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Law of Bail | Practice and Procedure


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A guest lecture delivered at Judicial/Police Academies by Mr.Bharat Chugh (Former Judge), Advocate Supreme Court & Partner L&L Partners

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Law of Bail | Practice and Procedure

  1. 1. - Bharat Chugh, Former Judge, and Partner, L&L Partners LAW OF BAIL
  2. 2. SOME IMPORTANT TERMS… SECURITY: Amount of money for which the bond is signed. BOND: Document of promise of the accused that he will fulfill the conditions of the bond and appear before the Police Officer or the court. Also, declares amount of security which will get forfeited if the conditions are violated. SURETY: Guarantor who guarantees that the accused will abide by the conditions of the bail bond, if conditions are violated then the amount mentioned in surety’s bond shall be forfeited. BAIL: Entire process of release of a person which involves the bond, security and the surety.
  3. 3. WHAT IS BAIL? • The word ‘bail’ has been derived from a French verb ‘bailer’ which means to give or to deliver, although another view is that its derivation is from the Latin term ‘bajulare’ meaning to bear a burden. • In other words, the person is delivered or given to his surety who is responsible for his appearance in court. • As per Wharton's Law Lexicon, the term ‘bail’ means to "set at liberty a person arrested on security being taken for his appearance”.
  4. 4. • Object: To secure the attendance of the accused at the trial. The accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in, the trial than if he is in custody. • Under Section 441 of Cr.P.C., when a person is released on bail, he is asked to execute a bond with sureties that such person shall appear before the Court to answer the charge levelled against him. • Effect: Not to set the prisoner free from jail or custody, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial.
  5. 5. SOME LANDMARKS IN HISTORICAL EVOLUTION OF BAIL Magna Carta 1215 Statute of Westminster 1275 Petition of Right 1628 Habeas Corpus Act 1679 Eighth Amendment to the US Constitution 1791
  6. 6. TWO TYPES OF OFFENCES: BAILABLE OFFENCES • The Cr.P.C defines bailable offence as an offence shown as bailable in the First Schedule or made bailable by any other law. • Bail is granted as a matter of right. NON-BAILABLE OFFENCES • Non-bailable offence means any other offence. • Bail is a matter of the discretion of the court.
  7. 7. REGULARBAIL VS ANTICIPATORY BAIL • Granted after arrest and therefore, means release from the custody of the police. • Bail may be granted to the accused by any Judicial Magistrate or Court. • Bail is ordinarily granted as a matter of right in case of bailable offence and as a matter of discretion of the court in non- bailable offences under Section 437 or 439, Cr. P. C. • Granted in anticipation/ apprehension of arrest and is, therefore, effective at the very moment of arrest. • Anticipatory bail may be granted only by the High Court or Sessions Court. • Power to grant anticipatory bail is of an extra-ordinary character which is to be used by the Court sparingly. • Immunity (not from arrest) but from custody.
  8. 8. WHERE RELEASE ON BAIL IS MANDATORY Where offence is bailable. (S.436, Cr.P.C) Where applicant has undergone half sentence as under trial and offence not punishable with death or life imprisonment (Section 436-A, Cr.P.C) Where investigation is not completed and chargesheet is not filed within 60 or 90 days. (S.167(2)(proviso) Where trial before Magistrate not concluded within 60 days (Section 437(6), Cr.P.C)
  9. 9. Bail for Bailable Offences – S. 436, CrPC • A person accused of a bailable offence is entitled to be released on bail pending his trial. • A police officer has no discretion to refuse bail if the accused is prepared to furnish surety and cannot be taken in custody unless unable or unwilling to offer bail or to execute personal bonds. • The Magistrate gets jurisdiction to grant bail during the course of investigation when the accused is produced before him. • The Court has no discretion, when granting bail under this section, even to impose any condition except the demanding of security with sureties.
  10. 10. APPLICANT HAS UNDERGONE HALF SENTENCE AS UNDER TRIAL S. 436-A. • Where a person has, during the period of investigation, inquiry or trial of an offence (not punishable by death) under any law undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties • Provided • that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order the continued detention of such person or release him on bail instead of the personal bond with or without sureties • that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
  11. 11. DEFAULT BAIL  When can it be granted? • Investigation is not completed and charge-sheet is not filed within 60 or 90 days. (S.167(2)(proviso) • Trial before Magistrate not concluded within 60 days (Section 437(6), Cr.P.C)  Rationale: • To deter delays in investigation  How is the period computed? • State of M.P vs Rustam and Others, 1995 Supp 3 SCC 221 As per section 9 and 10 of the General Clauses Act, one day out of the 60 or 90 day period is to be excluded. It can either be the 1st day of production or the last day of the period. Thus from the time of production the total custody period will be 61 or 91 days. • Ravi Prakash Singh v state of Bihar, (2015) 8 SCC 340 While computing period under Section 167)2), the day on which accused was remanded to judicial custody has to be excluded, and the day on which challan/chargesheet is filed in the court, has to be included.
  12. 12. Default bail – case law How is the period computed? Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 • 90 days period, is to be taken under 167 (2)(a)(i), where : 1. Offence punishable with Death and any lower sentence 2. Offence punishable with Life Imprisonment and any lower sentence 3. Offence punishable with minimum sentence of 10 years • 60 days period, is to be taken under 167 (2)(a)(ii), where: Where minimum sentence is less than 10 years, but maximum sentence is not Death/ Life Imprisonment. • It is not necessary to file a specific written application under S. 167, CrPC for being released on default on bail, oral arguments could cover it too. In matters of personal liberty, technical approach must be avoided.
  13. 13. Default bail – case law EFFECT OF FURTHER INVESTIGATION AND INCOMPLETE CHARGESHEET ON RIGHT TO DEFAULT BAIL? Dinesh Dalmia vs. C.B.I, (2007) 8 SCC 770 • When a charge sheet is not filed and investigation is kept pending, benefit of proviso appended to Sub-section (2) of Section 167 of the Code would be available to an offender; • However, once a charge sheet is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code. • If a charge-sheet is filed after the expiry of 60/90 day period or on the 60th/90th day, and it is found that it is an incomplete charge-sheet which has been filed to defeat the right of bail of the accused, then that charge-sheet is liable to be rejected and the right of default bail will accrue to the accused.
  14. 14. Default bail – case law IS THE RIGHT OF DEFAULT BAIL DEFEATED BY THE SUBSEQUENT FILING OF CHARGESHEET? Uday Mohanlal Acharya vs State of Maharashtra, (2001) 5 SCC 453 • If investigation is not completed within the specified period, accused is only required to file an application before the Magistrate seeking release on bail. Magistrate is obliged to grant bail, even if after filing of the application by the accused, a chargesheet is filed. • If the application is erroneously rejected by the Magistrate and the accused then moves the higher forum but during pendency of the matter before that forum a chargesheet is filed, accused’s indefeasible right is not affected. Does Section 167 apply in special cases like Customs Act? Directorate of Enforcement vs Deepak Mahajan, (1994) 3 SCC 440 • When a person arrested under a special statute like Section 104(1) of the Customs Act is produced before a Magistrate under Section 104(2), the Magistrate has jurisdiction to authorise detention under Section 167(2)
  15. 15. WHERE BAIL IS NOT MANDATORY Bail For Non- Bailable Offences Bail u/s 437, Cr.P.C • Discretionary jurisdiction on Criminal Courts to grant bails to accused pending trials or in appeal against convictions. • The jurisdiction is to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. • Courts are required to indicate the reasons for grant or refusal of bail • A person seeking bail, must have been either arrested or detained without warrant by an officer in charge of a police station, and if not, he has to be physically present or brought before the Magistrate.
  16. 16. WHERE BAIL IS NOT MANDATORY Bail For Non- Bailable Offences Bail u/s 439, Cr.P.C • Section 439(1) confers power on the High Court or Court of Session, • to grant bail to a person in any case without condition or with condition in certain specified offences and subject to the procedural limitation imposed by the proviso in respect of certain specified offences, and • to set aside or modify any condition imposed by a Magistrate while granting bail. • Section 439(2) gives power to the High Court or Court of Session to cause any person who has been admitted to bail by itself or by any Criminal Court under this chapter to be re- arrested and committed to custody. i.e., the power to cancel the bail granted to an accused person. QUESTION - Where should one go first for bail u/s 439? - Court of Sessions or High Court
  17. 17. CONSIDERATIONS FOR GRANT OR REFUSAL OF BAIL Any prima facie or reasonable ground to believe that the accused had committed the offence Severity of the punishment in the event of conviction Danger of accused absconding or fleeing if released on bail Likelihood of the offence being repeated Character, behavior, means, position and standing of the accused Reasonable apprehension of the witnesses being tampered with and Danger, of justice being thwarted by grant of bail Nature and gravity of the charge
  18. 18. GRAVITY OF OFFENCE • Gravity of the offence, while is required to be considered by the Court, it is not the sole consideration for grant or refusal of bail. • Gravity has to be gathered from the facts and circumstances of each case. • Economic offences would fall under the category of “grave offence” and the nature of allegation made against the accused is to be considered while granting bail along with the term of sentence prescribed for the offence alleged. • However, even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. P. Chidambaramvs DirectorateofEnforcement 2019SCC OnLinesc 1549
  19. 19. ANTICIPATORY BAIL- Section 438, CrpC Special powers have been conferred only on High Courts and Courts of Session for directing a person on bail previous to his arrest, what is commonly known as anticipatory bail, imposing such conditions as the Court thinks fit. The expression “anticipatory bail” is a misnomer inasmuch as it is not as if bail is presently granted by the Court in anticipation of arrest. The provision was enshrined in S. 438 to see that the liberty of the subject is not put in jeopardy on frivolous grounds. Anticipatory bail is not to be granted as a matter of rule, but should be granted only when a special case is made out and the Court is convinced that the accused would not misuse his liberty.
  20. 20. EVOLUTION OF LAW on ANTICIPATORY BAIL  Gurbaksh Singh Sibba Vs the State of Punjab, AIR 1980 SC 1632 • The court can grant anticipatory bail for an unlimited period until the trial is completed and has an option to grant it for a limited period as well. • However, the normal rule should be not to limit the operation of the order in relation to a period of time.  Salauddin Abdulsamad Shaikh vs State of Mahrashtra (1996) 1 SCC 667 • Anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it, after the investigation has made progress or the charge- sheet is submitted.  Siddharam Satlingappa Mhetre Vs. State of Mahrashtra, AIR 2011 SC 312 • The judgements in Salauddin Abdulsamad Shaikh vs State of Mahrashtra , Adri Dharan das vs State of West Bengal are clearly contrary to the law declared by the Constitution Bench in Gurbaksh Singh Sibbia's case and also contrary to the legislative intention. • The judgement laid down by the Constitution bench would prevail and hence, anticipatory bail can be granted for an unlimited period of time.
  21. 21. EVOLUTION OF LAW on ANTICIPATORY BAIL Sushila Aggarwal v. State of NCT of Delhi, 2020 SCC OnLine98 • A 5-judge bench, unanimously ruled that the protection granted to a person under Section 438 Cr.P.C should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. • The “limited custody” or “deemed custody” which the Police has over the accused would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, to facilitate the requirements of the investigative authority and there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. • Thus, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.
  22. 22. Factors in GRANT OF ANTICIPATORY BAIL • Nature and gravity of the accusation and the exact role of the accused must be properly comprehended before the arrest is made • Antecedents of the applicant- previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; • Possibility of the applicant fleeing from justice; • Accused’s likelihood to repeat similar or other offences; • Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; • Impact of grant of anticipatory bail on the accused • Balance between two factors- no prejudice to the free, fair and full investigation and prevention of harassment, humiliation and unjustified detention of the accused • Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant • Frivolity in prosecution and the element of genuineness. • Available material against the accused and exact role
  23. 23. ACCUSED NOT ARRESTED DURING INVESTIGATION cognizable, non- bailable offence; Chargesheet filed and cognizance taken Considerations for grant of bail Court on its motion vs CBI, 2004 (72) DRJ 629 • The Court shall on appearance of the accused, call upon him to move a bail application if he does not move it on his own and then, release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Dataram Singh vs State of Uttar Pradesh and Anr (2018) 3 SCC 22 • If the accused was not arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses and the investigating officer did not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed.
  24. 24. BAIL UNDER SPECIAL LAWS – NARROWING DOWN OF DISCRETION Prevention of Money Laundering Act – Section 45 Narcotic Drugs and Psychotropic Substances Act – Section 37 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act – Section 18A(2) Companies Act – Section 212(6) Unlawful Activities (Prevention) Act – Section 43-D Maharashtra Control of Organized Crime Act – Section 21
  25. 25. BAIL UNDER SPECIAL LAWS - RATIONALE AND SUPPLEMENTAL TEST RATIONALE The balance between individual liberty and state security should be tilted in favour of the latter – Kartar Singh v. Union of India (1994) 3 SCC 569 TWIN TEST - S. 437 CrPC test- "reasonable grounds for believing that he is not guilty of such offence“ Additional test in special statutes – the accused must be "not likely to commit any offence while on bail". Public Prosecutor PP must be given notice when a bail application is moved.
  26. 26. Courts against Reversal of Presumption of Innocence? CASE IN POINT – S. 45 OF PMLA • S. 45(1) provided that the court had to be satisfied (“reasonable grounds to believe”) that the accused was not guilty of “such offence”, i.e. the predicate/scheduled offence, and that the burden of proving such was on the accused. • Nikesh Tarachand Shah v Union of India, (2018) 11 SCC 1 – SC held S, 45(1) to be violative of Articles 14 & 21 of the Constitution, struck it down. • PMLA Amendment, 2018 – “such offence” replaced with offences “under the Act” • Upendra Rai v Directorate of Enforcement, 2019 SCC OnLine Del 9086 - the introduction of the words "under this Act" would not revive the twin conditions as imposed in Section 45(1) PMLA. • Same view in two other HC judgments - Sameer M. Bhujbal v. Assistant Director, Directorate of Enforcement, 2019 SCC OnLine Bom 7574, and Vinod Bhandari v. Assistant Director, Directorate of Enforcement by Madhya Pradesh HC, M. Cr. C. No. 34201/2018, IV(2018)C C R178(MP), 29th August 2018.
  27. 27. Courts for Reversal of Presumption of Innocence? CASE IN POINT – S. 37 OF NDPS S. 37, NDPS lays down a similar twin test for grant of bail for offences under NDPS State of Kerala v Rajesh (SC, 2020) CRIMINAL APPEAL NO(S). 154157 OF 2020, 24th January 2020 – upheld the test, and further strengthened it- • There cannot be a “liberal” approach to bail in NDPS cases. • “The expression ‘reasonable grounds’ means something more than prima facie grounds.” • “It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.” • “The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.” Note – There have been divergent views. In Ankush Kumar @Sonu v. State of Punjab, 2018 SCC OnLine P&H 1259, Justice Sehrawat, with an eye on the fate of S. 45, PMLA, held the conditions in S. 37, NDPS to be irrational.
  28. 28. BAIL IN OTHER SPECIAL STATUTES AND COURTS • S. 212(6), Companies Act - Nittin Johari v. Serious Fraud Investigation Office (SFIO), 2020 SCC OnLine Del 394 • Delhi HC granted bail in August, 2019. • SFIO approached SC, which set aside the bail order and remanded back the matter to the Delhi HC, directing it to consider the scope and effect of the twin mandatory conditions for grant of bail laid down in Section 212(6)(ii) of the Act. • Delhi HC, while hearing the matter afresh considered the judgment in Nikesh Tarachand which held the similar scheme of bail under PMLA (S. 45) unconstitutional, but held that the same does not apply to the present case, and rejected the bail application as it did not meet the test of S. 212(6). • S. 21, MCOCA - Ranjitsing Brahmajeetsing Sharmav. State of Maharasthra & Anr., (2002) 5 SCC 294. • Applied the twin test of S. 21 MCOCA • But held that the ‘offence’ under this section means an offence under MCOCA and not any other offence. SOME SPECIAL STATUTES EXPRESSLY DISALLOW ANTICIPATORY BAIL • UAPA – Section 43D(4) • SC/ST (PREVENTION) ACT – Section 18A(2) [though the SC in Prithvi Raj Chouhan v UOI, 2020 SCC OnLine SC 159 has held that the bar would not apply when prima facie the SC/ST Act is not attracted to the case] • MCOCA – Section 21(3)
  29. 29. CANCELLATION OF BAIL v. CHALLENGE TO BAIL ORDER Cancellation of bail – where the prosecution moves court to get the bail cancelled due to a post-bail circumstance. Challenge to bail – where the prosecution moves a higher court against a bail order on grounds of improper exercise of discretion in grant of bail. Bharatbhai Bhimabhai Bharwad v. State of Gujarat and Others 2019 SCC OnLine SC 945 • While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like; tampering of evidence either during investigation or during trial, threatening of witness, the accused is likely to abscond and the trial of the case getting delayed on that count etc. • Whereas, in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration is whether there was improper or arbitrary exercise of discretion in grant of bail.
  30. 30. CANCELLATION OF BAIL - grounds • Misusing liberty by indulging in similar criminal activity • Interference with the course of investigation • Attempt to tamper with evidence or witnesses • Threatening witnesses or indulges in similar activities which would hamper smooth investigation • Likelihood of fleeing to another country • Attempts to make himself scarce by going underground or becoming unavailable to the investigating agency • Attempts to place himself beyond the reach of his surety, etc. • Failure to appear before court. • Committing acts of violence, in revenge against the police or prosecution witnesses • Fresh evidence suggests accused is guilty of an offence punishable with death/life imprisonment. • When it seems imminent that accused will jump bail. • Charge is amended or change in circumstances • Bail obtained on concealment of facts • Behest of the complainant. • The superior court finds that the court granting bail acted on irrelevant facts or there was no application of mind or manifest impropriety.
  31. 31. COMPLAINANT’S RIGHT TO OPPOSE BAIL Sundeep Kumar Bafna vs State of Mahrashtra, AIR 2014 SC 1745 •No vested right granted to a complainant or informant or aggrieved party to directly conduct a prosecution. •In the Sessions Court, it is the Public Prosecutor who must at all times remain in control of the prosecution •Counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. •May be heard at a crucial and critical juncture of the Trial so that his interests in the prosecution are not prejudiced or jeopardized. •If the prosecution is likely to fail, the complainant or informant or aggrieved party be given an informal hearing Smt. Sharada Dattatray Choudhari Vs. State of Mahrashtra & Anr., [Criminal Writ Petition No. 3455 of 2014, Bombay HC] •The complainant or informant or aggrieved party, can be given a hearing if the judge harbours an opinion that the prosecution is likely to fail or the matter is at a crucial and critical stage.
  32. 32. PAROLE v. FORLOUGH PAROLE FURLOUGH Temporary release of prisoners for a short period of time A release to break the continuity of prolonged incarceration as reward for good conduct Maintain social relations with their family and community in order to fulfil familial and social responsibilities Serves as a periodic break for prisoners from prolonged and continuous incarceration Prisoners must show the existence of certain grounds which necessitate their release Not contingent upon the existence of any specific ground for release Marriage in the family, illness/ death of a family member, damage to property or maintaining family and social ties Granted for a stipulated time as a reward for good conduct in prison Period of release on parole is not counted as a part of the sentence and a person has to spend extra time in prison to compensate for the period spent out on parole The period spent on furlough constitutes a part of the period undergone as imprisonment Prisoners undergoing short term imprisonment are eligible Prisoners undergoing short term imprisonment are not eligible
  33. 33. Transit Bail Regular Transit Bail - Sections 80 & 81, CrPC Anticipatory Transit Bail – largely judge-made law, but conflicting views • Restrictive view – such application can only be filed before the court which has jurisdiction over the case, since the statute says application can be made to ‘the’ court, not ‘a/any’ court. (Patna HC, Calcutta HC, Punjab & Haryana HC) • Expansive view – such application can also be filed before the court which has jurisdiction over the place where the accused apprehends arrest, since goal is to ensure widest possible protection to personal liberty. (Delhi HC) • Middle path – such application can be filed where the accused apprehends arrest, but the protection is given either with territorial limit, or with a time limit, to enable the accused to subsequently apply before the court which has jurisdiction over the case. (Bombay HC, Kerala HC, Karnataka HC) • Supreme Court is yet to definitively settle the law on this.
  34. 34. BAIL IN APPEAL & SUSPENSION OF SENTENCE  Appellate court can exercise the power to grant bail under Sec. 389(1) only if: 1. The person asking for release on bail is a convicted person 2. The person is in confinement 3. The person’s appeal against conviction is pending  Hear the prosecution before the convicted person is released on bail  Court has the power to suspend execution of sentence as well. (the two applications go alongside to avoid anomaly)  Irrespective of the offence is bailable/ Non- bailable: The grant of bail in appeal is discretionary. Reasoned order. - Khilari v. State of U.P. (2009) 4 SCC 23]  Suspension/stay of conviction v. Suspension of sentence If the facts and circumstances are such the court has the discretion under section 389 r/w sec. 482 of Cr.P.C. to even suspend the conviction of the accused. (Done sparingly) - Navjot Singh Sidhu v. State of Punjab & Others (2007) 2 SCC 574
  35. 35. BAIL IN CASES BASED ON DOCUMENTARY EVIDENCE In matters where evidence is document-heavy, and where custodial interrogation is not necessary, bail has been generally granted. Case Law – • Madhukar Sadashiv Gomane v. State of Maharashtra, 2016 SCC OnLine Bom 3447 • Rafique Abdul Malik v. State of Maharashtra, 1996 SCC OnLineBom 493 • Barun Pramanik & others v. State – 2017 SCC Online Cal 4767
  36. 36. CONDITIONS on grant of BAIL What should the prosecution insist on? • Accused to cooperate with prosecution, aid in the investigation by providing documents related to the case. • Restrictions on travelling abroad or outside the jurisdiction of court (though the court cannot impound passport). • Refrain from making any contact with the witnesses directly or through family members. • Undergo a medical, psychological or psychiatric treatment if required. • Sureties should be verified to ensure that they are not in the regular business of acting as sureties for accused. • Tracking devices/GPS- The accused can be tracked through wrist tracking devices or GPS tracker. What should courts be mindful of? • Bail amount should not be excessive or exorbitant. • Maybe mandated to seek or maintain employment or take an educational course. • Conditions imposed should be proportionate and commensurate- no excessive conditions restricting the freedom of speech and expression should be imposed. • The practice of insisting on local sureties should be avoided as it causes unnecessary hassle to the accused.
  37. 37. CONDITIONS on ALLOWED BAIL applications - global best practices • Drug testing • House arrest • Submission to warrantless searches • Residence in halfway home • Freezing of defendant’s assets • Telephone monitoring • Electronic bracelet monitoring • Limiting access to the internet and computers • Submission to random unnnounced visits by pre- trial service officers.
  38. 38. Bail to approver • S. 306(4)(b), CrPC – Every person accepting a tender of pardon under S. 306(1) shall, unless he is already on bail, be detained in custody until the termination of the trial. • Thus, an approver in custody may not be released on bail. • However, a High Court in exercise of inherent powers u/s 482 CrPC may release the approver on bail in exceptional circumstances to prevent the abuse of process of the court. - AL Mahra v. State 1958 Cri LJ 413 HABEAS CORPUS AND BAIL • Generally the rule is that the writ of Habeas Corpus is not an efficacious remedy for bail. • However, over the years, the SC has carved out a very narrow exception to his rule. - [SFIO v. Rahul Modi, (2019) 5 SCC 266] What if one jumps bail? Section 229A, IPC – If, without sufficient cause, fails to appear in court in accordance with the terms of the bail or bond, punishable with imprisonment upto 1 year and/or fine. Burden of proving ‘sufficient cause’ upon himself.
  39. 39. BAIL TO JUVENILES SECTION 12, JJA to be read in consonance with principle mentioned in Section 3 of the Act • Principle of Repatriation and Restoration • Principle of Fresh Start • Principle of Institutionalization (last resort) GENERAL PRINCIPLE Bail should be granted to every juvenile as a matter of right. Should be refused only on grounds mentioned in Section 12 of the Act. CONDITIONS WHICH SHOULD BE IMPOSED • Supervision by Probation Officer • Enrolment in School • Vocational training etc GROUNDS FOR DENIAL • Juvenile will come into association with known criminals ( link between juvenile and criminal should be established) • Release of juvenile will defeat the ends of justice (hamper investigation/inquiry/tri al; tampering with witnesses)
  40. 40. SUCCESSIVE BAIL APPLICATION – FORUM SHOPPING? • Once a bail application has been rejected, the undesirable practice of repeatedly approaching different courts seeking bail, on the same facts and circumstances is not allowed • Results in forum shopping/ bench- hunting and is against judicial discipline. • The change of circumstances should be a substantial one- that has a direct impact on the earlier rejection and not merely a cosmetic change • The change must be such that renders the earlier finding obsolete. Eg: Filing of charge-sheet. • Successive bail applications filed by an accused should be placed before the same Judge who had refused bail in the first instance, unless that Judge is not available. {Hon’ble Supreme Court in M/s Gati Limited Vs. T. Nagarajan Piramiajee & Anr. in Criminal Appeal No. 870 of 2019, 6th May 2019.} Application before Magistrate under section 437 •Rejected Application before COS under section 439 •Rejected Application before HC under section 439 •Rejected Application before magistrate under section 437 •Rejected
  41. 41. SUCCESSIVE BAIL APPLICATION – CASE LAW Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 • Court entertaining subsequent bail application has 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 which persuaded it to take a view different from the one taken in the earlier applications. • Successive Bail applications are restricted on the ground of judicial discipline. Rajesh Ranjan Yadav v. Central bureau of Investigation (2007) 1 SCC 70 • Urgent Medical condition of the accused- also has been considered a good ground, however same has to be seen in light of other facts and circumstances. Akhilesh Kumar Singh v. State of Uttar Pradesh (2008) 4 SCC 449 • Change of arguments is not allowed as a ground.
  42. 42. FURNISHING OF BONDS AT THE TIME OF ACQUITTAL SECTION 437- A Before the trial/appeal is concluded/disposed, the concerned court trying the offence shall require the accused to execute bail bonds with sureties, to appear before the higher court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the said Court. Such bail bonds shall be in force for six months. If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.
  43. 43. examples of ABSURDBAIL ORDERS - no sanction in law • Heavy or disproportionate security amount. • Direction to deposit certain amount in the PM CARES Fund and download the Aarogya Setu app. (recent Jharkhand HC bail order in favour of Mr. Som Marandi). • Arrest made for writing an offensive post on social media against Muslims- bail granted on the condition that accused should distribute five copies of the Quran to different libraries. • On a charge of sedition, the bail order detailed upon “nationalism”, the plight of soldiers on the border and other jargon for 30 plus pages. • Sexual harassment matter: the judge in the bail order makes unwarranted remarks upon the victim and her character. • On a charge of murder; the bail order states the victim was wearing, a “pastel green colour shirt and had sported a beard”- “The fault of the deceased was only that he belonged to another religion. I consider this factor in favour of the applicant/accused. Moreover, the applicants/accused do not have [a] criminal record and it appears in the name of religion, they were provoked and have committed murder”. • In January 2020, 13 convicts of post-Godhra massacre, were granted bail with condition of undertaking social service and to stay out of Gujarat.
  44. 44. Case Laws for opposing bail andseeking custodial interrogation Maruti Nivruti Navale v. State of Maharashtra, (2012) 9 SCC 235 – • if real apprehension of accused misusing his liberty to scuttle investigation and intimidate witnesses. Niranjan Singh v. Prabhakar Rajaram Kharote & Ors., (1980) 2 SCC 559 – • unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable YS Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 Rohit Tandon v ED, (2018) 11 SCC 46 • economic offences constitute a class apart from other offences, thus bail applications in such cases need to be visited with a different approach.
  45. 45. A well-drafted bail application - draft it like a bail order  Less is more • You are more likely to regret the things that you say than the things that you don’t. • Don’t say too much. It’s not a contest on merits. You’d end up making concessions and admissions that may be used against you. • Never conceal material facts.  Make it clear : • You have and you undertake to co-operate in the investigation. • Won’t threaten witnesses or tamper with evidences. • Would abide by the conditions. • Undertake not to travel. • Co-operate with the investigation in one way or the other. • Antecedents (not a fly by night operator) – “roots in the society”. • Demonstrate how the case is based on documentary evidence and no fruitful purpose will be served by custodial detention or interrogation. • Investigation is at an advanced stage/chargesheet is filed, major witnesses examined in a Section 164 of the CrPC.  If it is a successive bail application: • Expressly mention the fact of it being a successive application. • Clearly spell out the change of circumstance  Other things: • Keep sureties ready, sometimes local sureties, with their solvency proofs. • Bail bonds/supporting documents.
  46. 46. BAIL IN THE TIME OF COVID-19 SC, on 23.03.2020, directed all states/UTs to constitute a High Powered Committee to determine the categories of prisoners to be considered for release on interim bail / parole or furlough to reduce overcrowding in prisons. The SC suggested the following categories for consideration of release: • Prisoners who are convicted/undertrial for one offence for which the sentence is up to seven years; • Any categories identified by the High Powered Committee on the basis of the nature of offence, duration of the sentence and severity of the offence. Subsequently, the Committees thus constituted in various states have recommended release of prisoners of select categories on parole (for convicts) / interim bail (for undertrials) for a period of around six weeks. Some of the common criteria being followed: • Persons who are accused or convicted of offences with punishment upto or less than seven years • Extend the parole of convicts who are already out on parole suitably (Goa) • Prisoners/ Undertrials diagnosed with autoimmune diseases (Andhra Pradesh) • All prisoners above the age of 65, except those involved in multiple crimes, will be granted a 6 week special parole (Haryana) • Undertrials accused of maximum two offences in which punishment is up to two years (Haryana) • In case of women UTP, if she is in custody for a period of 15 days or more (Delhi)Most of the states have excluded prisoners under special laws such as POSCO, PMLA, NDPS, UAPA, etc from consideration for release.
  47. 47. BAIL IN THE TIME OF COVID-19 Courts across the country have included matters related to bail applications, under Sections 437, 438, and 439, CrPC in the category of “extremely urgent” or “urgent” matters, to enable the same being heard even with restricted functioning of the courts. However, some outliers – • A single judge of the Rajasthan HC passed an order effectively holding that bail applications and applications of suspension of sentence could not be heard during the lockdown period, as they did not constitute “extremely urgent matters.” The SC subsequently stayed the order. • A Single Judge of the Bombay HC passed a similar order, citing similar administrative difficulties as reasons in order to refuse to entertain a bail application until the end of the lockdown period. The SC, vide a notification dt. 11.05.2020 expressly included SLPs arising out of bail applications (u/s 437, 438, and 439, CrPC) in cases with offences up to 7 years imprisonement in the categories of matters which may be heard by a single judge of the SC.
  48. 48. Default bail, COVID-19 & LOCKDOWN • Section 167(2) cannot be construed as prescribing any period of limitation for investigation as there is no bar to the filing of final report even after the prescribed period • The effect of expiry of the period under Section 167(2) is just the accrual of rights to the accused for default bail. • Therefore, the closure of the courts and the general extension of the limitation period will not affect the right of accused to default bail. Settuvs State,CRLOP(MD)No. 5291of 2020,MadrasHighCourt
  49. 49. REFORMS IN BAIL JURISPRUDENCE • To make a good deterrent, amount of bail be set commensurate to paying capacity of the accused, not just to the crime alleged. • Risk Assessment, a technique to help determine the least intrusive method of policing and investigating offences, maintaining a balance between individual liberty and community safety. Use of Artificial Intelligence in Risk Assessment (though privacy concerns remain) • Bail Durability Assessment Orders. • Electronic Monitoring through bracelets etc? (though privacy concerns remain) • The scourge of ‘professional sureties’. • Move to creative bail conditions instead of insisting on jail time.
  50. 50. REFORMS IN BAIL JURISPRUDENCE • Bail conditions must consider the socio-economic position of the person and must not be unduly onerous. • Centralised Database, to confirm criminal antecedents. • Victims be given an opportunity of being heard at the stage of bail itself and be informed when release on bail is imminent. • 'Treatment of Victims' should be a principle governing bail decisions, and a 'Victim Impact Assessment Report' may be called for where offences are of a particularly grave of heinous nature. • Amending S. 50 CrPC to require police officers to inform arrested persons of the reasons for arrest, in vernacular. • Courts should not authorise remand to custody routinely and should examine the case diary thoroughly.
  51. 51. REFORMS IN BAIL JURISPRUDENCE • Courts should enforce the rule that Supplementary Chargesheets are filed only to add information subsequently available, in order to prevent delays. • Modifying classifications of Bailable and Non-Bailable Offences, there should be correlation between the term of imprisonment and classification of offence. • Bail in economic offences and crimes under special laws to be statutorily made harder, and not be granted mechanically and in a routine manner • Modify S. 436 and S. 436-A CrPC, to unambiguously reflect that bail is a matter of right which must be communicated to arrested persons. • Overhauling the "crumbling prison infrastructure and system“ • Approach should be – reduce overcrowding in prisons, when 70% of inmates in India are undertrials, not convicts.
  52. 52. THANK YOU.