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

Justice V. Ramkumar

19 Jan 2023 4:53 AM GMT

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

    Q.16 Is there any exception to the rule that the Magistrate who is competent to try the case or commit the case alone can grant bail ?Ans. Yes. Where a warrant is issued under Section 78 Cr.P.C. for execution outside the jurisdiction of the Magistrate and where the offence is non-bailable, then the CJM or the Sessions Judge within whose limit arrest has been made, can grant bail in view of...

    Q.16 Is there any exception to the rule that the Magistrate who is competent to try the case or commit the case alone can grant bail ?

    Ans. Yes. Where a warrant is issued under Section 78 Cr.P.C. for execution outside the jurisdiction of the Magistrate and where the offence is non-bailable, then the CJM or the Sessions Judge within whose limit arrest has been made, can grant bail in view of the Second proviso to Section 81(1) Cr.P.C.

    Similarly, if a person within the local limits of a Magistrate, commits an offence outside the local limits, then even though the Magistrate cannot try the offender, the Magistrate can secure the presence of the offender and send him to the Magistrate having jurisdiction and in the meanwhile grant him bail if the offence is not punishable with death or imprisonment for life, as provided under Section 187 Cr.P.C.

    Q.17 Is it not desirable to insist on solvency certificate while granting bail to the accused?

    Ans. No. The requirement of production of Solvency Certificate is an exemption rather than a rule. The affidavit of the sureties should be given due weight in view of Section 441 (4) Cr.P.C. (Vide Valsan v. State of Kerala 1984 KLT 443 – U. L. Bhat - J. An enquiry into the solvency of the surety can become a source of harassment and should not be insisted on as a condition for acceptance of personal bond. (Vide Hussainare Khatoon v. Home Secretary, State of Bihar – AIR 1979 SC 1360 - P. N. Bhagwati, R. S. Pathak, A. D. Koshal - JJ.)

    Q.18 Is not an order granting or refusing bail appealable?

    Ans. Ordinarily no. There is no provision in the Cr.P.C. providing for an appeal against an order granting or refusing bail. (See State of Gujrath v. Salimbhai Abdulgaffar Shaikh and others – AIR 2003 SC 3224 – S. Rajendra Babu, G. P. Mathur - JJ). There is no appeal against the grant of regular bail – Narendra K Amin (DR) State of Gujarat (2008) 13 SCC 584 - Dr. Arijit Pasayat, P. Sathasivam, Aftab Alam - JJ.

    But when the very legality of the order granting bail is open to question, an appeal may be maintainable. (Vide para 27 of Union of India v. Hassan Ali Khan (2011) 10 SCC 235 = 2012 Cri.L.J. 630 - Altamas Kabir, Surinder Singh Nijjar – JJ; State of U.P. Amarmani Tripathi (2005) 8 SCC 21 = AIR 2005 SC 3490 Ashok Ban, R. V. Raveendran – JJ - followed.) Difference between the yardsticks for cancellation of bail and an appeal against the order of granting bail, stated. (Vide para 23 of CBI v. Subramania Gopalakrishnan (2011) 5 SCC 296 – P. Sathasivam – J; Para 8 of Fida Hussain Bohra v. State of Maharashtra (2009) 5 SCC 150 S. B. Sinha – J; Para 40 of Union of India v. Hassan Ali Khan (2011) 10 SCC 235 – Altamas Kabir – J.)

    In Brij Nandan Jaiswal v. Munna (2009) 1 SCC 678 = AIR 2009 SC 1021 – Tarun Chatterjee, V. S. Sirpurkar - JJ, it was held that where the High Court had mechanically granted bail in a murder case, it was open to the complainant to question the grant of bail. In State of Kerala v. Sabu K. A. (Criminal Appeal 1902 of 2019) - Justice Arun Mishra, Justice Indira Banerjee – JJ, the Supreme Court of India on 13-08-2019 set aside the order passed by the High Court of Kerala granting bail to an accused police officer in a murder case. (Vide para 2 (vi) and (vii) of Sabu K. A. v. CBI 2020 (2) KHC 601 – C. S. Dias - JJ).

    Section 21 (4) of the National Investigation Agency Act, 2008 makes an order granting or refusing bail by the Special Court, appealable to the High Court. It is in view of the statutory provision that an appeal lies against an order passed by the NIA Special Court either granting or refusing bail.

    A similar provision providing for an appeal to the High Court against an order passed by the Special Court either granting or refusing bail, is incorporated in Section 14 A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. But under both theses enactments, it is a Court of Session which is designated as a Special Court and hence in the absence of any conferment of power to grant or refuse bail under the special statute, the said Special Courts have to necessarily fall back upon Section 439 Cr.P.C.

    Q.19 Will a revision lie against the grant of bail ?

    Ans. Yes. If the case of the investigating agency is that the bail ought not to have been granted at all, a revision challenging the bail order will be maintainable and the Court will in such a case set aside the order. If the order granting regular bail is perverse for the reason that irrelevant material of substantial nature was taken into account or relevant material was omitted to be taken into consideration, it would justify cancellation of bail. (Vide Dinesh M.N. (S.P.) v. State of Gujarat – (2008) 5 SCC 66 -3 Judges – Dr. Arijit Pasayat, p. Sathasivam, Aftab Alam - JJ; Narendra K Amin(Dr.) v. State of Gujarat (2008) 13 SCC 584 – 3 Judges – Dr. Arijit Pasayat, P. Sathasivam, Aftab Alam - JJ). Strictly speaking, it is not cancellation of bail but setting aside the order granting bail and that will result in rejecting the application for bail. (Vide Prasad Jacob v. State of Kerala – 2010 KHC 398 = 2010 Cri L.J. 4137 = 2010 (2) KLT (SN) 68 – V. Ramkumar - J; Order dated 16-12-2019 of the Supreme Court in State of Kerala & Another v. K.A.Sabu & Another in Criminal Appeal No. 1902 of 2019 - Justice Arun Mishra, Justice Indira Banerjee – JJ).

    NOTE BY VRK:The concept of setting aside an unjustified, illegal or perverse bail order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because some new facts requiring such cancellation have emerged. (Vide Puran v. Rambilas (2001) 6 SCC 338 – M. B. Shah, S. N. Variava – JJ and para 12 of Dr.Narendra K Amin v. State of Gujarat (2008) 13 SCC 584 – 3 Judges – Dr. Arijit Pasayat, P. Sathasivam, Aftab Alam – JJ.)

    Q.20 Is not the accused who has been granted bail, bound to appear before the court during the crime stage (investigation stage)?

    Ans. No. Accused need appear before Court only if process is issued to him after the filing of the final report (Vide Free Legal Aid Committee v. State of Bihar – AIR 1982 SC 1463 – P. N. Bhagwati, Amarendra Nath Sen - JJ). This is because during the crime stage (investigation stage) no proceeding is pending before any criminal court.

    NOTE BY VRK: In AIR 1977 SC 2229, AIR 2004 SC 1851, (2009) 10 SCC 488, AIR 2012 SC 364 the Supreme Court held that the power under Section 482 Cr.P.C. can be exercised by the High Court only in respect of a matter pending in an inferior criminal Court. Just because the copy of the FIR has been forwarded by the SHO to the Magistrate under Section 157 Cr.P.C. during the investigation stage, it cannot be said that the case is pending before the Magistrate. A case can be said to be pending only when the Police after the conclusion of investigation file a Police Report before the Magistrate and the Magistrate has taken cognizance of the offence on the Police Report and has issued process to the accused. (Vide Muhammed v. Union of India 2018 (4) KHC 945 (Kerala – Dama Seshadri Naidu–J).

    Part 3: [BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-III

    Part 2: [BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-II

    Part 1: [BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-I

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