Introduction:
Indian criminal jurisprudence has provided scope for the concept of bail, which is a well settled principle of law through the plethora of judgements. It also has a place within the scope of human rights under the United Nation Declaration of Human Rights 1948, which India is also a signatory to. Bail is essentially the releasing of a person from prison while he is awaiting his trial or an appeal filed, thus making it a conditional liberty. Bail is a sort of trust reposed in the accused by the court and if it is found that he has betrayed this trust in any manner or he has misused the liberty granted by the court, he disentitles himself to the privilege so granted. The granting of bail lies at the discretion of the Court and it is upon the facts and circumstances that the Court awards such grant of bail or anticipatory bail as laid in the case of Sanjay Chandra vs CBI. The primary purposes of bail was identified as discharging the accused persons from imprisonment, relieving the State from the burden of holding him/her and also to ensure the attendance of such accused persons awarded bail. The time period to dispose of a bail petition was prescribed as one week in the case of Aasu vs. State of Rajasthan. In the case of , Dipak Shubhashchandra Mehta v. CBI the Supreme Court of India laid down a few facts that are to be taken into consideration before awarding or rejecting bail:
The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge.
Arrest deprives an individual of his personal liberty, and the act of securing bail usually sets him free. The concept of bail is inextricably linked to the right to personal liberty. The entitlement to secure bail flows from the provisions of Sections 436, 437 and 439 of the Code of Criminal Procedure, 1973 along with the facet of anticipatory bail, introduced thereto by the Law Commission’s 41st report.
Granting Of Bail Under The Criminal Procedure Code:
Pursuant to Section 436 of CrPC, the accused person can make a request for bail as a matter of right for bailable offences. The accused person would be granted bail when it is a bailable offence, since there is no scope for discretion granted to the Court. However, if the accused is charged with both bailable and non-bailable offence, then he would not be given the ground to claim bail and thus such right would not be available to him. Section 437 of CrPC provides for the power of the Trial Court and the Magistrate the discretion to grant or to refuse bail of offences categorized as non- bailable offences. Moreover, such discretion has also been conferred upon officers-in-charge of the Police Station under Section 437(I) of CrPC, by specifying the reasons and recording them in the case diary and such officers are also duty bound to preserve such bail bonds until they are discharged by the competent Court. Further, according to Section 439 CrPC, the High Court and the Court of Session is empowered to grant bail and entertain such applications.[5] Section 497 further draws a distinction between non-bailable offences which are punishable with death or transportation for life and other non-bailable offences. In the former case, the magistrate’s power for granting bail is restricted, but not so in the latter class of cases.[6]
Granting of Anticipatory Bail:
The law on anticipatory bail has developed in a non-linear course, through a plethora of judgments passed by the Supreme Court. The concept of anticipatory bail has been dealt under Section 438 of the CrPC and in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra[7],the Court had provided that an accused person charged for an offence which is non-bailable in nature, can apply for such grant of bail before the Court of Session or the High Court before any such arrest has been made.
In the case Balchand Jain v. State of Madhya Pradesh[8], Justice P N Bhagwati had observed that the power of granting anticipatory bail is of an extraordinary character and it is to be granted only in exceptional cases such as the cases where the person might be falsely implicated, or the case is of frivolous nature. Thus, the power of rejecting anticipatory bail must be rested in cases where there are such “reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail”.[9] There are two main conditions laid down for granting bail under Section 438 CrPC:
(i) There must be an accusation of the petitioner having committed a non-bailable offence; (ii) There must be reasonable apprehension or belief in the mind of the petitioner that he would be arrested on the basis of such an accusation.
The simultaneous existence of both these conditions is a sine qua non for invoking Courts jurisdiction. The Indian judiciary in the case of Gurbaksh Singh Sibbia v. State of Punjab[10], acted as a landmark case regarding the guiding principle of anticipatory bail, wherein the Court had provided that application of Section 438 CrPC regarding a specific accusation cannot be a ‘blanket bail’ to extend to cover all the offences the accused person is charged with.
Upon the rejection of bail or an anticipatory bail, it does not immediately mandate that the competent police officer arrest such accused persons merely because the bail or anticipatory bail has been so rejected as laid in the case of M.C Abraham and Anr v. State of Maharashtra and Anr.[11]
Ordinarily the court would be entitled to exercise this power only where the person released on bail is guilty of misuse of the liberty granted by the court or where there is new development in the investigation or recovery of cogent material prima facie involving accused with heinous crime. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
Cancellation of Bail:
Under the CrPC, the law provides for the revocation of any bail granted and to take the accused back into custody. Section 437(5) empowers any Court which has provided for bail and released such accused person under Section 437(1) or Section 437(2) can commit to custody. Similarly, Section 439 confers on the High Court and the Court of Session power to cancel bail. Section 439(2) The Code of Criminal Procedure makes clear provisions for cancellation of bail and taking accused back in custody. The power of cancellation of bail can be resorted to broadly in the following two situations:
(i) On merits of a case mainly on the ground of the order granting bail being perverse, or passed without due application of mind or in violation of any substantive or procedural law; and (ii) On the ground of misuse of liberty after the grant of bail or other supervening circumstances.
Conclusion:
When bail is denied to an individual, such individual is deprived of his personal liberty guaranteed under Article 21 of the Indian Constitution. Thus, the deviation from the granting of bail cannot be exercised casually and is in the interest of the individual and community. The scope and ambit of the law on anticipatory bail has been elucidated by the judiciary time and again. Since the inclusion of Section 438 in the Code was envisaged as an antidote for preventing arrest and detention in false cases, it is in larger public interest that Section 438 is interpreted fairly under Article 21, to keep arbitrary and unreasonable limitations on personal liberty at bay. Even though the law of the land and Hon’ble Courts in various cases have tried to intervene and also have laid down certain guidelines to be followed but unfortunately nothing has been done about it. There is also a strong need felt for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population.
References:
[1] Sanjay Chandra vs CBI (2012) 1 SCC 40.
[2] Ibid.
[3] Aasu vs. State of Rajasthan (Criminal Appeal NO.511 of 2017 Dt.09-03-2017).
[4] Dipak Shubhashchandra Mehta v. CBI, (2012) 4 SCC 134.
[5] Sundeep Kumar Bafna vs. State of maharashtra & anr Criminal appeal no. 689 of 2014 dt.27.03.2014.
[6] Emperor v. Rani Abhairaj Kunwar, A.I.R. 1940 Oudh 8.
[7] Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.
[8] Balchand Jain v. State of M.P., A.I.R. 1977 S.C. 366.
[9] Ibid.
[10] Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565.
[11] M.C Abraham and Anr v. State of Maharashtra and Anr (2003) 2 SCC 649.
