Friday, January 21, 2022

GRANTING OF BAIL AND CANCELLATION OF BAIL: PARAMETER

 


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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