Practical Issues in Grant of Bail

Below are judgments on certain specific practical issues arising in bail hearings:

1. Conditions for Bail

Grant of bail involves placing conditions on the liberty of an accused, as per Section 437(3), Cr.P.C., which the court considers necessary: (i) to ensure attendance of the accused before court / police, (ii) to ensure that the accused will not commit another offence similar to the one of which she is accused, and (iii) otherwise in the interests of justice. This third category allows for various conditions, such as requiring deposit of money / property, restricting the travel / movements of the accused, prohibiting her from meeting witnesses (in interpersonal disputes), etc. However, conditions for bail cannot be punitive.

2. Bail Bonds

Besides conditions regulating the liberty of the accused, grant of bail involves execution of a bond wherein the conditions (i) and (ii) stipulated above are explicitly mentioned. Besides this, the bail bond may also involve placing the accused at risk of financial / monetary loss if the conditions for bail are breached (for instance, by placing a Fixed Deposit Receipt with the court which may be encashed on breach of the bail conditions). This amount cannot be expropriatory and must consider the status of an accused [Section 440, Cr.P.C.; Moti Ram v. State of M.P., (1978) 4 SCC 47 (Supreme Court of India, 2 Judge Bench)]. The only exception for posting a bail bond is under Section 445, Cr.P.C. which allows for depositing cash where an accused is not in a position to furnish a bail bond.

3. Sureties for Bail

Courts can release persons either solely on a “Personal Bond” or “Personal Bond with Sureties”. The latter requires presenting persons who are willing to give an undertaking that they can ensure the accused complies with the bail conditions. Sureties sign an affidavit to this effect (normally at the reverse of the printed bail bonds) and courts are required to satisfy themselves on whether the surety is fit and proper [Section 441, Cr.P.C.].

4. Successive Bail Applications

can be filed. However, these must be filed before the same judge (when possible). The accused must disclose whether any prior bail applications have been filed, and also demonstrate that there is a change in circumstances which justifies grant of bail in the present instance. The legal position has been explained in cases such as State of Maharashtra v. Capt. Buddhikota Subha Rao [AIR 1989 SC 2292 (Supreme Court of India, 2 Judge Bench] and Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav [(2004) 7 SCC 528 (Supreme Court of India, 3 Judge Bench)].

5. Issues of inadmissibility of evidence are not germane to bail.

Thus, at this stage the court must consider all the material offered by the state to show why bail may not be granted, without considering whether or not the material that is presented will be legally admissible or not in any eventual trial. This has been held in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav [(2004) 7 SCC 528 (Supreme Court of India, 3 Judge Bench)] and National Investigation Agency v. Zahoor Ahmad Shah Watali [AIR 2019 SC 1734 (2 Judges)].

6. Interim Bail can be granted

Unlike Section 438, Cr.P.C., there is no specific provision allowing a court to release an individual on bail in the interim while her bail application is to be decided in court. However, the Supreme Court clarified in Sukhwant Singh v. State [(2009) 7 SCC 559 (Supreme Court of India, 2 Judge Bench)] that courts hearing regular bail applications have inherent powers to grant interim bail as well.

7. Bail can be granted by Magistrate in Case Triable by Sessions

There is no prohibition in the Cr.P.C. that prevents a magistrate from granting bail in cases that are exclusively triable by Sessions Courts. However, in Prahlad Singh Bhati v. State [(2001) 4 SCC 280 (Supreme Court of India, 2 Judge Bench)], the Supreme Court held that while there was no legal bar in Section 437 prohibiting a magistrate from granting bail in such cases, it was appropriate for magistrates to not intervene and direct accused persons to the Sessions Court by moving an application under Section 439, Cr.P.C.

Statutory Bail / Default Bail

Even in non-bailable cases, a right to bail can accrue to a person in certain situations, which is explained under Section 167(2), Cr.P.C. This provision stipulates a time-limit for police to complete investigations where persons are in custody. These time-limits are set based on the kind of offences involved in the case. If the police fail to complete the investigation before this deadline, then the accused gets the right to be released on bail, and this form of bail is commonly called “Statutory Bail” or “Default Bail”.

There are several issues which arise while working with Statutory Bail in practice. Some of these have been specifically addressed below:

1. What Kind of Time Limit Applies in Your Case

The time-limit for investigation can be either 60 days or 90 days. It is 90 days if any of the offences involved in the case has a clear minimum punishment of 10 years. Otherwise, the time limit is 60 days. This was clarified by the Supreme Court in Rakesh Kumar Paul v. State of Assam & Ors. [(2017) 15 SCC 67 (Supreme Court of India, Three Judge Bench)].

For e.g.: If the case involves Section 386 IPC [Extortion by putting a person in fear of death or grievous hurt], the 60-day limit will apply as 386 IPC is punishable up to ten years and does not have a clear minimum punishment. But, if the case is one under Section 409 IPC [Criminal breach of trust by agent] then the 90-day limit applies, because 409 IPC has a clear minimum punishment of 10 years which can go up to life imprisonment.

2. When Does Right Accrue / Calculating Days

The right to Statutory Bail of an accused accrues where the Final Report is not filed with court at the expiry of the 60th or the 90th day. This makes it critical to know how the clock runs and what counts as the first day.

It is settled that the time spent by an accused in custody before being produced in court is not counted, and the clock begins after the order of remand. Thus, Day 1 is the first day spent in custody by the accused as per orders of a judge under Section 167 Cr.P.C., and the right accrues at the completion of the 60th day.

3. Process Concerns

The Supreme Court has reiterated in Rakesh Kumar Paul (supra) that the Magistrate has a duty to inform the accused about her right to be released on Statutory Bail the moment this accrues. There is no requirement for filing an application and the Court must release the accused if she is prepared to furnish a bond as required by the court.

However, ordinarily accused persons still file applications for Statutory Bail and explain the facts in support thereof. Further, it is common for such applications to not be decided instantly, and for courts to give the police an opportunity to reply.

4. How is the Right affected by external circumstances/general extensions of limitation

The right to Statutory Bail cannot be defeated by general extensions to the period of limitation granted by the Supreme Court in light of the COVID-19 pandemic. In S. Kasi v. State (2020 SC) a 3-judge bench of the Supreme Court held that the general extension of limitation was granted to litigants to obviate the need to come physically to file such proceedings in respective Courts/Tribunals during the pandemic. However, the law of limitation only bars a remedy and not a right and cannot curtail rights of accused under the Cr.P.C. either under Section 167 or Section 57. The right of prosecution to carry on investigation and submit a charge sheet is not akin to right of liberty of a person enshrined under Article 21 and reflected in other statutes including Section 167, Cr.P.C.

5. How Long Does the Right Subsist

The right to Statutory Bail subsists till the police files the Final Report and so it continues to subsist even after the 60th day. But the right ceases to exist if the chargesheet comes to be filed at a point in time prior to the accused furnishing bail bonds for scrutiny of the court.

6. Conditions for Release

Statutory Bail is similar to regular bail insofar as the court may impose conditions for release on bail, such as taking a bond from the accused to vouch for her presence, or taking bonds from sureties to vouch for the accused not fleeing the legal process, or restricting movements of the accused.

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