly the petitioner was wrongly and illegally denied facility of furlough.

13.

Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409 at p. 431 : AIR 2000 SC 1023 : 2000 Cri

14. Dadu 3203 15. Dadu 3203 16. Dadu 3203

8 SCC 437 : AIR 2000 SC v. State of Maharashtra, 2000 Cri LJ 4619 at p. 4622 : (2000) : 2000 SCC (Cri) 1528. v. State of Maharashtra, 2000 Cri LJ 4619 at p. 4622 : (2000) 8 SCC 437 : AIR 2000 SC : 2000 SCC (Cri) 1528. v. State of Maharashtra, 2000 Cri LJ 4619 at p. 4624 : (2000) 8 SCC 437 : AIR 2000 SC : 2000 SCC (Cri) 1528.

LJ 2262 at pp. 17. Vallabh Bhurabhai Maru v. Commissioner of Police, Greater Bombay, 1989 Cri 2264-65 (Bom).

CHAPTER 22

BAIL UNDER NDPS ACT ' [Narcotic Drugs and Psychotropic Substances Act, 1985]

'{S. 32-A. No suspension, remission or commutation in any sentence awarded under this Act.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in

force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted. ] ? [S. 36. Constitution of Special Courts.—(1) The Government may, for

the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification.

(2) A Special Court shall consist of a Single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Explanation.—In this sub-section, “High Court” means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. (3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. 1S. 36-A. Offences triable by Special Courts.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973— (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government; (b) where a person accused of or suspected of the commission of an

offence under this Act is forwarded to a Magistrate under sub-

section (2) or sub-section

(ZA) of Section

1. Ins. by Act No. 2 of 1989, S. 10 (w.e.f. 29-5-1989). 2.

167 of the Code of 89

S. 11 (w.e-f. 29-5-1989), Ss. 36 and 36-A to 36-D substituted for old S. 36 by Act No. 2 of 1989,

3. Subs. by Act No. 9 of 2001, S. 15 (w.e.f. 2-10-2001).

943

[Chap. 22

Bail under NDPS Act

944 Criminal

Procedure,

1973, such Magistrate

may

authorise the

detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate: Provided that in cases which are triable by the Special Court

where such Magistrate considers— (i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him;

that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction; (c

ee

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, in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial. (2) When trying an offence under this Act, a Special Court may also try an

offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference

to “Magistrate”

in that section

“Special Court” constituted under Section 36.

included

also a reference

to a

(4) In respect of persons accused of an offence punishable under Section 19 or Section 24 or Section 27-A or for offences involving commercial quantity the references in sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”:

Provided that, if it is not possible to complete the investigation within said period of one hundred and eighty days, the Special Court may extend said period up to one year on the report of the Public Prosecutor indicating progress of the investigation and the specific reasons for the detention of accused beyond the said period of one hundred and eighty days.

the the the the

Chap. 22]

Offences to be Cognizable and Non-Bailable

945

(5) Notwithstanding anything contained in the Code of Criminal Procedure,

1973, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily. | S. 36-B. Appeal and revision.—The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure,

1973 (2 of 1974), on a High Court as if a

Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court. S. 36-C. Application of Code to proceedings before a Special Court.— Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (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 Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

‘tS. 37. Offences to be cognizable and non-bailable—(1)

Notwith-

standing anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (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 27-A 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 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. (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] [Note

by author:

Only

the relevant

sections

from

the Narcotic

Drugs and

Psychotropic Substances Act, 1985, have been reproduced here, which are directly

relevant for the purposes of this book.] SYNOPSIS

BS Scope OFS. SAGE ND

MMah asi iiss 040 Mer

TR

4. Substituted by Act No. 2 of 1989, S. 12 (w.e.f. 29-5-1989).

BE

Wiis

steerer

947

5. Substituted by Act No. 9 of 2001, S. 17, for words “a term of imprisonment of five years OF more under this Act” (w.e.f. 2-10-2001).

[Chap. 22

Bail under NDPS Act

946 2. 3. 4. 5. 6. 7. 8. 9. 40.) Ih:

Applicability of S. 37 to certain offences ONLY.......::ceeseeseerereteetenneressnssnscseaseees Applicability of S. 37 after 2001 Amendment ......cc-ccrceeseiseetenereerensersensrersssrcnannes Offences under NDPS Act cognizable and non-bailable..........::ssressererenenerenernnens S. 37 creates two categories of offences on basis Of PUMISAMENL..........0.-:c cesses Object behind S. 37 as in Statement of Objects and Reasons .........:-:+eceerrrereisern Interest of society to keep accused in NDPS Act behind barS..........:-.:s:eeeecrsrrreseees Implication of non-obstante Clause 1M S. 37 ...scccccecsseceseseseersesneereeenerenesenereneesnanenenenenes Duty of court under S. 37.......-sss-scsssssssesreeseesegnsensgaseqerscsveasssssageascogcageesssesaensenseegtosy '(Conditians in'8:37 Of NDPS Act bii.i0hi ie eth TRAD lik dblebade ooh tet N le STABLE RRS L412 First condition under S. 37). . . .8.06.54. .0

948 949 950 95] 951 952 952 953 953 954

Te Barond GArmetiOn UNG? S37 ccicacicxsinisedss4-odsadiamsonimeiinssanetss trqscrenimsgueennne 954 stcscdces toeabe Neer 955 rcbeastacnscd tate 43, Third condition Under S. 37 .cccdcciss-.setcecscccovscodsctcecadtaaattbettas 14. Public Prosecutor should not oppose bail for sake Of OppOSINg ............:::ccceeeeeeeeeee 955

15. Public Prosecutor to place material before court to enable it to record satisfaction

derenadt winder ACE S.ccasssscacces scare deneoconanmiss were upheld; and on the other hand, the aforesaid decisions in the cases of Amarjit Singh v. State,”° and Jyotiben Ramlal Purohit v. State of Gujarat,’ were overruled. 90. Bhola Debi Saroj v. State, 1999 Cri LJ 392 at p. 394 (Cal).

: 1999 SCC (Cri) 417. 91. 1999 Cri LJ 1825 at pp. 1829-30 ; AIR 1999 SC 1131 : (1999) 3 SCC : 321 AIR 1999 SC 1131 : (1999) 92.

93. 94. 95. 96. 97.

Maktool Singh v. State of Punjab, 1999 Cri LJ 1825 at pp. 1826-27

SCC 321 : 1999 SCC (Cri) 417. (1992) 1 Crimes 1221 : 1992 Ker LT 514 (Ker) (FB). (1994) 2 Crimes 687 : 1994 Cri LJ NOC 414 (Raj) (DB). 1995 Cri LJ 3248 (MP) (FB) at p. 3250. (1993) 2 Rec Cri R 466 (Delhi) (DB). 1997 Cri LJ 1549 (Guj) (DB) at pp. 1557, 1560 : (1997) 3 Rec Cri R 607.

3

992

Bail under NDPS Act

[Chap. 22

However, this matter did not get settled with the aforesaid Supreme Court decision in the said case of Maktool Singh v. State of Punjab. This issue was, raised again before the Supreme Court in the case of Dadu vy. State of Maharashtra, wherein the Constitutional validity of S. 32-A of the NDPS Act, 1985, was challenged, The section was alleged to be arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India which created unreasonable distinction between the prisoners convicted under the said Act and the prisoners convicted for the offences punishable under various other statutes. It was submitted that the Legislature was not competent to take away, by statutory prohibition, the judicial function of the Court in the matter of deciding as to whether after the conviction under the said Act the sentence could be suspended or not. The Supreme Court partly agreed to the contentions raised in this case and held that S. 32-A of the NDPS Act was partly unconstitutional. The Supreme Court observations in this case are given as under. It was now held by the Supreme Court that not providing at ieast one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the Court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Article 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits at least in many High Courts. The Supreme Court further observed that judged from any angle the Section 32-A of the NDPS Act insofar as it completely debars the appellate Courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Nevertheless, a sentence awarded under the Act can be suspended by the appellate Court only and strictly subject to the conditions spelt out in Section 37 of the said Act. Holding Section 32-A as void insofar as it takes away the right of the Courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the Courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. However, it was clarified by the Supreme Court that despite holding that Section 32-A of the NDPS Act is unconstitutional to the extent it affects the functioning of the criminal Courts in the country. it was not declaring the whole of the said section

as unconstitutional in view of its finding that the Section, insofar as it takes away the right of the Executive to suspend, remit and commute the sentence, is valid and intra vires of the Constitution. It was also clarified that the declaration of Section 32-A of the said Act to be unconstitutional, insofar as it affects the functioning of the Courts in the country, would not render the whole of the section invalid, the restriction imposed by the offending section being distinct and severable.

Dade SteofMabaraahira 200)Ce LI461 ap. 0005: AOE Se aT AIR 2000 SC 52 - 2000 SCC (Cri) 1528.

Dadu v StateofMaharashtra, 2000 Cri LJ 4619 at pp. 4629-31 : (2000) 8 SCC 437 : AIR 2000 SC

>Fe a

Pe oaee

2000 Cri LJ 4619 at pp. 4629-30 : (2000) 8 SCC 437 : AIR 2000 SC

Syn. 53]

Grant of Bail Pending Appeal in NDPS Act-Illustrative Cases

993

In the said case of Dadu y. State of Maharashtra, while holding that S. 32-A of the NDPS Act was partly unconstitutional in the manner mentioned above, the Supreme Court further observed that there was no International Agreement to put a blanket ban on the power of the Court to suspend the sentence awarded to a criminal under the Act notwithstanding the constitutional principles and basic concepts of its legal system. It is pertinent to mention that in the said case of Dadu v. State of Maharashtra, the aforesaid decision of Allahabad High Court in Ram Charan vy. Union of India,° was

upheld by the Supreme Court; on the other hand, the aforesaid decision of the Gujarat

High Court in /shwarsingh M. Rajput v. State of Gujarat,’ was overruled. The aforesaid earlier decision of the Supreme Court in the case of Maktool Singh v. State

of Punjab,* was also, in effect, partly overruled in the manner mentioned above.

It may be pointed out that in a subsequent case, namely, Narcotics Control Bureau vy. Karma Phuntsok,’ on an appeal being filed by the respondents against their conviction under the NDPS Act, the High Court suspended the sentence and the respondents were enlarged on bail. On appeal, the Supreme Court noticed that there was not even a whisper about the condition contained in Section 37 of the NDPS Act with regard to enlarging of the accused on bail. It was contended that the Public Prosecutor had not opposed the bail as contained in Section 37(1)(6)(ii) of the NDPS

Act, due to which Section 37 of the said Act would not apply. Terming the said contention as baseless, the Supreme Court observed that it could not accept the contention that in a matter involving seizure of commercial quantity of a substance prohibited by the NDPS Act when the Public Prosecutor appeared on notice of the bail application he would be standing there as a mute spectator not opposing the bail application. The Supreme Court also observed that the very fact that the Public Prosecutor appeared would suggest that he appeared to oppose the bail application. Moreover, the order of the High Court did not suggest that the Public Prosecutor had agreed for bail being granted. In these circumstances, the orders granting bail to the respondents were set aside. It is submitted that in the said Karma Phuntsok case, the legal principles relating to suspension of sentence in an offence under NDPS Act have not been discussed in

detail; moreover, the ratio laid down by the Supreme Court in the aforesaid case of Dadu v. State of Maharashtra was not referred to in this case. It is submitted that the said Karma Phuntsok case is in the nature of an obiter dicta having been decided on the facts of that particular case; or it may be said to be per incuriam being a decision of a 2-Judge Bench without taking note of the ratio laid down in the aforesaid Dadu v. State of Maharashtra case which was decided earlier by a larger 3-Judge Bench of the Supreme Court.

53. GRANT OF BAIL PENDING APPEAL IN NDPS ACTILLUSTRATIVE CASES In a case under the NDPS Act, the appellant was foundto have been roving the country boat containing contraband. Except for the fact that he was enlarged on bail throughout the trial of the case, nothing more was made available to enlarge him on bail by suspending the sentence. No argument was advanced as to what were the implications or materials for suspending the sentence. The material placed by the prosecution against him was still alive and surviving to prove the case against him. In 2000 Cri LJ 4619 at p. 4628 : (2000) 8 SCC 437 : AIR 2000 SC 3203 : 2000 SCC (Cri) 1528. 1991 (9) LCD oa herds * 1365 : 1991 (2) Crimes 160 (Guj). (1990) 2 Guj LR (1999) 3 SCC 321 : 1999 SCC (Cri) 417. : 1131 SC 1999 AIR 1829-30: pp. at 1999 Cri LJ 1825 DN (2005) 12 SCC 480 at pp. 480-81. SOI

Bail under NDPS Act

994

[Chap. 22

such circumstances, it was held that suspension of sentence could not be ordered as a matter of right.

Where the accused had been convicted and sentenced under the NDPS Act and evidence given by prosecution for compliance of mandatory provisions of search and seizure appeared to. be doubtful, the suspension of sentence was allowed by High Court and the accused was released on bail. In a case where the accused had been sentenced to 10 years rigorous imprisonment under the NDPS Act for possession of poppy husk, he sought suspension of sentence and release on bail pending appeal on the ground that his family members, wife, minor daughters and others were suffering badly in his absence in jail. Taking into consideration the peculiar circumstances of the case that the petitioner had already undergone more than 22 years of sentence and the poppy husk recovered from his possession was only 20 kg and the fact that the offence committed by the accused was the first one, the Punjab and Haryana High Court directed that the sentence against the accused be suspended for a period of six months and he be released on bail accordingly.’ In Thippeshappa vy. State of Karnataka,"* an application for suspension of sentence and for bail was filed pending appeal against conviction in a case under the NDPS Act wherein the accused had been convicted for an offence under S. 20(b)(1) of the

Act. The seizure mahazar clearly established the fact that what was seized from the accused was green and fresh ganja plants numbering 40 weighing 23 kg. No evidence however was available to show what was the weight of ganja plants after it was dried or whether ganja plants were weighed after it was dried. It was held that weight of ganja plants could therefore be taken to be less than the commercial quantity, i.e., 20 kg. in such circumstances, it was held that the accused was entitled to suspension of sentence. He was accordingly directed to be released on bail. The application for suspension of sentence under S. 389 Cr.P.C. pending appeal against conviction in case under NDPS Act can be considered and appropriate order can be passed. In the instant case, the petitioner was found guilty under Section 20(c) of the NDPS Act and he was convicted thereunder. But, it had come on record that the petitioner was on bail throughout the trial namely for more than three years and no report of any repetition or an attempt of the offence had been reported. In such circumstances, it was held that execution of sentence was suspended and the petitioner was released on bail pending his appeal against conviction. “

54. APPELLATE COURT TO INDICATE ABOUT QUALITY OF EVIDENCE AT S. 389 CR.P.C. STAGE

Generally the appellate Court should not express its opinion about the merit of the appeal, at the stage where the appeal is not heard finally, but in view of provisions of S. 37 of NDPS Act, and the arguments which are generally advanced on behalf of prosecution, it becomes necessary to indicate somewhere as to what is the quality of

evidence which the prosecution has adduced and what is the strength of prosecution evidence which has been adduced against the accused or against the appellant who is

appealing to the High Court by way of appeal assailing an order of conviction and sentence passed by the trial Court against him.

10. Stanley v. State, 1997 Cri LJ 1217 at p. 1222 (Mad). 11. Salim v. Narcotics Control Bureau, New Delhi, 1997 Cri LJ 2324 at pp. 2326-27 (MP). 12. 13.

Ram Kishore v. State of Haryana, 1998 Cri LJ 467 at p. 468 (P&H), 2005 Cri LJ 2354 at p. 2357 (Kant).

14. Jalaludeen A. vy. State of Kerala, 2007 Cri LJ 2047 at p. 2048 (Ker). 15. Salim v. Narcotics Control Bureau, New Delhi, 1997 Cri LJ 2324 at p. 2326 (MP).

Syn. 58] = /nterim Bail Granted when Appeal referred to Larger Bench

995

55. BAIL PENDING APPEAL IF SUBSTANTIAL PERIOD OF SENTENCE UNDERGONE In a case, the accused had been held guilty of an offence punishable under the NDPS Act, 1985, and sentenced to undergo rigorous imprisonment for 10 years and also with a fine, he had already undergone more than seven years of imprisonment, there was no |ikelihood of the appeal being heard in the near future, the accused was

prepared to deposit the amount of fine. In these circumstances, the Supreme Court

directed that on the accused depositing the amount of fine, the execution of the sentence of imprisonment shall remain suspended during the hearing of the appeal by

the High Court and that the appellant shall be released on bail.'° 56. BAIL PENDING APPEAL TO REPEAT OFFENDER ON GROUND OF PARITY In Union of India v. Mahaboob Alam,"’ the respondent was convicted by the trial Court under S. 21 of the NDPS Act, 1985, and since he was a previous offender, the trial Court awarded him the enhanced punishment provided under S. 31 of the said Act. A co-accused, being a first-time offender, was sentenced under S. 21 of the said Act. The High Court, on entertaining the appeal against the said conviction, granted bail to the respondent accused on the second application being made on the sole ground that the co-accused from whom the contraband was recovered was released on bail while no such contraband was recovered from the respondent accused. On appeal, the Supreme Court noticed that the High Court did not advert to any other aspect of the case nor to the legal restriction imposed by the statute under Section 32A of the said Act. The Supreme Court further observed that in the impugned judgment there had been absolutely no application of mind to the above requirement of law while granting bail to the respondent, that the High Court seriously erred in

granting bail to a repeat offender merely on the ground that a co-accused had been granted bail, and that while doing so, the High Court had totally ignored the legislative intent of the Act. Accordingly, the order granting bail was set aside.

57. BAIL PENDING FRESH SCRUTINY OF LESSER OFFENCE MADE OUT THAN FOR WHICH CONVICTED In P.P. Beeran vy. State of Kerala,'* the appellant was convicted under S. 27 of the NDPS Act and was sentenced to undergo rigorous imprisonment for 10 years and to pay fine. During appeal before the Supreme Court, it was noticed that the appellant was entitled for being sentenced to a much less imprisonment that was awarded to him due to a small quantity of opium having been seized from him. In view of the fact that the appellant had already spent a long period of imprisonment, his case was remitted to the trial court to examine the said new plea. In such circumstances, the appellant was ordered to be released on bail.

58. INTERIM BAIL GRANTED WHEN APPEAL REFERRED TO LARGER BENCH Where an appellant before the Supreme Court had already undergone a sentence of 8 years and 8 months’ imprisonment in a matter under the NDPS Act and his matter was to be referred to a larger Bench making it likely that the final disposal of the

16. Mansingh v. Union of India, (2004) 13 SCC 42 at p. 43.

All LJ 1071. 17. 2004 Cri LJ 1789 at p. 1790-91 : (2004) 4 SCC 105 : 2004 SCC (Cri) 912 : 2004 18. 2001 Cri LJ 3281 at pp. 3282-83 : (2001) 9 SCC 571 : AIR 2001 SC 2420.

996

Bail under NDPS Act

[Chap. 22

appeal would take further time, in view of these peculiar circumstances, the Supreme Court granted interim bail to the appellant pending disposal of the appeal finally. 59. S.37 NOT APPLICABLE FOR BAIL PENDING APPEAL | AGAINST ACQUITTAL In an application for bail pending the hearing and final disposal of an appeal filed by the State seeking to impugn an order of acquittal passed for offences punishable under Ss. 21 and 29 of the NDPS Act, it was held by the Bombay High Court that the provisions of S. 37 of the NDPS Act are applicable to the general power of grant of bail under Chapter XXXIII of the Cr.P.C. and that the same would not apply to S. 390 Cr.P.C. occurring in Chapter XXIX of the Cr.P.C. Therefore, the bar contained in S. 37 of the. NDPS Act would not operate in the matter of the exercise of discretion for grant or refusal of bail under S. 390 of the Cr.P.C.

60. PAROLE CANNOT BE WITHHELD UNDER S. 32-A OF NDPS ACT It is clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of S. 32-A of the NDPS Act. Notwithstanding the provisions of the offending S. 32-A of the said Act, a convict is entitled to parole, subject, however, to the conditions governing the £rant of it under the statute, if any, or the Jail Manual or the Government Instructions.

61. NO ANTICIPATORY BAIL WHERE S. 37 APPLICABLE Where there was prima facie case of involvement of the petitioner-accused in an offence under Ss. 20(b)(i) and 60(3) of the NDPS Act, the provisions of S. 37 of the

said Act would be attracted and the High Court could not grant anticipatory bail in such a case as the powers of the High Court to grant bail are subject to the restriction contained in Section 37 of the Act. Looking to the provisions of Section 37 of the NDPS Act, application for anticipatory bail under Section 438, Cr.P.C., would not lie for an offence under the said Act. Section 37 of the NDPS Act starts with non-obstante clause and under what circumstances bail can be granted have been enumerated in the Section itself. Recourse to provisions of S. 36A(3) of that Act also cannot be taken for this

purpose.” Where in a case under various sections of NDPS Act, the applicants had obstructed the raiding party and snatched the sample of contraband seized, and helped accused to flee from the spot and screened him, investigation of the offence was under progress, in such circumstances, the application for grant of anticipatory bail was rejected.

62. NO SETTING ASIDE OF A PROPER ORDER REJECTING BAIL IN REVISION Where the order rejecting bail under S. 37 of the NDPS Act was found to be proper, it was held that the High Court cannot set aside the same as the revisional powers exercisable by the High Court in terms of Code of Criminal Procedure are limited and

19.

Vijaysinh Chandubha Jadeja v. State of Gujarat, (2007) 1 SCC 433 at p. 437.

20.

Fakira Ramdas Chaudhary y. State of Maharashtra, 1994 Cri LJ 1805 at p. 1807 (Bom).

22. 23.

Takhelmayum Ibochou Singh v. State of Manipur, 1994 Cri LJ 3324 at p. 3327 (Gau). Rakesh Kumar v. State of H.P., 2003 Cri LJ 3503 at pp. 3504-5 (HP).

24.

Manbhari Devi v. State, 2001 Cri LJ 70 at p. 72 (HP).

21. Dadu y. State of Maharashtra, 2000 Cri LJ 4619 at p. 4624 : (2000) 8 SCC 437 : AIR 2000 SC 3203 - 2000 SCC (Cri) 1528.

Syn. 64]

= Grant of Bail to

Ayurvedacharya Selling Drugs for Epilepsy

997

must be sparingly exercised and only when the order passed by the trial Court is illegal or improper.

63. COURTS SHOULD BE CIRCUMSPECT IN GRANTING BAIL TO FOREIGNERS

In an offence of the nature of one under the NDPS Act, where a foreigner is

involved, or where

the offence

is committed

in a State adjoining the national

frontiers, after grant of bail it becomes difficult to trace out the accused. Therefore,

the courts should be circumspect in granting bail in cases of this nature.

' 64. GRANT OF BAIL TO AYURVEDACHARYA SELLING DRUGS FOR EPILEPSY In State of Uttaranchal v. Rajesh Kumar Gupta,’’ the respondent was an Ayurvedacharya running two clinics. Through advertisements, he allegedly claimed to cure epilepsy by medicines prepared from herbal plants. The State raided his premises on allegations that he had been using unlabelled tablets containing psychotropic substances. He was arrested and put in custody with charges under S. 8 r/w S. 22 of the NDPS Act, 1985, and under Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. Bail was granted to him by the High Court which noted that ordinarily bail applications under the NDPS Act are considered with regard to S. 37 of the said Act, but that in the instant case the drugs in question were not listed in Schedule I appended to the NDPS Rules, 1985, and therefore he could not be said to have committed the said offence under the NDPS Act. On appeal, refusing to interfere with the order of the High Court granting bail, the Supreme Court held that: It was not in dispute that the medicines seized from him came within the purview of Schedules G and H of the Drugs and Cosmetics Rules, whereas none of them found place in Schedule I appended to the NDPS Rules, 1985, because of which the provisions of Section 8 of the NDPS Act would have no application whatsoever. In view of the fact that all the drugs being allopathic drugs mentioned in Schedules G and H of the Drugs and Cosmetics Rules indisputably were used for medicinal

purposes. Once the drugs were said to be used for medicinal purposes, it could not be denied that they were acknowledged to be the drugs which would come within the purview of description of the expression “medicinal purposes”. The respondent was charged with a grave offence. It was, therefore, all the more necessary to apply the principles of law strictly. A person could not be denied the right of being released on bail unless a clear case of application of the NDPS Act, 1985, was made out. In a case of this nature when prima facie the provisions of the said Act were not found applicable, particularly, in view of the fact that he had been | in custody for a period of more than two years, it was not a fit case where discretionary jurisdiction under Article 136 should be used. In the aforesaid case of State of Uttaranchal v. Rajesh Kumar Gupta,*® it was held on facts that that Section 37 of the 1985 Act would prima facie have no application in

view of the exception contained in Section 8 thereof read with the Rules.

25. 26. 27. 28.

| Nazir Ahmed Wani y. State of J&K, 1998 Cri LJ 3176 at p. 3177 (J&K). 130. (Cri) SCC 2 (2006) ; 145 p. at 144 SCC 13 (2005) Momin, Abdul v. India Union of (2007) 1 SCC 355 at pp. 364-65, 368. (2007) 1 SCC 355 at p. 368.

998

Bail under NDPS Act

[Chap. 22

65. TRIAL BE COMPLETED EXPEDITIOUSLY IN VIEW OF RESTRICTIONS ON BAIL NDPS Act cases should be tried as early as possible because in such cases normally the accused are not released on bail.” In the aforesaid case of Achint Navinbhai Patel v. State of Gujarat, despite the delay of about eight years in trial, the Supreme Court held that this would not be a fit case for granting bail to the accused. However, directions were issued to the trial court to comply with the earlier directions issued by the Supreme Court for expeditious disposal of the matter; and in case of noncompliance, the High Court was directed to take appropriate action. The High Court was also requested not to interfere and grant stay order with regard to further proceedings at the interim stage and if any such revision/application was pending, the High Court was asked to decide the matter at the earliest.

66. CUSTODY FOR A SPECIFIC PERIOD-WHETHER GROUND TO GRANT BAIL? The fact that he had been in custody for a period of six months was not a valid reason to release him on bail in a crime of this nature.

Where the accused, charged under Sections 8/21 of the NDPS Act, was released on bail on the ground that he had been in jail for 15 months, and there was no whisper about the provision of Section 37 of the said Act in the said order, the Supreme Court held that the said order was not sustainable in law as the provision of Section 37 of the said Act had been completely given a go-by by the High Court. Accordingly, the High Court order of grant of bail was set aside.”

67. NO PROVISION FOR COMPLETION OF TRIAL IN FIXED PERIOD Legislature in its wisdom thought it necessary to make provision that in cases where investigation is not completed within the specified period the accused should be allowed bail as of right. No such provision, however, has been made for concluding the trial and it is for sound reasons also. Thus, it was held in the instant

case that merely because the trial had not been concluded would not be a ground for the release of the petitioners on bail keeping in view the provisions contained in S. 37 of the NDPS Act under which they were charged.”

68. ONE-TIME DIRECTIONS FOR RELEASE OF ACCUSED DUE TO DELAYED TRIALS It is obvious from the plain language of Section 36(1) of the NDPS Act, that the legislature contemplated the creation of Special Courts to speed up the trial of those

prosecuted for the commission of any offence under the Act. Similar is the objective

of Section 309 of the Code of Criminal Procedure. It is also true that Articles 14. 19 and 21 sustain and nourish each other and any law depriving a person of “personal liberty” must prescribe a procedure which is just, fair and reasonable, i.e., a procedure which promotes speedy trial. However, since the number of courts constituted to try offences under the said Act were not sufficient and the appointments of Judges to man these courts were delayed, cases piled up and the provision in regard to

29. 30. 31.

Achint Navinbhai Patel v. State of Gujarat, (2002) 10 SCC 529 at p. 531 : AIR 2003 SC 2172 : (2002) 142 ELT 516. Narcotic Control Bureau vy. Raju, (2006) 9 SCC 712 at p. 713 : (2006) 3 SCC (Cri) 372. Union of India v. Saurabh Chatterji, (2006) 9 SCC 759 at p. 760 : (2006) 3 SCC (Cri) 396.

32. Anil Kumar Gandhi v. N.C.B., 1992 Cri LJ 1703 at pp. 1709-10 (Del).

Syn. 68] One-time Directions for release of accused Due to delayed Trials

999

enlargement on bail being strict the offenders have had to languish in jails for want of trials.

Section 37 of the NDPS

Act makes every offence punishable under the Act

cognizable and non-bailable and provides that no person accused of an offence

punishable for a term of five years or more shall be released on bail unless (/) the Public Prosecutor has had an opportunity to oppose bail and (ii) if opposed, the court is satisfied that there are reasonable grounds for believing that he is not guilty of the offence and is not likely to indulge in similar activity. On account of. the strict language of the said provision very few persons accused of certain offences under the NDPS Act could secure bail. To refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable and contrary to the spirit of Section 36(1) of the Act, Section 309 of Cr.P.C. and Articles 14, 19 and 21 of the Constitution.

Deprivation of the personal liberty without ensuring speedy trial would not be in consonance with the right guaranteed by Article 21. Of course, some amount of deprivation of personal liberty cannot be avoided; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. Observing thus, and being conscious of the statutory provision finding place in Section 37 of the NDPS Act prescribing the conditions which have to be satisfied before a person accused of an offence under the said Act can be released, and despite this provision, the Supreme Court, in the case of Supreme Court Legal Aid Committee v. Union of India,” felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21. Agreeing with the suggestion that such accused persons whose trials have been delayed beyond reasonable time and are likely to be further delayed should be released on bail on suitable terms in view of the large pendency of NDPS Act cases in the State of Maharashtra’, the Supreme Court issued the following general directions: (i) Where the under-trial is accused of an offence(s) under the Act prescribing a punishment of imprisonment of five years or less and fine, such an undertrial shall be released on bail if he has been in jail for a period which is not less than half the punishment provided for the offence with which he is charged and where he is charged with more than one offence, the offence providing the highest punishment. If the offence with which he is charged prescribes the maximum fine, the bail amount shall be 50% of the said amount with two sureties for like amount. If the maximum fine is not prescribed bail shall be to the satisfaction of the Special Judge concerned with two sureties for like amount. 33. Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 at pp. 746-47 : 1995 SCC (Cri) 39. 34. Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 at p. 747 : 1995 SCC . (Cri) 39.

35. (1994) 6 SCC 731 at pp. 747-49 ; 1995 SCC (Cri) 39. Also see, Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1995) 4 SCC 695 at pp. 695-96 : 1995 SCC , (Cri) 822. 36.

be It is pertinent to mention that subsequently the Supreme Court directed that these directions shall

followed, applied and implemented in ten other states, namely, Andhra Pradesh, hese Nereda,

Karnataka, Gujarat, Orissa, Bihar, West Bengal, Uttar Pradesh and Madhya

Pradesh. These

Court Legal Aid ee gible subsequent directions were issued in the case reported in Supreme

(Representing Undertrial Prisoners) vy. Union of India, (1995) 4 SCC 695 at pp. 695-96 : 1995 SCC (Cri) 822.

1000

Bail under NDPS Act

[Chap. 22

(ii) Where the under-trial accused is charged with an offence(s) under the Act providing for punishment exceeding five years and fine, such an undertrial shall be released on bail on the term set out in (i) above provided that his

bail amount shall in no case be less than Rs. 50,000 with two sureties for like amount. (iii) Where the under-trial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties ior like amount. (iv) Where an under-trial accused is charged for the commission of an offence

punishable under Sections 31 and 31-A of the Act, such an under-trial shall not be entitled to be released on bail by virtue of this order. The Supreme Court also laid down certain general conditions subject to which bail in the cases (i), (ii) and (iii) above would be given. The Supreme Court also clarified

that the aforesaid directions were intended to operate as one-time directions for cases in which the accused persons were in jail and their trials were delayed. They were not intended to interfere with the Special Court’s power to grant bail under Section 37 of the NDPS Act. It was also clarified that the Special Court would be free to cancel bail if the accused was found to be misusing it and grounds for cancellation of bail existed. In the aforesaid case of Supreme Court Legal Aid Committee y. Union of India,* the Supreme Court further observed that it was conscious of the fact that the menace of drug trafficking has to be controlled by providing stringent punishments and those who indulge in such nefarious activities do not deserve any sympathy; but at the same time, it cannot be oblivious to the fact that many innocent persons may also be languishing in jails considering the percentage of acquittals.

69. BAIL GRANTED IN NDPS ACT CASE WHERE FALSE CASE SUSPECTED In Sarija Banu vy. State,’ it was contended that the case against the appellants under

NDPS Act was falsely foisted on them and in order to support this contention, it was pointed out that a telegram was sent by a person to various Government authorities

stating that a police party had illegally entered into the house occupied by these appellants and had taken them into custody and their whereabouts were not known and there was danger to their lives and that immediate action be taken to safeguard their lives. When the bail application had been considered by the High Court, pursuant to request made by the Court, the said person, who was alleged to have sent the telegram, had filed an affidavit along with affidavits of two lawyers, giving details of the circumstances how the telegram came to be sent. In these circumstances, the Supreme Court observed that the fact that such a telegram was sent and received was not disputed, and that even though such a serious information was received by the police as per the complaint, no case was registered and no investigation started; this showed that something had happened on that day. The Supreme Court held that these were relevant factors for granting bail, inspite of the stringent provisions contained in Section 37. of the NDPS Act and inspite of the fact that a charge had been framed 37.

Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 at pp. 749-50 : 1995 SCC

38.

(1994) 6 SCC 731 at p. 750 : 1995 SCC (Cri) 39.

39.

(2004) 12 SCC 266 at pp. 267-68.

(Cri) 39.

Syn. 72] Relevance of violation ofprocedural Safeguards in Grant of Bail

1001}

against the appellants and they had to face the trial. The Supreme Court also took

notice of the fact that in the instant case there was allegation of serious violation of Section 42 of the NDPS Act relating to the power of entry, search, seizure and arrest without warrant.or authorisation, etc. In view of these reasons, the Supreme Court

granted bail to the appellants with certain condi-tions.

70. REFUSAL OF BAIL WHEN TRIAL INCOMPLETE In Babua y. State of Orissa,*° the petitioner was facing a trial along with some other accuser persons, some of whom were absconding, for an offence under the NDPS Act. During the trial, nine persons were examined but no one had implicated the petitioner; however, the trial was still in progress. His bail application had been rejected by the Special Judge. In such circumstances, the Supreme Court held that the petitioner was not entitled to bail at that stage. It was observed that he had attempted to secure bail on various grounds but failed, and that those reasons would however be insignificant

if the scope of Section

37(1)(b) of the Act was

kept in mind. The

Supreme Court further observed that at that stage of the case all that could be seen was whether the statements made on behalf of the prosecution witnesses, if believable, would result in conviction of the petitioner or not; and that at such juncture, it could not be said that the accused was not guilty of the offence if the allegations made in the charge were established. It was also not possible to say, the evidence having not been completely adduced before the Court, that there were no grounds to hold that he is not guilty of such offence. Therefore, rejecting the plea of grant of bail, the Supreme Court issued certain directions to enable expeditious disposal of the case.

71. NON-COMPLIANCE OF ORDER FOR SUPPLY OF COPIES NO GROUND FOR BAIL Mere non-compliance of the order passed for supply of copies to the accused, if any, cannot entitle an accused to get bail notwithstanding prohibitions contained in Section 37 of the NDPS Act.

72. RELEVANCE OF VIOLATION OF PROCEDURAL SAFEGUARDS IN GRANT OF BAIL In a case relating to the NDPS Act, the Supreme Court noticed that in the bail application of the appellants, it was alleged, that there was serious violation of Section 42 of the NDPS Act relating to the power of entry, search, seizure and arrest

without warrant or authorisation, etc. It was further noticed that in the impugned order rejecting the bail, however, nothing was stated about the alleged violation of Section 42, and it was observed that it was not necessary to consider such violation at that stage. The Supreme Court held that the compliance with Section 42 of the NDPS Act is mandatory and that is a relevant fact which should have engaged the attention of the Court while considering the bail application. In Superintendent, Narcotics Control Bureau, Chennai v. R. Paulsamy,” the High

Court considered only two points for adopting the exceptional course of granting bail to an accused involved in the offence under NDPS Act, they were: there was prima

facie violation of S. 52 and there was prima facie non-compliance with S. 57 of the 40. 41.

7 : 2001 Cri LJ 1169 at p. 1170: (2001) 2 SCC 566 : AIR 2001 SC 1052 : 2001 SCC (Cri) = SCC 3 (2004) : 1818 p. at 1815 LJ Cri 2004 Namade, Pralhad Narcotics Control Bureau y. Dilip : 2004 SCC (Cri) 916, 619

42.

Sarija Banu v. State, (2004) 12 SCC 266 at p. 268.

43.

‘

2001 Cri LJ 117 at p. 118 : (2000) 9 SCC 549 : AIR 2000 SC 3661 : 2001 SCC (Cri) 648.

1002

Bail under NDPS Act

[Chap. 22

Act. The Supreme Court observed that the High Court had not recorded a finding in

terms of S. 37 of the Act which is sine qua non for granting bail to an accused

involved in the offence under the Act. It was also held that in the light of Section 37 of the NDPS Act no accused can be released on bail when the application is opposed by the public prosecutor unless the Court is satisfied that there are reasonable grounds

for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. The Supreme Court further observed that it was unfortunate that matters which could be established only in offence regarding compliance with Ss. 52 and 57 of the said Act have been pre-judged by the High Court at the stage of consideration for bail; and that minimum which the High Court should have taken into account was the factual presumption in law position that official acts had been regularly performed. Such presumption could be rebutted only. during evidence and not by merely saying that no document had been produced before the High Court during bail stage regarding the compliance of the formalities mentioned in those two sections. Accordingly, the order granting bail was set aside. If the procedure laid down under the NDPS Act is not followed, it would not be proper for the Court to refuse bail; particularly when the procedural safeguards violated have a material bearing on trial of the case. Due compliance of the procedural safeguards provided under the Act and intended to protect a person against false accusation and frivolous charges should be considered by the Court while dealing with an application for bail in such cases. In the instant case, it was held that non-compliance with the provisions of Ss. 42 and 50 of the said Act entitled the accused to be released on bail.

No doubt the Court is expected to keep the object of the NDPS Act before it while dealing with bail petition under S. 37 of the Act; but the object of the Act cannot be allowed to defeat the basic rights available even to an accused under the Article 21 of the Constitution. No Court would be justified in ignoring the procedural safeguards, as provided in the Act, having a vital bearing on the constitutional rights. Where in a case under the NDPS Act relating to search and recovery of brown sugar, it was contended that the mandatory requirements of Section 50(4) of the Act

were not complied with and the witnesses had not been summoned, while rejecting this contention, the High Court held that there was a note in the recovery memo cum first information report that no person of the locality had agreed to be a witness in the matter, and that whether even in such a circumstance the taking of a witness was mandatory was a matter for consideration by the lower Court. The High Court further held that this alleged lapse in compliance of Section 50 of the Act could not be a sufficient ground for enlarging the applicant on bail.

The provisions of Ss. 41 to 58 of the NDPS Act would be applicable right from the inception of the investigation. It would be fallacious and pernicious to leave the question of their compliance to be looked into only at the stage of trial. Such a situation is fraught with the danger of the prosecution agency ignoring altogether the compliance of the provisions which contain in-built safeguards to the accused, with impunity and with ulterior purpose in a given case. That would bring into peril the liberty of the citizen guaranteed under Art. 21 of the Constitution. The accused. therefore, should be entitled to rely upon the infirmities with all its rigour even at the stage of bail. There are stringent limitations on grant of bail under S. 37 of the NDPS Act. Courts must, therefore, be vigilant to protect the rights of the accused. There can 44, Mari Appa v. State of M.P., 1990 Cri LJ 1990 at pp. 1993-94, 1997 (MP), 45. Mari Appa v. State of M.P., 1990 Cri LJ 1990 at p, 1995 (MP). 46. Raj Bahadur y. State of U.P., 1991 Cri LJ 2239 at p. 2240 (All) : 1991 AlLLJ 812.

Syn. 72} Relevance of violation of procedural Safeguards in Grant of Bail

1003

be no quarrel that an offender under the Act must be apprehended, and severely punished, provided, however, that he is found guilty. That possibility has to be found to exist at the stage of bail on prima facie consideration of the matter and only after reaching satisfaction that he is reasonably believed to be guilty. For that purpose, the compliance with procedural requirements must be insisted upon and must be shown, at least, prima facie, at the stage of bail.

The provisions of Ss. 42 and 50 of the NDPS Act cast a statutory duty upon the police officers or other authorities to reduce the information in writing and also give an option to the accused to be searched before a Gazetted Officer or a Magistrate. These provisions are mandatory and violation thereof would cause prejudice to the accused. The words in these two sections are unambiguous and have no scope for an interpretation to the effect that the Police Officer or any other authority can violate these provision at their whims and pleasure. In the instant case, where the said mandatory provisions contained in Ss. 42 and 50 of the NDPS Act could be said to have been violated, it was held that the prosecution must be able to show that, notwithstanding the non-compliance of the said provisions, there was no prejudice caused to the accused. It was also held that until the prosecution was able to show that ‘no prejudice had been caused to the accused he must be found entitled to take benefit of the failure to comply with the said provisions and be entitled to bail on that account. It was also observed that the violation of said provisions could be considered even at that stage of bail. Accordingly, bail was granted in the instant case. The non-compliance with mandatory provisions regarding search and seizure under Ss. 42 and 50 of the NDPS Act will amount to prejudice against the accused and on that ground the accused will be entitled to bail. Hence, in the instant case, where the police officer had not obtained any search warrant for searching the house of the accused and had also not recorded the grounds of his belief for not obtaining the search warrant or authorisation, it was held that there was non-compliance of S. 42 of the NDPS Act. That apart the accused was not taken to the nearest Gazetted officer of any of the departments mentioned in S. 42 or to the nearest Magistrate. The purpose for which this condition is laid down in S. 50 is that the person should be searched before a Gazetted Officer on his demand or before the nearest Magistrate so that the search should be before an independent officer. The person arresting the accused cannot be said to be an independent person so as to come within the description “nearest Gazetted Officer” envisaged in S. 42 of the said Act. Therefore, it was held that there was non-compliance of S. 50 also. Accordingly, the accused was held to be entitled to be released on bail.” If the law requires and expressly mandates that certain steps are to be taken before an arrest is made or detention is continued, it must be ordinarily the rule that such steps are to be followed at the risk of the arrest or the detention becoming illegal otherwise. To that extent the provisions must be regarded as mandatory as otherwise the protection afforded by the statute would become illusory which is not what the statute must have intended. If a departure is made either the arrest or the detention would become vulnerable with the onus squarely resting upon the authority making the arrest to establish

that in the circumstances

of the case

the departure

was

unavoidable and was necessitated in the very exigencies of the situation. Hence when

a complaint is made of the arrest and the detention to be illegal because of violations

Lawarance D'Souza v. State of Maharashtra, 1992 Cri LJ 399 at pp. 402-4 (Bom). Also see, A. V. Dharmasingh y. State of Karnataka, 1993 Cri LJ 94 at pp. 97-98 (Kant). 48. Sewa Ram v. State, 1992 Cri LJ 2929 at pp. 2931-35 (All) : 1992 All LJ 942.

47.

49. A. V. Dharmasingh v. State of Karnataka, 1993 Cri LJ 94 at pp. 97-100 (Kanv; relying upon Lawarance D'Souza v. State of Maharashtra, 1992 Cri LJ 399 at pp. 402-4 (Bom).

1004

Bail under NDPS Act

[Chap. 22 )

of the provisions of Ss. 50, 52 and 57 of the NDPS Act, or any of them, the arrested person may become entitled to liberty, the arrest having been unauthorised or even if the arrest is valid, the detention to be unauthorised, unless the contravention is otherwise justified. The conclusions so reached are also inherent in Articles 21 and 22 of the Constitution of India.”

There is no force in the argument that even though the provisions of Ss. 50, 52 or 57 of the NDPS Act might have not been complied with, yet an accused is not entitled to be allowed bail unless the conditions of S. 37(1)(b) of the said Act are satisfied,

namely, that the public prosecutor had been given opportunity to oppose the application fér bail and where the application is so opposed, 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. This is so because so far as non-compliance with the procedure in effecting the arrest or continuing the detention is concerned, the question is not one of bail but of the invalidity of the arrest and the detention and hence the person being set free and his liberty restored on the incarceration being declared void. It is a matter as to whether a person has been made to lose his liberty and is deprived of his fundamental right in contravention of the guarantees under Articles 21 and 22 of the Constitution in which event the arrest and detention become procedurally ultra vires calling upon the Court to declare the same to be so. A petition as such would lie to the High Court either under S. 482 Cr.P.C. invoking the inherent powers of the Court to quash the arrest and detention because of perpetration of obvious injustice or under Article 226 of the Constitution of India to issue a writ nullifying the same. While such is the case, the judgment of the Court would not be fettered by the restraints of S. 37(1)(b) of the NDPS Act as the Court would not be considering whether to release the petitioner on bail or not and instead would be deciding upon the validity of the arrest and detention. In a case under the NDPS Act, 1985, two petitions had been filed under S. 439, Cr.P.C. In the first petition, violation of Ss. 50, 52(1) and 57 of the said Act was alleged in arresting the petitioner and continuing his detention. In the second petition, allegation had been about violation of Ss. 42 and 50 of the Act. The allegations made by the petitioners had not been met by the State nor any records had been produced to rebut the charges levelled. Accordingly, it was held that in the circumstances, it was to be accepted that in fact the arrest of the petitioners had been done in violation of the said provisions. Though the petitions had been made under S. 439, Cr.P.C. yet it having come to the notice of the Court that in effect the arrest and detention were illegal, the High Court treated these applications as under S. 482, Cr.P.C. and set aside the petitioners’ arrest and detention and directed that they be set at liberty

forthwith.

Would a person accused of an offence under the NDPS Act be entitled to bail, if there is non-compliance with the procedural safeguards provided under S. 50 of the

said Act? A Full Bench of the Madhya Pradesh High Court considered this question in Ram Dayal v. Central Narcotic Bureau,” and stated the circumstances for grant of bail in this regard as under. Before plea raised in terms of S. 50 of the NDPS Act bya person arrested in connection with an offence under S. 18 thereof is accepted and the Court reaches the conclusion that its jurisdiction to release the accused is not curbed by the “limitations” contemplated under S. 37 of the Act, it must address itself to the question of bona fides of the plea and hold an enquiry in that regard. It may reject the 50. 51. 52. 53.

Bidyadhar Dolai Bidyadhar Dolai Bidyadhar Dolai 1993 Cri LJ 1443

v. State, 1993 Cri LJ 260 at pp. 268-69 (Ori) : (1992) § OCR 31. v. State, 1993 Cri LJ 260 at pp. 269-70 (Ori) : (1992) 5 OCR 31. v. State, 1993 Cri LJ 260 at p. 270 (Ori) : (1992) 5 OCR 3}. at p. 1456 (MP) (FB) : 1993 Jab LJ 24.

Syn. 72] Relevance of violation of procedural Safeguards in Grant of Bail

1005

plea if it is found to be a mere pretence; so also, if it is not a case of searching the person of the accused and of alleged recovery, in the course of such search, of the

contraband substance. Neither High Court nor the Special Court has jurisdiction to accept the plea waiving the “limitations” contemplated under S. 37 without investigating its truth and validity. The Court has to reach affirmatively the tentative conclusion that the arrest and the subsequent proceedings are impugnable, albeit leaving open for decision in the course of trial, the question of prejudice.

The provisions of Ss. 42 and 50 of the NDPS Act are mandatory and violation of any of these provisions will raise a presumption of prejudice. The prosecution may show with reference to the appropriate evidence at the stage of bail and in the trial that compliance of these provisions was, in fact, made. The prosecution could also place before the Court reliable evidence to show that irrespective of the violation of these provisions, recovery was made from the accused and no prejudice has, in fact, been caused. Where provisions of S. 42 or 50 of the NDPS Act have been violated and it is not shown that no prejudice was, in fact, caused, mere alleged recovery of large quantity may not be considered to be sufficient to deny bail. The questions whether the recovery of opium was not effected before a Gazetted Officer or with his consent and compliance of S. 50 of the NDPS Act are questions of fact and can be gone into only at the time of trial and not in an application for bail as the NDPS Act is a special enactment and S. 37 of the said Act restricts the power of the High Court to grant bail except when the conditions prescribed under that section are fulfilled. The provisions of Sections 41 to 57 of the NDPS Act are all mandatory and violation of the same by the officers conducting search, seizure etc. under the Act, would be fatal to the case of the prosecution and the compliance of the mandatory provisions can be looked into even at the time of grant of bail also. The personal liberty of the citizen as guaranteed under Articles 21 and 22(5) of the Constitution is

supreme. At the same time, the reasons and objects of the NDPS Act providing deterrent punishment to a person who violates the provisions of the NDPS Act should not be ignored. In a case under the NDPS Act, an accused cannot be enlarged on bail on some alleged irregularity during investigation which is to be ultimately considered at the stage of trial. More so, in view of the stringent provisions in the NDPS Act where the ~ Legislature has been trying to eradicate the field which has been found to be cancerous. While considering the question of prima facie case, the irregularities on the part of the investigating agency cannot be of any avail though an accused is always at liberty to raise these points at the time of trial. S. 37 of the NDPS Act makes no exception, hence even if the procedure prescribed under Sections 42 and 50 of NDPS Act has not been followed, while considering bail, the provisions of Section 37 of the NDPS Act have to be borne in mind.

In every case where the provisions of Ss. 42 and 50 of the NDPS Act have not been

followed, there will not be an automatic presumption of prejudice, and each case has

to be assessed on its own facts for the merit of the recovery or the evidence collected

against the accused. Whenever it is prima facie found that provisions of Ss. 42 and SO of the NDPS Act have not been complied, the Court has still to prima facie evaluate 54.

Dadan Singh v. State of U.P., 1993 Cri LJ 1785 at p. 1794 (All).

55.

Ram Sarup v. State of Haryana, 1993 Cri LJ 2567 at pp. 2568-69 (P&H).

57.

Rashid Khan v. State, 1993 Cri LJ 3776 at p. 3788 (Raj).

56. Sundaresan v. State, 1993 Cri LJ 3342 at p. 3362 (Mad).

58. Nathooni Singh v. State of U.P., 1994 Cri LJ 3 at p. 6 (All).

1006

Bail under NDPS Act

[Chap. 22

the evidence collected against the accused and has to consider the restrictions imposed on the Court under S. 37 of the NDPS Act. If after prima facie considering the value of evidence of search and seizure the Court comes to a prima facie opinion that there are reasonable grounds for believing that the accused is not gulity of such offence and that he is not likely to commit any offence while on bail, the bail can still be granted. The restrictions contained in S. 37 of the NDPS Act have to be kept in mind even where the provisions of search and seizure contained in NDPS Act have, prima facie, not been complied. The basic requirement of law under the NDPS Acct is that it is the involvement of the accused in an offence punishable under that Act which is the solitary consideration. If the facts justify that there is material to disclose such involvement, then the provisions of Section 37 of the NDPS Act will apply and bail would, normally, have to be rejected. The infirmities, if any, that can be anticipated at the time of the trial are something hypothetical and are, therefore, not something of which the Court can take cognizance in advance because this could be a highly speculative approach which is hardly permissible. Where the accused was arrested by an army authority and heroin powder was recovered from his custody, it was held that only because of there being some infraction of the provisions of Ss. 42 and 50 of the NDPS Act during arrest/search/ seizure etc. made by the army authority, the accused could not be released on bail. .

The breach of the provisions of Section 36-A(1)(b) of the NDPS Act, which in the nature of a procedural illegality, cannot be permitted to outweigh the underlying object of the provisions as contained in Section 37 of the NDPS Act which has clearly taken away all the rights of the accused to have the benefit of bail until and unless the conditions provided under Section 37 are complied with. In a case of recovery of contraband from the premises of accused persons under the NDPS Act, it was held that violation of mandatory provision of S. 50 of the Act could not be concluded without examination of fact and also that as there was no material showing that the accused persons were not likely to commit any offence, if released on bail, no bail could be granted to them.

Resort to Sections 42 and 50 of the NDPS Act is taken at the initial stage of investigation and compliance thereof can very well be ascertained from the case diary. So in course of hearing of an application for bail if on scrutiny of the diary, it appears that the procedural safeguards have not been followed, the Court can look to the same for the limited purpose of finding whether there are reasonable grounds to

believe that the accused is not guilty. This finding of the Court, however, cannot be equated with the one which is recorded at the end of the trial to pronounce judgement. It may well be argued that even though non-observance of the Statutory provisions is apparent on the face of the record, yet in course of trial it can supply the omission by

leading oral evidence. This cannot be accepted and on mere assumption of the probable evidence that may be led by the prosecution, accused cannot be refused bail.

59, Nathooni Singh v. State of U.P., 1994 Cri LJ 3 at p. 7 (All); relying upon Narcotics Control Bureau

60. 61. 62.

63.

v. Kishan Lal, AIR 1991 SC 558 : 1991 Cri LJ 654 : (1991) 1 SCC 705 : 1991 SCC (Cri) 265. The decision of the Allahabad High Court in Sewa Ram v. State, 1992 Cri LJ 2929 (All) : 1992 All LJ 942, was held to be per incuriam. Khalid Kasam Shaikh y. State of Maharashtra, 1994 Cri LJ 2165 at p. 2167 (Bom), N.L. Angshung Anal v. State of Manipur, 1994 Cri LJ 2859 at p. 2862 (Gau). Chander Sain v. State of Haryana, 1995 Cri LJ 3160 at pp. 3161-62 (P&H), In re Babulal Shaw, 1995 Cri LJ 3307 at p. 3308 (Cal).

Syn. 72] Relevance of violation of procedural Safeguards in Grant of Bail

1007

Therefore, due to infraction of the requirements of Section 50 of the NDPS Act, the accused is entitled to be released on bail.”

The provisions relating to reducing the information to writing under Section 42(1)

of the NDPS Act are mandatory. Therefore, where in a case under the said Act, the

case diary did not contain any material to indicate that the information received by the Sub-Inspector was taken down in writing, thus showing that the stringent requirement of the mandatory provision under Section 42(1) of the NDPS Act was prima facie not satisfied, it was held that there was reasonable ground for believing that ultimately the accused might not be found guilty of such offence. Moreover, there was no material indicating that the accused was earlier involved in any offence in which case it could have been assumed that he was likely to commit any offence in future if released on bail. Though the accused had allegedly escaped while being intercepted by the police and was apprehended after lapse of about four months or so, from this fact, the Court refused to believe that the accused was likely to commit any offence while on bail, as there was no record of any criminal conduct on the part of the accused on any earlier occasion. Therefore, the accused was released on bail with some stringent conditions. S. 37 of the NDPS Act imposes additional limitations on granting of bail. Limitations are that Public Prosecutor shall be given opportunity to oppose the application and, on opposition, no release shall be ordered unless the Court was satisfied that there were reasonable grounds for believing that the applicant was not guilty of such offence and that he was not likely to commit any offence while on bail. It is at once noticeable that the provision does not speak of satisfaction that there is non-compliance of any mandatory provision like S. 50 or any other Section of the said Act for that matter. To lift the hurdle, one is required to show the existence of reasonable grounds indicative of his guiltlessness. Section 50 does not deal with the question of release on bail but speaks of conditions under which search of persons shall be conducted. This provision is held to be mandatory. The prosecution can lead evidence to show compliance of mandatory provision at proper stage but before that stage S. 50 cannot be invoked to secure bail or discharge from the Court. S. 37 is not intended to be subservient or subterfluent to S. 50 of the Act.

There is no occasion to inter-osculate S. 50 and S. 37 of the NDPS Act and to ignore the mettle of S. 37. The scope of those two provisions, covering different fields, is desultory and does not warrant consideration of compliance or noncompliance of S. 50 of the said Act at pre-trial stage. To illustrate, if its noncompliance can result in entitlement for bail, then compliance should result in disentitlement for bail. Either of these position is foreign to the scope of S. 37 of the said Act. Bail plea has to rest on S. 439 of the Cr.P.C. read with S. 37 of the NDPS Act and not on consideration of non-compliance or compliance of S. 50 of the NDPS Act. Submission on that basis would be premature. | Court considering the application for grant of bail in cases under the NDPS Act at pre-trial stage or during trial before recording of evidence on the point in question, 1s not required to consider whether there had or had not been compliance of S. 50 of the

NDPS Act and the plea of bail is not rejectable or acceptable on that basis. The applicant is thus not entitled to obtain bail on submission of non-compliance of S. 50 64.

Umakanta Patel y. State of Orissa, 1996 Cri LJ 2686 at p. 2688 (Ori) : (1996) 10 OCR 372; relying

upon Rabi Sahoo y. State, (1994) 7 Ori CR 460; Fakir Sundari v. State of Orissa, (1995) 8 Ori CR 320; Narahari Das v. State, (1995) 9 Ori CR 121. ,

65. Balbir Singh v. State of Orissa, 1996 Cri LJ 3068 at pp. 3069-70 (Ori) : (1996) 11 OCR 9. 66. Salim v. State of M.P., 1997 Cri LJ 101 at pp. 103-4 (MP). 67.

Salim vy. State of M.P., 1997 Cri LJ 101 at p. 104 (MP).

Bail under NDPS Act

1008

[Chap. 22

of the NDPS Act. Release on bail before trial holding that mandatory requirement of

S. 50 of the Act had not been complied with would be contrary to S. 37 of the said Act, repugnant to the object and scheme of the Act and thus improper and unjustified. De Tocqueville observed that liberty cannot stand alone and must be paired with a companion virtue such as liberty with morality; liberty with the common good; liberty with civil responsibility; that being so, any person accused of the offence under the NDPS Act, and thus breaker of morality and civil responsibility and unconcerned with the common good, cannot succeed in his bail plea without satisfying the limitations under S. 37 of the Act and recourse to alleged non-compliance of S. 50 of the said Act before evidence on that point at that stage for that purpose is impermissible in law. Where in a case under the NDPS Act, the release of the accused was sought on the ground of the absence of any prima facie case and since the mandatory provisions of Ss. 42 and 50 of the NDPS Act had not been complied with, it was held that keeping in view the embargo imposed under S. 37 of the NDPS Act and the materials on record, the accused could not be released on bail.”°

Non-compliance with provisions of S. 57 of NDPS Act, relating to non-submission of a full report of the particulars of arrest and seizure by the concerned officer to his immediate superior within 48 hours of the arrest and seizure, may affect credibility of evidence of seizure but it would not be a ground to release the applicant on bail. In a case under the NDPS Act, the vital questions whether the prosecution has been able to prove possession of the contraband and whether the accused has “satisfactorily” accounted for such possession as also the question whether mandatory provisions regarding search and seizure including those of Section 50 of the NDPS Act have been complied with, can be more appropriately gone over and decided at the trial and no definite opinion can be expressed at the stage of bail. All that the court is to do at the stage of bail is to satisfy itself that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. The word “grounds” within the meaning of Section 37 of the NDPS Act means “materials” including conclusions of facts deducible from the surrounding circumstances of a given case and the words “not guilty” used in the Section mean “not likely to be held guilty at the trial.” The court has to Satisfy itself,

upon consideration of totality of the facts and circumstances of the case including illegality, if any, in search and seizure, as to the existence of the conditions precedent

to grant of bail. Violation of the mandatory provisions regarding search and seizure, if established at the stage of bail, may be taken into account along with other materials including panchanama etc., the facts and circumstances in which contraband was seized, the time when the search was conducted, the place where the contraband was

seized and other circumstances, as constituting grounds for belief whether the accused is guilty of the offence and whether he is likely to commit any offence while on bail

as visualised in sub-clause (ii) of clause (b) of S. 37(1) of the NDPS Act.”

Section 52-A of the NDPS Act postulates disposal of seized Narcotic Drugs and Psychotropic Substances and lays down the procedure therefor. Non-compliance, if any, of Section 52-A of the Act, would not render the search and seizure illegal, nor 68. Salim v. State of M.P., 1997 Cri LJ 101 at pp. 104-5 (MP). 69. Salim vy. State of M.P., 1997 Cri LJ 101 at p. 105 (MP). 70. Prasanjeet Basu Mallick v. State of Orissa, 1997 Cri LJ 902 at p. 904 (Ori), 71. 72.

Zakir Husain v. State of U.P., 1997 Cri LJ 4102 at p. 4104 (All). Zakir Husain v. State of U.P., 1997 Cri LJ 4102 at pp. 4107-8 (All).

Syn. 74]

Maximum Police Custody of 15 Days under NDPS Act

1009

will it degenerate the recovery of contraband into one being inadmissible in evidence. That apart, non-compliance, if any, of Section 52-A of the said Act would not render effective (sic. ineffective?) the embargo on the Court's powers to grant bail.”” In a case under the NDPS Act, a plea was raised by the accused that they were not informed about their right to get their persons searched by Magistrate which was an imperative requirement of law under S. 42 of the Act. It was held that such a plea was

to be considered at the stage of trial and that it could not be ground for bail.”

Where in a case under NDPS Act, bail was granted for non-compliance with Ss. 42 and 50 of the Act, it was held to be in contravention of provisions of S. 37(1)(b) of

the Act and moreover it was held that it was a case of chance recovery and so Ss. 50 and 42 of the said Act were not attracted. Terming the order granting bail as being arbitrary and result of wrong appreciation of facts and law and wrong exercise of discretion, the said order was set aside. The question whether the provision of Section 50 of the NDPS Act was or was not complied with could be raised by the petitioner before the trial Court after the evidence has been recorded. Such contention raised in the bail petition by the ‘petitioner is premature.

73. VIEWS ON CONTENTIONS TO BE AVOIDED EXCEPT IN CASES UNDER S. 37 It is a salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentions raised except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic

Substances Act, 1985.”

74. MAXIMUM POLICE CUSTODY OF 15 DAYS UNDER NDPS ACT The words “fifteen days in the whole” or “seven days in the whole” occurring in S. 36A(1)(b) of the NDPS Act would tantamount to a period of “fifteen (seven) days at a

time” but subject to the condition that if the accused is to be remanded to police custody, the remand should be for such period as is commensurate with the requirements of a case with provision for further extensions for restricted periods, if need be, but in no case should the total period of remand to police custody exceed fifteen days. Where an accused is placed in police custody for the maximum period of fifteen days allowed under law either pursuant to a single order of remand or to more than one order when the remand is restricted on each occasion to a lesser number of days, further detention of the accused, if warranted has to be necessarily to judicial custody and not otherwise. The legislature while providing that an accused shall be placed under police custody under orders of remand for effective investigation of cases has not been oblivious of the fact that interests of the accused are also to be protected and he is not being placed under police custody beyond a total period of fifteen days under any circumstances, irrespective of the gravity of the offence or the

73. Devendra Kumar Misra y. State of U.P., 1998 Cri LJ 2348 at p. 2350 (All).

74. K.P. Sadath v. State of Karnataka, 2002 Cri LJ 101 at p. 102 (Kant),

75. State of H.P. v. Munshi Ram, 2003 Cri LJ 1946 at p. 1950 (HP). 76. Chander Mohan Sharma vy. NCB, Delhi Zone Unit, 2004 Cri LJ 4894 at p. 4896 (Del). 746 : (2000) 1 SCC 77, Kanti Bhadra Shah v. State of W.B., AIR 2000 SC 522 at p. 525 ; 2000 Cri LJ 722 : 2000 SCC (Cri) 303.

[Chap. 22

Bail under NDPS Act

1010

serious nature of the case. Therefore, by implication the Magistrate can direct judicial custody beyond a period of fifteen days.

75. INABSENCE OF SPECIAL COURT, MAGISTRATE HAS POWER TO REMAND DURING INVESTIGATION A plain reading of Section 36-A(1) (b) and (c) of the NDPS Act makes it clear that if Special Courts are constituted in any State, such an accused or suspected person is to be produced before a Magistrate for remand and such Magistrate is empowered to

grant remand upto 15/7 days, as the case may be, but if he considers his further remand necessary then he is empowered to grant further remand, but if he considers his further remand unnecessary such person is to he forwarded to the Special Courts. Though in Section 36-A(1)(b) of the NDPS Act words “from time to time” are not incorporated as they are used in Section 167(2) of the Cr.P.C., but by giving a harmonious construction to Section 36-A(1)(b) of the said Act these words can be read to have been intended there, because under Section 167(2) of the Cr.P.C. the

Magistrate is empowered to grant remand from time to time as he thinks fit for a term not exceeding 15 days in the whole till he considers that he has no jurisdiction to try the case or commit it to trial and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction. Under Section 36-A(1)(b) of the said Act also if after giving remand of 15/7 days in the whole the Magistrate considers his further detention unnecessary, he may forward the accused to the Special Court. Thereafter, the Special Court may exercise power under Section 167(2) of the Code and take cognizance of the case without it being committed to it. Hence in the absence of the constitution of Special Court, the Magistrate is empowered to grant remand to such persons under Section 167(2) of the Cr.P.C.

read with Section

36-A(1)(b)

of the NDPS

Act till the investigation

is

completed and the case is committed to the Court of Session. ;

Under Section 36-A(1)(b) of the NDPS Act, the Magistrate is authorised to grant remand for a period not exceeding 15/7 days. Therefore if Special Courts are constituted, further remands are to be granted by the Special Courts and as per clause (d) of sub-section (1) of Section 36-A of the NDPS Act when Special Courts are constituted

and police report is submitted

before the Special Courts, that Special

Court is empowered to take cognizance of that offence without the accused being committed to it for trial. A conjoint reading of Section 36-A(1)(c) and (d) of the NDPS Act would make it clear that till Special Courts are constituted, after the initial remand of 15 days by a Magistrate under Section 36-A(1)(b) of the Act, further remand is to be granted by the Magistrate only because there is no other provision in the NDPS Act providing for further remand to be granted by any other Court except the Magistrate till Special Courts are Constituted. On that premise, it cannot be said

that when further remand is granted by the Magistrate, detention of the accused becomes illegal or on that count he is entitled to bail.*°

76. MAGISTRATE CANNOT REMAND ACCUSED FOR MORE THAN 15 DAYS The Judicial Magistrate cannot authorise detention of an accused under the NDPS Act for a period of more than 15 days in the whole. Therefore, in the instant case, it 78. As per majority view in Banka Das vy. State of Orissa, 1993 Cri LJ 442 at pp. 451, 454 (Ori) (FB) : (1992) 2 OLR 395.

1996 Cri LJ 1185 at pp. 1189-90 (P&H) (FB) : 1996 (1) Recent

79,

Janta Singh v. State of Punjab,

80.

Harbans Singh v. State of Punjab, 1999 Cri LJ 3071 at pp. 3076-77 (P&H).

Criminal Reports 1.

Syn. 79]

Refusal of Bail even on Humanitarian Grounds

1011

was held that the remand of the accused to judicial custody beyond 15 days ordered

by the Judicial Magistrate was unauthorised and illegal. However, the charge-sheet had already been filed within 90 days before the Additional Sessions Judge, who was

competent to try this case, keeping in view the transitional provisions enumerated in Section 36-D of the NDPS Act, because no Special Court was constituted for the concerned District. Therefore, even though the prior detention of the accused was unauthorised and illegal, it was held that he was not entitled to bail on the ground that the Additional Sessions Judge had already taken cognizance, framed charges against him and had also remanded him to judicial custody during trial.

77. NO NEED TO LOOK AFRESH TO CONTINUE BAIL WHILE . TAKING COGNIZANCE Even at the pre-charge sheet or pre-complaint stage, the Court to which an application for bail is made and which grants bail, acts upon the material available. In cases under the NDPS Act, 1985, especially those to which the disabling provisions of S. 37 of the Act apply, the Court takes the caution to hear both the parties and take into consideration all the relevant factors before granting bail. This being the position, _ it would be difficult to agree with the statement that an order of bail passed before the filing of the complaint exhausts itself once a complaint is filed, at which stage the Court taking cognizance can apply itself afresh to whether the person accused should be allowed to continue at liberty or be taken into custody. This is of course not to say that in appropriate cases, the prosecution cannot apply for cancellation of bail. Such a ya "ispecifically vested in the High Court or the Court of Session under S. 439(2) of Cr.P.C. Where in a case under NDPS Act, bail had been granted by the Special Court at the pre-complaint stage and had been confirmed by the High Court, it was held that after filing of the complaint the successor Judge in the Special Court had no jurisdiction to set aside either of the said earlier orders. Accordingly, it was directed that the petitioner shall continue to be on bail unless the said _bail was cancelled upon a properly moved application before an appropriate Court.

78. S.37 OF NDPS ACT-OVERRIDING EFFECT OVER S. 497 OF J&K CR.P.C. Provision of S. 37 of NDPS Act has an overriding effect over provisions of S. 497, J&K Cr.P.C.; therefore, proviso to S. 497 thereof cannot be invoked for any concession or relaxation in an offence under the NDPS Act. Provision of S; 37 of NDPS Act relating to bail is applicable to all offenders irrespective of gender.

79. REFUSAL OF BAIL EVEN ON HUMANITARIAN GROUNDS Section 37 of the NDPS Act envisages that the accused can be released on bail only on fulfilment of condition mentioned in the section. This Section expressly says that the provisions regarding grant of bail contained in Code of Criminal Procedure stand

superseded by the provisions contained in this Section. Therefore, in the instant case, 81. 82.

83.

Gurubachan Singh v. State of Rajasthan, 1994 Cri LJ 836 at pp. 837-38 (Raj).

Rajendra Jainarayan Sharma v. R.P. Patankar, Asstt. Collector of Customs, 1993 Cri LJ ‘

- p.

1555 (Bom). The decision of Bombay High Court in Assistant Collector of Customs ade adam Ayabo Atenda Ciadipo Orisan, 1992 Cri LJ 2349 (Bom) : 1992 (1) Bom Cas R 383, aa a

High Court in the case of Seoti v. followed in view of the decision of a Full Bench of the Allahabad Rex, AIR 1948 All 366 (FB) : (1948) 49 Cri LJ 521 : 1948 All LJ 147, LJ 1550 at pp. Asstt. Collector of Customs, 1993 Cri Rajendra Jainarayan Sharma y. R.P. Patankar,

1556-57 (Bom).

84. Harbans Kour vy. State, 1994 Cri LJ 328 at pp. 329-30 (J&K).

1012

Bail under NDPS Act

[Chap. 22

where the accused in a case under the NDPS Act had sought bail on humanitarian grounds as his father was to undergo angiography test for heart ailment, it was held that it was not permissible to grant bail on this ground. It was further held the said ground was not available to the accused because his two brothers could have looked after his father.”

80. QUESTION OF BAIL ON MEDICAL GROUNDS IN NDPS ACT CASE Bail cannot be granted in a case under the NDPS Act on any other ground in view of the limitations on granting bail specified in Clause (b) of sub-section (1) of Section 37 of the NDPS Act. The Court has no power to grant bail on the ground of illness or hospitalisation of the spouse or on any similar ground. In the instant case, the accused had made an application for interim bail for two months to stay with his wife in the hospital who was to undergo a surgery. He was facing trial for offences under Ss. 21/61/85 of the NDPS Act which were punishable for a term of imprisonment of five years or more. The High Court had already rejected his applica-tion for regular bail holding that the High Court was not satisfied that there were reasonable grounds for believing that he was not guilty of the alleged offences and that he was not likely to commit any offence while on bail. In these circumstan-ces, his application for interim bail was also rejected. In Syed Abdul Ala v. Narcotic Control Bureau,’ the accused sought bail, in a case under the NDPS Act, on medical grounds and the Karnataka High Court considered the case of the accused de-hors the prima facie material of guilt placed by the prosecution. The medical reports were produced. The accused was suffering from serious heart ailment and there was 90% blockage of his arteries and immediate bypass surgery was advised. Even after by-pass surgery, the post-operative care and treatment was necessary. A patient undergoing by-pass surgery cannot have brisk and risky movements. In that view, the accused at the time of operation and after the operation for substantial time had to remain docile. It might not be probable that the accused would make any drastic physical efforts to abscond hazarding his life. On such humanitarian considerations, the powers of High Court under S. 439 of Cr.P.C., to grant bail are not eroded or affected by the provisions of S. 37 of NDPS Act. In view of these reasons, the High Court granted limited bail to the accused for a period of 3 months subject to certain conditions.

81. BENEFIT OF BEING WOMAN, SICK, INFIRM, ETC., NOT AVAILABLE It is significant that the non-obstante clause in S. 37(1) of the NDPS Act is followed by words which contain absolute prohibition in granting bail except in contingencies specified in the sub-section. It means that the benefits provided in the Code shall stand at bay while considering the plea of bail for a person involved in an offence mentioned in the section. Sub-section (2) of S. 37 of the NDPS Act makes the

position further clear that “the limitations on granting of bail” specified in sub-section (1) are in addition to “the limitations” under the Cr.P.C. If sub-section (2) had been framed with the words “the benefits” instead of the word “limitations” the position would have been different and considerations enumerated in the provisos to S. 437 of the Cr.P.C. could have been supplemented with any consideration which S. 37 of the NDPS Act would have contained. Therefore, a person involved in any offence envisaged in S. 37(1) of the NDPS Act is not entitled to the considerations in the 85. State of Maharashtra v. Vinod Sabaji Loke, 1996 Cri LJ 805 at pp. 807-8 (Bom). 86. Islamuddin y. State of Dethi, 2000 Cri LJ 108 at p. 110 (Del). 87.

2003 Cri LJ 999 at pp. 1000-1 (Kant).

Syn. 83]

Bail to Juvenile under NDPS Act-Illustrative Cases

1013

provisos to S. 437 of the Cr.P.C. In the instant case, a woman was found in possession of 1.325 kg of dried ganja. As the court was not satisfied that there were reasonable grounds for believing that she was not guilty of such offence, it was held that the court was prevented, by law, from releasing her on bail. Thus, she was not

given the benefit of the proviso to S. 437(1) of Cr.P.C. of being a woman. 82. APPLICABILITY OF S. 37 TO A JUVENILE UNDER JUVENILE JUSTICE ACT

The provision contained in S. 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (NDPS Act) (as amended in 1989) would override the earlier general

provision of S. 18 of the Juvenile Justice Act, 1986, and consequently, a juvenile delinquent being accused of commission of an offence under the NDPS Act cannot be released on bail unless the pre-conditions contained in S. 37 of the NDPS Act are complied with. In fact, even under S. 18 of the Juvenile Justice Act, an accused shall not be released on bail if there appeared reasonable grounds for believing that the release is likely to bring him into association with any known criminals or expose him to moral danger or that his release would defeat the ends of justice. It is to be noted that release of an accused involved in commission of an offence under the NDPS Act would defeat the ends of justice and the drug traffickers would pursue their objective of drug trafficking through such juvenile delinquents. No doubt, S. 18 of the Juvenile Justice Act, 1986, made a general provision with regard to the right of a juvenile delinquent to be released on bail irrespective of the offence committed by him, but the NDPS Act is a special provision and in that special statute a further special provision has been made with regard to the pre-conditions to be satisfied for an accused being released on bail. Therefore, the said special

provision of the special statute, namely S. 37 of the NDPS Act, would override S. 18 of the Juvenile Justice Act and, therefore, even in case of a juvenile delinquent involved in commission of an offence under the said Act, no bail can be granted until and unless the provisions of S. 37 of the NDPS Act are complied with. No doubt, the NDPS Act was enacted earlier in point of time than the Juvenile Justice Act, but the special provision in relation to the bail by way of insertion of S. 37 in the NDPS Act came on the statute book by Act 2 of 1989 and the Statement of Objects and Reasons of the said amendment indicates that the Parliament thought it appropriate to make stringent provision in respect of an accused being released on bail to meet the challenge arising from drug trafficking.

A juvenile has also to satisfy the conditions precedent as provided under Section 37 of the NDPS Act for being entitled to bail.

83. BAIL TO JUVENILE UNDER NDPS ACT-ILLUSTRATIVE CASES In a case under Ss. 8/15 of the NDPS Act, the accused claimed that he was a juvenile or child. It was held that since as per the School Certificate, the accused appeared to be below the age of 18 years, therefore, before passing order, the Special Judge should have first determined the age of the accused by holding enquiry and

after determining his age, the Special Judge should have decided the application of

the accused for bail. Accordingly, the impugned order was set aside and the Special Judge was directed to first determine the age of accused by holding enquiry and after 88. 89. 90. 91.

Omana vy. State of Kerala, 19$4 Cri LJ 686 at pp. 687-88 (Ker).

Antaryami Patra v. State of Orissa, 1993 Cri LJ 1908 at pp. 1913-14 (Ori). . | Antaryami Patra v. State of Orissa, 1993 Cri LJ 1908 at pp. 1913-14 (Ori). mi Anfarya upon relying (MP); 1921-22 pp. at 1918 LJ Cri 2000 M.P., of State Sanjay Kumar Giri v.

Patra v. State of Orissa, 1993 Cri LJ 1908 (Ori).

1014

Bail under NDPS Act

[Chap. 22

determining his age, if the Special judge came to the conclusion that the accused petitioner was below the age of 18 years, then he was directed to proceed under the appropriate provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. It was also clarified that even if the accused was found below the age of 18 years and the Special Judge was of the opinion that in the facts and circumstances of the case, accused was not entitled to bail, even then, he would be dealt with under the provisions of said Juvenile Justice Act.

84. BAIL IN NDPS ACT CASE ON SMALL QUANTITY OF BOND NOT PROPER In a case under S. 18 of the NDPS Act, 1985, it was held that the grant of bail by the Sessions Court on small quantity of bond was not proper because for the offence of possession of opium under S. 18 of the said Act heavy monetary penalties amounting to Rs. one lakh or even more were compulsorily imposable in the event of conviction. The prospect of such imposition was likely for the accused to tum a fugitive from justice. Therefore, heavy bonds in such cases were a compulsive necessity. However, in the instant case, the High Court did not make any alteration in the bond accepted by the Sessions Court.

In a case under S. 18 of the NDPS Act, 1985, for possession of opium, it was held that in view of the seriousness of the offence which the Legislature had viewed by the enactment of NDPS Act, the matter of bail could not be treated casually or the offenders could not be released on bail on small amount of bonds. It was also observed that it was imperative that such cases be dealt with expeditiously as otherwise it would tend to put the offenders unnecessarily in jail for long periods of incarceration. In the instant case, the High Court instead of releasing the accused on bail, directed the Magistrate to forthwith commit the case to the Sessions Court and also directed trial of the accused to conclude within the period specified, failing which the Court of Session was directed to release the accused on bail on a heavy bond as found suitable by that Court.”

85. BAIL WHERE DISPUTE EXISTS ABOUT PRESENCE OF NARCOTIC SUBSTANCE In a case, the accused charged under the NDPS Act was released on bail by the High

Court on the ground that in the laboratory test it was found that the sample did not

contain a narcotic or psychotropic substance. However, this fact was contested as being incorrect by the Narcotic Control Bureau which contended that the sample in fact

contained the presence of narcotic and psychotropic substance and that the release of the accused on bail in the face of Section 37 of the said Act was illegal. In these circumstances, the Supreme Court held that the High Court should not have released the accused on bail on the ground that the sample did not contain presence of narcotic and psychotropic substance. It was also held that the fact that he had been in custody for a period of six months was also not a valid reason to release him on bail in a crime of the said nature. The Supreme Court accordingly set aside the said order of the High Court.”° 86. BAIL UNDER NDPS ACT-ILLUSTRATIVE CASES

The offences under the NDPS Act are very serious and grave and the people indulging in such offences are really causing havoc to the health of the inhabitants of 92.

Manoharlal y, State of Rajasthan, 2002 Cri LJ 394 at p. 395 (Raj).

93. Shamsher Singh v. State of Punjab, 1987 Cri LJ 1238 at p. 1239 (P&H) : (1987) 1 Rec Cri R 53. 94. Fauji Ram v. State of Haryana, 1988 Cri LJ 297 at p. 298 (P&H) : 1986 EFR 597.

95.

Narcotic Control Bureau v. Raju, (2006) 9 SCC 712 at pp. 712-13 : (2006) 3 SCC (Cri) 372.

Syn. 86]

Bail under NDPS Act-Illustrative Cases

1015

this world. The Legislature has thought fit to prescribe very deterrent punishment for such offences. The offences which have such deleterious effects on the health of the people. are always to be dealt with a heavy hand and a person found committing such offences normally does not deserve to be released on bail. In the instant case, the contention that one kilogram of opium was not a very big quantity and thus the

petitioner should be allowed bail was rejected. Moreover, it was further held that the

mere fact that the petitioner had been granted interim bail did not mean that he was entitled to have regular bail on merits on the ground that he had surrendered to the Court after enjoying the interim bail. The bail application was rejected.’ Where in a case under NDPS Act, the applicant was alleged to have been found in possession of about 10 kg of opium, the percentage of opium being more than 0.2% in the same, it was held that the applicant did not deserve to be released on bail on merits.

In another case under the NDPS Act, the applicants for bail were Indian nationals. The narcotics were not found in the possession of the applicants, but they were sought to be connected with these drugs circumstantially through their confessions. There was nothing on the record to connect the applicants with the specific drugs seized in ‘this case. It was held that these circumstances together with the probability that the confessional statements by the applicants were secured by physical assault did not inspire confidence in the prosecution's version. There was no allegation that the applicants were likely to abscond. The question of tampering with evidence did not arise. It was held that for these reasons, the continued detention of the applicants appeared to be punitive and that it would not be proper to deny bail to the applicants.

No doubt, trafficking in narcotics is a grave crime and demands a stern approach. But the Court cannot shut its eyes to the quality of “evidence”, the assault inflicted and illegal detention of the suspects. In the instant case, the only “evidence” in the possession of the prosecution was the statements of the accused. There were telling circumstances arising from the admitted facts which destroyed the effect of the “evidence”. Even if these statements were admissible, they were worthy of rejection because they were procured by illegal detention of the accused for as long as four days without authority of the Court and because they were procured by assaulting them with hard and blunt objects. Accordingly, the accused in the instant case were

granted bail.

Where the accused persons were involved in a case under the NDPS Act, in view of large quantity of opium recovered from them, bail was declined to them.’ Where ina

case under the NDPS Act relating to seizure of ganja (hemp) from the house of the accused, no case had been made out by prosecution to show that they were in

exclusive possession of ganja, and the accused gave assurance that they would not tamper with prosecution evidence and would not commit any offences, in such — circumstances they were released on bail.

Satish Kumar y. State, 1989 Cri LJ 1559 at p. 1560 (Del) : 1989 (2) Crimes 109.

Surajmal Kanaiyalal Soni v. State of Gujarat, 1989 Cri LJ 1678 at p. 1682 (Gu)). 1.1903 at p. Prajesh Shantilal Vaghani v. Intelligence Officer, Narcotics Control Bureau, 1990 Cr! LJ 906 (Bom). 87 (Bom)

at pp. 385. Aravind Mehram Patel y. Intelligence Officer, NCB, Bombay, 1991 Cri LJ 382

. Rashid v. State of Rajasthan, 1991 Cri LJ 733 at p. 736 (Raj).

. Shankar Krishnasa Habib y. State of Karnataka, 1992 Cri LJ 205 at pp. 213-14 (Kanv). wo Aa

Om).

1016

Bail under NDPS Act

[Chap. 22

Mere presence of a seizure memo showing seizure of ganja under the NDPS Act is not sufficient for denying bail to accused persons in view of fact that none of accused was owner of or in exclusive possession of house from where ganja was seized.

Where on account of inordinate delay in the disposal of a case under the NDPS Act, it was contended that the petitioners were entitled to be released on bail immediately, rejecting the contention, it was held that there was no doubt that liberty of a citizen must be safeguarded by Court. However, where application of bail on merit of an accused facing trial for a very serious offence has already been dismissed, he cannot be ordered to be released just because of his right of liberty and the Court has to keep in mind the collective interest of the community so that people do not lose faith in the institution and indulge in private retribution. It was further pointed out that the accused persons were facing trial for a serious offence dealing with narcotic drugs which is proving to be very harmful to health of all. |

In a case under the NDPS Act wherein an application for cancellation of bail already granted, but yet not availed of, was under consideration, it was strongly contended that the accused was a young woman, that she had been in custody for well over four years, that she was a foreign national, and also that the conditions in the jail were so difficult that her health was in a precarious condition. It was held that these factors, undoubtedly, did require some consideration, but the legal difficulty was that they were not factors which could override the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act. Therefore, the order granting bail to her was set aside. However, on the special facts of the instant case, particularly since it pertained to a 4-year old incident, the High Court directed the trial court to take up the matter for hearing at the very earliest and to dispose of the same, in any event, within an outer limit of 3 (three) months.

Where there was no reasonable ground to show that the accused was not guilty of an offence under S. 17 of the NDPS Act and that he was not likely to commit such offence while on bail, the application for bail under S. 439, Cr.P.C., was rejected by

the High Court.'°

In a case, the delinquent was charged for an offence punishable under Section 20(b)(i) of the NDPS Act for the allegation of possession of 1.5 kg of Ganja. In the facts and circumstances of the case, it appeared that there was violation of the

provisions of Ss. 42 and 50 of the NDPS Act during search and seizure. Moreover,

the averments of the delinquent that he was honest, had no previous bad antecedent

and had committed no offence, were not rebutted by the prosecution by letting in any

material. Accordingly, it was held that the delinquent satisfied the restrictions me under S. 37 of the NDPS Act and was therefore entitled to be released on ail.

In another case of offences under the NDPS Act, some accused persons from whom large quantity of ganja or opium was seized, bail was refused on grounds of large quantity of the material seized and attending circumstances. However, some women accused from whom small quantity of ganja or charas was seized, bail was granted on the grounds of failure to conduct search by woman police officer as required under S.

: Kamalabai v. State of Karnataka, 1992 Cri LJ 561 at pp. 562-63 (Kant). . Anil Kumar Gandhi ,N.C.B., 1992 Cri LJ 1703 at p. 1707 (Del), . Assistant Collector of Customs (P) v. Madam Ayabo Atenda Ciadipo Orisan, 1992 Cri

2355 (Bom) : 1992 (1) Bom Cas R 383.

ahve

» Ram Sarup v. State of Haryana, 1993 Cri LJ 2567 at p. 2570 (P&H),

. Sundaresan y. State, 1993 Cri LJ 3342 at pp. 3363-64 (Mad).

~! oo © =

—

Sa

1 ee

Syn. 86]

Bail under NDPS Act-Illustrative Cases

1017

50(4) of the NDPS Act. Another accused from whose car large quantity of ganja was seized three days after the car was detained in the police station, bail was granted.’ In Siyad K. U. v. State of Kerala,’ the petitioner along with other accused was

found to be in possession of 3200 ampules of Norphine and 60 ampules of Ophenorgon and was arrested under the NDPS Acct. It was held that the preparation seized as a whole was neither commercial quantity nor small quantity under item 239 read with item 169 but was an intermediary quantity and that the offence if proved would fall only under S. 22(b) of the said Act. Further, the other accused had been released on bail by the Special Court. Considering the material on record and the fact that the petitioner had remained in custody for 110 days, bail was granted to him subject to certain conditions.

Where the accused was involved in a case under the NDPS Act for the recovery of 20 gm charas from him and it could not be said at that stage that there were reasonable grounds to believe that he was not guilty of the offence, grant of bail was refused. In a case under the NDPS Act, more than 60,000 tablets of a psychotropic substance were allegedly recovered from the premises of the accused. He himself had confessed that he dealt in narcotic substances in the past. In view of the fact that the offence committed was grave and had serious effect on the health of people, that there were no reasonable grounds for believing that he was not guilty of the offence under the NDPS Act, and also that the court was not satisfied that he was not likely to commit any offence under the said Act while he was on bail, it was held that he was not entitled to bail. In another case under the NDPS Act, the bail applications came up to the High Court at a pre-trial stage and before the charge had been framed by the trial Court. It was held that no doubt the prosecution had put the accused up for trial on a joint complaint or a charge-sheet, but one could not overlook the fact that it was still permissible for the trial Court to direct, if the law so required, that this should be split up. Therefore it would be premature at that stage to assume that merely because the accused had been committed to the Court of Session in one lot that the charge, which was yet to be framed, would be vitiated, that an acquittal must follow and if that was the case that bail ought to be granted. Where in a case under the NDPS Act, there was absolutely no delay in sending the property to Court in the case, no materials had been placed for the Court to be satisfied that there were reasonable grounds for believing that the accused were not guilty of the offences alleged against them and they were not likely to commit any offence while on bail, the requirements of Section 37(1)(b)(ii) of the said Act were not complied with, accordingly bail was declined to the accused.

In a case under the NDPS Act for possession of one litre of acetic anhydride, there was no evidence to establish that the accused supplied it to the co-accused for preparation of brown

sugar. It was held that, in such circumstances, there did not

12. Nathooni Singh v. State of U.P., 1994 Cri LJ 3 at pp. 7-8 (All). 13. 2006 Cri LJ 671 at p. 674 (Ker). 14. Surinder Singh v. State (Delhi Administration), 1994 Cri LJ 290 at p. 291 (Del).

15. Bal Mukund Jaiswal y. Bharat Sangh Dwara Aasuchana Adhikari Narcotic Control Bureau, . Cri LJ 818 at pp. 824-25 (All). LJ 2165 at pp. 2166-67 (Bom). Cri 1994 Maharashtra, of 16. Khalid Kasam Shaikh y. State 17. Arul v. Inspector of Police, 1995 Cri LJ 732 at pp. 734-35 (Mad).

1904

1018

Bail under NDPS Act

[Chap. 22

appear to be an offence punishable under the said Act, and therefore, the accused was entitled to be released on bail.’®

Where in a case under the NDPS Act, the accused was charged of illegal possession

of Ganja, the search had been conducted by a police constable who was not an authorised officer, accordingly it was held that due to non-compliance of the mandatory provisions of Ss. 42, 50 of the NDPS Act, the accused was entitled to be released on bail. Where the charge sheet had already been filed, the accused cannot claim that he be released on bail under Section 167(2) Cr.P.C., his right under that section not being

enforceable at such stage. Even otherwise, in the instant case, the accused could not Satish the Court as to how under Section 37 of the NDPS Act, he was entitled to ail. In a case under the NDPS Act, contentions were raised about sample packets to the Chemical Analyser, about some discrepancy of sample, etc. It was held that these were matters which could not bail stage, and that it was well settled that a Court could not conduct time of considering a bail application.”

delay in sending regarding weight be decided at the a mini trial at the

Where in a case under the NDPS Act, ten litres of acetic anhydride was recovered from the possession of the accused which is used for the manufacture of brown sugar, it was held that at such stage, from the evidence available on record, it could not be said that there were no reasonable grounds for believing that the accused was not guilty of the offences under the NDPS Act. Accordingly, grant of bail was refused.” In a case under NDPS Act, it was contended that the accused was not produced before the Magistrate within 24 hours as required by Section 57 of the Cr.P.C. However, it was held that the accused was questioned on the early morning hours on a particular day to find out whether he had any contraband articles; then on that day he was questioned and his statement had been recorded; it was only on the morming of the next day that he was formally arrested and within 24 hours he was produced before the Magistrate; hence, prima facie, there was no illegality in the custody of the accused. In another case cultivating cannabis the accused sowing, the cannabis plants

under the NDPS Act, the accused plant. None of the witnesses cited in weeding, watering and giving care and in question. It was held that unless

was charge-sheeted for the charge-sheet had seen attention for protection of the guilt of accused by

consciously cultivating cannabis plants in question was prima facie shown or proved by attributing some overt act to him by prosecution agency at the stage of granting bail, it would be presumed that the alleged cannabis plants were of small growth and these unwanted self-grown cannabis plants were growing in the field of 'Mirch' unnoticed by him. Moreover, the Chemical report also did not support that the growth was of ganja. In such circumstances, the accused was released on bail.

18.

Bheru Lal v. State of Rajasthan, 1996 Cri LJ 845 at p. 846 (Raj).

20.

Dara Singh v. ey

19. Chhotu v. State of Maharashtra, 1995 Cri LJ 875 at p. 881 (Bom) : 1995 (1) Mah LJ 228.

21. 22. 23.

cana, 1996 Cri LJ 1430 at pp. 1430-31 (P&H),

Gharban Ali v. Intelligence Officer, Air Intelligence Unit, NIPT, 1996 Cri LJ 2420 at p. 2422 (B Himmat Singh vy. State of Rajasthan, 1995 Cri LJ 2967 at p. 2969 (Raj). ae oR. Gharban Ali v. een Officer, Air Intelligence Unit, NIPT, 1996 Cri LJ 2420 at pp. 2422-23 (Bom); relying upon Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775 : 1994 Cri

eee LJ 2269 : (1994) 3 SCC 440 : 1994 SCC (Cri) 785. 24. Manjee v. State of Rajasthan, 1996 Cri LJ 3787 at pp. 3789-90 (Raj) : 1996 (2) Rec CriR (Cri) 258.

Syn. 86]

Bail under NDPS Act-Illustrative Cases

1019

In a case under the NDPS Act, when the investigating agency visited the house of the applicant woman, her husband ran away and she was found and when she was

apprehended, narcotic drug was seized from that house. The house from where the

seizure made was found to be owned by father-in-law of the applicant. The said seizure was not made at the instance of the applicant. In such circumstances, it was held that there were reasonable grounds to believe that the applicant was not guilty of the offence, and accordingly she was to be released on bail.”

It was contended in a case under the NDPS Act that the only material against the accused was a confessional statement of a co-accused. It was held that a confessional Statement of a co-accused, though admissible under S. 30 of the Evidence Act, cannot be considered as substantive material at the stage of consideration of application for bail. However, in the instant case, there was the statement of another person recorded during investigation which implicated the accused, though the name of this person had not been apparently shown as a witness in the case and he had apparently filed an affidavit retracting his said earlier statement. Refusing to hazard a guess as to whether the prosecution was likely to examine the said person as a witness and as to what would be the effect of his subsequent affidavit if he was, in fact, examined as a ‘witness, the Orissa High Court held that there was no reasonable ground for believing that accused was_not guilty of the alleged offence due to which the application for bail was rejected. The accused was in custody for more than four years in a case under the NDPS Act. He was a young man and as per the prosecution case he had become a drug-addict. It observed that it was reasonable to assume that during this period of more than four years in jail, he must have kicked his bad habit. He was the sole bread earner of his family. In this case, though the charge sheet had not been filed within the stipulated period, the accused could not avail of the said right, possibly because there was a lot of doubt regarding the applicability of the provision of Proviso to S. 167(2), Cr.P.C. to the accused persons alleged to have committed offences under the NDPS Act. Subsequently, the accused could not avail of this right due to a subsequent decision of

the Supreme Court. On the other hand, his co-accused person had been released on bail by applying the Proviso to S. 167(2), Cr.P.C. obviously because he had availed of the opportunity and filed the application at the proper time. In the peculiar circumstances of the case, the High Court released the accused on bail. In a case under the NDPS Act, non-compliance with the provisions of S. 42(1) of

the Act was alleged. The information in question on the basis of which the raid was conducted was revealed by another accused person after 8 p.m. from whose

possession 7 kg of charas was recovered and who informed the police that he had

purchased the said charas from the applicant. Accordingly, raid was organised during the same night by police and the I.O. could not obtain search warrant or authorisation as required by law as he had no time to do so and there was a possibility of the applicant escaping or concealing the drug at a safe place. This fact, though recorded in the memorandum was stated to have been told to the independent witnesses prior to the police party starting for the raid. Copy of the complaint was sent to Magistrate and superior officer. There was no possibility of manipulation or planting of contraband. In such circumstances, it was held that the applicant was prima facie guilty of the offence and his bail application was rejected accordingly.

25. Jintabi v. State, \996 Cri LJ 4305 at pp. 4307-8 (MP). 26. 27.

28.

©

N. Nageswar Rao v. Union of India, 1997 Cri LJ 6 at p. 8 (Ori).

Prasanjeet Basu Mallick v. State of Orissa, 1997 Cri LJ 902 at p. 904 (Ori).

Badlu Maurya y. State of Goa, 1997 Cri LJ 1250 at pp. 1253-54 (Bom).

1020

Bail under NDPS Act

[Chap. 22

In a case, while investigating the offences under Ss. 279 and 337 of IPC, a Head Constable found that the accused was lying in a car in injured condition and was possessed of 18 kg of Ganja. In such a situation, it could not be expected of him that he would leave the accused and the contraband article and would go empowered officer under the NDPS Act and take him to the spot for investigation. In the instant case, the manner in which contraband was seized show that it was in furtherance of the investigation, as the contraband was

to the further did not already

found when the officer was investigating some other offence and, therefore, he seized it and made panchanama. Therefore, it could not be said that he committed breach of Section 42 of the NDPS Act. Accordingly, the application for bail was rejected. Where the recovery of narcotic drugs was made in pursuance of a search conducted in the presence of a Dy.S.P. with the consent of the accused, it was held that in such cases where the recovery of narcotic drugs itself constituted an offence if the accused was not in a position to produce any licence or permit, the accused would not be entitled to bail even assuming that recovery was not effected as desired by accused and that it would be too early to say whether any prejudice had been caused to the accused if the investigation had not been conducted in the manner as desired by him. In a case, the applicants were toddy contractors and their employees had been charged for offences under the Abkari Act and the NDPS Act. The FIR did not contain an offence under the NDPS Act and also there was no recovery of any psychotropic substances. The certificate of the Chemical Examiner was suspicious and not reliable and it did not mention ingredients of the sample. In such circumstances, it was held that no reasonable ground existed for believing that the applicants were guilty of offence under S. 22 of the NDPS Act. Moreover, the possibility of repetition of the offence was not there in view of cancellation of their licence for running the toddy shop. In such circumstances, it was held that the applicants were entitled to the grant of bail. Where in a case under the NDPS Act, in connection with the recovery of powdered opium poppy from premises of the accused, there was insufficient evidence to prove his involvement in illegal activities in respect of various excisable contraband articles, bail was granted. Where once the Court has come to the conclusion that prima facie the applicant lady is guilty of offence under Section 20(b)(i) of the NDPS Act, then she would not be entitled for bail. Her other submission that she has three children and that the

family would suffer is not relevant for consideration of the bail application when the offence alleged is under the NDPS Act. Hence, her bail application was rejected.*° In a case under the NDPS Act, in addition to the confessional statement of the coaccused there were series of documents and at the time of trial if the same were proved against the accused then there was a good case in favour of the prosecution. Moreover, after perusal of the materials on record, charge had already been framed.

Thus, a prima facie case was made out. Accordingly, it was held that bail could not be

granted to the accused in view of S. 37 of the NDPS Act.*4

29. Kaneshwar Singh vy. State of M.P., 1997 Cri LJ 1284 at p. 1286 (MP). 30. Balwinder Singh v. State of Punjab, 1997 Cri LJ 2827 at pp. 2828-29 (P&H). 31. V.K. Asokan v. State of Kerala, 1998 Cri LJ 1322 at pp. 1325-27 (Ker) : (1998) 1 Ker LT 265. 32. Ashwani Kumar Bhardwaj v. State of Rajasthan, 1997 Cri LJ 1365 at p. 1369 (Raj). 33. Shakuntala Bhagwat Kshirsagar v. State of Maharashtra, 1998 Cri LJ 3773 at p. 3780 (Bom).

34,

Madan Mohan Bhanja Deo v. Union of India, 1999 Cri LJ 605 at pp. 606-7 (Ori).

Syn. 86]

Bail under NDPS Act-Illustrative Cases

1021

In a case under Ss. 8, 21 of the NDPS Act, all necessary steps in the matter of conducting investigation were taken by the investigating officer. The chances of false implication were altogether ruled out. It was held that since the challan had already been filed before the concerned trial Court, no purpose would be served by releasing the accused on bail at such stage, since the accused and also the co-accused who had already been arrested earlier, were yet to be tried for the said offence. accordingly, the bail application was rejected.” Accused persons in a case were charged for an offence under S. 20 of the NDPS Act for possession of charas which was punishable for a minimum term of 10 years. Charas had been recovered from a hotel room at a time when it was in possession of the accused persons. Their plea that a person, who had stayed with them and against whom the first accused-applicant had lodged a complaint of theft, had planted the charas in the room to create a false case against them was found not trustworthy. In view of the prima facie case made out against the accused persons, bail was denied to them. In a case under the NDPS Act, three female accused possession of huge quantity of ganja. They alleged that the - the said Act relating to search and seizure were not complied prima facie disclosed compliance of the said mandatory accordingly refused to them.

persons were found in mandatory provisions of with. However, the FIR provisions. Bail was

Where 115 gram of 'Ganja' was recovered from the custody of the accused in a case under the NDPS Act, keeping in view the material collected against him it could not be held that there were reasonable grounds for believing that he was not guilty of such an offence, therefore bail was refused to him with the further observation that contention relating to non-compliance of the : mandatory: provisions of the Act and A 2 g

other discrepancies were to be thrashed out during the trial.

In a case under NDPS Act, it was held that the provisions of S. 50 applied only to the personal searches. In the instant case the recovery from a truck and therefore S. 50 did not apply. Therefore, the accused not entitled to bail even if it was held that there was no compliance

NDPS Act.””

of the said Act had been made was held to be of S. 50 of the

In Mathews Clare Georgina v. Narcotics Control Bureau,” a case was registered against the petitioner under S. 23 read with S. 28 of the NDPS Act. It was alleged that the petitioner had booked parcel of two bronze statues with a Courier Company which was found containing large quantity of Hashish. The facts revealed that she was herself indulging in the export of narcotics under assumed names. It was

observed that the question whether or not she had knowledge about the presence of contraband in the parcel was to be decided during trial only. It was held that considering the large quantity of the contraband and the conduct of the petitioner In ~ the matter

of its possession

and export,

no

grounds

were

made

out for her

enlargement on bail, and that Section 37 of the Act stood in her way, as it could not

be held that she was not guilty of the offence or that in case she was released on bail, she would not commit such an offence again. Accordingly, her application for grant of bail was dismissed. 35. 36.

37. - 38. 39. 40.

Bhola Ram v. State of Rajasthan, 1999 Cri LJ 2729 at p. 2730 (Raj). Yosimeir v. State of H.P., 1999 Cri LJ 4149 at pp. 4150-51 (HP).

Murugeswari v. State, 2000 Cri LJ 1138 at pp. 1139-40 (Mad).

Sanjay Kumar Giri v. State of M.P., 2000 Cri LJ 1918 at p. 1922 (MP). Ram Kailash Jaiswal v. State of U.P., 2001 Cri LJ 674 at p. 676 (All). 2003 Cri LJ 4060 at pp. 4061-62 (Del).

1022

Bail under NDPS Act

[Chap. 22

In a case under the NDPS Acct, relating to recovery of 135 gm of charas from the house of the accused, it was noticed by the High Court that in the bail application filed by him before the Special Judge, no stand was taken by him that the house did

not belong to him. The High Court further observed that in the absence of the same, it was not understood as to how the Special Judge on his own went into this aspect and came to the conclusion that the house did not belong to the accused. The order of grant of bail was thus held to be glaringly perverse and against the provision of law contained under S. 37 of the NDPS Act. Accordingly, the bail granted by the Special Judge was cancelled by the High Court.”!

Where the accused was arrested for offences punishable under S.20(b)(i) of the NDPS Act and the charge-sheet was not filed within the prescribed period of 60 days and the accused filed an application for bail before filing of the charge-sheet, he was held entitled to be released on bail.

In a case under the NDPS Act, the accused were charged with the serious offences punishable under Ss. 8(C), 22, 25, 28 and 29 of the Act, which were punishable with

imprisonment for a term of more than five years. From the facts and circumstances of the case, there are no reasonable grounds for believing that they were not guilty of the alleged offences and they were not likely to commit the offence while on bail. Accordingly, it was held that there was no justification to enlarge the accused on bail.

Where in an offence under the NDPS Act for possession of Ganja, it was contended that only a small quantity of Ganja was allegedly recovered within the meaning of S. 27 of the NDPS Act for which less punishment was prescribed, it was held that however the accused was also found involved in another offence under the said Act and was therefore not entitled for bail. Where the petitioner had been apprehended for the commission of an offence under S. 20(a) of the NDPS Act, punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine, the High Court declined to take liberal approach in grant of bail under the said Act in view of S. 37 of the said Act. Moreover, in the absence of the result of the chemical examination of the seized article, the Court was not expected to ultimately conclude that the seized materials did not relate to the flowering or fruiting tops of the cannabis plant which could be finally determined during trial.

Where an offence under the NDPS Act is exclusively triable by Special Judge, the Addl. District Magistrate has no jurisdiction to grant bail or entertain any bail

application of accused of such an offence. Therefore, in the instant case, order granting bail to accused was held to be illegal and without jurisdiction on this ground and the bail so granted was cancelled.*°

In a case under NDPS Act, a Sub-Inspector, while performing patrol duty, had

seized certain contraband from the shop of the accused in his absence. It was held that no illegality or irregularity had been committed by the prosecuting agency for noncompliance of the mandatory provisions of Section 50 of the NDPS Act and

particularly when the accused was found absent during search of the shop, and that

the accused

was

not entitled to bail on the ground

of non-compliance

41. State of Maharashtra v. Ganpatrao Mahadeo Karne, 2001 Cri LJ 3192 at p. 3193 (Bom).

42. Ganesh Prasad v. State of M.P., 2001 Cri LJ 3444 at p. 3445 (MP). 43. Shakeel Akhtar v. State of A.P., 2001 Cri LJ 3881 at p. 3888 (AP).

44. K.P. Sadath y. State of Karnataka, 2002 Cri LJ 101 at p. 102 (Kant).

45. Srikanta Dash y. State of Orissa, 2002 Cri LJ 816 at p. 819 (Ori). 46. State of Mizoram v. Zoliana, 2002 Cri LJ 3420 at pp. 3421-22 (Gau).

of the

Syn. 86]

Bail under NDPS Act-Illustrative Cases

1023

mandatory provisions. Moreover, no reasonable ground was made out to show that accused was not guilty of offence and that he was not likely to commit offence if released on bail. Bail was denied accordingly.”’ Where in a case under the NDPS Act, the quantity of charas recovered from the accused persons was less than the commercial quantity, it was held that the rigour of S. 37 of the said Act could not be applied and that they could be dealt with under the provision of Cr.P.C. for the purposes of bail. Hence, considering the quantity of contraband and the fact that accused persons were in custody for one year, they were directed to be released on bail on furnishing bonds in the amount of Rs. 3 lakh and Rs. 2 lakh respectively with two sureties each of the like amount, and subject to some other conditions. In a case under the NDPS Act, the Delhi High Court noticed that prima facie there was no believable evidence against the accused to hold him guilty of the offence under Section 21/29 of the Act. The disclosure statement of a co-accused was not substantive evidence. The entry in the diary allegedly recovered from the accused, after about one year and four months of arrest of co-accused, was a highly doubtful _ piece of evidence. There were reasonable grounds to believe that the accused was not guilty of the said offence, hence he was held entitled for grant of bail.

In a case under the NDPS Act wherein 200 grams of smack was recovered from petitioner, it was observed that although the quantity of smack recovered was not commercial quantity but still the offence was grave and heinous as the petitioner appeared to be a seller of narcotics. In case the petitioner was found guilty he might be liable to receive severe punishment. Possibility could not be ruled out that in case of his release on bail, he might abscond with a view to avoid punishment. The evidence was still to be recorded by the trial Court and only after recording the prosecution evidence it would be possible for the Court to form an opinion as to whether there was any doubt or not regarding allegations against the petitioner. Accordingly, considering the serious nature of the offence and the gravity of the allegations, it was held that at such stage there were no good grounds for enlargement of the petitioner on bail. In Ram Gopal v. State of Haryana,’ the accused persons were involved in a case wherein a huge stock of contraband weighing over 41 kg of opium was recovered and there were allegations of submitting fake/forged documents. It was held that there is a specific ban imposed by Section 37 of the NDPS Act to grant bail in such cases, and that the accused persons had not been able to show that they were not associated with the offences. Moreover, the accused persons were likely to indulge in tampering of evidence. One accused was also alleged to have presented forged documents; and the other accused was also involved in harbouring a person indulging in offences involving contraband which was a serious offence under Section 27-A of the said Act. . Therefore, the court did not find any violation of procedural law or substantive law warranting exercise of discretion under Section 439, Cr.P.C. Accordingly, the application for bail was rejected. In a case

contraband

under the NDPS

“Poppy

husk”

Act, the accused

weighing

was

5 kg, which

found

was

to be in possession of

less than the commercial

47.

Surendra Patra vy. State of Orissa, 2002 Cri LJ 3697 at p. 3700 (Ori).

49.

Manoj Kumar Gupta v. State N.C.T. of Delhi, 2003 Cri LJ 2353 at p. 2354 (Del).

51.

2004 Cri LJ 736 at pp. 737-38 (P&H).

48. Manoj Kumar v. State of H.P., 2003 Cri LJ 1644 at p. 1646 (HP).

50. Heera Lal v. State, 2003 Cri LJ 3819 at p. 3820 (Del).

1024

[Chap. 22

Bail under NDPS Act

quantity. He was under detention for more than one month. In such circumstances, he was directed to be released on bail on certain conditions.

Where an accused is alleged to have been engaged in smuggling activity, the

possibility of his joining the gang and repeating the activity if released on bail cannot be ruled out. The release of an accused of an offence under the NDPS Act, may be of below 18 years of age, is bound to defeat the ends of justice. In the instant case, the order refusing bail in such circumstances was held to be proper. In Jiju Hasan v. Narcotic Control Bureau,’ the accused was arrested in a case

under the NDPS Act for allegation of having conspired with the other accused for bringing contraband articles. Apart from statements recorded during investigation of crime no materials were pointed out to show that the accused had conspired with other accused to bring the contraband articles. In such circumstances, it was held that the fact that the Public Prosecutor submitted that he opposed granting of bail was not a ground for rejecting bail; and that even if it be assumed that the objection was raised on valid grounds, there were reasonable grounds for believing that the accused was not guilty of the offence and he was not likely to commit any offence while on bail. Accordingly, the accused was released on bail.

In a case under NDPS Act, the accused were charged for possession of poppy straw (Bhuky). It was held that the very possession of poppy straw disentitled the accused to bail and that how much contraband was taken as sample and how much did it reach to Forensic Science Lab for chemical analysis was a matter of evidence to be proved during trial and the Court was not expected to go deep into probative value of material on record in bail matters. Accordingly, the application for bail was dismissed.

In Shiv Kumar Nagpal v. State of Haryana,*° the allegation related to the tampering of two parcels of a contraband, smack, seized from a foreign national at the police Station and / or the Forensic Science Laboratory (FSL). Initially the FIR contained

allegations only against certain police officials, but subsequently employees of the FSL, including the applicant, were also arrested. In view of the marked difference between the allegations in the FIR and the allegations subsequently set up, i.e., exonerating the police officials and implicating the officials of the FSL, the fact that the applicant did not have exclusive custody of the keys to the cupboard containing the parcel of smack, the fact that there were discrepancies in the number, the identity and the initials appearing on the seals, in various documents, the fact that three coaccused of the applicant had already been released on bail, the High Court came to a tentative conclusion, in terms of S. 37 of the NDPS Act, that on the basis of material

placed there were “reasonable grounds” to hold that the applicant was not guilty of

the offence charged.

Furthermore,

the applicant, who

was a ballistic expert, had

retired from service. He was handicapped as he had lost his fingers in an simulated explosion. Accordingly, the High Court was also of the opinion that the applicant was not likely to commit another offence while on bail. Accordingly, bail was granted to the applicant.

In a case under the NDPS Act, one kg of Heroin was seized from the accused. It was contended that the provisions of S. 50.of Act were not complied with during the search of the accused. However, it was held that such contention was premature in a 52. 53. 54.

Baldev Singh v. State of H.P., 2004 Cri LJ 1984 at p. 1985 (HP). Jaif Ahmed Sheikh v. State of Rajasthan, 2004 Cri LJ 3272 at p. 3274 (Raj). 2004 Cri LJ 3517 at p. 3519 (Ker).

55. Foja Singh v. State, 2004 Cri LJ 4375 at p. 4377 (J&K). 56.

2004 Cri LJ 4682 at p. 4688 (P&H).

Syn. 86]

Bail under NDPS Act-lllustrative Cases

1025

bail application and that it could be raised before the trial Court after recording of evidence. It was further held that restriction imposed on granting bail in such cases by cat

HM of the Act

ismissed.

shall

apply.

Accordingly,

the application

for bail was

It is no doubt true that the provisions of Article 22(2) of the Constitution have an overriding effect over the provisions of S. 37 of the NDPS Act and the said provisions have to be followed to the hilt by the Investigating Officer and the continued detention of a detenu beyond the period of 24 hours would consequently. be illegal and the only alternative would be to release such detenu from the illegal detention. In the instant case, however, the applicant was already arrested and was detained in Ahmedabad Central Jail and order was passed by the Special Court in connection with NDPS case seeking his arrest and custody from the Ahmedabad Court which was granted by the Ahmedabad Court and the applicant was produced within 24 hours after he was brought to Mumbai from Ahmedabad before the Special Judge who remanded him to N.C.B. custody in connection with the N.D.P.S. case. Accordingly, it was held that there was no violation of the provisions of S. 57 and S. 167(1) of Cr.P.C. and of Article 22(2) of the Constitution. When

the accused was

arrested the remand was already granted by the Special Court in connection with NDPS case, his non-production would at the best be technical lapse and, therefore, would not amount to a breach of the mandatory provisions of Article 22(2) of the Constitution. It was however clarified that the detention of any person on ground of taking him in custody for investigation and not showing his arrest for an indefinite period would clearly be in violation of Article 22(2) of the Constitution. It would not

_ be open for the Investigating Agency to take the custody of the accused and detain

him for the purpose of investigation without showing his arrest and, thereafter, issue an order of arrest on a subsequent date. In S. Nagaraj v. State,” the petitioner was the licensed manufacturer of drugs and was carrying on a pharmaceuticals business. He was issued with summons under Section 67 of the NDPS Act for non-submission of statutory returns under the said Act and was thus apprehending arrest at any time by the Narcotics Control Bureau. It

was held that as this matter was one relating to the non-submission of the statutory returns, it could not be said that it was an offence involving commercial quantity. It was further observed that even though no crime was registered, the said summons were issued directing the petitioner not only to appear but also not to leave the premises without permission; and that the said insertion of words in summons that the petitioner shall not leave the premises without permission definitely led to a reasonable apprehension of being arrested as and when the petitioner appeared before the Officer. In such circumstances, as the alleged offence was only relating to nonsubmission of statutory returns, it was held that it was a fit case to grant anticipatory bail to the petitioner. In Rajinder Gupta v. State,” it was alleged that the petitioner was engaged in the manufacture or sale of Buprenorphine Hydrochloride Injections in contravention of the NDPS Act and the NDPS Rules. It was held by the Delhi High Court that Buprenorphine Hydrochloride is a Schedule H drug under the Drugs and Cosmetics

Act and Rules and, though it is a psychotropic substance under the NDPS Act !t was

not included in Schedule I to the NDPS Rules and that its manufacture, possession OF 57.

Chander Mohan Sharma y. NCB, Delhi Zone Unit, 2004 Cri LJ 4894 at p. 4896 (Del). at pp. 3195-96 Bureau, 2005 Cri LJ 3190

58. Jayendragiri Anandgiri Goswami v. Narcotics Control. (Bom).

59. 2005 Cri LJ 3913 at p. 3915 (AP). 60. 2006 Cri LJ 674 at pp. 683-84 (Del).

1026

Bail under NDPS Act

[Chap. 22

sale was not prohibited. As such, there was no contravention of the provisions of the

NDPS Rules, and accordingly, no offence under S. 8 of the NDPS Act was made out. In such circumstances, it was held that the petitioner was entitled to bail.

In Sanjay Kumar Verma v. State of U.P.,°' the accused was allegedly involved in an offence under the NDPS Act. It was observed by the Allahabad High Court that there was too much difference in the weight of recovered contraband mentioned in the recovery memo and in the report of Public Analyst, because in a sample of 10 grams contraband there was difference of more than 6 grams. Moreover, according to prosecution version the recovered contraband was smack (brown sugar), but according to Public Analyst report it was found to be heroine. According to the NDPS Act, both the contrabands are separately defined and both are not the same. In such circumstances, without expressing any opinion on the merits of the case, the High Court released the applicant on bail.

In Hafiz Afzal y. Union of India,” 'B' warrant (production or transit warrant) was served upon the applicant for an offence in a District Jail where he was confined in connection with an offence of the same nature. A complaint for an offence under the NDPS Act was filed against him. He was facing trial though in absentia. He sought bail on the ground that the co-accused had already been released on bail. It was observed that there was no material showing in bail application or counter-affidavit that he was enlarged on bail in offence in which he was in jail, therefore no useful purpose would be served by releasing the applicant on bail. Moreover, he was not yet in judicial custody of the trial Court, therefore the trial Court had no jurisdiction to entertain any application for bail in the light of the facts and circumstances of the case. In Sanjay Kumar Kedia v. Narcotics Control Bureau,” the appellant was arrested in connection with offences under NDPS Act for illegal sale of drugs on Internet through various websites. There was evidence to suggest that the appellant and his company were connected with those websites. It was held that in such circumstances, the appellant or his company were not innocent intermediaries or Network Service Providers within the meaning of S. 79 of the Information Technology Act, 2000, and the business of IT services was merely a facade and camouflage for more sinister activities, and in such a situation S. 79 of the said IT Act did not give immunity to an

accused who had violated provisions of NDPS Act. Therefore, in view of the mandate of S. 37. of NDPS Act, the bail application was rejected. In Ravi-Ul-Islam y. State (NCT, Delhi),™ the applicant, a juvenile, was found in

possession of 1.820 kg of charas and was involved in a case under S. 20 of NDPS

Act. It was held by the Delhi High Court that looking at the Social Investigation Report, it was difficult to come to the conclusion that the release of the juvenile would

bring him into association

of any known

criminal

or expose

him

to any

physical or moral danger or his release would defeat the ends of justice; accordingly, in view of the specific provisions of Section

12 of the Juvenile Justice (Care and

Protection of Children) Act, 2000, the applicant would be clearly entitled to be released on bail. The High Court allowed his release on personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Juvenile

Justice Board; the father as well as the elder brother of the juvenile were directed to

61. 62.

2006 Cri LJ 1426 at p. 1428 (All). 2002 Cri LJ 141 at p. 146 (All).

63.

(2008) 2 SCC 294 at p. 299.

64.

2007 Cri LJ 612 at pp. 613-14 (Del).

Syn. 87]

Cancellation of Bail under NDPS Act-Illustrative Cases

1027

file affidavits indicating clearly that they shall be responsible for the applicant’s wellbeing and they shall ensure that he does not fall into bad company. Ina case under the NDPS Act, the accused was allegedly found to be in illegal possession of commercial quantity of cannabis and was involved in its inter-state export. The Court had already framed the charge against him and witnesses were

required to be examined. The accused had not contended that there was no material to frame charge against him, It was held that merely because there had been delay in

conducting trial, the accused could not be granted bail particularly when the charge sheet had been submitted against him within the statutory period of 180 days.”

87. CANCELLATION OF BAIL UNDER NDPS ACT ILLUSTRATIVE CASES In a case, the accused involved in an offence punishable under S. 21 of the NDPS Act was granted bail by the Magistrate though the case was exclusively triable by the Court of Session as the material to show that the accused was in fact found in possession of narcotic drugs or psychotropic substance was not produced before the Magistrate. In such circumstances, it was held that the cancellation of bail by Sessions Judge, when subsequently the prosecution collected the material to prima facie show that it was the accused and accused only who was found in possession of the narcotic drugs or psychotropic substance, was justified. However, the order putting the accused in police custody was quashed and he was directed to be put in Magisterial custody. Where a voluntary statement made by the accused before authorities under the NDPS Act showed his involvement in clandestine possession, transport and trafficking in one kilogram of heroin powder kept concealed in a sweetmeat box, the said statement was not denied before the Magistrate, it was held that the manner and method attempted to smuggle the said contraband suggested dextrous skill and potentiality of indulging in such act in future and that the impugned order granting bail to him was rather inconceivable. Accordingly, the order granting bail to him was set aside. Where the accused, a Lankan national had entered India by illegal means and was involved in an offence of heinous nature under the NDPS Act entailing minimum sentence of 10 years and a fine of one lakh rupees, there was every likelihood of his fleeing from justice by illegal means to his country causing prejudice to cause of justice, in such circumstances the order granting bail to him was set aside. Where the accused in a case under the NDPS Act was enlarged on bail on account of default of prosecution to complete investigation and present charge sheet within the prescribed period of 90 days, the cancellation of such bail on the ground that provisions of S. 167(2) Cr.P.C. are also subject to conditions contained in S. 37 of

NDPS Act and that huge recovery of opium had been effected from the accused was held to be not proper. Accordingly, the accused was allowed to be released on bail. In a case, bail had been granted under the NDPS Act by the Addl. Sessions Judge. Regarding the second condition mentioned in Section 37(1)(b)(ii) of the NDPS Act to 65. Jai Prakash Singh v. Union of India, 2008 Cri LJ (NOC) 253 (Gau).

at pp. 2064-65 (Bom). 66. Anilkumar v. State of Maharashtra, 1990 Cri LJ 2058

67. Superintendent, NCB, South Zone, Madras v. Selvarajah, 1992 Cri LJ 2143 at p. 2146 (Mad). 68. Superintendent, NCB, South Zone, Madras v. Selvarajah, 1992 Cri LJ 2143 at p. 2146 (Mad). 69.

Jagdish Singh v. State of Punjab, 1996 Cri LJ 1289'at p. 1290 at pp. 1290-91 (P&H); relying upon

: 1992 SCC (Cri) Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1 : (1992) 4 SCC 272 870.

1028

Bail under NDPS Act

[Chap. 22

the effect that the accused is not likely to commit any offence while on bail, it was observed by the Addl. Sessions Judge that as the accused did not offer any resistance at the time of search of his house, it showed that he was not likely to commit any

offence while on bail. In this regard, the Allahabad High Court held that the accused might not have offered any resistance at the time of search as he was taken by surprise, besides several persons of Narcotics Control Bureau were present and he might have thought that offering any resistance would be futile. The fact that accused did not offer any resistance at the time of search of his house was wholly irrelevant and could under no circumstances lead to an inference that while on bail, the accused was not likely to commit any such offence. In fact the statement of the accused showed that he had been carrying on this activity for quite sometime and that he had acquired sufficient wealth in this illicit trade. In strong words, the High Court observed that the aforesaid order of the Addl. Sessions Judge showed that he had absolutely no knowledge of criminal law and he did not possess the necessary judicial acumen to perform the duties of a Sessions Judge. In these circumstances, the bail granted to the accused was cancelled.

Recovery of | kg of Charas is commercial quantity within meaning of S. 2(viia) of the NDPS Act read with notification dated 19.10.2001, and therefore the limitations prescribed under S. 37(1)(b) of the Act would be applicable for grant of bail. Where bail had been granted in such a case without keeping in view the said limitations

under S. 37 of the Act, it was liable to be cancelled.”

In a case under NDPS Act in Union of India v. Krishan Chandra Agrawal,” it was observed that there was no documentary evidence to support the fact of ownership and possession of accused over the house in question from where the drugs were seized. Further, no incriminating article was recovered from the house of the accused, situated at another place. That apart, son of the accused was the sole proprietor of the firm in whose favour Drugs Licences were issued, with which the accused had nothing to do. Accused in his statement had stated that he used to maintain accounts of the firm. It was held that in these circumstances, the discretion excised by the Special Judge in favour of the accused in granting bail could not be said to be illegal, more particularly when the Special Judge had recorded his satisfaction as envisaged in Section 37 of the Act. It was reiterated that very cogent and overwhelming circumstances were necessary for an order directing cancellation of bail and that no grounds for cancellation of bail, much less overwhelming circumstances, had been mentioned, except the restrictions placed in Section 37 of the Act in granting bail. The bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer

conducive to a fair trial to allow the accused to retain his freedom by enjoying the

concession of bail already granted. Accordingly, it was held that no interference was called for in the grant of bail and the application for cancellation of bail was dismissed.

88. OFFENDING REMARKS AGAINST JUDGE IN BAIL MATTER EXPUNGED

In Braj Kishore Thakur v. Union of India,” the appellant District & Sessions Judge

had granted bail to the accused under the NDPS Act. A Single Judge of the High Court cancelled the bail granted to the accused, and at the same time passed severe 70. 71. 72. 73.

Union of India v. Darshan Kumar, 1997 Cri LJ 4095 at pp. 4098-99 (Ail), State of H.P. vy. Munshi Ram, 2003 Cri LJ 1946 at p. 1949 (HP). 2006 Cri LJ 2390 at p. 2392 (Raj). AIR 1997 SC 1157 at pp. 1158-60 : (1997) 4 SCC 65 : 1997 SCC (Cri) 514,

Syn. 88]

Offending Remarks against Judge in Bail Matter expunged

1029

censure against the appellant Judge observing that the bail had been granted for extraneous considerations ignoring the provisions of Section 37 of the NDPS Act, and that ‘‘...he does not deserve to remain as the Sessions Judge and he should be divested of his original powers...”. When the appellant Judge moved the High Court to have those disparaging remarks expunged, instead of erasing them, the Single

Judge of the High Court reiterated those deprecatory remarks with aggravated severity. On appeal, the Supreme Court held that it would have been desirable that the Single Judge of the High Court had reminded himself of the legal position laid down by the_same High Court in a Division Bench decision in Kamlesh Kumarvy. State of in which it had been held that “when an accused is charged with offence Bihar,” under Section 20(b)(i) of the NDPS Act the power under Section 37(1)(b) is not to be

attracted”. Without examining the correctness of the said Division Bench decision, the Supreme Court observed that the decision was binding on all subordinate courts in the State in view of the fact that there was no contrary view expressed in any Supreme Court judgment. The Supreme Court further observed that when the Single Judge had castigated the appellant for being “ignorant of the law and was not aware of the latest rulings” it would have been desirable that the Single Judge had reminded himself of the legal position laid down by the same High Court on the very same subject. The Supreme Court also held that the appellant Judge was well within the jurisdiction when he passed the order granting bail to the aforesaid accused persons, though it was a different matter whether the discretion was well exercised by him. Accordingly, all the offending remarks made against the appellant Judge were expunged by the Supreme Court.

74.

(1994) 2 Pat LJR 600.

CHAPTER 23

BAIL UNDER TADA ACT (Terrorist and Disruptive Activities (Prevention) Act, 1987]! S. 20. Modified

application

of certain provisions of the Code.—(1_

Notwithstanding anything contained in the Code offence punishable under this Act or any rule made med to be a cognizable offence within the meaning of the Code, and ‘“‘cognizable case’’ as defined in strued accordingly.

or any other law, every thereunder, shall be deeof clause (c) of Section 2 that clause shall be con-

(2) Section 21 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modification that the reference to “the State Government” therein should be construed as a reference to “the Central Government or the State Government”.

(3) Section 164 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder, subject to the modification that the reference in sub-section (1) thereof to “Metropolitan Magistrate or Judicial Magistrate’ shall be construed as a reference to ‘Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate.” (4) Section 167 of the Code shall apply in relation to a case involving an

offence punishable under this Act or any rule made thereunder subject to the modifications that—

(a) the reference in sub-section (1) thereof to “Judicial Magistrate” shall be construed as a reference to “Judicial Magistrate or Executive Magistrate or Special Executive Magistrate”; (b) the references in sub-section (2) thereof to “fifteen days,” “‘ninety days” and “sixty days” wherever they occur, shall be construed as references to “sixty days,” (“one hundred and eighty days”] and Ti : 2p (“one hundred and eighty days”), respectively; and *{(bb) in sub-section (2), after the proviso, the following proviso shall be inserted, namely:—

1, This Act has already expired in 1995 and is no more in existence, in view of the amended provisions of S. 1(4) of the Act, which limited its validity only for 8 years. . Substituted by Act 43 of 1993, S. 8, for words “one year”. . Inserted by Act 43 of 1993, S. 8.

wn

1030

Chap. 23]

= Modified Application of certain provisions of the Code

1031

‘Provided further that, if it is not possible to complete the investigation within the said period of “one hundred and eighty days”,

the Designated Court shall extend the said period up to one year, on 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 one hundred and eighty days; and’| (c) sub-section (2-A) thereof shall be deemed to have been cnmitted

(5) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act or any rule made thereunder subject to the modifications that— (a) the reference in sub-section (1) thereof— (7) 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 “State Government” shall be construed as a reference to “Central Government or the

State Government, as the case may be”’.

(6) Sections 366 to 371 and Section 392 of the Code shall apply in relation to a case involving an offence triable by a Designated Court subject to the modifications that the references to “Court of Session” and “High Court’, wherever occurring therein, shall be construed as references to “Designated Court” and “Supreme Court’, respectively. (7) Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act or any rule made thereunder. (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 ts

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.

[Note by author: Only S. 20 of the TADA Act is being reproduced here, as other sections of the said Act are not directly relevant for the purposes of this book. It is

1032

Bail under TADA Act

[Chap. 23

also clarified that the said TADA Act is no more in existence now except for the cases registered under it before its expiry in 1995; however, this Chapter has still been included for discussion in this book, inter alia, for the reason that the judicial decisions under this Act relating to bail constitute very important principles governing bail and also because Acts of similar nature keep getting enacted from time to time, before getting repealed again; e.g., see, POTA, in the next chapter. In fact, as of the writing of the first edition of this book, there is a renewed demand for enactment of yet another law to control terrorism offences in view of a series of bomb blasts occurring in different parts of India in July, 2008.) SYNOPSIS 1. Limitations on bail under S. 20(8) in addition to under Cr.P.C..000........0ccccecceeeee eee 1033 2. No bail under TADA unless conditions under S. 20(8) satisfied ...................0.000000 1033 3. Conditions under S. 20(8) of TADA do not violate Article 21 ...............0.c:ececeeee eee 1034

4. Removal of S. 438 Cr.P.C. for TADA not violative of Article 21 ..........:ccccceeeeees 5. Bail application under Art. 226 not normally to be entertained ................::::s0c00

1034 1035

6. Power of bail of Designated Court is in S. 437 Cr.P.C. and not S. 20(8) of TADA

1036

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. D7a 18. 19. .20. 21. 22. 23. 24. 25.

High Court has no power of bail in TADA CaS6b...............:sssesceeseseesssersseseasereeneeees Heavy burden cast on Public Prosecutor and Court in bail matters under TADA... Considerations for Ballin TADA CASES... .22....0005..0scccossbenees odscadestatebctepeddensonepdasenes Interest of community and safety of nation to be kept in MING ..0.....0...0 cece sees Word of caution about abuse of TADA to deprive bail ................ccccseeceeseeeeeeneneeenes Court should carefully see in each case whether provisions of TADA Act apply... S. 167 Cr.P.C. applicable under TADA but with different periods......................... S. 167(2) of Code r/w S. 20(4)(b) of TADA-right to default bail..........0.000000... Court to inform of right of bail on expiry of maximum period under S. 20(4)....... Right to file for bail on expiry of period under S. 20(4) ............cccceseceesseeeteeeneeenees LAWNYItOET TOUTE GF OFOCCIONPEO CRETUMINE WMIELL 0. 29rsccccsascarecssethorsecessesysdtbnaesapteceneatonapes Bail under S. 20(4) not influenced by merits or gravity of case.............00..ceeeee Amendment of 1993 in S. 20(4) has retrospective Operation ................cccceceeeeeeees Public Prosecutor to seek extension of time for investigation................0c:cccc.cecseee Extension of custody granted under S. 20(4)(bb) on report of 1.0. held erroneous. Extension of period for investigation only if investigation not complete................ Notice to accused necessary when extension of period sought under S. 20(4)(bb). No right of default bail after filing of charge sheet, if not already availed of.........

1037 1040 1040 1040 1041 1041 1041 1042 1043 1043 1043 1044 1044 }O44 1045 1046 1047 1047

No bail after charge sheet filed after extended prescribed period ...............cccccceeee--

1049

26. Computation of period under S. 20(4)(bb) not to begin from date of arrest in Cafiler CARE XI. Seka NUR Sak el. See eas ie oes 27. No licence to police to delay charge sheet due to enhanced period under TADA... 28. Bail under S. 167 Cr.P.C. for TADA case cannot be cancelled on mere filing of GRpape Beet ATARI. Ace, ATI GS SOR, 9 29. Designated Court granting bail wrongly interpreting period for filing charge SOO UE LO TR TAAEE SIR. DRA AE ide... 06005 scsecte ott eeibabeatecabadbaelied n 30. 31.

1049 1049

1050

Bail where trial does not conclude within a reasonable time ............................... A person not to be detained in custody for unreasonable time................................

1050 1051 1055

Reduction of sentence in TADA case, inter alia, for being on bail for 7 years.......

1056

32. Interim bail by High Court in appeal against rejection of bail by Designated Ra I hs 28970002 cae 151555 RNa 500000000000} dapravipies candi lena amma etiidees coal 1056 33.

34. Order in bail matter under TADA Act is. interlocutory and hence no appeal lies... 35. Bail granted where provisions of TADA Act found not applicable ...........ccccccccesee.

36. 37.

38.

1056 1057

Bail due to lack of substantive evidence to connect applicant with main accused.. Bail granted by Designated Court not having jurisdiction set aside........................

1057 1058

proper........ BAHPAessecnsnenssyyeceesss osHUREESURSHASROSS®S6900 uscnagMMBEROA 0000000005 .ccccscceecect cgurcssececersente Sans

1058

Rejection of bail despite favourable review and no objection by CBI, held not

|

Syn.2)

=Limitations on Bail under §. 20(8) in Addition to under Cr.P.C.

40. Bail by Sessions court in TADA case without previous sanction .........................

41. Bail granted after withdrawal of TADA charges set aside ..........0.....cccccccccccescsesees. 42.

S.17(5) of TADA Act of 1985—matters to be considered.......................................

43. Power of High Court to give direction to Designated Court .....0..000.....0cccccceccccceeees

44. Bail under TADA Act—illustrative cases .............0...00.ccccceccccccscccscessccssceseevsssesseesees 45. Bail due to delay in trial in TADA case-illustrative cases ......0..0.00.0.ccccccceceeeeeeees 46. Cancellation of bail in TADA case—illustrative Cases ........0..00.cccccccccccseccseeeeeenseees

1033 1059

1059 1060

1060 1060 1063 1064

COMMENTS _ 1.

LIMITATIONS ON BAIL UNDER §S. 20(8) IN ADDITION TO UNDER CR.P.C.

Sub-section 20(8) of TADA

Act, 1987, which imposes a complete ban on release

on bail against the accused of an offence punishable under that Act, minimises or dilutes that ban under two conditions, those being (1) the Public Prosecutor must be

given an opportunity to oppose the bail application for such release; and (2) where the Public Prosecutor opposes the bail application the court must be satisfied that the two conditions, namely, (a) there are reasonable grounds for believing that the person accused is not guilty of such offence and (5) he is not likely to commit any offence while on bail. Sub-section 20(9) qualifies sub-section (8) to the effect that the above

two limitations imposed on grant of bail specified in sub-section 20(8) are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force on granting of bail. If either of the two conditions mentioned in subsection 20(8) is not satisfied, the ban operates and the accused person cannot be released on bail but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Acct in relation toa case under the provisions of TADA Act. The power to grant bail is found in sub-section (8) of S. 20 of the TADA Act. To

grant bail to an accused, the Designated Court reasonable grounds for believing that the accused is not likely to commit any offence while on bail. the limitations contained in the Code of Criminal time being in force for grating of bail.

2.

has to be satisfied that there are is not guilty of such offence and he These limitations are in addition to Procedure or any other law for the

NO BAIL UNDER TADA UNLESS CONDITIONS UNDER S. 20(8) SATISFIED

It is clear from the plain phraseology of sub-section (8) of S. 20 of TADA, it commences with a non obstante clause and in its operation imposes a ban on release of a person accused of an offence punishable under TADA or any rule made thereunder on bail unless the twin conditions contained in clauses (a) and (b) thereof

are satisfied. No bail can be granted under S. 20(8) of TADA unless the Designated Court is satisfied after notice to the public prosecutor that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence while on bail. Sub-section (9) qualifies sub-section (8) to the extent that the two conditions contained, in the aforesaid clauses (a) and (b) are in addition to the limitations prescribed under the Code of Criminal Procedure or any other law for the time being in force relating to the grant of bail. Strictly speaking, S. 20(8) is not the source of power of the Designated Court to grant bail

: 1994 SCC 4. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at pp. 703-4 : 1994 Cri LJ 3139 (Cri) 899 (per majority).

5. D. Veerasekaran v. State of T.N., 1992 Cri LJ 2168 at pp. 2177-78 (Mad).

1034

Bail under TADA Act

[Chap. 23

but it places further limitations on the exercise of its power to grant bail in cases

under TADA, as is amply clear from the plain language of Section 20(9) of TADA. It is not an inexorable rule that a person accused of an offence under the TADA Act cannot be released on bail at all. But limitations are placed on the grant of bail as specified in Section 20(8) of the TADA Act in addition to the limitations provided under the Code of Criminal Procedure and no more.

3.

CONDITIONS UNDER §, 20(8) OF TADA DO NOT VIOLATE ARTICLE 21

The conditions imposed under clause (b) of sub-section 20(8) of the TADA

Act,

1987, are in consonance with the conditions prescribed under clauses (i) and (ii) of sub-section 437(1) of Cr.P.C. and clause (b) of sub-section 437(3) of Cr.P.C. Similar to the conditions in clause (b) of sub-section 20(8), there are provisions in various

other enactments — such as Section 35(1) of Foreign Exchange Regulation Act and Section 104(1) of the Customs Act to the effect that any authorised or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the condition that “there are grounds for believing that he is not guilty of an offence”, which condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Cr.P.C. and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution. It is pertinent to mention that the aforesaid observations made in the majority decision of the Constitution Bench of the Supreme Court in the said case of Kartar Singh v. State of Punjab, have been cited with approval in another Constitution Bench decision of the Supreme Court in the case of Sanjay Dutt v. State through CBI, Bombay (I1),? wherein it was observed that the aforesaid observations were clear and did not require any further elucidation.

4.

REMOVAL OF S. 438 CR.P.C. FOR TADA NOT VIOLATIVE OF ARTICLE 21

In Kartar Singh v. State of Punjab,'° it was contended that S. 20(7) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), takes away the right of an accused in availing the anticipatory bail which the arrestee would have otherwise been entitled to under S. 438 of the Code of Criminal Procedure; that S. 438 of the

Code is a very essential safeguard for liberty of a person; that it is found necessary to meet the obvious cases of misuse of police power; and that abolition of the right of anticipatory bail amounts to deprivation of personal liberty as enshrined in Article 21 of the Constitution. Holding that S. 438 of Cr.P.C. is a new provision incorporated in the present Cr.P.C. creating a new right, and that if that new right is taken away, it

cannot be said that the removal of S. 438 is violative of Article 21, and that S. 20(7) of TADA Act was thus valid, the Supreme Court observed that: “It is needless to emphasise that both the Parliament as well as the State Legislatures have got legislative competence to enact any law relating to the Code of Criminal

. Hitendra Vishnu Thakur y. State of Maharashtra, 1995 Cri LJ 517 at p.

(1994) 4 SCC 602 : 1994 SCC (Cri) 1087.

. AIR 1994 SC 2623 : p. 531 :

. Premkumar y. State of Karnataka, 1994 Cri LJ 3641 at p. 3647 (Kant). . Kartar Singh vy. State of Punjab, (1994) 3 SCC 569 at p. 707 : 1994 Cri LJ 3139 : 1994 SCC (Cri) 899 (per majority).

» (1994) 5 SCC 410 at p. 443 : 1995 Cri LJ 477 ; 1994 AIR SCW 3857 : 1994 SCC (Eri) 1433.

. (1994) 3 SCC 569 at pp. 698-700 : 1994 Cri LJ 3139 : 1994 SCC (Cri) 899,

=] — on an

Syn.5]

Bail Application under Art. 226 not Normally to be Entertained

1035

Procedure. No provision relating to anticipatory bail was in the old Code and it was introduced for the first time in the present Code of 1973 on the suggestion made of the

_ Forty-first Report of the Law Commission and the Joint Committee Report. ...” “It is relevant to note one of the reasons

given by the Law

Commission

for its

Suggestions to introduce the provision for anticipatory bail, that reason being “... 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”. To put it differently, it can be’deduced from the reasoning of the Report of the Law Commission that where a person accused of a non-bailable offence is likely to abscond or otherwise misuse his liberty while on bail, will have no justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond or misuse their liberty if released on anticipatory bail? Evidently, the Parliament has thought it fit not to extend the benefit of Section 438 to such offenders.”

5.

BAIL APPLICATION UNDER ART. 226 NOT NORMALLY TO BE ENTERTAINED

In Kartar Singh v. State of Punjab,'' a question before the Constitution Bench of the Supreme Court was whether a High Court can entertain a bail application in exercise of its powers_under Article 226 of the Constitution. As per the decision of four Judges (majority 7 judgment delivered by PANDIAN, J., for himself, PUNCHHI and AGRAWAL, JJ.; with SAHAI, J., concurring” by a separate judgment), the High Court should not normally entertain such bail applications, though its jurisdiction under Article 226 is not barred yet it should be exercised only in very exceptional cases. However, RAMASWAMY, J., in his dissenting judgment'* held that the High Court’s jurisdiction under Article 226 got eclipsed and denuded of the powers over the matters covered under the Act. The observations made in the majority judgment in this regard are as under’”: “Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not being an interlocutory order) of a Designated Court etc. The overriding effect of the provisions of the Act (i.e. Section 25 of TADA Act) and the Rules made thereunder and the non-obstante clause in Section 20(7) reading, “Notwithstanding anything contained in the Code....” clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore, ... ... if the High Court is inclined to entertain any application under Article 226, that power should be exercised most »

(1994) 3 SCC 569 at p. 708 : 1994 Cri LJ 3139 : 1994 SCC (Cri) 899.

.

(Cri) 899. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at pp. 765-67 : 1994 Cri LJ 3139 : 1994 SCC

. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at pp. 708-10 : 1994 Cri LJ 3139 : 1994 SCC (Cri) 899.

Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at pp. 750-51 : 1994 Cri LJ 3139 : 1994 SCC

(Cri) 899.

Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at p. 710: 1994 Cri LJ 3139 : 1994 SCC (Cri)

899 (per majority).

1036

Bail under TADA Act

[Chap. 23

sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in strait-jacket. However, we would

like to emphasise and re-emphasise that the judicial discipline and comity of courts

require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the special Act since this Court has jurisdiction to interfere and correct the orders of the High Courts under Article 136 of the Constitution.”

6. POWER OF BAIL OF DESIGNATED COURT IS IN S. 437 CR.P.C. AND NOT S. 20(8) OF TADA It is true that the source of power of a Designated Court to grant bail is not S. 20(8) of the TADA Act as it only places limitations on such power. This is made explicit by S. 20(9) which enacts that the limitations on granting of bail specified in S. 20(8) are “in addition to the limitations under the Code or any other law for the time being in force”. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to S. 439 of the Code. It cannot be doubted that a Designated Court is “a Court other meaning of S. 437 of Designated Court is not subject to the limitations

than the High Court or the Court of Session” within the the Code. The exercise of the power to grant bail by a only subject to the limitations contained therein, but is also placed by S. 20(8) of the Act.’°

S. 20(8) of TADA Act commences with a non obstante clause and in its operative part by the use of negative language prohibits the enlargement on bail of any person accused of commission of an offence under the Act, if in custody, unless two conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application for such release and the second condition is that where there is such opposition, the Court must be 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. If either of these two conditions is not satisfied, the ban operates and the person under detention cannot be released on bail. It is quite obvious that the source of power of a Designated Court to grant bail is not S. 20(8) of the Act but it only places limitations on such powers. This is implicit by S. 20(9) which in terms provides that 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. It therefore follows that the power derived

by a Designated Court to grant bail to a person accused of an offence under the Act, if in custody, is derived from the Code and not from S. 20(8) of the Act.’”

While it is true that Chapter XXXIII of the Cr.P.C. is still preserved as otherwise the Designated Courts would have no power to grant bail, still the source of power is

not S. 439 of the Code but S. 437 being a Court other than the High Court or the

Court of Session. Any other view would lead to an anomalous situation. If it were to

be held that the power of a Designated Court to grant bail was relatable to S. 439 of

Cr.P.C. it would imply that not only the High Court but also the Court of Session

would be entitled to grant bail on such terms as they deem fit. The power to grant

bail under S. 439 is unfettered by any conditions and limitations like S. 437. It would run counter to the express prohibition contained in S. 20(8) of TADA which enjoins

that notwithstanding

16.

17.

anything in the Code, no person

accused

Usmanbhai Dawoodbhai Memon y. State of Gujarat, 1988 Cri LJ 938 at

" : AIR 1988 SC 922 :1988 SCC (Cri) 318. ad Usmanbhai Dawoodbhai Memon y, State of Gujarat, - AIR 1988 SC 922 : 1988 SCC (Cri) 318.

P

of an offence

p. 947 : (1988) 2 SCC 271

(1988)

1988 Cri LJ 938 at p, 947 : (1988) 2 SCC 271

P

(1988) 2 SCC

Syn. 7]

High Court has no Power of Bail in TADA Cases

1037

punishable under the Act or any rule made thereunder shall, if in custody be released

on bail unless the conditions set forth in clauses (a) and (b) are satisfied

7.

:

HIGH COURT HAS NO POWER OF BAIL IN TADA CASES

What are the powers of the High Court to grant bail under S. 439 of the Code of Criminal Procedure, 1973, or by recourse to its inherent powers under S. 482 of the Code, to a person arrested for an offence under Ss. 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)? This was the question before the Supreme Court in the case of Usmanbhai Dawoodbhai Memon y. State of Gujarat, wherein it was held that the High Court had no jurisdiction to entertain an application for bail under S. 439 or under S. 482 of the Code. The detailed observations of the Supreme Court, explaining the reasons for holding so, are given in the following paragraphs.

The Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), being a special Act must prevail in respect of the jurisdiction and power of the High Court to entertain an application for bail under S. 439 of the Cr.P.C. or by recourse to its inherent powers under S. 482 of Cr.P.C. Under the scheme of the said Act, there is complete exclusion of the jurisdiction of the High Court in any case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder. There is contrariety between the provisions of the Act and those contained in the Code. Under the Code, the High Court is invested with various functions and duties in relation to any judgment or order passed by criminal Court subordinate to it. The legislature by enacting the said law (TADA) has treated terrorism as a special criminal problem and created a special Court called a Designated Court to deal with the special problem and provided for a special procedure for the trial of such offences. Just as the legislature can create a special Court to deal with a special problem, it can also create new procedure within the existing system. Parliament in its wisdom has adopted the frame-work of the Code but the Code is not applicable. The Act is a special Act and creates a new class of offences called terrorist acts and disruptive activities as defined in Ss. 3(1) and 4(2) and provides for a special procedure for the trial of such offences. Where an enactment provides for a special procedure for the trial of certain offences, it is that procedure that must be followed and not the one prescribed by the Code.

The court must give some meaning to the opening words of S. 14(3) of TADA “Subject to the other provisions of the Act” and adopt a construction in furtherance of the object and purpose of the Act. The manifest intention of the legislature is to take away the jurisdiction and power of the High Court under the Code with respect to offences under the Act. No other construction is possible. There is a total departure from different classes of Criminal Courts enumerated in S. 6 of the Cr.P.C. and a new hierarchy of Courts is sought to be established by providing for a direct appeal

to the Supreme Court from any judgment or order of a Designated Court, not being an interlocutory order, and substituting the Supreme Court for the High Court by S.

18. Usmanbhai Dawoodbhai Memon v. State of Gujarat, 1988 Cri LJ 938 at pp. 948-49 : (1988) 2 SCC

271 : AIR 1988 SC 922 : 1988 SCC (Cri) 318. | 19. 1988 Cri LJ 938 at p. 949 : (1988) 2 SCC 271 : AIR 1988 SC 922 : 1988 SCC (Cri) 318. 20. Usmanbhai Dawoodbhai Memon v. State of Gujarat, 1988 Cri LJ 938 at p. 946 : (1988) 2 SCC 271 - AIR 1988 SC 922 : 1988 SCC (Cri) 318. . 21. Usmanbhai Dawoodbhai Memon vy. State of Gujarat, 1988 Cri LJ 938 at p. 946 : (1988) 2 SCC 271 - AIR 1988 SC 922 : 1988 SCC (Cri) 318.

1038

Bail under TADA Act

[Chap. 23

20(6) of TADA in the matter of confirmation of a death sentence passed by a Designated Court. 4 Though there is no express provision excluding the applicability of S. 439 of the Code similar to the one contained in S. 20(7) of TADA in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not S. 20(8) of the Act as it only places limitations on such power. This is

made explicit by S. 20(9) which enacts that the limitations on granting of bail specified in S. 20(8) are “in addition to the limitations under the Code or any other law for the time being in force’’. But it does not necessarily follow that the power of a’”’ Designated Court to grant bail is relatable to S. 439 of the Code. It cannot be doubted that a Designated Court is ‘‘a Court other than the High Court or the Court of Session” within the meaning of S. 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by S. 20(8) of the Act.” In view

of the explicit bar in S. 19(2) of TADA,

there is exclusion

of the

jurisdiction of the High Court. It interdicts that no appeal or revision shall lie to any Court, including the High Court, against any judgment, sentence or order, not being an interlocutory order, of a Designated Court. The Act by S. 19(1) confers the right of appeal both on facts as well as on law to the Supreme Court. Further, while it is true that Chapter XXXIII of the Cr.P.C. is still preserved as otherwise the Designated Courts would have no power to grant bail, still the source of power is not S. 439 of the Code but S. 437 being a Court other than the High Court or the Court of Session. Any other view would lead to an anomalous situation. If it were to be held that the power of a Designated Court to grant bail was relatable to S. 439 of Cr.P.C. it would imply that not only the High Court but also the Court of Session would be entitled to grant bail on such terms as they deem fit. The power to grant bail under S. 439 is unfettered by any conditions and limitations like S. 437. It would run counter to the express prohibition contained in S. 20(8) of TADA which enjoins that notwithstanding anything in the Code, no person accused of an offence punishable under the Act or any rule made thereunder shall, if in custody, be released on bail unless the conditions set forth in clauses (a) and (b) are satisfied. Accordingly, the High Court has no jurisdiction to entertain an application for bail under S. 439 or

under S. 482 of the Code.”

It is pertinent to mention that in Balchand Jain v. State of M.P.,”> the Supreme Court had held R. 184 of the Defence and Internal Security of India Rules, 1971, did not take away the power conferred on a Court of Session or a High Court under S. 438 of Cr.P.C. to grant anticipatory bail. Likewise, a Full Bench of the Himachal

Pradesh High Court in /shwar Chand v. State of Himachal Pradesh° had held that

R. 184 did not affect the jurisdiction and power of the High Court under Ss. 438 and 439 of the Code which were independent of the power of the special tribunal to try an offence for contravention of an order made under S. 3 of the Defence and Internal 22.

Usmanbhai Dawoodbhai Memon y. State of Gujarat, 1988 Cri LJ 938 at p. 947 : (1988) 2 SCC 271

: AIR 1988 SC 922 : 1988 SCC (Cri) 318. 23.

Usmanbhai Dawoodbhai Memon y. State of Gujarat, 1988 Cri LJ 938 at p. 947 : (1988) 2 SCC 271

Usmanbhai Dawo

a

SO (Cri) 318. 0G

: AIR 1988 SC ee

24.

ai

Memon y. State of

271 : AIR 1988 SC 922 : 1988 SCC (Cri) 318.

25.

AIR 1977 SC 366 at p. 370 : 1977 Cri LJ 225 : (1976) 4 SCC 572 : (1977) 2 SCR 52 : 1976 SCC

(Cri) 689 (per BHAGWATI and GUPTA, JJ.).

26.

1976 Cri LJ 386: ILR (1975) HP 565 (FB).

Gujarat,

Cri LJ 938 at

#

p . 948-49 :

ee

Syn. 7]

High Court has no Power of Bail in TADA Cases

1039

Security of India Act, 1971. However, while holding as aforesaid that the High Court

has nojurisdiction to entertain an application for bail under S. 439 or under S. 482 of

the Code in respect of a person arrested under TADA, the Supreme Court in Usmanbhai Dawoodbhai Memon y. State of Gujarat,” observed that both these

aforesaid decisions were clearly distinguishable. It was observed that the view expressed in Balchand Jain case was not applicable here at all for more than one reason. There was nothing in the Defence and Internal Security of India Act or the Rules framed thereunder which would exclude the jurisdiction and power of the High Court altogether; on the contrary, S. 12(2) of that Act expressly vested in the High Court the appellate jurisdiction in certain specified cases. However, in view of the explicit bar in S. 19(2) of TADA, there is exclusion of the jurisdiction of the High Court. Moreover, it was also observed that both the aforesaid decisions in Balchand Jain and in /shwar Chand turned on the scheme of the Defence and Internal Security of India Act, 1971; they proceeded on the well recognised principle that an ouster of jurisdiction of the ordinary Courts is not to be readily inferred except by express provision or by necessary implication. It all depends on the scheme of the particular Act as to whether the power of the High Court and the Court of Session to grant bail under Ss. 438 and 439 exists. In State of Punjab v. Kewal Singh,*® which was a case under TADA relating to the

attempt on life of J.F. Ribeiro, then DGP of Punjab and in which two police personnel had lost their lives, one accused had been allowed to be released on bail by the Designated Court on the ground that no role was attributed to him, while other accused persons were denied bail. On an application filed by other accused persons before the High Court under S. 439 Cr.P.C. for grant of bail, the High Court granted bail to them too on the ground that one accused had already been granted bail the evidence collected against whom was of the same type. On appeal, the Supreme Court set aside the order of the High Court granting bail to the accused persons holding that the High Court had no jurisdiction under S. 439 Cr.P.C. to entertain an application for bail in view of the principles laid down in the case of Usmanbhai Dawoodbhai Memon vy. State of Gujarat. However, liberty was given to the accused persons to move the Designated Court afresh for bail which was directed to be decided in accordance with the principles laid down in the said Usmanbhai case. Considering the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), it is amply clear that the entire Criminal Procedure Code is not

made applicable to that Act but some provisions of the Criminal Procedure Code are made applicable with or without modifications. Therefore there is no reason to hold that provisions of S. 439 or S. 482 of the Cr.P.C., are applicable to a person accused of an offence punishable under the said Act. In view of S. 17(5) of the said Act the provisions of bail provided under the Criminal Procedure Code would not be applicable and the bail application is required to be decided as per the criteria laid down under sub-sections (5) and (6) of S. 17 of that Act. Nowhere it is provided that

S. 439 of the Code is applicable. Therefore, there is no question of applying S. 439 of the Code and entertain the application under it? An application under S. 439 and/or S. 482 of the Cr.P.C., is not maintainable

before the High Court against the order passed by the Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA).”! 27. 28.

1988 Cri LJ 938 at pp. 948-49 : (1988) 2 SCC 271 : AIR 1988 SC 922 : 1988 SCC (Cri) 318. 1990 Supp SCC 147 at pp. 147-48 : 1990 SCC (Cri) 640.

30. 31.

Usmanbhai Pareedbhai v. State of Gujarat, 1987 Cri LJ 1955 at pp. 1961-62 Usmanbhai Pareedbhai v. State of Gujarat, 1987 Cri LJ 1955 at p. 1965 (Gu)j).

29. 1988 Cri LJ 938 : (1988) 2 SCC 271 : AIR 1988 SC 922 : 1988-SCC (Cri) 318.(Gu)).

1040

Bail under TADA Act

8.

[Chap., 23

HEAVY BURDEN CAST ON PUBLIC PROSECUTOR AND COURT IN BAIL MATTERS UNDER TADA

In the matter of granting bail to the accused charged with the offence punishable under the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), a heavy burden has been cast by the legislature to be shouldered proportionately by the Public Prosecutor and the court. It is plain from S. 17(5) of the Act that despite that offence against an offender being triable by a designated court, bail can still be granted to him but in considering for it the Public Prosecutor has been cast a duty to weigh the pros and cons of the release of the offender on bail. If he does not oppose the application for bail, he in that way shares a heavier burden with a grave sense of responsibility and thereby absolves the court from recording satisfaction that while on bail the offender was not likely to commit an offence. Such satisfaction the court has only to record where the Public Prosecutor opposes the application for bail. But this does not mean that where bail is conceded by the Public Prosecutor the court need always to allow it. The court can still not grant bail even if conceded by the Public Prosecutor.

9.

CONSIDERATIONS FOR BAIL IN TADA CASES

It is plain from the language of S. 17(5) of the Terrorist and Disruptive Activities (Prevention)

Act,

1985 (TADA),

that the Court

must

adopt a negative attitude

towards bail but turn it positive firstly if it is satisfied that there are reasonable grounds for believing that the accused is not guilty of offence under the Act and secondly that he is not likely to commit any offence while on bail. Both these tests must be satisfied before bail can be granted. Bail is at the most a matter of procedural privilege and not accrued right until it is granted. The Act as a legislative measure was passed in the circumstances which were compelling as the objects and reasons disclose. Its life is for a period of two years from the date of its enforcement in accordance

with S. 1(3) of the Act. It is a temporary

measure

taken when

the

integrity, unity and peace of the country was at stake. The parliament in its wisdom considered such an emergent legislation necessary when the nation was in peril. The disorders which necessitated this legislation into being were the terrorist acts and disruptive activities of some and the Act is a measure to cope with them. The power of the Court to grant bail has advisedly been regulated in place of that conferred by the Cr.P.C. so as to promote and not defeat the efficacy of the legislation. Therefore,

it is right for the Court to interpret the bail provisions in such a way.

10. INTEREST OF COMMUNITY AND SAFETY OF NATION TO BE KEPT IN MIND No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in cases like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not lose faith in the system of judicial administration and indulge in private retribution. 32. Ramesh Kumar v. State of Haryana, 1988 Cri LJ 105 at p. 107 (P&H). 33. Sukhdev Singh v. Union Territory, Chandigarh, 1986 Cri LJ 1757 at p. 1765 (P&H) (FB) : AIR

1987 P&H 5 (per majority decision). 34. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at p. 707 : 1994 Cri LJ 3139 ; 1994 SCC (Cri) 899 (per majority). See also, Narinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810 at p. 3826 : (2002) 2 SCC 210; Shaheen Welfare Association v, Union of India, 1996 Cri LJ 1866 at p. 1868 : AIR 1996 SC 2957 : (1996) 2 SCC 616 : 1996 SCC (Cri) 366.

Syn. 13] S.

167 Cr.P.C. Applicable under TADA but with Different Periods

1041

11. WORD OF CAUTION ABOUT ABUSE OF TADA TO DEPRIVE BAIL It is true that on many occasions, one comes across cases wherein the prosecution unjustifiably invokes the provisions of the TADA Act with an oblique motive of

depriving the accused persons from getting bail and in some occasions when the

courts are inclined to grant bail in cases registered under ordinary criminal law, the investigating officers in order to circumvent the authority of the courts invoke the provisions of the TADA Act. This kind of invocation of the provisions of TADA in cases, the facts of which do not warrant, is nothing but sheer misuse and abuse of the Act by the police. Unless, the public prosecutors rise to the occasion and discharge their onerous responsibilities keeping in mind that they are prosecutors on behalf of the public but not the police and unless the Presiding Officers of the Designated Courts discharge their judicial functions keeping in view the fundamental rights particularly of the personal right and liberty of every citizen as enshrined in the Constitution to which they have been assigned the role of sentinel on the qui vive , it cannot be said that the provisions of TADA Act are enforced effectively in consonance with the legislative intendment.

12. COURT SHOULD CAREFULLY SEE IN EACH CASE WHETHER PROVISIONS OF TADA ACT APPLY S. 20(8) of TADA in terms places fetters on the power of a Designated Court on granting of bail and the limitations specified therein are in addition to the limitations under the Code of Criminal Procedure. Under S. 20(8) of TADA, no person accused

of an offence punishable under the Act or any rule made thereunder shall, if in custody be released on bail or on his own bond unless the two conditions specified in clauses

(a) and (b) are satisfied.

In view

of these more

stringent conditions

a

Designated Court should carefully examine every case coming before it for finding out whether the provisions of the Act apply or not. Since before granting bail the Court is called upon to satisfy itself that there are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail, the allegations of fact, the police report along with the statements in the case diary and other available materials should be. closely examined. A prayer for bail ought not to be rejected in a mechanical manner.

13. S. 167 CR.P.C. APPLICABLE UNDER TADA BUT WITH DIFFERENT PERIODS Sub-section (4) of Section 20 of TADA makes the provision of Section 167 of the

|

Code applicable in respect of offences under TADA except that the periods | prescribed for the authorised detention in respect of such offences during which the investigation should be completed are different. After the expiry of periods which have been specified in Section 20(4)(b) and Section 20(4)(bb) of TADA, the accused

for an offence under TADA

acquires the right to be released on bail in terms of

proviso (a) to Section 167(2) of the Code. This right cannot be defeated by any court,

if the accused concerned is prepared and does furnish bail bonds to the satisfaction of the court concerned.

35.

Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at p. 707 : 1994 Cri LJ 3139: 1994 SCC (Cri) 899 (per majority). See also, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, 2005 Cri LJ 2533 at p. 2552 : (2005) 5 SCC 294 : AIR 2005 SC 2277 : 2005 SCC (Cri) 1057.

36. Usmanbhai Dawoodbhai Memon y. State of Gujarat, 1988 Cri LJ 938 at p. 949 : (1988) 2 SCC 271 : AIR 1988 SC 922 : 1988 SCC (Cri) 318.

C (Cri

37. Mohd. Iqbal Madar Sheikh v. State of Maharashtra, (1996) 1 SCC 722 at p. 728 :, 1996 SCC (Cri) 202.

-

1042

Bail under TADA Act

[Chap. 23

14. S. 167(2) OF CODE R/W S. 20(4)(B) OF TADA-RIGHT TO DEFAULT BAIL S. 167 read with S. 20(4) of TADA, strictly of bail” but deals with the maximum period offence may be kept in custody and detention complete the investigation and file the charge

speaking is not a provision for “grant during which a person accused of an to enable the investigating agency to sheet, if necessary, in the Court. The

proviso to S. 167(2) of the Code read with S. 20(4)(b) of TADA, therefore, creates an

indefeasible right in an accused person, on account of the ‘default’ by the investigating agency in the completion of the investigation within the maximum period prescribed or extended, as the case may be, to seek an order for his release on bail. It is for this reason that an order for release on bail under proviso (a) of S. 167(2) of the Code read with S.20(4) of TADA is generally termed as an “‘order-ondefault” as it is granted on account of the default of the prosecution to complete the investigation and file the challan within the prescribed period.” F A person accused under TADA after the expiry of 180 days from the date of his arrest becomes entitled to bail irrespective of the nature of the offence with which he is charged, where the prosecution fails to put up challan against him on completion of the investigation. With the amendment of clause (b) of sub-section (4) of S. 20 of

TADA read with the proviso to sub-section (2) of S. 167 of Cr.P.C., an indefeasible right to be enlarged on bail accrues in favour of the accused, if the police fails to complete the investigation and put up a challan against him in accordance with law under S. 173, Cr.P.C. An obligation, in such a case, is cast upon the Court, when after the expiry of the maximum period during which an accused could be kept in custody, to decline the police request for further remand except in cases governed by

Clause (bb) of S. 20(4) of TADA.””

Section 20 of the TADA Act prescribes the modified application of the Code of Criminal Procedure indicated therein. The effect of Sub-Section (4) of Section 20 of

the TADA Act is to apply Section 167 of the Code of Criminal Procedure in relation to a case involving an offence punishable under the TADA Act subject to the modifications indicated therein. One of the modifications made in Section 167 of the Code by Section 20(4) of the TADA Act is to require the investigation in any offence under the TADA Act to be completed within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period up to one year if it is satisfied that it is not possible to complete the investigation within the said period of 180 days, on 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 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default to

complete the investigation within the time allowed.”

38. Hitendra Vishnu Thakur y. State of Maharashtra, 1995 Cri (1994) 4 SCC 602 : 1994 SCC (Cri) 1087. Also see, Maharashtra, 2001 Cri LJ 1832 at p. 1838 : AIR 2001 SC (Cri) 760. 39. Hitendra Vishnu Thakur v. State of Maharashtra, 1995 Cri

(1994) 4 SCC 602 : 1994 SCC (Cri) 1087.

LJ 517 at p. 529: AIR 1994 SC 2623 : Uday Mohanlal Acharya v. State of 1910 : (2001) 5 SCC 453 : 2001 SCC LJ 517 at p, 529: AIR 1994 SC 2623 :

;

40. Sanjay Dutt v. State through CBI, Bombay (11), (1994) 5 SCC 410 at pp. 439-40 : 1995 Cri LJ 477 : 1994 AIR SCW 3857.: 1994 SCC (Cri) 1433.

Syn. 17]

Limited Nature of objection to Default Bail

1043

15. COURT TO INFORM OF RIGHT OF BAIL ON EXPIRY OF MAXIMUM PERIOD UNDER §. 20(4) An obligation is cast upon the Court, after the expiry of the maximum period during which a person accused under TADA could be kept in custody as per clause (b) of S. 20(4) of TADA read with the proviso to S. 167(2) of Cr.P.C. [subject to the provisions of clause (bb) of the said S. 20(4) of TADA], to inform the accused of his right of being released on bail and enable him to make an application in that behalf.*'

16. RIGHT TO FILE FOR BAIL ON EXPIRY OF PERIOD UNDER S. 20(4) Once the period for filing the charge sheet has expired and either no extension under. Clause (bb) of S. 20(4) of TADA has been granted by the Designated Court or

the period of extension has also expired, the accused person would be entitled to move an application for being admitted to bail under sub-section (4) of S. 20 of TADA read with S. 167 of the Cr.P.C. and the Designated Court shall release him on bail, if the accused seeks to be so released and furnishes the requisite bail. It is not correct to suggest that on the expiry of the period during which investigation is required to be completed under S. 20(4) of TADA read with S. 167 of the Code, the Court must release the accused on bail on its own motion even without any application from an accused person, on his offering to furnish bail. As an accused is required to make an application if he wishes to be released on bail on account of the ‘default’ of the investigating / prosecuting agency and once such an application is made, the Court should issue a notice to the public prosecutor, who may either show that the prosecution has obtained the order for extension for completion of investigation from the Court under Clause (bb) of S. 20(4) of TADA or that the challan has been filed in the Designated Court before the expiry of the prescribed period or even that the prescribed period has actually not expired and, thus resist the grant of bail on the alleged ground of ‘default’. The issuance of notice would avoid the possibility of an accused obtaining an order of bail under the ‘default’ clause by either deliberately or inadvertently concealing certain facts and would avoid multiplicity of proceedings. It would, therefore, serve the ends of justice if both sides are heard on a petition for grant of bail on account of the prosecution's ‘default’.

17. LIMITED NATURE OF OBJECTION TO DEFAULT BAIL The objection to the grant of bail to an accused on account of the ‘default’ of the prosecution to complete the investigation and file the challan within the maximum

period prescribed under Clause (b) of S. 20(4) of TADA read with S. 167 of Cr.P.C.

or within the extended period as envisaged by Clause (bb) of S. 20(4) of TADA, has to be limited to the cases where either the factual basis for invoking the default’ clause is not available or the period for completion of investigation has been extended under the said Clause (bb) and the like. No other condition, like the gravity of the case, seriousness of the offence or character of the offender etc. can weigh

41.

Hitendra Vishnu Thakur v. State of Maharashtra,

1995 Cri LJ 517 at pp. 529-30 : AIR 1994 SC

2623 : (1994) 4 SCC 602 : 1994 SCC (Cri) 1087; relying upon Hussainara Khatoon (IV) v. Home SCC (Cri) Secy., State of Bihar, (1980) 1 SCC 98 : AIR 1979 SC 1369 : 1979 Cri LJ 1045 : 1980

: 40. Also see, Aslam Babalal Desai y, State of Maharashtra, AIR 1993 SC 1 : (1992) 4CriSCCLJ 272 1832 1992 SCC (Cri) 870; Also see, Uday Mohanlal Acharya v. State of Maharashtra, 2001

42.

at p. 1838 : AIR 2001 SC 1910: (2001) 5 SCC 453 : 2001 SCC (Cri) 760. SC 2623 : Hitendra Vishnu Thakur y. State of Maharashtra, 1995 Cri LJ 517 at p. 530: AIR 1994 1087. (1994) 4 SCC 602 : 1994 SCC (Cri)

1044

Bail under TADA Act

[Chap. 23

with the Court at that stage to refuse the grant of bail to an accused under S. 20(4) TADA on account of the ‘default’ of the prosecution. 18. BAIL UNDER S. 20(4) NOT INFLUENCED BY MERITS OR GRAVITY OF CASE An application for grant of bail under S. 20(4) of TADA has to be decided on its

own merits for the default of the prosecuting agency to file the charge sheet within the prescribed or the extended period for completion of the investigation uninfluenced by the merits or the gravity of the case. The Court has no power to remand an accused to custody beyond the period prescribed by Clause (b) of S. 20(4) of TADA or extended under Clause (bb) of the said section, as the case may be, if the challan is not filed only on the ground that the accusation against the accused is of a serious nature or the offence is very grave. These grounds are irrelevant for considering the grant of bail under S. 20(4) of TADA. It is not correct to suggest that while considering an application for release on bail under S. 20(4) of TADA, the Court has also to be guided by the general conditions for grant of bail as provided by S. 20(8) of TADA. Considering the ambit and scope of the two provisions, it is totally inconceivable and unacceptable that the considerations for grant of bail under S. 20(8) would be applicable to and control the grant of bail under S. 20(4) of the Act. The two provisions operate in different and independent fields. The basis for grant of bail under S. 20(4) is entirely different from the grounds on which bail may be granted under S. 20(8) of the said Act.

19, AMENDMENT OF 1993 IN S. 20(4) HAS RETROSPECTIVE OPERATION Clause

(b) of sub-section

(4) of Section

20 of TADA

was

amended

by the

Amendment Act No. 43 of 1993 with effect from 22nd May, 1993. Besides, reducing the maximum period during which an accused under TADA could be kept in custody pending investigation from one year to 180 days, the Amendment Act also introduced clause (bb) to sub-section (4) of Section 20 enabling the prosecution to seek extension of time for completion of the investigation. Does the Amendment Act No. 43 of 1993 have retrospective operation and does the amendment apply to the cases which were pending investigation on the date when the Amendment Act came into force? This was the question before the Supreme Court in Hitendra Vishnu Thakur v. State of Maharashtra.” The Supreme Court held that the said Amendment Act 43 of 1993 was retrospective in operation and both clauses (b) and (bb) of subsection (4) of Section 20 of TADA would apply to the cases which were pending investigation on the date when the said amendment came into force with effect from

May 22, 1993, and in which the challan had not been filed till then.

20. PUBLIC PROSECUTOR TO SEEK EXTENSION OF TIME FOR INVESTIGATION On a plain reading of Clause (bb) of sub-sec. (4) of S. 20 of TADA, it may be pointed out that the legislature has provided for seeking extension of time for completion of investigation on a report of the public prosecutor, The legislature did not purposely leave it to an Investigating Officer to make an application for seeking 43.

Hitendra Vishnu Thakur vy. State of Maharashtra, 1995 Cri LJ 517 at p . 530-31 : AIR 1994 SC + 2623 : (1994) 4 on : 1994 SCC (Cri) 1087. 44. Hitendra Vishnu Thakur v. State of Maharashtra, 1995 Cri LJ 517 at p. 531 : AIR 1994 SC 2623 : (1994) 4 SCC 602 : 1994 SCC (Cri) 1087. . 45. 1995 Cri LJ 517 at pp. 534-36 : AIR 1994 SC 2623 : (1994) 4 SCC 602 : 1994 SCC (Cri) 1087.

Syn. 21]

Extension of Custody Granted u/s. 20(4)(bb) on Report, etc.

1045

extension of time from the Court. This provision is in tune with the legislative intent

to have the investigations completed expeditiously and not to allow.an accused to be

kept in continued detention during unnecessary prolonged investigation at the whims

of the police. The legislature expects that the investigation must be completed with utmost promptitude but where it becomes necessary to seek some more time for completion of the investigation, the investigating agency must submit itself to the scrutiny of the public prosecutor in the first instance and satisfy him about the

progress of the investigation and furnish reasons for seeking further custody of an

accused. Thus for seeking extension of time under clause (bb), the public prosecutor

after an independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation.”°

21. EXTENSION OF CUSTODY GRANTED UNDER S. 20(4)(BB) ON REPORT OF I.0. HELD ERRONEOUS In Hitendra Vishnu Thakur y. State of Maharashtra,’’ on the facts of the case, it was held by the Supreme Court that the extension of custody under clause (bb) of S. 20(4) of TADA was erroneously granted by an improper exercise of the jurisdiction by the Designated Court by placing an incorrect interpretation on the requirements as contemplated by the said clause (bb) by treating the application of the investigating officer read with his objections to the bail application as a report of the Public Prosecutor, though without effecting the validity of further investigation. It was held that in the absence of grant of valid extension of custody to complete the investigation and file the challan, the appellant had acquired an indefeasible and absolute right to be released on bail as per the provisions of Section 20(4) of TADA, since the accused had offered to be released on bail on such terms as the Designated Court might prescribe, and the Designated Court was, therefore, under an obligation to admit and release the appellant on bail under Section 20(4) of TADA read with Section 167(2), Cr.P.C. on the merits of the application under Section 20(4) itself uninfluenced by any other considerations. Accordingly, the order of the Designated Court refusing to grant bail to the appellant was set aside to that extent and the appellant was allowed to be released on bail. In Devinderpal Singh v. Govt. of National Capital Territory Designated Court under TADA had granted extension of time to agency for completion of the investigation under clause (bb) of TADA. This extension was granted on an application made by

of Delhi,** the the investigating Section 20(4) of the investigating

officer only and without any report of the Public Prosecutor. It was contended extension was granted behind the back of the accused and without permitting accused to have his say against the grant of extension. In the instant case, Supreme Court relying upon the following decisions, observed: e In Hitendra Vishnu Thakur v. State of Maharashtra,” it had been held for seeking extension of time under clause (bb) of S. 20(4) of TADA,

that the the that the

public prosecutor is required to make a report to the Designated Court indicating

justification

therein

the

for keeping

progress

of the

the accused

investigation

in further custody

and

disclosing

to enable

the

: AIR 1994 SC 2623 : 46. Hitendra Vishnu Thakur y. State of Maharashtra, 1995 Cri LJ 517 at p, 532 ¥

(1994) 4 SCC 602 : 1994 SCC (Cri) 1087. 1995 Cri LJ 517 at pp. 541-42 : AIR 1994 44atpp. 47-49. 48. (1996) | SCC

47.

49.

SC 2623 : (1994) 4 SCC 602 : 1994 SCC (Cri) 1087.

:

1995 Cri LJ 517 : AIR 1994 SC 2623 : (1994) 4 SCC 602 : 1994 SCC (Cri) 1087.

1046

Bail under TADA Act

[Chap. 23%

investigating agency to complete the investigation. Moreover, in the saidt case of Hitendra Vishnu Thakur, it had also been opined that no extension: can be granted by the Designated Court under clause (bb) unless the; accused is put on notice and permitted to have his say so as to be able to» object to the grant of extension.

In Sanjay Dutt v. State through CBI, Bombay (I1),*° the Constitution Bench had not expressed any contrary opinion insofar as the requirement of the report of the Public Prosecutor for grant of extension is concerned or on the effect of the absence of such a report under clause (bb) of Section 20(4) of TADA, but had observed that the ‘notice’ contemplated in the decision in the aforesaid Hitendra Vishnu Thakur case before granting extension for completion of investigation was not to be construed as a “written notice” to the accused and that only the production of the accused at the time of consideration of the report of the Public Prosecutor for grant of extension and informing him that the question of extension of the period for completing the investigation was being considered would be sufficient notice to the accused. In view of this legal position, the Supreme Court in the instant case, held that the order passed by the Designated Court without any report of the Public Prosecutor and without even the accused being produced and informed by the Designated Court that question of grant of extension of the period for completing investigation was under consideration, rendered the order granting extension by the Designated Court erroneous and that it could not be sustained. As a bail application filed by the accused was pending before the Designated Court, the Supreme Court left the question of bail to be decided by that Court in accordance with law.

22. EXTENSION OF PERIOD FOR INVESTIGATION ONLY IF INVESTIGATION NOT COMPLETE The Designated Court could grant extension of time under clause (bb) of S. 20(4)

of TADA on the report of the Public Prosecutor for completion of the investigation and filing the challan thereafter and for no other purpose. The Legislature has limited the grounds on which such extension could be granted and the Designated Court could not add to those grounds. Since, on its plain reading the said clause (bb) could

be invoked only if the investigation was not complete, the Public Prosecutor could not be permitted to seek extension of time under that clause for “administrative

difficulties” or obtaining ‘Sanction’ or the like grounds, if investigation was already complete.

completion

If extension

of time

of the investigation,

was

to be granted

it would

on

grounds,

other

defeat the legislative

than the

intent clearly

manifested in clauses (b) and (bb) of S. 20(4) of TADA — not to keep an accused in

custody beyond the time prescribed by clause (b) or as extended by clause (bb). The grant of extension beyond the period prescribed by clause (b) very seriously affects

the liberty of a citizen and the Designated Court commits an error in the exercise of its jurisdiction, if it grants extension of time ignoring the provisions of clause (bb). Grant of extension under clause (bb) on grounds extraneous thereto, at the whims of the investigating agency, cannot be permitted. The very object of the clause would be defeated if the period of compulsory detention is to be extended in a casual manner for reasons other than those envisaged by clause (bb). It was held that in the instant case, extension had been granted and bail declined to the appellant (Malarao T.

50. (1994) 5 SCC 410: 1995 Cri LJ 477 ; 1994 AIR SCW 3857 : 1994 SCC (Cri) 1433.

Syn. 24]

No Right of default Bail after Filing of Charge Sheet, etc.

1047

Kakodal) on grounds not sanctioned by the said clause (bb) and the order of Designated Court refusing bail to the said appellant was, therefore, set aside.>!

23. NOTICE TO ACCUSED NECESSARY WHEN EXTENSION OF PERIOD SOUGHT UNDER S. 20(4)(BB) When a report is submitted by the public prosecutor to the Designated Court for grant of extension under Clause (bb) of S. 20(4) of TADA,

its notice should be

issued to the accused before granting such an extension so that an accused may have an Opportunity to oppose the extension on all legitimate and legal grounds available to him. ‘This is a requirement of the principles of natural justice and the issuance of notice to the accused would accord with fair play in action, which the courts have always encouraged and even insisted upon. It would also strike a just balance between the interest of the liberty of an accused on the one hand and the society at large, through the prosecuting agency on the other hand.”

The matter relating to issuance of a notice for the purposes of Clause (bb) of S. 20(4) of TADA again arose in the case of Sanjay Dutt v. State through CBI, Bombay (1I),~ where a Constitution Bench of the Supreme Court held that Section 20(4)(bb)

of the TADA accordance

Act only required production of the accused

before the court in

with S. 167(1) of Cr. P.C. and that this was how the requirement of

- notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to Clause (bb) of Sub-section(4) of S.20

had to be understood in the decision reported in Hitendra Vishnu Thakur v. State of Maharashtra.’ The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the court informing | him that the question of extension of the period for completing the investigation is being considered is alone sufficient for the purpose.

24. NO RIGHT OF DEFAULT BAIL AFTER FILING OF CHARGE SHEET, IF NOT ALREADY AVAILED OF A Constitution Bench of the Supreme Court in the case of Sanjay Dutt v. State through CBI, Bombay (I1),° held that the “indefeasible right” of the accused to be released on bail in accordance with Section 20(4)(bb) of TADA

Act read with S.

167(2) of Cr.P.C. in default of completion of the investigation and of filing of the challan within the time allowed is a right which accrues to the accused and is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but by different provisions of the Code

| of Criminal Procedure. If that right had accrued to the accused but it remained | unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filed because Section 167 of Cr.P.C. ceases to apply. If there be such an application of the accused for release on

| 51.

|

Hitendra Vishnu Thakur v. State of Maharashtra,

4 SCC 602 : 1994 SCC (Cri) 1087. 2623 : (1994)

1995 Cri LJ 517 at pp. 546-47 : AIR 1994 SC

a

Bn.

1995 Cri LJ 517 at p. 530 : AIR 1994 SC 2623

|| 52.

Hitendra Vishnu Thakur v. State of Maharashtra,

| 53. | 54.

(Cri) 1433. (1994) 5 SCC 410 at p. 444 : 1995 Cri LJ 477 : 1994 AIR SCW 3857 : 1994 SCC 1995 Cri LJ 517 at p. 530: AIR 1994 SC 2623 : (1994) 4 SCC 602 : 1994 SCC (Cri) 1087.

|

(1994) 4 SCC 602 : 1994 SCC (Cri) 1087.

|

:

| 55. (1994) 5 SCC 410 at pp. 442-43 : 1995 Cri LJ 477 : 1994 AIR SCW 3857 : 1994 SCC (Cr!) 1433.

:

1048

Bail under TADA Act

[Chap. 2:

bail and also a prayer for extension of time to complete the investigation according tc the proviso in Section 20(4)(bb), both of them should be considered together. No bai can be given even in such a case unless the prayer for extension of the period i: rejected. In short, the grant of bail in such a situation is also subject to refusal of th prayer for extension of time, if such a prayer is made. If the accused applies for bai

under this provision on expiry of the period of 180 days or the extended period, a: the ease may be, then he has to be released on bail forthwith. The accused, sc released on bail may be arrested and committed provisions of the Code of Criminal Procedure.

to custody according

to the

In this manner, the Constitution Bench of the Supreme Court in the said Sanjay Dutt case, explained the nature and extent of the right of the accused to be releasec

on bail under Section 20(4)(bb) of the TADA Act read with Section 167, Cr.P.C. ir

the aforesaid situation. It was also held in this case that the decision of the Supreme

Court in Hitendra

Vishnu Thakur vy. State of Maharashtra,°

was clarified

accordingly, and that if the latter decision gave a different indication because of the final order made therein, then such a view was not correct. It is thus clear that in view of the decision of the Constitution Bench of the Supreme Court in the aforesaic¢ Sanjay Dutt case, the earlier decision of the Supreme Court in the aforesaid case of Hitendra Vishnu Thakur will have to be read as if the aforesaid right which accrues to the accused is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. In State v. Mohd.

Ashraft Bhat,’ the accused

Designated Court of TADA

was

released

on bail by the

in terms of Section 167 Cr.P.C. read with S. 20(4) of

TADA, inasmuch as the prosecution had failed to submit charge-sheet within the period of one year prescribed for this purpose. On appeal, the Supreme Cour observed that when claim for bail by the accused was being examined, the police report indeed stood filed, and yet the Designated Court granted bail to the accused or the mere fact that the police report had been filed belatedly, apparently considering the right of the accused to bail being indefeasible on the expiry of the period of one year. Relying upon the decision of the Supreme Court in the case of Sanjay Dutt v. State through CBI, Bombay (I1),* which had laid down that the indefeasible right accruing to the accused in such a situation was enforceable only prior to the filing of the challan and it did not survive or remain enforceable on the challan being filed - if already not availed of, the Supreme Court in the instant case held that the Designated Court was in error in granting bail to the accused. In Mohd.

Iqbal Madar Sheikh v. State of Maharashtra,”

the charge-sheet was

submitted against the appellants beyond the statutory period under Section 20(4)(b

of TADA read with S. 167 of Cr.P.C., and there was nothing on record to show that provisions of Section 20(4)(bd) relating to extension of the said period were appliec in respect of appellants. It was held that they had become entitled to be released or bail under proviso (a) to Section 167(2) of the Code read with Section 20(4)(b) of the

TADA. However, admittedly, no made on behalf of the appellants. on behalf of the appellants, there of default in completion of the 56. 57. 58.

application for bail on the said ground had beer It was held that unless applications had been made was no question of their being released on grounc investigation within the statutory period. It was

1995 Cri LJ 517 : AIR 1994 SC 2623 : (1994) 4 SCC 602 : 1994 scc (Cri) 1087. (1996) 1 SCC 432 at pp. 432-33 : 1996 SCC (Cri) 117. (1994) 5 SCC 410 at pp. 442-43 : 1995 Cri LJ 477 : 1994 AIR SCW 3857: 1994 SCC (Cri) 1433.

59. (1996) 1 SCC 722 at pp. 729-30 : 1996 SCC (Cri) 202; relying upon Sanjay Dutt v. State through CBI, rte

SCC (Cri) 1433.

(1994) 5 SCC 410 at pp. 442-43 : 1995 Cri LJ 477 : 1994 AIR SCW 3857 : 199

:

:

Syn. 27]

No Licence to Police to Delay Charge Sheet Due, etc.

1049

reiterated by the Supreme Court as being well settled that the said right cannot be exercised after the charge-sheet has been submitted and cognizance has been taken, because in that event the remand of the accused concerned including one who is alleged to have committed an offence under TADA, is not under Section 167(2) but

under other provisions of the Code. Accordingly, it was held by the Supreme Court that at such late stage it was not open to the appellants to claim bail under proviso (a) to Section

167(2) of the Code in view of the fact that the charge-sheet had been

submitted against them, and they were in custody on the basis of orders of remand passed under other provisions of the Code and that at such late stage proviso (a) to Section 167(2) shall not be applicable.

25. NO BAIL AFTER CHARGE SHEET FILED AFTER EXTENDED PRESCRIBED PERIOD Under S. 167 Cr.P.C. as amended by S. 20 of the TADA Act, the charge-sheet in a case under the TADA Act should be filed within 180 days. The proviso says that where it is not possible to complete the investigation in the said period of one hundred and eighty days, it can be extended up to one year on the report of the Public Prosecutor. But, in the instant case as no report was filed by the Public Prosecutor it was contended that the designated Court ought to have released the petitioner on bail after the expiry of the period of 180 days. However, admittedly no application had been filed by the petitioner for release on bail after the expiry of the period of 180 days on the ground that no charge-sheet is filed by the investigating agency. He had filed the bail application in the designated Court only after the charge-sheet was filed. Therefore, it was held that he could not be released on bail on this ground.

26. COMPUTATION OF PERIOD UNDER S. 20(4)(BB) NOT TO BEGIN FROM DATE OF ARREST IN EARLIER CASE The computation of the period of one year stipulated under S. 20(4)(bb) of TADA read with S. 167 of Cr.P.C. for the purposes of release on bail in default of submission of the charge-sheet must begin from the date of the arrest of the accused in the case in which the bail is sought and not from the date of original arrest in an earlier case. .

27. NO LICENCE TO POLICE TO DELAY CHARGE SHEET DUE TO ENHANCED PERIOD UNDER TADA Though by virtue of the provisions of S. 20 of the Terrorists and Disruptive

Activities (Prevention) Act, 1987, the words 90 days in sub-section (2)(a)(i) of S. 167

of Cr.P.C. have been substituted by words one year, for the purpose of the said Act, it is not a licence to the police or investigating agency to hold in custody an accused — person without trial for a period upto one year, by simply putting off filing of challan against him. Where it is revealed that investigating agency is merely treating the provisions as a means to keep the under-trial in detention without anything more the court must, while considering prayer for bail see how the investigation is proceeding

60. Kondaplli Seetharamyya y. Govt. of A.P., 1995 Cri LJ 2169 at pp. 2173-74 (AP); relying upon the decision in Hitendra Vishnu Thakur v. State of Maharashtra, 1995 Cri LJ 517 : AIR 1994 SC 2623; (1994) 4 SCC 602 : 1994 SCC (Cri) 1087. CBI 61. State v. Mohd. Ashraft Bhat, (1996) 1 SCC 432 at p. 433 : 1996 SCC (Cri) 117; relying upon \o! v. SCC (Cri) Anupam J. Kulkarni, 1992 Cri LJ 2768 : AIR 1992 SC 1768 : (1992) 3 SCC 141 : 1992 554.

[Chap. 23

Bail under TADA Act

1050

and release the person appropriate.

detained,

on bail forthwith

or otherwise

as it deems

28. BAIL UNDER S. 167 CR.P.C. FOR TADA CASE CANNOT BE CANCELLED ON MERE FILING OF CHARGE SHEET Any accused released on bail under proviso (a) to Section 167(2) of the Code read with Section 20(4)(b) or Section 20(4)(bb) of TADA, because of the default on the

part of the investigating agency to conclude the investigation within the period prescribed, in view of proviso (a) to Section 167(2) itself, shall be deemed to have

been so released under the provisions of Chapter XXXIII of the Code. It cannot be held that an accused charged of any offence, including offences under TADA, if released on bail because of the default in completion of the investigation, then no sooner the charge-sheet is filed, the order granting bail to such accused is to be cancelled. The bail of such accused who has been released, because of the default on the part of the investigating officer to complete the investigation, can be cancelled, but not on the ground only that after the release, charge-sheet has been submitted against such accused for an offence under TADA. For cancelling the bail, the wellsettled principles in respect of cancellation of bail have to be made out. But for that, the sole ground should not be that after the release of such accused the charge-sheet | has been submitted.”

29. DESIGNATED COURT GRANTING BAIL WRONGLY INTERPRETING PERIOD FOR FILING CHARGE SHEET In Central Bureau of Investigation y. Nazir Ahmed Sheikh,“ the accused was arrested in a case under TADA in connection with murder of a BSF Inspector. On December 29, 1992, the Designated Court granted bail to him on the ground that the occurrence had taken place on October 26, 1990 and the charge-sheet was filed on March 6, 1992. On appeal, the Supreme Court held that in view of the provisions of S. 167(2) of Cr.P.C. read with S. 20(4) of TADA, the charge-sheet was required to be

submitted within a period of one year in the instant case (i.e., prior to the amendment

carried out in S. 20(4) of TADA vide the Amendment Act 43 of 1993]. The Supreme Court observed that Investigating Officer hours from the date begin to run and be

when the accused had been arrested on March 8, 1991, the was enjoined to produce him before the Magistrate within 24 of the arrest; consequently, the limitation of one year would counted from next date of the arrest, namely, March 9, 1991;

since the charge-sheet had been filed on March 6, 1992, the Designated Court was not justified in holding that the charge-sheet was not filed within the limitation prescribed under Section 20(4) of TADA, i.e. one year. The later amendment to the Act (vide Amendment Act 43 of 1993) seeking permission of the Court for extension of the time or filing the necessary material to show the grounds on which the investigation could not be completed within the period was held to have no application since the arrest in this case had been made prior to the amendment of the Act.

62.

Gursewak Singh v. State of Punjab, \988 Cri LJ 1605 at p. 1606 (P&H).

63. Mohd. Iqbal Madar Sheikh v, State of Maharashtra, (1996) | SCC 722 at pp. 728-29 : 1996 SCC (Cri) 202; relying upon Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC | at p. 11: (1992) 4 SCC 272 : 1992 SCC (Cri) 870; Raghubir Singh v. State of Bihar, AIR 1987 SC 149 at p. 161 : (1986) 4 SCC 481 : 1986 SCC (Cri) S511. 64. (1996) 2 SCC 367 at pp. 368-69 : 1996 Cri LJ 1876 : AIR 1996 SC 2980 : 1996 SCC (Cri) 314.

Syn. 30] =Bail where Trial does not conclude within a Reasonable Time

1051

30. BAIL WHERE TRIAL DOES NOT CONCLUDE WITHIN A REASONABLE TIME In Shaheen

Welfare Association v. Union of India,” after taking a review of the

number of TADA cases pending in various States, the Supreme Court observed that there was very little prospect of a speedy trial of cases under TADA in some of the States because of the absence of an adequate number of Designated Courts even in cases where a charge-sheet had been filed and the cases were ready for trial. The Supreme Court further observed that it was conscious of the fact that even the trial of ordinary criminal cases does take some time because of the Courts being overloaded with work and that the concept of a speedy trial in the case of TADA cases must be viewed in the context of pendency in relation to criminal trials also. However, it was observed that, when the release of under-trials on bail was severely restricted as in the case of TADA by virtue of the provisions of Section 20(8) of TADA, it becomes necessary that the trial does proceed and conclude within a reasonable time, and that where this was not practical, release on bail which could be taken to be embedded in the right of a speedy trial might, in some cases, be necessary to meet the requirements of Article 21. It is necessary to grant some relief to those persons who are deprived of their personal liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and of the nation needs to be safeguarded looking to the nature of the offence the undertrials are charged with. But the ultimate justification for such deprivation of liberty pending trial can only be their being found guilty of the offence for which they have been charged. If such a finding is not likely to be arrived at within a reasonable time some relief becomes necessary. No one can justify gross delay in disposal of cases when under-trials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21 of the Constitution. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime on the presumption that the trial of the accused will take place without undue delay.

While it is essential that innocent people should be protected from terrorists and disruptionists, it is actually necessary that terrorists and disruptionists are speedily tried and punished. In fact that protection to innocent civilians is dependent on such speedy trial and punishment. The conflict is generated on account of the gross delay in the trial of such persons. This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted. It also causes irreparable damage to innocent persons who may have been wrongly accused of the crime and are ultimately acquitted, but who remain in jail for a long period pending: trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may be ruined. Holding that the conflicting claims of individual liberty versus the right of the community and the nation to safety and protection from terrorism and disruptive 65.

1996 Cri LJ 1866 at p. 1868 : AIR 1996 SC 2957 : (1996) 2 SCC 616 : 1996 SCC (Cri) 366.

66.

Shaheen Welfare Association vy. Union of India, 1996 Cri LJ 1866 at p. 1869 : AIR 1996 SC 2957 :

67.

: Shaheen Welfare Association y. Union of India, 1996 Cri LJ 1866 at p. 1869 : AIR 1996 SC 2957

68.

asl (1996) 2 SCC 616 : 1996 SCC (Cri) 366. Shaheen Welfare Association y. Union of India, 1996 Cri LJ 1866 at p. 1869 : AIR 1996 SC 2957 :

(1996) 2 SCC 616 : 1996 SCC (Cri) 366.

(1996) 2 SCC 616 : 1996 SCC (Cri) 366.

'

1052

Bail under TADA Act

[Chap. 23

activities can be reconciled by taking a pragmatic approach, in the case of Shaheen Welfare Association v. Union of India,” the Supreme Court, while dealing with under-trial prisoners under TADA, observed as under: “The proper course is to identify from the nature of the role played by each accused person the real hardcore terrorists or criminals from others who do not belong to that category; and apply the bail provisions strictly in so far as the former class is concerned and liberally in respect of the latter class. This will release the pressure on the Courts in the matter of priority for trial. Once the total number of prisoners in jail shrinks, those belonging to the former class and, therefore, kept in jail can be tried on a priority basis. That would help ensure that the evidence against them does not fade away on account of delay. Delay may otherwise harm the prosecution case and the harsh bail provisions may prove counter productive. A pragmatic approach alone can save the situation for, otherwise, one may find that many of the under-trials may be found to have completed the maximum punishment provided by law by being in jail without a trial. Even in cases where a large number of persons are tied up with the aid of Sections 120-B or 147, IPC, the role of each person can certainly be evaluated for the purpose of bail and those whose role is not so serious or menacing can be more liberally considered. With inadequate number of Courts, the only pragmatic way is to reduce the prison population of TADA detenus and then deal with hardcore under trials on priority basis before the evidence fades away or is lost. Such an approach will take care of both the competing interests. This is the approach which we recommend to Courts dealing with TADA cases so that the real culprits are promptly tried and punished.”

For the purpose of grant of bail to TADA detenus, the Supreme Court, in the aforesaid case of Shaheen Welfare Association v. Union of India, ° divided the undertrials into four

classes, namely, (a) hardcore under-trials

whose

release would

prejudice the prosecution case and whose liberty may prove to be menace to society in general and to the complainant and prosecution witnesses in particular; (b) other under-trials whose overt acts or involvement directly attract Section 3 and/or 4 of the TADA Act; (c) under-trials who are roped in, not because of any activity directly attracting Sections 3 and 4, but by virtue of Section 120-B or 147, IPC; and (d) those

under-trials who were found possessing incriminating articles in notified areas and are booked under Section 5 of TADA.

After dividing the TADA detenus into four classes for the purpose of grant of bail, the Supreme Court further observed’ as under: “Ordinarily, it is true that the provisions of Section 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity of the charges. Adopting this approach we are of the opinion that under-trials falling within group (a) cannot receive liberal treatment. Cases of under-trials falling in group (b) would have to be differently dealt with, in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the Court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complainant, the family members of the complainant, or witnesses. Cases of under- trials falling in group (c)

and (d) can be dealt with leniently and they can be released if they have been in jail for three years and two years respectively. Those falling in group (b), when released on bail, may be released on bail of not less than Rs. 50,000 with one surety for like amount and those falling in grounds (c) and (d) may be released on bail on their executing a bond for Rs. 30,000 with one surety for like amount, subject to the following terms:

69. 1996 Cri 70. 1996 Cri 71. Shaheen (1996) 2

,

LJ 1866 at p. 1869 : AIR 1996 SC 2957 : (1996) 2 SCC 616 : 1996 SCC (Cri) 366. LJ 1866 at pp. 1869-70 :AIR 1996 SC 2957 : (1996) 2 SCC 616 : 1996 SCC (Cri) 366. Welfare Association v, Union of India, 1996 Cri LJ 1866 at p. 1870 : AIR 1996 SC 2957 : SCC 616 : 1996 SCC (Cri) 366.

Syn. 30]

=Bail where Trial does not conclude within a Reasonable Time

1053

e The accused shall report to the concerned police station once a week. e The accused shall remain within the area of jurisdiction of the Designated Court pending trial and shall not leave the area without the permission of the Designated Court. The accused shall deposit his passport, if any, with the Designated Court. If he does not

hold a passport, he shall file an affidavit to that effect before the Designated Court. The

Designated Court may ascertain the correct position from the passport authorities, if it deems it necessary.

The Designated Court will be at liberty to cancel the bail if any of these conditions is violated or a case for cancellation of bail is otherwise made out. Before granting bail, a notice shall be given to the public prosecutor and an opportunity shall be given to him to oppose the application for such release. The Designated Court may refuse bail in very special circumstances for reasons to be recorded in writing. These conditions may be relaxed in cases of those under groups (c) and (d) and, for

special reasons to be recorded, in the case of group (b) prisoners. Also these directions may not be applied by the Designated Court in exceptionally grave cases such as the Bombay Bomb Blast Case where a lengthy trial is inevitable looking to the number of accused, the number of witnesses and the nature of charges unless the Court feels that the trial is being unduly delayed. However, even in such cases it is essential that the Review Committee examines the case against each accused bearing the above directions in mind, to ensure that TADA provisions are not unnecessarily invoked.”

When stringent provisions have been prescribed under an Act such as TADA for grant of bail and a conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under-trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efficiently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons_ultimately found innocent are not unnecessarily kept in jail for long periods. ©After observing as above in the said case of Shaheen Welfare Association, the Supreme Court lamented the fact none of the States to whom notices had been issued nor the Union of India, had come forward to state that they would set up an adequate number of Designated Courts in each State so that cases pertaining to TADA could be speedily disposed of. The Supreme Court justified the issuance of detailed guidelines in the said case for decision regarding grant of bail to a large number of TADA detenus having been necessitated as a one time measure due to the aforesaid reason. It is submitted, with great respect, that the aforesaid detailed guidelines (quoted in extenso, as above) issued by the Supreme Court in the aforesaid case of Shaheen Welfare Association v. Union of India,~ are in the nature of legislation, being directions issued to take care of all present cases under TADA (in fact, as TADA already stood expired on the date of the aforesaid Supreme Court judgment, there was hardly any scope for any future cases), which is not permissible and is not within

the domain of the judiciary, as held by a Seven-Judge Constitution Bench of the

In that Supreme Court in the case of P. Ramachandra Rao v. State of Karnataka." similar somewhat of directions case, the Supreme Court had struck down detailed

legislative nature issued by Two-Judge and Three-Judge Benches of the Supreme 72.

Shaheen Welfare Association y. Union of India, 1996 Cri LJ 1866-at p. 1870 : AIR 1996 SC 2957 :

| (1996) 2 SCC 616 : 1996 SCC (Cri) 366. 73. 1996 Cri LJ 1866 : AIR 1996 SC 2957 : (1996) 2 SCC 616 : 1996 SCC (Cri) 366. 74, (2002) 4 SCC 578 : AIR 2002 SC 1856 : 2002 Cri LJ 2547.

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Bail under TADA Act

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Court in the cases of Raj Deo Sharma y. State of Bihar,” Raj Deo Sharma {1 v. State of Bihar,”

Common

Cause, A Registered Society v. Union of India,’

and

Common Cause, A Registered Society v. Union of India. It is further submitted that the Parliament in its own wisdom had put stringent

conditions under S, 20(8) of TADA for grant of bail in respect of TADA offences, for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, to borrow the phrase from the judgment of the Supreme Court in the instant case of Shaheen Welfare

Association y. Union of India,” itself. These stringent bail provisions included in TADA have been upheld by several decisions of the Supreme Court, including the Constitution Bench decision in the case of Kartar Singh v. State of Punjab.” In the aforesaid instant case of Shaheen Welfare Association, it is not that the Supreme. Court has struck down the aforesaid stringent provisions regarding grant of bail; in fact, it could not have done so being a Two-Judge Bench in the light of the fact that the Constitution Bench had upheld the said stringent bail provisions in the said Kartar Singh case, as mentioned above. But, what has been done in the instant case is that without striking down the said stringent provisions relating to bail as contained in TADA, the Supreme Court has given detailed guidelines in the nature of legislation which are clearly and directly in violation of the said stringent provisions contained in TADA. Now, the question is, can the Supreme Court issue certain guidelines which are directly against the laid down provisions of a validly enacted statute, without even striking down such provisions of the statute for some valid reasons? The answer is yes and the answer is no. It is submitted that the answer is yes in the sense that under Article 142 of the Constitution power is given to the Supreme Court to do complete justice in any cause or matter pending before it. In a particular matter pending before the Supreme Court, it may have to issue certain directions which may even be inspite of the existing provisions of a statute in order to do complete justice therein. It is further submitted that the answer is no in the sense that even Article 142 can be of no help if the directions being issued by the Supreme Court are to cover all existing cases being in a large number (or all the future cases, as the case may be) of

a particular nature when such directions run directly against the specific valid provisions of a validly-enacted statute. This is what is in the nature of legislation, which is not in the domain of judiciary as held by the Seven-Judge Bench of the Supreme Court in the aforesaid case of P. Ramachandra Rao v. State of Karnataka." Presuming that there is a vacuum in a legislation, or there are certain missing links in a legislation or there is a lacuna in a legislation, it may be well within the jurisdiction

of the Supreme Court to issue general guidelines to take care of the same till such time as the legislature itself takes some suitable corrective measures. But, when the provisions of a statute are quite clear and valid and when their legality has also been upheld by the Supreme Court itself on several occasions (including by a Constitution Bench), it is submitted with great respect that it may not be possible for the Supreme Court to issue general guidelines of wide application in all existing or all future cases which go directly against such valid provisions of the statute. It is in this sense that, 75. 76. 77. 78. 79. 80. 81.

(1998) 7 (1999) 7 (1996) 4 (1996) 6 1996 Cri (1994) 3 (2002) 4

SCC 507 : AIR 1998 SC 3281 : 1998 SCC (Cri) 1692. SCC 604 : AIR 1999 SC 3524 : 1999 SCC (Cri) 1324. SCC 33 : AIR 1996 SC 1619 : 1996 SCC (Cri) 589. SCC 775 : AIR 1997 SC 1539 : 1997 SCC (Cri) 42. LJ 1866 : AIR 1996 SC 2957 : (1996) 2 SCC 616 : 1996 SCC (Cri) 366. SCC 569 : 1994 Cri LJ 3139 ; 1994 SCC (Cri) 899. SCC 578 : AIR 2002 SC 1856 : 2002 Cri LJ 2547.

Syn. 31)

A Person not to be detained in Custody for unreasonable Time

1055

with respect, the issuance of the aforesaid general guidelines issued in the said case of Shaheen Welfare Association v, Union of India,” for deciding grant of bail to a large number of TADA detenus in all existing TADA cases, is impermissible for the judiciary being in the nature of legislation.

It is not to suggest that the Supreme Court should have closed its eyes even when

informed about a large number of TADA detenus continuing in jail in the absence of an adequate number of Designated Courts to ensure their speedy trial. It should not and it cannot. The courts are, after all, sentinels on the qui vive. And, the Supreme Court, in particular, is the guardian of the fundamental rights. The mandate of the fundamental right guaranteed in Article 21 of the Constitution is very clear. Right to speedy, trial has been considered as a fundamental right flowing from Article 21. In

fact, not just TADA under-trials, a large number of other under-trials charged under various other laws, ordinary and extra-ordinary, have also been languishing in jails mainly due to the slow speed of trials, due mainly to the inadequate number of courts. Therefore, it is submitted that the proper remedy is to direct (and ensure compliance thereof) the State Governments and the Union Government to set up adequate number of courts so that the fundamental right of speedy trial could become a reality instead of remaining just in the case-laws. A speedy trial will automatically ensure that an under-trial, whether under TADA or otherwise, does not have to remain in jail for a period longer than what is necessary in the interest of the society. It is submitted with great respect that giving detailed guidelines to decide about grant of bail in a very large number of all existing TADA cases instead of giving binding directions to set up an adequate number of courts, is a case of correct diagnosis but a wrong remedy.

In fact, as noted earlier, after issuing detailed guidelines as mentioned above in the said case of Shaheen Welfare Association v. Union of India,” the Supreme Court lamented the fact that none of the States to whom notices had been issued nor the Union of India, had come forward to state that they would set up an adequate number of Designated Courts in each State so that cases pertaining to TADA could be speedily disposed of. It is submitted that the interests of justice would have been served in a much better manner and for a much longer duration (than as a one time measure guidelines, as the Supreme Court itself described) if the Supreme Court had issued binding directions to the States and the Union to set up an adequate number of courts in a time-bound manner, and had also followed up the same to ensure the compliance thereof.

31.

A PERSON NOT TO BE DETAINED IN CUSTODY FOR UNREASONABLE TIME

It is no doubt true that the Constitution mandates that the person detained in custody should not be kept in detention for any unreasonable time. The Code of Criminal Procedure also ensures that such a person is not detained in custody unreasonably and that the investigation must proceed with promptness and report submitted to the Court within the period prescribed by law. If the prosecution fails to do so, the person detained in custody is entitled to apply for his release on bail. However, in cases involving serious offences such as those under the Terrorist and Disruptive Activities (Prevention) Act, 1987, and the Prevention of Terrorism Act, 2002, the legislature has advisedly given some latitude to the investigating machinery in the matter of completion of the investigation by providing for extension of time Co complete the investigation. The extension is, however, not to be granted as a matter

82. 1996 Cri LJ 1866: AIR 1996 SC 2957 : (1996) 2 SCC 616 : 1996 SCC (Cri) 366. | 83. 1996 Cri LJ 1866: AIR 1996 SC 2957 : (1996) 2 SCC 616 : 1996 SCC (Cri) 366.

Bail under TADA Act

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[Chap. 23

of course, but subject to conditions enumerated in the Act. Unless those conditions are satisfied, the Court will refuse to grant the extension.

32. INTERIM BAIL BY HIGH COURT IN APPEAL AGAINST REJECTION OF BAIL BY DESIGNATED COURT In State of Maharashtra v. Abdul Hamid Haji Mohammed,” the bail application of

the accused under TADA was rejected by the Designated Court. The accused then moved the High Court by filing a writ petition under Articles 226 and 227 of the

Constitution, inter alia, seeking quashing of the said order rejecting application for bail. The High Court passed an interim order granting bail to the accused. On appeal. the Supreme Court observed that it was at loss to understand as to what were the reasons that prompted the High Court to take a contrary view to that of the designated court while observing that “the petitioner has made out a case for releasing him on bail during the pendency of the petition” and to pass the interim order granting bail. Therefore, the Supreme Court directed the High Court to hear the parties both on the questions of law and fact, and then to pass reasoned order either on the main writ petition or on the ancillary relief sought for bail so that the Supreme Court could examine the reasoning of the High Court. Accordingly, the matter was remitted back to the High Court.

33. REDUCTION OF SENTENCE IN TADA CASE, INTER ALIA, FOR BEING ON BAIL FOR 7 YEARS

In Kaka Singh v. State of Haryana,” the accused had been held guilty of the

offence under Section 25 of the Arms Act and Section 6(1) of the TADA, and had

been sentenced to suffer rigorous imprisonment for one year. On appeal, the Supreme Court noticed that the incident was about 10 years old, the accused was found in possession of a country made pistol and excepting such possession there was no allegation of any terrorist activities being resorted to by the accused, and the accused had also served for more than seven months of imprisonment. In such circumstances, the Supreme Court considered the fact that he had been released on bail by it about 7 years back and had been settled in family life as a relevant factor to order reduction of his sentence to the period already undergone.

34. ORDER IN BAIL MATTER UNDER TADA ACT IS INTERLOCUTORY AND HENCE NO APPEAL LIES It was contended in Usmanbhai Dawoodbhai Memon y. State of Gujarat,’ that an

order passed by a Designated Court under TADA for grant or refusal of bail is not an “interlocutory order” within the meaning of S. 19(1) of the Act and therefore ar appeal lies. The Supreme Court rejected this contention and held that the expression ‘interlocutory order” has been used in S. 19(1) of TADA in contra-distinction tc

what is known as “final order” and denotes an order of purely interim or temporary, nature. It further held as under: “It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time. It is however contended that the refusal of bail by a Designated Court due to the non-fulfilment of the conditions laid down in S.

: (2005) 7 SCC 29 : AIH 84. Ateef Nasir Mulla v. State of Maharashtra, 2005 Cri LJ 3748 at p.p. 3751 3751 : 2005 SCC ori 1587.

2005 SC 3293 :

SCC (Cri) 723. 85. 1994 Supp (1) SCC 579 at p. 583 : 1994 SC 1948 : 1997 SCC (Cri) 214. 1995 AIR : 3235 p. at 86. 1995 Cri LJ 3234 87. 1988 Cri LJ 938 at pp. 949-50 : (1988) 2 SCC 271 : AIR 1988 SC 922 : 1988 SCC (Cri) 318.

syn. 36) Bail Due to Lack of Substantive Evidence to Connect Applicant, etc.

1057

20(8) cannot be treated to be a final order for it affects the life or liberty of a citizen

guaranteed under Article 21. While it is true that a person arraigned on a charge of having committed an offence punishable under the Act faces a prospect of prolonged incarceration in view of the provision contained in S. 20(8) which places limitati ons on the power of a Designated Court to grant bail, but that by itself is not decisive of

the question as to whether an order of this nature is not an interlocutory order. The

Court must interpret the words “not being an interlocutory order” used in S. 19(1) in

their natural sense in furtherance of the object and purpose of the Act to exclude any interference with the proceedings before a Designated Court at an intermediate stage. There is no finality attached to an order of a Designated Court granting or refusing bail. Such an application for bail can always be renewed from time to time. That being so, the contention advanced on behalf of the State Government that the impugned orders passed by the Designated Courts refusing to grant bail were not interlocutory orders and therefore appealable under S. 19(1) of the Act, cannot be accepted.”

35. BAIL GRANTED WHERE PROVISIONS OF TADA ACT FOUND NOT APPLICABLE

In Usmanbhai Dawoodbhai Memon y. State of Gujarat, rejections of bail ipplications by several Designated Courts under TADA in a State were under hallenge in the Supreme Court. The Supreme Court held that the Designated Courts lad not carefully considered the facts and circumstances and had rejected the ipplications for bail mechanically. It was noticed that these cases fell into three broad

-ategories, namely: (1) Cases of communal

riots resulting in offences of murder,

ison, looting etc. where there were overt acts on the part of persons of one -ommunity against the other. (2) Incidents giving rise to acts of physical violence esulting in communal riots due to instigation. (3) Cases connected with trade-union tivities started at the instance of the management, or at the instance of owners of roperty to settle private disputes on the allegations that there were acts of physical iolence. The Supreme Court observed that normally such cases have to be dealt with inder the ordinary procedure prescribed by Cr.P.C., unless offences under Ss. 3 and | of TADA were made out, and that the Designated Courts were under a duty to xamine the circumstances closely from this angle which had not been done. \ccordingly, the Supreme Court set aside the orders passed by the various Jesignated Courts and remitted the cases for fresh consideration by them.

36. BAIL DUE TO LACK OF SUBSTANTIVE EVIDENCE TO CONNECT APPLICANT WITH MAIN ACCUSED

In State of Maharashtra v. Som Nath Thapa,” the accused was an Additional Sollector of Customs, Preventive, and was charged inter alia under TADA and onspiracy provisions for having allegedly abetted and facilitated the commission of srrorist acts, etc., in connection with the 1993 Bombay blasts case in which more an 250 persons had died. The State had moved an application for cancellation of is bail granted to him earlier by the Supreme Court and then by the Designated ourt. While the Supreme Court was satisfied that charges were rightly framed ainst him, in respect of the bail matter, it observed that a perusal of Designated ourt's order showed that though according to it a case was made out by the osecution against the accused, it took the view that there was want of material

hich could be tendered as substantive evidence to prove association of the accused ith the main accused of the said blasts case and his associates; and so the esignated Court had allowed the accused to continue on bail. On these special facts, e Supreme Court was not satisfied if a case for cancellation of bail had been made . 1988 Cri LJ 938 at p. 950 : (1988) 2 SCC 271 : AIR 1988 SC 922 : 1988 SCC (Cri) 318. . 1996 Cri LJ 2448 at p. 2463 : (1996) 4 SCC 659 : AIR 1996 SC 1744 : 1996 SCC (Cri) 820.

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Bail under TADA Act

[Chap.

out, despite its taking the view that charges were rightly framed against him. T appeal of the State for cancellation of bail of the accused was therefore dismissed.

37. BAIL GRANTED BY DESIGNATED COURT NOT HAVING JURISDICTION SET ASIDE

In CBI v. Showkat Ahmed Bakshi,”? the charge-sheet against all the responder had been filed in the Designated Court at Jammu and the trials under the TADA A were therefore pending before the Designated Court at Jammu, It was held that such a situation, there was no occasion for the Designated Court at Srinagar entertain any bail application by any of the respondents either directly or via t Designated Court at Jammu since transfer of the same could not have been made | either of those courts. Accordingly, it was held that the impugned orders made by t Designated Court at Srinagar granting bail to the respondents were withe¢ jurisdiction and were therefore set aside.

38. REJECTION OF BAIL DESPITE FAVOURABLE REVIEW AND NO OBJECTION BY CBI, HELD NOT PROPER

In Sanjay Dutt v. State of Maharashtra,’' the appellant was in custody for offenc under TADA in connection with the Bombay blasts case. A review of TADA cas was conducted by the Central Review Committee pursuant to a decision of f Supreme Court. This committee had opined that the facts and circumstances respect of different accused persons should be brought to notice of the Designat Court so that the Court could consider granting bail in deserving cases. The appella was Classified under category III of “Accused persons who could be released ¢ bail”. Accordingly, a petition was filed by the chief public prosecutor to impleme the decision of the committee. The CBI had no objection for releasing the appella on bail. However, the Designated Court refused to release the appellant on bail. C appeal, the Supreme Court held that as the whole exercise of the Central Revie Committee was pursuant to the direction of the Supreme Court in Kartar Singh State of Punjab,” and the Chief Special Public Prosecutor had filed the petition question to implement the decision taken by that Committee, supplemented by tl decision of the CBI, such a petition did not merit rejection. The Supreme Cor further observed that the Designated Court did not examine the matter in prop perspective, and that the categorisation of the accused persons in three categori: being founded on relevant factors, it was satisfied that the classification was rations The name

of the appellant being in category

III, the Supreme Court ordered h

release on bail subject to certain conditions.

39. DESIGNATED COURT NOT REQUIRED TO WEIGH MATERIAL AT BAIL STAGE

It is true that for the purpose of grant of bail, the framers of the TADA A required the Designated Court to be satisfied that there were reasonable grounds f believing that the accused concerned was not guilty of such offence but this pow cannot be exercised for grant of bail in a manner which amounts virtually to an ordi of acquittal, giving benefit of doubt to the accused person after weighing tl evidence collected during the investigation or produced before the court. At th stage the Designated Court is expected to apply its mind as to whether accepting t! allegations made on behalf of the prosecution on their face, there are reasonat 90. 1995 Supp (3) SCC 73 at p. 73 : 1995 SCC (Cri) 796. 91. (1995) 6 SCC 189 at p. 193 : 1996 Cri LJ 378 : 1995 SCC (Cri) 1055. 92. (1994) 3 SCC 569: 1994 Cri LJ 3139 : 1994 SCC (Cri) 899.

Syn. 41)

= Bail Granted after Withdrawal of TADA Charges Set aside

1059

grounds for believing that the accused concerned was not guilty of the offence. At that stage the Designated Court is not required to weigh the material collected during the investigation. 40. BAIL BY SESSIONS COURT IN TADA CASE WITHOUT PREVIOUS SANCTION Where the cognizance of an offence under TADA Act taken by the Designated Court without there being a previous sanction of the Inspector General of Police / Commissioner of Police was held to be without jurisdiction and the judgment given by him was held to have been vitiated and the case was remanded to the original criminal court, i.e., the Sessions Court, for fresh trial, it was held that the appellantaccused could move the trial court for bail which was directed to be decided in view of all facts and circumstances of the case including the period already spent in custody by the accused in the previous trial.

41. BAIL GRANTED AFTER WITHDRAWAL OF TADA CHARGES SET ASIDE In Abdul Karim y. State of Karnataka,” a film actor, Rajkumar, had been abducted by a dreaded criminal, Veerappan. He had submitted certain demands to the State Government for release of the film actor. Subsequently appiication for withdrawal of prosecution under provisions of TADA Act against the said dreaded criminal and his associates was filed by the Public Prosecutor on being satisfied that the withdrawal would be in the interest of public peace and maintenance of law and order in the State; however, prosecution under other provisions of law was to continue. After the prosecution under TADA Act was allowed to be withdrawn, the accused persons who were in custody immediately applied for bail from the regular court in respect of the offences under other sections of law; and the bail was accordingly granted to them. In these circumstances, when the matter was challenged before the Supreme Court, the orders granting bail to the accused persons were set aside. It was held by the Supreme Court as under: “The affidavit of the Special Public Prosecutor speaks of “withdrawal of the TADA charges which would enable the accused to file necessary bail applications and their consequent release on bail......... ” It is, thus, clear that what was envisaged by the Government of the State of Karnataka and the Special Public Prosecutor was a package which comprised of the withdrawal of the TADA charges against the accused respondents and their release on bail on applications filed by them. This indicates complicity with the accused respondents. It will have been noticed that stress was laid by the Special Public Prosecutor in his application under Section 321 on the fact that the prosecutions against the accused respondents on charges other than under the TADA Act would continue, and this was noted in the order of the Designated Court. The Designated Court was not told either in the application or thereafter that the Government of the State of Karnataka and the Special Public Prosecutor had in mind that the accused respondents would file bail applications subsequent to the order under Section 321 which would not be opposed. There can, in the circumstances, be little

doubt that after their release on bail the accused respondents were not expected to attend the Court to answer the remaining charges against them and that the stress laid as aforesaid was intended to mislead the Designated Court. We deprecate the conduct of the Government of the State of Karnataka and the Special Public Prosecutor in this behalf. We deem it appropriate, in the facts and circumstances, to set aside the orders

granting bail to the accused respondents.”

93. State of Gujarat v. Gadhvi Rambhai Nathabhai, (1994) 5 SCC 111 at pp. 114-15 : 1994 SCC (Cr) 1368 : | 94. Ayubkhan v. State of Gujarat, 1999 SCC (Cri) 37. 59. (Cri) SCC 2001 : 116 SC 2001 AIR : 148 LJ Cri 2001 : 734-35 pp. at 710 95, (2000) 8 SCC

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[Chap. 23

42. S. 17(5) OF TADA ACT OF 1985-MATTERS TO BE CONSIDERED S. 17(5) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), can be pressed into service when the person who is sought to be released on bail is accused of an offence punishable under the Act or any rule made thereunder. The accusation should be well-founded. If the material collected during the investigation shows that the accusation is well-founded, then only the Court has to consider the question whether there are reasonable grounds for believing that the person against

whom such an accusation is made is not guilty of the alleged offence. It is not as if the accused has to prove his innocence at the stage of bail, just as the prosecution has not to prove the guilt of the accused at the stage of bail. The prosecution has, on the one hand, to show that the accusation against the person concerned is well-founded and that way there is a prima facie case against him and only then the Court has to see whether from the material on record it can be said that there are reasonable grounds for believing that the accused is not guilty.

43. POWER OF HIGH COURT TO GIVE DIRECTION TO DESIGNATED COURT Though the High Court cannot interfere with the order of the Designated Court under TADA Act refusing bail, the High Court can definitely direct the Designated Court, by invoking the provisions of Art. 227 of the Constitution, to observe the law laid down by the Supreme Court.

44. BAIL UNDER TADA ACT-ILLUSTRATIVE CASES In Sanjay blasts case, declined to the accused his defence

Dutt y. State,’*® the accused, who was allegedly involved in the Bombay was not granted bail on facts of the case. However, the Supreme Court give the reasons for the refusal to grant the bail. Yet, liberty was given to to renew his request for grant of bail before the Designated Court after evidence was adduced at the trial.

In Abu Azim Azmi v. State of Maharashtra,” the appellant, who was alleged to

have been involved in the Bombay blasts case under TADA, had challenged the order of the Designated Court rejecting his application for grant of bail. On facts of the case, the Supreme Court enlarged the appellant on bail subject to certain conditions. However, no reasons were given in the said order of the Supreme Court.

In a case, the accused, leader of a political party, was charged of offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 and also of murder. He was granted bail by the Designated Court on the ground that he was leader of a big political organisation and could not therefore be expected to commit offence if enlarged on bail, and also that that there were reasonable grounds for believing that he was not guilty of any offence under the said Act. Observing that the approach of the Designated Court was misconceived and the bail order was unsustainable, the Supreme Court held that the Designated Court had not noticed the relevant provisions of the said Act which restrict the powers of the Court in granting bail. Sub-section (8) of Section 20 of the said Act clearly provides that unless the Court is

satisfied for the reasons to be recorded that there are reasonable grounds to believe that the respondent is not involved in disruptive activities, bail shall ordinarily be refused. Even under the provisions of Sections 437 and 438 of the Code of Criminal 96.

State of Gujarat v. Halwantsinh Karsansinh Vaghela, 1987 Cri LJ 1654 at p. 1655 (Guj).

97. Hiren Brahma vy. State of Assam, 1992 Cri LJ 1351 at p. 1352 (Gau) 98. (1994) 6 SCC 86 at p. 87 : 1994 SCC (Cri) 1805. 99. 1994 Supp (3) SCC 406 at p. 407 : AIR 1995 SC 72 : 1994 SCC (Cri) 1744.

Syn. 44]

Bail under TADA Act-Illustrative Cases

1061

Procedure, the powers of the Sessions Judge are not unfettered. The Supreme Court

observed that the salient principles in granting bail in grave crimes had not been taken note of. It was also observed that the Designated Court had also refused to

consider the materials placed before it for the purpose of satisfying itself whether there were no reasonable grounds to believe that the accused had committed

the

offence. It was necessary for the court to consider the further materials collected by

the investigating agency by recording statements of witnesses; the court below misdirected itself in refusing to look into such statements and concluding that it was a case for granting bail taking into account only the position held by the accused in the party. Accordingly, the bail granted to the accused was cancelled by setting aside the order of the Designated Court, without prejudice to the right of the accused to move the Designated Court at any subsequent stage. In a case, the Designated Judge under TADA Act had granted bail to an accused, who had misutilised his liberty granted to him in the form of an earlier bail and had became a terror in the area. The accused was alleged to be a member of the Dawood Ibrahim group. He had earlier been released on bail, but he jumped bail, and it was a formidable task for the investigating agency to again take him into custody. Two years after that he was found to be having a forged passport in respect of which separate criminal proceedings were pending. After he was taken into custody again, on a fresh application for bail, the Designated Judge again granted him bail, though with very strict condition. In these circumstances, the Supreme Court held that the Designated Judge had erroneously granted bail to the accused. The order granting bail was accordingly set aside. In Anirudhsinhji Karansinhji Jadeja v. State of Gujarat,’ the appellants were accused of offences under TADA. Their bail applications had been rejected by the Designated Court. When they approached the Supreme Court, it was held that the entire proceeding against them under TADA was vitiated and was liable to be quashed due to the legally defective prior approval given in the case for recording of the information under TADA. In respect of other offence against the appellants relating to S. 25(1)(b) of the Arms Act, no contention was raised to deny the bail to

them. Accordingly, the Supreme Court ordered release of the appellants on bail subject to certain conditions. In Jasubha Sajubha Zala v. State of Gujarat,’ the appellant was accused under TADA and IPC relating to the allegation of harbouring of another accused person who was himself accused inter alia under TADA for the allegation of conspiracy to commit a murder. However, in a separate appeal, the Supreme Court did not uphold the invocation of TADA against the said other accused person. Accordingly, it was held that no offence under Section 3(4) of TADA could be said to have been committed by the appellant in the instant case. The only other offence against the appellant was under Section 212 IPC which was bailable. In such circumstances, the Supreme Court ordered release of the appellant on bail.

In S.N. Thapa, Addl. Collector of Customs v. State. of Maharashtra,’ the appellant, an Additional Collector of Customs, was an accused under various sections of IPC and TADA, relating to the Bombay Bomb Blast case. His bail application was rejected by the Designated Court as according to it there was material to draw an 1. State of Maharashtra v. Anand Chintaman Dighe, AIR 1990 SC 625 at pp. 625-26 : (1990) | ee 397 : 1990 Cri LJ 788 : 1990 SCC (Cri) 142. State of Maharashtra v. Mohd. Shahid N. Qureshi, (2001) 10 SCC 462 at pp. 462-63. . (1995) 5 SCC 302 at p. 309 : AIR 1995 SC 2390 : 1995 SCC (Cri) 902. . . (1995) 5 SCC 309 at p. 310 : 1995 SCC (Cri) 908. 828. (Cri) SCC 1994 : 3845 LJ Cri . (1994) 4 SCC 38 at pp. 40-41 : 1994 Uawn

1062

Bail under TADA Act

[Chap. 22

inference that the appellant rendered assistance to the smugglers in importing the huge quantity of explosives, arms and ammunition and in transporting it to Bombay

where the bomb explosions took place causing deaths of hundreds of persons and struck terror in the people. However, on appeal, in the facts and circumstances of the case and on the material available, as at that time, the Supreme Court held that there

was no legal evidence to prima facie establish that the appellant had assisted either in the smuggling of the goods or of its transportation to Bombay. Hence, setting aside the order of the Designated Court, the Supreme Court allowed the release of the appellant on interim bail, and the matter was remitted to the Designated Court for reconsideration of the bail application in the light of fresh material that might have been collected against the appellant during investigation.

Where in a case against the accused charged for an offence under S. 3 of TADA, the charge-sheet / police report was forwarded to Designated Court at Jammu whereas the bail was granted to him by the Designated Court at Srinagar without considering the said charge-sheet / police report, it was held that the grant of bail was liable to be set aside. It was further held that if Magistrate takes cognizance of an offence under S. 190(1)(b) of the Code of Criminal Procedure on basis of the police report submitted under S. 173(2) of the Code, then such police report cannot be termed as irrelevant while considering application for bail under S. 20(8) of TADA,

as to whether there are reasonable grounds for believing that accused in question is not guilty of such offence and as such whether he should be directed to be released. Thus, it was held that the Designated Court should have perused charge-sheet / police report submitted after the conclusion of the investigation before passing the impugned order and having failed to do the same, the order directing release of accused on bail was set aside. Directions were issued to the Designated Court, before which the charge-sheet / police report had been filed, to hear the application for bail filed by the accused afresh and to pass an order in accordance with law. Where on facts it was found that the accused was responsible for publication of a write-up which constituted a “terrorist act” and “disruptive activity” under the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), it was held that

he was not entitled to be released on bail.’

Where the petitioner was accused of an offence under S. 25 of the Arms Act for being in possession of a country-made pistol and was covered under the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), in view of a State Notification making Arms Act applicable to certain territories under S. 6 of TADA, and bail was opposed by the Advocate General as the petitioner was a previous convict and had to his discredit more than 10 convictions and had even tried

to mislead the investigating agency by giving false names, in such circumstances, the

High court declined to grant bail to the petitioner.*

Where a case under S. 25 of the Arms Act was registered against the accused for keeping in his possession one country made pistol without any licence, his bail

application was rejected by the Chief Judicial Magistrate on the ground that the facts constituted an offence under S. 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) which was exclusively triable by the Designated

Court, it was held that the jurisdiction to consider the application for bail was with the Designated Court and accordingly the said order of the CJM was not interfered 6. Union of India v. Mohd. Sadiq SCC 8: 1993 SCC (Cri) 8.

q

Rather, AIR 1993 SC 379 at

PP

p . 380-81 :

1993 Crii LJ 72: : (1993) 1

7. Sukhdev Singh v. Union Territory, Chandigarh, 1986 Cri LJ 1757 at p. 176 1987 P&H 5 (per majority decision).

'

8. Ramesh Kumar v. State of Haryana, 1988 Cri LJ 105 at p. 107 (P&H).

P

:

> (P&H) (FB) : Al

AIR

Syn. 45}

= Bail Due to Delay in Trial in TADA Case-Illustrative Cases

= a advised.

accused was directed to approach the Designated Court for bail, if so

1063

In a case, an advocate who used to plead cases of LTTE (an extremist group) was alleged to have written an unsigned and undated letter to his client (a suspected terrorist) to remain absconding for some time. The remand report stated that letters

were proved to have been written by the said advocate and that it was evident that the advocate had abetted his client to escape from the clutches of law. The argument was that the offence under S. 3(3) of the TADA Act was made out apart from ‘harbouring’ of an accused terrorist under S. 3(4) of the TADA Act. However, it was held that the advocate was innocent and that when the said unsigned letter had not at all reached the accused client it could not be said that the advocate had abetted his client terrorist to escape from the clutches of law. It was observed that the advocate in that capacity had given a piece of advice to his client with regard to the future course of action that he had to remain absconding for some time, and that even assuming that the advocate had written the said unsigned letter, it could not be said that he had committed an offence under S. 3(3) of the TADA Act. It was held that the ingredients of S. 3(3) or

3(4) of the TADA Act were not satisfied in the case on hand. While releasing the - Said advocate on bail, the Madras High Court held that the power of the High Court under Art. 227 of the Constitution is discretionary and, taking into consideration that the advocate was a practicing advocate of 11 years standing at the Bar, and on the ground prima facie the High Court was satisfied that there were reasonable grounds for believing that the advocate was not guilty of any offence under the TADA Act and that he was not likely to commit any offence under the TADA Act while on bail. It was further held that this shall not be treated as a precedent in all cases where bail had been refused by the Designated Court under the TADA Act.!

45. BAIL DUE TO DELAY IN TRIAL IN TADA CASEILLUSTRATIVE CASES Where the accused, involved in a case under TADA, was in jail for more than 12 years, bail had been refused to him thinking that the trial would begin at an early date, however in view of the absence of a regular TADA court some more time was likely to be taken for the trial to commence,

in these circumstances the Supreme

Court directed the release of the accused on bail on some stringent conditions. The accused was directed to report to the concerned Police Inspector once in a week and was not to leave the jurisdiction of the concerned police station, within the jurisdiction of which he was residing, without the previous permission of the TADA Special Judge. He was also directed to surrender his passport, if any. He was to execute a bond in favour of the TADA Special Judge incorporating these conditions. In Paramjit Singh v. State (NCT of Delhi ),'? the appellant was being prosecuted for |

an offence under the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). He was in jail for more than six years. His Coaccused had been released on bail by the Designated Court. On an earlier occasion bail plea of the appellant had been

rejected by the Supreme

Court with the

observation that if the trial was not concluded within a reasonable time, it would be

open to the appellant to apply again to the Designated Court for releasing him on

bail. As the trial was not concluded for several months, an application for bail was 9. 10. 11.

Rattan Singh v. State of Haryana, 1991 Cri LJ 724 at'p. 725 (P&H). D. Veerasekaran vy. State of T.N., 1992 Cri LJ 2168 at pp. 2178, 2183 (Mad). Babba v. State of Maharashtra, (2005) 11 SCC 569 at p. 569.

12. (1999) 9 SCC 252 at pp. 252-53 : AIR 2000 SC 3473 (2) : 1999 SCC (Cri) 1156.

1064

Bail under TADA Act

[Chap. 23

filed but that was rejected by the Designated Court. On appeal before the Supreme Court, inspite of time taken for filing reply and grant of two adjournments, no reply was filed by the State. In such circumstances, the Supreme Court directed release of the appellant on bail.

In State of Gujarat v. Gadhvi Rambhai Nathabhai,'’ the Designated Court had released the respondents on bail who were involved in offences inter alia under TADA Act. On appeal, the Supreme Court held that from the impugned order, it appeared that the Designated Court was conscious of the limitation prescribed on its power of granting bail by Section 20(8) of TADA Act, but instead of finding out as to whether there were reasonable grounds for believing that the accused persons were not guilty of an offence under the TADA Act, the Designated Court had virtually purported to acquit the accused-respondents of the charges levelled in respect of contravention of Sections 3, 4 and 5 of the TADA Act. The Supreme Court observed that while exercising the power to grant bail, the Designated Court is not expected to exercise the power of the trial court and to record a finding which is expected to be recorded at the conclusion of the trial. The Designated Court has not only weighed the materials collected during the investigation but has also examined the submissions made on behalf of the accused persons in the light of several judgments of the High Courts and the Supreme Court for the purpose of coming to the conclusion that no case for contravention of any provisions of the Act had been made out. Accordingly, the order granting bail to the respondents was set aside. In a case under TADA, it was held that the remedy for the accused in challenging delay in trial is only to move the Designated Court for appropriate relief either for bail or for carrying on with the case day to day. Where the accused was charge-sheeted for an offence under Section 6 of TADA Act read with provisions of IPC and the Indian Explosives Act, he was in jail for more than four years and eight months continuously except for a short period of 2/2 months when he was on parole on medical grounds, the minimum sentence under Section 6 of the TADA Act was only five years, in such circumstances, on the facts of the case, the Supreme Court ordered his release on bail.

46. CANCELLATION OF BAIL IN TADA CASEILLUSTRATIVE CASES In State of Maharashtra v. Anand Chintaman Dighe,'® the accused, a political leader, was alleged to have been involved in a case under Sections 147, 148, 149,

302 read with Section 120-B of the Indian Penal Code and Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. The accused was initially released

on

bail by the Designated

Court

for TADA

cases,

but this bail was

cancelled'’ by the Supreme Court without prejudice to the right of the accused to

move the Designated Court at any subsequent stage. Accordingly, the accused moved another bail application before the Designated Court. The Designated Court again granted bail to the accused. On appeal, the Supreme Court observed that while it was correct that it had cancelled the earlier bail without prejudice to the rights of the accused to move the Designated Court for bail at any subsequent stage, but that was

13. (1994) 5 SCC 111 at pp. 114-15 ; 1994 SCC (Cri) 1368. 14. Suresh Ramtirath Yadav y. State of Gujarat, 1990 Cri LJ 1834 at p. 1844 (Gu)).

15. Giani Pratap Singh v. State of Rajasthan, AIR 1996 SC 74 at pp. 74-75 : (1995) 5 SCC 591 : 1995 SCC (Cri) 992.

i

7.

3 SCC 209 : 1991 SCC (Cri) 62500. - 1603 at pp. 1604-5 : (1991) : 625-26 Vide State of Maharashira v. Anand Chintaman Dighe, AIR 1990 SC a ah: a Bae 397 : 1990 Cri LJ 788 : 1990 SCC (Cri) 142. SCC

Syn. 46]

Cancellation of Bail in TADA Case-Illustrative Cases

1065

only in the event of any further evidence being recorded by the Court or any fresh material being made available during the investigation or before the Court. The

Supreme Court further observed that it had also directed that it was necessary for the Designated Court to consider further material collected by the investigating agency, by recording statements of witnesses. The Designated Court did not record any evidence and there was no fresh material available before that Court. The Supreme Court did not approve of the manner in which the Designated Court had dealt with the matter, by observing that “The learned Judge Designated Court by putting his own gloss over the same material has again granted bail to the respondent’. It was also observed that the police investigation prima facie showed that mafia-type terror and fear psychosis was created which led to the cold-blooded murder of the deceased. The Supreme Court noted that the Designated Court acted illegally in appreciating the statements of witnesses and material collected by the investigating officer at the investigation stage, and that it should have permitted the evidence to be recorded and thereafter dealt with the same in accordance with law. Accordingly, the order of the Designated Court was set aside and the bail granted to the accused was cancelled.

CHAPTER 24 BAIL UNDER POTA [Prevention of Terrorism Act, 2002]!

49. Modified application of certain provisions of the Code.—(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and “cognizable case”’ as defined in that clause shall be construed 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, namely:—

the following

provisos

shall

be inserted,

“Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Special Court shall extend the said period up to one hundred and eighty days, on 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: 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 from 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.”

(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”;

1. Already repealed by S. 2 of Ordinance No. | of 2004.

1066

Chap. 24]

Modified Application of certain provisions of the Code

1067

(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 Govern-

ment or the State Government, as the case may be’’. (4) Sections 366, 367 and 371 of the Code shall apply in relation to a case involving an offence triable by a Special Court subject to the modification that the reference to “Court of Session’, wherever occurring therein, shall be construed as the reference to “Special Court”. (5) 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. (6) 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 the court gives the Public Prosecutor an opportunity of being heard. (7) Where the Public Prosecutor opposes the application of the accused to release on bail, no person accused of an offence punishable under this Act or any rule made thereunder shall be released on bail until the court is satisfied that there are grounds for believing that he is not guilty of committing such offence:

Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of subsection (6) of this section shall apply. (8) The restrictions on granting of bail specified in sub-sections (6) and (7) are in addition to the restrictions under the Code or any other law for the time being in force on granting of bail. (9) Notwithstanding anything contained in sub-sections (6), (7) and (8), 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. [Note by author: Only S. 49 of the Prevention of Terrorism Act, 2002 (POTA), 1s

being reproduced here, as other sections of the said Act are not directly relevant for the purposes of this book. It is also clarified that the said Act, i.e., POTA, has already been repealed by Ordinance No. 1 of 2004, S. 2; however, this Chapter has still been included for discussion in this book, inter alia, for the reason that the judicial

decisions under this Act relating to bail constitute very governing bail and also because Acts of similar nature keep time to time. In fact, as of the writing of the first edition of renewed demand for enactment of yet another law to control

important principles getting enacted from this book, there is a terrorism oftenass in

view of a series of bomb blasts occurring in different parts of India in July, 2008. ]

1068

Bail under POTA

[Chap. 24

SYNOPSIS Li. ile deretbeltbesertassteteltAN AT Aescccesarcerss

1068

2. No bail under POTA without hearing public proS@Cutor................:.20:cccceeeeeeereeeseeees 3. Prima facie view to be formed at bail stage Of not Quilty ............ cccccscereenseneereeeees

Fx Scope of SAP GE FOTA.

1069 1069

4. Sub-sections (6) and (7) of S. 49 of POTA not unreasonable .............0.....0::0000000-

1069

5. 6. 7. 8. 9. 10... 11. 12. 13. 14. 15. 16. 17. 18.

ee

tad

S.49(7) does not place restriction on grant of bail under S. 49(6)...0.......00:c. Additional conditions for bail under POTA are not unreasonable ................0..0High Court has no power to grant bail under in case under POTA..................0:00064 No refusal of bail on confession Of CO-ACCUSEO ..........:ccceteeeeeesteeseeetseteeeneseteneresenns Refusing bail on ground of extensive Cross-exaMINALION..........2...cc.ceeseee seereeeneeeees Successive bail application under:POTA ......011:0i+seadb-cteapodpeconseceb>sqondoosesseppeappcatbons Appeal provision against bail matter under POTA is broadet................:-000eeeeceees Bail after being in custody for two years under POTA ....0.0.......::cccc:ccceeeneeeeeenseeeeeees A person not to be detained in custody for unreasonable time................:c.eeeeeeeee Report for extension of time for investigation must satisfy Court that 1.0. acted RUF OMY sca ioy as saad Saee-s dacaJanadebbinkhe+ch bles otbbse-dnash tei Mate - diy Wien atten cecal Notice to accused on report for extension of time for completing investigation..... No default bail after 90 days when extension of time to complete investigation RETSITE «s5)-inee Paiateseens a1007220°-nndehip Manas se. works Sene-eeaniaian tte pe- Ohers YE RG: AL EEO Mita yn. £ 3. Maximum period of detention under S. 57 is 24 hours ................0..cccccceceeeeeeeeeeeeeees 4. Period of 24 hours is outer limit and not authorisation to detain. ............0.....0...0.... 5. Detention under S. 57 can be extended under S. 167 ...............0..ccccceeceteccceeeeeeeees

1132 1132 1133 1133 1134

6. Section is in consonance with Article 22(2) of Comstitution............0.000000000ccccceeeeee

1134

7. S. 9. 10. 11. 12, 13. 14.

3. od Me LOT TVG Gi aie Pel CO RCRENEN pecseectetitternne ours 1cs>h-egeretndiateienpse=s which shall not be less than 7 ian “i punishable with an - In other words, the minimum sentence me ooh may extend to . IS / years but in a given

68. Natabar Parida y, 5

P

220 1975 SCC (Cri) ABPOrissa, AIR 1975 SC 1465 at Pp. 1469

360 00 et Jarnail Singh, (2006) 6 SC

70 2 pee r Tak Bet. singh + vy, J 1 Oe ~ 3621 : (2006) 3 SC (Cry1pin8* (2006) 6 SCC 277 at p.

1975 Cri LJ 1212 - (1 975) 2 SCC 282 :AIR 2006 SC 2622 : 2006 Cri LJ | 28 2 .: AIR 2006 SC 2622 : 2006 Cri LJ

Syn. 149]

Interpretation of “Imprisonmen t for a Term, etc.

days under S. and 167(2) of ourt Cr.P.C.i; , the is by thect harkh High@

1273

U. ; expressed wet this| case, the contrary view

by the Supreme Court. On the other hand, High Court in State of Himachal Pradesh y. Lal Singh * Rajasthan High Court in Keshav Dev y. State of Rajasthan,”* and Punjab and Hary ana High Court in Kuldeep Singh v. State of Punjab,’* were approved by the Su preme Court for having taken the view that in case of an offence under S. 304B, IPC , the permissible period for filing

the challan is 90 days under S. 167(2) of Cr.P.C.

However, in an earlier case, Rajeev Chaudhary v, State (NCT) of Delhi,”® the

appellant was arrested in connection with an offence punishable under Sections 386, -

506 and 120-B of the IPC. He was released on bail by the Metropolitan Magistrate on the grounds that charge-sheet was not submitted within 60 days as provided under Section 167(2) of Cr.P.C. That order was challenged before the Sessions Court which

allowed the revision application by holding that for an offence under Section 386, IPC, period of sentence could be up to 10 years RI, hence, Clause (i) of the Proviso (a) to Section 167(2) would be applicable. He, therefore, set aside the order passed

by the Metropolitan Magistrate releasing the accused on bail. But, the High Court set aside the said order of the Sessions Court by holding that expression “an offence punishable with imprisonment for a term of not less than 10 years” in clause (i) of the proviso to Section 167 of Cr.P.C. would mean an offence punishable with imprisonment for a specified period which period would not be less than 10 years or in other words would be at least ten years. On an appeal being filed against the order of the High Court, the Supreme Court dismissed the appeal, and while referring to the provisions of S. 167 of Cr.P.C. and S. 386 of IPC, it observed as under: “From the relevant part of the aforesaid sections, it is apparent that pending investigation relating to an offence punishable with imprisonment for a term “not less than 10 years”, the Magistrate is empowered to authorise the detention of the accused in custody for not more than 90 days. For rest of the offences, period prescribed is 60 days. Hence in case, where offence is punishable with imprisonment for 10 years or

more, accused could be detained up to a period of 90 days. In this context, the

and expression “not less than” would mean imprisonment should be 10 years or aby. uh pe e papnisonm be would cover only those offences for which punishment could clear period of 10 years

or more.

Under

Section 386 punishment

prov! : a ha

ar Sin : imprisonment of either description for a term which may extend to 10 or fir’ probe fine. That means, imprisonment can be for a clear period of 10 years al .Fig is oF could not be said that minimum sentence would be 10 years se Cy i BR igrevared to context also if we consider Clause (i) of Proviso (a) shat te SOD ‘giietten applicable in case where investigation relates to an offence 1" ssonmiedt (2) imprisonment for life; and (3) imprisonment for aterm in nlahettle arotel ate would not cover the offence for which punishment idea Sd is not less than 10 years. Under Section 386 of the 1.P.C. bmp e hen prescribed imp that said be to maximum of 10 years and it cannot 71.

Cri 82 82 - AIR 2006 SC 2622 : 2006 o 281 pp. at 277 SCC 6 6) (200 h, Sing ail Bhupinder Singh v. Jarn 5002 AIR - Shar HCR 499 - 2002 (1) East Cri € | LJ 3621 : (2006) 3 SCC (Cri) 101.

72.

R 135: 2 2002 Cri LJ 2507 (Jhar) : (2003) 2 Rec Cri

73. 74. 75. 76.

458. 2003 Cri LJ 1668 (HP). 2005 Cri LJ 3306 (Raj). © : 2001 2001 Cri LJ 2941: - 2 2001 AIR SCW 2210 (2005) 3 RCR 599 (P&H). (2001) 5 SCC 34 at p. 36: A IR 2001 SC 2369 : SCC (Cri) 819.

,

*

[Cha

e(c.

33

Couerrt, thein remd e und Supere whatt the cov hary, ao ; : s.” year 10 than ent hge eev rere Raj of e cas aid res afo the S. Therefore, in t an offence under

e th e c n e l n h a c u s r o t a O C 7) 16 , tet 8 a rvs @) 1S

os (ii) of se au cl r de un ys os ly 60 da f charge-sheel is on O ng li e t ~ ridayfo 7(2) Cr.P.C. proviso (a) to S. 16 ry appears to have not been dha au Ch ev je Ra of (i) of e said case It is submitted that th urt on correct principles. It is submitted that clause able sh me Co able to an offence puni ,

.C. is inter alia applic .P Cr of ) t o e t a oan than ten aT eae |iy ta& of ae with “imprisonment for a term of hnotv. less W Jarnail Singh, ‘d case of Bhupinder Sing the meaning of the word um, s Secund Juri pus Cor m fro d cite was le” hab gle y be punished” or “liable to be

ed” but “ma venishable” iset “must be punishthat n “not less than would mean sio res exp the ted mit sub is it sumished” Secondly, e Is ch means that if an offenc imprisonment should be 10 years or more, whiere the of g nin d within the mea

cov punishable for 10 years, then the same is than ten years”. Now, an offence expression “imprisonment for a term of not less onment of either description for a under S. 386, IPC, “shall be punished with impris y extend to ten years” n term which may extend to ten years”. The expressio “ma lf. Therefore, in implies that in certain cases, the punishment may be “ten years” itse gh, view of the aforesaid decision of the Supreme Court in the case of Bhupinder Sin in ns that mea rse this is an offence which is punishable with ten years, which of cou suitable cases the actual punishment may be either less than ten years or “ten years” itself. As submitted already, the word punishable stands for the maximum punishment for which an offence may be punished and not the actual punishment which is or can be awarded in a particular case. Therefore, it is evident that an

offence under S. 386 IPC which is punishable with imprisonment for ten years is ek a under the expression punishable with “imprisonment for a term of not less

'=intyes

the meaning of clause (i) of proviso (a) to S. 167(2) of Cr.P.C.

gly, it is submitted that for an offence under S. 386 IPC, the permissible

La * ay eriod for > filiing of a charge-sheet under proviso to S. 167 of Cr.P.C. is i i 90 days and It is also pertinent to submit that the aforesaid case of Bhupinder Singh v. Jarnail Singh, in which a similar question arose with r IPC, has been correctly decided b correct principles of law in this regar aforesaid case of Rajeev Chaudha ee State (d~piS©. be mentioned that when the Bhupinder Singh case, it was disti S that the same related to an offence

respect of the said offence is not less than 10 years. This Court held that the expr essi o imprisonment should be 10 years

was said that for the

pu

imprisonment should te reall on

(90 days

AUS ay

different in respect ofthe offence punishable ee: 3048

period

j

5102), CPC

the

Pers: The position

is

a

77. (2006) 6 SCC 277 at Pp. 282 : AIR 2006 SC 2622 ; : 2006 Cc

78. 2001) (2001 5 SCC 34: | AIR 2001 SC 2369 : 2001 Cri LJ 2941 aaa! : 300] AIR SCW 10; 5001 SCC (Cri) 79. Bhupinder Sing v, Jarn ail Sj 3621 : (2006) 3hSCC (Cri) tore (2006) 6 SCC 277 at p.

“(9

.

:

Tl

IR] - AIR 2006 281: SC 2622 : 2006 Cri LJ

Syn. 149]

Interpretation of “Imprisonment for a Term, etc.

1275

mutandis to such cases as well which are described below. The words “imprisonment for a term of not less than 10 years” occurring S. 167(2)a){i) of the Cr.P.C. means that the minimum punishment provided shouldin be ten years. In a case, the accused was arrested for an alleged offence under Ss. 49

IPC. The punishment prescribed for the Mrence onder S. 306, IPC, is up 5 cnhire that means the maximum punishment that can be imposed by the Court, if the offence is proved, is up to 10 years and not beyond. The other offence under S. 498A

is only punishable with imprisonment for a term which may extend to three years. In such circumstances, it was held that the charge-sheet ought to be filed within 60 days

and not 90 days from date of arrest. As charge-sheet was not filed within 60 days from date of arrest in the instant case, it was held that the order directing release of the accused under S. 167(2) Cr.P.C. was valid.

The expression “imprisonment for a term of not less than ten years” occurring in

clause (ii) of proviso (a) to Section 167(2) of Cr.P.C. means the punishment provided

in the Indian Penal Code or any other statute is not less than ten years, i.e., sentence provided for the offence is ten years or exceeding ten years. This expression does not mean that the minimum punishment provided should be ten years. Since, in the instant case, the punishment provided for the offence of abetment of suicide under Section 306, IPC, is punishable for ten years, i.e., the Court is empowered to pass

sentence of imprisonment of ten years also, this offence is covered within the category of the offence “punishable with imprisonment for a term of not less than ten years”.

Therefore,

clause

(i) of the proviso

(a) to Section

167(2),

Cr.P.C., 1S

applicable and the petitioners can be remanded to custody for a total period of 90 days during the investigation. The charge-sheet had been submitted against the petitioners well within 90 days. Accordingly, it was held that they were not entitled to be released on bail under Section 167(2), Cr.P.C.

The purpose of the use of the words “imprisonment for a term of not less than aL years” in proviso to S. 167(2) Cr.P.C. is to classify the offences for limiting t : period of detention to 90 days and 60 days and not to convey ey Wher gh ey ay et imprisonment for minimum period of ten years. All the offences in ne Seed 4 and other statutes which are punishable by ten years or more are IN dAte

Gr “punishable with imprisonment for a term not less than ten an oP RES Fae y ae Ot empowered to award sentence in all those offences of ued more. But in the case of other offences in which the Bees ssi -apd atten be

fer the Penal Code or any other statute is less than ten years, es he aM awarded for ten or more than ten years but only ns t Reences t unishable with

2 4ae offences punishable for offence. Such offences can be put in the category - Similarly imprisonment for a term of less than ten years

74

on to the at p. 2976 (P&H). The decisi ,

‘ab, 1997 Cri LJ 29714 Hi a h Court in Tejinder Singh Desany v. 80. Om Parkash Gabbar vy. State of Punjab, contrary of an Single Bench of the Punjab Se eeuld fe 464. State of Punjab, (1991) 28 Cri LT 5 (P&H), wa 17 (Kant) ; 1997.44) Crimes 81.

Babu v. State of Karnataka, 1998 Cri LJ 16 at p.

8 at p.3261 (Raj) : 1998 (1) Raj LW 456.

82. Mohan Singh y. State of Rajasthan, 1998°Cri LJ 3258 at Pp.

1276

Procedure

when

be Completed, etc. ot nn ca on t at ig st Inve provis isiion

can

[Chap. 33

tego! y be placed, in the ca

e relevant ovided in th pr s a e r o less than ten years’| . m or s not ten year of m ter impris onment for a “punishable with s BurtisPoets

show that Whea | ofSection 307, IPC, would

other Inpuni of 10BAears. and One 206 OPT nt sof shmeword Sem m extend to 10 years (he a pi wag f des inclu : u Bee usedi Section 307, IPC, ten sed in such a impo be bea Le ar 167(2), o to Section in the Se snot 1eus-terelO years” used

case, the period for completing t e awarded.

of no injury u . n 167(2), Since in a case jause (i) of proviso (a) to Sectio

imprisonme ‘od for completing the investigation would be CrP. would be applicable and the np less than 10 years that the ‘

f clause (ii) of proviso (a)

Where the accused was involved in offences relating to extortion and illegal mining of coal under Ss. 386, 379, 411, 414, IPC, it was held that the maximum punishment for offence committed

by accused

under S. 386, IPC, was “upto

10

years” and not for term “not less than 10 years” and that accordingly period of detention permissible under S 167(2), Cr.P.C. would be 60 days and not 90 days. In

view of the fact that the charge-sheet had not been submitted within 60 days from the date of remand of the accused, it was held that the accused was entitled to be released

on bail under S. 167(2), Cr.P.c..°

On a plain reading of clause (i) of Proviso (a) to Section 167(2), Cr.P.C., there pe ‘aBee doubt that offences punishable with death, imprisonment for life or whit 7 ‘Gunishabla of ten years or more would fall under clause (i) and offences lai A. fair ai with imprisonment for less than ten years would fall under

clifton 3h) a Pravin Riera to be placed on the expression “not less than ten” in

OHEMEES Which are

ite pete 1S would be that it takes within its fold all the

inipeehiment for « P ishable with a sentence of death, imprisonment for life or the charge was under erm § of ten years or more. Therefore, in the instant case, where

was punishable with a

and 120-B of IPC, the offence under S. 386 of IPC clause (i) of Res custody would be ninety daya iinet eiraeee and the authorisored detention in Proviso (a) to S. |67(2)

83.

ment which may extend to ten years,

Mohan Singh v. St

84. Mohammed Arif Din Mop pasthan,Sho; 1998 Criri LLJ 3258 at p. 3260 (Raj) : 199 n Mohd. Bom). ohd. Shaikh y. State of Maharashtra,

85. Dilip Ojha v. State : Ps 86.

1999 Cri ul264‘or 2687 wtp 2648

Bihar

(1998) 1 East Cri C60 cf

:

p. jee 135v3 it oO! Cri LJ122 135 (Pat).a 6 2 );at San (Pat

ia) | BLI han a 77 4: (1997) ] Pat IR 232 Rajeev audh d ary v.

ma

State, 2001 Cri LJ 20 23 at pp. 2027-28 (Del)

tle Mrinal Yadav v. State,

yan v. State of Bihar, (1997)

Syn. 149]

Interpretation of “Imprisonment for a Term, etc.

In Sunil Kumar v. State of Jharkhand

1277

8"

Court held that the offence under Saou

proviso (a) to S. 167(2) of Cr.P.C. and not

case under S. 304B, IPC, investigation has t

Jarnail Singh.’

The plain reading of S. 167(2)(a)(i), Criminal Proced

the Magistrate may authorise detention of an accused conte Reb a

Fie os

period which shall not exceed 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. The

above

referred

provision

clearly conveys

that the

punishment provided for the offence committed in any eventuality should not be less than ten years. In the instant case, the punishment, which is provided for the offence under S. 306, Indian Penal Code, is punishable with imprisonment of either description for a term which may extend to ten years, that means punishment can be awarded which can also be less than ten years, which, in fact, is not the purport of S. 167(2)(a)(i), Criminal Procedure Code and, therefore, the period of ninety days

contemplated in this provision is not attracted in the instant case.*’ Provision of S.

167(2)(a)(ii), Criminal Procedure Code, contemplates that where the punishment provided for the offence is less than ten years, a Magistrate is authorised to detain the accused person in custody only till the expiry of sixty days from the date of arrest and not beyond. The investigation, which relates to the offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, is covered by Section 167(2)(a)(i) of the Criminal Procedure Code, and a Magistrate is

authorised to detain the accused not beyond the period of ninety days. In the instant case, the offence under S. 306, Indian Penal Code, is punishable with an imprisonment of either description for a term which may extend to ten years and, therefore, on a plain reading of these provisions, it is amply clear that for the offence under S. 306, Indian Penal Code, the punishment provided is up to ten years, and also it can be less than ten years and if it is less than ten years, the sub-clause (i) of proviso (a) to S. 167(2) Cr.P.C. is not attracted, which only deals with the offences

punishable with death, imprisonment for life or imprisonment for a term of not less than ten years and, hence, a Magistrate is not authorized to detain the accused person

in the custody of police beyond the period of sixty days as contemplated under sub-

clause (ii) of proviso (a) to S. 167(2) of the Cr.P.C. In such a case, if the em

isad is not filed within a period of sixty says from the date of arrest, the accused

to avail the benefit of sub-clause (ii) of proviso (a)to S. 167(2) of the

Criminal Procedure.’ However, it is submitted that this decision does not aT

be correct, in view of what has been submitted above, 1n rackn RigTo

decision of the Supreme Court in Bhupinder Singh v. Jarnail

ine

‘a

oing™.

, -» Jhar HC ‘R 87. 2002 Cri LJ 2507 at p. 2510 (Jhar) : (2003) 2 Rec Cri R 135 ; 2002 AIR

88. 89.

rain

499 : 2002 (1)

East Cri C 458. CC (Cri) 101. (2006) 6 SCC 277 : AIR 2006 SC 2622 : 2006 Cri LJ 7% ;|paper ‘Bom - 2002 All M (Cri) Pralhad Vithal Giri v. State of Maharashtra, 2002 Cri L! ‘

)

: 200 _ 3164 (Bom)

90. Pralhad Vithal Giri v. State of Maharashtra, 2002 Cri LI 3162atPMN

Ser

1502; relying upon Rajeev Chaudhary v. State pon soc (Cri) 819. LJ 3621 : (2006) 3 SCC (Cri) 101. 2369 : 2001 Cri LJ 2941 : 2001 AIR SCW 2210: : Cr!

91. (2006) 6 SCC 277 : AIR 2006 SC 2622 : 2006

ri

AIR 2001 SC

etc. cannot be Completed, n io al ig st ve In en Procedure wh

1278

[Chap. 33 92.

- State (NCT) of Delhi, itself, , a ie been decided ear to have Singh ta ae aren r, the de cision in Kare ie case and rl ea hupinder d no te does based, it bm 1s su on si ci de y a id b sa m o | e B t decision in th on whici h thisi ur Co e em pr Su of correctly in view , ned earliea rested for allegedly having d

%3 the accuse was ar other easons mentio 4. IPC a and Section 4 of the In Md. Naseem v. State ph OFisse,der S. 498-A, 307, 34, the Court that the FIR lodged by gh Hi the by e rv se Spey ee that no hurt was ts of witnesses disclosed men

urder by hanging

was

made

and,

caused f Section 307, IPC. Since maximum IPC is up to a maximum therefore, the ca u n days as imprisonment prescribed of detention in custody would becha60 od eri p maximum the -sheet rge years, period of ten (2) Cr.P.C. As the 167 S. to (a) o vis pro of (ii) use er cla d to be

contemplated und of detention, the accused was hel e dat the of s day 60 hin wit ed fil also had not been mitted that the ratio of this decision sub is It . bail on ed eas rel be to ed itl ent given already.

s appears to be doubtful for the reason 2) Cr.P.C. that for the purpose It is clear on a bare reading of the proviso to S. 167( expression ‘term’ of

the of counting the period of 60 or 90 days, as the case may be, isonment as provided imprisonment as used therein is the maximum term of impr ssarily to be under the law and not the minimum term of imprisonment which is nece awarded to the accused if found guilty of the commission of the offence.”* The term of imprisonment provided for the commission of an offence punishable under Section 304-B of the IPC is imprisonment for life but it should not be less than seven years. The Court in its discretion may pass a sentence of imprisonment which may extend to imprisonment for life but the imprisonment so awarded should not be less than seven years. Therefore, the maximum term of imprisonment being more than 10 fn of pou it was held that for the purpose of the proviso to Section Lech ae. Cr.P.C., the period of 90 days of remand would be applicable. MR:

penn

GF chthe instant case, the order releasing accused

on

bail on

non-

Th charge sheet within the period of 60 days was held to be illegal and aside, and the bail granted to the accused on this ground was cancelled.”> It is

pertinent to point out that this ratio of

thi

Court in the aforesaid Bhupinder Singh ee ane has Deen apprayed CY

aera

than that though not less than 7 years’ ‘C,

€s into

pl

CrP is Accordingly, it was Reid that ehee 92.

resid 5 SCC 34: AIR 2001 SC 2369 : 2001 Cri oa 2003 Cri LJ 1050 | as

p. 1053 (Ori),

at h, 2003 Cri LJ 16 95. fae oat P ¥ o! Sing | 7 96. 20 04 CCri LJ 4794 a ' 5 SC

0)

oe Proviso to 5. TEHz) of

: 200 | AIR SCW 2210 : 2001 SCC (Cri)|

34 AIR 2001 gSC e an 2003anCri 166g8 wh atod d) LIrelyin , 16 P) Ra 70 PeCHch

9: 2001 Cri LJ 294] : 20 0 AIR SCM?

v. State (NCT) of Dethi, (2001 2210 : 2001 SCC (Cri) 819.

Syn. 149]

Interpretation of “Imprisonment for a Term, etc.

1279

confirmed by the Sessions Jud — ge that the prosecution had 90 days’ per; ; a. i Qo a Case could not be said to be correct, necceilal lenit te titi ek bail er of the Magistrate, the High Court directed release of the petitioner On ball in view of the provisions of proviso to S. 167(2) of Cr.P.C

However, ? it is submitted that this decisi €cision also a correctly for the reasons already mentioned.

;

:

BPREFS:'0 have Ags been decided

In Nadeem Ahmed v. State,”’ the FIR was registered for ° and 306 of IPC, however, the charge-sheet ap to be Micd tore anaee oneal 498A and 304B

of IPC. For an offence under 304B IPC, an accused could be punished with imprisonment for a term which shall not be less than 7 years but which

may extend to imprisonment for life. A Single Bench of Karnataka High Court

relying upon its own decision in the case of Ameer v. State of Karnataka F held that the words “imprisonment may extend to life’ cannot be read or taken as “imprisonment for life’ because, in the former case, imprisonment could be even less than that (imprisonment for life) and need not be for life, whereas, in the latter case, where punishment is imprisonment for life, the sentence of imprisonment cannot be less than for life, and as such, in the former case, clause (ii) of proviso (a) to S. 167(2) of Cr.P.C., comes into play whereas, in the latter case, clause (i) of proviso (a)

to S. 167(2) of Cr.P.C., applies. Accordingly, it was held that as an accused in the instant case could be punished with an ‘imprisonment for a period of not less than 7 years and may extend to life, therefore, whether the offence shown in FIR was considered or the offence shown in the charge-sheet was considered, clause (ii) of proviso (a) to S. 167(2) of Cr.P.C., providing for 60 days for filing of charge sheet, was applicable. Accordingly, the High Court set aside the order of the Magistrate refusing to release the accused on bail inspite of the charge sheet having not been filed within 60 days in view of the proviso to S. 167(2) of Cr.P.C., and directed release of the accused on bail. However, it is submitted that this decision also appears to have not been decided correctly for the reasons already mentioned. For deciding as to whether clause (i) or clause (ii) of proviso (a) to S. 167(2) Cr.P.C. would apply, the maximum punishment provided under the particular offence under the IPC has to be taken into consideration and not the minimum period of sentence provided thereunder. Therefore, where the offence allegedis under S. 304B

of the IPC and the punishment provided thereunder is life imprisonment or imprisonment for not less than 7 years and as such the rule of 90 days as envisaged

(ii) of under clause (i) of proviso (a) to S. 167(2) Cr.P.C. would apply and not clause

the said proviso. Accordingly, it was held that in the instant case, the petitionersofwere the 167(2) not entitled to be released on bail under the provisions of Sectign . Cr.P.C. on the ground that the charge sheet was not filed in 60 days. life imprisonment. But The maximum punishment under r S Section 304- B IPC is upto pose sentence not less than * while awarding sentence to a convict the Court has to 1m seven years, saa the minimum punishment. From perusal of provi oid

of proviso (a) to Section 167(2) of Cr.P.C., it is clear Da corsabe —

plochateél

in. the is death or up to life imprisonment, the statutory Perle ie ;. Accordingly,Seantion aaa ‘he a wigs an days 90 is sheet from the date of detention instant case, statutory period of submission of chee s i o f the CJM to release the refusal days and not 60 days. Therefore, the would be 90

v. State (NCT) of Dethi,

. relying upon Rajeev Chau dhary7 CriLJ2940 a0Un AIK SOW RS E oo T S R D Maarswee Serm Be

98.

819. 2004 Cri LJ 4794 at p. 4796 (Kant).

99. Rupesh Kumar v. State of Jharkhand

2005 Cri LJ 180 2 at

p. 1804 (Shar).

Ee

Completed, etc. be ot nn ca on ti ga t s e n Inv Procedure whe

[Chap. 33

e to riod of 60 days du e p e h t of ry pi ex 2) 0 f Cr.P.C. on be proper. u il ba accused onape t of the nder S. 1672)hee t was held to : ionion in respec licat p . S ge char icat the of app on non-submissi than, a bail t the 1280

was filed on the ground tha C IP -B 30 a s ge ve « it Mar In Basanti Lal ions 60 days from the date of of od peri a “hin i m s offence under Sect el ta al aod. kee:Hiatted as g fee ccna , are

However, the Rajasthan Hh

l une «e Wntied forbai bail applicati the ow ‘d not all

er Section wouldbe 90 days in the offence undar the held that it was cle that

of Rajasthan, it was pre TPC in Kamlesh v. State 90 met Sy ae = a his hin wit d file n bee had d use acc eSe charge sheet against the under S. 304B, » also whi ‘o or e enc off an to d ate rel n tio iga scr pre od arrest; as the invest life and, therefore, the peri for ent onm ris imp h wit unishable (2) of Section 167 of the Code was e respect of the offence under in rt Cou h Hig han ast Raj the by d CrP.C. was allowe Sections 498-A and 306 IPC by obs within a period of 60 days.

of investigation of the Quantum of punishment cannot be ascertained at the stageded by the Courts after case because the sentence can only be determined and awar order of conviction. conclusion of trial of each case and after recording the ed for the Therefore, at the stage of investigation, the maximum punishment prescrib offence is relevant for the purpose of proviso (a) to Section 167(2) Cr.P.C. In a number of offences, in Indian Penal Code, various types of or alternative punishments have been prescribed. The minimum sentence prescribed for an offence is not relevant for the purpose of proviso (a) to Section 167(2) Cr.P.C. It is thus clear that for the offence under Section 304B IPC which is punishable for imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life, provisions of clause (i) of proviso (a) to Section 167(2) Cr.P.C. would be attracted providing for 90 days for filing of charge sheet. In the

instant case, charge-sheet had been filed within a period of 90 days, therefore, it was held that the petitioners were not entitled for bail under Section 167(2) CrP. }

; Section

167(2)(a)(i) of Cr.P.C ‘P.C.

provides that the Magisti rat

ih) of an accused person in custody for a total period of iy mach than90dinys

hs ‘ the investigation relates to an offence punishable with death. imprisonment fot

r imprisonment for a term not less than 10 years and under Section 167(2)(a)(ii) any other offence. Since under Section

prisonment has been provided to be 10

on ’ the instant case, it was held by the ansiand 1 sjuation in respectohiS p86. ‘d a meee similar to that of S. 386, IPC,

;

also fine; therefore, the right under S 1672), CrP may extend »

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LINWOOD SHONAIAO SLAWALLV—IWIXX OL WALdVHO

[App. A st and Custody re Ar s, nd Bo , il Ba of Law

APPENDIX B THE SECOND SCHEDULE (See section 476)

FORM No. 1 I.—SUMMONS TO AN ACCUSED PERSON (See section 61)

To (name of accused) of (address).

WHEREAS your attendance is necessary to answer to a char ge of (state shortly th offence charged) you are hereby required to appear in person (or by pleader, Hethe case may be) before the (Magistrate) of.............. ON CHER GE......... day of.. -nange deeded Herein fail not. he Cour Date; #his...;......:3.3 ES

Sena 2ee (Signature)

(Seal of the Court)

FORM No. 2 IIL.—WARRANT OF ARREST (See section 70)

who is or are to execute the To (name and designation of the person or persons warrant). WHEREAS

ged with the offence of (name of accused) of (address) stands char cted to arrest the said............... , and to produce

(state the offence) you are hereby dire him before me. Herein fail not. eae Dated, this...........-.. day Of ....s.s..000 sd 3 (Seal of the Court)

(Signature)

(See section 71)

lows :— This warrant may be endorsed as fol

.-.- ; self in the sum of rupe€s.........sum 0 es each in the a ee creti (or two sur " ° 7 2 0 6 -... .. ES PE TU Of m su with one surety in the eeeeeeeterreree

TUPEES «nceesereeseees

Of ......e 19... Dated, this ........:-++++ day (Seal of the Court)

(Signature)

[App. B

rest and Custody Ar s, nd Bo , il Ba of Law 1436

Il |.—BOND AND

FORM No. 3 T UNDER A WARRAN ST RE AR R TE AF BAIL-BOND (See section 81)

Cleeee ought before the District Magistrate rf to answer to d to compel my appearance ...... I, (name), as ph iy abe issueelf ... seeeee ON to attend in the Court of do hereby bind mys ‘ (or as the or said charge, and to continue so the to wer ans to , next ge ‘a sin Of t Bee © the charge my making default

Oe

a

in case of Sherwfiae directed by the Court; and Of TUPCES......-.-c0ras to forfeit to Government the sum

herein, I bind myself Of 0... Dated, this ........0 day

above-named............-+- OB aecsortsinte , that I do hereby declare myself surety for the rt Of..........++: on GP.cde: day Cou he shall attend before..........-+-.- in the on which he has been arrested, and shall Oi oss ysiscanaane next, to answer to the charge the Court; and in case of his making continue so to attend until otherwise directed by of rupees.......-......ernment the sum default therein, I bind myself to forfeit to Gov 6 Dated, this ...........++ DAYS LG...-.-0009- , 19.1

(Signature)

FORM No. 4 CE OF IV.—PROCLAMATION REQUIRING THE APPEARAN A PERSON ACCUSED (See section 82)

WHEREAS

complaint has been made before me that (name, description and

address) has committed (or is suspected to have committed) the offence of..........-.-.- ;

ed punishable under section ............... of the Indian Penal Code, and it has been return to a warrant of arrest thereupon issued that the said (name) cannot be found, and whereas it has been shown to my satisfaction that the said (name) has absconded (or is concealing himself to avoid the service of the said warrant); Proclamation is hereby made that the said............... gy Aman hee is required to re at (place) before this Court (or before me) to answer the said complaint on the

Dated, this

(Seal of the Court)

(Signature)

FORM No. 5 V.—PROCLAMATION REQUIRING THE ATTENDANCE OF A WITNESS (See sections 82, 87 and 90)

WHEREAS co address} Wis Pometaced has been made before me that (name, description and the offence concisel ed (or is suspected to have committed) the offence of (mention (name, descripti sely) and a warrant has been issued to compel the attendance of on and address of the witness) before this Court to be examined

Second Schedule to Cr.P. “%

to my satisfaction that he h

service of the said warrant):

» and it has been shown

AS abagonded. (or .ig concealing himself to avoid the

Proclamation is hereby made tha i before the Court OF oie Oe on eat icarnend eeci nes ch a

Sh

ag

o'clock, to be examined touching ............... the offence comp lained aa + Nn Dated, this .......00...... ee oes see (Seal of the Court)

(Signature)

FORM No. 6 VI.—ORDER OF ATTACHMENT TO COMPEL THE ATTENDANCE OF A WITNESS (See section 83)

To the Officer in charge of the Police station at

WHEREAS a warrant has been duly issued to compel the attendance of (name, description and address) to testify concerning a complaint pending before this Court, and it has been returned to the said warrant that it cannot be served; and whereas it has been shown to my satisfaction that he has absconded (or is concealing himself to avoid the service of the said warrant); and thereupon a Proclamation has been or is being duly issued and published requiring the said ............... to appear and give evidence at the time and place mentioned therein; This is to authorise and require you to attach by seizure the movable property

belonging to the said ............... to the value -of rupees ............... which you may find

within the District of ............... and to hold the said property under attachment pending the further order of this Court, and to return this warrant with an endorsement certifying the manner of its execution. Dated, this............... day GF .32...::2/..: 49..2.. (Signature) (Seal of the Court)

FORM No. 7 COMPEL THE VII.—ORDER OF ATTACHMENT TO CUSED APPEARANCE OF A PERSON AC (See section 83)

person or persons wh o the of on ati ign des and e am (N To warrant).

WHEREAS

is or are to execute the

ila

ine complaint has been made beforNe ae Oe CNN:

Penal Code and it has been Sarat addr ess) has rosea ao - SP eenericndian punishable un rian thereupon issued that the said (name) cannot a ~_ “ r e) ys me we my satisfaction that the said (nam to n show beet : es sat “i t rt a —_ service of the said hae

to avoid‘5 the tealingig hims being duly issued and publishe him elf conc ispea

Sa

e within.......-++-+++ days; and said charg the I ans eer has. er sw an Proclamation to appear to e the following prop Py possessed of

MS

whereas

[App. B Custody d an st re Ar s, nd Law of Bail, Bo rict eeeeeeerees , in the Dist cce Of ), WN LO r (o e eof; in the villag for the attachment ther de ma en be s ha r de or and an ied in in in ththe manner specif ty er op pr id sa e th ch the i red to atta section 83 and to hold of you are hereby req ui ) (2 n io ct se bsu of or clause (C), OF both*, to return this warrant

r of this Court, and de or r he rt fu g in nd pe nt me ution. mere attach e manner of its exec ement certifying th

if endors Dated, this «1s (Seal of the Court)

(Signature)

ing on the nature of the property nd pe , de le ab ic pl ap t no is h ic «Strike out the one wh

to be attached.

FORM No. 8

TACHMENT BY THE VII.—ORDER AUTHORISING AN AT LLECTOR DISTRICT MAGISTRATE OR CO (See section 83)

rict of............... To the District Magistrate/Collector of the Dist that (name, description and WHEREAS complaint has been made before me itted) the offence of ............... . address) has committed (or is suspected to have comm Code, and it has been returne punishable under section ..........+-++. of the Indian Penal e) cannot be found; and to a warrant of arrest thereupon issued that the said (nam e) has absconded (or whereas it has been shown to my satisfaction that the said (nam and thereupon a is concealing himself to avoid service of the said warrant) iring the said Proclamation has been or is being duly issued and published requ whereas the (name) to appear to answer the said charge within ............... days; and in the SAIC ...esseeseoees is possessed of certain land paying revenue to Government village (or town) Of ........:00+8+ in the District of .............+ ; d, in You are hereby authorised and requested to cause the said land to be attache of (4) ction the manner specified in clause (a), or clause (c), or both*, of sub-se section 83, and to be held under attachment pending the further order of this Court, and to certify without delay what you may have done in pursuance of this order. GTBEy IES ss eoseeessese, day of

(Seal of the Court)

(Signature)

*Strike out the one which is not desired. FORM No. 9

IX.—WARRANT IN THE FIRST INSTANCE TO BRING UP A WITNESS (See section 87)

To (namé and designat; esi is or are to execute the terete of the police officer or other person or persons who WHEREAS

com

accused) of (addr

plaint has been made before me that (name and description of

(mention the offen bit has (or is suspected to have committed) the offence of

. witness) can give

“SdConese and it appears likely that (name and description of idence concerning the said complaint, and whereas I have good

pp. B] App.

Second Schedule to Cr. P.C.

1439

and sufficient reason to believe th

i the said complaint unless boewpelied 7:rtp woe Yrs .

.

t

d — a POPP

Dated, this ............... |

_— ring

penit ane aaa

arrest the said (name of witness), and on him before this Court to be exa min ed touching

eeronceccces

eee

19...

(Se, al of the Court)

(Signaturre e)

FORM No. 10 X—WARRANT TO SEARCH AFTER INFORM ATION OF A PARTICULAR OFFENCE (See section 93)

To (name and designation of the Police officer or other person or persons who is or

are to execute the warrant).

WHEREAS

information has been laid (or complaint has been made) before me of

the commission (or suspected commission) of the offence of (mention the offence concisely), and it has been made to appear to me that the production of (specify the thing clearly) is essential to the inquiry now being made (or about to be made) into the said offence (or suspected offence);

This is to authorise and require you to search for the the (describe the house or place or part thereof to confined), and, if found, to produce the same forthwith this warrant, with an endorsement certifying what immediately upon its execution.

Dated, this ............... Gay OP i).i)51.708 Re

said (the thing specified) in which the search is to be before this Court, returning you have done under it,

ite (Signature)

(Seal of the Court) FORM No. 11 XIL.—WARRANT

TO SEARCH SUSPECTED PLACE OF DEPOSIT (See section 94)

e the rank of a constable) To (name and designation of a police officer abov e, and on due inquiry thereup naon WHEREAS information has been laid ant fe cna okwtier pla 5 | ! had, I have been led to believe that the (descri a ph es no n property {o he a place for the deposit (or sale) of stole ~ purpose Ms the state on, secti the in d esse expr purposes es

the said house io a e er ent to you e uir req and ise hor This is to aut use, if necessary, rea assistance as shall be required, and to

such

i house (or other place, or if the searc his of ah ek and to seize and take possession

— e e to be confined to a part, specify hdl seals, or coins, or obscene objects, as twr ts an stamps, O°. or nts, pe oh Seok ier the case requires it) and ra any acture oftiterd case may Ue) | may reasonably believe to be kept aaa a counterfeit

matenale which you orfeit stamps, or false seals, or counterfeit coins C rt :such of and forthwith to bring before this Court be) may ane “* ‘as i peacenotes currency

st and Custody re Ar s, nd Bo , il Ba of Law

[App. B

an

this warran| t, with : ing n of, returning sio ses pos en tak be ae immediately upon its execution. it, er und e don e hav you t wha ng yi the said things 1440

endorse

.eeere ch -" day Of .... Dated, this «.-. t)

Dad

‘seal of the Cour

(Signature)

FORM No. 12 E PEACE XII.—BOND TO KEEP TH (See sections 106 and 107)

called upon to enter into a n bee e hav ), ace (pl of t tan abi inh , WHEREAS I, (name) of the inquiry .....--..+++- or until the completion

Of.. bond to keep the peace for the term g in the SROMEL U1.scccevsseeesas , [hereby bind myself in the matter Of........--.+++ _ now pendin that may probably occasion a act any do or ce, pea the of ach not to commit a bre il the completion of the said inquiry unt or m ter d sai the ing dur ce, pea breach of the n, I hereby bind myself to forfeit to rei the t aul def ing mak my of e cas and, in +-+++ Government the sum Of TUPCES......--+ee Dated, this .........-++ day OF ......--.+0000- ; (Signature)

(Seal of the Court)

FORM No. 13 XIIL—BOND FOR GOOD BEHAVIOUR (See sections 108, 109 and 110)

to enter into a WHEREAS I, (name), inhabitant of (place), have been called upon of India for the term bond to be of good behaviour to Government and all the citizens Of............... of (state the period) or until the completion of the inquiry in the matter iour now pending in the Court of.............+. , I hereby bind myself to be of good behav the until to Government and all the citizens of India during the said term or completion of the said inquiry; and in case of my making default therein, I hereby bind myself to forfeit to Government the sum of rupees.............--. DRUG TEED cs spcesescesers GRY GF scssisccsnwaes |

we

(Signature) (Where a bond with sureties is to be executed, add ........ ).

mi he hereby declare ourselves sureties for the abovenamed

that he will be of

cenit ee ies to Government and all the citizens of India during the said term or as Bia ompletion of the said inquiry; and, in case of his making default therein, ourselves, jointly and severally, to forfeit to Government the sum of rupees. DIONE CO essercseecccree day of (Signature)

A

pp. B]

Second Schedule to Cr PC.

.

144]

FORM No. 14

XIV.—SUMMONS ON INFO RMATIO ) BREACH OF THE rh e

APROBABLE

(See section 113)

WHEREAS

it has been made to appear to me b y credible information that (state the one 5 Boe information), and that you are likely to commit a breach of the peace (or by which act a breach of the peace will probably be oc Neeiiine crt to on Enea (or ria duly shale agent iftabOrie nethe ee, oe NM te.......... Gay Of............ 19....., at ten o’clock int to show cause why you should not be required to enter into a honk bai pa 3 Eel

[when sureties are required, add, and also to give security by the bond of

one (or two, as the case may be) Surety (or sureties) in the sum of rupees

' (each ifmore than one)), that you will keep the peace for the term of Dated, this ............... day oF