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Bail In Non Bailable Offences In India

Bail may The concept and philosophy of bail was discussed by supreme Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus bail remains an undefined term in CrPC.

Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints.

Since the UN Declaration of Human Rights of 1948, to which India is a 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 "baiulare", meaning "to bear a burden".
Bail is a conditional liberty.

Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other details.
It states when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offer the surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed that is to say, set at liberty until the day appointed for his appearance."

Bail may thus be regarded as a mechanism whereby the State devolutes 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 be regarded as a mechanism whereby the State devolutes 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.

In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.

The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test.

In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

Hon'ble Supreme Court in case titled as Sanjay Chandra and Ors. Vs. Central bureau of Investigation dated 23-11-2011 made the following observations:
The basic rule may perhaps be teresly put as bail, no jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhausitve but only illustrative. In other non-bailable cases the Court will exercise its judicial discretions in favour of granting bail subject to subsection (3) of Section 437 Cr.P.C. if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life.

A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police to investigate the case. It has to dovetail two conflicting demands, namely on the one hand the requirements of the society for being shielded from the hazards on being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he found guilty.

The law of bail like any other branch of law, has its own philosphy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime and presumption of innocence infavour of the alleged criminal.

An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

Further, in terms of the guidelines as laid down in Hasan Aziz Irani @ Jafrey Vs. The State of Maharashtra in Criminal Bail Application No. 1822 of 2019, it has been mentioned that antecedents of accused by itself would not be a ground to reject his application for bail.

Kashiram & Ors v. State, AIR1960MP312,
While dealing with the issue of grant of bail in non-bailable offences, it has been held that a person is entitled to his liberty even in case he/ she is accused of a Non-Bailable offence and the right of an accused person should not be dealt with by a court in a superficial manner. In fact, CrPC provides that in case the court has sufficient reason to believe that the case in hand requires further investigation to prove the guilt of the accused; such person should be enlarged on bail.

Ratan Singh Nihal Singh & Ors v. The State, AIR1959MP216,
It has also been the opinion of courts that since right to liberty is an imperative right of a person, an application seeking Bail should not be decided in a mechanical and perfunctory manner.

Hon'ble Supreme Court in Maulana Mohmmad Amir Rishadi vs. State of U.P. and another 2012(2) Mh. L. J. (Cri.) 412 held that, merely on the basis of criminal antecedents, bail cannot be denied.

In Sumit Vs. State of U.P., 2010 Cri.L.J. 1435 (SC) it was held that even if there are other criminal cases pending,accused should be granted bail.

Gurucharan Singh vs State( Delhi Adminstration) 1978 Cr.L.J.129(S C.)
According to supreme court except in those cases where there are reasonable grounds for believing that the person accused of an offence punishable with death or life imprisonment has been guilty of such offence,in all other cases of non bailable offences Judicial decision shall always be exercised by the court's in favour of granting bail.

Venkataramanappa vs State of Karnataka
That merely the offence alleged against the petitioner is punishable with death or imprisonment for life or that there is a prima facie case it will not be sufficient ground for denying bail.

Court will have to see whether there is any possibility to tampering with prosecution witnesses and also possibility of their absconding from law.

The principles, which the Court must consider while granting or declining bail, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, thus: "The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner.

While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.

It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under:
18. It is well settled that the matters to be considered in an application for bail are:
  1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  2. nature and gravity of the charge;
  3. severity of the punishment in the event of conviction;
  4. danger of the accused absconding or fleeing, if released on bail;
  5. character, behaviour, means, position and standing of the accused;
  6.  likelihood of the offence being repeated;
  7. reasonable apprehension of the witnesses being tampered with; and
  8. danger, of course, of justice being thwarted by grant of bail

[see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11)

The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence.

Any order devoid of such reasons would suffer from non-application of mind.
It is also necessary for the court granting 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 with the witness or apprehension of threat to the complainant
  3. Prima facie satisfaction of the court in support of the charge

State of Rajasthan, Jaipur vs Balchand Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail.

in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated :"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody?

Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case?Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.

More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694,
Court observed that:
Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important.

This Court further observed :
Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

Court has taken the view that when there is a delay in the trial, bail should be granted to the accused
[See Babba v. State of Maharashtra, (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi, (2000) 9 SCC 383].

In Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined:
8. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.

As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow
ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.

To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right.

After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.

The last four words of Article 21 are the life of that human right. Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record--particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habitual, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society.

Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and society affected.

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