Revision as of 19:09, 30 November 2021

‘Bail, not jail’ principle

Bail by default: Seeking it is undertrial’s right: HC

Oct 20, 2021: The Times of India

While issuing directions to ensure the right of an accused for bail by default, Delhi High Court said being set free took precedence over the right of the prosecution to carry on investigation and submit a chargesheet.

Justice Manoj Kumar Ohri, in his 24-page judgment, said, “The right to seek default bail under Section 167 (2) CrPC is a fundamental right and not merely a statutory right, which flows from Article 21 of the Constitution of India. It has been held to be an indefeasible part of the right to personal liberty under Article 21 and such a right cannot be suspended even during a pandemic.”

The judgment came on a petition by an accused against a trial court’s order by which his revision plea seeking default bail was dismissed. The man was arrested on January 18, 2020 in a dowry death case and sent to judicial custody the next day. A magistrate court kept extending his custody. During the pandemic, his custody was extended till April 29, 2020.

The maximum period for which the petitioner could have been put under judicial custody was 90 days and if the chargesheet was not filed within that time, the accused was entitled to default bail. In this case, the period came to an end on April 18, 2020.

The court said, “When the petitioner was produced before the jail visiting magistrate on April 15, 2020, the magistrate without any application of mind and rather unmindful of the fact that 90 days were expiring on April 18, mechanically extended the petitioner’s judicial custody till April 29.” It added that the order of remanding an undertrial or extension of custody was held to be a judicial function requiring due application of mind.

The high court directed that while extending the custody of an undertrial prisoner, the magistrate/court should not mechanically extend it for the maximum period of 15 days as prescribed under Section 167(2) CrPC.

It said the custody should be extended while keeping in mind the 60th, 90th or 180th day of completing the investigation and submission of chargesheet. “The undertrial shall be produced before the court concerned on the next day, ie on the 61st, 91st or 181st day, so that he can be duly informed of his fundamental right to seek default bail if no chargesheet is filed in the maximum period prescribed or the permitted extended period of investigation,” added the court.

The court also directed the district legal services authority to ensure that the remand advocates/legal aid counsels were instructed to keep an undertrial informed of his right to seek default bail and the date of accrual of such right. The jail authorities would also have a corresponding obligation to inform the undertrial of the same.

The judge also modified the format of custody warrant and included a column indicating the day on which the right of “default bail” would accrue.

2018/ SC reiterates it

Dhananjay Mahapatra, SC reminds judges of ‘bail, not jail’ principle, February 7, 2018: The Times of India

The Supreme Court said that judges appeared to have lost sight of two cardinal principles —bail is the rule and jail the exception, and a person is innocent till found guilty — and that this had resulted in routine denial of bail, long incarceration, and overcrowded jails.

“This does not do any good to our criminal jurisprudence or to our society,” a bench of Justice Madan B Lokur and Justice Deepak Gupta said. The bench has been dealing with the inhuman treatment of inmates in 1,382 prisons, and has passed several orders to bring reforms in prison management and provide succour to prisoners.

Conceding that grant of bail was completely within a judge’s discretionary powers, the bench said the judge must introspect whether it would be the right decision to deny bail and at the same time have a humane approach in imposing bail conditions so that an accused had the capacity to comply with them and get out of jail. “Conditions for grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory,” said Justice Lokur.

The SC said judges could consider granting bail if an accused was participating in the investigation, not tampering with evidence or influencing witnesses, and was a first-time offender.

“Poverty or deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating Explanation to Section 436 of the Code of Criminal Procedure. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in CrPC,” the bench said.

…and again in the P. Chidambaram case, 2019

Amit Anand Chowdhary, Dec 5, 2019: Times of India

Bail conditions, as in Dec 2019
From: Amit Anand Chowdhary, Dec 5, 2019: Times of India

After spending 106 days in custody, former finance minister P Chidambaram walked out of Tihar Jail at 8.13pm on Wednesday after the Supreme Court granted him bail in the money laundering case lodged by the Enforcement Directorate. He has already been given bail in another case arising out of the INX Media scam which is being probed by the CBI.

In an unusual order, the court barred him from giving interviews or making public statements in connection with the case. It also restrained him from leaving the country without the trial court’s permission, directed him to appear before the ED whenever summoned, and warned him not to tamper with evidence or attempt to intimidate or influence witnesses. Chidambaram was granted conditional bail, subject to executing bail bonds for a sum of Rs 2 lakh with two sureties of like amount.

While giving PC relief, SC considers old age, ailments

Though the court agreed with the Delhi HC order that economic offences come within the category of grave offences, it held that the basic jurisprudence — that the grant of bail is the rule and refusal is the exception — continues to hold field to ensure that the accused has the opportunity of securing a fair trial. It also ruled that the gravity of the offence must be one of the factors to be considered in addition to the triple test of flight risk, tampering of evidence and influencing witnesses while deciding a bail plea.

“Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle,” the court said while setting aside the high court order refusing bail.

The SC said one of the co-accused has been granted bail by the HC while another has been given interim protection from arrest. It also noted that even the HC had held that Chidambaram is not a flight risk and there is no possibility of tampering with evidence or influencing/intimidating witnesses. It said he didn’t hold any post in the government of the day so as to be in a position to interfere in the ongoing probe.

The SC also took into account Chidambaram’s old age and his ailments which aggravated during incarceration as he was put on antibiotics and had been advised to take steroids. “Taking these and all other facts and circumstances including the duration of custody into consideration, the appellant in our considered view is entitled to be granted bail,” the court said.

2020: no bail’ in ‘honour killing’ cases: SC

Dhananjay Mahapatra, September 23, 2020: The Times of India

The Supreme Court said the basic rule of “bail not jail” did not apply to heinous honour killing crimes and in such cases, it should be “jail and jail”, reports Dhananjay Mahapatra. A bench of Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian made the remark while denying bail to one S Yuvaraj who is in jail pending trial in a 2015 case where he allegedly murdered a 21-year-old Dalit boy for speaking to an upper caste girl. In 2017, the SC had reversed the Madras HC’s decision to grant him bail.

The bench also extended the deadline for completion of trial by six months delayed due to lockdown and closure of courts. Refusing the bail plea from the accused’s counsel, the CJI said, “The basic rule of bail and not jail does not apply to these cases. What harm do a boy and girl commit by talking to each other? If one resorts to murder or harming the couple for falling in love or marrying, then there could be no leniency.”

SC: ‘Bail not jail’ rule not for gangsters

April 25, 2021: The Times of India

SC: ‘Bail not jail’ rule not for gangsters

The SC has advised HCs not to mechanically apply the “bail not jail” principle while giving relief to gangsters and heinous offenders, and to weigh the effect of bail to such offenders on the safety of witnesses and victims’ kin.

 HC’s delay on bail pleas curbs liberty: SC

AmitAnand Choudhary, Oct 6, 2021: The Times of India

As the Allahabad HC will take 35 years, on an average, in deciding criminal appeal against conviction orders of trial courts and thousands of convicts have already been languishing in jail for years, the Supreme Court said delay on part of the HC in pronouncing its judgment on such appeals as also in deciding on the bail pleas amounted to “curtailment of liberty” of prisoners, reports AmitAnand Choudhary.

Not satisfied with the Allahabad HC’s response on how to deal with the crisis which is peculiar to the HC, a bench of Justices Sanjay Kishan Kaul and MM Sundresh said there was no application of mind on behalf of the HC to find a solution and “it is telling of their performance”. It also took exception to the HC response for simply accepting the suggestions of UP government and not coming up with its own views.

“It’s not a problem across India. It is specifically to some bigger HCs. You have to find your solution as it is your problem. Saying that you agree with state government is not a solution,” it said and decided to take suo motu cognisance.

Bail given without applying principles can be set aside: SC

Oct 12, 2021: The Times of India

The Supreme Court has reiterated that if all relevant factors were not taken into consideration while granting bail then the superior court can set it aside.

“Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment,” a bench headed by Justice D Y Chandrachud said while quoting an apex court judgement passed in 2020 in Mahipal v. Rajesh Kumar.

It passed the order while quashing anticipatory bail granted to an accused. “The court has to determine whether on the basis of the material available at this stage, the HC has applied the correct principles in allowing the applications for anticipatory bail. The offence is of a serious nature in which Vikas Singh was murdered. The FIR and the statements under Sections 161 and 164 of the CrPC indicate a specific role to Jogendra Singh and Suryabhan Singh in the crime. The order granting anticipatory bail has ignored material aspects, including the nature and gravity of the offence,” it said.

… but trial courts mostly reject bail applications

Nov 5, 2021: The Times of India

Do lower courts pass the buck when it comes to bail pleas?

Abhinav Sekhri Nov 3, 2021,

That our trial courts often don’t appear as the “first line of defence” is not because trial judges are sub-par or unclear about their constitutional oath, but because they are at the lowest rungs of a judicial ladder and will always want to play it safe

This phenomenon, of trial courts rejecting bail applications only for the high court or Supreme Court to grant bail on the same facts, is one of the worst-kept secrets of the legal system. It is so well established that defence lawyers and those unfortunate enough to get caught in the crosshairs of the systems do not question the state of play, treating bail hearings before trial courts with highly unfavourable odds and as a necessary formality before moving upwards in the judicial ladder.

Is it a question of power — do trial courts not have the same powers as the superior courts when it comes to matters of bail for nonbailable offences. This is correct, but only to a very limited extent. Section 437 of the Criminal Procedure Code 1973 spells out the powers and duties of magistrate courts for bail, specifically stating that where offences are punishable with death or life imprisonment, bail ought not to be granted unless the court is convinced the accused is not guilty of the offence. Section 439 of the 1973 Code concerns the bail jurisdiction of sessions courts and the high court, and notably, it does not carry any such limitation for heinous crimes.

What bail is all about, at the level of a court of first instance as well as any superior court, is judicial discretion. The legislature has made a conscious choice to not specify any principles which it wants judges to keep in mind while considering bail, leaving this matter entirely to the conscience of the court. The only fetters placed upon this exercise of discretion have been provisions, such as those under Section 37 of the NDPS Act, which only ask judges to be more circumspect than usual in granting bail. So, while there is no legislative demand implementing the so-called rule of “bail not jail”, what we have, in fact, is a set of laws where the legislature does demand jail, and not bail.

The exercise of discretion is not statutorily regulated, but it is not entirely free from regulation. In its place we have countless rulings of superior courts where they impress upon judges to consider certain factors while deciding bail applications — the risks of an accused fleeing from the law or tampering with evidence, and the gravity of accusations involved — but ultimately leave the matter at a homily of requiring our judges to exercise their discretion judiciously.

If there is no real difference in power on questions of bail between a sessions level court and a high court or the Supreme Court, then why does the “first line of defence” so rarely step up to the task? I would argue that this has a lot to do with timing: bails before the trial court are filed soon after arrest, but the likelihood of bail is in a way inversely proportional to the time one has spent in custody. By the time the case travels up the ladder, more time has been spent in custody thereby increasing the chances of bail.

Why is this the case? It is because Indian criminal procedure places great emphasis on custodial interrogation. It’s not just the general public feeding on crime dramas, but even the Supreme Court acknowledges the “qualitative” difference between ordinary questioning and custodial interrogation, recognising that the latter is more oriented to elicit answers to solve cases. As a result, courts are less inclined when an accused applies for bail early on in an investigation, so much so that most lawyers would not even advise applying for bail until the police takes a stand that it no longer requires custody for investigative purposes.

The side-effects of hierarchy?

The power to grant bail has been concurrently vested in at least three if not four rungs of the judicial ladder, while giving the power to cancel bail only to every superior court in the chain. What this means is that when one person loses a bail application before the trial court and goes higher up the ladder, the petition is not framed as a challenge to the decision of the lower court (even though the judgment denying bail will be criticised) but as invoking the power of that subsequent court to grant bail. Whereas, if a lower court grants bail, that order will always be subject to challenge.

So, if the trial judge adheres to the default setting of refusing bail, she will do so secure in the knowledge that not only is she safeguarding the interests of the police case, but that there are at least two other judges who may take a different view as the case goes forward, and can do so without any legal need of throwing that trial judge’s order under the bus. If the trial judge grants bail, however, then not only is she placing herself in the spotlight by refusing to take the default approach and thereby derailing the police case, but she knows that her order is at risk of being overturned by at least two superior courts, and in the meanwhile the accused might have abused her liberty. While this reasoning might appear abhorrent if we conceive of the judicial task in a vacuum, it appears quite reasonable if we place the individual judge within the larger context of a judicial system, where choices of individual judges are never determined purely by the facts but are subtly influenced by how their fellow officers might exercise their powers.

Abhinav Sekhri is a practising lawyer in the courts of Delhi

Amount of bail bond

2019/ Rs 10 crore for Bitcoin accused Bhardwaj

Dhananjay Mahapatra, Deposit ₹10cr in SC registry for bail, Bitcoin accused told, April 4, 2019: The Times of India

Setting a record, the Supreme Court granted bail to multi-crore Bitcoin scam accused Amit Bhardwaj on the condition of his depositing Rs 10 crore in the apex court registry.

This is probably the highest-ever bail bond amount that needs to be deposited physically in any court. When a court grants bail to an accused and specifies the bail bond amount, the accused is required to furnish proof of his immoveable property worth the bail bond amount. In 2001, the SC had granted bail to three London-based Hinduja brothers—Srichand, Gopichand and Prakashchand—in the Bofors payoff case on the condition that they furnish bail bond of Rs 15 crore each.

Don’t bargain over bail amount, SC tells Bitcoin scam accused

The SC had asked the three brothers to ensure that one of them remained in India. Each of the three had furnished bank guarantees for Rs 15 crore before the special judge conducting the trial proceedings in the Bofors case.

On Wednesday, a bench of Justices R F Nariman and Vineet Saran, while granting bail partly on medical grounds to Bhardwaj facing 12 FIRs in various states in the Bitcoin scam case, insisted on the accused depositing Rs 10 crore in the SC registry. The SC while granting bail to an accused normally asks him to furnish bail bond before the trial court concerned.

Counsel for accused, senior advocate Krishnan Venugopal, requested the court to reduce the amount to Rs 2 crore. Finding the court not receptive to it, he increased it to Rs 5 crore. But the Justice Nariman-led bench said, “There is no bargaining over the amount. We have decided that you have to deposit Rs 10 crore.” The bench ordered: “The petitioner be released on bail forthwith subject to his depositing a sum of Rs 10 crore in the registry of this court within a period of six months from today.” But for his brother and co-accused, the bench granted bail, subject to his depositing Rs 1 crore.

Appearing for the Maharashtra government, advocate Devansh Mohta said the accused is an expert in cyber crime and it would be difficult to track his activities once he is released on bail. The SC said, “The accused shall not in any manner use any digital wallet in his name or in any of his associates’ name or do any trading in mining to misappropriate Bitcoin in any manner whatsoever.”

Anticipatory bail

The rich benefit more

The Times of India, Aug 17 2015

Dhananjay Mahapatra

Is pre-arrest bail meant only to protect liberty of the rich?

A common thread that runs through the Supreme Court's judgments in deciding anticipatory bail pleas is its zealousness to guard personal liberty and not to allow a person to get harassed or victimized by the police. The SC in Siddharam Satlingappa Mhetre case in 2010 had given the reason why anticipatory bail petitions were considered by the judiciary when a person approached for protection apprehending arrest. It had said, “A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community . Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.“ None of the over 200 judgments on anticipatory bail penned by the SC since 1975 pertained to a poor person facing arrest for a petty crime.

The poor do not even have the means to fill bail bond. They continue to languish in jail during trial for petty offences. They are condemned to a life in prison even before conviction. Police arrest thousands for petty crimes.The steps of district courts are too high for them to climb and seek anticipatory bail. If they ap prehend arrest, their first in stinct is to flee.

“Liberty“, anointed to an exs alted position in criminal justice e system by the SC, is ever so elusive for them. It is only for the pols iticians, rich and famous. They l have deep pockets to afford top notch lawyers, who will paint lib erty's doomsday picture before the high court or the Supreme 0 Court to seek pre-arrest bail.Over the years, the SC had a standard advice to persons seeking anticipatory bail -move the trial court and seek regular bail.

Some time ago, a village `prad han' accused of siphoning off a few lakhs of rupees had rushed to the S t had rushed to the SC seeking an ticipatory bail as he feared that ar rest would dent his social stando ing and reduce his political weight. The court asked him to r approach the trial court and seek f regular bail.

Last week, former telecom minister Dayanidhi Maran rushed to the SC after the Madras . HC asked him to surrender and e seek regular bail from the trial court. We are not on the merits of g the case. The SC may have rightly e decided to extend stay on his ar rest. We are on the standard pro cedure of the court. Reputation . of a village `pradhan' is as pree cious as that of the former tele com minister. So, why hand out differential treatment? In the 2010 judgment, the SC had questioned under-trials languishing in jails for years for petty offences. Is anyone bothered about their right to life and liberty? The SC had said, “It is a matter of common knowledge that a large number of under-trials are languishing in jail for a long time even for allegedly committing very minor offences. This is because Section 438 CrPC (anticipatory bail provision) has not been allowed its full play .“ From Sanjay Gandhi, the man who controlled the reins of power during Emergency , [1978 SCC (1) 411] to Gurubaksh Singh Sibbia, former agriculi ture minister of Punjab accused of political cor f ruption, [1980 SCC (2) 565], the SC had always seen some merit in the cry for justice of a class of t people who feared assault on their liberty through arrest.

In Sibbia case, the HC while I rejecting his anticipatory bail t had raised very pertinent questions. The HC had rejected Sibbia's argument that he was a man of substance and position who would not abscond. The HC read in the concept of equality and t said to accord differential treatment to Sibbia and co-accused on account of their status would amount to negation of the con i cept of equality before the law.

The HC also said it could hardly be contended that every man of t status, who was intended to be charged with serious crimes in cluding the one under Section 409 punishable with life imprison ment, “was entitled to knock a he door of the court for anticipa ory bail“. The cast-iron grounds or granting anticipatory bail laid down by the HC was disapproved of by the SC, but it did not touch upon the right to equality aspec vehemently raised by the HC.

In Sibbia case, the SC laid down a broad guideline but had said it was better to leave the dis cretion of grant of anticipatory bail to the trial court or HCs. “ A wise exercise of judicial power nevitably takes care of the evi consequences which are likely to low out of its intemperate use Every kind of judicial discretion whatever may be the nature o he matter in regard to which it is required to be exercised, has to be used with due care and caution n fact, an awareness of the con ext in which the discretion is re quired to be exercised and of the reasonably foreseeable conse quences of its use, is the hall mark of a prudent exercise of ju dicial discretion. One ought no o make a bugbear of the power to grant anticipatory bail,“ SC said But the moot question re mains -why are courts libera n interpreting `liberty' only when politicians, rich and fa mous fear police knocking a heir doors?

2019: After 1976, pre-arrest bail to return to UP

July 23, 2019: The Times of India

Junked during Emergency, pre-arrest bail to return to UP

New Delhi:

President Ram Nath Kovind has given assent to a key bill of Uttar Pradesh that will pave the way for reintroduction of the provision of anticipatory bail, revoked during the Emergency in 1976, officials said.

Barring Uttar Pradesh and Uttarakhand, all other states have the provision of anticipatory bail. With the presidential assent, the provision of applying for an anticipatory bail in UP will be restored after over four decades.

As per the amendments, it will not be necessary for the accused to be present during the hearing for the anticipatory bail. It also provides for certain mandatory conditions or riders to be imposed by the court before considering granting the anticipatory bail, including not allowing the provision in case of serious crimes. Besides, there will be no anticipatory bail in cases where the punishment is death sentence and also cases under the Gangster’s Act, the official said. PTI

SC, 2019: pre-arrest bail should be given sparingly in economic offences

Sep 5, 2019: The Times of India

Power of pre-arrest bail has to be exercised sparingly in economic offences: SC

NEW DELHI: Economic offences "affect the economic fabric of the society" and power to grant pre-arrest bail has to be exercised sparingly especially in such cases, the Supreme Court said Thursday while denying anticipatory bail to former finance minister P Chidambaram in the INX media money laundering case. 

The top court said a case of money-laundering involves various stages of 'placement', 'layering' that is funds moved to several shell companies/institutions to conceal origin and it requires systematic and analysed investigation. 
Economic offences stand as a different class and grant of anticipatory bail, particularly in such offences, would "definitely hamper the effective investigation", it said. 

A bench of Justices R Banumathi and A S Bopanna referred to a 1987-verdict of apex court which had held that "economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community". 

In its 57-page verdict, the bench said: "Power under Section 438 CrPC (anticipatory bail) being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society." 

It said that "grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed". 

The bench agreed with the submission of Solicitor General Tushar Mehta that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation's economy, financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of Chidambaram was necessary. 

It said, "Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation." 

The bench said, "in a case of money-laundering where it involves many stages of placement, layering i.e. funds moved to other institutions to conceal origin and interrogation i.e. funds used to acquire various assets, it requires systematic and analysed investigation which would be of great advantage". 

Mehta, while opposing the anticipatory bail plea of Chidambaram had contended that Prevention of Money Laundering Act (PMLA) being a special enactment is applicable to the offences of money laundering and Chidambaram's case is not fit for grant of anticipatory bail. 


The bench said, "Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail". 

It said that keeping in view the nature of allegations against Chidambaram and the stage of investigation, "in our view, the investigating agency has to be given sufficient freedom in the process of investigation". 

Referring to Prevention of Money laundering Act, 2002, the bench said money laundering is a process of "concealing illicit sources of money" and the launderer transforming the money proceeds derived from criminal activity into funds and moved to other institution or transformed into legitimate asset. 

"It is realised world around that money laundering poses a serious threat not only to the financial systems of the countries but also to their integrity and sovereignty," it said. 

It said PMLA was "enacted in pursuance of the Political Declaration adopted by the special session of the United Nations General Assembly held in June 1998, calling upon the Member States to adopt national money-laundering legislation and programme, primarily with a view to meet out the serious threat posed by money laundering to the financial system of the countries and to their integrity and sovereignty". 

The apex court dismissed Chidambaram's appeal challenging the August 20 verdict of the Delhi High Court denying him anticipatory bail in INX Media money laundering case lodged by the Enforcement Directorate (ED) saying there were no grounds warranting interference with the order. 

The CBI had lodged an FIR on May 15, 2017, alleging irregularities in FIPB clearance granted to INX Media group for receiving overseas funds of Rs 305 crore in 2007 during Chidambaram's tenure as finance minister. 

Thereafter, the ED lodged a money laundering case in 2017.

SC: HCs can’t reject anticipatory bail and stay arrest

Dhananjay Mahapatra, May 29, 2021: The Times of India

The Supreme Court resolved a dichotomy in the approach of high courts and ruled that they cannot reject anticipatory bail plea of an accused and at the same time grant protection from arrest for a specified period, adding that exceptions can be made only in “extreme humanitarian situation”.

The SC was dealing with two orders of the Allahabad HC which, while junking anticipatory bail pleas of the accused, granted them 90 days to surrender before the trial court to seek regular bail and protected them from coercive action during this period. The SC set aside the HC orders, reports Dhananjay Mahapatra.

Must balance concerns of different parties: SC

A bench of Chief Justice N V Ramana and Justices Surya Kant and Aniruddha Bose CJI Ramana set aside the HC orders, but proceeded to interpret the jurisdiction of the HCs in granting pre-arrest bail. Writing the judgment, the CJI said the sole issue requiring adjudication “in the present appeals relates to whether the high court, while dismissing the anticipatory bail applications of the respondents, could have granted them protection from arrest”.

The CJI said the HCs and SC were given powers to grant anticipatory bail to the accused because of the premium that the Constitution places on the right to liberty guaranteed under Article 21. “The grant or rejection of an application under Section 438 of the Criminal Procedure Code (CrPC) has a direct bearing on the fundamental right to life and liberty of an individual,” he said.

The bench went on to say, “However, such discretionary power cannot be exercised in an untrammeled manner. The court must take into account the statutory scheme under Section 438, CrPC, particularly, the proviso to Section 438(1), and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant.”

Custodial interrogation: India

Avoid custodial interrogation if accused is cooperative: SC

The Times of India, Sep 02 2015

AmitAnand Choudhary

Avoid custodial interrogation if accused is cooperative: SC

A bench of Justices A K Sikri and Rohinton F Nariman said a strong social stigma is attached to arrest, and the court must keep it in mind while deciding on the bail plea of an accused. “A great ignominy , humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community . Most people do not make any distinction between arrest at a pre-conviction stage or postconviction stage,“ said Justice Sikri, who wrote the judgment for the bench. The bench said once an accused is released on anticipatory bail, it should “ordinarily“ be continued till the trial of the case and it would be “unreasonable“ to compel the accused to surrender and again apply for regular bail. It set aside the order of the Gujarat HC cancelling anticipatory bail plea of a rape accused in a 14-year old case. The court said bail of an accused should not to be withheld as a punishment.

Grounds for getting bail

Cooperation in investigations: SC norms

Oct 8, 2021: The Times of India

The Supreme Court issued guidelines on granting bail to accused who cooperated in the investigation process and were never arrested during the probe.

It said that if an accused had cooperated in the investigation and was not arrested during the probe then he should not be taken into custody at the time of filing chargesheet. A bench of Justices S K Kaul and M M Sundresh issued guidelines for different categories of offences.

Referring to A category of offences (punishable with imprisonment of seven years or less), the court said ordinary summons be issued to him to appear through lawyer at the time of filing chargesheet and if no appearance is made then first bailable warrant be issued and later non-bailable warrant. “Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided,” it said. For category B offences (punishable with death, imprisonment for life, or imprisonment for more than seven years) and category D (economic offences), the SC said that bail application be decided on merit on appearance of the accused in court.

For category C offences (punishable under Special Acts containing stringent provisions for bail like NDPS, PMLA, UAPA etc), the court said that it would be same as Category B & D with the additional condition of compliance of the provisions.

Lack of western commode

The Times of India, Jun 02 2016

Colonel Jasjit Singh, suspended commandant of 39 Assam Rifles (AR) and main accused in a gold robbery in Mizoram, was released on interim bail for 60 days after his lawyers complained that lack of a commode in Central Jail, where he was imprisoned since May 17, was affecting his bodily functions. Aizawl district and sessions judge Lucy Lalnunthari granted bail to Singh on Tuesday evening after his lawyers, W Sam Joseph and Francis Vanlalzuala, furnished a bail bond of Rs 10 lakh. The colonel spent 14 days in judicial custody at Central Jail in Tanhril near Aizawl.

The colonel is accused of instructing troops under his command to waylay and rob a vehicle carrying smuggled gold in Aizawl on December 14, 2015.

“Colonel Jasjit Singh needed help while defecating. He could not sit on the Indian-style toilet,“ the lawyers said.They told the judge that he had sustained injuries while serving at Siachen. He had also fractured his spine once, is 40% disabled, and requires regular physiotherapy . “He suffered very much in judicial custody as there was no commode in the bathroom,“ they said while pleading for the bail.

The lawyers said the jail doctor had certified that Singh was finding it hard to sleep due to numbness in his leg, fever and shooting pains. They submitted a medical certificate issued by the president of the y the president of the medical board, Delhi Cantt., and a prescrip tion issued by the me dical doctor of Cen tral Jail to substantia te their claim.

Inability to pay for bond

SC: Don’t keep poor in jail for failure to pay for bail

The Times of India, Feb 06 2016

AmitAnand Choudhary

SC: Failure to pay for bail no reason to keep poor in jail 

A prisoner is entitled to be treated with dignity and sympathy , said the Supreme Court while directing the Centre and state governments on Friday to provide all basic facilities to jail inmates commensurate with human dignity . To reduce the number of prisoners in overcrowded jails, Justices Madan B Lokur and R K Agrawal directed the prison authorities to take steps to release those who are languishing in jail for not being able to pay the bail bond.“A prisoner is required to be treated as a human being entitled to all the basic human rights, human dignity and human sympathy ,“ it said.

It directed the Undertrial Review Committee in districts to meet every quarter and take steps for the release of undertrials and convicts who have undergone their sentence or are entitled to release because of remission granted to them. It said undertrials who have undergone detention for half of the maximum period of imprisonment shall be released on his personal bond with or without sureties as specified under Section 436A of CrPC. “The Committee should see that undertrial prisoners are released at the earliest and those who cannot furnish bail bond due to their poverty are not subjected to incarceration only for that reason,“ it said.

Expressing concern over poor quality of legal aid provided to indigent litigants, the bench directed State Legal Services Authority to hire adequate number of competent lawyers to provide free legal advice to the poor accused. “The DGPIG in-charge of prisons should ensure that there is proper and effective utilisation of funds so that the living conditions of the prisoners is commensurate with human dignity,“ it said.

The court pointed out that as on December 31, 2013 the number of under-trial prisoners was 67.6% of the entire prison population, which is “unacceptably high“.

31% unable to furnish bonds

The Times of India, Apr 26 2016

31% don't get bail due to their inability to furnish bonds: Study

 Property disputes and family conflicts clog our judicial system and in a majority of cases, police detain the accused unnecessarily . These are the findings of Daksh, an NGO which analyses the performance of the judiciary . Around 66% of all cases studied are property-related litigations, and 10%, the second largest chunk, are family matters.

The other issues leading to litigation were recovery of money (8%), and permanent injunction, whereby a court orders a person or entity to take certain action or refrain from certain activities (3.4%).

The survey , involving more than 9,000 civil and crimi nal matters over 300 subordinate courts across the country , boosts the government's call for a “no detention policy“ in the near future where arrest is an exception and not the rule if an accused is available for interrogation and has honoured court summons.

In 64% of the cases, the accused was found to have been granted bail within a month of their arrest, probably since the courts did not find enough merit in keeping them behind bars. Another 14% were granted bail between one and six months. The apex court had in the past, while supporting `bail is the rule and jail is exception' theory , observed that police should refrain from arresting an accused if he or she is ready to cooperate in investigation and there is no fear that the accused would run away from clutches of the law.

During the study , spread over three months, Daksh interviewed 9,329 litigants in both civil and criminal matters from 305 lower courts in 170 districts in 24 states. The wide range of data portrays the need to correct the entire justice delivery system corroded over a period of time, which at present seems to be favouring the rich and the influential. The survey by the Bengaluru NGO was released on Saturday in the capital in presence of Justice Madan B Lokur, senior Supreme Court judge overseeing the implementation of judicial reforms in the country .

The survey also substantiates what the National Law University (NLU) -which partnered Daksh in the current survey -had found in an independent study last year.The NLU's interviews with 373 death row convicts had found that 75% of those given death penalty belonged to economically weaker sections, backward classes and religious minorities.

Many of them were sentenced to death probably be cause they couldn't defend their case because of their failure to find a competent lawyer to contest their conviction.

The current Daksh study too, points to a similar picture: around 31% of those who couldn't avail of bail was due to their inability to furnish a bail bond. In 2.8% of cases, the accused couldn't find a guarantor who could stand as surety . Surprisingly , there is no rule that prohibits the courts from releasing an undertrial where it feels detention is avoidable. The amended Section 436A of the Code of Criminal Procedure provides for release of undertrials under personal bond where he is not able to furnish the bond money or surety .

Judicial judgements

Delayed communication of bail orders touches upon human liberty: SC

Rajesh Kumar Pandey, Nov 3, 2021: The Times of India

Supreme Court Judge, Justice DY Chandrachud, said that the delay in the communication of bail orders should be addressed on warfooting because this touches upon human liberty of every undertrial or even a convict who has got suspension of sentence under the law.

Justice Chandrachud, the chairman of the e-committee of the Supreme Court, was speaking at the inauguration of virtual courts and e-sewa kendra at the Allahabad high court and district court. The ceremony was held online. Justice Chandrachud also spoke about the e-custody certificate that chief justice of the Orissa high court, Justice S Muralidhar, launched whereby every undertrial and every convict serving term would have an e-custody certificate tagged to them.

‘E-custody certs will help bail orders reach prisons faster’

That certificate will give us all data with regard to that particular undertrial or convict, right from initial remand to the subsequent progress of each case. This will also help us in ensuring that bail orders are communicated as soon as they are made, from the place they are communicated, to the jails for immediate implementation,” Justice DY Chandrachud said.

While explaining the importance of the e-seva kendras, he said they would provide under one roof all services which are given under the e-courts project, accessible in every establishment of the district judiciary. Thus, lawyers and litigants who seek information can easily avail of those services, whether it is for certified copy, or e-payment of court fees, or efiling, or video-conferencing.

“Virtual court is equally a matter of utmost importance. Virtual courts have been set up in12 states for adjudicating traffic challans. Across India, 99.43 lakh cases have been completed. Fines have been collected for 18.35 lakh cases. Total fine collected is over Rs 119 crore,” he said. “If virtual courts are dovetailed with a nationalised bank where challans can be paid electronically, it is a win-win situation for citizen. It’s productive for the court,” he added.

“Over 2.95 crore criminal cases are pending in the district judiciary of India. The major reasons for delay in disposal of criminal cases is the fact that the accused remain absconding, particularly after bail is granted, and secondly, due to non-appearance of official witnesses during the course of the criminal trial for recording evidence,” he said.

Misuse

Trial courts turn interim bail to regular; SC disapproves

AmitAnand Choudhary, SC acts tough as accused misuse interim relief to get regular bail, August 13, 2017: The Times of India

 Even When Higher Courts Withdraw Protection, Bail By Lower Judiciary Holds

Expressing disapproval of the practice of trial courts giving regular bail to accused on the basis of higher courts' order to grant interim anticipatory bail, the Supreme Court has restrained subordinate courts from passing such orders, saying that it is an abuse of the process of law.

A bench of Justices Ranjan Gogoi and Navin Sinha said that trial court's order granting bail to accused would virtually make the higher court's order infructuous if it finally decided to withdraw the interim protection given to accused by dismissing plea for anticipatory bail . “Once a regular bail is granted by a subordinate court on the strength of the interimpre-arrest bail granted by the superior court, even if the superior court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate court would continue to hold the field, rendering the ultimate rejection of the prearrest bail by the superior court meaningless,“ the court said.

The bench passed the direction after noting that it had become a regular practice for accused to surrender before trial court and seek regular bail just after interim pre-arrest bail was granted by higher forums. “We have had notice of several such cases, time has come to put the learned subordinate courts in the country to notice that such a practice must be discontinued and consideration of regular bail application upon surrender during the pendency of the application for pre-arrest bail before a superior court must be discouraged,“ it said.

“We, therefore, direct that a copy of this order be forwarded to the director of all judicial academies in the country to be brought to the notice of all judicial officers exercising criminal jurisdiction in their respective states,“ the court said. The court passed the order after it was brought to its notice that a trial court in Jharkhand granted regular bail to an accused after it granted her interim protection from being arrested in a criminal case. The court had sought explanation from the judicial officer who passed the order.

The court, however, let off the trial judge saying that it was a “bona fide mistake“ on his part. It quashed the bail granted to the accused and directed her to surrender before the court.

Surrender, followed by bail

Dhananjay Mahapatra, ‘Can’t surrender, then seek release on bond’ SC Slams Ingenious Way To Seek Bail In Criminal Cases, February 25, 2018: The Times of India

The Supreme Court slammed the door on ingenious methods employed by people, wanted in criminal cases, to voluntarily surrender before a trial court and then demand, as a matter of right, to be released on furnishing a bond.

An aide of Yadav Singh, a former chief engineer of Noida and Greater Noida as well as Yamuna Expressway authority and accused in several cases of corruption cases, attempted to employ the same tactics by first dishonouring trial court summons and warrants, and then repeatedly moving the HC for quashing of these summons and approaching the SC when the HC declined relief. When finally all doors were closed, Singh’s aide Pankaj Jain through senior advocate Mukul Rohatgi gave an undertaking to the SC on December 6 last year that he would surrender before the trial court. In doing so, Jain filed an application before the trial court saying he has appeared voluntarily before it and hence should be released on furnishing a bond as provided under Section 88 of the Criminal Procedure Code (CrPC) and not sent to jail.

The trial court rejected the application. When he filed an appeal in the SC, he was asked to move the HC, which also rejected his plea. He then filed a writ petition challenging the constitutional validity of Section 88 of CrPC. Rohatgi argued that mandate of the section that a trial judge ‘may’ release a person on furnishing bond, must mean that a judge had no option but to release a person if the accused furnished bond on surrendering.

Section 88 provides that “when any person, for whose appearance or arrest the officer presiding in any court is empowered to issue summons or warrants, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial.” Rohatgi said although Section 88 uses the word ‘may’ but it has to be read as ‘shall’ making it obligatory on part of a trial judge to release on bond all those who appear on their own volition in the court.

Additional solicitor general Maninder Singh, appearing for the CBI, said Section 88 conferred a discretionary power on the trial judge to release a person on bond. “It cannot be claimed as a matter of right by the accused, especially those who have been summoned and against whom non-bailable warrants have been issued,” Singh said.

Terrorists

No parole or interim bail for family exigencies

Dhananjay Mahapatra, SC: Terrorists won't get bail to visit family, Feb 21, 2017: The Times of India

Taking a tough stand against convicted terrorists, the Supreme Court has said those lodged in prison for long years for slaughtering people could not be given parole or interim bail because of family exigencies.

The remark came from a bench of CJI J S Khehar and Justices D Y Chandrachud and Sanjay Kishan Kaul as they dismissed a plea for interim bail by Mohammad Naushad, who was convicted by a trial court and subsequently the Delhi high court for the 1996 Lajpat Nagar bomb blast that killed 13 people and injured 38 others. The trial court had awarded him the death penalty but the HC reduced it to a life sentence, finding that he was among the conspirators.

“If you are involved in such [a] heinous offence of [the] indiscriminate killing of innocents, you cannot be seen to plead that you have a family and its responsibilities. The moment you get convicted in such offences, that is the end of your ties with your family and your family life,“ the court said.

“You cannot then say , `I have children, son or daughter'. You cannot ask for bail.You can challenge the conviction recorded by lower courts and seek acquittal. That we will hear and decide, but you will not be permitted to seek interim bail after the lower court has convicted you and the same has been upheld by the high court. If you have killed people indiscriminately, then there is no short-term bail,“ the CJI said before dismissing the plea.

Naushad, through advocate Farrukh Rasheed, had sought interim bail for a month to attend to his daughter's wedding on February 27. His appeal against conviction and the CBI's appeal for the enhancement of his life sentence to the death penalty are pending before the apex court. Naushad said he had already spent 20 years in prison and he had never been involved in any criminal case except the bomb blast one.“The appellant is having (sic) deep roots in society and there is no chance or likelihood of him running away during pendency of the appeal in the Supreme Court,“ the petition said.

Naushad said he had requested the Delhi government through the jail authorities on October 24 last year for parole to conduct his daughter's wedding, but there had been no response.His counsel Siddhartha Dave repeatedly pleaded that he had spent 20 years in prison for mere conspiracy while requesting the court to grant him bail. The pleas failed to move the bench.

Repeat offenders

Bail for repeat offenders, should be judicious: SC

The Times of India, Oct 04 2015

Supreme court on discretionary power in granting bail; Picture courtesy: The Times of India, Oct 04 2015

AmitAnandChoudhary

Give bail to repeat offenders cautiously: SC

Bench advises courts to use discretion

Modifying the “bail is rule, jail exception“ view, the Supreme Court has held history-sheeters or habitual offenders to be a nuisance and terror to society and asked courts to be cautious in granting bail to such individuals who are not on a par with a first-time offender.

A bench of Justices Dipak Misra and Prafulla C Pant said discretionary power of courts to grant bail must be exercised in a judicious manner in case of a habitual offender who should not be enlarged on bail merely on the ground of parity if other accused in the case were granted the relief.

The SC, which has in a slew of cases taken a pro-bail stance, said that criminal past of the accused must be checked before granting bail.It said that courts should not grant bail in a whimsical manner. In the past it has held that seriousness of offence is not the only ground to deny bail, that compelling circum stances are needed to cancel bail and that interests of individual must be balanced against those of society.

The observation came as it quashed an Allahabad HC order granting bail to a historysheeter in a murder case without taking into account the criminal antecedents of the accused who was involved in seven other heinous offences including murder.

“A history-sheeter involved in the nature of crimes which ... are not minor offences so that he is not to be retained in custody , but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune (simple)... The law expects the judiciary to be alert while admitting the plea of these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously,“ the SC said. Referring to the number of cases filed against accused Santpal Yadav, the bench said “there can be no scintilla of doubt to name him a history-sheeter“ and asked UP police to take him into custody forthwith if he had been enlarged on bail.

The bench said it was clear as cloudless sky that the HC had totally ignored the criminal antecedents of the accused.

See also

Jails/ Prisons: India

Jail inmates and the law: India