Bail
"Bail" remains an undefined term in the Cr.P.C. Nowhere else the term has been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints since the U.N. Declaration of Human Rights of 1948, to which Indian 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 verbbailer' which means to give' orto deliver', although another view is that its derivation is from the Latin term baiulare, meaning `to bear a burden'. Bail is a conditional liberty.
Vaman Narain Ghiya vs State Of Rajasthan, decided by SC on 12 December, 2008.
Whenever any person is arrested he should be produced before the nearest Magistrate within 24 hours as mentioned under Section 57, Cr.P.C. Such Magistrate may or may not have jurisdiction to try the case. If Judicial magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred.
The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in case where some more offences either serious or otherwise committed by him in the same transaction come to light at as later stage.
CBI vs. Anupam J. Kulkarni, AIR 1992 SC 1768: 1992 (3) SCC 141: 1992 Cr. L. J. 2768.
Form of order granting bail
There is no particular form prescribed for an order granting bail. However the recording of reasons for grant of or for refusal to grant bail are not necessary.
Lalu Prasad v. State of Bihar, 1997(6) Scale 57.
Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.
There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for 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 of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Any order dehors of such reasons suffers from non- application of mind.
Gajanand Agarwal v. State of Orissa, AIR 2006 SC 3248.
In reaching above conclusion the court relied upon its previous authority which had laid down following four considerations while granting bail to an accused:
Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there can be any. The considerations being:
(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598.
There are some other cases which have dealt with similar problems and courts have given similar directions in respect of contents of order granting or refusing bail. See:
Puran etc. v. Rambilas,(2001) 6 SCC 338; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav,JT 2004 (3) SC 442;. Chaman Lal v. State of U.P. , JT 2004 (6) SC 540), and in Kamaljit Singh v. State of Punjab and Anr. (2005 (7) SCC 326).
It is no doubt true that in appropriate cases particularly in serious matters, the High Court may record reasons, but the High Court while recording reasons must take care to safeguard against prejudicing the case of the parties. The recording of reasons, wherever necessary, is only to indicate the considerations that may have weighed with the Court in passing the order and the Court must do so in a manner that may not prejudice the case of the parties. The trend recently noticed, to virtually write a judgment while disposing of an application for grant of bail must be discouraged.
Imran Ali vs Habibullah, decided by SC on 19 March, 2007.
Bail under inherent powers
Directions to trial Court to grant bail by High Court in exercise of its inherent powers is illegal:
"….. in certain cases, the High Courts, while dismissing the application under Section 482 CrPC are passing orders that if the accused-petitioner surrenders before the trial magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the concerned Magistrate. Sometimes it is noticed that in a case where sessions trial is warranted, directions are issued that on surrendering before the concerned trial judge, the accused shall be enlarged on bail. Such directions would not commend acceptance..."
State of Telangana vs Habib Abdullah Jeelani, decided by SC on 6 January, 2017
Nature of offence
Nature of offence has direct corelation with the possibility of accused fleeing from justice. If the allegation of committing murder are levied, law presumes that the accused may attempt to flea from justice. But it may be clarified that this presumption arise out of practice and not a presumption of law. However it may noted that there is no absolute rule that bail can not be granted at all in case of allegations of committing a grave offence.
Grave Offence
A reason for arrest of an accused in a case involving murder is to instill public with confidence about rule of law. In one such case it was observed that grant of bail in case of murder "faith of public in administration of justice is likely to be considerably shaken." It was further observed that grant of bail in such case was "miscarriage of justice."
Pokar Ram v. State of Rajasthan, AIR 1985 SC 969: 1985(2) SCC 597: 1985 Cr.L.J. 1175.
Economic offence
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. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence.
Sanjay Chandra v. CBI, (2012) 1 SCC 40.
In another case of cheating of about 65 lacs, accused had undergone custody of 6 months but investigation was completed hence the court granted bail.
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