Justice V. R. Krishna Iyer: ‘judges should be more inclined towards bail and not jail’
Bail is a kind of security which is given by the accused to the court that he will attend the proceedings against the accusation made upon him. The primary objective of arrest to the accused is to ensure that the accused in a criminal case appears before the court for the conveyance of justice. However, if the person’s presence can be guaranteed for the court trial without putting the person in a jail, it would unfair and unjust to violate a person’s liberty. Thus, bail can be granted as conditional liberty to the accused. In the matter of Sanjay Chandra vs. CBI (AIR 2012 SC) held that the principal purpose of bail is to ensure that the accused person will return for trial if he is released after arrest.
In the matter of State of Rajasthan vs. Bal Chand (AIR 1977 SC 224) held that the provision of bail restores the liberty of the arrested person without jeopardizing the object of the arrest. The general rule of bail is not jail
The procedure of Bail is provided under Section 436 in the Criminal Proceeding Code. Bail has not been defined in the Criminal Proceeding code although the offences are classified as bailable and Non-Bailable.
What is a Bailable offence and Non-Bailable offence?
In a simple word:
Bailable offence means a Non Cognizable offence (अदखलपात्र गुन्हा) which is punishable with imprisonment for less than 3 years.
Non Bailable offence means cognizable offence (दखलपात्र गुन्हा) which is punishable with imprisonment for more than 3 years.
Factor Consider at the time grant or denial of Bail Application in Non-Bailable offence.
At the time of grant or denial of Bail Application in respect of Non Bailable offence, the primary consideration is the nature and gravity of the offence. While passing the order on bail applications, the Court cannot go into the question of credibility and reliability of the witness which is put up by the prosecution. These factors only tested during the trial of the matter. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital has stated few factors to be taken into consideration, before granting bail, namely:
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Other factors considered by the Court at the time of granting the Bail
1. Whether there is or is not a reasonable ground for believing that the accused has committed the offence alleged against him.
2. The nature and gravity of the offence.
3. The severity of the punishment which might fall in the particular circumstances in case of a conviction.
4. The likelihood of the Accused absconding, if released on bail.
5. The character, means, standing and status of the Accused.
6. The likelihood of the offence being continued or repeated on the assumption.
7. That the accused is guilty of having committed that offence in the past.
8. The likelihood of the witnesses being tampered with.
9. The opportunity of the Accused to prepare his defence on merits.
10. Previous conduct and behaviour of the accused in the Court,
11. The period of detention of the accused
12. Health, age and sex of the accused
The Hon’ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Others, has held that, “the condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed.”
In case a person is of the apprehension that he might be arrested on the accusation of a non-Bailable offence, he can apply to the High Court or Court of Session for Bail.
Conditions for granting Anticipatory Bail
1. Make himself (Accused) available for interrogation by a police officer as and when required.
2. Not make any inducement, threat or promise to any person so as to prohibit him from disclosing any material facts to the Court or any Police officer.
3. Not leave India without prior permission of the Court.
Grounds for Cancellation of Bail by the Court
As the court has the power to grant bail, the same way the court has the power to cancel the bail. On following grounds Court can cancel the Bail:
1. Accused Misused Liberty
2. Interfere with the course of the investigation
3. Attempt to tamper with evidence
4. Threaten witnesses
5. Try to shift in another Country
6. Attempt to make himself scary by going underground grave offence
In the case of Dolat Ram vs. State of Haryana (1995), the Supreme Court held that in this case the following situations as supervening factors that may justify the cancellation of the bail:
1. Interference or attempt to interfere with the due course of administration of justice;
2. Evasion or attempt to evade the due course of justice;
3. Abuse of the concession granted to the accused;
4. Possibility of the accused absconding;
5. Likelihood of/actual misuse of bail.
6. Likelihood of the accused tampering with the evidence or threatening witnesses;
7. Other supervening circumstances, which have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by being on bail.