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Bail & Personal Liberty: Important Judgments Of 2020

Akshita Saxena
23 Dec 2020 11:50 AM GMT
Bail & Personal Liberty: Important Judgments Of 2020
Summation of important orders on bail/ personal liberty, passed by the Supreme Court & various High Courts in 2020.

Relief under Writ of Habeas Corpus 1. High Courts Have Power To Grant Bail By Invoking Article 226 In Suitable Cases: Supreme Court [Arnab Manoranjan Goswami v. State of Maharashtra] A Division Bench comprising Justices DY Chandrachud and Indira Banerjee observed that a High Court in its jurisdiction under Article 226 of the Constitution of India has the power to grant bail...

Relief under Writ of Habeas Corpus

1. High Courts Have Power To Grant Bail By Invoking Article 226 In Suitable Cases: Supreme Court [Arnab Manoranjan Goswami v. State of Maharashtra]

A Division Bench comprising Justices DY Chandrachud and Indira Banerjee observed that a High Court in its jurisdiction under Article 226 of the Constitution of India has the power to grant bail in a suitable case.

"In an application under Article 226, the High Court must be circumspect in exercising its powers [to grant bail] on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power," it observed while granting bail to Arnab Goswami in a habeas corpus petition.

Also Read: 'Liberty Is Not A Gift For Few': Supreme Court Directs High Courts, District Courts To Monitor Pendency Of Bail Applications

2. 'Dr Kafeel Khan's Speech Does Not Promote Hatred Or Violence, It Gives A Call For National Integrity And Unity Among Citizens': Allahabad HC [Nuzhat Perween v. State of UP & Anr.]

A Division Bench comprising Chief Justice Govind Mathur and Justice Saumitra Dayal Singh revoked NSA charges against Dr. Kafeel Khan and directed the Government to immediately release him. The Court observed that Dr. Khan's speech at the Aligarh Muslim University on December 13, 2019, amidst the anti-CAA protests, that led to his arrest and subsequent detention under the stringent provisions of the National Security Act, "does not disclose any effort to promote hatred or violence."

"A complete reading of the speech primafacie does not disclose any effort to promote hatred or violence. It also no where threatens peace and tranquility of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent," the Court sternly remarked.

The Bench also noted that the detention order was issued in February 1010 whereas the alleged incident had occurred in December 2019. In this backdrop it was held- "By very nature, the order of preventive detention could have been issued to prevent an occurrence but not punitively or merely by way of a consequence of the occurrences that were two months old."

Also Read: Chief Justice Govind Mathur, Who Quashed Kafeel Khan's Detention, Has A Consistent Record Of Upholding Fundamental Rights

3. Even if The Remand Order is Illegal, Still The Writ of Habeas Corpus Is Not An Effective Remedy: Bombay High Court [Ankit Ghanshyam Mutha v. Union of India & Ors.]

Placing reliance on 2014 ruling of the Supreme Court in Sourabh Kumar (through father) v. Jailor Koneila Jail, a division bench of Justices SS Shinde and NB Suryawanshi held that the Writ of Habeas Corpus is not maintainable if there is order of remand and the current remedy would be to seek bail.

It held, "The legal position as laid down by the authorities of the Supreme Court and this Court makes it clear that even if the remand order is illegal, which is passed mechanically in a cavalier fashion, still the remedy of the Writ of Habeas Corpus cannot be said to be an efficacious remedy, but in terms of the Hon'ble Supreme Court filing of Bail Application in such circumstances is appropriate remedy."

Anticipatory Bail

1. Anticipatory Bail Application Not Maintainable By A Person Who Apprehends Arrest After Cancellation Of Regular Bail: Supreme Court [Manish Jain v. Haryana Pollution Control Board]

A bench comprising Justices Navin Sinha and KM Joseph held that a person cannot file an anticipatory bail application apprehending arrest following the cancellation of his regular bail. This is because a person released on bail remains under the 'constructive custody' of law and a person in custody cannot seek anticipatory bail, explained the top court.

2. Anticipatory Bail Cannot Be Limited To A Fixed Period Except In Special And Peculiar Circumstances: SC [Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr.]

A Constitution Bench of Justices MR Shah, S. Ravindra Bhat, Arun Mishra, Indira Banerjee and Vineet Saran held that anticipatory bail should not invariably be limited to a fixed period. But if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so. The Court also held that life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial except in special and peculiar cases.

It overruled the judgment in Salauddin Abdulsamad Shaikh v. State of Maharashtra, 1996 (1) SCC 667, which restricted the scope of Section 438 of the Cr.PC. It also overruled Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors., 2011 (1) SCC 694, to the extent it held that no conditions can be imposed while granting an order of anticipatory bail, is incorrect.

Also Read: Accused Released On Anticipatory Bail Need Not Surrender And Seek Regular Bail For Recovery Under Section 27 Evidence Act : SC

3. Section 438 CrPC Doesn't Mandate That Sessions Court Must Be Moved First; But Special Circumstances Must Be Shown To Directly Approach HC : Allahabad HC Full Bench [Ankit Bharti v. State of UP & Anr.]

A 5-judge bench of the Allahabad High Court composing of Chief Justice Govind Mathur and Justices Ramesh Sinha, Sunita Agarwal, Yashwant Verma and Rahul Chaturvedi clarified that under special circumstances, a person apprehending arrest may approach the High Court directly seeking anticipatory bail, without approaching the Sessions court first.

Section 438 confers concurrent jurisdiction on both High Court and the Sessions Court to entertain an application for anticipatory bail. Notwithstanding this concurrence, the bench observed that strong, cogent, compelling and special circumstances must necessarily be found to approach the High Court first, without the avenue as available before the Court of Sessions being exhausted. The bench further clarified that it was not inclined to "enumerate" the special circumstances in which an applicant may move to the high court directly. Such circumstances, it held, must be left to the "judicious discretion" of the Court, to be exercised on a case to case basis.

4. Application For Anticipatory Bail Is Maintainable Even After An Accused Is Declared "Absconder": Madhya Pradesh HC [Balveer Singh Bundela v. State of Madhya Pradesh]

A Bench of Justice Anand Pathak observed that declaration of an accused as an "absconder" under Section 82 of CrPC does not preclude him from filing an application for seeking anticipatory bail. It held that according to the Apex Court's decision in Lavesh v. State (NCT Of Delhi), (2012) 8 SCC 73, a person who is proclaimed offender under Sections 82 and 83 of Cr.P.C. loses the sheen on merits to seek anticipatory bail. It clarified that such application deserves dismissal on merits if he is declared as absconder under Section 82 of Cr.P.C. but application is certainly maintainable.

It held that the judgment does not talks about "maintainability" of anticipatory bail application after a person is declared absconder but, it merely suggests that the absconder loses "entitlement" to bail.

Also Read: S. 82 CrPc Neither Creates Riders Nor Imposes Restrictions In Filing Of Anticipatory Bails By Proclaimed Offenders: Himachal Pradesh High Court

5. Anticipatory Bail Can Be Granted Even After Chargesheet Has Been Filed: Allahabad High Court [Adil v. State of UP]

A single bench of Justice Siddharth held that anticipatory bail can be granted even after a chargesheet in the criminal case has been filed. The Court, in its decision, cited the case of Sushila Agarwal v. State (NCT of Delhi) and held that the anticipatory bail need not be in place for a limited duration of time. In many cases, it can even go on till the conclusion of the trial. The High Court's power to grant an applicant anticipatory bail doesn't conclude after the submission of the chargesheet.

The Bench quoted from the Sushila case, "If the facts of the given case make the applicant entitled for grant of anticipatory bail, even after submission of charge sheet against him and cognizance of the same by the Court, the second anticipatory bail would be maintainable before the High Court even though the applicant was earlier granted anticipatory bail till the submission of charge sheet by the High Court."

Grounds for Grant/ Refusal of Bail

1. Unemployment Due To COVID A Dominating Factor: Madras High Court Grants Bail To Theft Accused [Deepak & Anr. v. State]

In the peculiar circumstances created by the pandemic and a prolonged lockdown which affected the livelihood of many, a Bench of Justice SM Subramaniam granted bail to two-person accused of committing theft.

"Considering the probable circumstances, and the problems of unemployment, which are the dominating factors to be considered for grant of bail in such cases, keeping this kind of persons inside the jail for a longer duration would be detrimental not only to the individual, but also to the society at large," the Court opined.

Also Read: Poverty/Deemed Indigent Status Of Accused Is An Extremely Important Factor For Granting Bail: Reiterates HP HC

2. Parity Cannot Be The Sole Ground For Granting Bail: Allahabad HC [Gajendra Singh v. State of UP]

A single-Judge bench of Justice Ravi Nath Tilhari held that "parity" with the co-accused cannot be the sole ground for granting bail and that each bail application has to be decided on the basis of its own merits. Reliance was placed on Rakesh Kumar Pandey v. Munni Singh @ Mata Bux Singh & Anr., where the Supreme Court had denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence.

3. Factors Like Gravity & Seriousness Of Alleged Offence By Themselves Cannot Be The Basis To Refuse Bail: SC [Prabhakar Tewari v. State of UP]

The bench of Justice Deepak Gupta and Justice Aniruddha Bose observed that the factors like gravity and seriousness of offences alleged against an accused by themselves cannot be the basis for refusal of prayer for bail.

While hearing an appeal against an Allahabad High Court order that granted bail to two accused persons allegedly involved in a murder case, the Top Court said that the offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. However, these factors by themselves cannot be the basis for refusal of prayer for bail.

Cancellation of Bail

1. Mere Registration Of Multiple Cases Not A Ground To Cancel Bail: Karnataka High Court [Ms. X v. State of Karnataka]

A bench of Justice H P Sandesh dismissed a petition filed by a rape survivor seeking to cancel bail granted to the accused on the ground that he is a habitual offender and has similar cases registered against him.

The Court said "In the absence of any cogent material on record, the liberty of any person as envisaged under Article 21 of the Constitution of India, cannot be curtailed on the mere ground of the number of cases being pending against him. It is settled law that Section 439(2) of Cr.P.C. has to be invoked in exceptional cases when it causes miscarriage of justice, if it is not invoked and the same has to be exercised sparingly and not mere asking of the cancellation of bail."

Also Read: Bail Granted In One Case Can't Be Cancelled On The Ground That Another FIR Is Registered: Karnataka HC

Bail under Special Acts

Muslim Women (Protection of Rights on Marriage) Act

1. No Bar On Filing Anticipatory Bail Applications In Triple Talaq Cases; But Should Plead Reasons For Not Approaching Magistrate: Kerala HC [Nahas v. State of Kerala]

A Bench of Justice PV Kunhikrishnan held that Anticipatory Bail application under Section 438 Cr.P.C. is not barred in a case in which an offence under the provisions of Muslim Women (Protection of Rights on Marriage) Act, 2019 is alleged. But, if an accused wants to avail the right under Section 438 Cr.P.C., he should specifically plead in an application under Section 438 Cr.P.C. about the reasons for not approaching the Magistrate under Section 7(c) of the Act, 2019.

Referring to the provisions of the Act, the court noted that there is no such prohibitory Section in the Act, 2019 (unlike that in SC-ST Act) restraining the court in entertaining an application under Section 438 CrPC. Access full report to read guidelines in the matter of consideration of bail application under Section 7(c) of the Act.

Narcotic Drugs and Psychotropic Substances Act, 1985

2. Liberal Approach In Granting Bail In NDPS Uncalled For, Says SC [State of Kerala v. Rajesh]

A bench of Justice Indu Malhotra and Justice Ajay Rastogi observed that there cannot be liberal approach in the matter of bail in NDPS Cases. It noted that as per Section 37 of the NDPS Act, 1985, the Court has to record a finding and the same is a sine qua non for granting bail to the accused.

For granting Bail under Section 37, the first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

3. [NDPS] Anticipatory Bail Cannot Be Granted Merely Because 'Nothing Was Recovered' From Accused: Kerala HC [State of Kerala v. Mohammed Riyas]

A Bench of Justice R. Narayana Pisharadi held that anticipatory bail cannot be granted in an NDPS case merely because 'nothing was recovered' from the accused. It noted that as per Section 37(1)(b)(ii) of the Act, if the Public Prosecutor opposes the application, two conditions have to be satisfied for enlarging the accused on bail: "The first one is that the Court shall be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence alleged against him. The second one is that the Court shall be satisfied that there are reasonable grounds for believing that the accused is not likely to commit any offence while on bail. Only on satisfaction of these twin conditions, the Court has the power to enlarge the accused on bail."

It clarified that satisfaction contemplated, regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with.

4. Mere Passage Of Time During Pendency Of Appeal Cannot Be A Ground To Suspend Sentence And Grant Bail In NDPS Cases: SC [Sheru v. NCB]

A Bench comprising Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari held that mere passage of time during the pendency of the appeal cannot be a ground to suspend the sentence and grant bail in NDPS Cases; and that the rigors of Section 37 of Narcotic Drugs and Psychotropic Substances Act, 1985, would have to be met before the sentence of a convict is suspended and bail granted.

The order was passed in a case filed by Sheru, who was convicted under NDPS Act, and had been in custody for almost eight years. He contended that despite the directions of the Apex Court to treat the case at priority, the case has not yet reached for hearing. The court clarified that the order has been passed in the given facts of the case and not to be treated as a precedent.

Unlawful Activities (Prevention) Act, 1967

5. Bail-If Case Diary & Other Materials Disclose Prima Facie Case Then Bar Under Proviso To S. 43D(5) Of UAPA Will Be Attracted: Chhattisgarh HC [Abhay Nayak v. State of Chhattisgarh]

A Division Bench of Justice Prashant Kumar Mishra & Justice Gautam Chourdiy held that on reading the case diary or any other material placed on record, if a prima facie case is made out against the accused, then the proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 will get attracted and the accused shall not be enlarged on bail.

The said provision stipulates that a person accused of an offence punishable under Chapters IV and VI of UAPA shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of CrPC is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

6. Anticipatory Bail Can Be Granted In Cases Under SC/ST Atrocities Act : Madras HC [Dr.S. Ariharan & Anr v. Inspector of Police & Anr.]

A Bench of Justice G.R. Swaminathan held that a petition for anticipatory bail is maintainable even if the case has been registered under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It observed that Section 438 of CrPC is not the sole repository of the power to grant anticipatory bail and that the High Courts are endowed with inherent powers to make such orders as to secure the ends of justice.

In this backdrop it clarified that the bar on application of Section 438 of the Code engrafted under Section 18/ 18A of the SC/ST Act does not preclude the High Courts from invoking their inherent powers to grant bail under Section 482 of CrPC.

7. Practice Of Surrendering Before Court To Obtain Bail Does Not Override Legislative Intent Of Restraining Pre-Arrest Bail Under SC/ST Act: Himachal Pradesh HC [Saroj Kumari v. State of HP]

The single-Judge bench of Justice Anoop Chitkara held that mere non-application of the provision for anticipatory bail to offenders accused under the SC/ ST Act does not preclude them from surrendering before the court and seeking regular bail. It observed that when the provisions of the SC/ ST Act have been used as a tool to send and keep people in custody, then it shall be legal to grant ad-interim bail or regular bail to the accused.

"The practice of accused surrendering before Sessions Court or High Court and thereby obtaining bail, cannot be said to be with a view to override the legislative intention of restraining the anticipatory bail to the violators of the SC/ST Act. If the allegations are serious, keeping in view the object of the SC/ST Act and the purpose for which this stringent provision in SC/ST Act was enacted, then certainly, such kind of accused would not be permitted to take advantage bails after surrender. However, when prima facie, the Court notices that the provisions have been used as a tool to send people in custody, then in such cases, it shall be prudent, proper and legal to grant ad-interim bail or regular bails," the judge held.

Also Read: SC-ST (Prevention Of Atrocities) Act Does Not Restrict The Practice Of Accused Surrendering & Getting Interim Bail U/s 439 CrPC: Himachal Pradesh HC

8. Bar Against Grant Of Anticipatory Bail In SC-ST Act Does Not Disentitle Accused From Seeking Regular Bail After He Surrenders/Gets Arrested: Kerala HC [Juli CJ v. State of Kerala]

A Bench of Justice Narayana Pisharadi observed that the bar against granting anticipatory bail in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, does not disentitle the person accused of an offence under the Act from seeking regular bail, when he is arrested and produced before the court or when he surrenders or appears before the court.

"The privilege of pre-arrest bail, in respect of the offences under the Act, is often denied to an accused only for the reason that Sections 18 and 18A of the Act interdict the court from granting that relief. In many cases registered under the Act, custodial interrogation of the accused may not be necessary and there may not be any risk of the accused fleeing from justice. In such cases, but for the bar under the aforesaid provisions of the Act, the court would have exercised the discretion to grant the relief under Section 438 Cr.P.C in favour of the accused. In such cases, nothing prevents the Special Court from granting bail to the accused under Section 437 of the Code, when he is arrested and produced before the court or when he surrenders or appears before the court," it held.

9. [Section 15A(3) SC/ST Act] Not Mandatory To Hear Victim While Granting Bail Where Accused Charged With Bailable Offence: Gujarat HC [Hemal Ashwin Jain v. Union of India]

A Division Bench of Chief Justice Vikram Nath and Justice JB Pardiwala held that when a person is accused of committing only bailable offence or offences under the Sc/ST Act, it is not mandatory to grant opportunity of hearing to the victim or the dependent as provided under Section 15A(5) of the Act in a proceeding relating to granting bail to such accused. It said so because the impugned provision is not laying any fetters or unreasonable restrictions upon the court when it comes to exercising discretion as regards the grant of bail, etc.

However, it clarified that before the court decides to decline such opportunity to the victim or the dependent, the court shall thoroughly verify and ascertain that the allegations against the accused disclose commission of only bailable offence or offences under the Act, by him.

10. Bail Granted Under SC/ST Atrocities Act May Be Recalled/ Cancelled Under Crpc: MP HC [Sunita Gandharva v. State of MP & Anr.]

A Bench of Justice Anand Pathak observed that the High Court can entertain application under Section 439 (2) of Cr.P.C. for cancellation of bail granted in exercise of powers conferred under Section 14-A (2) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.

While considering the question whether bail once granted under a Special law can be cancelled under CrPC, the Bench emphasized that a victim cannot be rendered "remediless" if the accused gets bail but keeps on interfering in the investigation / trial and intimidating the victim or the witnesses.

Juvenile Justice (Care and Protection of Children) Act, 2015

11. A Child In Conflict With Law Cannot Be Kept In Jail Or Police Lockup Under Any Circumstances: SC [In Re: Exploitation of Children in Orphanages in State of Tamil Nadu v. Union of India]

A Division Bench comprising Justice Deepak Gupta and Justice Aniruddha Bose observed that Section 10 of the JJ Act stipulate that a child in conflict with law has to be placed under the charge of the special juvenile police unit or the designated child welfare officer only and not under regular police custody. Further, Section 12 stipulates that Bail is the rule in case of juveniles.

"All JJBs in the country must follow the letter and spirit of the provisions of the Act. We make it clear that the JJBs are not meant to be silent spectators and pass orders only when a matter comes before them. They can take note of the factual situation if it comes to the knowledge of the JJBs that a child has been detained in prison or police lock up. It is the duty of the JJBs to ensure that the child is immediately granted bail or sent to an observation home or a place of safety. The Act cannot be flouted by anybody, least of all the police," the bench observed.

12. 'The Legislature Didn't Intend To Debar A Juvenile From Seeking Relief Of Pre-Arrest Bail', Punjab & Haryana HC [X (through Mother) v. State of Haryana]

A bench of Justice HS Madaan held that a petition for grant of pre-arrest bail (also known as Anticipatory Bail) by a juvenile "cannot be held to be not maintainable." It observed, "It could certainly not be the intention of the legislature that such juvenile should be first apprehended and then produce before Juvenile Justice Board, in the process denying relief to a juvenile, which is available to the other persons, who are accused of heinous offences."

It was submitted before the Bench that that Sections 10 and 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 deal with grant of regular bail and not with pre-arrest bail. The Court however observed that "if this special enactment is silent as regards a particular provision (Pre-arrest Bail) then that has to be read with the general law i.e. (the) Criminal Procedure Code (1973). An inference can certainly be not drawn that the legislature intended to debar a juvenile from seeking relief of pre-arrest bail. If it was (so), then a specific provision in that regard would have been there on the analogy of Section 18 'The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,' which clearly bars grant of pre-arrest bail to a person alleged to have committed (an) offence under the said act."

Protection of Children from Sexual Offences Act, 2012

13. Orissa HC Mandates Subordinate Judges To Ensure Presence Of Informant/Victim At Bail Hearings In POCSO Cases [Kavuru Harikrishna v. State of Odisha]

A Bench of Justice Sanjeeb Panigrahi directed the High Court Registrar (Judicial) to issue a 'practice direction' or 'notification' to all subordinate courts requiring them to ensure the presence of the informant/victim/complainant during the hearing of bail petitions of persons accused in cases of rape and gang-rape of girls younger than 12 years of age and gang-rape of women less than 16 years.

The Single Judge noted that since the hearing of this case relates to grant of regular bail to the accused in a rape case of a minor, the presence of the informant/victim/complainant is obligatory and that it is a "fundamental requirement of law that cannot be bypassed, ignored or neglected" in view of the Criminal Law (Amendment) Act, 2018.

[As per the Criminal Law (Amendment) Act, 2018, Section 439 of the Cr.P.C. is amended with effect from 21st April, 2020, by which it is made mandatory for the informant or any other person authorised by the informant to be present at the time of hearing of an application for bail filed by the accused under these provisions.]

14. [Offences Under The POCSO Act] Sessions Court Can't Entertain Anticipatory Bail Pleas; Only Special POCSO Courts Are Empowered To Do So: Madras HC [Criminal Reference]

A Division Bench of Justices M. Sathyanarayanan and V. Bharathidasan ruled that the Special courts, as designated under the provisions of Protection of Children from Sexual Offences Act, 2012 [POCSO Act] alone are empowered to entertain pre-arrest bail petitions in respect of offences under the POCSO Act. It further held that the Sessions Court cannot entertain such applications.

The Court noted, Section 31 of the POCSO Act opens with, "Save as otherwise provided in this Act". A careful reading of the POCSO Act would go to show that, there is no provision under the POCSO Act specifically excluding Section 438 of Cr.P.C., before the Special Court. Hence, the Court remarked that Section 31 of the POCSO Act is clear and unambiguous that the provisions of Section 438 of Cr.P.C., are very much applicable to the Special Court.

"When the Special Court is exercising the exclusive jurisdiction to deal with the offences under the POCSO Act, the same Court also has the power to deal with the application under Section 438 of Cr.P.C., even before registering the First Information Report," it added.

Conditions for Grant of Bail

1. Rights Of Accused Should Not Become Illusory By Imposition Of Disproportionate Bail Conditions: SC [Parvez Noordin Lokhandwalla v. State of Maharashtra]

The bench comprising Justices DY Chandrachud and Indira Banerjee observed that the conditions which a court imposes for the grant of bail have to balance the public interest in the enforcement of criminal justice with the rights of the accused.

It said that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437 (3) and 439 (1) (a) of the CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice.

It added, "The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial."

Also Read: A Condition For Grant of Bail, Incapable of Compliance, Renders The Bail A Complete Fantasy: P&H HC

2. Condition To Deposit Amount In Corona Relief Fund For Bail Is Unjust & Improper: Kerala HC [Chinna Rao Swayamvarappu v. State of Kerala]

A Single Bench of Justice CS Dias quashed as "improper and unjust", the bail condition imposed by a Sessions Judge that the petitioner should deposit an amount of Rs 25,000/- towards the Corona Relief Fund. It made a reference to the Supreme Court's verdict in Moti Ram v. State of Madhya Pradesh, where it was held that the imposition of cash security or deposit of any amount for grant of bail is unjust, irregular and improper.

Also Read: Condition To Deposit Amount In PM CARES Fund For Granting Bail Is Improper: Madhya Pradesh HC Concurs With Kerala HC

Also Read: Payment Of Fine Is A Mode Of Punishment; Can't Be A Condition For Bail : Jharkhand HC

3. Delhi HC Calls For Use Of GPS Tracking System To Monitor Movement Of Accused Released On Bail [State (NCT of Delhi) v. Sanjeev Kumar Chawla]

A single bench of Justice Asha Menon called for the use of tracking systems such as GPS tracking system to monitor the movement of accused who have been released on bail. The judge observed that the case at hand "brought to the fore the need for investigative agencies and the Government to consider the use of advances in technology to track under-trials in cases of this nature where the State may fear that an accused may flee from trial".

"Digital and electronic equipment, as presently used in America, ought to be introduced in India, so that a tracking system similar to the GPS Tracking System, can be used to monitor the movement of the accused released on bail, allowing the authorities to gather information all the time while permitting the accused to undertake the usual and ordinary activities of normal life", she added.

Also Read: Delhi Court Directs Continuously Switched On GPS and Bluetooth As A Mandatory Condition for Bail

Also Read: 'Liberty Of A Person Cannot Be Left In Limbo On Belief Of State That He Is At Flight Risk': Delhi HC Upholds Bail Granted To Sanjeev Chawla In Match Fixing Case

4. Bail Condition To Keep Foreigner In Detention Centre Not Violative Of Article 21 : Karnataka HC [Toichubek Uulu Bakytbek v. State of Karnataka]

A Bench of Justice Hanchate Sanjeevkumar dismissed a petition filed by a Kyrgyzstan national seeking to relax bail condition imposed by the trial court directing authorities to keep him in a detention center, till disposal of the case registered against him under the Foreigners Act. The Court said, "Imposition of such condition, placing the petitioner in Detention Center cannot be said to be harsh or even illegal and unjustifiable and it is not violative of Article 21 of the Constitution of India."

It explained, "Detention Centers are not to be construed as putting them into a Jail/Prison. The object behind such establishment of Detention Center and placing foreign nationals against whom cases have been registered under the FA Act, is just to restrict their movements across India and should not travel according to their whims and fancies and remain untraceable or absconded or flee away from justice."

List of peculiar bail conditions imposed by Courts:

Position of Victim during Accused' Bail hearings

1. 'Trial Court, While Deciding Bail, Should Consider Awarding Reasonable Sum, As Interim Compensation, To Victims, Particularly Those From Unprivileged Classes': Orissa HC [Sanjeet Sandha v. State Of Odisha]

While considering the bail application of an undertrial accused of attempted murder by pouring petrol on the victim's body, a Single Bench of Justice SK Panigrahi suggested that the Trial Courts should consider awarding a reasonable amount as an interim award so that the victims, especially hailing from poor and underprivileged classes, can utilise the said amount for the purpose of meeting their medical expenses.

The Court observed that amidst increasing concern for compensation to victims of crimes, Section 357A was inserted in the Code of Criminal Procedure in the year 2009. It was intended to reassure the victim that he or she is not forgotten in the criminal justice system. Though the amendments in 2009, left the character of Section 357 unaltered, with the introduction of this Section, the Court is empowered to direct the State to pay compensation to the victim in such cases where the compensation awarded under Section 357 is inadequate for such rehabilitation, or where the case ends in acquittal or discharge but the victim has to be rehabilitated.

2. Notice To Defacto Complainant Need Not Be Issued In Bail Applications Except In Cases Where Law Insists So: Kerala HC [Vishnu Gopalakrishnan v. State Of Kerala]

Justice PV Kunhikrishnan observed that it is not necessary for a court to issue a notice to the defacto complainant suo motu or direct the accused to implead the defacto complainant in a bail application except in cases in which the Criminal Procedure Code and other Acts insist so or the bail court feel that the defacto complainant is also to be heard in the facts and circumstances of that case.

"When the legislature thinks that only in certain cases notice is necessary to the victims/defacto complainants while considering the bail applications by courts, the court need not issue a notice to the defacto complainants/victims in all bail applications. Simply because the case is registered under Section 420 IPC or 406 IPC, the bail court need not issue notice to the defacto complainant unless there is a special reason for the same. Similarly, in all cases in which monetary dispute is there, the bail court need not issue a notice to the defacto complainant. Bail court is not an executing court to settle money claims. When the legislature says that notice to the defacto complainant is necessary only in certain cases, the court need not issue a notice to the defacto complaint in all bail applications," the Judge opined.

Default Bail

1. Suo Moto Extension Of Limitation Or Lockdown Will Not Affect Right Of Accused To Default Bail : SC [S. Kasi v. State]

A Bench comprising Justices Ashok Bhushan, M R Shah and V Ramasubramanian held that the Supreme Court's suo moto order extending limitation and the lockdown restrictions of the government will not affect the right of an accused to seek default bail under Section 167(2) of CrPC. The Court held that the suo moto order extending limitation cannot be interpreted as extending the limitation period under Section 167(2) CrPC.

The Court apprehended that the if a contrary view is accepted, it could lead to police taking extra liberties even with respect to production of accused after arrest. It held that the reasoning that the lockdown was akin to a proclamation of emergency under Article 352 of the Constitution was not right. Even otherwise, the fundamental right to personal liberty under Article 21 cannot be suspended during emergency, the court noted.

Also Read: SC Order For Extension Of Limitation Does Not Affect An Accused' Right To Default Bail Under Section 167(2) CrPC: Uttarakhand HC

Also Read: SC Order For Extension Of Limitation Does Not Affect An Accused' Right To Default Bail Under Section 167(2) CrPC: Kerala HC

2. Court Cannot Impose Condition Of Deposit of Money While Granting Default/Statutory Bail U/s 167(2) CrPC: SC [Saravanan v. State]

A Bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah held that while granting default bail/ statutory bail under Section 167(2) of CrPC, condition of deposit of amount cannot be imposed.

The only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail, the Court observed.

The court also added that the circumstances while considering the regular bail application under Section 437 Cr.P.C. are different, while considering the application for default bail/statutory bail.

3. Subsequent Filing Of Chargesheet Does Not Extinguish Indefeasible Right Of Accused Who Applied For 'Default Bail': SC [Bikramjit Singh v. State of Punjab]

A Bench of Justices RF Nariman, Navin Sinha and KM Joseph observed that the accused gets an indefeasible right to 'default bail' if he makes an application after the maximum period for investigation of an offence is over, and before a charge sheet is filed.

It said, "So long as an application has been made for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted."

Also Read: Right To Default Bail Is Enforceable Even If Charge Sheet/ Report Seeking Extension Of Time Is Subsequently Filed: SC

4. Courts Should Inform Accused About Their Right To 'Default Bail' Once It Accrues: SC [M. Ravindran v. Intelligence Officer]

Observing that the objects of Section 167(2) of CrPC are subsets of the overarching fundamental right guaranteed under Article 21, a Bench comprising Justices UU Lalit, Mohan M. Shantanagoudar and Vineet Saran said that Courts should inform the accused of the availability of their indefeasible right to avail 'default bail' once it accrues to them. The bench also observed that if the Court deliberately does not decide the bail application but adjourns the case by granting time to the prosecution, it would be in violation of the legislative mandate.

"As a cautionary measure, the counsel for the accused as well as the magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledge­-sharing by magistrates will thwart any dilatory tactics by the prosecution and also ensure that the obligations spelled out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld," it said.

5. Default Bail Granted Erroneously Can Be Cancelled By High Court U/s 439(2) CrPC: Supreme Court [Venkatesan Balasubramaniyan v. Intelligence Officer, DRI, Bangalore]

A Bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed that a 'default bail' illegally or erroneously granted under Section 167(2) Cr.PC can be cancelled under Section 439(2) Cr.PC.

"The proviso to Section 167 itself clarifies that every person released on bail under Section 167(2) shall be deemed to be so released under Chapter XXXIII. Therefore, if a person is illegally or erroneously released on bail under Section 167(2), his bail can be cancelled by passing appropriate order under Section 439(2) CrPC. This Court in Puran v. Rambilas [(2001) 6 SCC 338] has also clarified that the concept of setting aside an unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation" it observed.

6. Day Of Remand To Be Included While Computing Period Under Section 167(2)(a) CrPC: Bombay HC [Kapil Wadhwan v. Directorate of Enforcement]

A Bench of Justice Bharati Dangre held that in computing the period of 90 days or 60 days as contemplated in Section 167(2)(a) of CrPC for default bail, the day of remand is to be included.

It held inter alia that the submission to the effect that the first day of remand will have to be excluded, would result into a "break in the continuity of the custody of the accused" which begin on his arrest and which could have continued till conclusion of investigation.

7. Default Bail Cannot Be Denied To Accused Just Because He Filed Application U/S 439 Instead of 167(2) CrPC : Delhi High Court [Subhash Bahadur v. NCT of Delhi]

The bench of Justice Vibhu Bakhru granted bail in a case where the accused was prepared to furnish bail and comply with the conditions under Section 167(2) of CrPC but had submitted his application under Section 439 CrPC. The court held that in the instant case, although the accused had submitted his application for bail under Section 439 CrPC, he had 'indicated' as required under the Proviso(a) to Section 167(2) of CrPC that he was prepared to furnish bail, and therefore "in substance, the said condition is met".

The Judge further expounded that the Supreme Court too has explained on a number of occasions that the Proviso (a) to Section 167(2) CrPC is intrinsically linked to the right under Article 21 of the Constitution of India that "no person shall be deprived of his life or personal liberty except according to the procedure established by law". He stated that, "since the Section embodies a safeguard that circumscribes the power to detain an accused pending investigation, it would not be apposite to curtail the same on technicalities."

8. [Attempt To Rape] Accused U/s Section 511 R/w 376 IPC Entitled To Statutory Bail If Final Report Is Not Filed Within Sixty Days After Remand: Kerala HC [Vinesh v. State of Kerala]

A Bench of Justice PV Kunhikrishnan held that an accused charged for attempt to rape under Section 511 read with Section 376, is entitled to statutory bail under Section 167(2)(a)(ii) of CrPC if no Final Report is filed within sixty days.

As per Section 167(2)(a) of the Code of Criminal Procedure, a Magistrate cannot authorise detention of the accused beyond a period of 60 days if the investigation relates to an offence in which the maximum imprisonment is ten years. Thus the legal issue considered by the court was whether the maximum punishment that can imposed under Section 511 and 376 is ten years or not.

The court noted Section 57 IPC which states that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. Referring to Rakesh Kumar Paul v. State of Assam (2017(4) KHC 470), it said that while construing Section 167 Cr.P.C a liberal approach is necessary. "On a reading of Section 167(2)(a)(ii) Cr.P.C along with 511 of 376 IPC coupled with Section 57 of the IPC, it is clear that an accused who is charged for the offence under Section 511 of 376 IPC can be imprisonment only for a period of ten years. If that is the case, the petitioner is entitled statutory bail in this case."

9. Not Mandatory To Hear Victim While Considering Rape Accused's Plea For Default Bail: Kerala HC [X v. State of Kerala]

A Single Bench of Justice PB Suresh Kumar held that provision contained in Section 439(1A) of CrPC for mandatory presence of the informant/ victim during hearing of bail plea of a rape accused, does not apply to an application for bail under Section 167(2) CrPC. The court noted that the bail under Section 167(2) of the Code, it is fundamentally different from the bail under Sections 437, 438 and 439 of the Code.

"The contrast is particularly stark since Section 167(2) grants an indefeasible right to an accused, whereas Sections 437, 438 and 439 do not grant any such right to the accused and grant of bail under those provisions is only a matter of judicial discretion…While considering an application for bail under Section 167(2), a court does not consider the merits of the case, but only considers the question as to whether there is default on the part of the investigating agency in completing the investigation in the case within the prescribed period," the Bench held.

10. When No Minimum Sentence Is Prescribed, Accused is Entitled To Default Bail If Charge-Sheet Not Filed In 60 Days: Delhi High Court [Rajeev Sharma v. State (NCT) of Delhi]

While granting bail to journalist Rajeev Sharma, who was arrested for allegedly leaking sensitive information to Chinese intelligence, a Single Bench of Justice Yogesh Khanna observed that an accused is entitled to default bail if chargesheet is not filed in 60 days, if no minimum sentences is prescribed under the statute for the offences alleged against him.

The court noted that as held in Rakesh Kumar Paul v. State of Assam, in all cases where the minimum sentence is less than 10 years but the maximum sentence is not death or life imprisonment then Section 167(2)(a)(ii) will apply and the accused will be entitled to grant of "default bail" after 60 days in case charge-sheet is not filed.

Other Orders

1. HC's Jurisdiction U/S 439 CrPC Is Limited To Grant Or Not To Grant Bail: SC Quashes Madras HC's Direction To Form A Committe For Reforms [State v. M. Murugesan]

A Bench of Justice L. Nageswara Rao and Justice Hemant Gupta set aside a Madras High Court order that directed the State to constitute a committee to recommend reforms in the Criminal Justice System. It observed that the jurisdiction of the Court under Section 439 of CrPC is limited to grant or not to grant bail pending trial and it has no inherent jurisdiction to pass any order under the guise of improving the criminal justice system in the State.

2. As A General Rule, Copy of The Jail Superintendent's Report Must Be Given To The Bail Applicant: Delhi HC [Chirag Madan v. Union of India & Ors.]

The Division Bench of Chief Justice DN Patel and Justice Prateek Jalan observed that a general rule, a copy of the report given by the Jail Superintendent as well as by the Investigating Officer should be supplied to the applicant so that accused can properly understand the reasons given therein and defend their case.

3. Plea For Stringent Bail Provisions, Reverse Onus, Death Sentence For Rape: Supreme Court Asks Govt. To Consider [Kirti Ahuja & Anr. v. Union of India & Ors.]

A bench comprising Justices NV Ramana, Surya Kant and Aniruddha Bose refused to entertain a writ petition seeking a direction to the Government to bring certain reforms and amendments in the law to make it stringent and deterrent in cases of rape with grievous injury, gang rape and rape/gang-rape with murder.

While disposing of the petition, the Court granted liberty to the Petitioners to make a representation to the Ministry of Home Affairs, Ministry of Law and Justice and Ministry of Women and Child Development regarding the issues and said that it 'hopes and trusts that they shall consider the same and take appropriate action on that'.

4. 'Give Complete Details Of Criminal Antecedents Of Applicants In Bail Orders': Allahabad High Court Directs Trial Courts [Uday Pratap @ Dau v. State of UP]

A Single Bench of Justice Samit Gopal directed the Courts below to "give a complete details of the criminal antecedent(s), if any, of the applicant(s)/accused before them or record the fact that there are no criminal antecedent(s) of the said person(s) if there are none." The direction was made as the Court observed that although criminal antecedents of the accused are not the sole and decisive factor for decision of bail applications but, the same needs to be considered while deciding an application for bail under Section 439 CrPC as per the legislative mandate of Section 437 CrPC.

A similar direction was also made by the Rajasthan High Court to all the criminal Courts subordinate to it.

Also Read: Man Kept In 8-Months Illegal Confinement As 'Middle Name' Was Missing To His Name In Bail Order, Allahabad High Court Orders Release, Summons Jailer

Also Read : Good & Bad : 60 Important Supreme Court Judgments Of 2020

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