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

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 the accused;

(vii) The possibility of the accused tampering with the evidence;

(viii) The possibility of the accused obstructing the course of justice;

(ix) Likelihood of the offence being repeated;

(x) Reasonable apprehension of the witnesses being influenced; and

(xi) Danger, of course, of justice being thwarted by grant of bail. (Vide—

Para 24 of Sanjay Chandra v. CBI (2G Spectrum Case) (2012) 1 SCC 40 = AIR 2012 SC 830 – G. S. Singhvi, H. L. Dattu – JJ;

Paras 6 to 9 of Myakala Dharmarajam v. State of Telangana (2020) 2 SCC 743 = AIR 2020 SC 317 = 2020 KHC 6010 SC – L. Nageswara Rao, Hemant Gupta - JJ;

State of U.P. through CBI v. Amarmani Tripathi, 2005 (8) SCC 21 - Ashok Bhan, R. V. Raveendran - JJ;

Prahlad Singh Bhati v. NCT, Delhi and Another, 2001 (4) SCC 280 – K. T. Thomas, R. P. Sethi - JJ;

Ram Govind Upadhyay v. Sudarshan Singh and Others, 2002 (3) SCC 598 - Umesh C. Banerjee, Y. K. Sabharwal – JJ;

Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496 = AIR 2011 SC 274 – D. K. Jain, H. L. Dattu - JJ.

Q.10 Is there a proposition to the effect that "bail is the rule and jail an exception" ?

Ans. Yes. The provision for bail goes back to Magna Carta of 1215 which was the charter of English liberties granted by King John. Clause 39, which was, at that time, written in Latin, is translated as follows:

"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."

(Vide para 10 of Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1 = AIR 2017 SC 5500 - Rohinton F. Nariman, Sanjay Kishan Kaul - JJ).

Referring to Nagendra v. King Emperor AIR 1924 Cal. 476 – Mookerje – J, which held that the object of bail is to secure the attendance of the accused at the trial and that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment; and again referring to K. N. Joglekar v. Emperor AIR 1931 Allahabad 504 (SB) – Sulaiman – Ag.CJ, which held that the only principle governing the bail Court was that the discretion should be judicially exercised and referring to Emperor v. H. L. Hutchinson AIR 1931 Allahabad 356 - Mukerji – J, it was observed by the Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 = AIR 1980 SC 1632 – 5 Judges –Y. V. Chandrachud - CJI, P. N. Bhagwati, N. L. Untwalia, R. S. Pathak, O. Chinnappa Reddy – JJ, that the only principle to be deduced from the various Sections in the Cr.P.C. is that grant of bail is the rule and refusal is the exception and that an innocent person is, therefore, entitled to freedom and every opportunity to look after his own case so as to enable him to establish his innocence.

Balancing of competing factors like protection of personal liberty and ensuring the attendance of the accused at the trial, have to be undertaken by the Court. Innocence of the accused is to be presumed until he is proved guilty. Hardship is caused to the accused on account of his detention before conviction. There is also the unnecessary burden on the State to keep in custody a person who is yet to be proved guilty. Constitutionally protected liberty must be respected unless detention becomes a necessity. "Bail is the rule and jail an exception". (Vide State of Rajasthan v. Balchand (1977) 4 SCC 308 = AIR 1977 SC 2447 – Krishna Iyer - J).

Deprivation of liberty is punishment. Imprisonment before conviction has a substantial punitive content. It would be improper for any Court to refuse bail to an unconvicted person merely for the purpose of giving him a taste of imprisonment as a lesson. (Vide paras 21 to 23 of Sanjay Chandra v. CBI (2012) 1 SCC 40 = AIR 2012 830 – G. S. Singhvi, H. L. Dattu - JJ).

Grant of bail is the rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. (Vide – Para 2 of Dataram Singh v. State of U.P. (2018) 3 SCC 22 = AIR 2018 SC 980 – Madan B. Lokur, Deepak Gupta - JJ).

See also –

State of Rajasthan, Jaipur v. Balchand (1977) 4 SCC 308 = AIR 1977 SC 2447 – V. R. Krishan Iyer, N. L. Untwalia – JJ;

Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 = AIR 1978 SC 179 - P. K. Goswami, V. D. Tulzapurkar - JJ;

Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240 = AIR 1978 SC 429 – V. R. Krishna Iyer - J;

Babu Singh v. State of U.P. (1978) 1 SCC 579 = AIR 1978 SC 527 – V. R. Krishna Iyer, d. A. Desai - JJ;

Surinder Singh @ Shingara Singh v. State of Punjab (2005) 7 SCC 387 = AIR 2005 SC 3669 – B. P. Singh, S. H. Kapadia - JJ;

Anil Kumar Tulsiyani v. State of U.P. (2006) 9 SCC 425 = 2006 KHC 709 (SC) – H. K. Sema, R. V. Raveendran - JJ;

Sanjay Chandra v. CBI (2012) 1 SCC 40 = AIR 2012 830 – G. S. Singhvi, H. L. Dattu – J;

Satender Kumar Antil v. CBI 2022 (4) KHC 570 (SC) – Sanjay Kishan Kaul, M. M. Sundresh - JJ.