Law 101 : A Ready Reckoner on the Law of Bail

A brief overview of the law of bail, considerations for grant of bail, conditions that may be imposed while granting bail; guidelines governing exercise of discretion by the court; practice, and procedure; cases in which bail can be sought as a matter of right; and some of the more nuanced issues relating to the law of bail.

WHAT IS BAIL?

As per Wharton’s Law Lexicon, the term ‘bail’ means to “set at liberty a person arrested – on security being taken for his appearance”.

Object: Primarily an expedient to secure the attendance of an accused at the trial. To ensure that he doesn’t run away. If there are means of ensuring an accused’s presence at trial and ensuring that a fair investigation and trial can be ensured with the accused being at large, bail shouldn’t be denied. It needs to be remembered that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in the trial than if he is in custody. 

Essence of Judicial Decision Making at the time of Bail: Balancing of two conflicting interests/demands: presumption of innocence in favour of the accused on one hand, and state’s interest in public order and interest in protecting integrity of the investigation, on the other hand. 

Denial of bail cannot be punitive or as punishment or disapproval of prior conduct. 

GENESIS OF THE CONCEPT OF BAIL

TWO TYPES OF OFFENCES:

BAILABLE OFFENCES

  • The Cr.P.C defines A Bailable Offence as an offence shown as bailable in the First Schedule or made bailable by any other law. 
  • Bail is granted as a matter of right.  

NON-BAILABLE OFFENCES

  • Non-bailable offence means any other offence. 
  • Bail is a matter of the discretion of the court or the officer concerned. 

DECODING SCHEDULE I TO THE CRPC

IPC offences 

  • Specifically show to be Bailable or Non-bailable in the schedule. (Part 1 of Schedule 1)
  • The categorization is not entirely rational and not based on severity of maximum punishment.

For Non-IPC offences: 

  • Look at the special statute. The statute should normally declare – specifically – what’s bailable and what’s not.  
  • If nothing specific there in the special statute, fall back on part II to the First Schedule which categorises offences as bailable or non-bailable on the basis of the maximum sentence. For instance, any offence punishable with more than 3 years is automatically classed as a non-bailable offence.

REGULAR BAIL VERSUS ANTICIPATORY BAIL

REGULAR BAILANTICIPATORY BAIL
Granted after arrest and therefore, means release from the custody of the police. Granted in anticipation/ apprehension of arrest and is, therefore, effective at the very moment of arrest. 
Bail may be granted to the accused by any Judicial Magistrate/Metropolitan Magistrate or Court. (or, arguably, even police officer) Anticipatory bail may be granted only by the High Court or the Sessions Court. 
Bail is ordinarily granted as a matter of right in case of bailable offence and as a matter of discretion of the court (or the police officer) in non-bailable offences in accordance with Sections 437 & 439 of CrPC.Power to grant anticipatory bail is of an extra-ordinary character which is to be used by the Court sparingly. 
 Immunity not from arrest but from custody.  
A basic snapshot of the difference between regular and anticipatory bail

CASES IN WHICH RELEASE ON BAIL IS MANDATORY

  1. Where the offence is bailable. (S.436, Cr.P.C). 
  2. Where the applicant has undergone half sentence as an under-trial and the offence is not punishable with death or life imprisonment (Section 436A, Cr.P.C).
  3. Where the investigation is not completed and the police report is not filed within 60 or 90 days. (S.167(2)(proviso) (or a longer period as provided by the statute). 
  4. Where trial before Magistrate is not concluded within 60 days (Section 437(6), Cr.P.C). 

BAIL IN BAILABLE OFFENCES – S. 436, CRPC

  • A person accused of a bailable offence is entitled to be released on bail pending his trial. 
  • There is no discretion to refuse bail if the accused is prepared to furnish surety and cannot be detained in custody unless unable or unwilling to offer bail or to execute personal bonds. 
  • No discretion to impose conditions.
  • If accused is indigent and is unable to furnish bonds, he/she can be released on personal bonds.  [Section 436 (proviso)] 
  • As a matter of prudence – courts prefer local and solvent sureties (though not mandatory)
  • Ensure surety not a professional/stock surety. (S.441-A) 
  • Cash deposit instead of bond? (Yes. S.445 CrPC) 
  • Can the IO/Court impound passport? (No). 
  • What happens if an offence which was bailable gets aggravated later? (More on that later!)

APPLICANT HAS UNDERGONE HALF SENTENCE AS UNDER TRIAL SECTION 436A

  • Where a person has, during the period of investigation, inquiry or trial of an offence (not punishable by death) under any law undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties
  • Provided 
    • that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order the continued detention of such person or release him on bail instead of the personal bond with or without sureties
    • that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

DEFAULT BAIL Section 167(2) (Proviso):

Also known as STATUTORY BAIL.

When can it be granted?

Investigation is not completed/police report is not filed within 60 or 90 days. (S.167(2)(proviso).

60/90 days period may be extended by special statutes. (For instance, see Section 36A(4) of NDPS – 180 days – further extendable to one year. Extension application to be filed within 180 days) 

Rationale:

To act as deterrent to huge delays in investigation.

How is the period computed?

  • State of M.P v. Rustam and Others, 1995 Supp 3 SCC 221- Section 9 and 10 of the General Clauses Act provide that one day out of the 60 or 90 day period is to be excluded. It can either be the 1st day of production or the last day of the period.
  • Ravi Prakash Singh v. state of Bihar, (2015) 8 SCC 340 – While computing period under Section 167(2), the day on which accused was remanded to judicial custody has to be excluded, and the day on which challan/charge-sheet is filed in the court, has to be included. 

DEFAULT BAIL – CASE LAW

HOW IS THE PERIOD COMPUTED?

Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67

  • Period after which accused becomes entitled to default bail is 90 days where:
    • Offence punishable with death and any lower sentence (eg: S. 302, 305, 396 IPC etc.)
    • Offence punishable with life imprisonment and any lower sentence (eg: S. 376, 376-D IPC etc.)
    • Offence punishable with a minimum sentence of 10 years (eg: S. 14(2), POCSO, S. 379B as amended in the State of Haryana, S. 19, 27A, 59 etc. in NDPS)

Period is 60 days period where – where sentence is 10 years or less (eg: S. 306, 384 IPC) 

Is a written application necessary to invoke right to default bail?

The answer is No. It is not necessary to file a specific written application under S. 167, Cr.P.C for being released on default on bail, oral arguments could cover it too. In matters of personal liberty, technical approach must be avoided (para 40).

Rakesh Kumar Paul V. State of Assam, (2017) 15 SCC 67

THE PERNICIOUS PRACTICE OF RELAY CUSTODY

  • Let’s visualize this: 
    • Custody in X case (under Prevention of Corruption Act(POCA)/IPC) for 15 days (Police Custody) + 75 days in Judicial Custody. Custody in POCA/IPC case : 90 days.
    • After the above expires: 
    • Same accused taken into custody in Y case (case under the Prevention of Money Laundering Act although connected to the above predicate offence) for another 15 days (Police Custody) and 45 days (Judicial Custody). Custody in PMLA case – 60 days
    • Total custody due to relay – 150 days. 
  • Things to ponder on: 
    • Legitimacy of practice? 
    • Possible objections from the defence?  Surrender in both cases? 
    • Possibility of relay custody in normal cases? Addition of sections? 
    • Multiple FIRs? (See : CBI v. Anupam Kulkarni, (1992) 3 SCC 141) 

POLICE CUSTODY – FOR HOW LONG AND WHETHER PERMISSIBLE BEYOND THE FIRST 15 DAYS?

CBI v. Anupam J. Kulkarni 1992 (3) SCC 141

  • There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage.
  • But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. 
  • Even if he is in judicial custody in connection with the investigation of the earlier case he can formally be arrested regarding his involvement in the different case and associate him with the investigation of that other case.
  • The Magistrate can act as provided under Section 167(2) and the proviso and can remand him to such custody as mentioned therein during the first period of fifteen days and thereafter in accordance with the proviso as discussed above.

DEFAULT BAIL – CASE LAW

Effect of reserving right to investigate further and incomplete police report on right to default bail

Dinesh Dalmia v. C.B.I., (2007) 8 SCC 770

  • When a police report is not filed and investigation is kept pending, benefit of proviso appended to Sub-section (2) of Section 167 of the Code would be available to an offender; 
  • However, once a police report is filed, the said right ceases. Such a right does not revive only because a further investigation remains pending within the meaning of Sub-section (8) of Section 173 of the Code.
  • If a police report is filed after the expiry of 60/90 day period or on the 60th/90th day, and it is found that it is an incomplete charge-sheet which has been filed merely with a view to defeat the right of bail of the accused, then that police report is liable to be rejected and the right of default bail will accrue to the accused. 

Is the right of default bail defeated by the subsequent filing of chargesheet?

Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453

  • If investigation is not completed within the specified period, accused is only required to avail default bail. Ld. Magistrate is obligated to grant bail, even if, after filing of the application by the accused (but before grant), a charge sheet is filed. 
  • If the application is erroneously rejected by the Magistrate and the accused then moves the higher forum but during pendency of appeal a chargesheet is filed, accused’s indefeasible right is not affected. 

Does Section 167 apply in special cases like customs act?

Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440

  • When a person arrested under a special statute like Section 104(1) of the Customs Act is produced before a Magistrate under Section 104(2), the Magistrate has jurisdiction to authorize detention under Section 167(2).

DEFAULT BAIL UNDER SPECIAL STATUTES

  • Some special statutes provide for a longer period for the police to file its final report.
  • Thus, the right of the accused to default bail accrues accordingly.
  • As per S. 36A(4), NDPS –the period is 180 days instead of 90 days, which is further extendable to one year.
  • As per Proviso to S. 43D, UAPA – IO can seek extension up to 180 days. 
  • As per S. 21(2), MCOCA – IO can seek extension up to 180 days.

DEFAULT BAIL, COVID-19 & LOCKDOWN – EXTENSION OF LIMITATION?

Supreme Court, in its order dt. 23.03.2020 in Re: Cognizance for Extension of Limitation extended periods of limitation pretty much across the board. However, this decision was not in context of default bail. This has led to some controversy.

In SETTU v. STATE, Madras HC in Crl OP(MD) No. 5291 of 2020, a Single Judge Bench of the Mad HC holds that Section 167(2) cannot be construed as prescribing any period of limitation for investigation as there is no bar to the filing of final report even after the prescribed period. Therefore, the closure of the courts and the general extension of the limitation period will not affect the right of accused to default bail.

Similar views expressed by Uttarakhand HC in Vivek Sharma v. State of Uttarakhand. 

CONTRARY VIEW IN S. KASI v. STATE, Madras HC in Crl OP(MD) No. 5296 of 2020 – The period of limitation for investigation u/s 167 would also stand extended, keeping in view the extraordinary situation of Covid-19 AND Accused cannot claim default bail by taking advantage of the situation where there are “fetters of the investigating agency upon their right of movement”.

THE MATTER EVENTUALLY REACHED THE SUPREME COURT [S. KASI V. STATE, CRIMINAL APPEAL NO. 452/2020, ORDER DT. 19.06.2020], WHEREIN:

The SC approved the reasoning in Settu v. State (supra) and held that general extension of the limitation period will not affect the right of accused to default bail.

The SC also observed that in view of judicial discipline, the bench in S. Kasi v. State could not have taken a contrary view than that of a coordinate bench’s earlier view in Settu v. State, and in event of any doubt, it could have only referred the matter to a Larger Bench.

CASES WHERE BAIL IS NOT MANDATORY; OR IN OTHER WORDS, IS DISCRETIONARY

BAIL FOR NON- BAILABLE OFFENCES (437, CR.P.C)

  • Who is empowered to grant bail in such cases? – The Court and the Police Officer.
    • The jurisdiction is to be exercised with great care and caution by balancing valuable right of personal liberty of an individual versus the interests of the society, in general. 
    • Reasons required to be recorded, in writing. 
    • Discretion is exercised keeping in mind settled guidelines and considerations. 
    • Contrary to popular misconception, a Police officer, atleast, theoritically, has the power to grant bail even in a non-bailable offence. The legislative debates/commitee reports in the run upto CrPC also substantiate that as does the language of sub-sections (2) and (4). However, this power is seldom exercised in practice.

CONSIDERATIONS FOR GRANT OR REFUSAL OF BAIL

Any prima facie or reasonable ground to believe that the accused had committed the offence Character, behavior, means, position and standing of the accused 
Severity of the punishment in the event of conviction  Reasonable apprehension of the witnesses being tampered with  
Danger of accused absconding or fleeing if released on bail  Danger, of justice being thwarted by grant of bail  
Likelihood of the offence being repeated Nature and gravity of the charge 
See : Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528

GRAVITY OF OFFENCE : can bail be granted if the offence is grave and heinous?

Gravity of the offence, while is required to be considered by the Court, it is not the sole consideration for grant or refusal of bail. 

Gravity has to be gathered from the facts and circumstances of each case.

Economic offences would fall under the category of “grave offence” and the nature of allegation made against the accused is to be considered while granting bail along with the term of sentence prescribed for the offence alleged. 

However, even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so, especially if other factors favour the accused. 

Further, the practice of handing over information by investigators in sealed envelopes to the court to oppose bail has been deprecated by the Court.

P. CHIDAMBARAM v. DIRECTORATE OF ENFORCEMENT 2019 SCC ONLINE SC 1549

Also see, recent bail decisions of the Delhi High Court in Dr.Shivinder Singh, Firoz Khan, Md.Anwar (2020), and SC in Sanjay Chandra and Prabhakar Tiwari.

BAIL IN CASES BASED ON DOCUMENTARY EVIDENCE

If the case is primarily based on documentary evidence, bail to be granted liberally.

In this regard, one may look at:

  • Madhukar Sadashiv Gomane v. State of Maharashtra, 2016 SCC OnLine Bom 3447
  • Rafique Abdul Malik v. State of Maharashtra, 1996 SCC OnLineBom 493
  • Barun Pramanik & others v. State – 2017 SCC Online Cal 4767

WHAT IS ‘CO-OPERATION’ IN INVESTIGATION?

Co-operation in investigation remains a crucial consideration that weighs in the mind of the court while deciding the question of bail. What really is ‘co-operation’ though?

  • Samrat Singh Nirula & Ors. v. State of NCT of Delhi, 2015 SCC OnLine Del 9486.  
    •  28. It is settled law that the Court can draw an adverse inference against the accused but the Police cannot compel answers by custodial interrogation. It is not legally correct that custody of the accused is required by the Police merely because there is an allegation against them. ….
    •  The custodial interrogation is a euphemism for torture. While considering the application for anticipatory bail, the Court has to keep all these facts in its mind, especially in the cases of commercial type disputes and of civil nature.
  • Santosh v. State of Maharashtra, (2017) 9 SCC 714.  
    • Merely because the accused does not confess as the police wants him to, it cannot be said that he is not co-operating with the investigation. (Para 6) 

REFUSAL OF BAIL AND POLICE REMAND – WHEN JUSTIFIED?

  • Maruti Nivruti Navale v. State of Maharashtra, (2012) 9 SCC 235 
    • Custodial interrogation found to be necessary in a case where the accused had possession of the documents which were the subject of the forgery charge in a large scale fraud. 
  • Niranjan Singh v. Prabhakar Rajaram Kharote & Ors., (1980) 2 SCC 559 – 
    • Possibility of witnesses being influenced. 
  • YS Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 and Rohit Tandon v ED, (2018) 11 SCC 46
    • Economic offences constitute a class apart from other offences, thus bail applications in such cases warrant a different and a more stricter approach. (See contra – P Chidambaran (supra) and Sanjay Chandra v. CBI, (2012) 1 SCC 40) 
  • Neeru Yadav v. State of UP & Anr., (2016) 15 SCC 422
    • The accused’s antecedents, him being a history-sheeter is a relevant consideration, and bail can be rejected. 
  • Ramu @Sanjay Srivastava v. State of UP [Crl Misc Bail Appl 12045 of 2010, decided on 25.01.2011, by Allahabad HC] 
    • Accused main accused in an offence of murder, kidnapping, robbery – bail refused; no parity with other accused.

SECTION 439. SESSIONS COURT OR THE HIGH COURT?

BAIL FOR NON- BAILABLE OFFENCES

  • Section 439(1) confers power on the High Court or Court of Session, 
    • to grant bail to a person in any case without condition or with condition in certain specified offences and subject to the procedural limitation imposed by the proviso in respect of certain specified offences, and 
    • to set aside or modify any condition imposed by a Magistrate while granting bail. 
  • Section 439(2) gives power to the High Court or Court of Session to cause any person who has been admitted to bail by itself or by any Criminal Court under this chapter to be re-arrested and committed to custody. i.e., the power to cancel the bail granted to an accused person.

QUESTION –

Where should one go first for bail u/s 439? – Sessions Court or High Court.

Simple answer would be either. The jurisdiction, as we lawyers like to call it is – concurrent, but as a matter of prudence and strategy, one should exhaust remedies before Sessions Court before going to High Court.

TRANSIT BAIL (BAIL BY COURT NOT HAVING JURISDICTION OVER THE PLACE OF THE OFFENCE)

Regular Transit Bail – Sections 79 to 81, CrPC. When an arrest is made outside jurisdiction and the court of the place where arrest is made is empowered to grant bail.

Anticipatory Transit Bail : that is, bail in anticipation of arrest, and that too – by a court not having jurisdiction over the place where the offence was committed. The law in this regard is largely judge-made law and there are no specific provisions permitting or disallowing it and there are conflicting views:

  • Restrictive view – such application can only be filed before the court which has jurisdiction over the case, since the statute says application can be made to ‘the’ court, not ‘a/any’ court. (Patna HC) 
  • Expansive view – such application can also be filed before the court which has jurisdiction over the place where the accused apprehends arrest, since goal is to ensure widest possible protection to personal liberty. (Delhi HC)
  • Middle path – such application can be filed where the accused apprehends arrest, but the protection is given either with territorial limit, or with a time limit, to enable the accused to subsequently apply before the court which has jurisdiction over the case. (Bombay HC, Kerala HC, Calcultta, P&H, Karnataka HC)
  • Supreme Court is yet to definitively settle the law on this.

TRANSIT BAIL – CASE LAWS

  • HONEY PREET INSAN v. STATE, 2017 SCC OnLine Del 10690
    • Court has to satisfy that the application has been made on bona fide grounds and there is no manipulation and manoeuvering on the part of the applicant for artificially creating the jurisdiction for the court. 
    • Whenever, an application for transit anticipatory bail is made before a Court, the Court is duty bound to consider whether the applicant is a regular or bona fide resident of a place within the local limits of that Court and is not a camouflage to evade the process of law. 
    • If the Court is not satisfied on this aspect, the application deserves to be rejected without going into the merits of the case
  • SURAJ PAL v. VIJAY CHAUHAN, 2015 SCC OnLine Del 10285
    • Transit bail is not to be granted in serious offences of dowry death, etc., particularly, when in State of Uttar Pradesh there is no provision for grant of pre-arrest bail. Note – UP has reintroduced the provision of anticipatory bail since 2019

ACCUSED NOT ARRESTED DURING INVESTIGATION. COGNIZABLE, NON- BAILABLE OFFENCE; CHARGESHEET FILED AND COGNIZANCE TAKEN. BAIL OR JAIL?

COURT ON ITS MOTION v. CBI, 2004 (72) DRJ 629

  • The Court shall, on appearance of the accused, call upon him to move a bail application if he does not move it on his own and then, release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. 

DATARAM SINGH v. STATE OF UTTAR PRADESH AND ANR (2018) 3 SCC 22

  • If the accused was not arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses and the investigating officer did not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed.

SUCCESSIVE BAIL APPLICATIONS

  • Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav  (2004) 7 SCC 528
    • Court entertaining subsequent bail application has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases the court also has a duty to record what are the fresh grounds (based on material change of circumstances) which persuaded it to take a view different from the one taken in the earlier applications.
    • Successive Bail applications are restricted on the ground of judicial discipline.
  • Rajesh Ranjan Yadav v. Central Bureau of Investigation (2007) 1 SCC 70
    • Urgent medical condition of the accused also has been considered a good ground, however, same has to be seen in light of other facts and circumstances.
  • Akhilesh Kumar Singh v. State of Uttar Pradesh (2008) 4 SCC 449
    • Change of arguments is not allowed as a ground. 

SUCCESSIVE BAIL APPLICATION – FORUM SHOPPING?

Once a bail application has been rejected, the undesirable practice of repeatedly approaching different courts seeking bail, on the same facts and circumstances is not allowed. 

Results in forum shopping/ bench- hunting and is against judicial discipline.

The change of circumstances should be a substantial one- that has a direct impact on the earlier rejection and not merely a cosmetic change

The change must be such that renders the earlier finding obsolete. Eg:  Filing of charge-sheet.

Successive bail applications filed by an accused should be placed before the same Judge who had refused bail in the first instance, unless that Judge is not available.

M/S GATI LIMITED VS. T. NAGARAJAN PIRAMIAJEE & ANR. CA No. 870 of 2019, 6th May 2019 by the SC

BAIL – ON WHAT CONDITIONS?

PROSECUTION                          ACCUSED
Accused to cooperate with prosecution, aid in the investigation by providing documents related to the case. Bail amount should not be excessive or exorbitant.
Restrictions on travelling abroad or outside the jurisdiction of court (though the court cannot impound passport). May be mandated to seek or maintain employment or take an educational course.
Refrain from making any contact with the witnesses directly or through family members. Conditions imposed should be proportionate and commensurate​- no excessive conditions restricting the freedom of speech and expression should be imposed. 
Undergo a medical, psychological or psychiatric treatment if required. The practice of insisting on local sureties should be avoided as it causes unnecessary hassle to the accused 
Sureties should be verified to ensure that they are not in the regular business of acting as sureties for accused. Tracking devices/GPS- The accused can be tracked through wrist tracking devices or GPS tracker.  
If the offence gets aggravated (for instance, death in a case which was initially of ‘grievous hurt’) bail order might indicate that such bail shall stand cancelled automatically.  

WHAT CONDITIONS MAY NOT BE TENABLE WHILE PASSING BAIL ORDER

  • Direction to deposit certain amount in the X fund and download app on phone as precondition of bail. 
  • Arrest made for writing an offensive post on social media against a particular community- bail granted on the condition that accused should distribute five copies of the religion’s primary religious document to different libraries. 
  • On a charge of sedition, the bail order detailed upon “nationalism”, the plight of soldiers on the border and other jargon for 30 plus pages.
  • Sexual harassment matter: the judge in the bail order makes unwarranted remarks upon the victim and her character.
  • Condition of planting certain number of trees.
  • Condition of apologizing for a tweet.
  • Condition of depositing money with the court, especially in economic offences.
  • Condition of not saying “anti-national” things.
  • Condition of marrying the complainant, in a domestic law case.

CANCELLATION OF BAIL V. CHALLENGE TO BAIL ORDER

CANCELLATION OF BAIL – Where the prosecution moves court to get the bail cancelled due to a post-bail circumstance/violation of conditions. 

CHALLENGE TO BAIL – Where the prosecution moves a higher court against a bail order on grounds of improper exercise of discretion in grant of bail.

BHARATBHAI BHIMABHAI BHARWAD v. STATE OF GUJARAT AND OTHERS 2019 SCC ONLINE SC 945
  • While considering the application for cancellation of bail, the Court ordinarily looks for some circumstances like: tampering of evidence either during investigation or during trial, threatening of witness, the accused is likely to abscond and the trial of the case getting delayed on that count etc. 
  • Whereas, in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration is whether there was improper or arbitrary exercise of discretion in grant of bail, and not post bail circumstances. 

CANCELLATION OF BAIL – COMMON GROUNDS

  • Misusing liberty by indulging in similar criminal activity; 
  • Interference with the course of investigation;
  • Attempt to tamper with evidence or witnesses;
  • Threatening witnesses or indulges in similar activities which would hamper smooth investigation;
  • Likelihood of fleeing to another country;
  • Attempts to make himself scarce by going underground or becoming unavailable to the investigating agency;
  • Attempts to place himself beyond the reach of his surety, etc. (See Anil Kumar Yadav v. State (2017 SCC OnLine SC 1363);
  • Failure to appear before court;
  • Committing acts of violence, in revenge against the police or prosecution witnesses;
  • Fresh evidence suggests accused is guilty of an offence punishable with death/life imprisonment;
  • When it seems imminent that accused will jump bail;
  • Charge is amended or change in circumstances;
  • Bail obtained on concealment of facts;
  • Behest of the complainant;
  • The superior court finds that the court granting bail acted on irrelevant facts or there was no application of mind or manifest impropriety.

AGGRAVATION OF CHARGES AFTER THE INITIAL GRANT OF BAIL

Question: Whether in a case where an accused has been bailed out in a criminal case, in which case, subsequently new offences are added, is it necessary that bail earlier granted should be cancelled for taking the accused in custody or can the police arrest straight away?

There was a difference of opinion which finally got settled in Pradeep Ram v. State of Jharkhand (2019 SCC OnLine SC 825) where the Court held: 

“29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-

(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested. 

(ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody.

(iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv) In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.”

Pradeep Ram v. State of Jharkhand (2019 SCC OnLine SC 825)

COMPLAINANT’S RIGHT TO OPPOSE BAIL

  • SUNDEEP KUMAR BAFNA v. STATE OF MAHRASHTRA, AIR 2014 SC 1745
    • No vested right granted to a complainant or informant or aggrieved party to directly conduct a prosecution. 
    • In the Sessions Court, it is the Public Prosecutor who must at all times remain in control of the prosecution. 
    • Counsel of a private party can only assist the Public Prosecutor in discharging its responsibility.
    • May be heard at a crucial and critical juncture of the Trial so that his interests in the prosecution are not prejudiced or jeopardized. 
    • If the prosecution is likely to fail, the complainant or informant or aggrieved party be given an informal hearing.
  • Offences u/s 376, 376(3), 376AB, 376DA, 376DB, IPC – S. 439 CrPC (as amended in 2018) mandates that the presence of informant or authorized person is obligatory at the bail hearing of the accused. The HC/CoS have to give notice to PP within 15 days of receipt of such application.
  • Reiterated by Delhi HC’s Practice Direction dt. 24.09.2019, and again in Reena Jha v. UOI (WP (C) 5011/2017, orders dt. 25.11.2019 and 27.01.2020).
  • POCSO – Trial courts cannot grant bail in POCSO matters in the absence of complainant – Miss G (minor) Through Her Mother v. State, Crl MC 1474/2020 dt. 13.05.2020 by Delhi HC.
  • SC & ST Act – For special rights, see – Section 15A(3) & (5), SC & ST Act.

BAIL UNDER SPECIAL LAWS  – NARROWING DOWN OF DISCRETION

BAIL UNDER SPECIAL LAWS – RATIONALE AND SUPPLEMENTAL TEST

COURTS AGAINST REVERSAL OF PRESUMPTION OF INNOCENCE? CASE IN POINT – S. 45 OF PMLA

S. 45(1) of the PMLA provided that the court, before granting bail, a court has to be satisfied (“reasonable grounds to believe”) that the accused is not guilty of “such offence”, i.e. the predicate/scheduled offence, and that the burden of proving such – was on the accused.

Anyone with even an elementary understanding of criminal jurisprudence and constitutional due process would scoff at this; this provision was constitutionally suspect as it puts the burden on the accused to establish his innocence – that too – at the time of bail; at a stage where the accused is structurally incapacitated from leading evidence in his defence. (There were a couple of other things wrong with the section which I’ll talk about in a seperate article)

SC was called upon to decide the constitutionality of this provision in Nikesh Tarachand Shah v Union of India, (2018) 11 SCC 1  where the SC held S.45(1) to be violative of Articles 14 & 21 of the Constitution and struck it down. It held the provision to be arbitrary, extremely onerous, and something that was against due process – as it turned the presumption of innocense right on its head. SC railed against the fact that the provision not only expected the accused to establish innocense – at a stage when he can’t lead evidence – but it gets worse – it expects him to prove his innocense for the scheduled offence (whereas the case before the court is under PMLA) and this is extremely arbitrary.

With a view to bypaass the ruling, PMLA Amendment, 2018 was brought where the words “such offence” (In S.45) were replaced with offences “under the Act”. However, this addressed only part of the problem, if at all it did. Now the accused would have to prove innocense w.r.t PMLA offence and not the scheduled offence in order to procure bail. However, the main beef that the SC had with the provision remained : its fundamentally onerous nature.

Does Nikesh Tarachand stand legislatively overuled now?

A number of High Courts feel that Nikesh Tarachand (supra) should stand and Section 45 PMLA does not stand resurrected by way of the amendment.

For instance, in Upendra Rai v Directorate of Enforcement, 2019 SCC OnLine Del 9086 –  Delhi High Court held that the introduction of the words “under this Act” would not revive the twin conditions as imposed in Section 45(1) PMLA. (PS : Believe Upendra Rai has been stayed by the SC. (See here)

Similar view in two other HC judgments – Sameer M. Bhujbal v. Assistant Director, Directorate of Enforcement, 2019 SCC OnLine Bom 7574, and Vinod Bhandari v. Assistant Director, Directorate of Enforcement by Madhya Pradesh HC, M. Cr. C. No. 34201/2018, IV(2018)C C R178(MP), 29th August 2018.

However, similar provisions in other acts such as terror related laws and even NDPS – have been upheld.

S. 37 OF NDPS

  • S. 37, NDPS lays down a similar twin test for grant of bail for offences under NDPS
  • In State of Kerala v Rajesh (SC, 2020) CRIMINAL APPEAL NO(S). 154­157   OF 2020, 24th January 2020  – the SC has recently upheld the highest threshold/test, and further strengthened it by holding:
    • There cannot be a “liberal” approach to bail  in NDPS cases.
    • The expression ‘reasonable grounds’ means something more than prima facie grounds.
    • It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.
    • The   reasonable   belief   contemplated   in   the   provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.
  • Note – There have been divergent views earlier by High Courts. See, for instance,  Ankush Kumar @Sonu v. State of Punjab, 2018 SCC OnLine P&H 1259, where Justice Sehrawat, with an eye on the fate of S. 45, PMLA, held the conditions in S. 37, NDPS to be irrational. A remarkably progressive judgment that, unfortunately, may be of little use – post the 2020 verdict in State of Kerala v. Rajesh (above)

BAIL IN OTHER SPECIAL STATUTES AND COURTS

  • S. 212(6), Companies Act provides for a similar higher threshold for bail and makes bail extremely difficult for a Companies Act violation.
  • In Nittin Johari v. Serious Fraud Investigation Office (SFIO), 2020 SCC OnLine Del 394, Delhi High Court has held this higher threshold to be valid and applicable aand it has not extended the logic of Nikesh Tarachand to Companies Act offences.
  • However, w.r.t S. 21 of MCOCA which imposed a similarly high standard, much of the rigour has been chipped away by the court in Ranjitsing Brahmajeetsing Sharmav. State of Maharasthra & Anr., (2002) 5 SCC 294. (more on this in some other post)

SOME SPECIAL STATUTES THAT EXPRESSLY DISALLOW ANTICIPATORY BAIL

  • UAPA – Section 43D(4)
  • SC/ST (PREVENTION) ACT – Section 18A(2) [though the SC in Prathvi Raj Chouhan v UOI, 2020 SCC OnLine SC 159 has held that the bar would not apply when prima facie the SC/ST Act is not attracted to the case]
  • MCOCA – Section 21(3)

BAIL TO APPROVER (SOMEONE WHO TURNS A STATE WITNESS)

  • S. 306(4)(b), CrPC – Every person accepting a tender of pardon under S. 306(1) shall, unless he is already on bail, be detained in custody until the termination of the trial.
  • Thus, an approver in custody may not be released on bail.
  • Why ? to protect him from switching over the side of his accomplices, or being won-over by them. Also to protect him from the wrath of his co-accused, against whom the approver now deposes as a prosecution witness.
  • However, this prohibition is not cast in stone – a High Court in exercise of inherent powers u/s 482 CrPC may still release the approver on bail in exceptional circumstances to prevent the abuse of process of the court.– AL Mahra v. State 1958 Cri LJ 413

HABEAS CORPUS AND BAIL

Generally, the rule is that the writ of Habeas Corpus is not an efficacious remedy for bail and is not to be entertained as specific provisions for bail exist in the statute.

However, over the years, the SC has carved out a very narrow exception to his rule. (SFIO v.  Rahul Modi, (2019) 5 SCC 266). These exceptions apply in cases of total non-application of mind while granting remand, or a totally illegal arrest/detention. Only the most egregious cases of total non compliance with due process are taken up in writ proceedings.

CONSEQUENCES OF JUMPING BAIL?

Section 229A, IPC – If one, without sufficient cause, fails to appear in court in accordance with the terms of the bail or bond, the said person is punishable with imprisonment of upto 1 year and/or fine.

Burden of proving ‘sufficient cause’, needless to state, is upon the accused.

498-A, IPC, ARREST, AND BAIL

  • Arnesh Kumar v State of Bihar, (2014) 8 SCC 443 – 
    • All state governments to instruct police to not automatically arrest in cases u/s 498-A without satisfying itself about necessity under the parameters of S. 41, CrPC; routine arrests shall be avoided in offences punishable with less than 7 years imprisonment.
    • Emphasized pro-active use of S. 41A, CrPC, which says notice be given to accused, asking to appear and participate in investigation. (Amandeep Singh Johar’s case Delhi High Court) 
  • Rajesh Sharma v State of UP, (2018) 10 SCC 472 (2 judge bench)–
    • SC, in order to prevent the misuse of S. 498-A, gave certain directions, including-
    • Family Welfare Committees be constituted by DLSAs in every district, where every complaint u/s 498A would be referred.
    • The Committee will give its report within one month, till which time no arrest would be normally effected.
    • In dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed
  • Social Action Forum for Manav Adhikar v. UOI, (2018) 10 SCC 443 (3 judge bench)–
    • Directions passed in Rajesh Sharma (supra) regarding constitution of Family Welfare Committees and no arrests till such committees give their reports were wholly struck down.

BAIL TO JUVENILES

SECTION 12, JJA

To be read in consonance with principle mentioned in Section 3 of the Act

  • Principle of Repatriation and Restoration 
  • Principle of Fresh Start
  • Principle of Institutionalization (last resort) 

GENERAL PRINCIPLE

Bail should be granted to every juvenile as a matter of right. Should be refused only on grounds mentioned in Section 12 of the Act. 

CONDITIONS WHICH SHOULD BE IMPOSED

  • Supervision by Probation Officer
  • Enrolment in School
  • Vocational training etc

GROUNDS FOR DENIAL

  • Juvenile will come into association with known criminals ( link between juvenile and criminal should be established)
  • Release of juvenile will defeat the ends of justice (hamper investigation/inquiry/trial; tampering with witnesses)

BAIL IN THE TIME OF COVID-19

  • SC, on 23.03.2020, directed all states/UTs to constitute a High Powered Committee to determine the categories of prisoners to be considered for release on interim bail / parole or furlough to reduce overcrowding in prisons.
  • The SC suggested the following categories for consideration of release:
    • Prisoners who are convicted/undertrial for one offence for which the sentence is up to seven years;
    • Any categories identified by the High Powered Committee on the basis of the nature of offence, duration of the sentence and severity of the offence.
  • Subsequently, the Committees thus constituted in various states have recommended release of prisoners of select categories on parole (for convicts) / interim bail (for undertrials) for a period of around six weeks. Some of the common criteria being followed:
    • Persons who are accused or convicted of offences with punishment upto or less than seven years
    • Extend the parole of convicts who are already out on parole suitably (Goa)
    • Prisoners/ Undertrials diagnosed with autoimmune diseases (Andhra Pradesh)
    • All prisoners above the age of 65, except those involved in multiple crimes, will be granted a 6 week special parole (Haryana)
    • Undertrials accused of maximum two offences in which punishment is up to two years (Haryana)
    • In case of women UTP, if she is in custody for a period of 15 days or more (Delhi)
  • Most of the states have excluded prisoners under special laws such as POSCO, PMLA, NDPS, UAPA, etc from consideration for release.
  • Courts across the country have included matters related to bail applications, under Sections 437, 438, and 439, CrPC in the category of “extremely urgent” or “urgent” matters, to enable the same being heard even with restricted functioning of the courts.
  • However, some outliers – 
    • A single judge of the Rajasthan HC passed an order effectively holding that bail applications and applications of suspension of sentence could not be heard during the lockdown period, as they did not constitute “extremely urgent matters.” The SC subsequently stayed the order.
    • A Single Judge of the Bombay HC passed a similar order, citing similar administrative difficulties as reasons in order to refuse to entertain a bail application until the end of the lockdown period.
  • The SC, vide a notification dt. 11.05.2020 expressly included SLPs arising out of bail applications (u/s 437, 438, and 439, CrPC) in cases with offences up to 7 years imprisonment in the categories of matters which may be heard by a single judge of the SC.
  • A progressive order by Delhi HC in Hansraj & Ors. V. State (WP (Crl) 804/2020, order dt. 14.05.2020 – “in consideration of the lockdown, there will be no insistence on filing of signed/attested vakalatnama, affidavits, or applications where the applicant is in jail and/or his family members reside outside Delhi since bail is moved for the benefit of a person who is in jail.

EVOLUTION OF LAW ON ANTICIPATORY BAIL

  • GURBAKSH SINGH SIBBA v. THE STATE OF PUNJAB, AIR 1980 SC 1632
    • The court can grant anticipatory bail for an unlimited period until the trial is completed and has an option to grant it for a limited period as well. 
    • However, the normal rule should be not to limit the operation of the order in relation to a period of time.
  • SALAUDDIN ABDULSAMAD SHAIKH v. STATE OF MAHRASHTRA (1996) 1 SCC 667
    • 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 submitted. 
  • SIDDHARAM SATLINGAPPA MHETRE v. STATE OF MAHRASHTRA, AIR 2011 SC 312
    • The judgements in Salauddin Abdulsamad Shaikh vs State of Mahrashtra, Adri Dharan das vs State of West Bengal are clearly contrary to the law declared by the Constitution Bench in Gurbaksh Singh Sibbia’s case and also contrary to the legislative intention. 
    • The judgement laid down by the Constitution bench would prevail and hence,  anticipatory bail can be granted for an unlimited period of time. 
  • SUSHILA AGGARWAL v. STATE OF NCT OF DELHI, 2020 SCC ONLINE98
    • A 5-judge bench, unanimously ruled that the protection granted to a person under Section 438 Cr.P.C should not invariably be limited to a fixed period unless special case made out. 
    • Discovery during Anticipatory Bail: The “limited custody” or “deemed custody” which the Police has over the accused would be sufficient for the purpose of fulfilling the provisions of Section 27 (IEA), in the event of recovery of an article, or discovery of a fact. 
    • Thus, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on anticipatory bail.

FACTORS IN GRANT OF ANTICIPATORY BAIL

  • Nature and gravity of the accusation and the exact role of the accused must be properly comprehended before the arrest is made
  • Antecedents of the applicant- previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
  • Possibility of the applicant fleeing from justice;
  • Accused’s likelihood to repeat similar or other offences;
  • Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
  • Impact of grant of anticipatory bail on the accused 
  • Balance between two factors- no prejudice to the free, fair and full investigation and prevention of harassment, humiliation and unjustified detention of the accused
  • Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
  • Frivolity in prosecution and the element of genuineness. 
  • Available material against the accused and  exact role

ANTICIPATORY BAIL TO JUVENILES

Section 12, JJ Act – provision of bail by the Juvenile Justice Board talks about post-arrest situation.

Position prior arrest / in anticipation of arrest is not provided for under the JJ Act. At the same time, no provision in the JJ Act expressly restricts the application of S. 438 CrPC. 

VIEW – AB can be granted to a juvenile accused

Legislative scheme of JJ Act suggests that wherever legislature intended to give overriding effect it has expressly done so. The expression “notwithstanding anything contained in the Code of Criminal Procedure, 1973” in Section 12(1) of the Act is applicable to granting of bail to a child who is alleged to be in conflict with law after his apprehension/detention by police or appearance/production before the Board. But 438 comes into play before that, and S. 12(1) does not take away any power of HC/ CoS’ u/s 438. – Mr. X v. State of Kerala, Bail Appln No. 3320/2018 by Kerala HC.

Merely because S. 10 of the JJ Act provides for apprehending a child in conflict with law and not for arresting him it cannot be held that an application u/s 438 by him or her is not maintainable. – Sagar Through Guardian v. State of Rajasthan, SB Crl Misc Bail Appln No. 11432/2019 by Rajasthan HC

CONTRARY VIEW – no AB to a Juvenile accused

S. 12, JJ Act provides that any bail application to be entertained by the JJ Board only. Such power conferred exclusively on the board can be used by HC/CoS only in appeal, revision or otherwise. 

Even JJ Board doesn’t have power to entertain anticipatory bail. 

Sandeep Singh Tomar v. State of MP [M. Cr. C 9816/2013], Kamlesh Gurjar v. State of MP [MCrC 10345/2019], Kapil Durgawani v. State of MP [2010 (IV)MPJR 155] by the MP HC; Preetam Pathak v. State of Chhattisgarh[MCrC(a) 1104/2014] by Chhattisgarh HC.

Child in conflict of law cannot be arrested so there is no apprehension of arrest; so application for AB u/s 438 before HC/ CoS is not maintainable. – K. Vignesh v. State, Crl OP No. 22361/2015 by Madras HC.

NO SUPREME COURT JUDGMENT AS YET ON THIS ISSUE.

REFORMS IN BAIL JURISPRUDENCE

  • To make an effective deterrent, amount of bail be set commensurate to paying capacity of the accused, not just to the crime alleged.
  • Risk Assessment, a technique to help determine the least intrusive method of policing and investigating offences, maintaining a balance between individual liberty and community safety. Use of Artificial Intelligence in Risk Assessment (though privacy concerns remain)
  • Bail Durability Assessment Orders.
  • Electronic Monitoring through bracelets etc? (though this possibly amounting to the violation of the fundamental right to privacy would be a contentious issue, whenever implemented)
  • The scourge of ‘professional sureties’. 
  • Move to creative bail conditions instead of insisting on jail time.
  • Centralised Database to confirm criminal antecedents. 
  • Victims be given an opportunity of being heard at the stage of bail itself and be informed when release on bail is imminent. 
  • ‘Treatment of Victims’ should be a principle governing bail decisions, and a ‘Victim Impact Assessment Report’ may be called for where offences are of a particularly grave of heinous nature.
  • Courts should enforce the rule that Supplementary Chargesheets are filed only to add information which subsequently available. (so that it is not used as an expedient to deny bail)
  • Modifying classifications of Bailable and Non-Bailable Offences, there should be correlation between the term of imprisonment and classification of offence.
  • Bail in economic offences and crimes under special laws may be statutorily made harder, and not be granted mechanically and in a routine manner. 

CONDITIONS ON GRANT OF BAIL – GLOBAL BEST PRACTICES

  • Drug testing 
  • House arrest 
  • Submission to warrantless searches
  • Residence in halfway home
  • Freezing of defendant’s assets
  • Telephone monitoring 
  • Electronic bracelet monitoring 
  • Limiting access to the internet and computers
  • Submission to random unannounced visits by pre-trial service officers. 

A WEBINAR ON LAW OF BAIL AND DRAFTING OF BAIL APPLICATIONS

An overview of the Law of Bail in a lecture organised by Nyaya, NALSAR
Delivering a guest lecture on bail to the Ld.Judges of the state of J&K, followed by Q/A.

For everyone’s benefit, here’s a quick list of cases that I referred during the talk. The key-takeaway indicated against the case is only a short brief. Please read the whole case to understand better.

  1. Rakesh Kumar Paul V. State Of Assam, (2017) 15 SCC 67- Period for computing default bail for offences punishable by death, life imprisonment or sentence above ten years- 90 days and where the sentence is 10 years or less- 60 days. It is not necessary to file a written application u/s 167(2) CrPC and oral arguments may be sufficient.
  2. Settu V. State, Madras HC In Crl OP(MD) No. 5291 Of 2020 – The closure of the courts and the general extension of the limitation period will not affect the right of accused to default bail.
  3. P. Chidambaram Vs  Directorate Of Enforcement, 2019 SCC OnLine SC 1549 Gravity of offence is not the sole consideration for grant or refusal of bail. Practice of handing over information by investigators in sealed envelopes and findings made on the basis of these as a ground for grant or refusal of bail, is deprecated as against the principles of fair trial.
  4. Y.S Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439-  Economic offences constitute a class apart from other offences, thus bail applications in such cases warrant a different and a more stricter approach. 
  5. Neeru Yadav v. State of UP & Anr., (2016) 15 SCC 422-The accused’s antecedents, him being a history-sheeter is a relevant consideration, and bail can be rejected. 
  6. Santosh s/o Dwarkadas Fafat v. State of Maharashtra, (2017) 9 SCC 714 – If the accused is not confessing the crime, it doesn’t mean that he is not cooperating with the investigation; this cannot be a ground for denying bail. 
  7. Samrath Singh Narula vs State of NCT. Of Delhi, 2015 SCC OnLine Del 9486 – Police cannot compel answers by custodial interrogation and custody of the accused is not required by the Police merely because there is an allegation against them. Custodial interrogation is sometimes a mere euphemism for torture.
  8. Nikesh Tarachand Shah v Union of India, (2018) 11 SCC 1 – Section 45, PMLA struck down, on the ground of being extremely arbitrary and discriminatory and because it turns the presumption of innocence on its head and does not pass muster of due process. 
  9. Upendra Rai v Directorate of Enforcement, 2019 SCC OnLine Del 9086-Interpreted the amendment to Section 45 and stated that it does not have the effect of restoring a section which has been struck off. 
  10. Nittin Johari v. Serious Fraud Investigation Office (SFIO), 2020 SCC OnLine Del 394– The court upheld the stringent conditions which impose a higher threshold on grant of bail u/s 212(6), Companies Act, 2013 in case of 447 of the CA, 2013. 
  11. Ankush Kumar @Sonu v. State of Punjab, 2018 SCC OnLine P&H 1259,Justice Sehrawat, held the conditions in S. 37, NDPS to be irrational deriving the strength and logic from Nikesh Tarachand’s (supra) case. 
  12. Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav  (2004) 7 SCC 528-While filing a successive bail application,  the accused has to satisfy the court that there has been a material change of circumstances and not mere change of argument. 
  13. Gurbaksh Singh Sibba Vs The State Of Punjab, AIR 1980 SC 1632 – Anticipatory bail serves a very important objective which is protection of liberty and should be granted for an unlimited period normally i.e until the end of trial. 
  14. Salauddin Abdulsamad Shaikh Vs State of Maharashtra (1996) 1 SCC 667-Anticipatory Bail should be granted in rarest of rare cases and for a limited period of time until investigation gets over, after which the accused has to seek regular bail. 
  15. Siddharam Satlingappa Mhetre Vs. State of Maharashtra, AIR 2011 SC 312-Nothing in the statute that mandates anticipatory bail for a limited period of time and AB should continue in the course of the trial. 
  16. Sushila Aggarwal V. State Of NCT Of Delhi, 2020 SCC Online 98 – AB should be for the course of trial and not for a limited period of time normally. Although, in some cases can be granted for a limited period of time but that should be the exception and not the rule. 
  17. Prathvi Raj Chouhan v UOI, 2020 SCC OnLine SC 159- The bar for granting anticipatory bail under SC/ST (Prevention) Act would not apply when prima facie the SC/ST Act is not attracted to the case. 
  18. Sundeep Kumar Bafna Vs State of Mahrashtra, AIR 2014 SC 1745-No vested right in the complainant to conduct prosecution and can only assist the public prosecutor. May be heard at a crucial and critical juncture of the trial or when the prosecution is likely to fail. 
  19. Smt. Sharada Dattatray Choudhari Vs. State of Mahrashtra & Anr., [Criminal Writ Petition No. 3455 Of 2014, Bombay HC] The complainant/informant/aggrieved party, may be heard when the judge holds an opinion that the prosecution is likely to fail or the matter is at a crucial and critical stage. 
  20. Kashmira Singh vs State of Punjab, (1977) 4 SCC 291- If the appellate court is unable hear the appeal in a reasonable period of time, and person has undergone substantial custody, the court should grant bail to the accused where special leave has been granted to appeal against conviction and sentence. 
A presentation delivered by Bharat to Judicial Academies/Police Training Academies as a part of training programme on Bail as guest lecturer/resource person.

A huge shout out to my colleagues Ishan, Taahaa, Noor, Asmita and Shreyash for all the help with this. Collation of this required a collosal effort and none of this would be possible without these very very talented people.

7 Replies to “Law 101 : A Ready Reckoner on the Law of Bail”

  1. Very well written and throughly researched write up. Super useful for the litigants.

    Like

  2. Respected sir u r amazing nd doing great job in law filed, I m inspired from your lectures nd views on law. You did very well work in this field and it will helpful for every Aspirants nd all others. I request with folded hands before you kindly keep on going nd never stop yourself to do on search nd Interpretation of law.

    Liked by 1 person

  3. Respected sir you are doing great job .your lectures and videos are like treasure for the aspirant .please sir keep on going and never stop yourself.

    Like

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