The Code of Criminal Procedure has classified offences in two categories:-(i) Bailable offences
(ii) Non-bailable offences
The classification has been made for the obvious reason that seriousness and gravity of the charge and the severity of the punishment awardable are very probable factors which are likely to tempt an accused person either to tamper with the prosecution evidence or to abscond in order to escape the punishment.
If a person is arrested for an offence which is non bailable, in that case court on its discretion can grant bail. The definition of a non-bailable offence appears in Section 2 (a) of our Code of Criminal Procedure 1974. Section 2(a) provides that “Bailable offence” means an offence which is shown as bailable in the first schedule or which is made by any other law for the time being in force and “non-bailable offence” means any other offence.
By and large, offences punishable with imprisonment for not less than three years are taken as serious offences and are made non-bailable.
5.1 When Bail may be Taken in Case of Non-Bailable Offence Under Section 437 Cr. P. C.
1. When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained non-bailable offence, without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but—
i. Such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
ii. Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life, imprisonment for seven years or
more, or he had been previously convicted on two or more occasions
of the cognizable offence punishable with imprisonment for three years or more but not less than seven years.
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail, if such person is under the age of sixteen years or is a woman or is sick or infirm;
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason;
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
**[Provided also that no person shall, if the offence alleged to have been
committed by him is punishable with death, imprisonment for the life, or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.]
2. If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, [the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail], or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
3. When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860), or abetment of, or conspiracy or attempt
to commit, any such offence, is released on bail under sub section (1), the
Court shall impose the conditions –
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter;
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.
4. An officer or a Court releasing any person on bail under sub section (1) or sub-section (2) shall record in writing his or its *[reason or special reason] for so doing.
5. Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
6. If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidenced in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
7. If, at any time after the conclusion of the trial of a person accused of a nonbailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in
custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
5.2 Scope and Application
This section gives the Court or a police officer power to release an accused on bail in a non-bailable case, unless there appear reasonable grounds that the accused has been guilty of an offence punishable with death or with imprisonment for life. But (1) a person under the age of sixteen years (2) a woman; or (3) a sick or infirm person may be released on bail even if the offence charged is punishable with death or imprisonment for life. Where a person is charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry. The same may be done after the conclusion of a trial and before judgment is pronounced, if the person is believed not to be guilty of a non-bailable offence. As a safeguard the section provides for review of the order by the Court which has released the person on bail. The power of the Magistrate under this section cannot be treated at par with the powers of the Sessions Court and the High Court under Section 439.
The basic rule may perhaps be tersely put as bail not jail except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating utter troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court.1 Grant of bail is the rule and its refusal is an exception. But
while granting it the Court has to be satisfied that the order to be passed is in the interest of justice.2The provisions of Code do not contemplate either granting of a
bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise. Having granted the bail under the said provision of law, it is not open to the trial Court or the High Court to cancel the
1 State of Rajasthan Vs. Balchand, AIR 1977 SC 2447: 1978 CrLJ 195. 2 Mazahar Ali Vs. State, 1982 CrLJ 1223, 1225 (J&K)
same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law.3
Furlough and parole are two distinct terms now being used in the jail Manuals or laws relating to temporary release of prisoners. When a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him.4
5.3 Classification of Non-Bailable Offences Non-bailable Offence:
1. If the offence is not punishable with death or imprisonment for life.
The accused person may be admitted to bail.
2. If there are no reasonable grounds for believing that the person is guilty of an offence punishable with death or imprisonment for life.
The accused may released on bail.
3. If there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life.
The accused shall not be released on bail.
4. If there are reasonable grounds for believing that the accused person is guilty of an offence punishable with death or imprisonment for life but is under sixteen years of age, is a woman or is sick or infirm.
The accused person may be released on bail.
5. If there are no reasonable grounds for The accused person 3 Biman Chatterjee Vs. Sanchita Chatterjee, AIR 2004 SC 1699: (2004) 3 SCC 388: 2004
CrLJ 1451 (1453) (SC)
4 State of Haryana Vs. Mohinder Singh, 2000 SCC (Cri) 645: AIR 2000 SC 890: 2000
believing that the accused person has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt.
shall be released on bail.
6. If, in any case triable by a Magistrate, the trial of a person accused of a non-bailable offence is not concluded within sixty days from the first date fixed for taking evidence and such person has been in custody throughout.
The accused shall be released on bail.
7. If after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the court is of opinion that the accused is not guilty of any such offence.
The accused shall be released on bail
It will thus appear that the occasion for the exercise of judicial discretion either in favour or against the accused arises only under (1), (2) and (4), otherwise the legislature itself has taken a liberal view of the matter. As far as the case of an accused under (3) is concerned, it is submitted, that he cannot be released by the Magistrates. So far as the courts of Session or High Court is concerned, their power is not fettered by the fact that there are reasonable grounds for believing that they are involved in offences punishable by death or imprisonment for life. Thus it has been held in an Allahabad case that a Magistrate has no jurisdiction to grant bail where there are prima facie reasons to believe that the accused is guilty of attempt to murder (section 307, I.P.C). But, in such a case Sessions Judge by invoking the aid of section 439, Cr. P. C, may admit the accused to bail. The question has been exhaustively dealt with while discussing the scope and ambit of the provisions of section 439 of the code.
Besides the considerations catalogued above which weigh with a court while considering the question of bail in a non-bailable case, there may be other
factors which may tilt the balance in favour or against the accused in a particular case because it is not possible to lay down an exhaustive list of considerations beyond which a court may not act5.
One thing has, however, been emphasized by the High Court, Courtney Terrel C. J. has observed “we must point out in the most emphatic way for the further guidance of Magistrate and Sessions Judges that save in exceptional cases, persons accused of crimes punishable with long terms of imprisonment should not be released by them on bail”6. The Court is not to go at a tangent in order to find
out possible excuses for granting bail7.
5.4 Power to Grant of Bail in Non-Bailable is Discretionary
Unlike a bailable offence where bail is a mater of right under S. 436 Cr. P.C., grant of bail for a non-bailable offence under S. 437 Cr. P.C. (or, for that matter, even under S. 439 Cr. P.C.), is a matter of discretion.
The grant of bail in non-bailable cases is generally a matter in the discretion of the authorities in question.6
The grant of bail in respect of a person accused of or suspected of the commission of any non-bailable offence, is a matter of discretion and under Section 437 of the Code, if there is no prohibition otherwise and if the guidelines for enlarging on bail are satisfied, then, the Magistrate in his discretion may release such person on bail. It thus gives the jurisdiction that contains a discretion which must be utilized judicially. It is stipulated that bail may not be denied only on the ground that the accused is required for getting him identified by the witnesses. Certain conditions can be annexed to the liberty and in certain contingencies liberty already granted can be snatched by cancellation of bail. In addition to these provisions, there is a ban even on such discretionary power of the Magistrate when there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for 5 Rao Harnarain Singh Vs. Emperor, 1958 CrLJ 563: AIR 1958 Raj 123; Allahrakhio
Umeed Ali Vs. Emperor, 35 CrLJ 144; Joglikar Vs Emperor 33 Cr. LJ 94: AIR 1931 All 504 Hutchinson Vs. Emperor, 32 CrLJ 1271: AIR 1931 All 356
6 Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376 at p. 378 :
life in which case, the Magistrate has no jurisdiction and power to release the accused on bail as it is well emphasized by the use of the words “but he shall not so release”. Exception to this general ban finds place in the proviso relating to young persons or sick or infirm persons or women.
Bail is a mater of right if the offence is bailable. In the case of a non-bailable offence, bail is a matter of judicial discretion. Bail shall not be granted by the Magistrate if the offence is punishable with death or imprisonment for life if he is of the view that there appear reasonable grounds for believing that the person concerned accused of or suspected of the commission of the offence has been guilty of the offence, provided that he may, in his discretion that he may, in his discretion, grant bail to a woman or a minor under the age of sixteen years or a sick or infirm person. In a case involving a non-bailable offence, a Court may impose reasonable conditions besides fixing of the bail amount for the attendance of the accused.
A discretion has to be exercised in granting bail in cases not punishable with imprisonment for life or death unless there may be some reasons for not exercising such a discretion in favour of the accused. Such reasons should be mentioned in the order while refusing bail. In cases of under-trials charged with commission of an offence or offences the court is generally called upon to decide whether to release him on bail or to commit him to jail. The decision has to be made mainly in non-bailable cases, having regard to the nature of the crime, the circumstances in which it was committed, the background of the accused, the possibility of his jumping bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution, etc.7
5.5 Discretion to be Exercised in Judicious Manner, and not in a Casual or Cavalier or Arbitrary Manner
Grant of bail though being a discretionary order-but, however, calls for exercise of such a discretion in a judicious manner and not as a mater of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, 7 Guddu v. State of U.P., 1990 Cri LJ 1531 at p. 1534 (All).
however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic consideration for the grant of bailmore heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.8
The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a mater of course.9
The jurisdiction to grant bail ahs to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purpose of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the Court dealing with the grant of bail can only satisfy itself as to whether there is a genuine cases against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.10
8 Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1477 : (2002)3 SCC
598 : 2002 SCC (Cri) 688.
9 Chamna Lal v. State of U.P., (2004)7 SCC 525 at p. 527 : AIR 2004 SC 4267 : 2004
SCC (Cri) 1974.
10 Prahlad Singh Bhati v. NCT, Delhi, AIR 2001 SC 1444 at p. 1446 : 2001 Cri LJ 1730 :
In any event, the discretion to be used for grant of bail shall always have to be strictly in accordance with law and to de hors the same.11 The provisions of
the Criminal Procedure Code confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trials or in appeals against convictions. Since the jurisdiction is discretionary it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In granting or refusing the bail, the courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. The jurisdiction is not to be exercised in a casual and cavalier fashion.12
The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the state of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.13 Though it is correct that detailed examination of the merits of the case is not required by the courts while considering an application for bail but, at the same time, the exercise of discretion has to be based on well-settled principles and in a judicious manner and not as a matter of course.14
Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prime facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. There 11 Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002a SC 1475 at p. 1478 : (2002)3
SCC 598 : 2002 SCC (Cri) 688.
12 Mansab Ali v. Irsan, (2003)1 SCC 632 : AIR 2003 SC 707 : 2003 SCC (Cri) 399.
13 Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004)7 SCC 528 at p. 535 : AIR 2004 SC
1866 : 2004 Cri LJ 1796 : 2004 SCC (Cri) 1977.
is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence.15
It was held by the Hyderabad High Court in Fazal Nawaz Jung v. State of
Hyderabad,16 that the discretionary power of the court to admit to bail is not
arbitrary but is judicial and is governed by established principles; the object of detention of the accused is not punitive but to secure his appearance to abide by the sentence of law, the principal inquiry is whether a recognizance would effect that end, and in seeking an answer to this inquiry, the courts have to consider the seriousness of a charge, the nature of the evidence, the severity of the punishment prescribed for the offences and in some instances, the character, means and standing of the accused, but the severity of the sentence has to be borne in mind in cases of offences punishable with death or with transportation for life since the severity of the punishment is itself such as to induce a person to escape the trial.
The Court has to exercise judicial discretion keeping in view the recognized principles and factors while considering the application for bail.17
While the Court exercises its discretion, whether it is under S. 437 or 438 or 439, Cr. P.C., it shall exercise the same properly and not in an arbitrary manner. The discretion exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise the discretion. Merely because, norms are not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 Cr. P.C. that does not mean the discretion shall be left to the whims of the Court.18
The personal liberty as guaranteed under the Constitution has necessarily to be harmonized with the considerations under the ordinary law, one can understand refusal of bail in matters eating into the very vitals of the society. In such matters the issue is always resolved by reference to what is in the interest of society and what is against. In the ultimate analysis the decision in matters in bail 15 Deepak Singh v. State of Rajasthan, 2007 Cri LJ 4338 at p. 434- (SC).
16 AIR 1952 Hyd 30 : 1952 Cri LJ 873.
17 Rama Mhatre v. Dattatraya Janu Vayale, 1981 Cri LJ 1605 at p. 1612 (Bom) : 1981 Cri
LR (Mah) 62.
is always taken on the circumstances and facts of each case. It is for this reason that the discretion is vested in courts in matters of bail and has always been considered a great trust. This discretion has to be exercised judicially with all the concern to the facts of a particular case and the circumstances.19
While it is true that Article 21 of the Constitution is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the court has also to take into consideration other facts and circumstances, such as the interest of the society.20
‘Discretion’ when applied to court of justice, means “sound discretion guided by law”. It must be governed by rule, not by humour. It must not be arbitrary, vague and fanciful, but legal and regular, and in the case of granting bail the discretion of the Judge must be exercised not in opposition to, but in accordance with, the established principles of law. In granting bail, the Judge has to consider whether a prime facie case has been or has not been made out by the prosecution. If a prima facie case has been made out by the prosecution and if there appear reasonable grounds for believing that the person accused has been guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail pending disposal of the case unless extraordinary circumstances intervene favouring the accused.21
The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support hereof, severity of the punishment which conviction will entail, the character, behaviour, means and 19 Rajender Singh Sethia v. State, 1988 Cri LJ 749 at p. 755 (Del).
20 Rajesh Ranjan Yadav v. CBI, (2007)1 SCC 70 at p. 79 : 2007 Cri LJ 304. 21 State v. Veerapandy, 1979 Cri LJ 455 at p. 458 (Mad).
standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and other similar considerations.22
5.6 Principles for Grant of Bail Under S. 437
In State of Rajasthan v. Balchand,23the Supreme Court laid down that the
basic rule is bail, not jail, except where there are circumstances suggestive of fleering from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the accused who seeks enlargement on bail from the Court. The Supreme Court clarified that this list was not exhaustive but only illustrative. It was further held that the gravity of the offence involved, which is likely to induce the accused to avoid the course of justice, must also weigh with the Court when considering the question of jail, and likewise the heinousness of the crime should also be taken into account. While granting bail to the accused would report to the police station once every fortnight.
The following principles emerge for grant or refusal of bail under Section 437, Cr. P.C.:24
(i) Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it assigned by law is of extreme severity;
(ii) Bail should be refused when the Court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;
(iii) Bail should be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for he time being;
22 Sanjay Sharma v. State of J. & K, 2004 Cri LJ 1473 at p. 1474 (J & K).
23 (1977)4 SCC 308 at pp. 308-9 : AIR 1977 SC 2447 : 1978 Cri LJ 195 : 1977 SCC (Cri)
594.
24 Sidharth Vashisth alias Manu Sharma v. State of Delhi, 2004 Cri LJ 684 at p. 688 (Del).
(iv) Bail should be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and
(v) Bail should be refused if the antecedents of a man who is applying for bail show a bad record, particularly a cored which suggests that he is likely to commit serious offences while on bail.
The principles in granting bail to persons accused of offences are quite well settled. In connection with non-bailable offences (not punishable with death or imprisonment for life) one of the considerations is the danger of the accused absconding. In considering this danger, the Court has to consider the weight of the evidence against the accused, the nature and gravity of the charge and severity of the degree of punishment that might follow. Another consideration is the danger of witnesses being tampered with or of evidence being suborned. In considering these matters, the character, means and standing of accused persons have to be taken into consideration. At the same time, the Court has to see that there is no punitive detention and that opportunity is given as far as possible to the accused persons to prepare their defence.25
5.7 Considerations for Grant of Bail in Non-Bailable Offences
The overriding considerations in granting bail which are common both in the case of S. 437(1) and S. 439(1) Cr. P.C. of the new code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice, of repeating the offence, of jeopardizing his own life being faced with a grim prospect of possible conviction in the case, of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.26
25 State v. Mahamed Hussain Kakroddin Maniyar, 1968 Cri LJ 1231 at p. 1232 (Bom) :
AIR 1968 Bom. 344.
The considerations which normally weigh with the court in granting bail in non-bailable offences, basically, are-the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.27
It is trite that among other considerations which the Court has to take into account in deciding whether bail should be granted in a non-bailable offence is the nature and gravity of the offence.28
The question whether to grant bail or not depends for its answer upon a variety of circumstance, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.29
In American Jurisprudence,30 it is stated; “where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquire is whether a recognizance or bond would effect that end.”
One of the consideration for granting bail in a non-bailable offence must be the gravity and the nature of the offence. It was held that in the instant case, there were no mitigating circumstances and that the High Court was not justified in granting bail. It was also observed that without considering the material facts on record, and without assigning any reason, the High Court had granted bail to the accused inspite of he fact that there was sufficient material on record against 27 State of Gujarat v. Salimbhai Abdulgaffar Shaikh, (2003)8 SCC 50 at p. 56 : AIR 2003
SC 3224.
28 State of Maharashtra v. Ramesh Taurani, AIR 1998 SC 586 at p. 587 : 1998 Cri LJ 855 :
(1998)1 SCC 41 : 1998 SCC (Cri) 257.
29 State of Orissa v. Rajendra Prasad Bharadia, (1994)5 SCC 146 at p. 151 : 1994 SCC
(Cri) 1372.
the accused. Moreover, it was a double murder case and there were eye-witnesses to the occurrence. The bail was accordingly cancelled.31
The considerations which normally weigh with the court in granting bail in non-bailable offences are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interested of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.32
The Court before granting bail in case involving non-bailable offences, particularly where the trial has not yet commenced, should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which the peculiar to the accused, reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations.33
The considerations which normally weight with the court in granting bail in non-bailable offences are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonably possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.34
The Court before granting bail in cases involving non-bailable offences, particularly where the trial has not yet commenced, should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable 31 State v. Eslian, (2006)9 SCC 785 at p. 785 (2006)3 SCC (Cri) 399.
32 Chenna Boyanna Krishna Yadav v. State of Maharashtra, (2007)1 SCC 242.
33 State v. Jaspal Singh Grill, AIR 1984 SC 1503 at p. 1505 : 1984 Cri LJ 1211 : (1984)3
SCC 555; 1984 SCC (Cri) (44. See also, Sunita v. State of Punjab, 199).
possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations.35
Certain relevant considerations for grant of bail, though only illustrative and no exhaustive-neither there can be any, are as under:36
(i) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(ii) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(iii) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (iv) Frivolity in prosecution should always be considered and it is only the
element of genuineness that shall have to be considered in the matter of grant of bail and in the event of thee being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
While granting bail the court has to consider the nature and gravity of the circumstances in which the offence is committed; the position and status of the accused with reference to the victim and witnesses; the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardizing his own life being faced with the grim prospect of the possible conviction in the case, of tampering with a witness; the history of the case as well as of its investigation and other relevant grounds.37
35 State v. Jaspal Singh Gill, AIR 1984 SC 2277 : 2005 SCC (Cri) 1057.
36 Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1477 : (2002)3 SCC
598 : 2002 SCC (Cri) 688.
One of the considerations in granting bail in non-bailable offences is the gravity and the nature of the offence.38
It was held by the High Court of Calcutta in Nagendra v. King Emperor,39
that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment.
In Kishan Singh v. State of Punjab,40 it was held that the principal
consideration to weigh with the court in the exercise of its discretion in granting or refusing bail is the probability of the accused appearing to stand the trial and not his supposed guilt or innocence and generally speaking, the nature of the accusation, the kind of evidence in support thereof, the severity of the punishment which the conviction will entail and the character, behaviour, means and the status of the accused have to be taken into account and this is generally done for the purpose of determining whether or not the accused is likely to endeavour to escape punishment by absconding.
The Court has to consider the question for the grant of bail in the light of such further considerations such as nature and seriousness of the offence, the character of the evidence, the circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or State, and similar other circumstances which arise when a Court is asked for bail in a non-bailable offence. It cannot be stated that the power of the High Court is unfettered and even if no additional grounds are made out, bail should be granted as a routine. Had it been so every accused instead of going to the Magistrate for grant of bail would come straight to the Sessions Court or the High Court. That would rather render S. 437 Cr. P.C. defunct, at any rate, in most 38 Anil Kumar Tulsiyani v. State of U.P., (2006)9 SCC 425 at p. 427 : (2006)2 SCC (Cri)
565.
39 SIT 1924 Cal 476 at pp. 479-80 : (1924)25 Cri LJ 732. 40 AIR 1960 Punj 307: 1960 Cri LJ 850.
of the cases leaving those in which the accused is infirm, a minor or a woman. That could not be the intention of the Legislature.41
According to S. 437 of Cr. P.C., different considerations, come into play when any person is accused of a non-bailable offence and there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Regarding all other offences the mater has been left to the discretion of the Court concerned. Bail should not be refused as a matter of punishment. A person accused of an offence, howsoever heinous, has to be considered as innocent till he proved to be guilty. While considering the question regarding grant or refusal of bail, several circumstances, including the seriousness of the offence, the possibility of the accused to abscond, or the chances of his tampering with the witnesses or misusing his liberty, as well as the prima facie nature of the evidence available on the record, have been considered by the Courts as relevant considerations.42
The grant of bail is a rule and its refusal is an exception but while granting bail the Court has to be satisfied that in a given case its grant is necessary in the interest of justice. The basic question which must be present to the mind of the Court while considering the question of bail is whether the grant of bail would thwart the course of justice or would it further the course of justice. There cannot indeed by any inflexible rule governing the grant of bail. Each case has to be decided on its own facts. However, certain guidelines have been formulated by the Courts from time to time, which the Courts generally take into consideration while considering the question of grant of refusal of bail. While considering the question of grant or refusal of bail, the Courts generally take into consideration:
(a) the nature of the charge; (b) the nature of the accusation;
(c) the nature of evidence in support of the accusation;
(d) the severity of the punishment to which the accused may be subjected; 41 M.P. Jayaraj v. State of Karnataka, 1977 Cri LJ 1724 at pp. 1724-25 (Kant) : (1977)1
Kant LJ 304.
(e) the danger of the accused abusing the concession of bail by way of absconding or tempering with the evidence;
(f) health, age an sex of the accused;
(g) the social position or status of the accused and complainant party; and last but not the least;
(h) whether the grant of bail would thwart the course of justice
One of the age-old considerations in the mater of grant of bail is ensuring the availability of the accused at the trial. Non-availability can be out of voluntary acts like willfully avoiding by absconding or putting an end to life by suicide; and by involuntary acts like the life of the accused being taken away as an act of reprisal. The majesty of law is affected when a wrongdoer escapes its mighty clutches whether arising out of a voluntary or involuntary situation.43
While the discretion of a court functioning under S. 437 of Cr. P.C. is necessarily limited by the provision of the section, the considerations which weigh with a court dealing with an application for bail under S. 439(1) of Cr.P.C. would be many. It may not be possible to exhaust the different factors that may be of relevance in assessing the question whether bail could be granted in a given case. These may vary form case to case. Even the weight of the several factors which are usually taken into account for determining whether bail should be granted or not must vary from case to case. The nature and gravity of circumstances in which the offence is committed, the position and status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardizing his own life being faced with the grim prospect of possible conviction in the case and of tampering with the witnesses are matters which have nexus to the consideration of the bail application.44
One of the main considerations in granting bail would be as to whether on the basis of the evidence and the documents on which prosecution relies it can be 43 Bijayaketan Mohanty v. State of Orissa, 1982 Cri LJ 1954 at p. 959 (Ori) (FB) : 54 cut
LT 229.
said that there are grounds to believe that the accused are involved in offences punishable with death or transportation for life and there are such reasonable grounds on which the accused are likely to be charged of murder then the question of grant of bail would not arise.45
It is settled law that in granting or non-granting of bail in non-bailable offence, the primary consideration is the nature and gravity of the offence.46
While dealing with the application for bail, the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the accused not being secured at the trail, reasonable apprehension of witnesses being tampered with, the larger interest of the public or the State and similar other consideration arise when a court is asked for bail in a non-bailable offence.47
In the case of a bailable offence, the police officer arresting an accused, himself will give bail and if for any reason he fails to do so, the Court will necessarily give bail. If the offence is non-bailable, further considerations will naturally arise. The Court will consider the nature and seriousness of the offence, character of the evidence, stage of investigation, the severity of the punishment which is likely to be imposed in the accused if convicted, the need for curtailing the freedom of the accused at that stage, reasonable possibility of the presence of the accused not being secured either for purpose of investigation or for the trial, reasonable apprehension of the accused, if set at liberty, interfering with the witnesses or the course of justice and the larger interest of the public or the State and other relevant aspects.48
There cannot be inflexible rules governing the subject which rest principally with the Court’s discretion in the matter of allowance or refusal of bail. Probability or improbability of the prosecution terminating in conviction is not a conclusive consideration for the grant or refusal of bail, particularly in a 45 Amar Singh v. State, 1985 Cri LJ 550 at p. 552 (Del) : (1985)1 Crimes 749.
46 Staish Jaggi v. State of Chhattisgarh, 2007 Cri LJ 2766 at p. 2767 : (2007)11 SCC 195 :
(2007)56 AIC 202(SC).
47 Kalyan Singh v. State of M.P., 1989 Cri LJ 512 at p. 514 (MP). 48 Surendra Kumar v. State of M. P., 1989 Cri LJ 512.
case in which evidence has not so far been led. For their guidance the Court also look to other circumstances, which may be determinative, as for example the Court consider: (a) the enormity of the charge; (b) the nature of the accusation; (c) the severity of the punishment which the conviction will entail; (d) the nature of the evidence in support of the accusation; (e) the danger of the applicant’s absconding if he is released on bail; (f) the danger of witnesses being tampered with; (g) the protracted nature of the trail; (h) opportunity to the applicant for preparation of his defence and access to his counsel; and (i) the health, age and sex of the accused. The aforesaid list of circumstances is not exhaustive but there are other factors also which in peculiar circumstances of the case are to be considered by the Court.49
The Courts are supposed to apply some tests while considering the applications for bail, such as the nature and seriousness of the prosecution, the nature of evidence in support of the prosecution, the severity of the punishment which the conviction will entail, the character, behavior and standing of the accused, a reasonable possibility of the presence of the accused not being secured at the trial. Also it is the law that while disposing of the bail applications, the Court are supposed to be guided prima facie by the allegations of the prosecution and need not and invariably should not enter into defences which might be taken by the accused unless those defences can thrown a light about the genuineness or otherwise of the allegations of the prosecution. If the above principles of law are kept in view while disposing of the bail applications, the scope of committing an error on the part of the subordinate Courts becomes too remote.50
It is well settled that at the stage of consideration of bail what the court is normally required to consider are : (1) the nature and seriousness of the accusation; (2) severity of the offences; (3) nature of the evidence collected and the character and behavior of the accused; (4) chances of the accused absconding and not being available during the trial; (5) possibility of repetition of such crime; 49 Karan Dass v. State of H.P., 1995 Cri LJ 2995 at p. 2996-97 (HP).
(6) chances of the accused of tempering with the evidence and witnesses; and last but not least (7) larger interest of the people and the State.51
While considering the bail application, the Court should mainly consider two aspects, the seriousness of the offence and the interest of the society at large.52
The two paramount considerations viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relating to ensuring a fair trial of the case in a Court of justice are relevant for grant of bail. It is essential that due and proper weight should be bestowed on these two grounds upon other factors. The Court shall take into consideration the important circumstance to consider the application for bail whether accused will flee from justice or tamper with the prosecution evidence in the event of bail. These are the two important ingredients which are holding the field of granting bail even today.53
Out of several considerations which are to be weighed for the purpose of grant or refusal of bail two are uppermost. First, whether the accused will be available for trail and not flee from justice. Second, that he will not influence witnesses and tamper with evidence.54
The two paramount considerations would be very decisive factors in exercise the judicial discretion of granting or refusing bail; they being likelihood of accused fleeing from justice and his tampering with prosecution evidence, relating to ensuring fair trial of the case. It is essential that due and proper attention should be bestowed on these two factors.55
5.8 Factors to be Considered for Grant of Bail
It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:56
51 Mohammad Masood v. State of Karnataka, 2002 Cri LJ 1381 at p. 1384 (Kant). 52 Livarsing Tejsing v. State of Gujarat, 2004 Cri LJ 465 at p. 467 at p. 467 (Guj). 53 M. Krishnappa v. State of Karnataka, 1992 Cri LJ 2648 at p. 2651 (Kant). 54 Ram Kumar Tyagi v. State, 1995 Cri LJ 1877 at p. 1880 (del).
55 Sis Rani v. State, 1998 Cri LJ 1877 at p. 1880(del).
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complaint.
(c) Prima facie satisfaction of the court in support of the charge.
At the time of grant of bail, the Court is duty-bound to consider all the statements recorded under Section 161 Cr. P. C. examine the gravity of the offence and also examine the question of possibility of the accused tampering with the evidence and possibility of getting the attendance of the accused during trial and then would be entitled to grant bail to an accused.57
The graver the offence the heavier the punishment. A person having reason to believe that a very severe punishment is likely to be imposed on him may have an incentive to jump bail unlike a person who has been accused of a crime, the punishment for which may not be heavy or a person who may think that there may not be any likelihood of punishment however serious the charge may be. One of the main factors which should deter the court from granting bail, particularly in a case where a person is accused of an offence punishable with death or life imprisonment is the prospect of his fleeing from justice, forfeiting the bail bond. This is particularly so when the accused has been convicted and the bail is moved pending the appeal. The question of tampering with the evidence may not arise at that stage. It would be too much of a gamble to order bail as a matter of course in a case where a person has been convicted of an offence punishable with life imprisonment unless it be that regard being had to various factors the court feels that the accused is not likely to flee from justice.58
The factors considered relevant by the Court in either granting or refusing the bail are the gravity of the offence; the nature of the evidence available against the accused, the circumstances under which the offence is committed, the apprehension of the accused of fleeing from justice if enlarged on bail, the apprehension of their tampering with the evidence if they are at large, the larger 57 Salim Khan v. Sanhjai Singh, (2002)9 SCC 670 at p. 671.
interest of the public and the State, and the like, as also the fact that continuance in custody of the accused before trial is never resorted to as a punishment. The fact that the informant’s group is also involved in a criminal case is thus of no relevance to the question.59
The overriding considerations in granting bail which are common both in Sections 437(1) and 439(1), Cr. P. C., are the nature and gravity of the circumstances in which the offence has been committed, position and status of the accused with reference to the victim and the witnesses, likelihood of the accused fleeing from justice and tampering with witnesses etc. No list of exhaustive grounds can be set out. Facts differ from case to case.60
The nature and gravity of offence is one of the relevant factors to be considered while deciding the bail applications.
5.9 Test Applied for Grant of Bail in Non-bailable Offence
Normally the courts apply the following tests while considering applications for bail in case of non-bailable offences:61
(i)nature and seriousness of the accusation;
(ii)nature of the evidence in support of the accusation;
(iii)severity of the punishment which the conviction will entail; (iv)the character, behavior and standing of the accused;
(v)a reasonable possibility of the presence of the accused not being secured at the trial;
(vi)the danger of the alleged offence being continued or repeated; (vii)the danger of the witnesses being tampered with;
(viii)the larger interest of the public or the State, and similar other consideration. 5.10 Circumstances to be Considered for Grant of Bail
It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:62
59 Prafulla Kumar Pradhan v. Pabaneswar Subudhi, 1989 Cril LJ 2016 at p. 2017(Ori). 60 Chandrawati v. State of U. P., 1992 Cri LJ 3634 at p. 3635(All).
61 Bhagirathi Mahapatra v. State, 1975 Cri LJ 1681 at p. 1683 (Ori).
62 State of Maharashtra v. Sitaram Papat Vetal, (2004)7 SCC 521 at p. 524 : AIR 2004 SC
5.11 Nature of Evidence and Severity of Punishment
The whole object of arrest and detention of an accused person is obviously to secure his appearance to abide the sentence of law. That being so except where a statue specifically requires, the principle which should guide a court in the exercise of its discretion to grant bail or not, is the probability of the accused appearing to take the trial and not his supposed guilt or innocence. It is an error to suppose that considerations such as the nature of the offence, the nature of evidence, the severity of punishment awardable are themselves material in deciding whether an accused person should or should not be admitted to bail. They are relevant because they affect the likelihood of the accused person’s failing to appear for his trial. That likelihood is affected, obviously, by the gravity of the charge, the cogency of the evidence and the financial status of the accused which renders him more willing to bear the forfeiture of the bail bond and also less willing to bear the ignonimity of a conviction. The seriousness and gravity of the charge and the severity of punishment are very probable factors which may tempt an accused person to escape the clutches of law.63
On an application for bail it is not the certainty or the improbability of a capital sentence or life imprisonment being imposed which is to be considered, but simply whether the offence is one for which such a sentence may be awarded.64 A charge may be serious either in itself or by reason of the
consequences that may flow therefrom.65 The seriousness of the charge is all that
matters because law not only permits but enjoins the arrest of a person accused of or suspected of the commission of a serious crime and therefore the seriousness of the offence is a most important factor to be considered while deciding the question of bail.66 That is why the legislature has classified offences into
“bailable” and “non-bailable” offences and among the non-bailable offences it has
63 Ram Chandra Vs. State 1953 CrLJ 17.
64 Rao Harnarain Singh Vs. State, 1958 CrLJ 563: AIR 1958 Punj 123. 65 Ram Chand Vs. Emperor, 30 CrLJ 1129.
further made a distinction between offences, punishable with death or imprisonment for life, and offences punishable with other terms of imprisonment.
i) Instances - When bail allowed:
(a) Where an accused person was on bail during the committal proceeding and there was no complaint or even a faint suggestion by the prosecution that he tampered with the evidence in the committing court, and the evidence against him was also not very convincing, it is a fit case to allow bail67.
(b) When the investigating agency or the prosecuting agency adopts dilatory tactics and the case against the accused is also not case-iron, it is a fit case to allow bail.68
(c) Where both the husband and the wife were charged of committing murder of their child and the wife applied for bail on the ground that she had another small child at home, that there was no body to look after him or the case, that the case would take a long time to conclude, that the cultivation of the petitioner would suffer, that the proviso to sub-section (1) of section 497, Criminal Procedure Code (old) applied to the case and she was allowed the bail.69
(d) Where the prosecution is not able to satisfy the court that there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. Even a Magistrate in such a case will be perfectly within his rights to enlarge a person on bail even though the accusation is of murder.70 The ratio of this decision now should be read in
67 Kashi Ram Vs. State (Case of dacoity) 1960 CrLJ 1339:AIR 1960 MP 312.
68 Rattan Singh Vital Singh Vs. State (Case of dacoity) 1959 CrLJ 723:AIR1959 MB 216. 69 Mst. Chokhi v. State 1957 CrLJ 102: AIR 1957 Raj 10.
the backdrop of the observations of the Supreme out that if a police officer arrests a person on a reasonable suspicion of commission of offence punishable with death or imprisonment for life and forwards him to a Magistrate, the Magistrate will have at that stage no reason to hold that there are no reasonable grounds for believing that he has not been guilty of such offence. At that stage unless the Magistrate is able to act under the proviso to section 437 (i), bail is out of question.71
(e) Where an accused person is charged with offences falling under sections 120, 489 (c), 489 (b), Indian Penal Code, but the prosecution has no evidence worth the name which may connect the accused with the crime, it is a fit case to grant bail. (f) Even in a case of murder, a Sessions Judge is not bound by the
opinion of the committing Magistrate that there is prima-facie evidence against the accused person. A Sessions Judge can comes to its own conclusion and release the accused on bail.72 (g) Even though the High Court had made the observation in its
order refusing the bail that the accused shall remain in jail during the period of trial, a Sessions Judge need not be influenced by such observation. If he finds that there is no reasonable ground to withhold bail any longer, he can allow bail.73
(h) The powers of a Magistrate are restricted in the case of offences punishable with death or imprisonment for life. But in other non-bailable offences or in respect of persons mentioned 71 Gurcharan Singh Vs. State (Delhi Administration) (1978) 1 SCC 118: 1978 SCC
(Cr)41:AIR 1978 SC 179: 1978 CrLJ 129: 1978 Mad LJ (Cr) 261.
72 Newad Ram Vs. Kishan, 1952 CrLJ 1194: AIR 1952 Raj 149: Nisar Ali Vs. Abdul
Hamid, 36 CrLJ 1141:AIR 1935 Pesh 101.
in the proviso to sub-section of section 437, a Magistrate has absolute discretion to allow bail.74
(i) Where a warrant of arrest has been issued on a complaint under section 409, Indian Penal Code, without making a preliminary, inquiry it is a fit case for bail.75
As regards serious non-bailable offences, there is no such rule that the grant of bail should be the rule and refusal of bail an exception. The policy of the legislature is that the power to grant bail should be exercised sparingly for exceptional reasons only. In capital cases, except perhaps in very exceptional circumstances, it is neither advisable nor permissible to grant bail. In such cases it is of no consequence that there is no one in his family who can look after his defence.76 But where a non-bailable offence is not punishable with death or imprisonment for life, the general policy of law is to allow bail rather than refuse it. It should not be withheld as a measure of punishment.77
5.12 Instances – When Bail Refused:
(j) Where an accused is charged under section 302, 376, 109 and 201, Indian Penal Code, a Court will consider what punishment it may award and not what it should award. Release of a person charged under those offences is improper and unjustified.78
(k) Where property has been recovered from the possession of a dacoit, grant of bail is improper. The fact that the name of the accused was not mentioned in the FIR is of no consequence because all the dacoits were unknown persons.79
(l) There must be some exceptional reason in support of an application for bail in a dacoity case otherwise bail cannot be 74 Emperor v. Abhairaj Kunwar, 40 CrLJ 841: AIR 1940 Oudh 8.
75 Htye Yar Vs. King. l 39 CrLJ 91: AIR 1937 Rang 474. 76 Srichand Vs. Emperor, 36 CrLJ 184: AIR 1937 All 815.
77 Kishan Singh Vs. Punjab State, 1960 CrLJ 850: AIR 1960 Punj 307.
78 Rao Harnarain Singh Vs. State, 1958 CrLJ 563: AIR 1958 Punj 123; Also see Ramchand
Vs. Emperor, 30 (CrLJ 1129: AIR Lah 284.
79 Heikrujam Ibobi Singh Vs. Manipur Administration, 1959 CrLJ 741:AIR 1959 Manipur
claimed as of right,80 when the accused suspected of
committing dacoity concealed himself in a big basket in a different village and continued to do so even after the FIR being filed and process issued, it was held this ascendance makes it probable that he would go underground if released on bail and the bail was rejected.81
(m)When the trial is for murder and the accused is represented by a counsel and the evidence of the prosecution is concluded, it is wrong to enlarge an accused on bail on the ground that it would facilitate his defence.82
(n) Save in very exceptional circumstances it is improper to grant bail in capital cases.83
(o) Grant of bail to an accused person who is involved in a Criminal Conspiracy for murder, on the ground that there is some discrepancy in the evidence of approvers is improper84 (p) Young years of the offender and the fact that he belongs to a
respectable family are not always good grounds for grant of bail in serious offence.85
(q) A person accused of an offence punishable with long term of imprisonment should no ordinarily be released on bail because the richer the accused, the more easy it is for him to find bail.86
(r) A person against whom there is some material to support the accusation that he has been engaged in espionage against India’s defence and was passing important military intelligence to some foreign country should not be released on bail.87
80 Sujan Singh Vs. State of Ajmer, 1956 CrLJ 356: AIR 1956 Ajmer 37. 81 Promod Chandra Vs. State of Tripura, AIR 1969 Tri 42: 1969 CrLJ 1534. 82 State Vs. Balwant Singh, 51 CrLJ 1131: AIR 1950 MB 43
83 Govt. of Hyd. Vs. Dharamayya AIR 1951 Hyd. 46 84 Emperor Vs. Abu Baker, 42 CrLJ 703: AIR 1941 Sind 83 85 Dhanpal Vs. Emperor, 37 CrLJ 1017: AIR 1936 All 656. 86 Hikayat Singh Vs. Emperor, 33 CrLJ 574: AIR 1932 Pat 209. 87 State Vs. Jaspal Singh (1984) 3 SCC 555.
In England high treason consists of several offences, one being levying was against the sovereign. A person commits high treason when he is adherent to the sovereign enemy in her realm. In England in case of treason no person can be admitted to bail, except by order of the secretary of State or a Judge of High Court.88
5.13 Danger of Accused Absconding
One of the most serious objections which the prosecution makes when an application for bail is moved and the most important circumstances which a court considers is the possibility that an accused person may abscond and defeat the ends of justice.
The primary object of arrest and detention is that the accused should not only take the trial but also not to impede the progress of the trial by occasional absences. If there is no such apprehension in the mind of the court, it would not ordinarily refuse bail. When the prosecution evidence is over-whelming, the court should presume that there is a danger of the accused not appearing to take the trial.89 Where an accused person has been acquitted he is in a better position than
a person who has been convicted and, therefore, when an appeal against acquittal has been filed, his release on bail is but proper because there it cannot be seriously alleged that he would abscond.90 Where the offence alleged is not of a serious
nature an application for bail cannot be refused merely on the ground that the prosecution apprehends that the accused would jump bail.91 Similarly when a court is satisfied that there are reasonable grounds for believing that no case has been made out or is likely to be made out against the applicant and there is no reason to suspect that the accused would abscond, it should not withhold the grant of bail.92
88 Halsbury’s Laws of England, 3rd Edn. Vol.10, Para 677, P.374 to in Ramchandra Vs.
State, 1953
89 Observation of Kaul C. J. referred to in Ramchandra Vs. State, 1953 CrLJ 17, 18. 90 State of Kutch Vs. Aher Vasta Hadhu, 1953 CrLJ 1916: AIR 1953 Kutch 50. 91 Mirza Ishaw Ali Beg Vs. State, 1952 CrLJ 71.
5.14 Danger of Tempering of Prosecution Evidence
A Court must bear in mind whether as a result of the granting of bail to an accused person, the prosecution witnesses are likely to be terrorized and would experience considerable difficulty in stepping into the witness box at the time of the trial.93 It is well established that the grant of bail in a non bailable offence is a
concession and not a right. It is a sort of trust reposed in the applicant by a court. A court presumes that the privilege is not to be abused in any manner. An accused person who has been enlarged on bail must not come into contact with the prosecution witnesses with a view to either to destroy the evidence against him or to minimize its effect. As soon as he misuses his liberty thus granted to him he disentitles himself to that privilege granted to him.94 The most important ground
on which the prosecution resists an application for bail is that a person accused of a serious offence, whatever his fortitude, cannot resist the temptation of destroying the evidence against himself. A court ought not to show undue leniency and misplaced sympathy and ignore human conduct completely. A man accused of a serious offence will pay any price, if he can afford it, in order to save his life or reputation; otherwise he will influence or create terror. The Patna High Court has gone so far as to observe that opportunities in India for the corruption of witnesses are so great that the risks involved in enlarging a person on bail cannot be exaggerated.95This is one side of the picture. But at the same time it is the duty of the court to see that an accused person is not unnecessarily detained in prison and hampered in his defence merely because there is an apprehension that he would tamper with the prosecution witnesses. In two important pronouncements the Oudh Chief Court has prominently brought out the other side of the picture. Wazir Hasan C.J. observed in the case of Bishambhar Nath Vs.
Emperor,96 “The learned counsel for the crown, Mr. Gupta expressed
apprehension in the course of his arguments as to these accused tampering with the prosecution evidence. The apprehension, however, will not be sufficient 93 State Vs. Pritam Dass, 1956 CrLJ 986: AIR 1956 Bom 559.
94 Hikayat Singh Vs. Emperor, 33 CrLJ 574: AIR 1932 Pat 209. 95 Hikayat Singh Vs. Emperor, 33 CrLJ 574: AIR 1932 Pat 209 96 25 CrLJ 1132: 81 IC 956.
ground for me to refuse bail if I otherwise think that it should be granted. So far these apprehensions are merely chimerical. But if they turn out to be real at any stage of the trial, it will be open to the learned counsel who I understand is in charge of the case for prosecution to move the trial court to cancel bail”. In the case of K.E. Vs. Rani Abhairaj Kunwar,97 Thomas C.J. observed “All the
important witnesses for the prosecution have already been examined and if they are witnesses of the type who are prepared to change their statements on receipt of a few hundred rupees, they will do so whether the Rajmata and Kunwar Sahib are on bail or are in the lock-up. If the accused are in the lock-up, there is no doubt that they have got a host of people looking after the case who are just as capable of tampering with the evidence as the accused themselves. It is my duty to see that both sides are not hampered. I must see that the crown does not get a free hand and the accused are locked up or hampered in their defence simply only the ground that it is alleged or feared that they will tamper with the evidence”. It is the usual slogan of the prosecution that the accused will destroy the prosecution evidence if he is released on bail. If the allegation is of a vague and general nature, it is not worth much consideration.98 The same view was taken by Sind Chief Court in the case of Emperor Vs. Wahidino.99 It was observed by the learned Judge “The accused have been at large for four weeks, and I think no real damage is likely to occur at this stage if the accused are not locked up again. They have had time to approach the prosecution witnesses and in any case whether they are in prison or free, the defence will have no difficulty in tempering with witnesses, if they are open to influence”. In the cases of Rani Abhiraj Kunwar And of Wahidino and in the case of Jamini Mullick100 the learned judges have
observed that when the prosecution opposes an application for bail on the ground that there is a likelihood of the witnesses being tampered with, it does not appeal very highly of the efficiency of the police, nor of the integrity of the witnesses. 97 40 CrLJ 841
98 Subbrama Ayet Vs. State, 1953 CrLJ 263: AIR 1953 Tra Co.25. 99 30 CrLJ 845: AIR 1929 Sind 137: 23 SLR 340.
