BAIL
Om Prakash
Principal Judge, family court
Begusarai
Introduction-
Article 21 of Indian Constitution guarantees that
life and liberty of a person can not be taken except
in accordance with procedure established by law.
Since arrest is one of the procedure of law to
restrict the liberty of a person, bail is balancing
procedure of law to protect the interest of person
so arrested or apprehending arrest. The term 'bail'
has not been statutorily defined either in Cr.P.C or
in any other statute.
Conceptually it is understood
as a right for assertion of freedom against state
imposing restraints since the UN Declaration of
human rights of 1948, to which India is signatory,
the concept of bail has found a place within the
scope of human rights. The dictionary meaning of the
expression 'bail' denotes a security for appearance
of a prisoner for his release. Etymologically, the
word is derived from an old French verb 'bailer'
which means 'to give' or 'to deliver', although
another view is that its derivation is from the
Latin term 'bailulare', meaning 'to bear a
burden'..Bail may thus be regarded as a mechanism
whereby the state devolves upon the community,the
function of securing the presence of the prisoners
and at the same time involves participation of the
community in administration of justice.i
Wharton's Law
Lexicon explains 'bail' as “to set at liberty a
person arrested or imprisoned on security being
taken for his appearance.”
Bails are broadly divided in three categories-
·
Bail during investigation and trials
·
Anticipatory bail
·
Bail after conviction
Bailable Offences-
Section 2(a) of Cr.P.C defines bailable offence as
“an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law
for the time been in force.” Any offence which is
not mentioned as bailable or non-bailable in any
other law and is punishable with imprisonment for
less than 3 years or with fine only is also
bailable( Part II of schedule I of Cr.P.C)
A person arrested in connection with bailable
offence has right to be released on bail. The right
to claim bail u/s Section 436 of the Cr.P.C. in a
bailable offence is an absolute and indefeasible
right. There is no question of discretion in
granting bail as the words of Section 436 are
imperative. The proviso to section 436 provide that
if the accused is indigent and is unable to furnish
surity, he shall be released on his executing
personal bond. The explanation to the said section
provide that a person unable to give bail within a
week of his arrest shall be presumed to be indigent
person. In other words, a person arrested in
connection with bailable offence should not be kept
behind prison for more than a week and should be
released on execution of personal bond. However if
such person fails to comply with the conditions of
bail bond as regards the time and place of
attendance, his bail may be cancelled and the court
may refuse to release him on bail on subsequent
occasion.
A question arises
that if an accused produced or appeared before a
court for the first time in connection with bailable
offence threatens the informant or witness or does
some thing showing that fair trial of such case is
not possible if he will remain on bail, whether the
court may refuse to release him on bail. Similarly
if an accused of bailable offence, being on bail,
punctually comply the conditions of bail bond as
regards time and place of attendance but does some
thing prejudicial to fair trial of the case, whether
the court can cancel his bail. In a recent ruling
reported in AIR 2009 SC 1341,Hon,ble Supreme Court,
by referring decisions reported in 1958 SCR 1226ii
and 1967 (3) SCR 926iii
has observed as follows:
“There is no
express provision in the Code prohibiting the Court
from re-arresting an accused released on bail under
Section 436 of the Code. However, the settled
judicial trend is that the High Court can cancel the
bail bond while exercising inherent powers under
Section 482 of the Code. According to this Court, a
person accused of a bailable offence is entitled to
be released on bail pending his trial, but he
forfeits his right to be released on bail if his
conduct subsequent to his release is found to be
prejudicial to a fair trial. And this forfeiture can
be made effective by invoking the inherent powers of
the High Court under Section 482 of the Code”iv
Hon'ble Supreme Court, in the said ruling further
observed:
“It may be noticed that sub-section (2) of Section
436 of the 1973 Code empowers any Court to refuse
bail without prejudice to action under Section 446
where a person fails to comply with the conditions
of bail bond giving effect to the view expressed by
this Court in the above mentioned case. However, it
is well settled that bail granted to an accused with
reference to bailable offence can be cancelled only
if the accused (1) misuses his liberty by indulging
in similar criminal activity, (2) interferes with
the course of investigation, (3) attempts to tamper
with evidence of witnesses, (4) threatens witnesses
or indulges in similar activities which would hamper
smooth investigation, (5) attempts to flee to
another country, (6) attempts to make himself scarce
by going underground or becoming unavailable to the
investigating agency, (7) attempts to place himself
beyond the reach of his surety, etc. These grounds
are illustrative and not exhaustive. However, a bail
granted to a person accused of bailable offence
cannot be cancelled on the ground that the
complainant was not heard.”
Bail in Non Bailable offences-
Offences which are not specifically described as
bailable and are punishable with imprisonment for 3
years or more are non-bailable. Bail in such cases
can not be claimed as of right and the court has
discretion to allow or refuse bail to accused.
However exercise of such discretion should be
objective and judicious. In a recent ruling Hon'ble
Supreme Court has observed:
“While dealing with an application for bail, there
is a need to indicate in the order, reasons for
prima facie concluding why bail was being granted
particularly where an accused was charged of having
committed a serious offence. It is necessary for the
courts dealing with application for bail to consider
among other circumstances, the following factors
also before granting bail, they are :
1. The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence;
2. Reasonable apprehension of tampering of the
witness or apprehension of threat to the
complainant;
3. Prima facie satisfaction of the Court in support
of the charge,
Any order dehors
such reasons suffers from non-application of mind.”v
There is no straight jacket formula for grant or
refusal of bail and order in each case should be
passed on its own merits. However there are some
observation of Hon'ble Courts which should be kept
in mind while dealing with the matters of bail. They
are-
·
Elaborate discussion of evidences by
reference of its relevancy and weight should not be
made in bail order. The court should also refrain
from giving findings or opinion about any witness or
piece of evidence. However the order should not be
cryptic or subjective.
·
The supervision notes cannot be
utilized by the prosecution as a piece of material
or evidence against the accused. At the same time
the accused cannot make any reference to them for
any purpose. If any reference is made before any
court to the supervision notes, as has noted above
they are not to be taken note of by the concerned
court.vi
·
when a case is instituted on a
complaint, the Court issues summons to the accused
to appear in the Court and on such appearance,
instead of being arrested, he would apply for bail.
Unless there are compelling reasons, the Court would
allow the accused to remain on bail, at least till
the charge is framed. Even after charge is framed
the situation would be reconsidered, if necessary,
whether bail should be cancelled or not.
vii
Anticipatory Bail -
Section 438 Cr.P.C. gives power for grant of
anticipatory bail. The term anticipatory bail is not
defined either in Cr.P.C or in any statute. However
anticipatory bail is commonly understood as an order
directing release of any person on bail after
execution of bond in the event of his arrest in
connection with a particular case. The provision for
anticipatory bail was not in Cr.P.C before 1974. The
Law Commission, in its 41nd report, for
the first time recommended insertion of provision
for anticipatory bail and reasons recorded by
commission are as follows-
"The suggestion
for directing the release of a person on bail prior
to his arrest (commonly known as "anticipatory
bail") was carefully considered by us. Though there
is a conflict of judicial opinion about the power of
a Court to grant anticipatory bail, the majority
view is that there is no such power under the
existing provisions of the Code. The necessity for
granting anticipatory bail arises mainly because
sometimes influential persons try to'
implicate their rivals in false causes for the
purpose of disgracing them or for other purposes by
getting them detained in jail for some days.
In recent times, with the accentuation of political
rivalry, this tendency is showing signs of steady
increase. Apart from false cases, where
there are reasonable grounds for holding that a
person accused of an offence is not likely to
abscond, or otherwise misuse his liberty while on
bail, there seems no justification to require him
first to submit to custody, remain in prison for
some days and then apply for bail.
We recommend the
acceptance of this suggestion. We are further of the
view that this special power should be conferred
only on the High Court and the Court of Session, and
that the order should take effect at the time of
arrest or thereafter.”viii
The recommendation
was accepted by central Govt. However the code of
criminal procedure bill 1970 was referred to Law
Commission with certain questions and the law
commission headed by Hon'ble Justice PB
Gajendragadker, former judge of Supreme Court in its
48th report approved insertion of
provision for anticipatory bail but suggested as
follows-
1.
Such power should be exercised in very
exceptional circumstance.
2.
Final order should be made only after notice
to public prosecutor. The initial order should only
be an interim one.
3.
Direction can be issued only for reasons to
be recorded, and if the court is satisfied that such
a direction is necessary in the interest of justice.
4.
Notice of interim order as well as the final
orders will be given to Superintendent of police
forthwith.ix
The matter has again been considered by 'Malimath
Committee on Reforms of Criminal Justice System'. on
the point of exercise of power by Courts under
Section 438 and grant of anticipatory bail in favour
of applicants. The Committee observed that the
provision as to anticipatory bail has often been
'misused by rich and influential people.' The
Committee, however, opined to retain the provision
subject to two conditions :
(i) Public Prosecutor should be heard by the Court
before granting an application for anticipatory
bail; and
(ii) Petition for anticipatory bail should be heard
only by the Court of competent jurisdiction.
Exercise of
Power u/s 438 Cr.P.C
– There is no straight jacket formula for grant of
anticipatory bail. The law commission, in its 41st
report, considered this aspect also and observed as
follows-
“We considered carefully the question of laying down
in the statute certain conditions under which alone
anticipatory bail could be granted. But we found
that it may not be practicable to exhaustively
enumerate those conditions; and moreover, laying
down such conditions may be construed as prejudging
(partially at any rate) the whole case. Hence we
would leave it to the discretion of the court and
prefer not to fetter such discretion in the
statutory provision itself.”
Although the statutory provision itself does not
provide guide lines for grant or refusal of
anticipatory bail, yet the the reasons for which
such provision has been recommended by law
commission to be introduced in Cr.P.C. provides
at-least basic idea about exercise of such power.
Thus anticipatory bail may be granted where the
court is satisfied that such a direction is
necessary to be issued in the interest of justice as
there exist sufficient reasons to show that:
1.
The accused has been implicated in a false
cause for the purposes of disgracing him, or
2.
There are reasonable grounds for holding that
a person accused of an offence is not likely to
abscond, or misuse his liberty while on bail.
In Gurubux Singh
casex,
the Constitution Bench laid down the following
guidelines, which the Courts are required to keep in
mind while dealing with an application for grant of
anticipatory bail :
i) Though the power conferred under Section 438 of
the Code can be described as of an extraordinary
character, but this does not justify the conclusion
that the power must be exercised in exceptional
cases only because it is of an extraordinary
character. Nonetheless, the discretion under the
Section has to be exercised with due care and
circumspection depending on circumstances justifying
its exercise.
ii) Before power under sub-section (1) of Section
438 of the Code is exercised, the Court must be
satisfied that the applicant invoking the provision
has reason to believe that he is likely to be
arrested for a non-bailable offence and that belief
must be founded on reasonable grounds. Mere "fear"
is not belief, for which reason, it is not enough
for the applicant to show that he has some sort of
vague apprehension that someone is going to make an
accusation against him, in pursuance of which he may
be arrested. The grounds on which the belief of the
applicant is based that he may be arrested for a
non-bailable offence, must be capable of being
examined by the Court objectively. Specific events
and facts must be disclosed by the applicant in
order to enable the Court to judge of the
reasonableness of his belief, the existence of which
is the sine qua non of the exercise of power
conferred by the Section.
iii) The observations made in Balchand Jain's case
[1976(4)SCC572], regarding the nature of the power
conferred by Section 438 and regarding the question
whether the conditions mentioned in Section 437
should be read into Section 438 cannot be treated as
conclusive on the point. There is no warrant for
reading into Section 438, the conditions subject to
which bail can be granted under Section 437(1) of
the Code and, therefore, anticipatory bail cannot be
refused in respect of offences like criminal breach
of trust for the mere reason that the punishment
provided for is imprisonment for life. Circumstances
may broadly justify the grant of bail in such cases
too, though of course, the Court is free to refuse
anticipatory bail in any case if there is material
before it justifying such refusal.
iv) No blanket order of bail should be passed and
the Court which grants anticipatory bail must take
care to specify the offence or the offences in
respect of which alone the order will be effective.
While granting relief under Section 438(1) of the
Code, appropriate conditions can be imposed under
Section 438(2) so as to ensure an uninterrupted
investigation. One such condition can even be that
in the event of the police making out a case of a
likely discovery under Section 27 of the Evidence
Act, the person released on bail shall be liable to
be taken in police custody for facilitating the
recovery. Otherwise, such an order can become a
charter of lawlessness and a weapon to stifle prompt
investigation into offences which could not possibly
be predicated when the order was passed.
v) The filing of First Information Report (FIR) is
not a condition precedent to the exercise of power
under Section 438. The imminence of a likely arrest
founded on a reasonable belief can be shown to exist
even if an FIR is not yet filed.
vi) An anticipatory bail can be granted even after
an FIR is filed so long as the applicant has not
been arrested.
vii) The provisions of Section 438 cannot be invoked
after the arrest of the accused. After arrest, the
accused must seek his remedy under Section 437 or
Section 439 of the Code, if he wants to be released
on bail in respect of the offence or offences for
which he is arrested.
viii) An interim bail order can be passed under
Section 438 of the Code without notice to the Public
Prosecutor but notice should be issued to the Public
Prosecutor or to the Government advocate forthwith
and the question of bail should be re-examined in
the light of respective contentions of the parties.
The ad interim order too must conform to the
requirements of the Section and suitable conditions
should be imposed on the applicant even at that
stage.
Apart from above-said broad guide lines, the
exercise of such power has been subjected to
judicial scrutiny since last more than 35 years and
there are a number of judicial verdicts to suitably
guide as to when, how, and in what manner direction
may or may not be issued in exercise of such power.
Some of such verdicts may be illustrated as under:
·
An interim order restraining arrest,
if passed while dealing with an application under
Section 438 of the Code will amount to interference
in the Investigation, which cannot, at any rate, be
done under Section 438 of the Code."xi
·
Imposing a condition of giving ten
days prior notice, before arrest, is a condition not
warranted by law(Union of India v Padma Narayan
Agrawal)xii
·
If the applicants were only summoned
under Section 108 of the Custom Act for recording of
their statements, the application for anticipatory
bail, in the circumstances, were premature.(Padma
Narayan Agrawal Case Supra)
·
The section requires the applicant to
show that he has reason to believe that he may be
arrested. A belief can be said to be founded on
reasonable grounds only if there is something
tangible, on the basis of which, it can be said that
the applicant's apprehension that he may be arrested
is genuine.xiii
·
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 submittedxiv
·
The applicant must show that he has
'reason to believe' that he may be arrested in a
non-bailable offence.... Mere "fear" is not "belief
for which reason it is not enough for the applicant
to show that he has some sort of vague apprehension
that some one is going to make an accusation against
him in pursuance of which he may be arrested.
Grounds on which the belief of the applicant is
based that he may be arrested in non-bailable
offence must be capable of being examined.xv
·
Very unreasonable and onerous
condition as a condition precedent for grant of
anticipatory bail can not be imposed. he imposition
of condition to deposit a sum of Rs. 15 lacks in the
form of FDR in the Trial Court is an unreasonable
condition.xvi
condition that an accused at the FIR stage should
pay a huge sum of Rs. 2 lakhs to be set at liberty
is onerous condition.xvii
Condition that in the event of arrest, the
appellants shall be enlarged on bail on their
depositing the title deeds of property worth Rs.
20,00,000/- standing either in their name or in the
name of third parties and also on their executing a
personal bond of Rs. 25.000/- with two sureties for
the like sum to his satisfaction is unreasonable
condition.xviii
·
The conditions which can be imposed by
the Court while granting anticipatory bail are
enumerated in sub-section (2) of Section 438 and
subsection (3) of Section 437 of the Code. Normally,
conditions can be imposed (i) to secure the presence
of the accused before the investigating officer or
before the Court, (ii) to prevent him from fleeing
the course of justice, (iii) to prevent him from
tampering with the evidence or to prevent him from
inducing or intimidating the witnesses so as to
dissuade them from disclosing the facts before the
police or Court or (iv) restricting the movements of
the accused in a particular area or locality or to
maintain law and order etc. To subject an accused to
any other condition would be beyond jurisdiction of
the power conferred on Court under Section 438 of
the Code. While imposing conditions on an accused
who approaches the Court under Section 438 of the
Code, the Court should be extremely chary in
imposing conditions and should not transgress its
jurisdiction or power by imposing the conditions
which are not called for at all.....Where the wife
of the appellant has already approached appropriate
Court for grant of maintenance, the condition
imposed by the Court directing the appellant to pay
maintenance to his wife and child is onerous,
unwarranted.xix
·
For the purpose of grant of bail in
cases of defalcation, the amount involved may be of
some relevance but not the only consideration.xx
·
The fact, that a Court has either
taken cognizance of the complaint or the
investigating agency has filed a charge-sheet, would
not by itself, in our opinion, prevent the concerned
Courts from granting anticipatory bail in
appropriate cases. The gravity of the offence is an
important factor to be taken into consideration
while granting such anticipatory bail so also the
need for custodial interrogation, but these are only
factors that must be borne in mind by the concerned
Courts while entertaining a petition for grant of
anticipatory bail and the fact of taking cognizance
or filing of charge-sheet cannot by themselves be
construed as a prohibition against the grant of
anticipatory bail.xxi
Anticipatory bail & Regular bail, the
distinction-
The distinction between anticipatory bail and
regular bail is academically clear and well defined.
It has been repeatedly observed by Hon'ble High
Court and Supreme Court that anticipatory bail
granted u/s 438 Cr.P.C. should be for limited period
and it should not bypass the regular courts in
exercising powers u/s 437 Cr.P.C. In the case of
Salauddin Seikh (AIR 1996 SC 1042) it has been
observed:
“Under Section 438
Anticipatory bail is granted in anticipation of
arrest in non-bailable case, but that does not mean
that the regular court, which is to try the offender
is sought to be by passed and that is the reason why
the High Court very rightly fixed the outer date for
the continuance of the bail and on the date of its
expiry directed that petitioner to move the regular
court for bail. That is the correct procedure to
follow because it must be realised that when the
Court of Session or the High Court is granting
anticipatory bail, it is granted at a stage when the
investigation is incomplete and, therefore it is not
informed about the nature of evidence against the
alleged offender. It is therefore, necessary that
such 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 chargesheet is submitted. ”
The other distinction is that power u/s 438Cr.P.C.
about anticipatory bail is exercised while the
accused is not in custody but is apprehending arrest
whereas powers u/s 437 Cr.P.C. about regular bail is
exercised after arrest of accused.
While considering the scope of 'limited duration'
till when anticipatory bail may be granted, Hon'ble
Supreme Court in ruling reported in 1996 SCALE 20
K.L.Verma v State and anr, observed-
“an order of
anticipatory bail does not enure till the end of
trial but it must be of limited duration as the
regular Court cannot be bypassed. The limited
duration must be determined having regard to the
facts of the case and the need to give the accused
sufficient time to move the regular Court for bail
and to give the regular Court sufficient time to
determine the bail application. In other words, till
the bail application is disposed of one way or the
other the Court may allow the accused to remain on
anticipatory bail. To put it differently,
anticipatory bail may be granted for a duration
which may extend to the date on which the bail
application is disposed of or even a few
days thereafter to enable the accused persons to
move the higher Court, if they so desire."
The observations
made in the said judgment invited debate amongst
jurists & and judges as to whether an accused
allowed to remain on anticipatory bail till regular
bail is disposed of by higher court can be said to
be in 'custody' for exercising jurisdiction u/s
437/439 Cr.P.C. The gray part of the observation “or
even a few days thereafter to enable the accused
persons to move the higher Court, if they so desire”
was held
per-in
curium in subsequent judgments of Hon'ble
Supreme Court[2005(1)PLJR 270SC; 2007(7) SCC 558;
AIR2009 SC 502]. It has been observed-
“For making an application under Section 439 the
fundamental requirement is that the accused should
be in custody. As observed in Salauddin's case
(supra) the protection in terms of Section 438 is
for a limited duration during which the regular
Court has to be moved for bail. Obviously, such bail
is bail in terms of Section 439 of the Code,
mandating the applicant to be in custody. Otherwise,
the distinction between orders under Sections 438
and 439 shall be rendered meaningless and redundant.
If the protective
umbrella of Section 438 is extended beyond what was
laid down in Salauddin's case (supra) the result
would be clear bypassing of what is mandated in
Section 439 regarding custody. In other words, till
the applicant avails remedies upto higher Courts,
the requirements of Section 439 become dead letter.
No part of a statute can be rendered redundant in
that manner”.xxii
Reasons given in K.L.Verma case require
Legislative attention
– Provision for anticipatory bail has been
introduced in Cr.P.C to protect personal liberty
from being violated by cases of false implication
based on fabricated evidences in order to disgrace
the accused by sending him to jail. The power has
been given to higher courts for its careful
exercise. The settled principle is that it should be
for limited duration and it should not by-pass the
powers of regular courts u/s 437/439 Cr.P.C. Thus,
in a sessions triable case, the accused, even if,
having got anticipatory bail from higher court for
limited duration, after satisfying his false
implication has to surrender before court of
magistrate after cognizance and such magistrate,
having no jurisdiction to grant bail in such cases,
will have to send him to jail by rejecting his bail
application. Then the accused is required to file
bail application before sessions court who has
jurisdiction to release him on bail.
If anticipatory
bail is to be granted for limited duration only and
it should not by-pass the powers of regular courts
u/s 437/439 Cr.P.C, then there will be no way out
for an innocent accused to protect his liberty
between the period he surrenders before magistrate
till disposal of his bail application from sessions
court. In order to protect the valuable fundamental
right of an innocent person under such circumstance,
the Hon'ble judge in K.L.Verma case observed that
anticipatory bail may granted for such extended
period in order to enable the accused to move his
regular bail application before a court having
jurisdiction to grant bail. In Suneeta Devi case,
Nirmaljit Kaur case (supra) and in other subsequent
rulings, the reasonings of K.L.Verma case was not
rejected and rather the observation was held
per-in curium due to legal bar that a magistrate
can not exercise powers u/s 437 Cr.P.C unless the
accused is in custody. The question remains as to
what may be done to protect liberty of an innocent
person during the period he surrenders before
magistrate till his bail application is disposed of
by sessions court. The courts, under such
circumstance, have evolved device that anticipatory
bail are mostly granted without mentioning duration
and thus an accused, who has been granted
anticipatory bail continues to remain on such bail
till end of trial. However it may not be correct
application of law. To my mind it requires
legislative interference and there must be provision
enabling magistrate to grant provisional bail for
reasonable period to an accused, who was granted
anticipatory bail in a case punishable with death,
life imprisonment or imprisonment exceeding ten
years, in order to enable him to move for bail
before sessions court.
Some Practical Questions
-
·
Whether a lower court can grant
regular bail to an accused whose anticipatory bail
has been rejected by himself or higher court ?
Criteria for grant of anticipatory bail and regular
bail are not academically different. However
normally in cases of heinous offences, the courts
show reluctance in granting anticipatory bails and
used to direct the accused to surrender in court and
apply for regular bail. Rejection of anticipatory
bail in such cases should not affect consideration
of regular bail on merit. If the anticipatory bail
has been rejected on merit but during hearing of
regular bail, fresh and additional material prima
facie showing false implication of accused comes on
record, regular bail may be granted by subordinate
courts subject to his jurisdiction to grant bail in
such cases.
·
Whether a lower court can reject
regular bail of an accused who has been granted
anticipatory bail by higher court till the period
and he surrenders in court?
Normally, anticipatory bail applications are filed
during early stage of investigation and regular bail
applications are filed at advance stages of
investigating or after completion of investigation.
Regular bail application of accused availing
anticipatory bail can only be refused on the ground
of jurisdiction or where some fresh, additional and
substantial evidence has surfaced.
·
Whether bail application of an
accused, who was enlarged on bail during
investigation, can be rejected after cognizance on
ground that nature of offence has been changed and
heinous offence has been found committed after
completion of investigation.
Normally bail
granted during investigation should continue after
cognizance also unless there is application and
grounds for cancellation of bail. Bail is granted
considering facts and circumstances and not the
sections in which FIR has been lodged. Addition of
some sections does not affect the accrued rights of
accused in this respect. But if after grant of bail
during investigation, some new facts are discovered
or serious consequences occur showing commission of
more henious offence, the bail application may be
rejected without there being application for
cancellation of bail granted earlier. In the case of
Prahlad Singh Bhati V NCT Delhixxiii,
Hon'ble Apex Court has observed:
“The mere initial grant of anticipatory bail for
lesser offence, did not entitle the respondent to
insist for regular bail even if he was subsequently
found to be involved in the case of murder. Neither
S. 437(5) nor S. 439(1) of the Code was attracted.
There was no question of cancellation of bail
earlier granted to the accused for an offence
punishable under Ss. 498-A, 306 and 406, I.P.C. The
Magistrate committed an irregularity by holding that
"I do not agree with the submission made by the
learned Prosecutor inasmuch as if we go by his
submissions then the accused would be liable for
arrest every time the charge is altered or enhanced
at any stage, which is certainly not the spirit of
law." With the change of the nature of the offence,
the accused becomes disentitled to the liberty
granted to him in relation to a minor offence, if
the offence is altered for an aggravated crime.
Instead of referring tothe grounds which entitled
the respondent-accused the grant of bail, the
Magistrate adopted a wrong approach to confer him
the benefit of liberty on allegedly finding that no
grounds were made out for cancellation of bail.”
Bail after
conviction-
Bail granted to an accused in chapter XXXIII Cr.P.C.
comes to end after his conviction and he is taken in
custody. However the trial court may grant
provisional bail to accused u/s 389(3) Cr.P.C. to
enable him to prefer appeal subject to following
conditions:
1.
The accused was on bail during trial and
2.
He is convicted in bailable section or he is
sentenced for a term not exceeding three years.
However, for reasons to be recorded, the trial court
may refuse to grant bail to accused even in the
circumstances mentioned above. The appellate court
grants bail to accused during pendency of appeal u/s
389(1) Cr.P.C. A question arises as to what are the
principles for grant of bail u/s 389 Cr.P.C. Hon'ble
Supreme Court, in a recent ruling has observed:
“Section 389 of the Code deals with suspension of
execution of sentence pending the appeal and release
of the appellant on bail. There is a distinction
between bail and suspension of sentence. One of the
essential ingredients of Section 389 is the
requirement for the appellate Court to record
reasons in writing for ordering suspension of
execution of the sentence or order appealed against.
If he is in confinement, the said court can direct
that he be released on bail, or on his own bond. The
requirement of recording reasons in writing clearly
indicates that there has to be careful consideration
of the relevant aspects and the order directing
suspension of sentence and grant of bail should not
be passed as a matter of routine.
The mere fact that
during the trial, they were granted bail and there
was no allegation of misuse of liberty, is really
not of much significance. The effect of bail granted
during trial loses significance when on completion
of trial, the accused persons have been found
guilty. The mere fact that during the period when
the accused persons were on bail during trial there
was no misuse of liberties, does not per se warrant
suspension of execution of sentence and grant of
bail. What really was necessary to be considered by
the High Court is whether reasons existed to suspend
the execution of sentence and thereafter grant
bail.”xxiv
Bail to persons other than accused-
Apart from accused persons, warrants may also be
issued against witnesses during trial. When such
person appears or is brought before court, he may be
released on bail u/s 88 of Cr.P.C. The trial court
court may also require any witness present in court
to execute bond for his appearance in such court or
any other court to which the case may be transferred
for trial. Normally the courts allow release of such
witnesses on execution of personel bond.
ii1958 SCR 1226
Talab Haji Hussain v. Madhukar Purushottam Mondkar
and another
iii1967(3) SCR 926
Ratilal Bhanji Mithani v. Asstt. Collector of
Customs and Anr.
ivAIR 2009 SC 1341
Rasiklal v Kishor Khamchand Wadhwani
v AIR 2009 SC
94 Lokesh Singh V State of UP
vi AIR 2005 SC
498 Sunita Devi v State of Bihar
vii 2001AIR SCW 5129 Maninder Kaur V Teja Singh
viiiPara 39.9 of 41 st report of law
commission
ixPara 31 of 48 th report of law
commission
x1980 Cri.L.J1125 Gurubux Singh v State of
Punjab
xi2005(4)SCC 303 Adri Dharan Das v State of WB
xiiAIR 2009 SC 254 Union of India v Padma
Narayan Agrawal
xiiiAIR 2009 SC 502 Parvinderjit Singh v State
xivAIR 1996 SC 1042 Salauddin Abdul samd sheikh
v State of Maharastra
xv AIR 2009 SC 1362 Vaman Narayan Ghiya v State
of Rajasthan
xviJT 2002(1) SC 291 Amarjit Singh v State of
NCT of Delhi
xvii2002(2) SCC 66 Sandeep Jain v NCT of Delhi
xviiiAIR 2009 SC 1629 Galaskasden Grace v
Inspector of Police
xixAIR 2009 SC 2072 Mahesh Bhasin v State (NCT
of Delhi)
xx AIR 2009 SC 2080 Fida Hussain Bohra v State
of Maharastra
xxi AIR 2003SC 4662 Bharat Chaudhary v State of
Bihar
xxii2007(7)SCC558 Nirmaljeet Kaur v State of MP
AIR2005SC498 Sunita
Devi v State of Bihar
xxiiiAIR 2001 SC 1444 Prahlad Singh Bhati V NCT
Delhi
xxiv 2009AIR SCW 945 Masood Ali Khan V State of
UP
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