Bail/AB Jurisprudence

Bail is the rule and jail is an exception.

Delhi HC in Swami Ganeshanand Vs State (NCT Of Delhi) , Bail Appln no. 1939/2020, lays down following factors for determining bail:

1. Nature/Gravity of the offense
2. The Role of the offender
3. The circumstances involved
4. Whether fair investigation would be possible
5. Flight risk
6. Possibility of tampering with evidence -- documentary evidence or physically influencing witnesses
7. Non-cooperation
8. Other surrounding circumstances

Triple test for bail/AB:

Dr. Singhvi shares that the test for bail is a uniform triple test viz. denial only upon demonstrable showing of flight risk and/or non cooperation and/or tampering with evidence, documentary or physical.

"The test for bail is flight risk, noncooperation and tampering of evidence. If court finds these three things are not likely to happen, then bail is granted."

The three points 5, 6, 7 covers the triple test for bail. Often the bail gets denied based on judge's "apprehensions". AM Singhvi says that “It is a settled principle that bail cannot be denied based on apprehension. The judge has not found any material but said that possibility of influencing witnesses cannot be ruled out. It’s an apprehension.” Such "speculative hypothetical non-finding" often violate the rights of an accused. The govt. can always use "witness protection scheme" if it "apprehends" special threat to witnesses instead of punishing the accused based on imaginations of judge or biased advocate.

Also, often the witnesses are interested/biased/incredible with dubious background which can be highlighted in favor of accused getting bail.

What is meaning of nature/gravity of offense?

AM Singhvi> gravity must necessarily be measured by the length of punishment imposed by legislative wisdom for the offense concerned. Purely hypothetically, it is logical and reasonable to argue that while some may treat rape as the most heinous offense, others may treat murder as most grave, while still others may treat so called “white collar crime” as gravest ( eg China, which prescribes mandatory death for some categories of white collar crime). Such determination has to be that of the legislature, neither of the judge, nor of society, nor of the complainant nor of the accused. The legislature alone is capable of reflecting, at least as a valid deeming fiction, societal anger at the concerned crime, by stipulating higher sentences for some and lesser for others. In the absence of this anchor criterion, we would be let loose on a sea of subjectivity qua the words “gravity” or “serious.”

What is the meaning of non-cooperation?

Non-cooperation must be restricted to mean non appearance when summoned. It cannot and should not mean answering questions in the way in which the questioner so desires. It cannot mean the admission of guilt. 18 It cannot even dilute, much less render the right against testimonial compulsion illusory, since the latter flows directly from Articles 20 and 21 of the Constitution and reflects the values of the Magna Carta and the crusade against Star Chamber interrogations. 19 Tampering must be a real, practical and likely probability to lead to bail/AB denial. Where cases are old, where evidence is overwhelmingly documentary, where government files exist and have been seized and sealed, there can hardly be a case for arrest or denial of bail/AB on the clearly illusory apprehension of document tampering. Where statements of witnesses are already recorded, the chances of physical tampering are almost non-existent. Affidavit assertions in this regard by the prosecution must be direct, detailed and specific, with concrete material to suggest tampering, to constitute grounds for denial of bail. I have hardly ever come across any such detailing in any affidavit of the prosecution on this issue and yet, unfortunately, bail is denied on bare, banal, stereotype, template averments of tampering, bereft of any details.

How to handle flight risk?

Flight risk will hardly arise, except in rare cases, since surrender of passport and frequent reporting coupled with comprehensive look out notices, has already reduced its risk and relevance virtually to vanishing point.

Other noteworthy points/comments from top advocate Dr. AM Singhvi.

1. Such robust enunciation of legal principles alone will make high sounding principles like “Bail is the rule and jail the exception” an operational reality. Otherwise such alliterative and inspiring prose will remain an ivory-towerish academic exercise of semantics. All developed common law jurisdictions, like USA, UK, Canada and Australia, follow this robust bias in favor of freedom of individuals, despite being individuals accused of serious crimes. This bias in favour of individual liberty is based not upon the desire of filling jails but strong supervisory and regulatory controls imposed upon such accused who are enlarged on bail.
2. Though several High Court Rules provide for the general rule (eg. Delhi HC Rule 7, Vol 3, Chapter 11, Part B) in respect of police remands, to the effect that “the longer the accused person has been in custody, the stronger should be the grounds required for a further remand to police custody”, the trial judges have to be sensitized to the spirit of such rules, because remands, especially for indigent and less literate accused, and even for the so called powerful, are being granted for the asking, routinely and repetitively. Assertions of the prosecution are bland, blanket and vague and yet accepted without much scrutiny.
   
   
3. The well established and salutary principle that if the accused complies with and continues to comply with notice to appear, then there should be no arrest...
   
   
4. Merely filling up jails with undertrials, not only ignores the fundamental presumption of innocence till guilt is established after proper trial, but also violates all tenets of Part 3 of the Indian Constitution and of Articles 20 and 21, therein, in particular. It is neither reformatory nor punitive. Given the length of delays in the Indian court system, undertrial incarceration, especially for the indigent, illiterate and disempowered, banishes them to the abyss of the forgotten, despised, dispossessed and demonized; is barbaric and may even constitute cruel and unjust punishment. All without trial and conviction. Cases of undertrials serving far more than their maximum possible sentence upon conviction may be few, but undertrials serving well more than half their maximum sentence are disturbingly high. No one can rewind the clock for them for the lost years of their life and nothing can compensate them for the misery that they suffer despite acquittal. This necessitates the true rationale for an urgent and comprehensive reevaluation of basic bail principles, as also reflected in the practitioner’s perspective.
5. "But there is no proof of crime committed by the petitioner, no evidence of any communication, SMS or email, made by the petitioner. Leave alone ‘gravity’ of the crime, there is no crime here at all"
6. ‘extraordinary’ cases in which bail may be denied include terrorism, child molestation and repeated offences of a grievous nature. But that was not the case here. “So if the logic of gravity of offence is applied here, I have to be in jail till the trial is over,”
7. Delhi High Court decision denying him bail on November 15 was “erroneous, unsustainable and liable to be set aside.”
8. If the perception test advanced by them is accepted, it will become a wild, unruly horse. Any order of a court will be sought to be overturned citing some democratic protest.
9. How will you control this horse of perception test?
10. No judgment will be safe if any democratic protests are a ground to hold those court proceedings had been vitiated.  The 1984 Delhi and 2002 Gujarat were instances of mobocracy, but even that did not affect courts. So there must be an objective conclusion that the city was in flames and it affected courts. But to say subjective perception of people is decisive factor would be a travesty. Who will decide this if this allowed? My perception is not Mr (Tushar, SG) Mehta’s perception. And Mr Mehta’s perception might not be Mr Dastoor’s perception

Landmark Judgments

1. Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors on 2 December, 2010, SC 

https://indiankanoon.org/doc/1108032/

AB bail to accused. This is so as no arrest should be made because it is lawful for the police officer to do so as the police officer has to justify to the arrest apart from his power to do so 

2. Satender Kumar Antil vs Central Bureau Of Investigation | SC | 2022

a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails.

b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court

c)The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail

d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 of 2018 and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code.

e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.

f)There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth(in which it was held that investigating officer need not arrest each and every accused at the time of filing chargesheet).

g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously.

h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release.

i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind.

j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders.

k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being anintervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application.

l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months.

Head notes (livelaw):

Code of Criminal Procedure, 1973 ; Sections 41, 41A - The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail - The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 - Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action - State Governments and the Union Territories to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code. (Para 73 (b-d))

Code of Criminal Procedure, 1973 ; Sections 437-439 - Bail - Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application. (Para 73 (k))

Code of Criminal Procedure, 1973 ; Sections 88, 170, 204 and 209 - There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. (Para 73 (e))

Bail - The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails. (Para 72-73(a))

Constitution of Special Courts - The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously. (Para 73 (g))

Code of Criminal Procedure, 1973 ; Sections 440, 436A - Undertrials - The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release- While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind - An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court. (Para 73 (h-j))

Code of Criminal Procedure, 1973 ; Section 436A - Section 436A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigor as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. (Para 64)

Bail - Economic Offences - The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another - It is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. (Para 66)

Code of Criminal Procedure, 1973 ; Section 437 - Scope - The jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample jurisdiction to consider the release on bail. (Para 53-55, 58)

Code of Criminal Procedure, 1973 ; Section 440 - It is a mandatory duty of the court to take into consideration the circumstances of the case and satisfy itself that it is not excessive. Imposing a condition which is impossible of compliance would be defeating the very object of the release. In this connection, we would only say that Section 436, 437, 438 and 439 of the Code are to be read in consonance. Reasonableness of the bond and surety is something which the court has to keep in mind whenever the same is insisted upon, and therefore while exercising the power under Section 88 of the Code also the said factum has to be kept in mind.

Code of Criminal Procedure, 1973 ; Section 437, 439 - The first proviso to Section 437 facilitates a court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm - This has to be applied while considering release on bail either by the Court of Sessions or the High Court, as the case may be. (Para 58)

Code of Criminal Procedure, 1973 ; Section 41(1)(b)(i) and (ii) - Notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present - Both the elements of 'reason to believe' and 'satisfaction qua an arrest' are mandated and accordingly are to be recorded by the police officer - Referred to (Para 27)

Code of Criminal Procedure, 1973 ; Section 41 - Scope - Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. (Para 21 -23)

Code of Criminal Procedure, 1973 ; Section 87-88 - Courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued- Issuing non-bailable warrants as a matter of course without due application of mind against the tenor of the provision - Referred to Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1. (Para 31-32)

Code of Criminal Procedure, 1973 ; Section 167(2) - Limb of Article 21 - A duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of suspect. Such a right cannot be taken away even during any unforeseen circumstances. (Para 34)

Code of Criminal Procedure, 1973 ; Section 170 - Scope and ambit - Referred to Siddharth v. State of U.P., (2021) 1 SCC 676. (Para 36)

Code of Criminal Procedure, 1973 ; Section 204 - Issuing a warrant may be an exception in which case the Magistrate will have to give reasons. (Para 37)

Code of Criminal Procedure, 1973 ; Section 209 - Power of the Magistrate to remand a person into custody during or until the conclusion of the trial - Since the power is to be exercised by the Magistrate on a case-to-case basis, it is his wisdom in either remanding an accused or granting bail. (Para 38)

Words and Phrases - Trial - An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter - Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the Court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors - An appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. (Para 7)

Words and Phrases - Bail - A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. 9. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial - Bail is the rule and jail is the exception. (Para 8-12)

Criminal Trial - Presumption of innocence- Onus on the prosecution to prove the guilt before the Court -The agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied - Presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. (Para 13-18)

Constitution of India, 1950 ; Article 21 - Whatever may be the nature of the offence, a prolonged trial, appeal or a revision against an accused or a convict under custody or incarceration, would be violative of Article 21 - Right to a fair and speedy trial is a facet of Article 21 (Para 40 -41)

Code of Criminal Procedure, 1973 ; Section 309 - Bail - While it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. (Para 41)

Code of Criminal Procedure, 1973 ; Section 389 - "Presumption of innocence" and "bail is the rule and jail is the exception" may not be available to the appellant who has suffered a conviction - The power exercisable under Section 389 is different from that of the one either under Section 437 or under Section 439 of the Code, pending trial- Delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436A of the Code among other factors ought to be considered for a favourable release on bail. (Para 42-44)

Code of Criminal Procedure, 1973 ; Section 436A - The word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending - In a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.(Para 46)

Code of Criminal Procedure, 1973 ; Section 436A - The word 'shall' clearly denotes the mandatory compliance of this provision - There is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused - While taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. (Para 47)

Interpretation of Statutes - While dealing with a welfare legislation, a purposive interpretation giving the benefit to the needy person being the intendment is the role required to be played by the court. ( Para 57)

References:

1. https://timesofindia.indiatimes.com/blogs/straight-candid/part-6-indias-bail-jurisprudence-need-for-urgent-comprehensive-revamp/

2. https://www.livelaw.in/top-stories/supreme-court-41a-crpc-non-compliance-bail-satender-kumar-antil-vs-central-bureau-of-investigation-2022-livelaw-sc-577-203486