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Bail in India

"Under the law of Nature , all men are born free , everyone comes into this world with a right of his own person , which includes the liberty of moving and using it at his own will. This is what is called personal liberty and is given by author of nature , because necessary for his own sustenance"� ~ Thomas Jefferson

Bail is the legal term for securing the release from prison of a prisoner facing conviction or appeal in return for a bail bond to ensure that he is delivered to the proper legal authority at the appropriate time. The bond, or more generally, the monetary worth of the safeguard known as the bail.

The court with jurisdiction over the case decides the bail bond. A prisoner Cash, land title documents, or other types of protection may be employed as collateral, or a bond between wealthy individuals or a competent bondsman or a bonding firm. Failure of the person released on bail to respect the terms and conditions his or her release, Failure to surrender at the appointed time resulted in loss of the prize. In short we can say that Bail is a post-arrest remedy aimed at obtaining the defendant's release.

This review only covered secondary sources and doctrinal studies, secondary sources containing books, papers and journal reviews, many blogs, and multimedia materials.

Object and purposes of bail:
To avoid the repetition of the crime, or to ensure his presence in the proceedings, is the matter of holding a convicted party in detention prior to or in the trial.
However, any crime persistence is centered on the premise that guilt at first sight, and the guilty again presume cleanliness. Bail satisfies the demand for purity inference. Meanwhile, parole requirements, such as appearing in court on a predetermined date and period, fulfil the demand for all representations presumption of blame against the denounced. There are a variety of reasons for granting bail. This may be for making an appearance in front of a judge, demonstrating improvement, awaiting reference or modification, or presenting evidence, among other items.

Subject Matter Explanation
In order to perform a detailed review of bail, related laws and legislation. I sought to review the various provisions of the Code of Criminal Procedure , 1973. Sections 389, 436, 437, and 438 comprise the applicable provisions.

Section 389: Suspension of sentence of convicted person, when his application of appeal is pending and release him on bail, when he is incarcerated.
  1. When an application for appeal is pending of a convicted person, the appellate court may suspend the execution of sentence and release him on bail, if he is incarcerated.

    Where the conviction is of offence whose punishment is death, life imprisonment for a term greater than 10 years, the appellate court before releasing him on bail provide an opportunity to show cause in writing to public prosecutor shall be empowered to appeal for cancellation of such bail
  2. The force below Section 389 shall be exercisable by the high court, if the same authority is wielded by the subordinate court.
  3. The court after being satisfied release convicted person on bail, if he wants to present an appeal, unless special reasons is more compelling to refuse bail.
  4. The period during which an appellant sentence was suspended shall be computed, if he is ultimately sentenced.

Section 389 of the CrPC, 1973 corresponds to Section 426 of the Code. Section 389 applies only to convicted person whereas Section 436, Section 437, Section 438 applies to under trial.

In Shambhu v. The State[1], The court noted the essential condition for exercise of Section 389 is the presence of a legitimate appeal filed, along with judgements copy.

In Vasant Tukaram Pawar v. State of Maharashtra,[2] Convicted person cannot claim bail as a matter of right as in Section 436 regardless of offence being bailable or non-bailable and bail should be given after scrutiny of judgement as well as the accused's hearing. It is mandatory to record reasons for granting bail and refusal needs not to be recognized.

In Bhagwan Ram Shinde Gosai v. State of Gujrat,[3], The court pointed out that where the appellate court arrives at a conclusion that due to some practical difficulties There can't be any expeditious disposal of appeal, the court:
  1. Should take special note on sentence suspension issue
  2. Can give bail on fulfillment of certain conditions.

In Ramji Prasad v. Ratna Kumari Jaiswal AIR 2000 SC 3564,[4] the court observed that only in rare case the benefit of Section 389 can be availed by the person convicted under Section 302 of the Indian Penal Code, 1860.

In S. Sant Singh v. Secretary Home Department, Government of Maharashtra,[5] the court noted that Section 389 do not entail power of Section 432 in any way.

In CJ Poonappa v. State of Karnataka,[6] it was observed that admission of appeal does not give a right to accused, convict the right to bail.

In Public Prosecutor v. George Williams, [7] the court noted that the conditions for cancellation of bail under Section 389 is like the one of Section 437.

Section 436: In what cases the bail needs to be taken:
  1. When any person accused of bailable offence is arrested by the police officer without warrant issued by the court, and such arrested person is ready to give bail bond he shall be released on bail.

    Provided that, the court or the police officer is of the opinion that arrested person is indigent, he shall be released on his personal bond.
    Provision of Section 436 shall not affect the provision of Section 446A or Section 116(3)
Section 436 of the Code corresponds to Section 496 of the Code:
A person is said to be admitted to bail when he is released from custody of the officers of law and entrusted to private custody of person called his bail"� In general term, we can say that bail is transfer of custody of accused person from the state machinery to the private intermediaries.

Freedom of movement to accused is granted on condition that accused shall present himself for trial.

There are various procedures through which the presence of accused is assured at the trial, these are only personal recognizance, suretyship bond etc.
[Gurubaksh Singh Sibbiya v. State of Punjab[8]]
The existence of a surety is not needed in the case of a bailable offence., personal recognizance is sufficient to release the accused. [Mantoo Majumdar v. State of Bihar,[9]]
In bailable offence, bail is a matter of right and not discretion. It would be granted without further ado. [Jagjit v. State AIR 1962 ]

Bail application filed after conviction under Section 389 cannot be claimed as a matter of right irrespective of fact that offence is bailable or non-bailable. [Shambhu v. State[10]]
Relief in accordance with section 436, no condition can be imposed, the only discretion to authority is to choose between recognizance of security. [In re: District Magistrate of Vizagapatnam[11]]

Section 436 refers not only to the convicted, but also to those who testify or are brought before the judge.. The rule of S.436 does not extend to those charged with non-bailable crimes. [The State v. Santoksh Singh , AIR 1960 Punj 31][12]

Court should take a lenient view in releasing poor, infirm young or women and should release them on recognizance. [Moti Ram v. State of M.P.][13]. In Bailable offences, magistrate has no authority to cancel the granted bail, however high court and session court can do so, by virtue of S. 439(2). [Janardan Yadav v. State of Bihar][14]

S.437 of CrPC , 1973 corresponds with S.497 of CrPC ,1898. Major change which is incorporated in the new Act is, Test Identification parade by the investigation officer can't be ground for refusal of bail.

S.437 deals with power of the court of magistrate in granting or refusal of bail in non-bailable offences, it excludes the court of session or high court. it provides control of discretion to the court of magistrate in granting or denying bail , in matters related with non-bailable offences. However, the discretion exercised should not be casual and in cavalier fashion. [Manshab Ali v. Isran [15], V.D. Chaudhary v. State of U.P., [16], Gajanand Agarwal v. State of Orrisa [17]]A detailed scrutiny of evidence and intricate corroboration of merits of the case is not required at the stage of the bail granting, but reasons for granting or refusing bail, must be recorded. [ State of Maharashtra v. Sita Ram Popat Vetal,[18] Chaman Lal v. State of U.P. [19]]

There should be judicial mind's application while exercising discretion, granting of bail without any cogent reason cannot be affirmed [Ram Govind v. Sudershan Singh [20]]

S.437 gives authority not just to court yet even to the policeman accord bail even in non bailable offences. Generally, it is presumed that only in bailable offences, an accused can call on police officer to liberate him from custody on supplying bail, and there is no such provision for non bailable offences. This is a common misapprehension among common man and even in police officers.

Due to this magisterial court, case disposal capability is seriously impeded as the accused has to be produced, and the court must comply with it the remand application and bail application. Through proper awareness and familiarization, precious judicial time can be saved, which can be utilized in other important matters. In simple terms, we can say that, a person apprehended under non bailable offence without warrant can be released on bail, for reasons to be recorded. Nonetheless it can be only done up till accused is produced before court, the police officer ceases to have any power to grant bail.

Manoj Suresh jadav & others v. The State of Maharashtra, the supreme court has remarked that it is not acceptable to rearrest the accused, by another offence, by disregarding bail order in force that time. A two judge bench consisting of S.A.Bobde and L. Nageshswara Rao taking into consideration a special leave petition filed by the accused who,, nonetheless was granted bail by court of session, was reprehended as police officer appended another offence under S. 376 IPC and reprehended him. The petitioner moved to the Bombay High Court , which allowed his rearrest.

The aggrieved petitioner filed a special leave petition , the Supreme Court put aside the order of High Court , remarked:
The respondent state is not allowed to simply re arrest the petitioner by ignoring the order passed by learned Additional Session Judge , pune , were in effect at the time.
The supreme Court released the accused on bail and held that state is free to apply for bail cancellation and reprehend the accused under S.439(2).

Rhea Chakaraborty v. Union Of India & others , the court repudiated the justifications made by the accused's counsel that the offence embracing small amount of contraband are bailable under NDPS Act. The court opined that S.37 NDPS Act intelligibly mentioned that offences under NDPS Act were non bailable. S.37 do not provide any space for interpretation that offences involving minute quantities ought to be bailable. While moving to this verdict the court did not see eye to eye with judgment of Stefan Muller v. State Of Maharashtra (Bom. HC , 2010) and Minnie Khadim Ali Kuhn v. State NCT of Delhi (Del HC 2012), which held that offences involving minute quantities of contraband were bailable. The court relied on the judgement of State of Punjab v. Baldev Singh 1999 , in which NDPS offences were held non bailable.

S. 437(5) foresees a circumstances , where an individual was released on bail, has taken disadvantage of the freedom granted or has infringed the conditions imposed or has hampered the investigation or has done such works which justify the cancellation of bail [ T.N.Jayadeesh v. State of Kerala [21]]. Bail cancellation means reconsidering of decision and it could be done only when some unforeseen development has occurred which will render the fair trail vitiated , if the accused will be at liberty.This remarkable capacity of bail cancellation has to be exercised with caution and wariness.

When by primacy of likelihood , it is comprehensible that the accused will impede the justice delivery system by tempering the witnesses. Plea of hostile witnesses is no ground for cancellation of bail. [ State through the Delhi Administration v. Sanjay Gandhi [22] , Sita Ram v. State Of Bihar [23]]

The court will satisfy itself with the prosecution affidavit that chances of tempering of witness is very high or the accused have flouted the conditions imposed [ State v. Veerapandy [24]. Before cancellation of the bail , the court shall hear the accused [ Gokul Das v. State of Assam [25]]

Bail shall be scrapped by the court which has granted it upon providing more relevant evidence , which will satisfy the court that accused is guilty , or by meddling with the evidence or taking disadvantage of the freedom granted. The supreme court observed that were not less than 7 other cases engrossing grave charges against the accused was awaiting trail , some of them were perpetrated after granting bail in other cases , and there was very much possibility of his obstructing investigation , intimidating the witnesses , or causing corporeal injury to the complainant or others [ Omar Usman Chamodia v. Abdul [26]]

The 41st Law Commission Report put forward for the first time incorporation of a system of anticipatory bail. S.438 ponder upon a request petition by an individual on suspicion of arrest in respect of commission of a non bailable offence.

The purpose being to assuage a person from needless harassment or disgrace and it is given when the court is of opinion that the person shall not take undue advantage of freedom given nor will commit any such act which will hamper the due process of law.[Narinderjit Singh Sahni v. Union Of India [27]]

An anticipatory bail is beforehand apprehension licit procedure which directs that if the individual in whose favour bail is granted is afterwards apprehended on the allegation on respect of which guideline is issued , he shall be set free on bail. The difference between ordinary and anticipatory bail is that ordinary bail is given after apprehension and consequently means freedom from custody of police , whereas anticipatory bail is given in expectancy of apprehension and is consequently , valid at very moment of arrest. Guidelines under S.438 is consequently intended to grant contingent immunity from touch or internment contemplated by S.436 CrPC.

In preparation for confrontation of A.21 of the Indian Constitution , the procedure setup by law for divesting a person of his liberty must be equitable , unbiased and rational.S.438 is a methodological provision which is pertained to the personal liberty of the individual , who is authorized to the assistance of the surmise of the impeccability since he is not, on the date of his petition for anticipatory bail , convicted of the crime in respect of which the applicant pursue for bail.

Given that denial of bail tantamount to withholding of personal liberty , the court should not put needless curtailment or conditions while dealing with application under S.438, particularly when legislature has not put on any conditions. An extravagant inoculation of constraints and conditions which is not given in S.438 will render its provision constitutionally endangering. Since th personal freedom cannot be handmaid of needless restraints. The benevolent provision of S.438 must be protected , not cast aside [Gurubaksh Singh Sibbia v. State of Punjab ][28]

The purpose for which anticipatory bail was intercalated in code of criminal procedure because the legislature has comprehended the problems which a person has to face , due serious lacuna in code of criminal procedure law. Incorrect and frivolous cases are generally lodged against person and due to this person has to be detained by state machinery.

Even for quashing of incorrect and frivolous cases the person has to capitulate before magistrate and bail petition is normally heard after 10 to 15 days , only after intimidation to the state government , during such interval of time , the person remain incarcerated. Even though such person is released on bail his position and prestige will suffer an irreparable loss. The prestige of a person is same as goodwill of a company and it is being a impalpable property [ Som Mittal v. Government Of Karnataka [29]]

Grounds for Bail
S.438 is a methodological enactment under CrPC and it deals with characteristic freedom of an individual who is authorized to claim non-guilty because he is not on the date of application , to avail the provision of the S.438 convicted for offence in which he seeks bail. The person applying for bail should make clear that he has ""reason to believe"� that he may be apprehended in a non bailable offence. The person seeking bail must have to prove that:
Reason to believe� is founded upon rational grounds. Belief can be said to be rational only if there is something material on the footing on which it can be said that the applicant's fear , that he may be apprehended is real. Mere fear' or beliefs' without any reasonable grounds is not sufficient for the applicant to convey that he has some sort of unclear comprehension that some person is going to make an allegation against him, consequence of which he may be arrested.

Basis on which the credence of the applicant is based that he may be apprehended in non bailable offence must be potent enough to be scrutinized. If the bail petition is moved to the session court or high court , it is on discretion of such court to grant or refuse the same [ Adri Dharsan Das v. State of W.B[30] ]

Duration And Extent
The facultative power granted to the higher judiciary by the parliament cannot be put in a straightjacket formula. Such power can be utilized by the court paying a close eye to the facts and circumstances of each case. The higher courts must have to apply its judicial mind to the conundrum and come to the conclusion , whether such relief can be granted. The conditions laid down in S.438(1) must be comprehensive , distinct and not general or unclear.

Generally , no direction should be given to the effect that the applicant should be set free on bail, whenever arrested for whichever offence whatsoever' such order should not be granted as it would act as a blanket to hide or to act as a shield to any or every kind of alleged unlawful venture. S.438 act as an instrument to secure the individual liberty , it is neither a permit for commission of crime nor an armour against any kind of accusation. Blanket bail order would act as a device to carry out any illegal activity or provide an armour against criminal operations , which can never be permitted in a community guided by rule of law.

Affluent and influential people often used to take undue advantage of S.438 , so this loophole was affixed through Code of Criminal Procedure (Amendment) Act ,2005which has a provision for hearing of public prosecutor before grant of anticipatory bail.[Union of India v. Padam Narain Aggarwal] [31]

Cancellation Of Anticipatory Bail
When a anticipatory bail is granted by court of session on immaterial or impertinent ground and high court also refused to quash the same , and high court also refused to quash the same, which led to the judicial error. In order to avoid the miscarriage of justice , the supreme court must impede under A. 136 and quash the anticipatory bail. Generally Supreme court refuses to impede with order providing or rejecting bail but it cannot stand with folded hands and do nothing to rectify the miscarriage of justice [Pokar Ram v. State Of Rajasthan ].[32]

Effect of Rejection Of Anticipatory Bail
Mere fact that anticipatory bail has been refused , it cannot be a basis of immediate apprehension of the applicant. Any individual can go to the higher court for grant of anticipatory bail on mere apprehension that he may be apprehended. The court has discretion to grant or refuse anticipatory bail on the evidence , facts and circumstances of each case.

There may be circumstances , where the bail application may be rejected and investigating agency could not produce sufficient material which may be necessary for initiation of trial. A person whose bail has been rejected may or may not be arrested depending upon the facts and circumstances of each case , characteristics of offence , background of the accused , materials discovered during investigation and other pertinent considerations [ M.C. Abraham v. State Of Maharashtra [33], State Of Bihar v. J.A.C. Saldanha [34]]

  1. Shambhu v. The State, AIR 1956 All 633
  2. Vasant Tukaram Pawar v. State of Maharashtra (2005) 5 SCC 281
  3. Bhagwan Ram Shinde Gosai v. State of Gujrat, AIR 1999 SC 1859
  4. Ramji Prasad v. Ratna Kumari Jaiswal AIR 2000 SC 3564
  5. S. Sant Singh v. Secretary Home Department, Government of Maharashtra, 2006 CrLJ 1515 (1522) (Bomb)
  6. CJ Poonappa v. State of Karnataka, 2003 CrLJ (NOC) 27 (Kant)
  7. Public Prosecutor v. George Williams, AIR 1951 Mad 1042
  8. Gurubaksh Singh Sibbiya v. State of Punjab AIR 1980 SC 1632
  9. Mantoo Majumdar v. State of Bihar, AIR 1980 SC 847
  10. Shambhu v. State , AIR 1956 All 633
  11. In re: District Magistrate of Vizagapatnam, AIR 1949 Mad 77
  12. The State v. Santoksh Singh , AIR 1960 Punj 31
  13. AIR 1978 SC 1594
  14. (1978)CrLJ 1318
  15. AIR 2003 SC 707
  16. AIR 2005 SC 3270
  17. AIR 2006 SC 3248
  18. AIR 2004 SC 4258
  19. AIR 2004 SC 4267
  20. AIR 2002 SC 1475
  21. 1980 CrLJ 906
  22. AIR 1978 SC 961
  23. 2002(2) crimes 482 (Pat)
  24. 1979 CrLJ 455(Mad)
  25. 1981 CrLJ 229(Gau)
  26. AIR 2004 sc 1508
  27. AIR 2001 sc 3810
  28. AIR 1980 SC 1632
  29. AIR 2008 SC 1126
  30. AIR 2005 SC 1075
  31. (2008)13 SCC 305
  32. AIR 1985 SC 969
  33. (2003)2 SCC 649
  34. (1980)1 SCC 554

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