Procedure
A hearing on bail is a miscellaneous proceedings. It is not a hearing like appeal or mini trial. It is a short hearing to explain the court that the personal liberty of accused must not be taken away for the reasons to be stated in the hearing.
Hearing of bail application
When the bail application is under Section 437. CrPC ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439, CrPC it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.
Amarawati vs. State of U.P. (2005) Cri.L.J. 755 (FB): 2005 (1) AWC 416, (2005) 1 UPLBEC 155.
Interference with investigation
An order granting bail to an accused must not have adverse effect on the conduct of in investigation. In one case while granting bail in anticipation of arrest, court passed following orders:
"Persuaded by the aforesaid circumstances, we direct the department to interrogate the accused at the Calcutta office, 8A Lindsay Street, 2nd Floor, Calcutta-700087, available from the summons. (No. T3/CP/ 179/Cal/97/MLA/4852 dated 13.6.97) issued by the Enforcement Directorate. But the petitioner must not be put on arrest till the applications pending disposal are decided. The petitioner is to attend on Monday, Tuesday, Wednesday, Thursday and Friday i.e. on 23rd June 1997 to 27th June, 1997 at 8A Lindsay street and shall report to Shri M.L. Acharya, Chief Enforcement Officer at 2 O'clock on the aforesaid dates. The interrogation is to continue until 5 O'clock for each day. The prayer for further interrogation is left open which will be considered on hearing the parties. Hearing to continue as before.."
The the High Court took away the leeway which entitles investigating agency to investigate in the manner it likes. Supreme Court set aside the above order and observed:
"...The officials of the Directorate are now injuncted by the Division Bench from arresting the respondent and the time and places for carrying out the interrogations were also fixed by the Division Bench. Such kind of supervision on the enquiry or investigation under a statute is uncalled for. We have no doubt that such type of interference would impede the even course of enquiry or investigation into the serious allegations now pending. For what purpose the Division bench made such interference with the functions of the statutory authorities, which they are bound to exercise under law, is not discernible from the order under challenge. it is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual.."
The Supreme court held that High Court had gone ostensibly wrong and set aside the order.
Dukhishyam Benupani vs Arun Kumar Bajoria, 1997 Supp(5) SCR 566: 1997 (7) Scale 258.
Interim Bail
In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person's reputation.
Joginder Kumar Vs. State of U.P., 1994 Cr.L.J.1981 followed in Lal Kamlendra Pratap Singh Vs. State of U.P. , (2009) 4 SCC 437.
The aforesaid view is the proper view in view of Article 21 of the Constitution of India which protects the life and liberty of every person. When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution.
Sukhwant Singh vs State Of Punjab, (2009) 3 SCC Cri 487.
Delay in trial
When the under-trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case.
Sanjay Chandra v. CBI, (2012) 1 SCC 40.
Following observations aptly describe the legal position:
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. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.
State of Kerala vs. Raneef, (2011) 1 SCC 784.
In view of the aforesaid observations, the Parliament of India by an Act of 2005 amended the Criminal Procedure Code and incorporated section 436-A whereby an under-trial prisoner is entitled to bail as a matter of right after s/he has undergone at least half of the term of the maximum imprisonment which s/he could be sentenced upon conviction.
Thus if an accused is being prosecuted for an offence which carries maximum sentence of ten years, accused is entitled to be released on bail after completion of 5 years of incarceration.
Regular Bail
The term Regular bail merely implies an order granting bail after arrest but which is not an anticipatory bail or an interim bail.
The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
Sanjay Chandra v. CBI, (2012) 1 SCC 40.
Notice of arrest
There is no provision in law which may require police to give prior notice of arrest to an accused person. However, the Courts often grant this relief to a person seeking anticipatory bail. Unfortunately it is a lazy order but frequently in practice. Instead of deeply applying it's mind to grant of bail, as enjoined by Supreme Court in the case of Sibbia, courts direct that Investigating officer shall not arrest the accused without prior notice of say 3 days or 7 days. The actual effect of this order is to caution the investigating officer that it would revisit and decide about the grant of bail to the accused when an actual situation of arrest is faced by accused.
The Court thus attempt through such orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police.
Conditions for bail
While granting bail, the court has to ensure that accused person would be available for trial and that the trial would remain fair in as much as the accused shall not interfere with evidence or witnesses. To ensure this twin objectives, the courts may impose such conditions on accused while granting bail as it may deem fit.
Surrender of Passport
Provisions of the Criminal Procedure Code are not exhaustive of powers of the court in regard to terms and conditions of bail particularly when the High Court is exercising inherent powers.
Hazari Lal Gupta v. Rameshwar Prasad, [1972] 1 SCC 452: AIR 1972 SC 484, 1972 SCR (2) 666.
Ill-health of accused
Any directions on the basis of allegations of ill-health of accused may affect the investigation and therefore must be avoided.
It is not unusual that persons involving themselves in economic offences, particularly those living in affluent circumstances, are afflicted by conditions of cardiac instability. So the authorities dealing with such persons must adopt adequate measures to prevent deterioration of their health during the period of custodial internment. Court would interfere when such authorities fail to adopt necessary measures. Courts are not in favor of stipulating in advance modalities to be followed by the authorities for that purpose. Such anticipatory stipulations are interference with the efficient exercise of statutory functions when dealing with economic offences.
Directorate of Enforcement v. Ashok Kumar Jain,1998 (1) JCC (SC) 1 followed in Inderjeet Nagpal vs Directorate Of Revenue, 2005 CriLJ 2495, 118 (2005) DLT 194, 2005 (80) DRJ 569: 2005 (99) ECC 569, 2006 (193) ELT 408 Del.
Status of accused
Status of accused is a relevant fact in considerations for grant or refusal of bail.
But no inference of innocence of an accused can be drawn only on the basis of the status without looking at the entire evidence before the court. The mere fact that a person accused is a leader of a political party, it can not be presumed that such person can not be guilty of a criminal offence.
State Of Maharashtra vs Anand Chintaman Dighe, AIR 1990 SC 625, 1990 SCR (1) 73.
Tampering with evidence
The mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2004 (7) SCC.
When allegations of tampering of evidence are made, it is the duty of the court to satisfy itself whether those allegations have basis (they can seldom be proved by concrete evidence) and if the allegations are not found to be concocted it would not be a proper exercise of jurisdiction in enlarging the accused on bail.
Shahzad Husan Khan vs. Ishtiaq Hasan Khan, AIR 1987 SC 1613: 1987 (2) SCC 684: 1987 (3) SCR 34: 1987 Cr. LJ 1872.
Judicial Propriety
When High Court rejects bail application, grant of bail to same arrested person by a subordinate court without there being any change in circumstance would be a judicial impropriety. See
Bimla Devi vs. State of Bihar, AIR 1994 SCC 8: 1994 Cr. LJ 638: 1994 (1) Scale 117.
Successive bail applications in a pending appeal and bail application under Section 437/439 should be considered by the same Judge/Bench who decided first application unless it is not available for sufficient duration.
Shahzad Husan Khan vs. Ishtiaq Hasan Khan, AIR 1987 SC 1613: 1987 (2) SCC 684: 1987 (3) SCR 34: 1987 Cr. LJ 1872.
The Supreme Court, in aforesaid case had relied upon the principle of "judicial discipline" as the reason for this course of method of listing of bail application. The aforesaid case was followed by Full Benches of MP High Court.
Santosh v. State of M.P. , 2000 Cr.LJ 1834 (FB); Narayan Prasad v. State of M.P. reported in 1993 MPLI 1 (FB)
Recently a division bench of M.P. High Court has again clarified the position with these observations:
(I) The application for suspension of sentence dismissed as withdrawn or not pressed should be placed before the same Bench/Judge who passed the earlier order.
(II) The order of granting/rejecting interim bail earlier, would be deemed to be the order of consideration of first prayer and any successive prayer made in any number of application would come within the purview of successive prayer and shall be heard by the same Bench/Judge, who heard the application considering the interim prayer earlier, if the said Judge/Bench is available and it will be listed before other Bench/Judge only if the said Bench/Judge is not available for a sufficient duration, so that the prayer for interim suspension of sentence may not become infructuous.
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