Note: Please be advised that this is a general note and does not discuss the issue of bail where statutes impose additional conditions beyond those in the Cr.P.C., such as Section 43-D of the UAPA.
Regular bail is the legal procedure through which a court can direct release of persons in custody under suspicion of having committed an offence, usually on some conditions which are designed to ensure that the person does not flee or otherwise obstruct the course of justice. These conditions may require executing a “personal bond”, whereby a person pledges a certain amount of money or property which may be forfeited if there is a breach of the bail conditions. Or, a court may require executing a bond “with sureties”, where a person is not seen as reliable enough and may have to present other persons to vouch for her, and the sureties must execute bonds pledging money / property which may be forfeited if the accused person breaches a bail condition.
Where a person is held in custody under suspicion of committing a “bailable offence”, bail accrues as a right and the person may be released as per procedures under Section 436, Cr.P.C. However, where a person is held in custody under suspicion of committing a “non-bailable” offence, bail is a matter of discretion, and the person may only be released if a good case is made out. The bulk of this note pertains to deciding bail applications in non-bailable cases, which is regulated through Section 437 and Section 439 of the Cr.P.C. Section 437 is the provision for filing bail applications filed in magistrates’ courts, while Section 439 is invoked in bail applications filed before courts of Session or the High Court. The grant / refusal of regular bail is an exercise of judicial discretion guided primarily by standards and few bright-line rules, where such rules are specified under Section 437, Cr.P.C.
Arnab Manoranjan Goswami v. State of Maharashtra & Ors. [(2021) 2 SCC 427] (Supreme Court of India, 2-judge bench)
The Appellant had approached the Bombay High Court in a petition under Articles 226 and 227 of the Constitution of India and Section 482 Cr.P.C., inter alia seeking the quashing of an FIR registered against him under S. 306 IPC. The High Court declined to grant him the interim relief of bail, holding that it was open to the Appellant to apply for bail under S. 439 Cr.P.C.
The Supreme Court held that the High Court had abdicated its constitutional duty by failing to prima facie evaluate the FIR and by declining to exercise its powers to grant bail even when the requisite parameters had been satisfied.
The Supreme Court laid down principles to be followed by High Courts while exercising its jurisdiction under Art. 226 to grant bail:
64.1. The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction.
64.2. Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses.
64.3. The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice.
64.4. The antecedents of and circumstances which are peculiar to the accused.
64.5. Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR.
64.6. The significant interests of the public or the State and other similar considerations.
The Supreme Court also highlighted that data from the National Judicial Data Grid makes clear that there is a pressing need to remedy the institutional problem of bail applications not being heard and disposed of expeditiously; and Administrative Judges in charge of districts must use the NJDG facility to engage with the district judiciary and monitor pendency.
Prashant Dagajirao Patil v. Vaibhav @ Sonu Arun Pawar And Anr. [Crl. Appeal 55-56/2021] (Supreme Court, 3 judge-bench)
The appeal was filed against a Bombay High Court order in which the High Court, while hearing the bail application of the Respondents-accused, had directed the Investigating Officer to examine CCTV footage and submit his report before the Court.
The Supreme Court observed that these directions were made by the High Court on the submission of counsel for the Respondents-accused that they wished to rely on the CCTV footage to prove their non-participation in the alleged incident. The Supreme Court held that when only the limited issue of grant of regular bail was pending before the High Court, it was not appropriate for it to pass directions that could affect trial.
The High Court granted regular bail to the accused in an FIR registered under various IPC provisions. Besides its finding on merits, the High Court noted that in its additional status report opposing bail, the State said that “…. Granting of bail at this early stage may send an adverse message in the society ….”. The High Court observed that:
20. … This court is of the view that that cannot be the basis for denying bail, if the court is otherwise convinced that no purpose in aid of investigation and prosecution will be served by keeping the accused in judicial custody. Prison is primarily for punishing convicts; not for detaining undertrials in order to send any ‘message’ to society. The remit of the court is to dispense justice in accordance with law, not to send messages to society. It is this sentiment, whereby the State demands that undertrials be kept in prison inordinately without any purpose, that leads to overcrowding of jails; and leaves undertrials with the inevitable impression that they are being punished even before trial and therefore being treated unfairly by the system. If at the end of a protracted trial, the prosecution is unable to bring home guilt, the State cannot give back to the accused the years of valuable life lost in prison. On the other hand, an accused would of course be made to undergo his sentence after it has been awarded, after trial.
The National Investigation Agency (NIA) filed an appeal against a Kerala High Court order enlarging the accused-respondent on bail in a case registered under various provisions of the IPC and the Unlawful (Activities) Prevention Act, 1967 [“UAPA”]. The accused had spent over five years in custody. Despite the presence of additional restrictions on bail under the UAPA, the Supreme Court rejected the NIA’s appeal. The Court held that constitutional courts have the power to grant bail on grounds of violation of an accused’s fundamental rights, including the right to a speedy trial guaranteed under Article 21. The Supreme Court held:
17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution… Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
18… However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant’s right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent’s rights guaranteed under Part III of our Constitution have been well protected.
P. Chidambaram v. CBI, AIR 2019 SC 272 [Supreme Court of India, 3 Judge Bench] and P. Chidambaram v. Directorate of Enforcement, 2019 SCC Online SC 1549 [Supreme Court of India, 3 Judge Bench]
The general principles governing judicial discretion in bail cases were explained by the Supreme Court recently in these cases, which arose out of the same underlying facts i.e. an alleged conspiracy involving the erstwhile Union Finance Minister through which an undue advantage was conferred upon certain entities by permitting them to flout the foreign direct investment regulations. The CBI filed a chargesheet alleging commission of offences under the Prevention of Corruption Act, and the Enforcement Directorate alleged commission of offences under the Prevention of Money Laundering Act.
The Supreme Court granted bail in both of these cases, and its observations on certain aspects have wider ramifications:
- There are five broad factors germane to deciding bail applications: (i) Gravity of the offence, (ii) Threat of tampering with evidence, (iii) Threat of absconding, (iv) Status of / Personal factors specific to, the accused, (v) Public / State interest.
- Courts are not to engage in a full-blown analysis of the prosecution case at this stage. However, judicial analysis must be rigorous and mere averments that the accused is a flight risk or is going to threaten witnesses cannot be accepted. [On the issue for requiring specific averments, see, State of Maharashtra v. Nainmal Punjaji Shah & Anr., (1969) 3 SCC 904 (Supreme Court of India, 2 Judge Bench)]
- Gravity of an offence is a relevant factor while considering bail. This is not solely based upon the quantum of punishment, but requires an analysis of the facts and circumstances of each case. There is no hard rule that bail ought to be denied for socio-economic offences [On the issue of gravity and bail in economic offences, see, Sanjay Chandra v. CBI, (2012) 1 SCC 40 (Supreme Court of India, Two Judge Bench)]
The Supreme Court observed that while the High Court or the Sessions Court, under Section 439, Cr.P.C., have been provided with wider powers, but at the same time, they cannot be oblivious of the guidelines which the Magistrate has to necessarily follow while considering bail of an accused under Section 437, Cr.P.C. Certain considerations are common to all the courts considering the bail of an accused whether under Section 437 or 439, Cr.P.C.. That is to say, gravity of the circumstances in which the offence is committed; the position and status of the accused with reference to victim and witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; likelihood of tampering with witnesses; of repeating the offence; the history of the case as well of its investigation and other valuable factors.
Dataram Singh v. State of Uttar Pradesh & Another., 2018 (3) SCC 22 [Supreme Court of India, 2 Judge Bench]
Specifically, on the issue of fleeing from justice, the decision of the Supreme Court in this case is important. Here, the accused had not been arrested during the investigation but only thereafter. The Supreme Court granted bail. It observed that if police did not find it necessary to arrest the person during investigation, which is the stage for collecting evidence and offers the best opportunity for tampering, then courts should be wary of accepting arguments seeking custody on the possibility of the accused now tampering with the evidence.
The general principles guiding judicial discretion have been neatly set out by the Delhi High Court in Ashok Sagar. Here, a chargesheet was filed against the accused persons under Sections 384, 389 and 411 r/w 120-B & 34, IPC. Their bail applications were rejected by the trial court, but the High Court granted bail to one of the accused persons and rejected the same for the other two accused persons. While deciding the bail applications it listed the following principles to guide courts in deciding bail applications:
- Incarceration, during trial, is not punitive but only to secure the presence of the accused person.
- Courts are not to assume that the accused would flee justice, were he to be released, and any exercise undertaken to look for such evidence should be curtailed.
- While examining the applications of bail, the courts have to be duly sensitized to the mandate of Article 21 of the Constitution of India.
The personal liberty of an accused is only to be curtailed in such cases where the accused is likely to flee justice or he would tamper with the evidence or will influence the process of trial.
- Nature of the offence committed has a limited role to play while examining the merits of the bail application. If the court was to allow itself to be influenced by the nature of charges and seriousness of the offences, then, the same would lead to obliterating the distinction between grant of bail and suspension of sentence.
- Where the material against the accused is so insubstantial, that the chances of conviction seem bleak, the courts should conclude that any incarceration during the trial would be unjustified.
- The Court, however, cannot adopt an entirely accused centric approach, unmindful of the prevailing public and societal interests hanging in the balance.
The Delhi High Court has also, on different occasions, provided guidelines for helping trial courts decide bail applications. In Court on Its Own Motion, the accused had not been arrested during the investigation, and was thus not forwarded in custody to the court when the CBI filed its chargesheet. The Special Judge directed that the accused person be arrested and refused to take cognizance of the chargesheet till this was done. The High Court held that such a direction was contrary to law. The Court also passed certain guidelines on the issue of bail, [affirmed recently in Court on its Own Motion v. State [(2017) 243 DLT 373 (DB) (Delhi High Court, Division Bench)], which are as follows:
- That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.
- The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and 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. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.
- That the Court shall always keep the mandatory provisions of Section 440, Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be “excessive” amount and take into consideration the financial condition, the nature of offence and other conditions, as “Excessive” amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less.
- Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it prescribed by law is of extreme severity;
- Bail may 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;
- Bail may 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;
- Bail may be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and
- Bail may 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;
- Similarly, the Court shall not while releasing a person on bail put any condition, say in the form of deposit of extra amount or FDR etc. of any amount which is beyond the conditions permissible under Section 439, Cr.P.C.