AN ANALYSIS OF BAIL JURISPRUDENCE IN INDIA

Granting of Bail, whether regular or anticipatory, is a discretionary in nature to a great extent. As yet no comprehensive law has been in existence providing detailed guidelines for bail. There are certain improvements in   Bhartiya Nagarik Suraksha Sanhita (BNSS) in respect of procedure of bail, but these improvements are only incremental.

Bail, Bail Bond and  Bond have been defined under the newly enacted BNSS. Section 478 provides for procedure for bail in cases of bailable offences. Section 479 provides for maximum period for which undertrial prisoner can be detained. As was the case in earlier regime, an undertrial prisoner has to be released on bail if he has undergone one-half of maximum period of imprisonment of that offence (other than offences for which punishment of death or life imprisonment has been prescribed).  An addition under the Act is that a first-time offender can be released on bail if such offender has suffered one-third imprisonment of maximum period prescribed. If investigation, inquiry or trial is pending in more than one cases or multiple cases, granting of bail may be denied. Section 480 provides for procedure for bail in cases of non-bailable offences. Section 482 provides for procedure of bail to person apprehending arrest. It seems that discretion of the Court has been expanded as guiding factors have been removed. Section 483 confers special powers on High Court and Court of Sessions regarding bail.

ASPECTS TO CONSIDER WHILE GRANTING REGULAR BAIL

The Supreme Court in   Prashanta Kumar Sarakar Vs. Ashish Chatterjee  (2010) 12 SCR 1165 relying on State of UP Vs Amarmani Tripathi, ( 2005) 8 SCC 21;  Prahlad Singh Bhati Vs. NCT, Delhi & Anr, (2001) 4SCC 280; Ram Govind Upadhyaya Vs. Sudarshan Singh & Ors  (2002) 3 SCC 598  held that following aspects have to be considered before granting bail :

• Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence
• Nature and gravity of the accusation
• Severity of punishment in the event of conviction
• Danger of the accused absconding or fleeing, if released on bail
• Character, behavior, means, position and standing of the accused
• Likelihood  of the offence being repeated
• Reasonable apprehension of witnesses being influenced
• Danger of course of justice being thwarted by grant of bail

In non-grave cases, triple test is applied  i.e. (i) Whether accused is a flight risk ? (ii) Whether accused will temper with witness, if granted bail  ? (iii) Whether the accused could influence witnesses, if granted bail ?

GROUNDS OF CANCELLATION OF BAIL

The Supreme Court in Dolat Ram & Ors Vs. State of Haryana (1995) 1 SCC 349  has observed that bail can be cancelled on following grounds.

• Interference or attempt to interfere with the due course of administration of Justice
• Evasion or attempt to evade the due course of justice
• Abuse of the concession granted to the accused in any manner
• Possibility of accused absconding
• Likelihood of /actual misuse of bail
• Likelihood of the Accused tampering with the evidence or threatening witnesses

The Supreme Court observed in Deepak Yadav Vs. State of U.P. & Anr  (2024) 4 SCR 1 that it is no doubt true that cancellation of bail cannot be limited to the occurrence of the supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled –

• Where the Court granting takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.
• Where the Court granting bail overlooks the influential position of the accused in comparison to the Victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.
• Where the past criminal record and conduct of the accused is completely ignored while granting bail
• Where bail has been granted on untenable grounds
• Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice
• Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.
• When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.

LIMITS OF PRE-CONVICTION JUDICIAL CUSTODY

The Supreme Court in several judgments have disapproved prolonged custody of an accused without conviction.   The Supreme Court in  Union of India Vs. K. A Najeeb (2021) 1 SCR 443 held as under:

16. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial, In Supreme Court Legal Aid Committee Representing Undertail Prisoners  Vs Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.

The Supreme Court observed in  Manish Sisodia Vs. Enforcement Directorate (2024) SCC OnLine SC 1920 observed  as under :

51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh Vs. State of Maharastra and Another wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narsimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh Sibbia and Ors Vs. State of Punjab, Husaainara Khatoon and Ors (I) Vs. Home Secretary, State of Bihar, Union of India Vs K. A. Najeeb, and Satender Kumar Antil Vs. Central Bureau of Investigation and Anr.  The Court observed as under :

19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accuse to have a speedy trial as enshrined under the Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that he crime committed is serious. Article 21 of the Constitution applies irrespective of crime.

The supreme Court further observed  that over a period of time the Trial Courts and the High Courts have forgotten a very-settled principle of law that bail is not be withheld as a punishment.

BAIL IN ECONOMIC OFFENCE

The Supreme Court in several judgments have held that economic offences form a class apart. The Supreme Court observed in  Y. S. Jagamohan Reddy Vs. Central Bureau of Investigation AIR (2013) SC 1933,  has held as under:

34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be views seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serous threat to the financial health of the country.

The Supreme Court has reiterated this view in several subsequent judgments including State of Bihar Vs Amit Kumar (2017) 13 SCC 751;  Rohit Tandon vs Directorate of Enforcement (2018) 11 SCC 46 , Serious Fraud Investigation Office Vs. Nittin Johari (2019) 9 SCC 165,  P. Chidambaram Vs. Directorate of Enforcement (2019) 9 SCC 24.

ANTICIPATORY BAIL

Gurbaksh Singh Sibbia Vs. State of Punjab (1980) AIR 1632 is landmark judgment on anticipatory bail. The Supreme Court has held that the Applicant must have reason to believe that he may be arrested for non-bailable offence. The ground should be such that it must be capable of being examined by the court objectively. Filing of FIR is not a condition precedent for filing Application for anticipatory bail. Anticipatory bail can be filed after FIR has been registered  so long as Applicant has not been arrested. A blanket order of anticipatory bail should not be passed.

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