Just because a person is accused of an offence, it is not expected to keep the person in custody for an endless period i.e. end of the Trial, when most of the cases end in acquittal.
And since the accused is presumed to be innocent unless proved guilty beyond reasonable doubt, it is against the Constitutional right to life and personal liberty as enshrined in Article 21 of the constitution of India to keep an accused in custody for an endless period.
In Babua @ Tazmul Hossain V. State of Orissa, Hon’ble Supreme Court of India has held that:-
“It is well settled that pre-trial detention is not to be restored as a measure of punishment. The mere fact that the case prima facie involves a serious crime is not by itself conclusive. Deprivation of liberty by refusing to grant bail is not as a measure of punishment or for the punitive purpose, but for the interests of justice to the individual concerned and to the society affected.”
Also when Bail is a rule and jail is an exception, the accused should be given the benefit of bail to properly defend his case, unless the courts have a reason to believe that the accused will not stand at his trail or it is not in the interest of the society to grant bail as such.
What is Bail?
Release of an accused person, on his furnishing a personal bond or surety to abide by the conditions imposed by the court and stand his trial before the court.
The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon.
The fundamental right to life and personal liberty of the accused is not violated and he should get to defend his case properly while he is on bail.
“Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.”
Two Types of Offences
The Code of Criminal Procedure Code, 1973 defines the offences as bailable in the First Schedule or made bailable by any other law.
Bailable offences are one, in which the Bail is granted as a matter of right on accused furnishing personal bond or surety.
Offences other than bailable are considered to be non-bailable, and bail in case of non- bailable offences is not granted as a matter of right, rather as a judicial discretion of the court.
The Indian Penal Code, 1960 offences are specifically shown to be bailable or non-bailable in Part I of Schedule I of the Code of Criminal Procedure, 1973.
Can a person accused of a non-bailable offence, apply for a pre-arrest bail?
Yes, a person accused of a non-bailable offence can apply for a pre-arrest bail or anticipatory bail.
Section 438 of The Code Criminal Procedure Act,1973 grants the power to an accused person to apply for Anticipatory Bail before the Sessions Court or High Court. Hon’ble Supreme Court in Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April 1980, for the first time, clarified the law relating to Anticipatory Bail:-
- The power provided under Section 438 though of ‘extraordinary character’ does not justify its use in exceptional cases. Due care, caution, and circumspection must be used while exercising such powers.
- The applicant applying for Anticipatory Bail must satisfy that he has “reason to believe” that he may be arrested for a non-bailable offence.
- Filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
However, anticipatory bail can be filed even after the FIR, so long as the applicant has not been arrested.
- “Blanket order” like “whenever arrested for whichever offence whatsoever” of anticipatory bail should not generally be passed.
- The operation of an order passed under section 438(1)need not necessarily be limited in point of time. However, the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order.
- The courts can impose reasonable conditions while granting anticipatory bail in order to keep a balance between the personal/individual right and investigational powers of the Police/ Society Interest.
- The courts can take sufficient surety to their satisfaction to ensure that the accused will not violate the conditions imposed or will not be unavailable to stand his trial.
- The Court’s task while deciding an application for Anticipatory Bail must be to balance the personal liberty of an accused and investigational powers of the police.
Can Anticipatory Bail be Granted for Unlimited Period?
Hon’ble Supreme Court in Sushila Aggarwal vs State (Nct Of Delhi) on 29 January 2020 has held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial.
Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
Factors in Grant of Anticipatory Bail
- Nature and gravity of allegations;
- Genuineness of accusations made against the accused;
- Prima facie or reasonable ground to believe that the accused had committed the offence;
- Chances of the accused absconding from the processes of law or whether the accused have roots in the society;
- Antecedents of accused i.e. whether habitual offender;
- Chances of the accused creating hurdles in the fair investigation or the trial;
- Chance of complainant/witnesses being threatened or evidence tampered;
- Case required custodial interrogation;
- Another fact about the likelihood of the offense being repeated;
- Analyzing objectively whether the accused had joined and co-operated with the investigation
What is ‘Co-operation’ in Investigation?
Hon’ble Supreme Court in Santosh v. State of Maharashtra, (2017) 9 SCC 714 has held that:
Merely because the accused does not confess as the police want him to, it cannot be said that he is not cooperating with the investigation.
“It is settled law that the Court can draw an adverse inference against the accused but the Police cannot compel answers by custodial interrogation. No doubt that the police have the power to investigate the matters as per their way as per law but it does not mean that the police will exercise power just because there are allegations in the complaint by the complainant.”
The custodial interrogation is a euphemism for torture.
“While considering the application for anticipatory bail, the Court has to keep all these facts in its mind, especially in the cases of commercial type disputes and civil nature.”
Rights of Accused after arrest in Non-Bailable Offence?
After an accused is arrested in a non-bailable offence, he can file for regular bail under section 437 or section 439 of The Code of Criminal Code, 1973.
Factors for Grant or Refusal of Bail
Hon’ble Supreme in Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, and In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, culled following principles must be considered while granting or declining bail,
- Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
- Nature and gravity of the charge;
- The severity of the punishment in the event of conviction;
- The danger of the accused absconding or fleeing, if released on bail;
- Character, behaviour, means, position, and standing of the accused;
- Likelihood of the offence being repeated;
- Reasonable apprehension of the witnesses being tampered with; and
- Danger, of course, of justice being thwarted by grant of bail.
No Trial Before Trial
“At the stage of granting bail, an elaborate examination of evidence and detailed reasons touching upon the merit of the case, which may prejudice the accused, should be avoided.”
At the stage of the bail application, the courts are generally expected to look into “reasonable grounds for believing” instead of “the evidence”. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond a reasonable doubt.”
Nature and Gravity of Offence
Merely because the accusations relate to grave and heinous crime like the one of grave economic offense, the bail should not be denied, if other factors favor the accused.
Economic offenses would fall under the category of “grave offence” and the nature of the allegation made against the accused is to be considered while granting bail along with the term of the sentence prescribed for the offence alleged.
Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.”
What after the first bail application is dismissed?
If the first bail application is dismissed by Magistrate Court or Sessions Court, the accused can file challenge dismissal order before the Sessions Court or High Court i.e. accused can challenge the order before the next superior court in the hierarchy.
However, if the accused wishes to apply for bail before the same court who dismissed the previous bail application, the accused has to show fresh grounds (based on a material change in circumstances) which persuaded it to take a view different from the one taken in the earlier applications.
Hon’ble Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 held that:-
Court entertaining subsequent bail application has the duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases, the court also has a duty to record what are the fresh grounds (based on a material change of circumstances) which persuaded it to take a view different from the one taken in the earlier applications.
Forum Shopping: Decryable in law
M/S Gati Limited vs T. Nagarajan Piramiajee on 6 May 2019, Hon’ble Supreme Court has held that:-
“Successive bail applications should be placed before the same Judge who had refused bail in the first instance unless that Judge is not available.
Otherwise, a party aggrieved by an order passed by one bench of the High Court would be tempted to attempt to get the matter reopened before another bench, and there would not be any end to such attempts.
Besides, it was not consistent with the judicial discipline which must be maintained by courts both in the interest of the administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary.
The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum shopping, which is decryable in law.”
What if the charge-sheet is not filed within a specified period?
Though the investigation agency is not bound to complete the investigation within a limited period, but if the accused is in custody and no charge-sheet has been filed within a period of 60 or 90 days, the accused can take the benefit of Default Bail or Statutory Bail under Proviso to Section 167(2) of The Code of Criminal Procedure,1973.
Hon’ble Supreme Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 has held that:
“Immediately on the completion of 60 days (where the offence is punishable with less than 10 years) or 90 days (where the offence is punishable with not less than 10 years), if no charge sheet is filed the accused can take the benefit of default bail by furnishing a surety. No formal application for default bail is required as such.”
Though bail is a rule and jail is an exception, but the Hon’ble Court dealing with the bail applications has to keep a check balance between individual constitutional rights of the accused with the societal interest keeping in mind that neither right of the accused to properly defend his case nor right of the prosecution to present its case should suffer at the hands of each other.
This Article is written by Adv. Kapil Chandna. Advocate Kapil Chandna is a graduate from Delhi University, founding partner of C&C Associates, and is enrolled with the Bar Council of Delhi (2012).
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