Bare Acts

BAIL COMMENTARY

Published On: Nov 12, 2021

Chapter 1

Bail

Concept of Bail	1
Supreme Court Guidelines for Bail Application	1
Bail Systems: Need for Reforms	3
Definition	5
Grant of Bail is a Rule	11
Purpose Behind Bail	11
Provision for Bail: Section 438 of Criminal Procedure Code	11
Speedy Trial	11
Pre-trial Release	12
Liberalisation of Bail System	12
For the Needy and Poor	12
Concluding Observations	13
Why Bail should be Granted ?	14
Factors to be considered in Grant of Bail	14
Bail in Bailable Offence: Principle	15
Delay in Conclusion of Trial	15
Application for Bail: No Elaboration of Case	16
Who Can Stand Surety and Quantum of the Surety	17
Liability of Surety	18

CONCEPT OF BAIL

The concept of bail has a long history in English Common Law. As far back as 1689 in the Bill of Rights, English Parliament held that bail must be reasonable - A principle which was later incorporated into the American 8th Amendment to the Constitution.

The concept of bail comes out into the view from the clash between the State's power to restrict and deprive the liberty of a man who allegedly have committed a crime and the presumption of guileless or deceitful in his favour.

The concept of bail was elaborated by Supreme Court in the year 2000 in case of Sunil Fulchand Shah v. Union of India, MANU/SC/0109/2000 : AIR 2000 SC 1023:

"Bail is well understood in criminal jurisprudence and Chapter XXXIII of Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive contract could still be exercised through the conditions of the bond secured from him. The literal meaning of the word "bail" is surety.

Supreme Court Guidelines for Bail Application

State of U.P. through C.B.I, v. Amarmani Tripathi, MANU/SC/0677/2005 : (2005) 8 SCC 21: AIR 2005 SC 3490

1. The matters to be considered in an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed an offence;

(ii) nature and gravity of the charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of accused absconding or fleeing if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with; and

(viii) danger, of course, of justice being thwarted by grant of bail [See Prahlad Singh Bhati v. NCT, Delhi, MANU/SC/0193/2001 : (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Administration), AIR 1978 SC 179]. While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

Principles relating to grant or refusal to Bail in Kalyan Chandra Sarkar v. Rajesh Ranjan, MANU/SC/0214/2004 : (2004) 7 SCC 528: 2004 SCC (Cri) 1977 it was held that: "The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the 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.

(c) Prima facie satisfaction of the court in support of the charge. [See Ram Govind Upadhyay v. Sudarshan Singh, MANU/SC/0203/2002 : (2002) 3 SCC 598: 2002 SCC (Cri) 688 and Puran v. Rambilas, MANU/SC/0326/2001 : (2001) 6 SCC 338: 2001 SCC (Cri) 1124]."

Bail Systems: Need for Reforms

Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, MANU/SC/0119/1979 : AIR 1979 SC 1360: (1980) 1 SCC 81

The bail system, as it operates today, is a source of great hardship to the poor and if we really want to eliminate the evil effects of poverty and assure a fair and just treatment to poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich, to obtain pretrial release without jeopardizing the interest of justice.

It is high time that our Parliament realises that risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing. Ours is a socialist republic with social justice as the signature tune of our Constitution and Parliament would do well to consider whether it would not be more consonant with the ethos of our Constitution that instead of risk of financial loss, other relevant considerations such as family ties, roots in the community, job security, membership of stable organisations etc., should be the determinative factors in grant of bail and the accused should in appropriate cases be released on his personal bond without monetary obligation. Of course it may be necessary in such a case to provide by an amendment of the penal law that if the accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action. But even under the law as it stands today the courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties. That concept is outdated and experience has shown that it has done more harm than good. The new insight into the subject of pre-trial release which has been developed in socially advanced countries and particularly the United States should now inform the decisions of our Courts in regard to pre-trial release. If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond it can safely release the accused on his personal bond. To determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. the length of his residence in the community;

2. his employment status, history and his financial condition;

3. his family ties and relationships;

4. his reputation, character and monetary condition;

5. his prior criminal record including any record or prior release on recognizance or on bail;

6. the identity of responsible members of the community who would vouch for his reliability;

7. the nature of the offence charged and the apparent probability of conviction and the likely sentence insofar as these factors are relevant to the risk of non-appearance; and

8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.

If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the Court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the Court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc., may prevail with the court in releasing the accused on his personal bond had particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the Court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond. Moreover, when the accused is released on his personal bond, it would be very harsh and oppressive if he is required to satisfy the Court - and what we have said here in regard to the court must apply equally in relation to the police while granting bail -that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. We have no doubt that if the system of bail, even under the existing law, is administered in the manner we have indicated in this judgment; it would go a long way towards relieving hardship of the poor and to help them to secure pre-trial release from incarceration.

Definition

Wharton's Law Lexicon, 15th Edn., 2009, p. 161 defines "bail" as to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc., the legal power to deliver him.

The Black's Law Dictionary, 7th Edn., p. 135 defines "bail" as a security such as cash or a bond, especially security required by court for the release of a prisoner who must appear at a further time.

Webster's Dictionary of Law, Indian Edn., 2005, p. 41 defines "bail" as a temporary release of a prisoner in exchange for security given for the prisoner's appearance at a later hearing.

However, the bail is a generic term which means the judicial release from custody i.e., prevention of unnecessary deprivation of personal liberty. It signifies a security for the appearance of a prisoner for his release.

It is a mode of release of a prisoner known as Zamanat and Muchalka. The former is a form of judicial release for a security with sureties. The latter is a penal bond. It is the duty and function of the community to secure the presence of the prisoner for incarceration. Thus the State involves participation of the community in the administration of justice. Thus bail means the accused is to be assured of the beneficial enjoyment of regulated freedom. The release of an accused on bail in a criminal case after furnishing the required bond is recognised as the fundamental aspect of human rights.

The Code of Criminal Procedure, 1973 lays down the norms of granting of bail and bonds in sections 436 to 450. But there is no definition of the word 'bail' in the Code of Criminal Procedure, 1973. The offences are however, classified as 'Bailable' and 'Non-bailable'.

Section 2(a) of the Code of Criminal Procedure, 1973, reads as under:

"bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence.

The word "bail", as is commonly understood, is comprehensive enough to cover release on one's own bond, with or without sureties.

Section 2(c) of the Code of Criminal Procedure, 1973 defines "cognizable offence"(where police can arrest without warrant) and "cognizable case" as:

'Cognizable offence' means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule (of Cr. P.C.) or under any other law for the time being in force, arrest without warrant. Section 2(x) of the same Code defines "warrant case" as:

"Warrant case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

The grant, refusal or cancellation of bail, is a judicial act and has to be performed with judicial care after giving serious consideration to the interest of all the parties concerned.

An order under section 438 of Criminal Procedure Code is a device to secure the individual's liberty. It is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. Normally a direction should issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such 'blanket order" should not be passed as it would be served as a blanket to cover or protect any and every kind of allegedly unlawful activity Parvinderjit Singh v. State (U.T. Chandigarh), 2008 AIR SCW 7611.

Repetition or perpetration of an offence and to secure the presence of the undertrial at the trial are the essential ingredient to put an accused in detention but such noble concept and the objective of law has to be accomplished subject to a man's right to liberty viz. freedom which leads us to the consideration of fundamental rights which is the pulse of our heart. Article 21 of the Constitution of India provides complete safeguard to every Indian Citizen, irrespective of caste, colour, creed-the rich and the poor alike for the protection of life and personal liberty. The said article reads as under:

"No person shall be deprived of his life and personal liberty except according to procedure established by law."

The article 21 viz. right to life and personal liberty is most important than other rights mentioned in articles 19-20 and 22 of the Constitution. The main interpretation of this article infers that when the bail is denied then the personal liberty of an accused is refused. Hence, when a large number of bail cases come to the higher court, the court interprets them in the light of article 21.

The matter of bail is not merely a procedural right but a substantive fundamental right as enshrined in article 21 of the Constitution of India.

The Supreme Court interpreted the provisions under article 21 of the Constitution in matter of State of Kerala v. Raneef, MANU/SC/0001/2011 : AIR 2011 SC 340 in respect of bail:

"In deciding bail application 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.

22. Protection against arrest and detention in certain cases.-

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply-

(a) to any person who for the time being is an enemy alien; or

(b) to any person who is arrested or detained under any law providing for preventive detention.

(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-

(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under subclause (b) of clause (7); or

(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

The article 22 reads the protection against arrest and detention in certain cases which envisages the rights of the arrestee after he is being arrested. This article consists of two parts. Clauses (1) and (2) apply to persons arrested or detained under a law otherwise than a preventive detention law and the clauses (4) to (7) apply to persons arrested or detained under a preventive detention law. The provisions of article 21 may also supplement the various requirements laid down in article 22. The information about the grounds of arrest is mandatory under clause (1) of article 22:

Hence any procedure dealing with bail is measured in the light of provisions of articles 21 and 22 of the Constitution of India. Therefore, the matter of bail is to be considered in the light of right of accused but not as the totally discretion point.

In case of A.K. Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27 the Supreme Court observed that articles 20, 21 and 22 of Constitution of India are primarily connected with penal enactments or other law under which personal safety or liberty of person would be taken away in the interests of the society and then set down the limits within which State control should be exercised. Articles 20, 21 and 22 on the other hand do not make use of the expression "freedom" and they lay down the restrictions that are to be placed on State control where an individual is sought to be deprived of his life or personal liberty.

In case of Joginder Kumar v. State of Uttar Pradesh, MANU/SC/0311/1994 : AIR 1994 SC 1349: (1994) 4 SCC 260: (1994) 3 SCR 661: 1994 Cr LJ 1981, the Supreme Court in the realm of the articles 21 and 22 of the Constitution of India has given directions about the arrested person in the light of his fundamental rights. For the effective enforcement of these fundamental rights, the Supreme Court issued the following requirements:-

(1) An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.

(2) The Police Officer shall inform the arrested person when he is brought to the police station of this right.

(3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from articles 21 and 22(1) and enforced strictly.

Further the Court directed that it should be the duty of Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons found in the various police manuals.

Information about grounds of arrest to accused person is mandatory under clause (1) of article 22 of Constitution of India, A.K. Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27; Hansmukh v. State of Gujarat, AIR 1981 SC 28.

In Rupesh Kantilal Savla v. State of Gujarat, MANU/SC/2569/2000 : (2000) 9 SCC 201, the right of a prisoner under article 22(5) was held to be infringed.

The facts were that there was an inexplicable delay when the person detained made a representation. But it was not disposed of earlier. Therefore, the detention order was set aside.

Grant of Bail is a Rule

The Supreme Court of India observed that "grant of bail is a rule and refusal to bail is an exception". In State of Rajasthan v. Bal Chand, MANU/SC/0152/1977 : AIR 1977 SC 2447: (1977) 4 SCC 308: (1978) 1 SCR 535, the Supreme Court had observed that "the normal rule is bail and not jail". The judicial discretion exercised in granting bail is neither perverse nor erroneous rather they are based on relevant considerations supported by the reasons.

Purpose Behind Bail

The principal purpose of bail is to ensure that an accused person will return for trial if he is released after arrest.

At the pre-trial stage, every accused person is presumed to be innocent until the matter is finally disposed of by a competent Court. Simply because a person has been charged with an alleged offence, he does not lose his right to protection of life and personal liberty. He has, till the final disposal of the case against him, the same right as enjoyed by any other citizen under the Constitution of India, and other provisions of the law of the land. That is why various High Courts and the Supreme Court of India have held in their judgments that "grant of bail is a rule and refusal is an exception".

The main purpose behind the grant of bail is that the consequences of long detention of the pre-trial accused persons (who are presumed to be innocent as any other citizen) is very grave.

Provision for Bail: Section 438 of Criminal Procedure Code

The salutary provision contained in section 438 of Cr. P.C. was introduced to enable the court to prevent the deprivation of personal liberty. It cannot be permitted to be jettisoned on technicalities such as "the challan having been presented anticipatory bail cannot be granted". Ravindra Saxena v. State of Gujarat, MANU/SC/1902/2009 : AIR 2010 SC 1225.

Speedy Trial

In A.K. Antulay v. R.S. Nayak, MANU/SC/0326/1992 : (1992) 1 SCC 225: AIR 1992 SC 1701: 1992 Cr LJ 2717, the Supreme Court advocated for the speedy trial on the following lines:-

(a) the period of remand and pre-conviction detention should be as short as possible;

(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial, should be minimised; and

(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.

Pre-trial Release

It was held in the case of Hussainara v. Home Secretary, State of Bihar, MANU/SC/0121/1979 : AIR 1979 SC 1369: (1980) 1 SCC 98: (1979) 3 SCR 532, that the pre-trial release on personal bond i.e., without surety should be allowed where the person to be released on bail is indigent and there is no substantial risk of his absconding.

LIBERALISATION OF BAIL SYSTEM

For the Needy and Poor

Taking into consideration the conservative approach by the subordinate judiciary, the Supreme Court in some of its judgments made a rigorous analysis and laid down guidelines, while considering the grant of bail to the accused persons belonging to all walks of life. In Moti Ram v. State of Madhya Pradesh, (1979) 1 SCR 335: AIR 1978 SC 1549: (1978) 4 SCC 47, the Supreme Court subjected the relevant bail provisions to rigorous analysis, and by a process of close legal reasoning, succeeded in expanding and liberalising the age-old concept of bail so as to make them more responsive to the needy and the poor.

While coming to the conclusion in regard to grant of bail more meaningful, practical and more useful for each and every citizen including the butcher, the baker, the candle stick maker, the bonded labour and the pavement dweller, the Supreme Court addressed itself to three main issues:-

(i) Whether a person charged with a bailable offence can be released on his own bond without sureties.

(ii) In case the bail is granted with sureties, what should be the criteria for quantifying the amount of bail ?

(iii) Whether a surety can be rejected simply because he or his estate is situated in a different district or a State of the country.

In this case, the Magistrate directed the petitioner (Moti Ram) a poor mason to furnish sureties for Rs. 10,000. Reacting on the arbitrary approach of the said Magistrate, the Supreme Court observed "It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000.

.....To add insult to the injury, the Magistrate has demanded sureties from his own district. What is a Malayalee, Kannadiga, Tamilian or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk?... Equality before the law implies that even a Vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. We mandate the Magistrate to release the petitioner on his own bond in a sum of Rs. 1000.

The Supreme Court ends this judgment with the following observations:-

"The best guarantee of presence in court is the reach of the law, not the money tag."

A parting thought:

"If the indigents are not to be betrayed by the law including the Bail law, rewriting of many processus laws is an urgent desideratum and the judiciary will do well to remember that the geographical frontiers of the Central Codes cannot be disfigured by cartographic dissection in the name of language or province."

Concluding Observations

The Supreme Court considered at length the legal literature, both Indian and Anglo-American, and came to the conclusion that bail loosely used is comprehensive enough to cover release on one's own bond with or without sureties. The following observations of the Supreme Court are worth noting:

"Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom, and individual's rights, we hold that the bail covers both, release on one's own bond with or without surety. When surety should be demanded and what sum should be insisted on, are dependant on variables."

Why Bail should be Granted ?

As has already been discussed above, grant of bail is a rule and refusal to bail is an exception. Moreover, every accused person is presumed to be innocent until the final decision of the Court holding him guilty of the charge/charges made against him. There is no doubt that a person accused of certain charges, if not released on bail, certainly faces many handicaps to prove his innocence besides carrying a constant stigma in the society. Therefore, consequences of pre-trial detention are grave and are in gross violation of articles 14 and 21 of the Constitution of India and against all the principles of equity, fair play and natural justice.

The research and study by various agencies has shown that out of two thousand accused persons released on bail, less than one per cent failed to appear before the Courts when required.

If the accused person, who is presumed to be an innocent person at pre-trial stage, is not granted bail, he would lose his goal if he has one. In that situation, his career will be in jeopardy and all the members of his family will face starvation without any valid reason whatsoever. Burden of detention, therefore, falls heavily on the innocent members of his family.

The accused person under detention, will also not be able to prepare his defence against the State or the complainant, who are his unequal adversaries. If he is released on bail, he would be in a better position to prove his innocence.

Moreover, the public exchequer has to bear the cost of maintaining the accused person in jail. All the accused persons while under detention, have to be provided with all the basic 'necessities' and facilities, e.g. food, clothing, shelter, medical treatment, etc., on government expense.

Therefore, the accused persons who have deep roots in the society and are not likely to abscond, should invariably be released on bail by the courts.

Factors to be considered in Grant of Bail

Accused has committed heinous crime of killing an old helpless lady by strangulation. Bail could not be granted. It was also held that factors are to be considered in granting the bail, Prasanta Kumar Sarkar v. Ashis Chatterjee, MANU/SC/0916/2010 : AIR 2011 SC 274.

In case of State of Maharashtra v. Dhanendra Shriram Bhurle, MANU/SC/0165/2009 : AIR 2009 SC 1706 it was held that it is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail viz:

(a) The nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant;

Bail in Bailable Offence: Principle

In Rasiklal v. Kishore Khanchand Wadhwani, MANU/SC/0255/2009 : AIR 2009 SC 1341 it was observed that:

"In case of bailable offence there is no question of discretion in granting bail."

Delay in Conclusion of Trial

In case of State of Kerala v. Raneef MANU/SC/0001/2011 : AIR 2011 SC 340 it was observed that in granting the bail the delay in conclusion of trial is an important factor to be considered.

In general practice the discretion in granting bail is exercised judicially and not arbitrarily and the court avoids elaborate documentation of merits as well as the detailed examination of evidence. On the other hand the court sees the prima facie of the case and it does not weigh the evidence at this stage. At the instance of a private party where the lower court, particularly the sessions judge in exercise of his discretion grants bail to an accused in a cognizable case, the High Court does not interfere with that order in revision, unless the discretion is capriciously or arbitrarily exercised and the state has not filed any revision against that order.

The High Court in normal practice exercises its jurisdiction and discretion under section 439 of the Code of Criminal Procedure, 1973 and does not confine its attention only to the question whether other circumstances affects the question of granting bail to the person having committed crimes of grave and serious nature. But section 439 has given wide powers to the High Court as well as to the Court of Session to grant bail. The jurisdiction of the High Court under section 439, is not merely revisional but concurrent with that of subordinate Magistrate trying the case. The bail being a matter of judicial discretion vested in court, no court is bound by the decision of another court and the possibility of different conclusions being reached by different court on the same facts in the same circumstances cannot be ruled out as the principle analogous to res judicata is not applicable to bail applications. So far as the limitation of the discretion of the court in granting the bail is concerned the Court of Session and High Court have ample jurisdiction to entertain the bail application even if the offence is punishable with death or imprisonment for life and in a fit case, subject to other governing factors and there is no limitation in exercising the discretion in favour of granting the bail. But the general prevailing rule in the matter of bailable and non-bailable offence is that a person accused of a bailable offence has a right to be released on bail and grant of bail in case of non-bailable offence is the matter of discretion of Court.

Application for Bail: No Elaboration of Case

Though detailed examination of 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 the order, reasons for prima facie concluding why bail being granted particularly where an accused was charged of having committed a serious offence. The position is not different when the application is made during pendency of an appeal after conviction has been recorded. Bhuvaneshwar Yadav v. State of Bihar, MANU/SC/8329/2008 : AIR 2009 SC 1452.

In case of Lokesh Singh v. State of Uttar Pradesh, MANU/SC/8138/2008 : AIR 2009 SC 94 it was observed that:

"While dealing with an application for bail 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. Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet giving reasons is different from discussing merits or demerits".

Who Can Stand Surety and Quantum of the Surety

Any person who has the capacity, control and competence to produce the accused in case of non-appearance or to pay the amount of the surety, can be accepted by the Court for the purpose.

There is no specific provision which lays down the exact amount, which the surety is required to pay, in case the Court decides to grant bail to the accused person. The courts are given discretion to fix a reasonable amount judiciously. Whenever cases of unreasonable and arbitrary amounts of surety fixed by the trial Court are brought to the notice of the higher judiciary including the Supreme Court of India, these courts after examining the specific case brought before them have not hesitated in laying down the norms in regard to the quantum of the surety.

In the case of Moti Ram v. State of Madhya Pradesh, (1979) 1 SCR 335: AIR 1978 SC 1549: (1978) 4 SCC 47 it was observed by the Hon'ble Supreme Court of India:

"It shocks one's conscience to ask a mason, like the petitioner to furnish sureties for Rs. 10,000. The Magistrate must be given benefit of doubt for not fully appreciating that our Constitution by "WE THE PEOPLE OF INDIA" is meant for the butcher, the baker and the candle stick maker........ shall we add the bonded labour and the pavement-dweller."

It was further observed that a surety may not be from his own district of an accused person. In a difficult situation wherein a Telugu or Tamil speaking people is if arrested for an offence in Pahalgam or Bastar or Port Blair or Chandni Chowk he may or cannot have sureties owning properties in these distant places since may not know any one there. Article 14 of the Constitution of India protects all Indians qua.... Indian within the territory of India. Swaraj is made of united stuff. In this case the Magistrate directed a poor person (a mason) to give surety for Rs. 10,000 for a petty offence and that to a surety from his own district. The Supreme Court passed the following order:

"We mandate the Magistrate to release the petitioner on his own bond in a sum of Rs. 1,000."

Liability of Surety

The most essential element of the bail order is for ensuring the attendance of the accused in the court whenever required. In fact, that is the hub of the order and the other conditions are only subsidiary thereto. So long as that core postulate remains unchanged a surety cannot take advantage of any subsequent modification effected in respect of any other conditions. If a surety is not agreeable to abide by the modified conditions he must apply to the court under section 444(1) of the Code of Criminal Procedure, 1973 to discharge him. Until the surety is discharged he is bound by the bond and any modification or even deletion of a condition of the order cannot absolve him from his liability in respect of the unaltered conditions; Mohammad Kanju v. State of Karnataka, MANU/SC/0696/1999 : AIR 2000 SC 6: (1999) 8 SCC 660: 2000 Cr LJ 165: (1999) 6 SCALE 693.

Purpose Behind Bonds taken from Sureties:

(a) Section 71 of the Code of Criminal Procedure, 1973: A person can be released from custody only on executing the bond with adequate sureties after the arrest of a person whenever a bailable warrant is issued by a court under this section. The words used in this section are: "Any court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant. The endorsement shall state the number of sureties, the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound, and the time at which he is to attend before the Court whenever security is taken, the officer to whom the warrant is directed shall forward the bond to the Court.

(b) Sections 106, 108, 109, 110 of the Code of Criminal Procedure, 1973 to ensure good behaviour and for keeping the peace from the respondent against whom the security proceedings are instituted, a bond may be required to be executed by the sureties.

(c) Section 117(c): If, upon such inquiry, (as mentioned in section 116 of the Code of Criminal Procedure, 1973), it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly by providing that-

(a) ***

(b) ***

(d) Section 448 of the Code of Criminal Procedure, 1973; when the person required by any court, or officer to execute a bond is a minor, such court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only.

(e) Section 169 of the Code of Criminal Procedure, 1973: If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.

Case Law:(1) If at the stage of grant or refusal of anticipatory bail, certain aspects of the case are considered but later if the investigative agency files a report under section 169, it is difficult to perceive that such a step would amount to interference with the administration of justice. Satish Sharma v. State of Gujarat, MANU/SC/1103/2002 : AIR 2003 SC 648: (2002) 10 SCC 323: (2003) SCC "(Cri) 1442.

In granting bail each case has to be considered on its own merits. No strait-jacket formula can be laid down for universal application, Pravinbhai Kashirambhai Patel v. State of Gujarat, MANU/SC/0460/2010 : AIR 2010 SC 3511.

(f) Section 424(1)(b) of the Code of Criminal Procedure, 1973: When an offender has been sentenced to fine only and to imprisonment in default of payment of fine and the fine is not paid forthwith, the court may suspend the execution of the sentence of imprisonment and release the offender, on the execution by the offender, of a bond, with or without sureties, as the court thinks fit, conditioned for his appearance before the court on the date or dates on or before which payment of the fine or the installment thereof, as the case may be, is to be made and if the amount of fine or of any installment, as the case may be, is not realized on or before the latest date on which it is payable under the order, the court may direct the sentence of imprisonment to be carried into execution at once.

(g) Sections 436, 437, 438, 439 of the Code of Criminal Procedure, 1973: The court may take a bond from one or more sureties to ensure that the released person attends and appear before the court, whenever a bail is granted under these sections at the time and place mentioned in the bond.

Chapter 2

Bail, Parole, Furlough

Bail	21
Parole	22
Difference between Release on Parole and Release on Furlough	22
Furlough	23
Discretionary Powers of the State on Furlough		24
Parole and Furlough Distinguished		24
Part I (Parole)		25
Part II (Furlough)		25
Suspension of Sentence Pending Appeal		27
Suspension of Sentence of Convict Pending Appeal		27

BAIL

Different concepts such as parole and furlough bail etc., are used in different states to denote grant of leave or emergency release to a prisoner from prison. The word and its meaning is not uniform and is thus confusing. There is also no uniformity with regard to either the grounds on which leave is sanctioned or the level of authority empowered to sanction it. There is also a lot of diversity in the procedure for grant of leave. The status at which these leaves are granted also differ from State to State. In some States parole is granted for a period extending upto a fortnight while in other States it is restricted to ten days only.

Sometimes, the word 'bail' is confused with the word 'parole'. Actually bail is entirely different from parole. Both stand on different footing and thus are not synonymous to each other.

In this connection, the observations made in Halsbury's Laws of England (IV Edition, Vol. II para 166) may be of great help:

"...the effect of granting bail is not to set the defendant (accused) free, but to release him from the custody of law and to entrust him to the custody of his (sic) who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned."

Though the word 'bail' has not been defined as such in the Code of Criminal Procedure, 1973, yet it certainly needs to be explained for the sake of clarity and understanding. The explanation given in the Halsbury's Laws of England as stated above, seems to be quite sufficient. Bail, therefore, does not mean getting the accused at liberty but it is only a process to release him to the custody of his sureties, who undertake to produce him whenever required by the court at the pre-trial stage.

Bail is not a guarantee of complete freedom. In certain circumstances, the court while granting the bail, imposes certain conditions on the accused persons and in the event of violating those conditions, the court is quite competent to cancel the bail and discharge the sureties.

PAROLE

The meaning and concept of parole has been changing from time to time. In its literal meaning, the word "parole", means formal promise or a word of honour. Bail is generally granted at the pre-trial stage, but parole is granted after the passing of sentence and while undergoing imprisonment in the jail.

It, therefore, means a mere suspension of sentence for the time being.

Parole thus signifies the release of a prisoner from jail for a short period, and is granted on a promise or undertaking given by the concerned prisoner that he will not escape after being released from the jail. He is also duty bound to come back after the stipulated period to undergo the remaining sentence again.

Parole may be granted by way of temporary release as contemplated by section 12(1) or section 12(1A) of COFEPOSA. The detenu has to approach to government for securing release on parole. And the bar of judicial intervention does not affect jurisdiction of High Court under article 226 or of Supreme Court under articles 32, 136, 142 of Constitution of India.

Difference between Release on Parole and Release on Furlough

In case of Avtar Singh v. State of Haryana, MANU/SC/0108/2002 : AIR 2002 SC 1109 the Court observed that a prisoner released on parole and prisoner released on furlough for counting period of release towards total period of sentence of imprisonment are separately categorized in separate laws. A prisoner released on furlough is more rigorous than release on parole. A prisoner released on parole to meet his urgent pressing personal problem is not entitled for counting period of release towards total period of sentence of imprisonment.

D.R. Tapt in his book Criminology (at pages 604-625) defines parole in the following words:-

"To all prisoners, parole means relative freedom from walls, commands and isolation and monotonous routine and from association almost exclusively with a horde of other moral outcasts.

Paroles can give a somewhat more normal life than they have lived in prison. They re-achieve names instead of numbers........There is some sort of home without bars and a family or restaurant meals which may be something of a social as well as gastronomical event. ...The geographical horizon is no longer hemmed in by walls with armed guards and the outlines of cell blocks. The parole may see a somewhat different scene every day. There are probably better beds, fewer unpleasant odours, foodless nutritions, perhaps but what the man likes within the restriction of his purse free access to newspapers, and clothing which somewhat express the personality instead of slouchy uniforms and caps. The ex-prisoner is free and that freedom is intoxicating." Sunil Fulchand v. Union of India, (2005) 1 SCC 605 describes parole in a wider sense. The Constitution Bench by a majority held that parole is essentially an executive function and now it has become an integral part of our justice delivery system as has been recognized by courts. It is a temporary arrangement by which a prisoner is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and thus needs to be counted towards the total period of detention unless the rules, instructions or terms of grant of parole, prescribe otherwise.

A strong case, therefore, exists to liberalize this provision not so much for the liberty from the prison but for the greater social good. Reference may also be made in Suresh Chandra v. State of Gujarat, (1976) SCC (Cri) 654: AIR 1976 SC 2462, and Krishan Lai v. State of Delhi, (1976) SCC (Cri) 655: AIR 1976 SC 1139, in which the penological innovation in the shape of parole to check recidivism, apart from it being connected with rehabilitation was taken note of and use of the same was recommended.

FURLOUGH

Though Bail, Parole and Furlough are interlinked with each other, yet they have different meanings, in the eyes of law. Bail is generally granted by a court whereas Parole and Furlough are granted by the State as per rules and regulations or the guidelines laid down by the executive authority from time to time. If there is any arbitrariness in the rules framed for the grant of parole or furlough, the said rules can be challenged by the affected persons in a court of law.

Discretionary Powers of the State on Furlough

While using its discretionary powers, the State must act fairly, reasonably and uniformly. In Charanjit Lal v. State, DLT 1985 (28) 92: 1985 Cr LJ 1541, the High Court of Delhi dealt with this matter at length and made valuable observations. It was held that even though the Government is the exclusive authority to grant remission yet its orders are liable to be challenged in a court of law if the orders are vitiated by the voice of arbitrariness or discrimination and may be hit by Article 14 of the Constitution.

It was further observed by the Hon'ble High Court that it is basic to our Constitution that all public powers including Constitutional powers should never be exercised arbitrarily or mala fide. The discretionary powers used by the Government must, therefore, be in conformity with the well-settled principles keeping in mind the letter and spirit of the law of the land.

In case of State of Maharashtra v. Suresh Pandurang Darvakar, MANU/SC/8099/2006 : AIR 2006 SC 2471 the release of respondent was objected by District Magistrate/Superintendent of Police on ground of public peace and tranquility. Releasing him on furnishing surety amount lying in deposit with jail authorities was held as improper.

Parole and Furlough Distinguished

While parole can be granted to the prisoner detained in a prison-house under any offence whatsoever and irrespective of duration of the imprisonment, awarded to him, Furlough can be granted only in those cases where a prisoner has been sentenced to long imprisonment, i.e., five years and more.

Here are some relevant portions of a letter No. F. 18/ (27)/55-Home, dated 7th March, 1958 as amended by letter No. F. 18/59/62-Home, dated 16th September, 1963 of the Delhi Administration to the Inspector-General of Prisons, from which the learned readers will be able to understand the distinction between Parole and Furlough more clearly.

Part I (Parole)

(i) A prisoner may be released on parole for such period as the Chief Commissioner of Delhi, may order. Parole shall be admissible for:-

(a) seeing any sick or dying member of the family;

(b) any other sufficient cause, such as marriage of the prisoner, or any other member of the family, i.e., son, daughter, sister, brother, etc. etc.;

(d) for repairs to a badly damaged house.

(ii) The period spent on parole will not count as part of the sentence.

Part II (Furlough)

1. (i) A prisoner who is sentenced for 5 years or more rigorous imprisonment and who has actually undergone three years imprisonment excluding remission may be released on furlough. The first spell may be of three weeks and subsequent of two weeks each per annum provided that:

(a) his conduct in jail has been good, he has earned three good conduct remissions, and provided further that he continues to earn good conduct remissions or maintains good conduct;

(b) he is not a habitual offender;

(d) he is not such a person whose presence is considered highly dangerous or prejudicial to the public peace and tranquillity by the District Magistrate of his home district.

(ii) The period of furlough will count as sentence undergone except any such period during which the prisoner commits an offence outside.

2. [xxx]

3. [xxx]

4. The period of furlough will be treated as a part of the sentence undergone in jail.

From the above guidelines in regard to Parole and Furlough, it is now clear that they are quite distinct in their nature, scope and content. While a prisoner can be released on parole when he is undergoing a sentence or imprisonment for any offence whatsoever and irrespective of the duration of imprisonment awarded to him, furlough can be granted only in those cases where a prisoner has been sentenced for long imprisonment, i.e.,

five years or more......one of the postulates which must weigh with the authorities while granting furlough is that the prisoner's release will not be hazardous or prejudicial to the public peace and tranquillity, as observed by the High Court of Delhi in its judgment in Charanjit's case mentioned above. It will be a fruitful exercise for the learned readers to go through this judgment seriously.

The Concise Oxford Dictionary has defined the Parole as "the release of a prisoner temporarily for a special purpose or completely before the expiry of sentence, on the promise of good behaviour, such a promise, a word of honour."

Whereas according to the Concise Oxford Dictionary "furlough means a leave of absence especially granted to a member of the services or to a missionary."

In case of State of Haryana v. Mohinder Singh, MANU/SC/0073/2000 : (2000) 3 SCC 394: AIR 2000 SC 890: (2000)1 SCR 698: 2000 Cr LJ 1408, the Supreme Court in comparing these two terms observed that "furlough" and "parole" are two different terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. These two terms have acquired different meanings in the statute with varied results. Dictionary meanings, therefore are not quite helpful. In this respect it may be said that different States have their own Acts on the issue viz., Good Conduct Prisoners (Temporary Release) Acts and the provisions are made about the circumstances where the prisoners can be granted the parole or furlough. Furlough is granted for no particular reason, it can be denied in the interest of the society whereas Parole is to be granted only on sufficient cause being shown; State of Maharashtra v. Suresh Pandurang Darvarkar, MANU/SC/8099/2006 : (2006) 4 SCC 776: MANU/SC/8099/2006 : AIR 2006 SC 2471: 2006 Cr LJ 3279: (2006) 4 SCALE 325.

Moreover the terms bail, furlough and parole have different connotations. Bail is well understood in criminal jurisprudence. The provisions of bail are contained in Chapter XXXIII of the Code of Criminal Procedure, 1973. It is granted by the officer-in-charge of a police station or by the court when a person is arrested and is accused of an offence other than a non-bailable offence. The court grants bail when a person apprehends arrest in case of a non-bailable offence or is arrested for a non-bailable offence after taking various factors viz., discretion of court, precedents, gravity of offence and the status of accused, etc. But the grant of parole is essentially an executive function and instances of release of detenues on parole were unknown until the Supreme Court and some of the High Courts in recent years made orders of release on parole on humanitarian grounds. Release on parole is a wing of the formative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. The term furlough is not wider as the term parole. Furlough is only a leave of absence allowed to a prisoner or accused. Generally parole is allowed to a very long term prisoner. The Supreme Court also interpreted the terms in State of Haryana v. Nauratta Singh, MANU/SC/0176/2000 : (2000) 3 SCC 514: AIR 2000 SC 1179: (2000) 2 SCR 246: 2000 Cr LJ 1710.

Suspension of Sentence Pending Appeal

The power is to be exercised under section 389 of Cr. P.C. only after careful consideration of relevant aspects. Mere fact of grant of bail during trial and absence of its misuse is not sufficient to suspend sentence and grant bail; Anil Ari v. State of West Bengal, MANU/SC/0148/2009 : AIR 2009 SC 1564.

In case of Kanaka Rekha Naik v. Manoj Kumar Pradhan, MANU/SC/0073/2011 : AIR 2011 SC 799 it was observed that the release of convict on bail is not matter of course. The Appellate Court is required to record reasons in writing for suspending sentence and release of convict on bail pending appeal. See also Dinesh Kumar Sinha v. State of Jharkhand, AIR 2009 SC (Supp) 1084.

Suspension of Sentence of Convict Pending Appeal

The appellants were on bail during pendency of case before trial court. The trial court acquitted most of the accused persons charged for same offence except appellants. The appellants-accused while on bail were not shown to have indulged themselves in any offence either under provisions of Penal Code or any other statutes. They neither jumped the bail nor any way responsible for prolonging proceedings before trial court. Hence it was held that in facts and circumstances rejection of their application for bail and suspension of sentence by High Court was not proper. Angana v. State of Rajasthan, MANU/SC/0133/2009 : AIR 2009 SC 1669; Suzanne Louise Martin v. State of Rajasthan, MANU/SC/0045/2009 : AIR 2009 SC 1740; Ashok Kumar v. State, AIR 2009 SC 1922.

Chapter 3

Competent Authorities to Grant Bail

Sections 41, 42, 43 or 151 of the Code of Criminal Procedure, 1973 empowers the police to grant bail to persons arrested without a warrant or under a bailable warrant issued by a court or to appear before the Court where required.

Sections 436, 437, 438 and 439 of the Code of Criminal Procedure, 1973 empowers the Magistrates and Courts to grant bail to any person charged with a crime.

Section 339 of the Code of Criminal Procedure, 1973 gives the power to the State Government to deliver any person, detained under section 330 or 335, to the care of any relative or friend, only upon the application of such relative or friend and on his giving security to the satisfaction of such State Government. Thus the person so delivered shall in the case of a person detained under sub-section (2) of section 330 order such person to be delivered to such relative or friend, [section 339(1)(c)].

Chapter 4

Bail and Security

When one meanders across the Indian Legal System we find that there are twin principles, of social interests and individual and personal liberty which breathes through the mechanism of bail. Bail may be given to any person at any stage of trial. The following situations and circumstances would reveal as to whom bail may be given and from whom security may be taken:

A situation where person is under arrest.

A situation where persons who are sureties.

A situation where persons who are convicted by a court.

A situation where persons who are found to be lunatic or of unsound mind by the court

A situation where persons who are detained in private and police custody.

A situation where persons move the court to transfer the case.

A situation where persons against whom security proceedings are launched.

A situation where persons who are, during the trial of a case, in judicial custody.

A situation where persons move the court for anticipatory bail.

A situation where persons who are witnesses.

A situation where persons who are not accused.

A situation where persons who go in appeal against their sentence or conviction.

A situation where persons who are entrusted with custody of property.

The relevant sections in relation to the above mentioned points are:

Who is under arrest [see sections 41, 42, 43, 44, 109, 110, 151, 178, 180, 228, 345, 346 of the Code of Criminal Procedure, 1973].

Who stand as sureties [see sections 71, 106, 107, 108, 109, 110, 117 of the Code of Criminal Procedure, 1973].

Who are found lunatic or of unsound mind by the court [see sections 330-333, 335, 337, 338 and 339 of the Code of Criminal Procedure, 1973].

Who wants to transfer his Criminal case [see sections 406, 407, 408 of the Code of Criminal Procedure, 1973].

Who are entrusted with custody and disposal of property [see sections 451, 452 of the Code of Criminal Procedure, 1973].

Against whom security proceedings are launched [see sections 106 to 124].

Relevant cases pertaining to bail and security:

1. Kajal Dey v. State of Assam, 1989 Cr LJ 1209 (Gau) where there were no express allegations nor any incriminating material of evidentiary value was found in a case diary against the appellants in the First Information Report for which the police acted under section 41 of the Code of Criminal Procedure, 1973, it was held that bail should have been granted. The said section does not give powers to the police to act in arbitrary manner Only upon a sound suspicion, and not a mere suspicion, police must arrest a person.

2. Shivraj Singh v. State, 1975 All Cr Cas 362 where the accused was carrying a pistol and which was in a good condition at the time of his arrest, the arrest made by a private party was held to be valid, as according to section 43(1) of the Code of Criminal Procedure, 1973 and it was held that the trial cannot be contaminated or impaired on this count only.

3. Satish Chandra Ray v. Jadu Nandan Singh, ILR 26 Cal 748: A police officer must make a person know about the substance of the warrant which thereby means that an opportunity must be given to that person to read that warrant. Obviously, he must in possession of the warrant while making an arrest. It may be taken note that mere showing the warrant is not sufficient.

4. Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court the officer to whom the warrant is directed shall take such security and shall release such person from custody.

Chotey Lal v. Emperor, (1948) All LJ 35: MANU/UP/0031/1947 : AIR 1948 All 72 (74) is a case on the point as to where the power is conferred on the Court by the Code of Criminal Procedure, 1973 to take direct security from the person taken into custody.

5. Kadir Ali Dewan v. Wahab Ali, 1980 Cr LJ 507 (Gau).

A non-bailable warrant was issued by a Magistrate. There was non-compliance with the requirements of sections 111, 114, 116 in a proceeding under section 107 of the Code of Criminal Procedure, 1973. Besides there was an order of execution of interim bond without meeting the requirements of section 116 of the Code of Criminal Procedure, 1973. Held, the proceedings led to injustice and thus quashed.

6. Ambujuan v. State, 1973 Ker LT 23.

Although a police officer may of high rank, his report may not be equal to the judicial decisions. If an accused was of unsound mind and was sent to mental asylum on the report of the police, without a finding recorded by the Court as to his unsoundness of mind, it was held that an order of a Court would be vividly without jurisdiction.

Chapter 5

Bail in Non-Bailable Offence

Bail not Jail		32
Bail under section 437 of the Code of Criminal Procedure, 1973 is not a Matter of Right		33
Right to File Successive Bail Applications		39
Bail Once Granted cannot be Reviewed, Revised or Set Aside by the Same Court		40
Grounds to be Kept in Mind while Granting/Refusing Bail in Non-bailable Offence		40
Offence Relating to Military Affairs		40
Accused to be Granted Bail if in Custody for a Long Time		41
Delay in Trial Entitles the Accused to be Released on Bail		41
Merits of the Case not to be gone into while Granting/Refusing Bail		42
Facts and Circumstances of each case		42
Consideration and Interpretation of Bail Application		42
Limitations for Grant of Bail		43
Delay in Recovery of Weapon in Murder Charge		43
Considerations: Prima facie case		43
Ground of Arrest		44
Statutory Obligation of the Court to Record Reasons for Granting/Refusing Bail		45
Exceptional circumstances	45
Exceptional cases	45
Propriety of Grant of Bail	46
Detailed Examination of Evidence	46
Cryptic Order	46
Discretion of Court	46
Bail Order is Final Order and Not an Interlocutory Order	47
Bail Application to be Disposed of on the Same Day	47
Offence under MCOCA	48
Bail in NDPS case	48
Fake Encounter Case	49
Charge under Official Secrets Act	49
Stamp Paper Scam Case	49

Chapter 5

Bail in Non-Bailable Offence

Grant or refusal of bail is a very delicate matter and certainly needs a serious examination when the court decides against the accused person. Even the Code of Criminal Procedure 1973 speaks for the grant of bail because the liberty of a person 'is of great importance and is a fundamental right of every citizen guaranteed under the Constitution of India.

There is indeed no mathematical calculation by Which a judge, before whom the accused is produced, is to be guided by the said principles of law. Bail in a bailable offence is, of course, a matter of right and there is no difficulty for the police or the judicial officer to release the accused person on bail. It is only in case of non-bailable offence where the judicial officer, keeping in view the provisions of law, has to use his discretion judiciously and not arbitrarily while granting or refusing bail to the accused person, Judges themselves have to decide on the basis of their, long experience, wisdom, and the guidelines laid down by the Supreme Court of India keeping in view the facts and circumstances of each and every case.

There is a distinction between rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted. Normally very cogent and overwhelming grounds or circumstances are required to cancel the bail already granted; Mahant Chand Nath Yogi v. State of Hnrymm, MANU/SC/0888/2002 : (2003) 1 SCC 326: AIR 2003 SC 18: 2003 Cr LJ 76.

BAIL NOT JAIL

From the provisions of law and the judgments delivered by various High Courts and also the Supreme Court of India, the consensus arrived at is that in principle the inclination should be in favour of bail and not jail. The law with regard to grant or refusal of bail has developed more by the courts than the legislature. Article 21 of the Constitution of India fully guarantees every citizen a right to life and liberty. That is why the Supreme Court in various judgments, time and again has sounded a word of caution and the warning to the courts subordinate to it that the judges should be very cautious and careful before they refuse the bail in non-bailable offences. The basic purpose of setting an accused person at liberty is that his fundamental right to life and liberty should not be curtailed unnecessarily. If the courts are satisfied that the accused person will participate in the trial and will not abscond or tamper with the evidence, the bail should invariably be granted.

Bail under section 437 of the Code of Criminal Procedure, 1973 is not a Matter of Right

The offences committed by the accused persons fall under two categories:--

(1) bailable offences, (2) non-bailable offences

Section 436 of the Criminal Procedure Code, 1973 deals with the offences which fall under the category of bailable offences. Section 437 deals with the offences categorised as non-bailable offence. Bail is a matter of right if offence falls under the provisions of section 436 but it is a matter of discretion of the Court to grant or refuse bail if the offence committed by the accused falls under the category of non-bailable offences and is covered by section 437 of the the Code of Criminal Procedure, 1973. But here is a caution for all the courts that the discretion while granting or refusing the bail must be judiciously exercised.

Section 437 and Section 439 of the Code of Criminal Procedure, 1973 are reproduced below:

437. When bail may be taken in case of non-bailable offence.--

(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appear or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but--

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, [the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the Court shall impose the conditions,-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.

(4) An officer or a Court releasing any person on bail under sub-section (1), or sub-section (2), shall record in writing his or its [reasons or special reasons] for so doing.

(5) Any Court which has released a person on bail under sub-section (1), or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

Section 437 of the Code of Criminal Procedure, 1973 has been amended to provide that if a person commits a cognizable and non-bailable offence and he has previously been convicted on two or more occasions of a cognizable offence punishable with imprisonment for 3 years or more but not less than 7 years, he shall not be released except in the circumstances specified in the provision.

It has further been provided that if an accused appears before the Court while in judicial custody and prays, for bail or a prayer for bail is made on his behalf, the Court shall grant bail only after giving an opportunity of hearing to the prosecution, if the offence alleged to have been committed by the accused is punishable with death, imprisonment for life or imprisonment for not less than 7 years.

Under sub-section (3), the Court has got the discretion to impose certain conditions for the grant of bail. Under section 441(2), where any condition is imposed for the release of a person on bail, the bond shall contain that condition also. In order to make the provision stringent and to see that the person on bail does not interfere or intimidate witnesses, sub-section (3) has been amended to specify certain conditions, which are mandatory."

"439. Special powers of High Court or Court of Session regarding bail.--

(1) A High Court or Court of Session may direct--

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody."

These two sections are distinguished from each other. Section 437 of the Code of Criminal Procedure, 1973 limits the jurisdiction of the Magistrate in the case of offences punishable with death or imprisonment for life except in the case of children, women, sick and infirm persons. On the other hand it will be observed that section 439 of the Code of Criminal Procedure, 1973 does not prescribe any such limitation on powers of the Court of Session or High Court. As we have already discussed above, the bails have to be granted by using the discretion judiciously and not indiscriminately or arbitrarily.

It may be made very clear to the learned readers that principles governing the grant of bail under sub-section (1) of sections 437 and 439 are different from the principles governing the cancellation of bail under sub-section (5) of section 437 and sub-section (2) of section 439 of the Code of Criminal Procedure, 1973.

The court has the discretion to grant bail subject to certain conditions imposed on the accused. In granting bail to a former Chief Minister, in Jagannath Mishra v. State of Bihar, 1999 Cr LJ 3527, the Supreme Court released him on bail subject to the conditions that:

(a) He Shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case.....

(b) He shall remain present before the courts on the dates fixed for hearing of the case. If he wants to remain absent, he shall take prior permission of the court.....He shall not insist upon the proceedings being held up in view of his absence.

In this case the Supreme Court was satisfied that the accused had made out a case for .releasing him on bail. And thus by Setting aside the impugned order passed by the High Court, the Supreme Court granted him bail with certain conditions as mentioned above.

In Nirmal Jeet Kaur v. State of Madhya Pradesh, MANU/SC/0695/2004 : (2004) 7 SCC 558: (2004) 7 SCALE 324: JT 2004 (7) SC 161 it was held that an application under section 439 of the Code of Criminal Procedure, 1973 must be in accordance with law and the accused seeking remedy thereunder must ensure that it would be lawful for the court to deal with the application. Unless the applicant is in custody his making application only under section 439 of the Code of Criminal Procedure, 1973 will not confer jurisdiction on the court to which the application is made. The view regarding extension of time to move the higher court shall have to be treated as having been rendered per incuriam as no reference was made to the prescription in section 439 requiring the accused to be in custody.

In Sunita Devi v. State of Bihar, MANU/SC/1032/2004 : (2005) 1 SCC 608: AIR 2005 SC 498: (2004) 115 DLT 517, it was held that in view of the clear language of section 439 of the Code of Criminal Procedure, 1973, there cannot be any doubt that unless a person is in custody, an application for bail under section 439 of the Code of Criminal Procedure, 1973 would not be maintainable.

In Prahlad Singh Bhatoi v. NCT, Delhi, MANU/SC/0193/2001 : (2001) 4 SCC 280: AIR 2001 SC 1444: (2001) 2 SCR 684, it was held that the Magistrate can grant bail only when there is no reasonable ground to believe that the accused is guilty of offence punishable with sentence of death or life imprisonment, unless accused is covered by the provisions to section 437(1) of the Code of Criminal Procedure, 1973.

In R. Rathinam v. State by DSP, Crime Madurai, MANU/SC/0071/2000 : (2000) 2 SCC 391: (2000) SCC (Cri) 958: (2000) 1 SCALE 458, it was observed that there is no barrier either in section 439 of the Code of Criminal Procedure, 1973 or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in the petition, after making such consideration it is open to the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is therefore, improper to refuse to look into the matter that such a petition is not maintainable.

In Chenna Buyanna Krishna Yadav v. State of Maharashtra, MANU/SC/8749/2006 : (2007) 1 SCC 242: 2007 Cr LJ 782, it was observed that it is plain from a bare reading of the non-obstante clause in the sub-section (4) of section 21 of MCOCA (Maharashtra Control of Organised Crime Act) that the power to grant bail by the High Court or Court of Session is not only subject to the limitations imposed by section 439 of the Code of Criminal Procedure, 1973 but it is also subject to the limitations placed by section 21(4) of MCOCA. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions are: the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail.

In Union of India v. Rajesh Ranjan, (2004) 7 SCC 539: 2004 SCC (Cri) 1987 the High Court considered only two grounds for granting bail i.e. one is that the respondent was in custody for more than one year and the other is that the High Court made some order in the previous order. The previous order referred to by the High Court only made a mention that respondent could renew the application after framing of the charge against him. The observation is not a ground envisaged under section 437(1)(i) of the Code of Criminal Procedure, 1973 for granting bail. Thus there was non-application of mind of High Court from the angle provided in the aforesaid clause which is sine qua non for granting bail, in the light of the specific prohibition contained in the subclause that such persons shall not be released, if there appears a reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

Right to File Successive Bail Applications

You have no right to go on filing bail applications. This will amount to an abuse of the process of the court and should be discouraged. Any fresh application for the grant of bail by an accused person without any substantial change of the facts and circumstances of the case in no circumstances is maintainable and must be dismissed; State of Maharashtra v. Capt. Buddhikota Subha Rao, MANU/SC/0549/1989 : AIR 1989 SC 2292:1989 Supp (2) SCC 605: (1989) Supp 1 SCR 315.

Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0045/2005 : (2005) 2 SCC 42: AIR 2005 SC 921: 2005 Cr LJ 944, it was observed that though principles of res judicata and principles analogous thereto are not applicable in criminal proceedings, still the courts are bound by doctrine of judicial discipline, having regard to the hierarchical system prevailing in the country. The findings of higher courts or co-ordinate bench must receive serious consideration in hands of court entertaining a bail application at a later stage when same had been rejected earlier. Due weight should be given to grounds which weighed with the former or higher court in rejecting bail application.

Bail Once Granted cannot be Reviewed, Revised or Set Aside by the Same Court

The readers must know that once a court of competence passes an order Of grant of bail Under section 437(1) of the Code of Criminal Procedure, 1973 the said order cannot be reviewed, revised or set aside by the same court. No provision of the Code provides any authority to the said Judge to do so. Bail, therefore, can only be cancelled under section 437(5) of the Code of Criminal Procedure, 1973 but such power can be exercised only in extraordinary circumstances; State through Delhi Administration v. Sanjay Gandhi, 1978 Cr LJ 952: MANU/SC/0171/1978 : AIR 1978 SC 961: (1978) 2 SCC 411: (1978) 3 SCR 950, relied--Prashant Kumar v. Manohar Lal, 1988 Cr LJ 1463.

Grounds to be Kept in Mind while Granting/Refusing Bail in Non-bailable Offence

In State v. Jaspal Singh, 1984 Cr LJ 1211: MANU/SC/0128/1984 : (1984) 3 SCC 555: AIR 1984 SC 1503: (1984) 3 SCR 993, the Supreme Court has pointed out the following considerations to be kept in mind while granting/refusing bail to the accused persons in non-bailable offences and before the commencement of the trial:--

(i) the nature and seriousness of the offences;

(ii) the character of the evidence,

(iii) circumstanced which are peculiar to the accused;

(iv) reasonable possibility of the presence of the accused not being secured at the trail;

(v) reasonable apprehension of witness being tampered with;

(vi) the larger interest of the public or the State;

(vii) the interest of the society;

(viii) and other considerations which the judge may weigh from case to case.

Offence Relating to Military Affairs

Where there is a charge under the Official Secrets Act, the Courts have to be very cautious and strict while dealing with the bail application.

In State v. Jagjit Singh, MANU/SC/0139/1961 : AIR 1962 SC 253: (1962) 3 SCR 622, the Supreme Court had indicated that the court should exercise a greater degree of care in enlarging on bail to an accused who is charged with the offence punishable under section 3 of the Official Secrets Act when it relates to military affairs.

Accused to be Granted Bail if in Custody for a Long Time

There are many cases where the accused persons are made to languish in jail, and the trial continues at a snails pace. In cases where the accused persons are detained unnecessarily for a long period and the trial drags on, the Supreme Court has directed that in such cases the accused persons be released on bail in non-bailable offences. In a case where the accused was in custody for over eight months, and it was not known when the evidence to be taken, would be reviewed by the Sessions Judge, it was held that the accused must be released on the same ground.

The Supreme Court in case of Shailendra kumar v. State of Delhi, MANU/SC/0886/2000 : AIR 2000 SC 3404: (2000) 4 SCC 178: 2000 Cr LJ 2452 held that where there is long pendency of trial with no prospects of early hearing then the bail during the pendency of appeal is justified.

Long period of custody and no possibility of the trial concluding in the near future may be a good ground for the grant of bail; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0106/2005 : (2005) 3 SCC 284: AIR 2005 SC 972.

Delay in Trial Entitles the Accused to be Released on Bail

In considering the suffering of accused due to delay in trial the Supreme Court held that we are told that the appellant is in jail from 4-4-1998 in connection with the offences under sections 394 and 395 read with section 149 of the Indian Penal Code (45 of 1860). It is quite a long period that he has been in custody without commencing the trial. There is no need to detain him further in custody, and therefore, we are inclined to release him on bail notwithstanding the suppression of certain factual position when the bail application was filed. It would not have been done by the appellant. We feel that the lapse on the part of the counsel should not in this case be allowed to prejudice the appellant who is languishing in jail. Vide Vivek Kumar v. State of Uttar Pradesh, JT 2000 (1) SC 552: AIR 2000 SC 3406: (2000) 9 SCC 443.

Merits of the Case not to be gone into while Granting/Refusing Bail

At the time of granting or refusing bail in a non-bailable offence, the court has not to go into the merits of the case. The court has only to keep in mind the visible gravity of the alleged offence, the deep roots of the accused in the society, the possibility of his appearing in the court during trial, the control of the surety over the accused and various other guidelines laid down by the Supreme Court in its judgments delivered from time to time.

In one of its judgments, the Supreme Court held that while deciding the question whether bail is to be granted or not detailed examination of the merits of the case is not to be considered. It is not at all desirable that the court should appreciate the evidence at the pre-trial stage.

Facts and Circumstances of each case

In Rajesh Ranjan Yadav @ Pappu Yadav v. CBI, MANU/SC/5112/2006 : AIR 2007 SC 451: 2007 Cr LJ 304: (2006) 11 SCALE 551: MANU/SC/5112/2006 : (2007) 1 SCC 70: 2006 (2) UJ 1536 (SC), it was held that grant of bail depends on facts and circumstances of each case and it cannot be said that there is any absolute rule that since a long period of imprisonment has expired, bail must necessarily be granted. It was observed that no right can be absolute, and reasonable restrictions can be placed on them, while it is true that one of the considerations in deciding whether to grant bail to an accused or not and whether he has been in jail for a long time, the court has also to take into consideration other facts and circumstances, such as interest of the society- Article 21 has been explained in detail.

Consideration and interpretation of Bail Application

Several considerations arise while granting bail or refusal to grant bail viz. (a) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (b) nature and gravity of the charge; (c) severity of the punishment in the event of conviction; (d) danger of the accused absconding or fleeing, if released on bail; (e) character, behaviour, means, position and standing of the accused; (f) likelihood of the offence being repeated; (g) reasonable apprehension of witnesses being tampered with; and (h) danger of justice being thwarted by grant of bail. State of Uttar Pradesh v. Amarmani Tripathi, MANU/SC/0677/2005 : (2005) 8 SCC 21: AIR 2005 SC 3490: 2005 Cr LJ 4149: (2005) DLT 362 (SC).

In Kalyan Chandra Sarkar v. Rajesh Ranjan, MANU/SC/0214/2004 : (2004) 7 SCC 528: AIR 2004 SC 1866 it was observed that while a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such a character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail may be refused.

Limitations for Grant of Bail

In Narcotics Control Bureau v. Dilip Prahlad Namade, MANU/SC/0240/2004 : (2004) 3 SCC 619: 2004 Cr LJ 1815: (2004) 3 SCALE 474 it has been observed that the limitations on granting bail comes only when the question of granting bail on merit arises. The limitations stipulated in the said provision are cumulative and not alternative. The satisfaction contemplated, regarding innocence of the accused, is to be based on reasonable grounds. It contemplates probable cause for believing that the accused is not for guilty of the offence and is not likely to commit any offence while on bail. Such embargo has been envisaged in view of the deleterious nature of the offence, public interest and tendencies of the persons.

Delay in Recovery of Weapon in Murder Charge

In State, CBI/SPE, New Delhi v. Pal Singh, (2001) 1 SCC 247 it was observed that in a murder case, bail should not be granted merely on the ground of delay in recovery of weapons used in the crime. But where trial could not commence for long time for which accused was not responsible, it would be traversity of justice to keep the accused under further detention as undertrial prisoners.

Considerations: Prima facie case

In Jayendra Saraswathi Swamingal v. State of Tamil Nadu, MANU/SC/0017/2005 : (2005) 2 SCC 13: AIR 2005 SC 716 it was held that the considerations which normally weigh the court in granting bail in non-bailable offences basically are: (i) the nature and seriousness of offence; (ii) character of evidence; (iii) circumstances which are peculiar to the accused; (iv) a reasonable possibility of the presence of the accused not being secured at the trials; (v) reasonable apprehension of witnesses being tampered with; (vi) the larger interest of the public or the State and other similar factors which may be relevant in the facts of the case.

Ground of Arrest

We have seen that the prosecution comes before the court to oppose every bail application which the accused person moves for the grant of ball. Sometimes the prosecution opposes the bail application on frivolous grounds.

In A.K. Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27, Supreme Court held that the information about the grounds of arrest is mandatory.

In Harsh Sawhney v. Union Territory of Delhi, MANU/SC/0125/1978 : AIR 1978 SC 1016: (1978) 2 SCC 365: (1978) 2 SCR 129, the bail was refused to the applicant - the accused person only on the plea that the police was to search the premises in her presence and that the applicant/accused was required to be taken into custody for recovering some documents.

This case came up before the Supreme Court as the bail was refused upto the High Court level. After hearing both the sides, the Supreme Court came to the conclusion that it was a fit case where the bail should have been granted. The Supreme Court also referred to the guidelines already given in its earlier judgment in Gurcharan Singh v. State (Delhi Administration), 1978 Cr LJ 129: AIR 1978 SC 179a: (1978) 1 SCC 118: (1978) 2 SCR 358.

"On the basis of that decision this is clearly a case where the applicant is entitled to bail ....... We do not think that the appellant has to be taken into custody for making a search of the premises in her presence. This can be done without her being taken into custody."

The appeal of the appellant was thus allowed and she was directed to be enlarged on bail on the condition that she will furnish two sureties, will enter into a bond in a sum of Rs. 5,000 and she will subject herself to a condition for appearing before the police for interrogation if called upon to do so subject to the condition under article 20(3) of the Constitution of India.

The Supreme Court in considering the fundamental rights of arrested person to have someone informed about his arrest and to consult privately with lawyer and in fixing the duty of police issued some directions on arrest of accused persons and in the same judgment that held:

"No arrest can be made because it is lawful for the police officers to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lockup of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person".

Statutory Obligation of the Court to Record Reasons for Granting/Refusing Bail

In Prashant Kumar v. Manohar Lal, 1988 Cr LJ 1463, the Supreme Court held that "it must be said that the Magistrate as also the Sessions Judges while either granting or refusing bail must support their order by cogent reason and that is all the more so required as their orders are frequently subjected to scrutiny of the High Court. The reason when given either for granting or refusing bail go a long way in assisting the High Court to arrive at a finding as to whether the impugned orders are justified or otherwise." The Supreme Court further held that any order passed by the court without giving any reason either for grant or refusal of bail could not sustain and had no force of law.

Exceptional circumstances

In State of Madhya Pradesh v. Kajad, MANU/SC/0541/2001 : (2001) 7 SCC 673: AIR 2001 SC 3317: 2001 Cr LJ 4240, section 34 of the NDPS Act, 1985 was in question. It was observed that a person accused of an offence, punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant is an exception under section 37(1)(b)(ii) of the NDPS Act, 1985. For granting the bail the court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence with which he is charged and further that he is not likely to commit any offence while on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of section 37 are in addition to the limitations provided under the Code of Criminal Procedure, 1973 or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the NDPS is uncalled for.

Exceptional cases

In Regina (O) v. Crown Court at Harrow, (2003) 1 WLR 2756 (QB): (2003) EWHC 868 (Admn) the defendant was charged with rape. The bail application was made after expiration of custody time limit. It was held that a defendant who falls within section 25 of the Criminal Justice and Public Order Act, 1994 (UK), is very unlikely to be granted bail and unless he can point to exceptional circumstances, will almost certainly not be granted bail.

Propriety of Grant of Bail

In Narcotics Control Bureau v. Dilip Prahlad Namade, MANU/SC/0240/2004 : (2004) 3 SCC 619: 2004 Cr L] 1815, there was non-compliance with the order of the Court to supply certain documents to the accused. It was held that the accused was not entitled to get bail. On facts of the case, the High Court erred in transgressing the statutory limitations imposed and allowing bail

Detailed Examination of Evidence

In Chaman Lal v. State of Uttar Pradesh, MANU/SC/0631/2004 : (2004) 7 SCC 525: AIR 2004 SC 4267 it was observed that at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case is not to be undertaken, but there is need to indicate in the order the reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. 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.

Apropos the grant or refusal to grant of Bail, the detailed examination of 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 a bail application should be satisfied as to whether there is a prima facie case. Anwari Begam v. Sher Mohammad, MANU/SC/0571/2005 : (2005) 7 SCC 326: AIR2005 SC 3530: 2005 Cr LJ 4132.

Cryptic Order

In Ajay Kumar Sharma v. State of Uttar Pradesh, (2005) 7 SCC 507, it was observed that the grant of bail by a cryptic order without taking into consideration the relevant circumstances is not proper.

Discretion of Court

In Surinder Sing @ Shingara Singh v. State of Punjab, MANU/SC/0541/2005 : (2005) 7 SCC 387: 2005 Cr LJ 4119 it has been held that indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a straight jacket formula. The court must exercise its discretion having regard to all the relevant facts and circumstances.

Bail Order is Final Order and Not an Interlocutory Order

Sometimes there is a confusion, whether the bail order amounts to a final order or is an interlocutory order. The simple answer to this question is 'a Bail order is a final order and not an interlocutory order'.

In Prashant Kumar v. Manoharlal Bhagatram Bhatia, 1988 Cr LJ 1463, the Supreme Court pointed out that the order granting bail under section 437(1) or under section 439(1) is a final order. The Supreme Court further observed that if such an order was passed by a Magistrate, the same could be challenged in the Sessions Court or High Court in their revisional powers and there could not be any bar in entertaining a revision application under section 397(2) of the Code of Criminal Procedure, 1973.

We have earlier stated that grant of bail is a rule and refusal of bail is an exception. Justice Krishna Iyer, the then Judge of the Supreme Court in one of his shortest judgments (one page judgment) in State of Rajasthan v. Bal Chand, MANU/SC/0152/1977 : AIR 1977 SC 2447: (1977) 4 SCC 308: (1978) 1 SCR 535, had rightly observed:

"the basic rule may perhaps be tersely put as bail not jail, except where there are circumstances, suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court".

Bail Application to be Disposed of on the Same Day

The grant or refusal of bail is a pre-trial stage and merits of the case are not discussed in detail at the time of the hearing the bail application. Every accused person is presumed to be an innocent person till the final decision of the matter. Therefore, it is very essential that the hearing of the bail application should not be delayed unless there are some compelling grounds. The courts have often made observations in their judgments that normally the bail applications should be heard on the same day, as it involves the life and liberty of a presumed innocent person.

In Mahender Pal Singh v. State of Uttar Pradesh, 1990 ACC 18, the Allahabad High Court made observations, as to how the bail application should be dealt with.

Magistrate should dispose of the application the same day and in special cases the next day. Sessions Court should also dispose of the application the same day if the application is preferred in the early hours of the day, and if preferred in the late hours of the day, it should be disposed of the next day. Courts should take into account the question of personal liberty of the accused which has been put at the highest pedestal in our Constitution.

In yet another case of Latif v. State of Uttar Pradesh, 1990 ACC 440, the Allahabad High Court held that application for bail of accused persons when they are produced before a court of law should be disposed of the same day. In case the court finds it difficult, then the accused should be released at once on his personal bond till the bail application is disposed off finally.

In the light of constitutional guarantee as envisaged in the article 21 of the Constitution the bail application is disposed of as expeditiously as possible. Keeping this concept in mind the Allahabad High Court in case of Hidavat Hussain Khan v. State of Uttar Pradesh, 1992 Cr LJ 3534 held that the High Court has discretion to issue direction to Magistrate to dispose of the bail application on the same day, if not he has to release the accused on personal bond or interim bail on the same day till the disposal of bail application.

Offence under MCOCA

In State of Maharashtra v. Bharat Shanti Lal Shah, AIR 2009 SC (Supp) 1135 the Court observed that the object of MCOCA is to prevent the organized crime and, therefore, there could be reason to deny consideration of grant of bail if one has committed a similar offence once again after being released on bail, but the same consideration cannot be extended to a person who commit an offence under some other Act. That would not be in any case in consonance with the object of the Act.

Bail in NDPS case

In case of Sami Ullaha v. Superintendent, Narcotic Central Bureau, MANU/SC/4761/2008 : AIR 2009 SC 1357 it was observed that, the NDPS Act although is a self-contained Code, application of the provisions of the Code of Criminal Procedure, 1973, however, either expressly or by necessary implication, have not been excluded. There exists a distinction between an appeal from an order granting bail and an order directing cancellation of bail. While entertaining an application for cancellation of bail, it must be found that accused had misused the liberty granted to him as a result whereof (a) he has attempted to tamper with evidence; (b) he has attempted to influence the witnesses, (c) there is a possibility of the accused to abscond; and, therefore, there is a possibility that the accused may not be available for trial. It is true that the general principles of grant of bail are not applicable in a case involving the NDPS Act. The power of court in that behalf is limited".

Fake Encounter Case

Accused, a high ranking police officer was allegedly involved in fake encounter. The fact was that the person whom he killed had shady reputation and criminal antecedents or was hardened criminal is not a relevant factor. Bail granted by taking into account these irrelevant factors and keeping out relevant matters was cancelled by Supreme Court. Dinesh M.N. (S.P.) v. State of Gujarat, MANU/SC/7526/2008 : AIR 2008 SC 2318.

Charge under Official Secrets Act

The accused was charged inter alia under section 3 of Official Secrets Act, 1923. The grant of bail was challenged on ground that the crime was of grave nature as National Security was jeopardized. The trial of accused had not started. The accused person had already undergone pre-trial detention of 22 months without even a prima facie determination of seriousness of offence. The restrictions had already imposed on travelling abroad in earlier matter and no allegation about misuse or abuse of Liberty or violation of any condition was made. Hence it was held that there was no infirmity in grant of bail. C.B.I., New Delhi v. Abhishek Verma, MANU/SC/0929/2009 : AIR 2009 SC 2399.

Stamp Paper Scam Case

The applicant was accused in Stamp Paper Scam case. He was not directly connected with printing and selling of fake stamp but was associated with the prime accused. The prima facie evidence showed that he had abetted and facilitated commission of organized crime. The material showed that the payment for purchase of printing machine was routed through applicant. It was held that the rejection of bail was proper. Manoj Ramesh Mehta v. State of Maharashtra, MANU/SC/8311/2008 : AIR 2009 SC 622.

Chapter 6

Anticipatory Bail

Meaning of Anticipatory Bail	50
Conditions While Granting Anticipatory Bail	53
Guidelines for Granting Anticipatory Bail	53
Not blanket order	54
Notice to the prosecution	54
Concurrent Jurisdiction	54
Appropriate Court for Grant of Anticipatory Bail	56
Whether an Anticipatory Bail can be Withheld as a Matter of Punishment	56
Anticipatory Bail: Whether a Matter of Right	57
Guiding Principles While Granting Anticipatory Bail	57
Some Illustrations: Application of section 438 of the Code of Criminal Procedure, 1973	59
Latest Judgment in Anticipatory Bail	60
Cancellation of Anticipatory Bail: Illegality	61
Blanket Order of Anticipatory Bail	61
Cancellation of Anticipatory Bail	62
Condition Precedent for Grant of Anticipatory Bail	62
Propriety of Anticipatory Bail	62
Imposition of Conditions	63
Condition of Making Huge Deposits	63
Power of Court	63
Factors to be Taken into Consideration		63
Limited Duration of Bail		64
Ground of Parity		64
Absence of Adequate Opportunity to File Objection		64
Publication of Article on Religious Feeling		64
Territorial Jurisdiction to Hear Anticipatory Bail Application		65
Pre-arrest Bail and Post-arrest Bail		65
Pre-arrest Bail		68
Interim Bail		68
Supreme Court Guidelines on Anticipatory Bail		68
Supreme Court Guidelines on Anticipatory Bail - Relevant factors		70

The necessity for granting the anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false case for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times in the matter of political rivalry this tendency is showing the signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail. Vide 41st Report of Law Commission for power of Superior Court in granting anticipatory bail.

Meaning of Anticipatory Bail

This means grant of bail to a free person in anticipation of his possible arrest for some offence and in the absence of any order of arrest against him. Grant of bail presupposes that the person is in custody of police or court, and if not in custody, is required to surrender to such custody. It is unreal talk to grant bail to a person not being under such arrest. Mere registration of a case against a person and his apprehension of being arrested in relation thereto is not enough for release on bail in anticipation.

The provision of grant of anticipatory bail to a person apprehending arrest, is covered under section 438 of the Code of Criminal Procedure, 1973. Any person who apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with some one, he fears that a false case is likely to be built up against him, he has the right to (sic) the Court of Sessions or the High Court under section 438 of the Code of Criminal Procedure, 1973 for the grant of bail in the event of his arrest,

Section 438 of the Code of Criminal Procedure, 1973 is reproduced below:

"438. Direction for grant of bail to person apprehending arrest.-

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)."

Section 438 of the Code of Criminal Procedure, 1973 has been amended by the Code of Criminal Procedure, (Amendment) Act, 2005. Section 438 has been amended to the effect that (i) the power to grant anticipatory bail should be exercised by the Court of Session or High Court after taking into consideration certain circumstances; (ii) if the court does not reject the application for the grant of anticipatory bail, and makes an interim order of bail, it should, forthwith give notice to the Public Prosecutor and Superintendent of Police and the question of bail would be re-examined in the light of the respective contentions of the parties; and (in) the presence of the person seeking anticipatory bail in the court should be made mandatory at the time of hearing of the application for the grant of anticipatory bail subject to certain exceptions.

Section 438 of the Code of Criminal Procedure, 1973 also does not confer any absolute licence to grant anticipatory bail to all and sundry and section 438(2) itself incorporates some conditions which may be imposed when an order of anticipatory bail is passed.

In Bal Chand Jain v. State of Madhya Pradesh, AIR 1977 SC 366: (1976) 4 SCC 572: (1977) 2 SCR 52: (1977) Cr LJ 225, Supreme Court has discussed the utility and significance of this new provision. In paragraph 15 of the judgment the Supreme Court has also referred to the Statement of Objects and Reasons published in Gazette of India, Extraordinary, Pt. II-Relevant portion is reproduced below:

"As recommended by the Commission a new provision is being made enabling the Supreme Court to grant anticipatory bail, i.e. a direction to release a person on bail, issued even before the person is arrested-with a view to avoid the possibility of the person hampering the investigation, special provision is being made that the court granting anticipatory bail may impose such conditions as it thinks fit."

Conditions While Granting Anticipatory Bail

The condition imposed may be that a person shall make himself available to the investigating officer as and when required and shall not do anything to hamper investigation.

The Supreme Court in many of its judgments has spelled out conditions to be imposed and has laid down guidelines in detail while granting anticipatory bail to the person alleged to have been involved in cases which fall under the category of non-bailable offence.

Guidelines for Granting Anticipatory Bail

The Supreme Court in Gurbaksh Singh Sibba v. State of Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632: (1980) 2 SCC 565: (1980) 3 SCR 383: 1980 Cr LJ 1125, laid down the following guidelines/propositions:-

(1) The distinction between an ordinary bail and anticipatory bail is that the former being after the arrest means release from custody of Police, the latter being in anticipation of arrest is effective at the very moment of arrest.

(2) The High Court and the Sessions Court have been given wide powers-discretionary-left free in the use of their judicial discretion to grant bail on the facts and circumstances of the case.

(3) The court must apply its own mind and decide the question without leaving it to be decided by the Magistrate under section 437 as and when occasion arises.

Not blanket order

(4) The applicant must show by disclosing specific facts and events that he has reasons to believe, the existence of which is sine qua non of the exercise of power by the court and not vague apprehension that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and not a blanket order.

Notice to the prosecution

(5) An order of bail can be passed conforming to the requirements of the section and imposing suitable condition without notice to the Public Prosecutor but notice to him should be issued forthwith and the question of bail be examined in the light of respective contentions of the parties.

(6) The operation of the order should not be limited to a period of time.

(7) If the proposed accusation appears stern from some ulterior motive to injure and humiliate the applicant the order for anticipatory bail would generally be made. If it appears likely that he will flee from justice, order would not be made.

(8) Filing of an F.I.R. is not a condition precedent to the exercise of power under section 438, which can however, be exercised even after filing of the F.I.R. so long applicant is not arrested.

(9) An order of anticipatory bail does not in any way directly or indirectly take away from the police the right to investigate. One of the usual conditions imposed is that the applicant shall make himself available for interrogation by a police officer.

Concurrent Jurisdiction

Both the High Court as well as the Sessions Court have the competence and jurisdiction to entertain the anticipatory bail application. It is for the applicant or the petitioner to choose either of these; Onkar Nath Aggarwal v. State, 1976 Cr LJ 1142.

In Jagannath v. State of Maharashtra, 1981 Cr LJ 1808, the petitioner had applied to the Session Judge, for grant of anticipatory bail. The application being rejected, he approached the High Court of Bombay praying for anticipatory bail under section 438 of the Code of Criminal Procedure. As a preliminary objection, it was contended by the complainant that according to that section an application for anticipatory bail could be made "to the High Court or Court of Session" and that it could not be made in both these courts, i.e. the petitioner would have a choice of one out of the two courts.

In support of this contention reliance was placed on the decision of the judgment delivered by the High Court of Calcutta in Amiya Kumar v. State of West Bengal 1979 Cr LJ 288.

In this matter the court observed:

"In the instant case, therefore, we find that section 438 has given a choice of selecting the forum for filing the petition for anticipatory bail-to choose either the High Court or the Court of Session, though both the courts have been made forum for the approach of the applicant. This section gives right to the party with restricted choice."

Section 438 does not require that the offence must have been registered. All that is contemplated is that the applicant has reasonable belief that he apprehends to be arrested for commission of non-bailable offence; Suresh Vasudev v. State (Delhi Administration), 1978 Cr LJ 677.

Application for anticipatory bail by a Minister for a charge under section 307 of the Indian Penal Code can be rejected as there is likelihood of confidence of public being shaken if investigation is interfered; Mohd. Mazaffar Hussain Khan v. State of Orissa, 1990 Cr LJ 1024.

Bail under section 438 of the Code of Criminal Procedure, 1973 will be valid and operative for those offences only for which it is granted which would last till the conclusion of the trial unless it is cancelled under section 437(5) of the Code of Criminal Procedure, 1973; Ram Sevak v. State of Madhya Pradesh, 1979 Cr LJ 1485.

Anticipatory bail can be granted for alleged offences covered under rule 184 of Defence and Internal Security of India Rules (sic) Bal Chand Jain v. State of Madhya Pradesh, AIR 1977 SC 366.

Appropriate Court for Grant of Anticipatory Bail

As bails are against arrest and detention, an appropriate court within whose jurisdiction the arrest takes place or is apprehended or is contemplated will also have the jurisdiction to grant bail to the person concerned. If the Court of Session or the High Court has the jurisdiction to grant interim bail, then the power to grant full anticipatory bail will emanate from the same jurisdiction. The High Court further observed that in case it is desirable or so expedient to do, the anticipatory bail may be granted for a specified period only. The case of Pritam Singh v. State of Punjab, 1981 Cr LJ (NOC) 159 is on the point.

Whether an Anticipatory Bail can be Withheld as a Matter of Punishment

No. An anticipatory bail cannot be withheld by any court- Sessions Court or the High Court-as a matter of punishment. The purpose of the grant of bail has been discussed in various judgments of the Supreme Court. Nowhere it has been pointed out that the bail or for that matter anticipatory bail may be withheld as a matter of punishment. The observations made by the Supreme Court in Bhagrath Singh Judeja v. State of Gujarat, MANU/SC/0052/1983 : AIR 1984 SC 372: (1984) 1 SCC 284: (1984) 1 SCR 839: (1983) 2 SCALE 818, clinches the whole matter. The relevant paragraph (5) at page 373 is reproduced below:

"We fail to understand what the Learned Judge of the High Court desires to convey when he says that once a prima facie case is established, it is necessary for the court to examine the nature and gravity of the circumstances in which the offence was committed. If there is no prima facie case there is no question of considering other circumstances. but even if a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence."

In the above case the bail was granted to the accused person which was cancelled by the High Court and the matter went to the Supreme Court, where the observations were made in the aforesaid paragraph.

Anticipatory Bail: Whether a Matter of Right

No. It cannot be invoked as a matter of right. It cannot be used to frustrate investigation by the police. Courts can exercise direction to issue a direction of anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 when the actions of the police is prejudicially inclined against a party whose individual and personal liberty is likely to be in danger without any justification of law. The discretion is not an exercise of independent jurisdiction but is determined by seriousness and graveness of accusation. The court cannot show laxity in the exercise of discretion for grant of bail in anticipation.

Guiding Principles While Granting Anticipatory Bail

It has been often noticed that due to political rivalries also false cases are made against each other. After emergency many Congress leaders including Giani Zail Singh, Bansi Lal and others moved the courts for anticipatory bails. Gurbaksh Singh Sibba v. State of Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632: (1980) 2 SCC 565: (1980) 3 SCR 383: 1980 Cr LJ 1125, is one of the most significant cases, wherein the Supreme Court has given a detailed judgment and has also broadly laid down certain principles as guiding factor while dealing with the application for anticipatory bail.

Though the Supreme Court had not been in favour of the blanket grant of anticipatory bail, yet they laid down certain principles and guidelines to be kept in mind while deciding anticipatory bail applications.

Broadly speaking the two basic principles, which must be kept in view while considering the question of grant of anticipatory bail, are-

(i) that there should be no likelihood of the accused absconding, and

(ii) there should be no likelihood of the accused misusing his liberty.

For finding out the first part, it has to consider and see if the accused has deep links/roots in community. While testing this fact, the following factors may be kept in mind:-

(1) the length of his residence in community;

(2) his employment, status, history and financial condition;

(3) his family ties and relationships;

(4) his reputation, character and monetary condition;

(5) his prior criminal record including any record of prior release on re-cognizance or on bail;

(6) the identity of the responsible members of the community who would vouch for his reliability;

(7) the nature of the offence charged, and the apparent probability of conviction and the likely sentence in so far as these facts are relevant to the risk of non-appearance; and

(8) any other factor indicating the ties of the accused to the community or bearing the risk of wilful failure to appear.

So the basic thing broadly to be kept in mind is whether the accused person, who is likely to be granted anticipatory bail or for that matter any kind of bail, will or will not misuse his liberty after the bail is granted to him. The paramount consideration in this behalf is "whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the court to be freed for the time being."

If the bail application was filed for grant of regular bail within protective umbrella period but not decided within that period, the accused has to be in custody before such application is taken up for hearing sections 438 and 439 of the Code of Criminal Procedure, 1973 [Pramod Kumar Mehta v. State of Chhatisgarh, 2007 Cr LJ 2063, M. Cr. C. No. 3203 of 2006, Feb. 9, 2007, (Vol. 58, July 2007, Para 7, Allahabad Criminal Cases]

* If there is a case of relaxation of conditions of anticipatory bail and regular bail was granted by the Magistrate while anticipatory bail was in force, it was held that application for relaxation of conditions imposed at the time of granting anticipatory bail was misconceived and thus thereby rejected. [Moni Roy @ P.B. Roy v. State, C.R.M. 4019 of 2007, June 7, 2007. (Chattisgarh HC)] [Allahabad Criminal Cases Vol. 58 August, 2007 Part 8]

* In Mannu Kaushik v. State of C.G., 2006 (2) MPHT 39 (CG): Misc. Criminal (Vol. 55, July 2006) Case No. 2019 of 2005, November 9, 2005, The sections 3(1)(x) and 18 of the SC and ST (Prevention of Atrocities) Act, 1989 was in question. An application for anticipatory bail was sought for alleged offence under SC/ST Act. It was observed that the bar of section 18 of the Act was attracted only where the FIR prima facie shows the commission of offence under the Act. In the facts of the instant case it was not prima facie established from the perusal of the FIR that the accused-applicants knew the complainants who were from a different village. Hence, prima facie not established that applicants knew the caste of the complainants. It is not inferable that there was intention to abuse the complainants with case related words. The act was not intentional and thus bar of section 18 of the Act not altercated. Anticipatory bail was granted.

* In Sudama v. State of U.P. it was observed: [(2007) (57) ACC 79]

"Where a prima facie case for interim relief is disclosed, as the case appears to be a very petty or frivolous matter, where arrest may not appear immediately necessary, or where a person appears to have been implicated owing to political or other rivalry, the Sessions Court may grant interim anticipatory bail for a week or so, and pass orders or final orders on the application under section 438 after hearing the Public Prosecutor after giving him time to obtain instructions from the I.O. The accused if he is aggrieved with an order of a Sessions Court refusing to grant anticipatory bail has the further remedy of approaching the High Court."

While granting bail, the courts have also to take into account:

(i) the nature and seriousness of the accusation;

(ii) the nature of prosecution evidence;

(iii) the security of the likely punishment in case the prosecution succeeds;

(iv) the status of the accused.

It must be kept in mind that while examining the nature of prosecution evidence for this purpose, detailed examination of evidence should be avoided, broad circumspection is enough; Jagannath v. State of Maharashtra, 1982 LR 261.

Some Illustrations: Application of section 438 of the Code of Criminal Procedure, 1973

Kusum Rani Bansal v. State of Punjab, 1978 Cur LJ (Cr) 235 (236) (P&H): The investigation was on and over eight months had passed but nothing incriminating had been discovered. The conditional pre-arrest bail to the petitioners was granted. The condition was that they will/would be available for investigation as and when required.

In Chand Mohd. v. State, Cr LR 507 (508) (Raj), it was observed that it would not be unreasonable to enlarge the accused on bail where it appeared that the condition of the injured had been improved and injuries caused by a sharp object were not sufficient to cause death.

In Dilbag Singh Deleka v. State, 1977 Cur LJ 237 (247), it has been held that vague allegations in the FIR and the same remained unsubstantiated up to the date of hearing of the petition, is a fit case for the grant of anticipatory bail.

In Jai Lal v. State of Himachal Pradesh, it was held that the fact that the petitioner would co-operate with the investigation and interrogation and the other reason being that the other co-accused have been granted bail cannot be sufficient ground to grant anticipatory bail under section 438 of Cr. P.C. as it would be fatal in the interest of justice.

In Pyarelal Pandey v. State of Madhya Pradesh, 1979 Cr LR (MP) 108 (112): 1980 Cr LJ 183 it has been held that since the suspect died due to torture in the police lock up and the hurt caused by the police officer in the investigation of crime is one of the most gravest offences known to law, grant of anticipatory bail pending investigation of crime would be hazardous.

The main consideration where anticipatory bail should not be refused are: the nature of the accusation and the evidence besides the status of the accused. K.S. Mathur v. State of Rajasthan, 1981 Cr Cas 281.

Primarily the accused has to surrender before the Court. Then application for grant of bail through an attorney will be considered. Kripa Shankar v. State of Uttar Pradesh, 1984 Cr LJ (NOC) 137.

It was held in Ram Gopal v. State of Rajasthan, 1983 Cr LR (Raj) 217 that if the first application for bail was rejected then it would be impossible to grant the second application for bail.

Latest judgment in Anticipatory Bail

Anticipatory Bail: Involvement of accused after 41/2 months from date of murder.

The judicial discretion exercised in granting anticipatory bail is neither perverse nor erroneous. On the other hand, they are based on relevant considerations supported by the reasons.

In case of Siddharam Satlingappa Mhetre v. State of Maharashtra, MANU/SC/1021/2010 : AIR 2011 SC 312 the Supreme Court in respect of grant of bail for limited period observed as follows:

"Grant of bail for limited period is contrary to legislative intention. Section 438, Cr. P.C. does not mention any thing about the duration to which the direction for release on bail in the event of arrest can be granted. The order granting anticipatory bail is a direction specifically to release the accused on bail in the event of his arrest. Once such a direction of anticipatory bail is executed by the accused and he is released on bail, the concerned court would be fully justified in imposing conditions including direction of joining investigation. In pursuance to the order of the Court of Sessions or the High Court, once the accused is released on bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail."

In Vaman Narain Ghiya v. State of Rajasthan, MANU/SC/8394/2008 : AIR 2009 SC 1362 it was held that direction that applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such blanket order should not be passed.

Cancellation of Anticipatory Bail: Illegality

The accused was charged of fraudulently opening of Bank Account to misappropriate school funds. The bail granted, was cancelled even though bail was not abused. And no supervening circumstance had surfaced justifying cancellation. It was held that cancellation of bail was improper. Hazari Lal Das v. State of West Bengal AIR 2010 SC 91.

Blanket Order of Anticipatory Bail

Once the investigation makes out a case against the accused and he is included as an accused in the charge-sheet, the accused has to surrender to the custody of the court and pray for regular bail. On the strength of an order granting anticipatory bail, an accused against whom charge has been framed, cannot avoid appearing before the trial court. A blanket order of anticipatory bail would lead to an absurd situation that charge gets framed against the accused in his absence. This would be violative of provisions of section 240 of Cr. P.C; HDFC Bank Ltd. v.J.J. Mannan, MANU/SC/1923/2009 : AIR 2010 SC 618.

Cancellation of Anticipatory Bail

When different versions of incident are given in three different complaints, the anticipatory bail granted to accused cannot be cancelled; Pravinbhai Kashirambhai Patel v. State of Gujarat, MANU/SC/0460/2010 : AIR 2010 SC 3511.

Condition Precedent for Grant of Anticipatory Bail

In O.K. Ganesh Babu v. P.T. Manokaran, MANU/SC/1086/2007 : AIR 2007 SC 1450: 2007 Cr LJ 1827: (2007) 4 SCC 434 where anticipatory bail application was disposed of by the High Court directing accused to execute a bond with two sureties, to appear before police for a period of two weeks daily at 10 a.m., to surrender before court for executing bond and furnishing sureties. The said directions were held to be outside the scope of section 438 and therefore liable to be modified. The directions that a court can issue under section 438 of the Code of Criminal Procedure, 1973 is that in the event of arrest of an accused on an accusation of committing a non-bailable offence, he shall be released on bail subject to such conditions as the court may deem fit to impose. An application under section 438 of the Code of Criminal Procedure, 1973 can be moved only by a person who has not already been arrested, Once he is arrested, his remedy is to move the concerned court either under section 434 or section 439 of the Code of Criminal Procedure, 1973. In the very nature of the direction which the court can issue under section 438 of the Code of Criminal Procedure, 1973, it is clear that the direction has to be issued only at the pre-arrest stage. The direction becomes operative only after arrest. The condition precedent for the operation of the direction issued is arrest of accused. This being so, the irresistible interference is that while dealing with an application under section 438 of the Code of Criminal Procedure, 1973 the court cannot restrain arrest.

Propriety of Anticipatory Bail

In D.K. Ganesh Balm v. P.T. Manokaran, MANU/SC/1086/2007 : AIR 2007 SC 1450: (2007) 4 SCC 434: 2007 Cr LJ 1827 distinction between an ordinary order of bail and an order under section 438 of the Code of Criminal Procedure, 1973 has been drawn. The former is granted after arrest and therefore means release from custody of police, the latter is granted a bail in anticipation of arrest and is therefore effective at the very moment of arrest.

Imposition of Conditions

In Mahesh Chandra v. State of Uttar Pradesh, (2006) 6 SCC 196, it was observed that while deciding the bail application, it is not the jurisdiction of the court to decide civil disputes as between the parties. Hence the matter was remitted to High Court to consider the bail application already on merit and to pass an appropriate order without imposing any condition of the nature imposed by the impugned order.

Condition of Making Huge Deposits

In Sohan Lal Juneja v. State of Punjab, MANU/SC/8655/2006 : AIR 2007 SC 136: 2007 Cr LJ 303: (2006) 12 SCALE 210 it was observed: The FIR pertains against appellants and others for their alleged involvement in misappropriation of stock. The order imposing condition of making huge deposits for protection under section 438 of the Cr. P.C. was not reasoned. In the order the ambit of section 438 had not been kept in view. The order as was held is liable to be set aside. It was held that the High Court should keep in view the principles indicated by the Supreme Court relating to section 438 of Cr. P.C. in Adri Dharan Das v. State of West Bengal, MANU/SC/0120/2005 : (2005) 4 SCC 303: AIR 2005 SC 1057: 2005 AIR SCW 1013: 2005 Cr LJ 1706 and the relevancy and the applicability of the decision in Bal Kishan Das v. P.C. Nayar, MANU/SC/0353/1991 : AIR 1991 SC 1531: 1991 AIR SCW 1353 while dealing with application in terms of section 438.

Power of Court

In O.K. Ganesh Babu case, MANU/SC/1086/2007 : AIR 2007 SC 1450: (2007) 4 SCC 434: 2007 Cr LJ 1827 it was observed that the power exercisable under section 438 of the Code of Criminal Procedure, 1973 is somewhat extraordinary in character and it is only in exceptional circumstances and where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty then power is to be exercised under section 438.

Factors to be Taken into Consideration

In Bharat Chaudhary v. State of Bihar, MANU/SC/0787/2003 : (2003) 8 SCC 77: AIR 2003 SC 4662: 2003 Cr LJ 5038: (2003) 8 SCALE 340 it was observed that the object of section 438 is to prevent undue harassment of the accused person in pre-trial arrest and detention. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. The court i.e. the Court of Session, High Court or Supreme Court have the necessary power vested in them to grant anticipatory bail in non-bailable offences under section 438 of the Code of Criminal Procedure, 1973 even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.

Limited Duration of Bail

In Adri Dharan Das v. State of West Bengal, MANU/SC/0120/2005 : (2005) 4 SCC 303: AIR 2005 SC 1057: 2005 AIR SCW 1013: 2005 Cr LJ 1706 it was observed that the anticipatory bail is given for a limited duration so as to enable the accused to move the regular court for bail in terms of section 439 of the Code of Criminal Procedure, 1973. The view that such limited duration may extend to the date on which the bail application is disposed of or even few days thereafter to enable the accused to move the higher court, cannot be accepted.

Ground of Parity

In Kamaljit Singh v. State of Punjab, (2005) 7 SCC 226 it was observed that on similar allegation, the remaining two accused had been granted the said benefit of anticipatory bail, it is a fit case for granting anticipatory bail.

Absence of Adequate Opportunity to File Objection

Union of India v. Yusuf Razak, Dhanani, MANU/SC/0686/2003 : (2003) 8 SCC 98: AIR 2003 SC 4578: 2003 Cr LJ 4560.

The appellant-accused being apprehended arrest, moved an application for anticipatory bail during vacation. The matter was heard by the High Court on the very next day without giving adequate opportunity to file objections. It was held that the procedure adopted by the High Court was bad. The matter was remanded to High Court to be heard afresh.

Publication of Article on Religious Feeling

In B.V. Seetharama v. State by Inspector-General of Police, (2007) 3 Karn LJ 269: 2007 Cr LJ 3503 it was held that the relief of blanket order of anticipatory bail could not be granted where the relief asked for was to grant anticipatory bail in all future cases to be registered against them (petitioner) anywhere in the State of Karnataka for the offence of publishing article on religious feeling.

Territorial Jurisdiction to Hear Anticipatory Bail Application

The Sessions Court or the High Court of that State has the jurisdiction to hear the anticipatory bail application where the accused is alleged to have committed an offence. Not only this, any anticipatory bail granted by a competent court, without hearing the State concerned, or Director General of Police, is held illegal.

In para 10 of its judgment, in State of Assam v. Dr. Brojen Gogol, MANU/SC/0845/1998 : (1998) 1 SCC 397: AIR 1998 SC 143: 1997 AIR SCW 4101: JT (1997) 8 SC 652, the Supreme Court held that the question of granting anticipatory bail to any person who is allegedly connected with the offences in question must for all practical purposes be considered by the High Court of Guwahati within whose territorial jurisdiction such activities could have been perpetrated. Since the State of Assam was not heard in that case, on that ground only, the Supreme Court set aside the orders of the grant of anticipatory bail.

In order to avoid conflicting decisions and opinions, the Supreme Court directed that all future petitions for anticipatory bail made by anyone in common or related matters referring to such activities committed within the territorial limits of the Guwahati High Court shall be heard only by the same Division Bench. The Supreme Court in this case directed the registrar to take immediate steps to ensure that the applications filed by the respondents for anticipatory bail in Bombay High Court are despatched to the Guwahati High Court.

Pre-arrest Bail and Post-arrest Bail

In Dukhishyam Benupani v. Arun Kumar Bajoria, AIR 1998 SC 696: (1998) 1 SCC 52 the Supreme Court held that considerations for pre-arrest are different from post-arrest bail. The Supreme Court further held that the court should not monitor the investigating process unless such investigation transgresses any provisions of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions.

The Supreme Court also pointed out that considerations to be weighed with the court while dealing with a prayer for pre-arrest bail order are materially different from a post-arrest bail application.

The petitioner before the Supreme Court alleged that the High Court was interfering with the procedure adopted by the investigating agency, and wanted to act as the High Court directed.

The Supreme Court held that 'it is not the function of the court to monitor investigation process so long as such investigation does not transgress any provisions of law. It must be left to the investigating agency to decide the venue, the timing and the 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.

In Jitendra Singh v. State of Rajasthan, 1999 Cr LJ 158 (Raj): 1998 Cri LR (Raj) 804: 1998 (2) Raj Cri C 709, the High Court of Rajasthan held that 'consideration which must' be kept on the mental screen and precautions which may be taken in disposing of an application for anticipatory bail under section 438 of the Code of Criminal Procedure, 1973, require to be spelled out in the order that the provision is meaningfully applied and judicial discretion is exercised in an appropriate manner in such matters.

The High Court deprecated the mechanical manner in which the anticipatory bails are rejected by the Sessions Court. It observed that anticipatory bail application was dismissed by the Sessions Judge without assigning any reasons and without applying his mind to the glaring facts of the case. The High Court granted conditional anticipatory bail to the petitioner.

If at the time of hearing the anticipatory bail application the court is convinced that the petitioner is alleged to have committed serious crime of murder and criminal conspiracy and the available evidence points out accused's participation in the alleged crime, the grant of anticipatory bail under these circumstances will be improper.

In para 59 of its judgment, the High Court of Gujarat in State of Gujarat v. Dipak Jaswantlal Seth, 1999 Cr LJ 162 (176): 1998 Cr LR (SC MAH GUJ) Guj 264: 1998 (2) Guj LH 1044 para 59, made the following observations:

"In these circumstances the order of the Sessions Court in issuing directions in respect of Respondent No. 2, under section 438 deserves to be set aside and the bail granted in pursuance of that direction be cancelled. However keeping in view the fact that reasons for setting aside the order under section 438 is that the learned Sessions Judge has improperly considered application under section 438 and it is because of serious infirmity in considering the application inasmuch as the approach of the learned sessions Judge ignores the well settled principles for considering the applications in case of non-bailable offence punishable with death and life imprisonment. The order under section 438 is not sustained by this court but at the same time, this court being not for the present seized with the matter for grant of bail on merit and direction under section 438 has already been operated by arresting the respondent and releasing him on bail and no untoward incident has been reported so far about abuse of his liberty by the accused respondent, it will be only appropriate that in consonance enunciated in Salauddin Abdul Samad Sheikh v. State of Maharashtra, MANU/SC/0280/1996 : AIR 1996 SC 1042: (1996) 1 SCC 667: (1995) Supp 6 SCR 556, and the practice of this court, the impugned order be modified from being in the nature of unlimited operation to be circumscribed with usual limitations.

The Andhra Pradesh High Court in K. Rajashekhara Reddy v. State of Andhra Pradesh, 1999 Cr LJ 1933: MANU/AP/0620/1998 : 1998 (4) ALD 677, held that even in the absence of the registration of the crime, the court can grant anticipatory bail. But the application must disclose a reasonable belief. The court cannot entertain any application on mere suspicion, gossip or wild rumour.

In para 11 of its judgment the High Court observed, "It is thus clear that filing of an FIR and registration of a crime by the police is not a condition precedent to the exercise of power under section 43 of the Code of Criminal Procedure, 1973.... There is also no requirement that a copy of the FIR should be made available for the purpose of considering the application under section 438 of the Code of Criminal Procedure, 1973.

In Thayyanbadi Meethal Kunhiraman v. S.L of Police, Panoor, 1985 Cr LJ 1111: 1985 Ker LT 378: 1985 Mad LJ (Cri) 263, the Kerala High Court observed:

"In order to invoke the provision, it is not necessarv that a case has already been registered or even a first information has been lodged. The court must be satisfied that there is a reasonable chance of arrest in connection with the specified accusation."

In case of Dharam Vir v. State of Rajasthan, JT 2000 (10) SC 318 the Supreme Court held when the accused has not played a major role in the offence and if the accused who has played a major role has been released, is entitled to anticipatory bail.

Pre-arrest Bail

In Abdul Hamit Ansari v. State of Maharashtra, AIR 2000 SC 3541: 2000 Cr LJ 4660: JT 2000 (7) SC 390 it was held that the appellants though not traced out first stage of investigation included among suspected persons pursuant to further investigation the deceased was described by the appellants as dreaded. In peculiar facts and circumstances the pre-arrest bail to appellants was not granted. But the directions issued to release appellants on bail if appellants surrender before police within two weeks.

Interim Bail

In case of Sukhwant Singh v. State of Punjab, 2010 AIR SCW 1185 "the Supreme Court opined that the court has inherent power to grant interim bail." Further it was held in this case that:

"In the power to grant bail there is inherent power in the Court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the Court concerned to grant interim bail or not but the power is certainly there".

Supreme Court Guidelines on Anticipatory Bail

Gurbaksh Singh Sibbia v. State of Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632: (1980) 2 SCC 565 as explained in Savitri Agarwal v. State of Maharashtra, AIR 2009 SC 3173: MANU/SC/1193/2009 : (2009) 8 SCC 325

1. Though the power conferred under section 438 of the Code can be described as of an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the section has to be exercised with due care and circumspection depending on circumstances justifying its exercise.

2. Before power under sub-section (1) of section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence and that belief must be founded on reasonable grounds. Mere "fear" is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to Judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.

3. The observations made in Balchand Jain v. State of Madhya Pradesh, AIR 1977 SC 66: (1976) 4 SCC 572, regarding the nature of the power conferred by section 438 and regarding the question whether the conditions mentioned in section 437 should be read into section 438 cannot be treated as conclusive on the point. There is no warrant for reading into section 438, the conditions subject to which bail can be granted under section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

4. No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be effective. While granting relief under section 438(1) of the Code, appropriate conditions can be imposed under section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.

5. The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

6. An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested.

7. The provisions of section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under section 437 or section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

8. An interim bail order can be passed under section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government-advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad-interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage.

9. Though it is not necessary that the operation of an order passed under section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.

At this juncture, it would be appropriate to note that the view expressed by this Court in Adri Dharan Das v. State of West Bengal, MANU/SC/0120/2005 : (2005) 4 SCC 303: AIR 2005 SC 1057: to the effect that while dealing with an application under section 438 of the Code, the Court cannot pass an interim order restraining arrest as it will amount to interference in the investigation, does not appear to be in consonance with the opinion of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632: (1980) 2 SCC 565. Similarly, the observation that power under section 438 is to be exercised only in exceptional cases seems to be based on the decision in Balchand's case (supra), which has not been fully approved by the Constitution Bench.

Supreme Court Guidelines on Anticipatory Bail - Relevant factors

State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, MANU/SC/8008/2007 : AIR 2008 SC 155: (2008) 3 SCC 213

The four factors, which are relevant for considering the application for grant of anticipatory bail, are:

1. the nature and gravity or seriousness of accusation as apprehended by the applicant;

2. the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;

3. the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and

4. the possibility of the appellant, if granted anticipatory bail, fleeing from justice.

Chapter 7

Cancellation of Bail

Cancellation of Bail: Conduct of Accused Subsequent to Release	73
Whether the Magistrate has any Power to Cancel the Bail	74
Cancellation of Bail Granted under section 389 of the Code of Criminal Procedure, 1973	78
Cancellation: Should not be in Mechanical Manner	79
Reconsideration of Material and Absence of Discovery of New Material	80
Supervening Facts and Post-Release Misconduct	80
Cancellation of Bail Other than State	80
Non-Disclosure of the Identity of the Petitioner for Cancellation of Bail	80
Right of Appellant to be Released on Bail	81
Bail Matters Not to be Over-Publicised	81
Distinction Between Rejection and Cancellation of Bail	82
Reasoned Order to be Passed While Dismissing Bail Application	83
Leading Cases: Latest on Cancellation of Bail	84
Threat to Witnesses	84
Alien Grounds of Case	84
Other Cases Against Accused Pending for Trial	84
Misuse of Temporary Bail	85
Hearing of the Accused	85
Grounds for Cancellation	85
Cryptic Order	86
Intervention by the National Human Rights Commission	86
Lawyer's Duty	87
Appeal against Cancellation of Bail	87
Rejection of Bail on Basis of Confessional Statement	88
Misuse of Bail	88
Cancellation of Bail	88
Likelihood of misuse of bail is not the only factor for cancellation of bail	88

The sub-section (5) of the section 437 of the Criminal Procedure Code, 1973 provides that any court releasing any person on bail may direct that such person be arrested and commit him to custody. Hence the High Court or Court of Session can cancel the bail. But a Magistrate has no power to cancel the bail when such bail has been granted by the High Court on the same case.

If the courts have the discretion or power to grant bail, they have also the power to cancel bail already granted to a person accused of an offence under the Indian Penal Code or under any other provision of law.

In Puran v. Rambilas, MANU/SC/0326/2001 : (2001) 6 SCC 338 it was inter alia held that one of the grounds for cancellation of bail would be where material evidence brought on record have been ignored and that to without any reason.

Keeping this observations in view the Supreme Court from the peculiarity and circumstances of farts in the case of Curia, Swayam Sevi Sansthan v. State of Uttar Pradesh, 2010 AIR SCW 1182 held the opinion that if the private respondents had been granted bail long time back and in some case trials have also been concluded, it would not be proper to cancel bail.

In State through Delhi Administration v. Sanjay Gandhi, 1978 Cr LJ 952: MANU/SC/0171/1978 : AIR 1978 SC 961: (1978) 2 SCC 411: (1978) 3 SCR 950, the Supreme Court held that a person whom bail has been granted the court has power to cancel his bail. There has been different opinions on whether the anticipatory bail can be cancelled before regular bail is actually granted.

No answer to this question is explicitly available either in section 438 or in any other provision of the Code of Criminal Procedure, 1973, However, the High Courts of Delhi and Bombay have answered the question in affirmative; Suresh Vasudev v. State (Delhi Administration), 1978 Cr LJ 677; State of Maharashtra v. Vishwas, 1978 CrLJ 1403.

In the State of Maharashtra v. Vishwas, 1978 Cr LJ 1403, it was observed ...by its very nature... orders of bail do not possess irreversible finality. Law does not inhibit cancellation or revocation of such orders. In this context when section 438 permits of making an order and order is made granting anticipatory bails, it is simple that the court making such an order is entitled upon appropriate concentration to cancel or recall the same. It is not necessary for such purposes to find out any further specific provision conferring power of cancellation.

Further the High Court was of the view that Chapter XXXIII of the Code of Criminal Procedure, 1973 postulates two types of release on bail, viz., release after arrest, and release from arrest; the first wherein the arrest is accomplished while in the second it is in anticipation. Therefore, the High Court of Bombay held that the persons released on bail and those who have obtained anticipatory bail are covered under section 439(2) and the bail orders (including anticipatory bail orders) can be cancelled in respect of all these persons in appropriate cases.

Now let us see what the High Court of Delhi has pointed out in its judgment in Suresh Vasudev v. State (Delhi Administration), 1978 Cr LJ 677. The High Court of Delhi in its judgment has observed that "the order for anticipatory bail is really an order for bail in the event of arrest". The High Court further held that like another order, for the bail, it can always be cancelled in appropriate cases if a case is made out for the same.

From the two judgments quoted above, we find an answer to the effect that if the case is made out the anticipatory bail already granted can also be cancelled.

Cancellation of Bail: Conduct of Accused Subsequent to Release

In cancellation of bail the conduct of accused subsequent to release on bail and supervening circumstances will be relevant. However, power of a superior court to cancel bail in appropriate cases on other grounds is not restricted. Subodh Kumar Yadav v. State of Bihar, MANU/SC/1207/2009 : AIR 2010 SC 802.

Whether the Magistrate has any Power to Cancel the Bail

The simple answer is NO. The Magistrate has no power to cancel the bail of a person who has been granted bail in a bailable offence. May be bail has been granted by the same Magistrate who cancelled the orders of bail in the bailable offence. Therefore, it is quite clear that a Magistrate has the power to grant bail in a bailable offence, but he has no power to cancel the bail granted by him.

In the case of State through Delhi Administration v. Sanjay Gandhi, 1978 Cr LJ 952: MANU/SC/0171/1978 : AIR 1978 SC 961: (1978) 2 SCC 411: (1978) 3 SCR 950 the Supreme Court held that the power to cancel bail must be exercised with care and circumspection in appropriate case.

In Janardhan Yadav v. State of Bihar, 1978 Cr LJ 1318: MANU/BH/0070/1978 : AIR 1978 Pat 322, the petitioners were being prosecuted for a bailable offence under section 325 of the Indian Penal Code and were on bail. As they were found threatening the prosecution witnesses, the Magistrate after due enquiry cancelled their bail bond. When the matter came up before the High Court of Patna, the court, after having gone into the provisions of the Code and the facts and circumstances of the case, pointed out that the said Magistrate had no power to cancel the bail bond of the petitioners who had been granted bail under bailable offence.

Therefore, the power to cancel bail in respect of any offence, bailable or non-bailable, has been confined to the Court of Session and the High Court under section 439(2) of the Code of Criminal Procedure, 1973.

It will be interesting to know that a Magistrate who has granted the bail in a non-bailable offence can cancel the bail if he finds it necessary but the Magistrate granting bail in bailable offence, is not competent to cancel bail.

There are certain circumstances which are to be kept in mind by the Session Court or the High Court when the bail already granted is to be cancelled. Rejection of bail is certainly different than the cancellation of bail. The judgment in Gurcharan Singh v. State (Delhi Administration), 1978 Cr LJ 129 (132): AIR 1978 SC 179a: (1978) I SCC 118: (1978) 2 SCR 358, is of great significance. The said judgment covers almost all the circumstances in relation to the cancellation of bail.

The following observations of the Supreme Court in the above case are very important:

"It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying wide powers, will be oblivious of the considerations of the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of the bail under section 437 of the Code of Criminal Procedure, 1973 for the Magistrate will be ignored by the High Court or by the Sessions Judge."

There is another interesting judgment in which a son of a Prime Minister tried to intimidate the witnesses and tamper with the evidence. The Supreme Court did not hesitate in cancelling the bail already granted to him; State through Delhi Administration v. Sanjay Gandhi, 1978 Cr LJ 952: MANU/SC/0171/1978 : AIR 1978 SC 961: (1978) 2 SCC 411: (1978) 3 SCR 950.

While allowing the appeal and cancelling the bail of Sanjay Gandhi, the Supreme Court laid down the law relating to the cancellation of the bail. According to the Supreme Court "the rejection of bail when applied for is one thing, cancellation of bail already granted is another."

It is easier to reject a bail application in a non-bailable offence than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial."

The fact that the prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over..... The objective fact that the witnesses have turned hostile must be shown to bear a casual connection with subjective involvement therein of the respondent (accused) without such proof a bail once granted cannot be cancelled on the off chance or on the supposition that the witnesses have been won over by the accused.

The prosecution can establish its case in an application for cancellation of bail by showing preponderance of probabilities that the accused had attempted to tamper or has tampered with witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.

By applying the above test to the facts and the circumstances of the case, the Supreme Court concluded, that the respondent has abused the liberty to suborn the prosecution witnesses and that the respondent's bail ought to be cancelled.

The power, therefore, to cancel the bail has to be exercised with care and circumspection. Finally, to bring home its point the Supreme Court struck a note of warning and further observed:

"Refusal to exercise the wholesome power in such cases ......

will reduce it to a dead letter and will suffer the court to be silent spectator to the subversion of judicial process. We might as well wind up the courts and bolt their doors against all than to permit a few to ensure that justice shall not be done.

The facts in Mohan Singh v. Union Territory of Chandigarh, 1978 Cr LJ 844: MANU/SC/0128/1978 : AIR 1978 SC 1095: (1978) 2 SCC 366: (1978) 3 SCR 127, arc quite significant and worth taking note of. In this case the accused was granted bail by the Sessions Court, but his bail was cancelled by the High Court of Punjab and Haryana on the ground that the accused simultaneously moved the Sessions Court and the High Court. The High Court thus reversed the bail order already granted by the Sessions Court only on the plea of concealing the fact that he had simultaneously moved the Sessions Court and the High Court for the grant of bail.

The Supreme Court in this case observed that the appellant had not interfered with the course of justice. Deciding his appeal against the orders of the High Court, the Supreme Court allowed the appellant to continue on bail. Lastly the Supreme Court made an observation that refusal of bail should not be used as an indirect process of punishing an accused person before he is convicted.

If after rejection of bail by the Magistrate, High Court grants bail, the Supreme Court may interfere; Bimla v. State of Bihar, (1994) 1 UJSC 326: 1994 Cr LJ 638: MANU/SC/0606/1994 : (1994) 2 SCC 8.

In the case of Kartar Singh v. State of Punjab, JT 1994 (2) SC 423 the Court held that although the High Court has jurisdiction to entertain the prayer for bail in writ jurisdiction, it has no power to cancel the bail, once the bail has been granted by the Supreme Court.

In yet another case, Bashir v. State of Haryana, 1978 Cr LJ 173: MANU/SC/0077/1977 : AIR 1978 SC 55: (1977) 4 SCC 410: (1978) 1 SCR 585, the Sessions Court refused to grant bail to the accused person. On appeal the High Court also rejected his bail application on merits. In this case the challan had not been filed within 60 days, as required under section 167(2) of the Code of Criminal Procedure. On this plea the High Court granted him bail but after the challan was filed the prosecution filed an application for cancellation of his bail on merits of the case. Curiously, ignoring the provisions of section 167(2) of the Code of Criminal Procedure both the Court of Session as well as the High Court cancelled the bail of the appellant on merits only. Aggrieved by this order the appellant moved the Supreme Court and prayed for grant of bail on the basis of the provisions of section 167(2). While granting bail to the appellant, the Supreme Court made the following observations:-

"Cancellation of bail can only be on the grounds known to law. The fact that before an order was passed under section 167(2) of the Code of Criminal Procedure the said bail petition of the accused was dismissed on merits, is not relevant for the purpose of taking action of cancellation of bail under section 437(5). Neither it is a valid ground that subsequent to the release of appellant, a challan was filed by the Police."

The appellants were thus set at liberty by a judgment passed by the Supreme Court setting aside the orders of the Sessions Court as well as the High Court.

In T.N. Jayadesh Devidas v. State of Kerala, 1980 Cr LJ 906, the Petitioner moved an application under section 482 of the Code of Criminal Procedure to get the orders quashed by the Chief Judicial Magistrate, directing him (already released on bail by the concerned Magistrate) to appear in the court to be placed under the custody of police for four days to enable the police to make effective recovery. The appellant moved against the orders of the Chief Judicial Magistrate. Here are the observations made by the High Court of Kerala in this case-"Section 437(5) contemplates a situation where a person enlarged on bail has misused freedom granted or has disobeyed the condition imposed or has imperiled the smooth course of investigation or has done such acts as in the opinion of the court are sufficient to cancel the bail already given. To extend the principle contained in the above sub-section to the case on hand would not only be doing violence to the sub-section but to override the principles under which a citizen's liberty is safeguarded. A court has no right to direct a person to be committed to custody for the purpose of securing recovery under section 27."

Thus, the bail already granted to the accused person in this case was not cancelled as per the directions and findings of the High Court.

It was held by the Supreme Court in case of Vikramajit Singh v. State of Madhya Pradesh, MANU/SC/0081/1992 : AIR 1992 SC 474: 1992 Cr LJ 516: 1992 Supp (3) SCC 62 that where the bail granted to the accused by High Court was cancelled by the Co-ordinate Bench of same court on an application for cancellation filed by State having no additional fact stated nor any allegation made against the accused, cancellation of bail would not be proper.

Cancellation of Bail Granted under section 389 of the Code of Criminal Procedure, 1973

In State of Madhya Pradesh v. Chintaman, 1989 Cr Lj 163, the High Court of Madhya Pradesh has held that once a bail is granted under section 389 of the Code of Criminal Procedure, 1973 it could not be cancelled under section 439(2) inasmuch as the persons who are granted bail were no more accused. In this case the persons were convicted and sentenced under sections 148, 323/149 and 326/144 of the Indian Penal Code (45 of 1860). They preferred an appeal in the High Court which suspended the sentence and released them on surety. After some time the State moved an application for cancellation of bail as they were tampering with the evidence. After going through the facts and the circumstances of the case, the High Court of Madhya Pradesh declined to accept the prayer of the State and observed:

"By passing an order under section 389 of the Code of Criminal Procedure, 1973 the sentence is not set aside but is merely suspended, that is kept in abeyance, and the appellant remains a convict for all practical purposes. The indulgence is shown because the appellate court feels that the guilt is required to be rejudged and pending such adjudication if the appellant had served the sentence or a substantial part of it, in the event of his ultimate acquittal the suffering may become irreversible."

It is pertinent to note that section 389 of the Code of Criminal Procedure, 1973 speaks about the convicted person whereas section 439 speaks about the accused person. Therefore, the judgment passed by the High Court in this case has the validity of the reasons explained in its findings and is laudable.

Cancellation: Should not be in Mechanical Manner

In Dolat Ram v. State of Haryana, JT 1995 (1) (SC) 127: MANU/SC/0547/1995 : (1995) 1 SCC 349: (1994) Supp 6 SCR 69, the Supreme Court held that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances had rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. The Supreme Court further held that in this case, these principles appeared to have been lost sight of by the High Court, when it decided to cancel the bail already granted.

In para 4 of its judgment the Supreme Court very clearly observed that 'rejection of bail in a non-bailable case at the initial stage and the cancellation of the bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. Interference or attempt to interfere with due course of administration of justice or evasion or attempt to enable the due course of justice, or abuse of the concession granted to the accused in any manner are some of the grounds which must weigh in the mind of the High Court, while cancelling the bail already granted to an accused person. The possibility of the accused's absconding is yet another reason justifying the cancellation of the bail.

In Gurbaksh Singh Sibba v. State of Punjab, MANU/SC/0215/1980 : (1980) 2 SCC 565: AIR 1980 SC 1632: (1980) 3 SCR 383, the Supreme Court held that 'the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying grant or refusal of bail'.

Reconsideration of Material and Absence of Discovery of New Material

For the purpose of cancellation of bail, the discovery of new material in relation to reconsideration of material is important. And the prosecution agency do not always have at their table. Thus it cannot be said that the freedom granted to the accused was abused or misused when there is an absence of subsequent discovery of new material or there was any danger of tampering with the evidence by the accused. Thus the learned Sessions Judge, in Gurcharan Singh v. State of Delhi (Admn.), AIR 1978 SC 179: (1978) 1 SCC 118: (1978) 2 SCR 358, found that when the bail application was filed or applied for, there was hardly any matter except the matter of suspicion but as the investigation proceeding further and more facts and circumstances confer to the light and in consequence some material was found, was held to be relevant in the cancellation for bail under section 439(2) of the Code of Criminal Procedure, 1973. The keywords are appropriate circumstances where the Sessions Judge have the power to cancel the bail.

Supervening Facts and Post-Release Misconduct

When supervening facts are brought to the notice of the court, the court may cancel the bail looking from the angle of seriousness of the case. Absence of post-release misconduct is an essential factor to deny the cancellation of bail. A relevant case in this connection is Bhagirath Singh Judeja v. State of Gujarat, (1984) 1 Crimes 334: MANU/SC/0052/1983 : AIR 1984 SC 372: (1984) 1 SCC 284: (1984) 1 SCR 839.

Cancellation of Bail Other than State

A third party or a private party may apply for cancellation of bail. Rajpal v. Jagvir Singh, 1979 All Cr Rep 514.

Non-Disclosure of the Identity of the Petitioner for Cancellation of Bail

The authenticity of the petitioner and the reliability of the allegations made by petitioner in the petition would damage the whole case as against the respondent against whom the relief is sought. The reason being that the respondent would not be able to verify the identity of the petitioner. The cancellation of bail was denied outrightly. Chhotelal v. Ganpat Singh Dhurvey, 1990 Cr LR (MP) 31.

Right of Appellant to be Released on Bail

This question was examined by the Supreme Court in Sanjay Dutt v. State through CBI, Bombay, JT 1994 (5) SC 540: MANU/SC/0554/1994 : (1994) 5 SCC 410: (1994) Supp 3 SCR 263, where it had been laid down that the right to be released on bail for failure to complete the investigation within the prescribed time is not automatic and even if indefeasible, it has to be availed of by the accused at an appropriate stage, and that "the indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of, once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after filing of the challan, the custody of the accused after the challan has been filed is not governed by section 167, but by different provisions of the Code of Criminal Procedure, 1973." If that right has accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter, since it is extinguished the moment challan is filed, because section 167, the Code of Criminal Procedure, 1973 ceases to apply.

On the question of grant of bail in this case, the Supreme Court directed the Designated Court to dispose of the bail application in accordance with the law expeditiously, keeping in view the principles laid down by this court, in the above referred case.

In case of enmity between parties and the plea of false implication raised by the appellant, the bail application cannot be disallowed; Harbansh Singh v. State of Uttaranchal, (2002) 49 ALR 111: I (2003) DMC 420.

Bail Matters Not to be Over-Publicised

The press has a very important role to play while reporting bail matters. This is indeed a crucial and most delicate stage and the merits or demerits of the case are not to be highlighted even by the courts at the stage of granting or refusing bail. The press has to be more careful. Every citizen who is being tried for an offence alleged to have been committed by him is presumed to be an innocent person till he is found guilty after the conclusion of the trial by a competent court.

Recently in Vishnu Pandit v. State, 1993 Cr LJ 3223, in which the Session Court granted him bait imposing certain conditions, the press publicised that case out of proportion and the result was that not only the bail granted by the Sessions Court was cancelled, the High Court of Delhi withdrew the powers of grant of bail of the concerned Sessions Judge. Though this harsh order of the High Court is not known to the law, yet the over publication of this matter made the Addl. Sessions Judge to suffer irreparable loss.

While granting bail to the accused Vishnu Pandit (who was earlier granted bail in alleged rape offence and later on was again taken into custody on the cancellation of bail by High Court) the Supreme Court in its very recent judgment had released him on bail with the observations that Vishnu Pandit had been kept in detention for a long time only on account of over publicising the matter in the press.

Sanjay Dutt v. State through CBI, Bombay, MANU/SC/0554/1994 : (1994) 5 SCC 410: JT 1994 (5) SC 540: (1994) Supp 3 SCR 263 is another example of over publication. Unfortunately, when the matter was pending before the court/courts, his innocence was debated on the streets, which was not liked by the courts. And due to variety of reasons, including out of proportion publicity the decision on his bail application got a severe blow and became complicated.

A reasonable restraint is therefore very essential, when the bail matter of an individual howsoever high or low one may be, is pending before a court of law, particularly before the apex Court.

Therefore, the press has to play a very important and significant role in order to protect the life and personal liberty of every individual, which is his fundamental right under article 21 of the Constitution of India. Press must act with full restraint and within limits, particularly where the dignity, reputation and liberty of an individual is at stake.

Distinction Between Rejection and Cancellation of Bail

The bail was granted to the accused petitioner, by the Second Addl. Sessions Judge, At that point of time, the State did not choose to question the grant of bail in the High Court, but the High Court later on cancelled the bail of the accused in the said case. When the matter came up in the Supreme Court, it relied on its earlier judgment [Dolat Ram v. State of Haryana, MANU/SC/0547/1995 : (1995) 1 SCC 349: (1994) Supp 6 SCR 69: (1994) 4 SCALE 1119] in which it was held:

"Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. The High Court, it appears to us, overlooked the distinction between the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted".

The Supreme Court thus observed that the above principles had been totally lost sight by the High Court while cancelling the bail. The High Court overlooked the distinction of factors while cancelling the bail of the appellant in a mechanical manner. The order of the High Court was thus set aside and the order of the 2nd Addl. Session Judge was restored.

Reasoned Order to be Passed While Dismissing Bail Application

In a murder case the accused was taken into custody. The accused continued to be in custody even though the investigating agency had laid the final report. On the application for bail by the accused-petitioner, the Patna High Court passed the following order:-

"Heard Counsel for the parties.

Considering the facts and circumstances of the case, I do not find any merit in this application. It is accordingly dismissed."

Being aggrieved by the cryptic order of the Patna High Court, the petitioner approached the Supreme Court by way of Special Leave Petition. The Supreme Court felt that the High Court should have passed a reasoned order before dismissing the bail application of the accused petitioner and directed the High Court to rehear the bail application. The order of the Supreme Court reads as under:

"We are unable to find from the aforesaid order as to any reason why the learned Judge did not find any merit in the application for bail. We do not know, whether he urged such grounds before the High Court, as the impugned order is silent. In such a situation we feel that a more feasible course is to permit the petitioner to move the High Court again. If any such application is filed, we request the High Court to pass a reasoned order while disposing of the application." [Dhruv K. Jaiswal v. State of Bihar, MANU/SC/1238/1999 : AIR 2000 SC 209: (2000) 10 SCC 84: 2000 Cr LJ 410].

In the matter of Raj Pal v. State of Uttar Pradesh, (2002) 49 ALR 4, the court held that misuse of the privilege of bail by the accused who have been previously released on bail, abuses the process of court and to secure the ends of justice bail bonds are to be cancelled.

Leading Cases: Latest on Cancellation of Bail

Threat to Witnesses

Mchboob Dawood Shaikh v. State of Maharashtra, MANU/SC/0048/2004 : (2004) 2 SCC 362: AIR 2004 SC 2890: 2004 Cr LJ 1359.

Mere assertion of an alleged threat to witnesses should not be utilised as a ground for cancellation of bail, routinely. Otherwise, there is ample scope for making such allegation to nullify the bail granted. The court should, in each case, carefully weigh the acceptability of the allegations and pass orders as circumstances warrant in law. Such matters should be dealt with expeditiously so that actual interference with the ordinary and moral course of justice is nipped in the bud and an irretrieval stage is not reached.

Alien Grounds of Case

Bunau Chatterjee v. Sanchita Chatterjee, MANU/SC/0125/2004 : (2004) 3 SCC 388: AIR 2004 SC 1699: 2004 Cr LJ 1451.

The court cannot cancel the bail on a ground alien to the grounds mentioned in section 437 of the Code of Criminal Procedure, 1973. Hence cancellation of bail by High Court on the ground that the accused failed to keep his wife (complainant) with him and thus violated the terms of compromise which formed the basis for the grant of bail, as was held not justified.

The grant of bail on the basis of an assurance of a compromise, or its cancellation for violation of the terms of such compromise, held not permissible. Further, material on record indicated that no such compromise was arrived at between the parties. Hence the question of fulfilling the terms thereof did not arise at all.

Other Cases Against Accused Pending for Trial

Omer Usman Chamadia v. Abdul, ATR 2004 SC 1508: 2004 Cr LJ 1364.

The bail was rejected on the ground that at least 7 other cases involving very serious charges against applicant were pending for trial and some of them were committed after obtaining bail in other cases. It was reasoned that there is every likelihood that applicant, if released on bail, would interfere with investigation, threaten witnesses and even go to the extent of causing physical harm to the complainant.

Misuse of Temporary Bail

Mandata Singh v. State of Rajasthan, AIR 2004 SC 3054: (2004) 9 SCC 428; (2004) 2 SCALE 545.

The temporary bail granted to accused was misused by him by entering into a conspiracy and getting purchaser of property of complainant assaulted. The medical report said that the purchaser had received grievous injuries. It was prima facie that the accused had misused the liberty and, his temporary bail was cancelled.

Hearing of the Accused

Gurdev Singh v. State of Bihar, AIR 2000 SC 3556: 2000 Cr LJ 4686.

The accused person refused to accept notice served as the process server indicated. Held: Report of server is not sufficient proof of notice, accused was entitled to hearing before bail is cancelled.

Grounds for Cancellation

Puran v. Rambilas, MANU/SC/0326/2001 : (2001) 6 SCC 338: AIR 2001 SC 2023: (2001) 3 SCR 432: 2001 Cr LJ 2566.

Generally speaking, the grounds for cancellation of bail are interference or attempt to interfere with the course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. However, these instances are not exhaustive but only illustrative. One such ground of cancellation of bail would be where ignoring material and evidence on record in perverse order granting bail is passed in a heinous crime.

In cancelling bail the court can consider whether irrelevant materials were taken into consideration by court granting bail. Suhodh Kumar Yadav v. State of Bihar, MANU/SC/1207/2009 : AIR 2010 SC 802.

In ease of Afzalkhan v. State of Gujarat, MANU/SC/7460/2007 : AIR 2007 SC 2111 it was observed that the detailed examination of evidence and elaborate documentation of merits of case are not to be done by court. See also Suman Pandey v. State of Uttar Pradesh, AIR 2007 SC (Supp) 621.

Cryptic Order

The grant of bail by a cryptic order without taking into consideration the relevant circumstances is not proper; A.K. Sharma v. State of LLP., (2005) 7 SCC 507.

Intervention by the National Human Rights Commission

Having been perturbed by the abuse and misuse of the TADA provisions, the Human Rights Commission (headed by Justice Ranganath Mishra) moved an application in the Supreme Court, before the Constitution Bench hearing Bail matter of Sanjay Dutt to intervene and address argument on true ambit and scope of section 5 of the Terrorist and Disruptive Activities (Prevention) Act (TADA), which makes mere possession of arms and ammunition, a substantive offence.

In its application, the Commission submitted that interpretation of section 5 of TADA was of great public importance, and therefore had been referred to a Constitution Bench of the apex Court.

The Commission further submitted that during the course of investigation into a large number of complaints of violation of human rights, section 5 had figured prominently as being grossly abused, violating the principles of human rights enshrined in articles 14 and 21 of the Constitution, as also violative of articles of International Human Rights Covenants to which India was a signatory.

The application filed by the Commission further stated that it had no interest in the dispute relating to grant of bail, but in the interest of justice and in public interest the Human Rights Commission be allowed to intervene in proceedings pending before the court in Sanjay Dutt v. State through CBI, Bombay.

The Bench headed by Justice A.M. Ahmadi (former Chief Justice of India) observed, "the court will not allow any third party to intervene in a criminal case. However, if the Commission wants to file written submissions, we will welcome it."

At the executive level, the Human Rights Commission has certainly gingered up both the State and the Central Government. The overall effect of all the efforts made by the Commission is that the Centre has sent a circular letter to all the State Governments to review all the TADA cases. Maharashtra has decided to review all the TADA cases and reportedly has dropped 40 per cent, cases booked under TADA. Andhra Pradesh is also going to review those cases. It is, of course, a happy beginning.

Raj Babbar, filmstar turned politician has spearheaded a campaign against the blatant misuse of TADA provisions through his newly formed organisation "Mukti". Justice V.R. Krishna Iyer, Justice Rajindar Sachhar and many social activists have also condemned the abuse and misuse of TADA provisions.

The author earnestly feels that pressure must be continued on the Government and every effort must be made by all social activists to see that the liberty of the innocent citizens is not jeopardised in any way under the garb of TADA provisions. The right to life is the most precious right that a citizen enjoys under article 21 of the Constitution of our country and it must be protected at all costs.

Lawyer's Duty

In dealing with bail matters, the lawyers have to act very cautiously and with great restraints. They must keep in mind that they are dealing with the dignity/ reputation and liberty of an individual which is at stake. They have to give utmost priority to the interest of their client and have to adopt a strategy accordingly keeping in view the gravity of the alleged offence and the mood of the Court. At the bail stage under no circumstances, the lawyers can afford to hurt the dignity of the Court and annoy the Presiding Judge unnecessarily. The law provides a great discretion to the Judge hearing the bail matters and the lawyers should not forget this important factor. At this stage every grain of mercy of the Court has to be diverted in favour of the accused person, whom the lawyer represents.

Appeal against Cancellation of Bail

The case was repeatedly adjourned with expectation that important witnesses would be examined by prosecution and trial would be completed at early date. It was also a fact that if the trial is not already over, Sessions Court would be directed to complete same within three months. And if for any reason, except non-co-operation of accused, the trial is delayed beyond three months, it was held that the accused would be at liberty to move Sessions Court for bail. Akhilesh Kumar Singh v. State of Bihar, MANU/SC/7240/2008 : AIR 2008 SC 1680.

Rejection of Bail on Basis of Confessional Statement

The case was based on confessional statement and other evidence showed the involvement of accused in alleged conspiracy. The plea was raised by accused that no confession was in fact made by him and alleged confession even if made was retracted. However, at the time of confirmation of confession no plea was raised that it was made under pressure. It was held that the rejection of bail was proper. Gulam Mohd. v. State, AIR 2009 SC 509.

Misuse of Bail

In Brij Nandan Jaiswal v. Munna, MANU/SC/8441/2008 : AIR 2009 SC 1021 it was observed that the complainant can challenge bail order on merits and the cancellation of bail on ground of misuse is not only way out of order granting bail.

In granting bail the meticulous facts and circumstances of case should be considered (Prasanta Kumar Sarkar v. Ashish Chatterjee, MANU/SC/0916/2010 : AIR 2011 SC 274).

Cancellation of Bail

Likelihood of misuse of bail is not the only factor for cancellation of bail

In case of Prakash Kadam v. Ramprasad Vishwanath Gupta, MANU/SC/0616/2011 : AIR 2011 SC 1945 the Supreme Court observed that:

"It cannot be contended that the consideration for cancellation of bail is different from the consideration of grant of bail. That is not absolute rule, and it will depend on the facts and circumstances of the case. In considering whether to cancel the bail the court has also to consider the gravity and nature of offence, prima facie case against the accused, the position and standard of accused, etc. If there are very serious allegations against the accused his bail may be cancelled even if he has not misused the bail granted to him. Moreover, the above principle applies when the same Court which granted bail is approached for cancelling the bail. It will not apply when the order granting bail is appeal against before the appellate/revisional court. There is no absolute rule that once the bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail".

Chapter 8

Bail in Security Proceedings

Delay 'Bail' out Sanjay	89
Initiation of Proceeding under this Section	94
Jurisdiction and Source of Information	94
Commencement of the Inquiry Proceeding under section 107 of the Code of Criminal Procedure, 1973	95
Proceedings under sections 107 and 145 of the Code of Criminal Procedure, 1973	95
What Type of Publication Attracts section 108 of the Code of Criminal Procedure, 1973	97
Whether an Order can be Passed under section 109 of the Code of Criminal Procedure, 1973, Without Holding an Enquiry by the Magistrate	98
Meaning of the Expression "give a satisfactory account of himself"	99
Object, Philosophy and the Scope of section 110 of the Code of Criminal Procedure, 1973	100
Section 111 of the Code of Criminal Procedure, 1973	101

Delay 'Bail' out Sanjay

Sanjay Dutt gets temporary relief as the Supreme Court grants him 'interim bail' on 20th August, 2007.

Certain startling lapses on the part of the authorities (TADA Court and the CBI) virtually forced the Supreme Court to grant Dutt and others bail. Inexplicable delays on the part of TADA Court Judge PD Kode to hand over his judgment to the convicts means that the Supreme Court has allowed then (Sanjay Dutt and Others) bail not on merit, but a technicality. Senior Criminal lawyer Majid Menon said that non-receipt of the copy of the TADA Court's judgment gave Sanjay Dutt the right to make a grievance. Sanjay Dutt's contentions for bail were:

(a) Impeccable conduct during the last 12 years while on bail.

(b) TADA Court had failed to provide him with a copy of the judgment as required under section 363(1) of the Code of Criminal Procedure, 1973.

(c) His testimonial of good conduct disregarded by court while turning down plea for release under the Probation of Offenders' Act, 1958.

(d) Weapons were never found either in Sanjay Dutt's possession or his residence.

Some of the questions went unanswered in connection with Sanjay Dutt's bail:

* Why was P.D. Kode's judgment not made available to Sanjay Dutt?

* Why did the CBI not demand more time from the SC to obtain the judgment?

* Why has the CBI not approached the TADA court to expedite the release of its judgment?

Senior Advocate Rohtagi has said that the court has actually granted bail on the condition that they (Sanjay Dutt and Others) will report to the CBI office in Mumbai once every week, that they will not abuse the grant of liberty in bail and that they will surrender the moment copy of the judgment is given to them.

Senior Counsel Kapil Sibal said that the court has itself said that Dutt is not accused under TADA and if that is so then it must get bail. The court has the right to make its decision. However, no court will make a decision without explaining to the complainant its reasons.

Whenever there is an apprehension of disturbance or breach of peace or there is likelihood that two parties would enter into a quarrel on a disputed piece of land or any other property or for that matter on any other ground, due to which a law and order problem would be created, the police on receiving such information, immediately swings into action, and arrest both the parties. Both the parties are then produced before the Sub-Divisional Magistrate or the Executive Magistrate, as the case may be. The Magistrate after hearing the parties direct that the bonds for the good behaviour be submitted to the court before the party/parties are set at liberty.

In order to prevent breach of peace and to ensure good behaviour from the involved parties, the Code of Criminal Procedure, 1973 covers various eventualities. You must know that such proceedings under the Code are "Inquiries" and not "trials". These proceedings, therefore, do not culminate or end in punishment or acquittal.

The most important sections under the Code dealing with security proceedings are sections 106, 107, 108, 109 and 110. Sections 111 to 124 deal mainly with the procedure to be adopted.

Section 106 of the Code deals with security for keeping the peace on conviction. Section 107 of the said Code deals with security for keeping peace in other cases, such as breach of peace or disturbing the public tranquility. The rest of the sections of the code, i.e. sections 108, 109 and 110 deal with security for good behaviour, from persons disseminating seditious matters, security for good behaviour from suspected persons and security for good behaviour from habitual offenders.

Section 106 of the Code of Criminal Procedure, 1973 is reproduced below:

106. Security for keeping the peace on conviction

(1) When a Court of Session or Court of a Magistrate of the first class convicts a person of any of the offences specified in sub-section (2) or of abetting any such offence and is of opinion that it is necessary to take security from such person for keeping the peace, the court may, at the time of passing sentence on such person, order him to execute a bond, with or without sureties for keeping the peace for such period, not exceeding three years, as it thinks fit.

(2) The offences referred to in sub-section (1) are--

(a) any offence punishable under Chapter VIII of the Indian Penal Code (45 of 1860), other than an offence punishable under section 153A or section 153B or section 154 thereof;

(b) any offence which consists of or includes, assault or using criminal force or committing mischief;

(d) any other offence which caused, or was intended or known to be likely to cause, a breach of the peace.

(3) If the conviction is set aside, on appeal or otherwise, the bond so executed shall become void.

(4) An order under this section may also be made by an Appellate Court or by a Court when exercising its powers of revision.

In fact the whole Chapter VIII of the Code of Criminal Procedure, 1973 basically deals with security for keeping peace and for good behaviour. In State of Gujarat v. P.B. Ramlabhai, AIR 1969 Guj 263, the Gujarat High Court pointed out that the object of the provisions was the prevention of the offence and to enable the accused to improve and keep good behaviour. This Chapter, therefore, does not prescribe any punishment, as the provisions contained in the Chapter are not punitive in nature. It is also quite important to know that the past conduct of a person alone may not be sufficient to invoke these provisions, but there must be something more.

As regards section 106 of the Code of Criminal Procedure, 1973 is concerned the order for security for keeping peace should he passed by the concerned Magistrate on conviction of an offence. A conviction under section 504 of the Indian Penal Code justifiably attracts the provisions of section 106 of the Code of Criminal Procedure, 1973; Emperor v. Syed Yakooli, ILR 47 Bom 554.

When a person is convicted of an offence falling within the scope of section 106 and it is considered necessary to bind over the accused to keep the peace, the proper procedure is the one under section 106; if the Magistrate fails to avail himself of his powers under that section, he cannot draw up proceedings against the accused under section 106 on the same materials.

In Mahamad Khasim v. State of Mysore, AIR 1957 Mys 49: 1957 Cr LJ 520: ILR 1956 Kar 315, the High Court of Mysore observed that the mere fact that accused was convicted and sentenced to one of the offences under section 106(2) of the Code of Criminal Procedure, 1973 might not be sufficient for the court to take security from him since it was necessary that the court must be of the opinion that taking security was necessary.

The following conditions are necessary to attract section 106 of the Code of Criminal Procedure, 1973. In the absence of these conditions the Magistrate should not ask for security under the said section of the Code:--

(a) the accused must have been convicted for an offence mentioned in this section;

(b) the conviction must have been given by a Court of Session or a Court of a Magistrate of the first class;

(d) the order directing security should be passed at the time of passing the sentence; Mani Lal v. Emperor, AIR 1938 Oudh 95.

The presence of an accused is necessary to pass an order for security under section 106 of the Code of Criminal Procedure, 1973.

A distinction can be drawn between a bare probability and reasonable probability of a breach of peace being committed. Reasonable probability of a breach of peace is mandatory.

Offences which attract section 106 of the Code of Criminal Procedure, 1973 are sections 141 to 160 of the IPC excluding sections 153A, 153B and 154 of the IPC.

The security does not continue where the conviction is set aside on appeal. [Section 106(3) of the Code of Criminal Procedure, 1973] Abdul v. Amiran Bibi, ILR 30 Cal 10.

An order to execute a bond to keep good behaviour along with keeping the peace is devoid of any reason and incorrect. The bond taken should be only to keep peace. Bakshish Singh v. State, AIR 1952 Pep 138 (142).

The period of imprisonment (for example a long period of imprisonment of seven years) has to be kept in mind to attract section 106 of the Code of Criminal Procedure, 1973. Thus an order should not be made. Also in case of minor offences where the period of imprisonment is only one month, section 106 of the Code of Criminal Procedure, 1973 is not attracted. Re Saroja, MANU/TN/0235/1955 : AIR 1955 Mad 596; Bakshish Singh v. State, AIR 1952 Pep 138: 1952 Cr LJ 1467.

In order to attract section 107 of the Code of Criminal Procedure, 1973, the following conditions must exist:--

(a) receipt of information by the Magistrate;

(b) such information must be that a person is likely to commit breach of the peace or disturb the public tranquillity; and

(c) on such information the Magistrate must be able to form an opinion that there are sufficient grounds for proceeding; Moidu v. State of Kerala, 1982 Cr LJ 2293.

As we have already mentioned, all these sections--sections 106 to 111, are not punitive, these are preventive measures to maintain peace, law and order, in society.

To sum up, we may safely say that if the Magistrate (of the concerned area over which he has the jurisdiction) is fully satisfied on the police report that proceedings under section 107 of the Code of Criminal Procedure, 1973 be initiated, he should record the reasons of his satisfaction. After that the Magistrate can issue notice to the person against whom such proceedings are to be initiated in accordance with the procedure laid down in the Code.

For the convenience of learned readers, we reproduce below section 107 of the Code of Criminal Procedure, 1973:--

107. Security for keeping the peace in other cases

(1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceedings, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute bond with or without sureties for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.

When despite the detenue being taken into custody by police and being produced before the Magistrate for action to be taken against them for breach of peace under section 107 of the Code of Criminal Procedure, 1973, neither any proceeding under section 107 is drawn up under section 111; the detention is illegal.

Initiation of Proceeding under this Section

The pivotal point in this section is the satisfaction or to meet the expectations or desires of a Magistrate. Before the issuance of a show cause order, by a Magistrate the actual existence of truth and importunate information is needed. The satisfaction intended in this section is not the objective satisfaction and must be based upon certain materials justifying the said expectation or desire. The purpose of section 107 of the Code of Criminal Procedure, 1973 is preventive and not punitive.

Jurisdiction and Source of information

A Magistrate cannot proceed against any person where there is not an iota of information against him. The Magistrate can proceed on the basis of a report of the police or Subordinate Magistrate or on information provided by a private individual.

No right of a party is affected in situation wherein a notice is served upon an offender of minor crime or misdeed to show cause why they should not execute interim bond. The offender of such crime is given an opportunity to file his reply to the notice and can convince the Executive Magistrate not to execute an interim bond.

Commencement of the Inquiry Proceeding under section 107 of the Code of Criminal Procedure, 1973

Commencement of summons trial provided under Chapter XX of the Code of Criminal Procedure, 1973 and section 112 of the Code of Criminal Procedure, 1973 can also be seen in this regard which is reproduced below:

Section 251 of the Code of Criminal Procedure, 1973: When in a summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.

Section 112 of the Code of Criminal Procedure, 1973: If the person in respect of whom such order (readers please note such order which is made under section 111) is made in court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.

Proceedings under sections 107 and 145 of the Code of Criminal Procedure, 1973

Whenever there is a dispute of land or water which includes buildings, markets, fisheries, crops or other produce of land and the rents or profits of any such property and there is likelihood of breach of peace, the Executive Magistrate on the report of a police officer or upon other information, after satisfying himself, can initiate proceedings against the parties concerned. The decision as regards the title of the land in dispute is concerned, is generally referred to a civil court. Pending decision of title, and in order to maintain peace, law and order, the court can order to seal the property in dispute. Till the final decision by a civil court, no party is allowed to have any access whatsoever on the property in dispute. In the meantime, the parties have to maintain status quo as per the direction of the court.

The object of section 145 is, therefore, to compel the parties to go to the civil court to settle their disputes and to get adjudication of their rights to immovable properties. In case the Magistrate is satisfied, that there is apprehension or likelihood of breach of peace, he can initiate proceedings under section 107 of the Code of Criminal Procedure, 1973.

As regards initiation of proceedings under section 107 and section 145 simultaneously, it was pointed out by the Calcutta High Court in Emperor v. Abbas, ILR 39 Cal 150, that "it will depend upon the circumstances of each case whether action should be taken simultaneously or not".

The next section is section 108 of the Code of Criminal Procedure, 1973. This section deals with security for good behaviour from persons disseminating seditious matters. It lays down that any person, who disseminates, or attempts to disseminate, or abets dissemination of any seditious matter, the publication of which is punishable under sections 124A, 153A, 153B or 295A of the Indian Penal Code (45 of 1860) or any matter which amounts to criminal intimidation or defamation concerning a Judge, may be ordered to give security for good behaviour. Section 108 is reproduced below for ready reference:

108. Security for good behaviour from persons disseminating seditious matters

(1) When an Executive Magistrate of the first class receives information that there is within his local jurisdiction any person who, within or without such jurisdiction,--

(i) either orally or in writing or in any other manner, intentionally disseminates or attempts to disseminate, or abets the dissemination of, --

(a) any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 295A of the Indian Penal Code (45 of 1860); or

(b) any matter concerning a Judge acting or purporting to act in the discharge of his official duties which amounts to criminal intimidation or defamation under the Indian Penal Code (45 of 1860),

(ii) makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in section 292 of the Indian Penal Code (45 of 1860),

and the Magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year as the Magistrate thinks fit.

(2) No proceedings shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with the rules laid down in the Press and Registration of Books Act, 1867 (25 of 1867), with reference to any matter contained in such publication except by the order or under the authority of the State Government or some officer empowered by the State Government in this behalf."

What Type of Publication Attracts section 108 of the Code of Criminal Procedure, 1973

The provision of this section are not meant for keeping persons under detention without trial for which separate and adequate provisions exist.

To understand the provisions of this section particularly as to what amounts to publication, we may refer to a case decided by the High Court of Calcutta in Sital Prasad v. Emperor, ILR 43 Cal 591.

In this case it was held that in order to justify an order under section 108(1)(a) it is sufficient that the words used are likely to promote feelings of enmity and hatred between different classes and it is necessary to establish an intention to promote such feelings, as it would be on a trial for the offence triable under section 153A of the Indian Penal Code.

In Emperor v. T.K. Pitre, ILR 47 Bom 438, decided by the High Court of Bombay, the following were the brief facts. There were proceedings against the author, printer and the publisher in which the only evidence offered was (i) the pamphlet mentioned the names of the author, printer and publisher, (ii) statement furnished under section 18 of the Press and Registration of Books Act, 1867, stating the same information, and (iii) a declaration under section 4 of the Act, mentioned the name of the alleged printer as the keeper of press. It was held that the evidence was not sufficient to establish the identity of the author, that the identity of the printer was produced but that he was not shown to have knowledge of the contents of the pamphlet and that the alleged publisher was properly bound. As a publisher, he disseminated or at least abetted the dissemination of seditious matter, and he could be presumed to have had knowledge of the contents.

Circulation of offending notices on one occasion only - this section does not apply; Swami Swarna Nando, (1940) 16 Luck 260.

The proceedings under section 108 of the Code of Criminal Procedure, 1973 are preventive in nature and are initiated against the persons concerned to enable them to inform and keep good behaviour in future. And the order of security should be just, fair and reasonable so that the person concerned may be able to get a surety without much difficulty.

Section 109 of the Code of Criminal Procedure, 1973 deals with the security for good behaviour from suspected persons. The said section reads as under:

109. Security for good behaviour from suspected person

When an Executive Magistrate receives information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond with or without sureties for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit.

A person against whom proceedings under this section are pending, would be entitled to be released on bail only after the bond has been executed.

Whether an Order can be Passed under section 109 of the Code of Criminal Procedure, 1973, Without Holding an Enquiry by the Magistrate

No. The Magistrate cannot pass any such order against the person concerned under section 109 without holding an enquiry as prescribed in sections 116 and 117 of the Code of Criminal Procedure.

In Bipin Kumar v. State, (1962) 2 Cr LJ 537, the Gujarat High Court held that an order under section 109 cannot be passed without holding an enquiry under section 116 and section 117 of the Code of Criminal Procedure, 1973 on the ground that the person concerned had expressed his willingness to give surety and to furnish security.

In Emperor v. Bishi Sahara, AIR 1935 Pat 69, the Patna High Court pointed out that simply avoiding police or taking infrequent route is by itself no ground for action under section 109 of the Code of Criminal Procedure.

A person need not be arrested in accordance with section 55 of Code of Criminal Procedure, 1973 that spells the procedure when police officer deputes subordinate to arrest without warrant, before he could be proceeded against under section 109 of the Code of Criminal Procedure, 1973 and both sections relate to different subjects and are independent of each other.

Meaning of the Expression "give a satisfactory account of himself"

In Kartar Kaur v. Crown, AIR 1951 Punj 422: 1951 Cr LJ 939, the Punjab High Court held that the words, "give a satisfactory account of himself" cannot be given the meaning of "explain what he was doing" or explain his conduct at any particular time or place and that the failure does not bring his case within the ambit of section 109 of the Code of Criminal Procedure, 1973.

Section 110 of the Code of Criminal Procedure, 1973 broadly deals with the habitual offenders, i.e. robbers, house breakers, forgers, etc. etc. The said section reads as under :

110. Security for good behaviour from habitual offenders

When an Executive Magistrate receives information that there is within his local jurisdiction a person who--

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860), or under section 489A, section 489B, section 489C or section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or

(f) habitually commits, or attempts to commit, or abets the commission of--

(i) any offence under one or more of the following Acts, namely:--

(a) the Drugs and Cosmetics Act, 1940 (23 of 1940);

(b) the Foreign Exchange Regulation Act, 1973 (46 of 1973);

(d) the Prevention of Food Adulteration Act, 1954 (37 of 1954);

(e) the Essential Commodities Act, 1955 (10 of 1955);

(f) the Untouchability (Offences) Act, 1955 (22 of 1955);

(g) the Customs Act, 1962 (52 of 1962);

(h) the Foreigners Act, 1946 (31 of 1946); or

(ii) any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit. Item

(h) has been added to sub-clause (i) of clause (f) to effectively deal with offences under the Foreigners Act, 1946 in order to strengthen the hands of State authorities by empowering them to take action under section 110 against persons assisting infiltration. This will help to check the flow of undesirable foreigners into the country.

Object, Philosophy and the Scope of section 110 of the Code of Criminal Procedure, 1973

The main purpose, philosophy and the scope of section 110 has been amply discussed and explained in various judgments delivered by the High Courts and the Supreme Court of India.

The readers are advised to go through the judgment of the Supreme Court in Subbayyan Achari Gopalan Achari v. State of Kerala, 1981 Cr LJ 1359, in which these aspects have been elaborately discussed. The main purpose of section 110 is to give full protection to the public against a repetition of crimes by the persons proceeded against in which the safety of the property is menaced and not the security of the person alone is jeopardised. A word of caution has also been directed towards the Presiding Officers (Magistrates) to take every care, that the wide discretion in this section, provided to them, should always be used justly and judiciously and not capriciously or arbitrarily. It was further observed that the court should always keep in mind two major aspects, i.e.

(i) that every citizen of this country has certain liberties guaranteed to him under the Constitution and those liberties under no circumstance be curtailed or tampered with by any unreasonable action on the part of any police officer, and

(ii) that when the liberty enjoyed by an individual is enjoyed in such a fashion that it becomes hazardous to the community at large that liberty could be curtailed as contemplated in Chapter VIII of the Code.

The judgment in the following cases may also be of great use to the learned readers; (1) Emperor v. Nawab, ILR 2 All 835; (2) Raj Valad Hussain v. Sahele, ILR 10 Bom 174. A couple of cases can be taken note of; S.V. Shinde v. J.R. Sangam, Asstt. Commissioner of Police, 1995 (1) Crimes 577 (Bom) and Gopalanachari v. State of Kerala, MANU/SC/0068/1980 : AIR 1981 SC 674: (1981) 1 SCR 1271: 1981 Cr LJ 337.

The object of this section is not to send the people into jails with bad characters but to bring reasonable pressure to bear on such persons to respect the law.

Section 111 of the Code of Criminal Procedure, 1973

In Queen Empress v. Ishwar Chander Sur, ILR Cal 13, the High Court of Calcutta observed that when no order under section 111 of the Code has been made and the person accused under section 109 or Section 110 of the Code was not told of the case that he had to meet, the order requiring security was set aside. The Magistrate, therefore, has been directed by the High Court and the Supreme Court to always act judiciously and not arbitrarily without keeping in mind the provisions of the Code. In yet another judgment in the case of Krishna Swamy v. Thathaihari, ILR 30 Mad 282, the Madras High Court clearly pointed out that an omission to make an order in writing as per provisions of section 111 renders all the subsequent proceedings void.

It is, therefore, of utmost importance that (while dealing with the persons under sections 106, 107, 108, 109 and 110) without an order under section 111 of the Code of Criminal Procedure, 1973, the concerned Magistrate has no power or competence to deal with such persons.

Dealing with the question on the sum and substance of the information, the Madras High Court made the significant observations:

"There must be information of a nature which convinces him that there is a likelihood of the breach of the peace. They further observed that the person who gave the information might not be in a position to give details but the source of the information might be sufficient to convince the Magistrate that a breach of peace was likely and if he was convinced, the law required him to take action."

Section III of the Code of Criminal Procedure, 1973 is as under:

111. Order to be made

When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character, and class of sureties (if any) required.

The Magistrate in the notice under section 111 of the Code of Criminal Procedure, 1973 has to specify the substance of facts and circumstances which are contained in the information that has come to him and not merely the fact that he has received an information from which an inference can be drawn that there is likelihood of breach of peace.

Chapter 9

Bail and Bail Bond

Bail	103
Bailable/Non-Bailable Offences	104
Bail Bonds	104
Anticipatory Bail	104
Presence of Accused Whether Required?	105
Considerations Which Weigh Court's Mind While Releasing the Accused on Personal Bond	105
Personal Bond and Cash Security	106
Amount of Bail Bond and whether Surety should be from Accused's District	106
Surety Bonds -Procedure and Acceptance	108
Bond of Accused and Sureties	108
Declaration by Sureties	109
Discharge from Custody	109
Discharge of Sureties	109
Whether the Sureties can ask for their Discharge	109
Cancellation of Bail Bond	110

BAIL

The very word 'bail' means the process by which the liberty of a citizen, which is under cloud, is to be restored with or without conditions imposed by the courts of competence. Every person at the pre-trial stage is presumed to be an innocent person until the guilt is established as per provisions of law. The trial may take years together, and if the liberty of that person is jeopardised for such a long time, it will amount to violation of his fundamental right to protection of life and personal liberty as per provisions contained under article 21 of the Constitution of India. Therefore, specific provisions have been made under the Code of Criminal Procedure, 1973, which provides the relevant procedure for release of a person on bail during the trial.

The meaning of bail, therefore, can be described in an ordinary sense to set free a person who is under arrest, detention or is under some kind of restraint by taking security for his appearance.

Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigent's rights, bail covers both release on one's own bond, with or without sureties. When sureties should be demanded and what some should be insisted on, are dependent on variables. Even so poor men, young persons, infirm individuals and women are weak categories, and courts should be liberal in releasing them on their own recognizance put whatever reasonable conditions they may fix; Moti Ram v. State of Madhya Pradesh, AIR 1978 SC 1549.

Bailable/Non-Bailable Offences

Offences are generally categorised as (i) bailable offences, and (ii) non-bailable offences. If any person is arrested for an offence which is categorised as bailable offence, he is entitled to get bail as a matter of right and if any person is arrested for an offence which comes under the category of non-bailable offence, the grant or refusal of bail is a matter of discretion.

BAIL BONDS

To get oneself released on bail, in bailable or non-bailable offences, one has to file the bail bond as per provisions of the Code of Criminal Procedure, 1973. The bail bond is filed by the surely, who takes the responsibility for producing the accused person in the court or before any investigating agency as and when required.

In case of bailable offence, one has to file only the bail bonds duly filled in by the surety undertaking the production of the accused person as and when required by the court.

For non-bailable offence, as also for getting anticipatory bail (where one apprehends an arrest) one has to move an application setting out the grounds for the grant of bail. In case the court is convinced that bail should be granted it passes the order after hearing the arguments of the counsel for the accused person. And at that stage only one has to fill in the bail bond duly signed by the surety and to be filed through the Advocate. In case the accused is before the court, he is set at liberty (granting him bail) in the court itself and in case the accused is under detention in the jail, orders of grant of bail are sent to the concerned jail, where he is set at liberty at once.

Anticipatory Bail

In case of anticipatory bail, one has to move the Court of Sessions Judge through an advocate. The Sessions judge either himself hears the bail application or he sends it to the designated Court of Addl. Sessions Judge. On receiving the application, one copy of the bail application is sent to the concerned Police Station for getting report from the S.H.O.

On the date of hearing given by the court, the public prosecutor addresses the arguments on behalf of the State, and the Advocate for the accused also addresses the court. After hearing both the sides, the court comes to the conclusion, whether to accept or reject the bail application moved by the accused through his counsel.

Presence of Accused Whether Required?

It is a very vital and significant point. Generally, the new and budding advocates, without realising the repercussions (in case the bail is not granted) bring the accused person in the court at the time of arguments. In case the court is not satisfied with the arguments on the basis of the case put up by the prosecution the police can immediately arrest him and keep him in its custody. Therefore, it is always advisable not to bring the accused person (who is apprehending arrest at the hands of the police in a non-bailable offence) in the court while you are arguing on bail application moved by you on behalf of the accused person.

In case the anticipatory bail is granted, the court passes the order that the accused be released on bail in the event of his arrest. This order in case of grant of anticipatory bail is meant for the police not to arrest the accused person.

There is another possibility also, supposing the police sends a report that there is no case against him and he is not needed under any offence. In that event the court dismisses the bail application filed by the accused.

Considerations Which Weigh Court's Mind While Releasing the Accused on Personal Bond

The courts have wide powers in the matter of grant or rejection of bail by their wisdom, long experience and guidelines laid down by the Hon'ble Supreme Court of India, the courts by and large use their judicial discretion while releasing the accused persons on personal bond.

In Afsar Khan v. State, 1992 CCR 2019 (Karn), the High Court observed:

"If the court is satisfied on a consideration of a relevant factor that the accused has ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on personal bond. The decision as regards the amount should be an individualised decision depending on the financial circumstances of the accused individual and the probability of his absconding."

When the condition or conditions of the bond is violated, then it must be proved to the satisfaction of Magistrate or court that the bond has been forfeited and the court has to record the grounds of proof of the violation of condition or conditions of the bond.

When the conditions are violated the Magistrate or the court may call upon the person bound by the bond to show cause why he should not pay the penalty. These conditions are mandatory and unless they are violated the court has no jurisdiction to issue notice to show cause why penalty could not be levied.

Personal Bond and Cash Security

In some cases it has been observed that while granting bail, the court directs for personal bond, as well as security in cash. This is not a good legal approach and the courts should not ask for personal bond as well as cash security. In Afsar Khan v. State, 1992 CCR 2019 (Karn), the Karnataka High Court observed:--

"The present approach of the learned Sessions Judge in insisting upon the petitioner to deposit a cash security of Rs. 750 in each case totaling Rs. 6750 is not only harsh and oppressive, but indirectly denial of bail thus depriving the person's individual liberty."

Amount of Bail Bond and whether Surety should be from Accused's District

Some times the courts are unreasonable and direct the accused person to produce sureties for a heavy amount beyond his capacity. In such cases the Supreme Court has shown its unhappiness and annoyance and has invariably directed the courts below to be reasonable while fixing the amount of surety.

In Moti Ram v. State of Madhya Pradesh, (1979) 1 SCR 335: AIR 1978 SC 1549: (1978) 4 SCC 47: 1978 Cr LJ 1703, the Supreme Court pointed out:

"It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000. The Magistrate must be given the benefit of doubt for not fully appreciating that our Constitution enacted by--"WE THE PEOPLE OF INDIA" is meant for the butcher, the baker and the candle stick maker, bonded labourer and pavement deweller. To add insult to the injury, the Magistrate has demanded sureties from his own district. What is a Malayalee, Kannadiga, Tamilian or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot give sureties of persons owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is sure to be achieved by such provincial allergies. The Supreme Court mandated the Magistrate to release the petitioner on his own bond in a sum of Rs. 1,000."

After mandating the Magistrate to release the petitioner, on his own bond in a sum of rupees one thousand, the Supreme Court in the last para of its judgment made the following suggestions for the Parliament to look into:

"We leave it to Parliament to consider whether in our socialistic republic with social justice as its hallmark, monetary superstition not other relevant considerations like family ties, roots in the community, membership of stable organisations, should prevail for bail bonds to ensure that the 'Bailee' does not flee justice. The best guarantee of presence in court is the reach of law, not the money tag. A parting thought. If the indigents are not to be betrayed by the law including the bail law, re-writing of many procedural laws is an urgent desideratum, and the judiciary will do well to remember that the geographical frontiers of the Central Codes cannot be disfigured by cartographic dis-action in the name of language or province."

In Sandeep Jain v. National Capital Territory of Delhi, MANU/SC/0026/2000 : (2000) 2 SCC 66: AIR 2000 SC 714, it was observed that it is not possible to appreciate even the first order passed by the Metropolitan Magistrate imposing onerous conditions that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. On default in payment of that amount, the appellant is to languish in jail for more than 10 months, is sufficient indication that he was unable to make up the amount. If the cheques issued by his surety were dishonoured, the court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law. Similarly if the court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the court could have directed the appellant to substitute him with another surety. But to keep him in prison for the offences alleged, is not only hard but improper. The court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police.

Surety Bonds--Procedure and Acceptance

Section 441 of the Code of Criminal Procedure, 1973 deals with this aspect of the matter. It reads as follows;--

Bond of Accused and Sureties

(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the Police Officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or court, as the case may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the court, as to such sufficiency or fitness.

In State of Rajasthan v. Lal Singh, 1987 Cr LJ 269, the High Court of Rajasthan pointed out:

"If the personal bond and surety bonds are furnished and affidavit is filed by the surety about his status, generally the same should be accepted. If the court has any doubt then the proper course is to accept it as an interim measure, release the accused and then send it for verification and if on verification the status of surety is found to be less than the accused then the accused should be called upon to furnish fresh surety in the amount for which he has been ordered to furnish it."

The court further held that the procedure adopted by the learned A.A.M. that when the surety bonds were furnished along with the affidavits of the surety he did not release the accused, did not accept them, directed the surety to appear before the Tahsildar for verification of his status; that the Tahsildar slept over the papers for a few days thereby the accused was kept in custody, cannot be said to be in the interest of justice.

Declaration by Sureties

Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.

Section 441A has been inserted to provide that a person standing surety for an accused person shall disclose as to in how many cases he has already stood surety for accused persons.

Discharge from Custody

Section 442 of the Code of Criminal Procedure, 1973 is the relevant section. According to the provisions of this section--

(1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the order shall release him.

(2) Nothing in this section, section 436 or section 437 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.

Restraint over the activities and whereabouts of the person released rests upon the surety the restraint must be minimum and up to such maximum period for the surety that to get relief form the responsibility under his bond and to make the court to pass suitable orders in the matter.

DISCHARGE OF SURETIES

Whether the Sureties can ask for their Discharge

Yes, the sureties at any time can move an application in the court seeking discharge of the sureties in case they find that the accused is getting out of their control. Even for any other reason the sureties have a right of discharge with the permission of the court. According to section 444 of the Code of Criminal Procedure, 1973--

(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.

(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail.

A situation in which the surety finds himself out of his control (say, for instance, death of a person released on bail), the surety is discharged. S.V. Naidu v. Emperor, ILR 37 Mad 156.

Almost all bail order means to ensure the attendance of the accused in the court whenever required and other conditions are subsidiary. So long as that core postulate remains unchanged a surety cannot take advantage of any subsequent modification effected in respect of any other conditions. If a surety is not agreeable to abide by the modified conditions he must apply to the court under section 444(1) of the Code of Criminal Procedure, 1973 to discharge him. Until the surety is discharged he is bound by the bond and any modification or even deletion of a condition of the order cannot absolve him from his liability in respect of the unaltered conditions; Mohammad Kanju v. State of Karnataka, MANU/SC/0696/1999 : AIR 2000 SC 6.

Cancellation of Bail Bond

In case of Prasanta Kumar Sarkar v. Ashis Chatterjee, MANU/SC/0916/2010 : AIR 2011 SC 274 it was held that on merits of case the bail bond and surety can be cancelled.

Chapter 10

Failure of Police to File Charge-Sheet in Time -- Effect on Bail

Accused Must Be Produced Before Magistrate	111
Expeditious Treatments at the Hands of Criminal	113
justice System	113

Section 167 of the Code of Criminal Procedure, 1973 [Paragraph (a) to sub-section (2)] provides that the Magistrate may authorise the detention of accused persons, otherwise than in the custody of the police beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused persons in custody under this paragraph for a total period exceeding (i) 90 days, where the investigation, relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, (ii) Sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail and every person released on bail under this subsection shall be deemed to be so released under the provisions of Chapter XXXIII (Provisions as to bail and bail bonds).

Accused Must Be Produced Before Magistrate

No Magistrate shall authorise detention in any custody under this section unless the accused is produced before him [Proviso (b) to sub-section (2)]. Further no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police [Proviso (c) to sub-section (2)].

Explanation I added by the Amendment Act, 1978 lays down that for the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a) above, the accused shall be detained in custody so long as he does not furnish bail.

Explanation II says that if any question arises whether an accused person was produced before the Magistrate as required under Paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention.

The accused persons were arrested in the alleged match fixing cases/scandal. They had not been granted bail on various grounds;

It was an interesting and quite informative material regarding the dramatic turn in the grant of bail to the two accused persons on account of failure of the police in filing the charge-sheets within the prescribed time limit.

Those two accused persons were released on bail as soon as Delhi Police failed to file the charge sheet within the stipulated period of 60 days which elapsed on 5-6-2000.

As per information gathered from Hindustan Times, dated 6-6-2000, it was stated that as soon as the deadline of 60 days was over, both the accused were entitled to get bail whatever may be the reasons for non-filing of the charge sheet in the alleged Match Fixing case. The accused were bound to be set at liberty, even if the court or the police felt that they were still needed to be kept in custody in the interest of justice and fair trial.

"The main hurdle before the investigating agency was that they still did not have voice sample to establish that the "Voice" recorded was of Hansie Cronje. According to sources they had already sent three reminders to the concerned authorities in South Africa, but they had not got any reply."

According to the news published in the Statesman of 7th June, 2000, date line 6-6-2000 "the accused was granted bail by a Delhi Court, as the Delhi Police failed to file the charge sheet against him within the statutory period of 60 days after his arrest in the match-fixing scandal. If the police could not file the charge sheet by 28th June, the accused would also be released/entitled to bail on similar grounds."

"Asked why the police did not file the charge-sheet the Joint Commissioner of Police, Crime, said, "The investigation was continuing and charge sheet in court could not be filed at that stage."

According to a PTI report from Durban a Delhi Police Inspector involved with the match fixing investigations, was expected to attend the proceedings of South African Commission of Enquiry from 7th June, 2000. Quoting the Secretary of King Commission of Inquiry, Mr. John Bacon, the report said the Inspector was expected to attend the hearing to monitor the proceedings.

According to the Agency Report, Mr. Bacon said, the crucial Hansie Cronje tapes have not been received from India as yet. "We had not heard anything from India yet. Perhaps the Indians did not wish this evidence to be available to defence counsel at that stage, he said."

Cronje had reportedly offered the players rupees four lakhs each to lose one day match in Mumbai. Cronje himself was set to gain about Rs. 85 lakhs. This was a classic case of international importance where the statutory provisions of law (in connection with the grant or rejection of bail) made the investigating agency as also the court helpless spectators. The law thus helped the accused persons in that most unusual and extraordinary case to be set at liberty for non-filing of the charge sheets by the police within the prescribed period of sixty days.

Expeditious Treatments at the Hands of Criminal

Justice System

The whole object of providing prescribed limitation to file the charge-sheet i.e., within 60 or 90 days as the case may be under section 167(2) of the Code of Criminal Procedure, 1973 is that the accused should receive speedy trial or expeditious disposal of his case. Failure to file charge-sheet within the said time limit entitles the accused to enlarge him on bail.

Object of section 167 of the Code of Criminal Procedure, 1973: The object of section 167 is for giving pressure on the organs of prosecution to make every effort to ensure detention and punishment of crime quickly. The aim is to prevent vexatious and belated prosecutions, clearly in consonance with the concept of fairness of trial enshrined in article 21 of the Constitution of India. [Y. Krishnappa v. State, 1993 Cr LJ 3646 (Mad)]

In Bhola v. State, 1993 Cr LJ 2821 (MP), it was observed that non-supply of papers to the accused within a period of ninety days is not fatal and supply of the copies of the documents two days after the filing of the charge-sheet by the police in the court has not caused any prejudice to the accused and the accused cannot claim bail simply on this ground

In Banka Das v. State, 1993 Cr LJ 442 (Ori) it was held that even if by operation of section 167(2) proviso, an accused becomes entitled to bail, yet he shall not be released on bail until the court is further satisfied that the conditions stipulated in section 37 of NDPS Act, 1985 are satisfied. Section 37 of the Act overrides section 167(2) of the Code of Criminal Procedure, 1973 because it is a special statute.

Chapter 11

Cancellation: Bail Granted Under Section 167(2) of the Code of Criminal Procedure, 1973

115

Cancellation: Bail Granted Under Section 167(2) of the Code of Criminal Procedure, 1973

Can we think of cancellation of Bail granted under section 167(2) of the Code of Criminal Procedure, 1973, by the Magistrate suo moto on presentation of challan report under section 173 of the Code of Criminal Procedure, 1973 against the accused?

Once an accused person has been released on bail under section 167(2) of the Code of Criminal Procedure, 1973, the mere fact that subsequent to his release, a challan has been filed, is not sufficient to cancel his bail, but there must exist special reasons for doing so. Even if two views are possible, release on bail under section 167(2) of the Code of Criminal Procedure, 1973 belonging to the field of criminal justice evolving liberty of an individual, the provision must be construed strictly in favour of individual liberty.

In Jeewan Kumar Raut v. Central Bureau of Investigation, MANU/SC/1153/2009 : AIR 2009 SC 2763: (2009) 7 SCC 526 the Supreme Court held that:

"It is one thing to say the court could take recourse to the procedure laid down in section 202 of Cr. P.C. or even reject the complaint but then only because such a course of action would be restored to by the Magistrate, the same, by itself, would not lead to conclusion that the complaint petition should have been treated to be a police report, the logical corollary whereof would be to invoke the provisions of section 167(2) of Criminal Procedure Code".

The Supreme Court in Rajnikant Jivan Lal Patel v. Intelligence Officer, Narcotic Control Bureau, 1990 Cr LJ 62: MANU/SC/0440/1989 : AIR 1990 SC 71: (1989) 3 SCC 532: (1989) 3 SCR 377, laid down that when on failure of the submission of charge-sheet within the prescribed time limit, the accused is released on bail, it is an order-on-default. Such bail is not granted on merits, rather it is a command of the legislature to release the accused on bail under the proviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure, 1973. But if after the investigation and filing of the charge-sheet, it is revealed that the accused has committed serious offence, the accused as a matter of right cannot claim to remain on bail and bail granted under the above proviso may be cancelled.

In Raghubir Singh v. State of Bihar, 1987 Cr LJ 157: MANU/SC/0199/1986 : AIR 1987 SC 149: (1986) 4 SCC 481: (1986) 3 SCR 802, the Supreme Court says that if an order of bail has been passed under the said proviso, it is not defeated by a lapse of time, filing of charge-sheet or by remand to custody under section 309(2) of the Code of Criminal Procedure, 1973 but it may be cancelled under section 437(5) or 439(2) of the Code of Criminal Procedure, 1973.

Where a bail has been granted for not completing the investigation within 60 days under proviso (a) to section 167(2) and the defect is cured by filing the charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and it is necessary to arrest him.

In the case of Aslam Babalal Desai v. State of Maharashtra, JT 1992 (6) SC 21: AIR 1993 SC 1: (1992) 4 SCC 272 the Supreme Court pointed out legislative history of section 167 and the purpose and object of the legislative mandate. It was observed in this, case that since section 167 of the Code of Criminal Procedure, 1973 docs not empower cancellation of the bail the power to cancel the bail can only be traced to section 437(5) or 439(2) of the Code of Criminal Procedure, 1973. The bail can then be cancelled on consideration which are valid for cancellation of bail granted under section 437(1) or (2) or 439(1) of the Code. The fact that the bail was earlier rejected or that it was secured by the thrust of section 167(2) proviso (1) of the Code of Criminal Procedure, 1973 then reader in the background. Once the accused has been released on bail, his liberty cannot be inferred with lightly i.e. on the ground that the prosecution has subsequently submitted a charge-sheet. Such a view would introduce a sense of complacency in the investigating agency and would destroy the very purpose of instilling a sense of urgency expected by sections 57 and 167(2) of the Code of Criminal Procedure, 1973. Once an accused is released on bail, under section 167(2), he cannot be taken back in custody merely on the filing of a charge-sheet but there must exist special reasons for doing so besides the fact that the charge-sheet reveals the commission of a non-bailable offence.

Chapter 12

The Role of Police- Its Powers and Duties

Arrest by Police without Warrant	119
Supreme Court Guidelines on Arrest	122
Arrest of Judicial Officers	124
Supreme Court Guidelines for Protection of Prisoners Especially Females in Lock-ups	125
Duties of Police Officer	127
Person Arrested to be Informed of Grounds of Arrest and of Right to Bail	129
Obligation of Person Making Arrest to Inform About the Arrest, etc., to a Nominated Person	129
Discharge of Person Apprehended	129
Release of Accused When Evidence Deficient	130
Powers of Police Officer	130
Powers of Police to Grant Bail	130
Bailable and Non-Bailable Offences (Section 436 of the Code of Criminal Procedure, 1973)	130
How Long Police can keep an Arrested Person in its Custody (Section 167 of the Code of Criminal Procedure, 1973 and Article 22 of the Constitution of India)	130
Purpose of section 57 and section 167 (1) of the Code of Criminal Procedure, 1973	131
Whether Police Can Use Third Degree Method?	131
Power to Take Bonds from Witnesses	132
Cases to be sent to Magistrate when evidence is sufficient	132
Complainant and witnesses not to be required to accompany police officer and not to be subject to restraint	133
Report of police officer on completion of investigation	133
Custodial Deaths	135
Handcuffing	136
Police cannot Handcuff the Prisoners	136
Handcuffing of Prisoners in the Hospital	137
Violation of Directions Amount to Contempt of Court	138
Compensation Granted on Wrong Handcuffing	138
Policing the Police	139
Supreme Court Guidelines on Handcuffing-I	139
Supreme Court Guidelines on Handcuffing-11	144

The social order in a civilized society needs a force to maintain public order and prevention of crime plus bringing the criminals, by prompt prosecution to condign punishment. To ensure this process we need an organised body sensitive to human rights, beyond purchase or pressure and totally committed to a crime-free society. Towards this end the State must empower the police echelons from top to bottom, to take preventive action, investigate crimes, impart confidence to the people about their security land, apart from defending the victim, to take punitive measures according to law. In this larger sense, the police represents the collective interests of the community. The functional fulfilment of the police duty require non-interference by those in political authority, extraneous clouts or coercion or even unwarranted judicial commands. Indeed the measure of society's stability depends on the autonomy, integrity and fearless performance of duty by the police hierarchy. The rule of law and lively democracy can be sustained only by the laws that governs the police and the police operating strictly within the contours of the corpus juris. Thus there is controllerate to keep the police within bounds and a sanction for operation by the police of its duties and commitments.

The police have to act very cautiously and with an unbiased approach and mind. A little negligence on their parts would destroy the moral fabric of the society.

The Code of Criminal Procedure, 1973 gives very wide powers to the investigating officers in cognizable cases to make arrests, the only limitation being the necessary requirements of reasonable and credible information to prevent misuse of power. Whenever the power of arrest has been misused by the police officials, it always affects the liberty and the dignity of a citizen of this country and violates article 21 of the Constitution of India.

It has been rightly observed that the detention and arrest of members of the public are not matter of caprice but are governed by and must be conducted upon certain rules and principles which the law clearly lays down.

Arrest by Police without Warrant

The Police Officer of the concerned area, in certain circumstances can arrest a person even without warrant or order from the Magistrate.

Section 41 of the Code of Criminal Procedure, 1973, lays down the following circumstances, under which such arrests can be made by a police officer. It reads thus:

41. When police may arrest without warrant.--

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person--

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:--

(i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;

(ii) the police officer is satisfied that such arrest is necessary--

(a) to prevent such person from committing any further offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or

(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured,

and the police officer shall record while making such arrest, his reasons in writing:

Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.

(ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence;

(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or

(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition.

(2) Subject to the provisions of section 42, no person concerned in a non-cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned, shall be arrested except under a warrant or order of a Magistrate.

41 A. Notice of appearance before police officer.--

(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

41B. Procedure of arrest and duties of officer making arrest.--

Every police officer while making an arrest shall--

(a) bear an accurate, visible and clear identification of his name which will facilitate easy identification;

(b) prepare a memorandum of arrest which shall be--

(i) attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made;

(ii) counter-signed by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a member of his family, that he has a right to have a relative or a friend named by him to be informed of his arrest.

41C. Control room at districts.--

(1) The State Government shall establish a police control room--

(a) in every district; and

(b) at State level.

(2) The State Government shall cause to be displayed on the notice board kept outside the control rooms at every district, the names and addresses of the persons arrested and the name and designation of the police officers who made the arrests.

(3) The control room at the Police Headquarters at the State level shall collect from time to time, details about the persons arrested, nature of the offence with which they are charged, and maintain a database for the information of the general public.

41D. Rigid of arrested person to meet an advocate of his choice during interrogation.--

When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

Supreme Court Guidelines on Arrest

D.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : (1997) 1 SCC 416: AIR 1997 SC 610

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter-signed by the arrestee and shall contain the time and date of arrest.

3. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

5. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

6. An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy must be provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

9. Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record.

10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

11. A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.

Arrest of Judicial Officers

Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat, MANU/SC/0473/1991 : (1991) 4 SCC 406: AIR 1991 SC 2176

A Magistrate, Judge or any other Judicial Officer is liable to criminal prosecution for an offence like any other citizen but in view of the paramount necessity of preserving the independence of judiciary and at the same time ensuring that infractions of law are properly investigated, we think that the following guidelines should be followed:

(A) if a Judicial Officer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court as the case may be.

(B) If the facts and circumstances necessitate the immediate arrest of a Judicial Officer of the subordinate judiciary, a technical or formal arrest may be effected.

(C) The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.

(D) The Judicial Officer so arrested shall not be taken to a police station, without the prior order or directions of the District and Sessions Judge of the concerned District, if available.

(E) Immediate facilities shall be provided to the Judicial Officer for communication with his family members, legal advisers and Judicial Officers, including the District and Sessions Judge.

(F) No statement of a Judicial Officer who is under arrest be recorded nor any panchnama be drawn up nor any medical tests be conducted except in the presence of the Legal Adviser of the Judicial Officer concerned or another Judicial Officer of equal or higher rank, if available.

(G) There should be no handcuffing of a Judicial Officer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be overpowered and handcuffed. In such case, immediate report shall be made to the District and Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the Police to establish the necessity for effecting physical arrest and handcuffing the Judicial Officer and if it be established that the physical arrest and handcuffing of the Judicial Officer was unjustified, the Police Officers causing or responsible for such arrest and handcuffing would be guilty of misconduct and would also be personally liable for compensation and/ or damages as may be summarily determined by the High Court.

Supreme Court Guidelines for Protection of Prisoners Especially Females in Lock-ups

Sheela Barse v. State of Maharashtra, MANU/SC/0382/1983 : AIR 1983 SC 378: (1983) 2 SCC 96

1. Four or five police lock-ups should be selected in reasonably good localities where only female suspects should be kept and they should be guarded, by female constables. Female suspects should not be kept in a police lock-up in which male suspects are detained.

2. Interrogation of females should be carried out only in the presence of female police officers/constables.

3. A person arrested must be immediately informed of the grounds of his arrest. It must immediately be made known to the arrested person that he is entitled to apply for bail. The Maharashtra State Board of Legal Aid and Advice should forthwith get a pamphlets prepared setting out the legal rights of an arrested person. The pamphlets should be in Marathi, Hindi and English. Printed copies of the pamphlets in all these languages should be affixed in each cell in every police lock-up. As soon as the arrested person is brought to the police station, the pamphlet should be read out to him in any of the languages which he understands.

4. Whenever a person is arrested by the police and taken to the police lock-up, the police should immediately give intimation of the fact of such arrest to the nearest Legal Aid Committee which should take immediate steps to provide legal assistance to him at State cost provided he is willing to accept such a legal assistance.

5. In the city of Bombay, a City Sessions Judge, nominated by the principal Judge of the City Civil Court, preferably a lady Judge if there is one, shall make surprise visits to police lock-ups in the city periodically with a view to providing the arrested persons an opportunity to air their grievances and for ascertaining the conditions in the police lock-up, whether the requisite facilities are being provided, whether the provisions of law are being observed and that these directions are being carried out. If it is found that there are any lapses on the part of the police authorities, the City Sessions Judge shall bring them to the notice of the Commissioner of Police and if necessary to the notice of the Home Department. If even this approach fails, then the City Sessions Judge may draw the attention of the Chief Justice of the High Court of Maharashtra to such lapses. This direction in regard to police lock-up at the district headquarters shall be carried out by the Sessions Judge of the district concerned.

6. As soon as a person is arrested, the police must immediately obtain from him the name of any relative or friend whom he would like to be informed about his arrest and the police should get in touch with such relative or friend and inform him about the arrest.

7. The magistrate before whom an arrested person is produced shall enquire from him whether he has any complaint of torture or maltreatment in police custody and inform him that he has a right under section 54 of the Code of Criminal Procedure, 1973 to be medically examined. We are aware that section 54 of the Code of Criminal Procedure, 1973 undoubtedly provides for examination of an arrested person by a medical practitioner at the request of the arrested person and it is a right conferred on the arrested person. But, very often, the arrested person is not aware of this right and on account of his ignorance, he is unable to exercise this right even though he may have been tortured or maltreated by the police in police lock-up. It is for this reason that we are giving a specific direction requiring the Magistrate to inform the arrested person about this right of medical examination in case he has any complaint of torture or maltreatment in police custody.

DUTIES OF POLICE OFFICER

The duties of a Police Officer under the Police Act, 1949 are--

(i) to obey and execute all orders and warrants lawfully issued to him by any competent authority;

(ii) to collect and communicate intelligence affecting the public peace;

(iii) to prevent the commission of offences and public nuisances;

(iv) to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient grounds exist;

(v) to enter and inspect any drinking shop, gambling house or other place or resort of loose and disorderly characters;

(vi) to keep law and order on the public roads, and in the public streets, thoroughfares, ghats, and landing places and at all other places of public resort and to prevent obstruction on the occasions of assemblies and processions on the public roads and in public streets or in the neighbourhood of places of worship during the time of public worship and in any case when, any road, street, thoroughfare, ghat or landing place may be thronged or may be liable to be obstructed;

(vii) to take into custody, without a warrant, any person who within his view commits any of the following offences, to the obstruction, inconvenience, annoyance, risk, danger or damage to the residents, or passengers--

FIRST: Slaughtering cattle, furious riding, etc.

Any person who slaughters any cattle or cleans any carcass; any person who rides or drives any cattle recklessly or furiously or trains or breaks any horse or other cattle;

SECOND: Cruelty to animals

Any person who wantonly or cruelly beats, abuses or tortures any animals;

THIRD: Obstructing passengers

Any person who keeps any cattle or conveyance of any kind standing longer than is required, for loading or unloading or for taking up or setting down passengers or who leaves any conveyance in such a manner as to cause inconvenience or danger to the public;

FOURTH: Exposing goods for sale

Any person who exposes any goods for sale;

FIFTH: Throwing dirt into street

Any person who throws and lays down any dirt, filth, rubbish or any stones or building materials, or who constructs any cowshed, stable or the like, or who causes any offensive matter to run, from any house, factory, dung-heap or the like,

SIXTH: Being found drunk or riotous

Any person who is found drunk or riotous or who is incapable of taking care of himself,

SEVENTH: Indecent exposure of person

Any person who wilfully and indecently exposes his person, or any offensive, deformity or disease, or commits nuisance by easing himself or by bathing or washing in any tank or reservoir, not being a place set apart for that purpose;

EIGHTH: Neglect to protect dangerous places

Any person who neglects to fence in or duly to protect any well, tank, or other dangerous place or structure; (viii) to lay any information before a Magistrate and to apply for a summon, warrant, search-warrant or such other legal process as may, by law, be issued against any person committing any offence;

(ix) to take charge of unclaimed property which is subject to the order of Magistrate for the purpose of disposal, and he is required to furnish an inventory thereof to the Magistrate;

(x) the police officer cannot resign without leave or two month's notice;

(xi) the officer is also liable to suffer penalties for neglect of duties, under sections 30 and 34 of the said Act. Section 44 provides that the police officer is bound to keep a diary.

Person Arrested to be Informed of Grounds of Arrest and of Right to Bail

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Obligation of Person Making Arrest to Inform About the Arrest, etc., to a Nominated Person

(1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station.

(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person.

Section 50A requires the police to give information about the arrest of the person as well as the place where he is being held to any one who may be nominated by him for sending such information.

Discharge of Person Apprehended

No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

Release of Accused When Evidence Deficient

If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial.

POWERS OF POLICE OFFICER

Powers of Police to Grant Bail

In accordance with the provisions of Code of Criminal Procedure, and certain other Acts, the Police has the power to grant bail in the offences generally categorised as bailable offences. But after the challans are filed in the court, the accused person has to fill in the prescribed bail bond in order to get regular bail from the court of competence.

Bailable and Non-Bailable Offences (Section 436 of the Code of Criminal Procedure, 1973)

Bailable offence means an offence shown as bailable in the First Schedule of Code of Criminal Procedure or which is made bailable by any other law for the time being in force; and non-bailable offence means any other offence. So far as offences under the Indian Penal Code are concerned: First Schedule of the Code of Criminal Procedure mentions--individually as to which of them are bailable or non-bailable. As regards the offences other than those falling under the Indian Penal Code, it enacts a general rule that if an offence is punishable with death; transportation or imprisonment for seven years or upwards it is non-bailable. An offence punishable with imprisonment for three years and upwards but less than seven years is also non-bailable except where it falls under section 19 of the Arms Act, 1878. In case the legislature has made a special provision for the bailability or otherwise of an offence that will over-ride the general provisions of First Schedule of the Code.

How Long Police can keep an Arrested Person in its Custody (Section 167 of the Code of Criminal Procedure, 1973 and Article 22 of the Constitution of India)

The police cannot keep any person arrested for any alleged offence for more than twenty-four hours. Within 24 hours the police is legally duty-bound to produce the said arrested person before the nearest Magistrate under whose jurisdiction the alleged offence has been committed. In case the police fails to produce him within the prescribed period of 24 hours, the detention will amount to an illegal detention, and on moving a habeas corpus writ petition, he has to be set at liberty at once. There have been instances, where police had kept some persons in their custody for more than 24 hours, and on moving the writ petition they had been ordered to be released without any loss of time. The Supreme Court has taken a very serious view of the lapse, on the part of the police officers and in many cases passed strictures against them. Article 22 of the Constitution of India, and section 57 of the Code of Criminal Procedure, 1973 mandate every police officer not to keep any arrested person in its custody for more than 24 hours. The guarantee under article 22 of the Constitution of India was intended to offer protection to the subject against the act of the executive or other non-judicial authorities.

In State v. Ram Avtar Chaudhary, MANU/UP/0050/1955 : AIR 1955 All 138, it has been stated that section 57 does not empower a police officer to keep an arrested person in custody a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person in custody till twenty-four hours.

Purpose of section 57 and section 167(1) of the Code of Criminal Procedure, 1973

The purpose of section 57 and sub-section (1) of section 167 is to prevent abuse by the Police. This law is enacted to ensure that the accused person is brought before a Magistrate with the least possible delay and to enable the accused to make any representation he may wish to make in this matter.

Whether Police Can Use Third Degree Method?

No, under no circumstances the police has any power or authority to use third degree method. Though there have been some instances where the over-enthusiastic police officers physically tortured the persons in their custody, yet the courts of our country have condemned this inhuman approach in their judgments. The following observations of Krishna Iyer, J., in Kishore Singh v. State of Rajasthan, MANU/SC/0072/1980 : AIR 1981 SC 625: (1981) 1 SCC 503: (1981) 1 SCR 995: (1981) Cr LJ 17, would be enough to bring home the deep concern being shown by the Apex Court regarding police cruelty:

"... no police life style, which relies more on fists than on wits, on torture more than on culture, can control crime because means boomerange on ends and re-fuel the vice which it seeks to extinguish. Secondly, the State must re-educate the constabulary out of their sadistic arts and inculcate a respect for the human person--a process which must begin more by example than by precept if the lower rungs are really to emulate... Nothing is more cowardly and unconscionable than a person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a state official running berserk regardless of human rights. We believe the basic pathology which makes police cruelty possible will receive Government's serious attention who will police the Police?... what will "Wits not Fists" become a police Kit? When will the roots of "third degree" be plucked out and fresh shoots of humanist respect be put?...

In Peoples Union for Democratic Rights v. Police Commissioner, MANU/SC/0409/1989 : (1989) 4 SCC 730: (1990) Cr LR 240, the court awarded the compensation to the victims of the police atrocities under Article 32 of the Constitution.

When the constitutional and legal rights of a person are invaded with a mischievous or malicious infant, the court has jurisdiction to compensate the victim, by awarding suitable monetary compensation; Bhim Singh v. State of Jammu and Kashmir, 1986 Cr LJ 192 (SC): MANU/SC/0064/1985 : AIR 1986 SC 494: (1985) 4 SCC 677.

Power to Take Bonds from Witnesses

Cases to be sent to Magistrate when evidence is sufficient

(1) If, upon an investigation under this Chapter, it appears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.

(2) When the officer in charge of a police station forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant (if any) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give evidence (as the case may be) in the matter of the charge against the accused.

(3) If the Court of the Chief Judicial Magistrate is mentioned in the bond, such Court shall be held to include any Court to which such Magistrate may refer the case for inquiry or trial, provided reasonable notice of such reference is given to such complainant or persons.

(4) The officer in whose presence the bond is executed shall deliver a copy thereof to one of the persons who executed it, and shall then send to the Magistrate the original with his report.

Complainant and witnesses not to be required to accompany police officer and not to be subject to restraint

No complainant or witness on his way to any Court shall be required to accompany a police officer, or shall be subjected to unnecessary restraint or inconvenience, or required to give any security for his appearance other than his own bond:

Provided that, if any complainant or witness refuses to attend or to execute a bond as directed in section 170, the officer in charge of the police station may forward him in custody to the Magistrate, who may detain him in custody until he executes such bond, or until the hearing of the case is completed.

Report of police officer on completion of investigation

(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating--

(a) the names of the parties;

(b) the nature of the information;

(d) whether any offence appears to have been committed and, if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody under section 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.

(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report--

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5).

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of subsections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

Bail to person arrested under a warrant executed outside the district - sections 78 to 81.

Custodial Deaths

The accused persons who are detained in the police lock-ups or the prison houses face lot of hardships, and mental/physical tortures. At the pre-trial stage they are either kept in the police lock-up or the prison house, i.e., either they are kept in police custody or judicial custody. The convicts who have to undergo the imprisonment in accordance with the judgment of a court, are kept in prison houses. All these prisoners have to be kept in accordance with the procedure established by law. They continue to enjoy the fundamental rights enshrined in the Constitution of India, though with some restrictions and limitations as per rules and regulations prescribed by the appropriate authority.

In spite of all these safeguards provided by the State, third degree methods are applied and in many cases the accused persons detained in the police lock-ups are tortured in gross violation of the law of the land. The result is that in some cases, the detained persons are deprived of their very existence, and die an unnatural death. Such unfortunate deaths are called custodial deaths.

A custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law.

The Supreme Court has taken a very serious view of this misplaced adventure and over-enthusiasm on the part of the errant police officers who try to take law in their hands and destroy the precious lives illegally and arbitrarily.

The facts of the case of Nilabati Behera v. State of Orissa, MANU/SC/0307/1993 : (1993) 2 SCC 746: AIR 1993 SC 1960: (1993) 2 SCJ 487, are an eye opener and shake the conscience of every one. A man in custody was first beaten to death and then was thrown at the railway track and a case was cooked up that he escaped and died at the railway track. The Supreme Court in this case held that "convicts, prisoners, and undertrials also have rights under Article 21 of the Constitution of India. The State has strict duty to ensure that a citizen in custody of police or prison is not deprived of his right under article 21, except in accordance with law.........It was a case of custodial death. The case put up by the police of the alleged escape of the deceased from police custody and his sustaining the fatal injuries in a train accident is not acceptable."

The Supreme Court in this case passed severe strictures on the working of the police administration and directed the State Government to pay a sum of Rs. 1,50,000 (rupees one and a half lakh) to the petitioner (victim's legal heir), and a sum of Rs. 10,000 as cost to be paid to the Supreme Court Legal Aid Committee.

HANDCUFFING

Police cannot Handcuff the Prisoners

The Supreme Court has created a new jurisprudence in the field of law. There was a practice that the alleged offenders used to be paraded on the streets duly handcuffed and were also produced before the courts handcuffed. Thanks to the wisdom of the celebrated Judges of the Supreme Court that they have stopped this degrading and inhuman approach through their immortal judgments.

In Sunil Batra v. Delhi Administration, MANU/SC/0184/1978 : AIR 1978 SC 1675: (1978) 4 SCC 494: (1979) 1 SCR 392, Justice Krishna Iyer had laboured very hard to bring to limelight the constitutional framework within which iron fetters can be put on a prisoner. It may be stated here that much of what was stated in Sunil Batra's case was pressed into service in Prem Shankar Shukla v. Delhi Administration, MANU/SC/0084/1980 : AIR 1980 SC 1535: (1980) 3 SCR 855: (1980) 3 SCC 5625: (1980) Cr LJ (SC) 740, wherein the court was seized with the grim scenario triggered off by a short telegram from one Shukla, a prisoner lodged in Tihar Jail, complaining about handcuffs being forced on him in spite of the order and direction in Sunil Batra's case, Krishna Iyer, J., took strong exception and observed as follows in paragraph 22:

"... Handcuffing is prima fade inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict "irons" is to resort to zoological strategies repugnant to article 21."

In Sunil Gupta v. State of Madhya Pradesh, MANU/SC/0661/1990 : (1990) 3 SCC 119: (1990) 2 SCR 871: (1990) Cr LR 441, the Supreme Court observed that handcuffing of educated persons who staged dharna for a public cause and voluntarily surrendered was regarded as arbitrary and unreasonable humiliation with the obvious motive of "pleasing some one" because of which the same was condemned and the State Government was directed to take appropriate action against the erring escort party for having unjustly and unreasonably handcuffed the person.

Handcuffing of Prisoners in the Hospital

In Citizen of Democracy v. State of Assam, MANU/SC/0551/1996 : AIR 1996 SC 2193: JT 1995 (4) SC 475 the Supreme Court severely criticised the inhuman action of the Police for putting fetters and handcuffs on the prisoners in the hospital. The Supreme Court held that the handcuffing and in addition tying with ropes of the patient prisoners, who were lodged in the hospital was the least, they could say, inhuman and in utter violation of human rights guaranteed to an individual under the International Law and the law of the land. The following observations made by the Supreme Court are worth taking note of:

"We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoner - convicted or undertrial - while lodged in a jail or anywhere in the country or while transporting or in transit from one jail to another or from jail to court or back. The police and the jail authorities, on their own shall have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another, or from jail to court and back."

Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of custody, then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous, desperate and finding no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.

Violation of Directions Amount to Contempt of Court

The Supreme Court further held that its directions in this regard must be obeyed meticulously. Any violation of any of the directions issued by the Supreme Court by any rank of police in the country or member of the jail establishment would be summarily punishable under the Contempt of Court Act apart from other penal consequences under the law.

Other cases of similar nature - Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCR 855: MANU/SC/0084/1980 : AIR 1980 SC 1535: (1980) 3 SCC 562: (1980) Cr LJ (SC) 740, and Sunil Batra v. Delhi Administration, (1979) 1 SCR 392 (para 2): MANU/SC/0184/1978 : AIR 1978 SC 1675: (1978) 4 SCC 494, may also be perused by the learned readers.

Compensation Granted on Wrong Handcuffing

Relying on the aforesaid decision in State of Maharashtra v. Ravikant, MANU/SC/0561/1991 : (1991) 2 SCC 373, a sum of Rs. 10,000 was awarded as compensation to a person who was wrongly handcuffed and the amount was made payable by the State.

Custodial deaths, tortures, and wrongful confinements of the citizens by the police have attracted the attention of the People in general, and the courts including the Supreme Court of India in particular. In a recent case from Uttar Pradesh, where a wrong Affidavit was filed in the Supreme Court, by the U.P. Police, the Supreme Court has directed the Registrar General to file a complaint against the concerned Police Officer for an act of perjury. It is a matter of great solace and comfort that the Apex Court swings into action even on petition filed under Public Interest Litigation, popularly known as PIL.

In an alleged case illegal confinement of one Shakil Nasreen with police connivance, (brought to the light by her mother Shakila Bano) which rocked the Supreme Court for many days, the Division Bench of Justices, S. Mohan and M.N. Venkatachaliah, held in their order that Inspector Prem Pal Singh had committed an offence under section 191 of the Indian Penal Code (giving or fabricating false evidence in a judicial proceeding).

This case had been brought before the Supreme Court by Shakila Bano, the mother of Nasreen, who was alleged to have been sold by her husband for flesh trade. And unfortunately the police failed to perform its duty; rather by hiding the facts from the highest court, it committed an act of perjury.

Policing the Police

The police whose sacred task is sometimes prevented into victimizing people on account of corrupt motives outside pressures, pornomania and sadi tic sex and torture. The result is that the credibility in the police is at stake. When the police become criminal, the violence that they inflict escape punitive proceedings. So much so, it is essential to have a Vigilance Commissioner other ombudsman to act immediately when police delinquency or criminality is brought to its notice. So it is important that apart from the long-winded judicial proceedings we must have an instant instrumentality, outside the police department, which will blitz into action when reports about the police violation come to its notice. There is a need for an organization to guard the guards, to try offences by the police by an independent agency a la vitial land his website and insist upon compliance with constitutional guarantees.

Supreme Court Guidelines on HANDCUFFING-I

Prem Shankar Shukla v. Delhi Administration, MANU/SC/0084/1980 : (1980) 3 SCC 526 : MANU/SC/0084/1980 : AIR 1980 SC 1535

Handcuffing is prima facie inhuman and therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict 'irons' is to resort to zoological strategies repugnant to article 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonised. To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man's hand and foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture. Where then do we draw the humane line and how far do the rules err in print and praxis?.

Insurance against escape does not compulsorily require handcuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in handcuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopaedia Britannica, Vol. II, 1973 Edn., at p, 53, states 'Handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment'. The three components of 'irons' force on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetter shall not be forced on the person of an under-trial prisoner ordinarily. The latest police instructions produced before us hearteningly reflect this view. We lay down as necessarily implicit in articles 14 and 19 that when there is no compulsive need to fetter a person's limbs, it is sadistic, capricious, despotic and demoralising to humble a man by manacling him. Such arbitrary conduct surely slaps article 14 on the face. The minimal freedom of movement which even a detainee is entitled to under article 19 (see Sunil Batra v. Delhi Administration, MANU/SC/0184/1978 : AIR 1978 SC 1675) (supra)) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstances so hostile to safe-keeping.

Once we make it a constitutional mandate that no prisoner shall be handcuffed or fettered routinely or merely for the convenience of the custodian or escort - and we declare that to be the law - the distinction between classes of prisoners becomes constitutionally obsolete. Apart from the fact that economic and social importance cannot be the basis for classifying prisoners for purposes of handcuffs or otherwise, how can we assume that a rich criminal or under-trial is any different from a poor or pariah convict or under-trial in the matter of security risk? An affluent in custody may be as dangerous or desperate as an indigent, if not more. He may be more prone to be rescued than an ordinary person. We hold that it is arbitrary and irrational to classify prisoners for purposes of handcuffs, into 'B' class and ordinary class. No one shall be fettered in any form based on superior class differential, as the law treats them equally. It is brutalising to handcuff a person in public and so is unreasonable to do so. Of course, the police escort will find it comfortable to fetter their charges and be at ease but that is not a relevant consideration.

The only circumstance which validates incapacitation by irons - an extreme measure - is that otherwise there is no other reasonable way of preventing his escape, in the given circumstances. Securing the prisoner being a necessity of judicial trial, the State must take steps in this behalf. But even here, the policeman's easy assumption or scary apprehension or subjective satisfaction of likely escape if fetters are not fitted on the prisoner is not enough. The heavy deprivation of personal liberty must be justifiable as reasonable restriction in the circumstances. Ignominy, inhumanity and affliction, implicit in chains and shackles are permissible, as not unreasonable, only if every other less cruel means is fraught with risks or beyond availability. So, it is that to be consistent with articles 14 and 19 handcuffs must be the last refuge, not the routine regimen. If a few more guards will suffice, then no handcuffs. If a close watch by armed policemen will do, then no handcuffs. If alternative measures may be provided, then no iron bondage. This is the legal norm.

Functional compulsions of security must reach that dismal degree that no alternative will work except manacles. We must realise that our Fundamental Rights are heavily loaded in favour of personal liberty even in prison, and so, the traditional approaches without reverence for the worth of the human person are obsolete, although they die-hard. Discipline can be exaggerated by prison keepers; dangerousness can be physically worked up by escorts and sadistic disposition, where higher awareness of constitutional rights is absent, may overpower the finer values of dignity and humanity. We regret to observe that cruel and unusual treatment has an unhappy appeal to jail keepers and escorting officers, which must be countered by strict directions to keep to the parameters of the Constitution. The conclusion flowing from these considerations is that there must first be well-grounded basis for drawing a strong inference that the prisoner is likely to jump jail or break out of custody or play the vanishing trick. The belief in this behalf must be based on antecedents which must be recorded and proneness to violence must be authentic. Vague surmises or general averments that the under-trial is a crook or desperado, rowdy or maniac, cannot suffice. In short, save in rare cases of concrete proof readily available of the dangerousness of the prisoner in transit - the onus of proof which is on him who puts the person under irons -the police escort will be committing personal assault or mayhem if he handcuffs or fetters his charge. It is disgusting to see the mechanical way in which callous policeman, cavalier fashion, handcuff prisoners in their charge, indifferently keeping them company assured by the thought that the detainee is under 'iron' restraint.

Even orders of superiors are no valid justification as constitutional rights cannot be kept in suspense by superior orders, unless there is material, sufficiently stringent, to satisfy a reasonable mind that dangerous and desperate is the prisoner who is being transported and further that by adding to the escort party or other strategy he cannot be kept under control. It is hard to imagine such situations. We must repeat that it is unconscionable, indeed, outrageous, to make the strange classification between better class prisoners and ordinary prisoners in the matter of handcuffing. This elitist concept has no basis except that on the assumption the ordinary Indian is a sub-citizen and freedoms under part III of the Constitution are the privilege of the upper sector of society.

Merely because a person is charged with a grave offence he cannot be handcuffed. He may be very quiet, well-behaved docile or even timid. Merely because the offence is serious, the inference of escape-proneness or desperate character does not follow. Many other conditions mentioned in the Police Manual are totally incongruous with what we have stated above and must fall as unlawful. Tangible testimony, documentary or other, or desperate behaviour, geared to making good his escape, alone will be a valid ground for handcuffing and fettering, and even this may be avoided by increasing the strength of the escorts or taking the prisoners in well-protected vans. It is heartening to note that in some States in this country no handcuffing is done at all, save in rare cases, when taking undertrials to courts and the scary impression that unless the person is confined in irons he will run away is a convenient myth.

Even in cases where, in extreme circumstances, handcuffs have to be put on the prisoner, the escorting authority must record contemporaneously the reasons for doing so. Otherwise, under article 21 the procedure will be unfair and bad in law. Nor will mere recording the reasons do, as that can be a mechanical process mindlessly made. The escorting officer, whenever he handcuffs a prisoner produced in court, must show the reasons so recorded to the Presiding Judge and get his approval. Otherwise, there is no control over possible arbitrariness in applying handcuffs and fetters. The minions of the Police establishment must make good their security recipes by getting judicial approval. And, once the court directs that handcuffs shall be off, no escorting authority can overrule judicial direction. This is implicit in article 21 which insists upon fairness reasonableness and justice in the very procedure which authorises stringent deprivation of life and liberty. The ratio in Maneka Gandhi v. Union of India, (1978) 2 SCR 621: MANU/SC/0133/1978 : AIR 1978 SC 597 and Sunil Batra v. Delhi Administration, MANU/SC/0133/1978 : AIR 1978 SC 597 and MANU/SC/0184/1978 : AIR 1978 SC 1675 (supra) read in proper light, leads us to this conclusion.

We, therefore, hold that the petition must be allowed and handcuffs on the prisoner dropped. We declare that the Punjab Police Manual, insofar as it puts the ordinary Indian beneath the better class breed (paras 26.21-A and 26.22 of Chapter XXVI) is untenable and arbitrary and direct that Indian humans shall not be dichotomised and the common run discriminated against regarding handcuffs. The provisions in para 26.22 that every under-trial who is accused of a non-bailable offence punishable with more than 3 years' prison term shall be routinely handcuffed is violative of articles 14, 19 and 21, so also para 26.22(b) and (c). The nature of the accusation is not the criterion. The clear and present danger of escape breaking out of the police control is the determinant. And for this there must be clear material, not glib assumption, record of reasons and judicial oversight and summary hearing and direction by the court where the victim is produced. We go further to hold that para 26.22(1) (d), (e) and (f) also hover perilously near unconstitutionality unless read down as we herein direct. 'Desperate character' is who? Handcuffs are not summary punishment vicariously imposed at police level, at once obnoxious and irreversible. Armed escorts, worth the salt, can overpower any unarmed under-trial and extra-guards can make up exceptional needs. In very special situations, we do not rule out the application, of irons. The same reasoning appears to (e) and (f). Why torture the prisoner because others will demonstrate or attempt his rescue? The plain law of under-trial custody is thus contrary to the unedifying escort practice. We remove the handcuffs from the law and humanize the police praxis to harmonize with the satwic values of part III, The law must be firm, not foul, stern, not sadistic, strong, not callous.

We clearly declare - and it shall be obeyed from the Inspector-General of Police and Inspector-General of Prisons to the escort constable and the jail warder - that the rule regarding a prisoner in transit between prison house and court house is freedom from handcuffs and the exception, under conditions of judicial supervision we have indicated earlier, will be restraints with irons, to be justified before or after. We mandate the judicial officer before whom the prisoner is produced to interrogate the prisoner, as a rule, whether he has been subject to handcuffs or other 'irons' treatment and, if he has been, the official concerned shall be asked to explain the action forthwith in the light of this judgment.

Supreme Court Guidelines on Hand Cuffing-II

Citizen for Democracy v. State of Assam, MANU/SC/0551/1996 : AIR 1996 SC 2193; (1995) 3 SCC 743

1. We declare, direct and lay down as a rule that handcuffs or other fetters shall not be forced on a prisoners - convicted or under-trial - while lodged in a jail any where in the country or while transporting or in transit from one jail to another or from jail to Court and back. The police and the jail authorities, on their own, shall have no authority to direct the handcuffing of any inmate of a jail in the country or during transport from one jail to another or from jail to Court and back.

2. Where the police or the jail authorities have well-grounded basis for drawing a strong inference that a particular prisoner is likely to jump jail or break out of the custody then the said prisoner be produced before the Magistrate concerned and a prayer for permission to handcuff the prisoner be made before the said Magistrate. Save in rare cases of concrete proof regarding proneness of the prisoner to violence, his tendency to escape, he being so dangerous/desperate and the finding that no other practical way of forbidding escape is available, the Magistrate may grant permission to handcuff the prisoner.

3. In all the cases where a person arrested by police, is produced before the Magistrate and remand - judicial or nonjudicial - is given by the Magistrate the person concerned shall not be handcuffed unless special orders in that respect are obtained from the Magistrate at the time of the grant of the remand.

4. When the police arrests a person in execution of a warrant of arrest obtained from a Magistrate, the person arrested shall not be handcuffed unless the police has also obtained orders from the Magistrate for the handcuffing of the person to be so arrested.

5. Where a person is arrested by the police without warrant the police officer concerned may if he is satisfied, on the basis of the guidelines given by us in para above, that it is necessary to handcuff such a person, he may do so till the time he is taken to the police station and thereafter his production before the Magistrate. Further use of fetters thereafter can only be under the orders of the Magistrate as already indicated by us.

6. We direct all ranks of police and the prison authorities to meticulously obey the above mentioned directions. Any violation of any of the directions issued by us by rank of police in the country or members of the jail establishment shall be summarily punishable under the Contempt of Courts Act apart from other penal consequences under law.

Chapter 13

Police Interrogation

Whether the Police can Visit Your House at any Time	146
Rights of Women and Children	146
Right to Silence	147
Whether You Can Take Assistance of an Advocate when Summoned at the Police Station	149
What Precautions Should You Take in Case of Arrest by the Police?	149
Important Tips to Remember	150
Rights of Prisoners in Police Lock-up and During the Detention in Jail	151
Complaint of Torture or Maltreatment in Police Custody	154
Recommended Actions of the Supreme Court	155
Important Tips for the Prisoners	156

Whether the Police can Visit Your House at any Time

No, the police has no authority to visit your house at odd hours. Normally the police should not visit any house after sun set and before sun rise. Decency demands that the convenience of the person sought to be interrogated or for that matter for any other purpose, may be kept in view, before visiting any house. But in certain compelling cases, the police, even can break open any house, where the necessity demands under extraordinary situation.

If there is no male member in the house, the police has to give reasonable time to the female member to dress herself properly, before entering the said house.

If she is a parda-nashin lady, the police has to be more careful, and has to give the lady reasonable time to dress herself properly, i.e. wearing of burqa, etc., before entering that house.

Right to protection of life and personal liberty of every citizen--poor or rich, woman or child--as enshrined in article 21 of the Constitution of India has always to be kept in mind, before the police ventures to do this act.

Rights of Women and Children

The women and the children (male persons) under the age of 15 years have special constitutional and legal safeguards. The proviso to section 160(1) of the Code of Criminal Procedure, 1973 reads as under:

"Provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides."

Right to Silence

In Nandini Satpathy v. P.L. Dani, (1978) 3 SCR 608: MANU/SC/0139/1978 : AIR 1978 SC 1025: (1978) 2 SCC 424: (1978) Cr LJ 968, the police directed the petitioner (Mrs. Sathpathy) to appear at the police station. Mrs. Sathpathy was given a long range of questions in writing. She refused to answer certain questions on the plea that she had the right to silence under article 21(3) of the Constitution and section 161(2) of the Code of Criminal Procedure, 1973. A complaint was filed in the court of Magistrate for offence under section 171 of Indian Penal Code (45 of 1860). She challenged the validity of the Magisterial proceedings. The High Court rejected her plea. She ultimately came in the Supreme Court. The following observations of the apex court are quite significant:

"At the outset, the Supreme Court took note of the fact that the accused Nandini was directed to appear at a police station for interrogation in flagrant contravention of the wholesome provisions of section 160(1) of Code of Criminal Procedure, 1973. The Supreme Court strongly felt that such deviance on the part of police must be visited with prompt punishment, 'since policemen may not be a law unto themselves' expecting others to obey law."

The Supreme Court in this landmark judgment has held that the police cannot force the accused person to answer each and every question which they put to the accused person on the principle that no person can be compelled to be witness against himself. Considering the incriminatory statement, the Court observed--

"Not all relevant answers are incriminatory, not all criminatory answers are confessions. Tendency to expose to a criminal charge is wider than actual exposure to such charge... the orbit of relevancy is large..."

The apprehension of incrimination from the answer sought must be substantial and real, as distinguished from danger of remote possibilities or fanciful flow of inference. The real test is, could the witness (accused) have reasonably sensed the peril of prosecution from his answer in the conspectus of circumstances? The perception of the peculiarities of the case cannot be irrelevant in proper appraisal of self-incriminatory potentiality.

The Court explained compelled testimony as evidence procured not merely by physical threats or violence, but by physical torture, atmospheric pressure,... environmental coercion, tiring interrogative prolixity, overbearing and intimidating/ intimidatory methods and the like--not legal penalty for violation. However, the manner of mentioning the legal penalty to the victim of interrogation may introduce--

"an element of tension and tone of command precisely hovering measuring compulsion..."

The Apex Court then laid down certain guidelines for the observance of the principles discussed below:

(i) The police should permit the advocate, if there be one, to be present at the time the accused is examined.

(ii) The police should invariably warn and record the fact about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgment.

(iii) After an examination of the accused, where a lawyer of his choice is not available, the police must take him to a magistrate, doctor or other willing and non-partisan official or non-official and allow a scheduled audience where he may unburden himself beyond the view of the police and tell whether he has suffered duress which should be followed by judicial or some other custody for him where the police cannot reach him. The Collector may briefly record the relevant conversation and communicate it--not to the police but the nearest Magistrate.

The Supreme Court then quashed the proceedings before the Magistrate and directed the appellant to undertake to answer all questions put to her which do not materially incriminate her. The Court further directed that the police officer should not summon the accused Nandini to police station but examine her in terms of proviso to section 160(1) of the Code of Criminal Procedure, 1973.

There is no doubt indeed that the judgment of the Supreme Court in Nandini Sathpathy's case, (supra) has made the law relating to police interrogation more sophisticated and refined. The said verdict of the Apex Court clearly and boldly shows the concern of the Supreme Court for the unfortunate and hapless victims of oppression and injustice at the hands of the police. Believe it or not, this remains a bitter truth that whatever remedies or restraints the law of the land may provide, the accused person held by the Police is in practice generally without any of the remedies available to him under the Constitution of India or the Code of Criminal Procedure.

It has been rightly suggested by an eminent jurist who said:

"Can we not think of a system where police will have full power to interrogate without having the custody of the interrogatee?"

Whether You Can Take Assistance of an Advocate When Summoned at the Police Station

Yes, every accused person who had been arrested or is summoned at the police station has the right to get assistance of an advocate of his choice. The right to consult an advocate is fundamental right guaranteed under article 22(1) of the Constitution of India. It is very clearly laid down by the highest court of the land in the landmark judgment in Nandini Satpathy v. P.L. Dani, (1978) 3 SCR 608: MANU/SC/0139/1978 : AIR 1978 SC 1025: (1978) 2 SCC 424: (1978) Cr LJ 968, that if an accused person expresses the wish to have his lawyer by his side, when his examination goes on, this facility should not be denied without being exposed to the serious re-proof that involuntary self-crimination secured in secrecy and by coercing the will was the project.

The following observation of the Supreme Court is worth taking note of:

"Not that a lawyer's presence is a panacea for all problems of involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insists on questions and answers being noted where objections are not otherwise fully appreciated. He cannot harangue the police but may help his client and campaign on his behalf although his very presence will ordinarily remove the implicit menace of a police station."

What Precautions Should You Take in Case of Arrest by the Police?

In majority of the cases people get panicky when they are summoned or are arrested by the police. It is unfortunate that neither the citizens are aware of the legal and constitutional safeguards provided to them, nor the police officials, intentionally or unintentionally take initiative in making the unfortunate victims aware of their safeguards and facilities available to them in case of arrest.

Important Tips to Remember

Here are some very vital and important tips to remember in case any person is landed at the police station:--

(a) the moment any person is arrested by the police he has every right to know the offence alleged to have been committed by him;

(b) he has legal and constitutional entitlement to inform his nearest relation of the fact that he has been detained at a particular police station;

(c) it is bounden duty of the police officer on the spot to inform the nearest relations of the accused persons about his arrest;

(d) if he has been hauled up in a bailable offence, he is entitled to be released forthwith on bail at the police station itself as a matter of right on furnishing bail bond of reasonable amount;

(e) in case the police officer refuses to bail him out, it will amount to an illegal confinement and the police officer is liable to be punished for the contempt of court;

(f) he cannot be detained in police custody for more than 24 hours;

(g) he cannot be denied the facility of having an advocate by his side;

(h) if a woman or a male person under the age of fifteen years, she or he cannot be summoned to the police station, for interrogation;

(i) he cannot be compelled to answer each and every question that the police chooses to put to him; he has only to truthfully give the facts of the matter to assist the police;

(j) in other words he has the right to silence in certain circumstances as explained in the foregoing paragraphs of this chapter;

(k) he has every entitlement to resist every kind of undue coercion, pressure or torture (physical or mental).

These are in nutshell the safeguards and facilities available to every arrested person as per the provisions of the Code of Criminal Procedure, 1973 and the Constitution of India. Before parting we may mention the advice given by the Supreme Court to the police personnel in one of its judgments--

"An aware policeman is the best social asset towards crimelessness- the consciousness of the official as much as of the community is the healthy hope for a crime ridden society. Judge centered remedies don't work in the absence of community centered rights. All these add up to separation of investigatory personnel from the general mass and in service specialisation of many hues of a scientific basis. This should be vertically and horizontally more important, the policeman must be released from addiction to coercion and sensitized constitutional values."

Rights of Prisoners in Police Lock-up and During the Detention in Jail

The Supreme Court through its significant judgments has developed the rights of the prisoners while in Jail or in Police Custody. In fact the Apex Court has given new and dynamic dimensions to the Criminal Jurisprudence, while dealing with the hapless under-trial prisoners or the convicts while in police/ army custody, or in jail custody.

Sheela Barse v. State of Maharashtra, MANU/SC/0382/1983 : (1983) 2 SCC 96: MANU/SC/0382/1983 : AIR 1983 SC 378: (1983) 2 SCR 337, disclosed sensational and distressing facts, which made the Supreme Court to develop further the law protecting under-trial prisoners and persons in Police or Military custody from being ill-treated, tortured or killed. Justice P.N. Bhagwati gave very useful and practical directions in the judgment to spell out safeguards provided by the Constitution of India and the law for prisoners which has to be made available to each and every prisoner--rich or poor alike.

In Sheela Barse v. State of Maharashtra, MANU/SC/0382/1983 : (1983) 2 SCC 96: MANU/SC/0382/1983 : AIR 1983 SC 378: (1983) 2 SCR 337, the court gave important directions to the authorities concerned--

(i) We would direct that four or five police lock-ups should be selected in reasonably good localities where only female suspects should be kept and they should be guarded by female constables. Female suspects should not be kept in a police lockup in which male suspects are detained. The State of Maharashtra has intimated to us that there are already three cells where formal suspects are kept and are guarded by female constables and has assured the court that two more cells with similar arrangements will be provided exclusively for female suspects.

(ii) We would further direct that interrogation of females should be carried out only in the presence of female police officers/ constables.

(iii) Whenever a person is arrested by the police without warrant, he must be immediately informed of the grounds of his arrest and in case of every arrest it must immediately be made known to the arrested person that he is entitled to apply for bail. The Maharashtra State Board of Legal Aid and Advice will forthwith get a pamphlet prepared setting out the legal rights of an arrested person and the State of Maharashtra will bring out sufficient number of printed copies of the pamphlet in Marathi which is the language of the people in the State of Maharashtra as also in Hindi and English and printed copies of the pamphlet in all the three languages shall be affixed in each cell in every police lock-up and shall be read out to the arrested person in any of three languages which he understands as soon as he is brought to the police station.

(iv) We would also direct that whenever a prisoner is arrested by the police and taken to the police lock-up, the police will immediately give intimation of the fact of such arrest to the nearest Legal Aid Committee and such Legal Aid Committee will take immediate steps for the purpose of providing legal aid/assistance to the arrested person at State cost provided he is willing to accept such legal assistance. The State Government will provide necessary funds to the concerned Legal Aid Committee for carrying out this direction.

(v) We would direct that in the City of Bombay a City Sessions Judge, to be nominated by the Principal Judge of the City and Court, preferably a lady judge, if there is one shall make surprise visits to police lock-ups in the city periodically with a view to providing arrested persons an opportunity to air their grievances and ascertaining what are their conditions in the police lock-ups and whether the requisite facilities are being provided and the provisions of law are being observed and the directions given by us are being carried out. If it is found as a result of inspection that there are any lapses on the part of the police authorities, the City Sessions Judge shall bring them to the notice of the Commissioner of Police, and if necessary to the notice of the Home Department and even if this approach fails, the City Sessions Judge may draw the attention of the Chief Justice of the High Court of Maharashtra of such lapses. This direction in regard to police lock-ups at the district headquarters shall be carried out by the Sessions Judge of the district concerned.

(vi) We would direct that as soon as a person is arrested, the police must immediately obtain from him the name of any relative or friend whom he would like to be informed about his arrest and the police should get in touch with such relative or friend and inform him about the arrest; and lastly.

(vii) We would direct that the Magistrate before whom the arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or maltreatment in police custody and inform him that he has right under section 54 of the Code of Criminal Procedure, 1973 to be medically examined. We are aware that section 54 of the Code of Criminal Procedure, 1973 undoubtedly provides for examination of an arrested person by a medical practitioner at the request of the arrested person and it is a right conferred on the arrested person.

But very often the arrested person is not aware of his right and on account of his ignorance, he is unable to exercise this right even though he may have been tortured or maltreated by the police in police lock-up. It is for this reason that we are giving a specific direction requiring the Magistrate to inform the arrested person about this right of medical examination in case he has any complaint of torture or maltreatment in police custody.

We have no doubt that if these directions which are being given by us are carried out both in letter and spirit, they will afford considerable protection to prisoners in police lock-ups and save them from possible torture or ill-treatment.

Complaint of Torture or Maltreatment in Police Custody

Sebastian M. Hongray v. Union of India, (1984) 1 SCR 904: MANU/SC/0381/1983 : AIR 1984 SC 571: (1984) 1 SCC 339: (1984) Cr LJ 289, is so sensational a case that can even melt those who have hearts of stone.

In this case, Danial and Paul had been arrested by the Army and taken away to an army camp, and were never seen alive again. On a habeas corpus application, Justice Desai after going through the evidence rejected the claim of the Respondents that they had left the camp with their friends a day after they had been taken to the camp. The apex court directed the Respondents to produce Danial and Paul before them, and on their failure to do so (as both of them prima facie appear to have been killed) directed the Union of India to pay an exemplary compensation of rupees one lakh to the wife of Danial and rupees one lakh to the wife of Paul.

Another case which came to the Supreme Court by way of an appeal in which a person who had complained against the demand of a bribe by a policeman to the higher police authorities was mercilessly beaten and done to death by the very policeman against whom the complaint had been made. In this case vigilance of the Magistrate paid dividends as it was due to the vigilance, kindliness and humanity of a Magistrate that on a remand application, he went out to the veranda to see the prisoner who could not be brought before him and he recorded what, in effect, became the "dying declaration" of the injured person. On that dying declaration and on other evidence the officers were found guilty and sentenced to rigorous imprisonment by the Session Judge. On appeal to the highest court, it was held that the police had attempted to support their case by false and fabricated document.

In case of U.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : AIR 1997 SC 610: (1997) 1 SCC 416: (1997) Cr LJ 743 the Supreme Court observed that for custodial death, the writ court can award compensation. Custodial death has been described as one of the worst crimes in a civilised society, governed by the rule of law.

The Supreme Court also held in Sheela Barse v. State of Maharashtra, MANU/SC/0382/1983 : AIR 1983 SC 378: MANU/SC/0382/1983 : (1983) 2 SCC 96: (1983) 2 SCR 337 that right against custodial violence arises from Article 21 of the Constitution.

Recommended Actions of the Supreme Court

Keeping in view the haplessness and helplessness of prisoners who were ill-treated, tortured and killed, the then Chief Justice Chandrachud made a very practical and valid suggestion that the burden of proof should be shifted to the persons in whose custody the prisoner was kept.

H.M. Seervai, a noted constitutional expert has rightly observed in the case of Rudal v. State of Bihar, MANU/SC/0380/1983 : (1983) SCR 508: AIR 1983 SC 1086: (1983) 4 SCC 141: (1983) Cr LJ 1644, about the most inhuman and unprecedented treatment meted out to one Rudal Shah who was released from jail 14 years after the orders of the acquittal, as "a sordid and a disturbing state of affairs". Though the petitioner was acquitted by the Court of Session, Muzaffarpur, Bihar, on June 3rd, 1968 he was released from jail on 16th October, 1982--that is more than 14 years after he had been acquitted. The petitioner applied for a writ of habeas corpus against his unlawful detention in jail and prayed for ancillary reliefs like rehabilitation, reimbursement of expenses, which he may have to incur for medical treatment for the incarceration in jail.

The court observed that the only way in which compliance with article 21 could be procured was to direct compensation to be paid for unlawful acts of officials who acted in the name of public interest, with the powers of the State as a shield.

Justice Chandrachud, the then Chief Justice further said--

"If civilisation is not to perish in this country, as it has perished, in some other too well known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers."

The court directed that the State should pay to the petitioner a sum of Rs. 30,000 in addition to the sum of Rs. 51,000 already paid. The payment should be made within two months from the date of the judgment. The Government of Bihar agreed to make the payment, but Chandrachud, C.J., expressly stated that the order was not passed on government's consent. The order was not to preclude the right of the petitioner to recover appropriate damages from the State if he thought fit to do so.

Important Tips for the Prisoners

Delhi Legal Aid and Advice Board, and for that matter such Boards in all other States have been rendering free legal aid to the Prisoners and other persons entitled for legal aid, for the past many years.

In the court of Metropolitan Magistrate an advocate on behalf of the Legal Aid Board is always available.

In case of an offence which carries imprisonment of more than 10 years, the challan must be filed by the police within 90 days from the date of one's arrest.

Under article 39A of the Constitution of India every person is entitled for free legal aid from the concerned Legal Aid Board.

One should always remember the number of F.I.R., the date of arrest, the date from which one is under judicial custody, the name of the Board, the next date of hearing, and the name and address of your advocate.

One is also entitled to write any letter, application or appeal to any court, which has to be forwarded by Jail Superintendent preferably within 24 hours from the date of submission.

If you do not want to engage any advocate, you can go to the court from jail and argue your case in person.

You are entitled to get every assistance from jail authorities to have your application/petition drafted, typed and filed in the court.

It was held in State of Haryana v. Bhajan, (1991) 2 SCJ 351 the Court should not normally interfere with the criminal investigation. It may prohibit the continuance of a criminal proceeding at any stage before its conclusion, in extraordinary cases e.g., where the proceeding was launched by a person who was not competent to make the FIR or to institute prosecution under the relevant law.