GRANTING OF Bail AND
CANCELLATION OF BAIL: Parameter
The basic rule is bail and not jail. However, in
non-bailable offence, the discretion is applied by respective courts and bail
can be granted, only, upon analyzing the severity of offence and/or probable
innocence of accused, apart from factoring myriads of factors. This is so, as
securing attendance of accused during trial is of paramount consideration and
unless, the liberty to the accused is required to be curtailed due to the
allegation and overwhelming circumstances, bail may be granted. The provision
of regular bail finds mention under Section 437 of Code of Criminal Procedure
and the same relates to court of Magistrate, whereas, under Section 439 of Code
of Criminal Procedure, the bail is preferred before the Sessions Court or High
Courts. These provisions shall be attracted, only, if the accused are arrested
and in prison and hence, such a bail application, when preferred, while in
custody is called Regular Bail application. Conversely, the persons named in
F.I.R or otherwise apprehensive of arrest due to the allegation relating to non-
bailable offence, could prefer the Pre- Arrest bail petition known as
Anticipatory Bail and the same shall be preferred before Sessions Court only
u/s 438 of Code of Criminal Procedure. In case, the Sessions court declines the
bail, then the same could be preferred before the high court u/s 438 of Cr.P.C
the application can be preferred. The bail once granted, are not generally
interfered with, unless, there are cogent reasons and overwhelming cause to
that effect. The provision of cancellation of bail finds narration in section
439 (2) of Cr.P.C. The present write up, the issue of cancellation of bail and
its parameter is being delved in. As the courts are generally loath in
cancelling bail, the authorities and precedents to that effect are limited.
LAW AND JUDICIAL PRECEDENTS
In recent judgment, captioned as DHARMARAJAM &
ORS.. Versus THE STATE OF TELANGANA & ANR Criminal Appeal Nos. 1974- 1975
of 2019 (@ SLP (Crl.) Nos.8882-8883 of 2019), the hon’ble supreme Court has
dealt with the issue.It is held by hon’ble Supreme Court that for the purpose
of bail, the Court must not undertake meticulous examination of the evidence
collected by the police and comment on the same. In Raghubir Singh Vs State of Bihar, 2 (1986) 4 SCC 481 the Supreme Court
held that bail can be cancelled where :
(i)
the accused misuses his liberty by
indulging in similar criminal activity,
(ii)
interferes with the course of investigation,
(iii)
attempts to tamper with evidence or
witnesses,
(iv)
threatens witnesses or indulges in
similar activities which would hamper smooth investigation,
(v)
there is likelihood of his fleeing to
another country,
(vi)
attempts to make himself scarce by
going underground or becoming unavailable to the investigating agency,
(vii) attempts
to place himself beyond the reach of his surety, etc.
The Supreme Court has held that above
grounds are illustrative and not exhaustive. It must also be remembered that
rejection of bail stands on one footing but cancellation of bail is a harsh
order because it interferes with the liberty of the individual and hence it
must not be lightly resorted to.
In Kanwar Singh Meena vs State of
Rajasthan & Anr. (2012) 12 SCC 180 it is held by hon’ble Supreme Court that it is
trite law that bail can be cancelled in cases, where the order granting bail
suffers from serious infirmities resulting in miscarriage of justice. If the
court granting bail ignores relevant material, indicating prima facie
involvement of the accused or takes into account irrelevant material, which has
no relevance to the question of grant of bail to the accused, the High Court or
the Sessions Court would be justified in cancelling the bail.
The factors to be considered
while granting bail have been held by this Court to be the gravity of the
crime, the character of the evidence, position and status of the accused with
reference to the victim and witnesses, the likelihood of the accused fleeing
from justice and repeating the offence, the possibility of his tampering with
the evidence and witnesses, and obstructing the course of justice etc. Each
criminal case presents its own peculiar factual scenario and, therefore,
certain grounds peculiar to a particular case may have to be taken into account
by the Court. The court has to only opine as to whether there is prima facie
case against the accused. For the purpose of bail, the Court must not undertake
meticulous examination of the evidence collected by the police and comment on
the same.
The hon’ble Supreme Court has
held in Dharmarajam (Supra) that It
must also be remembered that rejection of bail stands on one footing but
cancellation of bail is a harsh order because it interferes with the liberty of
the individual and hence it must not be lightly resorted to. The complaint
alleging that the Appellants were influencing witnesses is vague and is without
any details regarding the involvement of the Appellants in threatening the
witnesses.
Section 436 A was
introduced in the Code of Criminal Procedure, 1973 in the year 2005 and the
same relates to laying down the conditions and specifies as regards the length
of time for which an accused can be kept under police custody. It is
prescribed through the amendment that if an offence is punishable for a
particular period and if half of the duration is spent in custody by the
accused during pendency of the case, then, the accused can be released on
temporary bail. However, the accused still may have to required in
investigation and in such case the accused shall be obligated to appear before
the concerned authority.
Once an individual is
arrested for a crime he can apply for bail. If the offence the accused is
charged with is a bailable offence, then the bail application shall be filed
under Section 436 of the Code of Criminal Procedure, 1973 at the Court or the
police station. The accused , upon granting of bail has to furnish surety and
pay the sum of money prescribed in that regard. The sureties also may have to
sign the bail bond as a guarantee that the accused will not escape proceedings
and shall present himself during investigation.
However, in case, the
accused is charged for the commission of a non-bailable offence then the bail
application shall be filed under Section 437 of the Code of Criminal Procedure,
1973 at the Magistrate’s Court or under Section 439 of the Code of Criminal
Procedure, 1973 at the Session’s Court or High Court. Once bail is granted
surety is again required to be furnished in the terms laid down in bail
order.
The Article 21 of The Constitution
of India prescribed that “No person
shall be deprived of his life or personal liberty except according to the
procedure established by Law”. This clearly implies that right to defend or
stand trial is a basic right . Bail is a mechanism to safeguard liberty by
allowing them to leave police custody and defend their case The even playing
field is required to be made available to the accused and one cannot defend
himself being incarcerated. No doubt, right to bail is a basic right, as the
state cannot deprive individuals of their life and liberty until they have been
found guilty beyond a reasonable doubt. Granting of bail is thus premised on
the above situation, however, as narrated, severity of offence and pervasive
allegation has to be factored. A welfare state has to provide safeguards and
malicious prosecution also cannot be ruled out therefore, the safeguard is all
the more necessary.
In Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1
SCC 694 The Supreme Court
overturned the High Court’s decision and granted the accused Anticipatory bail.
It is held that if the accused is ready to cooperate with the inquiry and is
not likely to fleeing from justice, protection can be granted. In para no. 147,
the hon’ble Supreme Court’s observation is worth reference:
147.
A three-Judge Bench of this court in Official Liquidator v. Dayanand and Others
(2008) 10 SCC 1 again reiterated the clear position of law that by virtue
of Article 141 of the Constitution, the judgment of the Constitution Bench
in State of Karnatakqa & Ors vs Umadevi & and Others (2006) 4 SCC
1 is binding on all courts including this court till the same is overruled by a
larger Bench. The ratio of the Constitution Bench has to be followed by Benches
of lesser strength. In para 90, the court observed as under:-
"We are distressed to note that despite several
pronouncements on the subject, there is substantial increase in the number of
cases involving violation of the basics of judicial discipline. The learned
Single Judges and Benches of the High Courts refuse to follow and accept the
verdict and law laid down by coordinate and even larger Benches by citing minor
difference in the facts as the ground for doing so. Therefore, it has become
necessary to reiterate that disrespect to the constitutional ethos and breach
of discipline have grave impact on the credibility of judicial institution
and encourages chance litigation. It must be remembered that predictability and
certainty is an important hallmark of judicial jurisprudence developed in this
country in the last six decades and increase in the frequency of conflicting
judgments of the superior judiciary will do incalculable harm to the system
inasmuch as the courts at the grass roots will not be able to decide as to
which of the judgments lay down the correct law and which one should be
followed."
Conclusion
The discussion as
aforesaid shall conspicuously reflect that whereas, while granting bail to an accused
charged with non bailable offence, the discretion is available to the court.
The liberty of an individual is quintessential and unless, the accused is
charged with grave and heinous offence and allegation against him are all pervasive,
the bail may be granted. The balance is required to be created and custody Vs
liberty is to be weighed appropriately. Moreover, while bail is granted, order
of cancellation of the bail shall not generally be passed, unless, there are
overwhelming reasons to that effect as narrated above.
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
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