[BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-II

Q.6 What is meant by "arrest" ? Ans. "Arrest" means a physical restraint put on a person as a result of allegation or accusation that he has committed a crime or an offence of a quasi-criminal nature. (Vide State of Punjab v. Ajaib Singh AIR 1953 SC 10 = 1953 Cri.L.J. 180 (SC) – 5 Judges – M. Patanjali Sastri – CJI, B. K. Mukherjea, S. R. Das, Vivian Bose, Ghulam Hasan - JJ.) The word "arrest" is derived from the French word "arreter" meaning "to stop or to stay". In every arrest, there is custody but not to vice versa. But both words "custody" and "arrest" are not synonymous terms. Though "custody" may amount to an arrest in certain circumstances, it is not so in all circumstances. (Vide Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440 = AIR 1994 SC 1775 - S. Ratnavel Pandian, K. Jayachandra Reddy - JJ). The procedure for arrest of a person by a Police Officer and the formalities to be carried out by the Police Officer are contained in Sections 41 and 41 A to 41 D of Cr.P.C. Section 41 D Cr.P.C. gives the arrestee a right to meet an advocate of his choice during his interrogation by the Police. But, the said Section states that the arrestee shall not be entitled to meet his advocate throughout the process of interrogation. Section 43 deals with the right of a private person to arrest an offender who commits a non-bailable and cognizable offence in his presence or to arrest any proclaimed offender. Section 44 gives an Executive or Judicial Magistrate to arrest or order the arrest of any person who commits an offence in the presence of such Magistrates. Section 45 Cr.P.C. extends a protection from arrest to members of the Armed Forces. Section 46 Cr.P.C. describes the manner of arrest by a Police Officer or any other person by actually touching or confining the body of the offender, unless there is voluntary submission to custody by word or action. Q.7 What is "custody" for the purpose of Sections 437 and 439 (1) (a) Cr.P.C. ? Ans. Section 438 Cr.P.C. enables a person to arm himself with an anticipatory order for bail in the event of his apprehended arrest and Sections 437 and 439 (1) (a) Cr.P.C. enable a person in custody to seek bail and release from custody. No person accused of an offence can move the Court for bail under Sections 437 or 439 Cr.P.C. unless he is in custody. The word "custody" for the purpose of bail need not necessarily be custody pursuant to arrest by a person in authority including the Police. It is enough if such person voluntarily submits himself to the "custody" of the Court and applies for bail. (Vide Niranjan Singh v. Prabhakar Rajaram Kharote (1980) 2 SCC 559 = AIR 1980 SC 785 – Krishna Iyer - J). Q.8 Is it correct to say that bail is a form of detention ? Ans. Yes. Bail is a form of detention by means other than one in prison. Instead of being detained in prison the accused is transferred to the custody of his bail who are the jailers of his own choosing and the Court still retains its inherent power to deal with him. The effect of granting bail is not to set the accused free but to release him from the custody of law and entrust him to the custody of his sureties. The sureties may discharge themselves by handing him over to the custody of law. A person released on bail remains in the constructive custody of the Court through the surety and his liberty is subject to restraint. (See 8 Corpus Juris Secondum - Bail Section 31; Halsbury's Laws of England – III Edition Vollume 10. Page 371; Para 26 of Mahesh Chand v. State of Rajasthan 1985 Crl.L.J. 3001 (Rajasthan – FB) – K. S. Sidhu - J; Girdhari Lal Dial Singh v. State AIR 1967 Punjab 19 = 1967 Crl.L.J. 119 – Gurdev Singh - J; Ishwar Chand v. State of H.P. 1976 Crl.L.J. 386 – R. S. Pathak – CJI, D Lal, C Thakur – JJ and Sunil Fulchand Shah v. Union of India and others (2000) 3 SCC 409 – 5 Judges - - Dr. A. S. Anand, G. T. Nanavathi, K. T. Thomas, D. P. Wadhwa, S. Rajendra Babu - JJ.) Q.9 What are the factors to be borne in mind by the Court while considering an application for bail ? Ans. It is incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Supreme Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: - (i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) Nature and gravity of the accusation; (iii) Severity of the punishment in the event of conviction; (iv) The position and status of the accused with reference to the victim and/ or the witnesses (v) Danger of the accused absconding or fleeing, if released on bail; (vi) Character, behavior, means, position and standing of...

[BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-II

Justice V. Ramkumar

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