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8/25/2017 Landmark Judgments of the Supreme Court pertaining to Regular Bail -Part I Legal Arena

Landmark Judgments of the Supreme Court pertaining to Regular Bail -Part I


Posted on October 15, 2016

List of Cases
1.Sanjay Chandra v. Central Bureau Of Investigation (2G Spectrum Scam Case)
2.Vaman Narain Ghiya v. State Of Rajasthan
3.Sukhwant Singh and Others v. State Of Punjab
4.State of U.P. Through C.B.I v. Amarmani Tripathi
5.Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another
6.Ram Govind Upadhyay v. Sudarshan Singh and Others
7.Akhtari Bi (Smt.) v. State Of M.P.

Highlights of the decisionin theabove mentioned cases:


Purposeof Bail
Seriousness of the charge not the only relevant factor while considering bail application
Both the seriousness of the charge and the severity of the punishment should be taken into consideration while
granting bail
Right to bail is not to be denied merely because of the sentiments of the community against the accused
Article 21 violated when undertrial prisoners are detained in jail custody to an inde nite period
Bail- Meaning
Balance to be maintained between the personal liberty of the accused and the investigational right of the
police. -An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

Detailed discussion of the evidence and elaborate documentation of the merits is to be avoided while
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8/25/2017 Landmark Judgments of the Supreme Court pertaining to Regular Bail -Part I Legal Arena

Detailed discussion of the evidence and elaborate documentation of the merits is to be avoided while
considering an application for bail
Reputation of a person is his valuable asset and is a facet of his right under Article 21- Grant of interim bail
pending regular bail application
Application for cancellation of bail and appeal against order granting bail- Relevant factors to be considered
Factors to be considered while granting bail
Scope of interference in the matters of bail Art 136
Person whose application for enlargement on bail is once rejected is not precluded from ling a subsequent
application for grant of bail if there is a change in the fact situation
Findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court
entertaining a bail application at a later stage when the same had been rejected earlier
Subsequent bail application Allowed, if there is a change in the fact situation or in law which requires the
earlier view being interfered with or where the earlier nding has become obsolete.
Order for bail bereft of any cogent reason cannot be sustained
Relevant considerations for granting bail
Basic criterion for cancellation of bail -interference or even an attempt to interfere with the due course of
administration of justice
Duty incumbent on the High Court to explicitly state the reasons as to why the sudden departure in the order of
grant as against the rejection
Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused,
confers a right upon him to apply for bail

1. Sanjay Chandra v. Central Bureau Of Investigation (2G Spectrum Scam Case)


Citation (2012) 1 SCC 40
Coram G.S. Singhvi and H.L. Dattu, JJ
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8/25/2017 Landmark Judgments of the Supreme Court pertaining to Regular Bail -Part I Legal Arena

D.O.D November 23 , 2011


Purposeof Bail
Held
In bail applications, generally, it has been laid down from the earliest times that the object of bail is to
secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is
neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can
be required to ensure that an accused person will stand his trial when called upon. The courts owe more
than verbal respect to the principle that punishment begins after conviction, and that every man is
deemed to be innocent until duly tried and duly found guilty.
From the earliest times, it was appreciated that detention in custody pending completion of trial could be
a cause of great hardship. From time to time, necessity demands that some un-convicted persons should
be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity is the
operative test.In this country, it would be quite contrary to the concept of personal liberty enshrined in
the Constitution that any person should be punished in respect of any matter, upon which, he has not
been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that
he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the
fact that any imprisonment before conviction has a substantial punitive content and it would be
improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has
been convicted for it or not to refuse bail to an unconvicted person for the purpose of giving him a taste of
imprisonment as a lesson.

Seriousness of the charge not the only relevant factor while considering bail application
Held
In the instant case, we have already noticed that the pointing nger of accusation against the appellants
is the seriousness of the charge. The offences alleged are economic offences which have resulted in loss
to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with
the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of
the charge is, no doubt, one of the relevant considerations while considering bail applications but that is
not the punishment that could be imposed after trial and conviction, both under the Penal Code and the
Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the
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8/25/2017 not the punishment that could beJudgments
Landmark imposedof the after trialpertaining
Supreme Court and conviction,
to Regular Bail -Partboth
I Legalunder
Arena the Penal Code and the
Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the
constitutional rights but rather recalibrating the scales of justice.


Both the seriousness of the charge and the severity of the punishment should be taken into consideration while
determining the bail application
Held
Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on
two grounds:- The primary ground is that offence alleged against the accused persons is very serious
involving deep rooted planning in which, huge nancial loss is caused to the State exchequer ; the
secondary ground is that the possibility of the accused persons tempering with the witnesses. In the
present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the
purpose of cheating using as genuine a forged document. The punishment of the offence is punishment
for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be
relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears
upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and
the severity of the punishment should be taken into consideration.

Right to bail is not to be denied merely because of the sentiments of the community against the accused
Held
The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated,
to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail
is not to be denied merely because of the sentiments of the community against the accused. The primary
purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the
burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the
custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction
of the Court and be in attendance thereon whenever his presence is required.

Article 21 violated when undertrial prisoners are detained in jail custody to an inde nite period
Held

When the under trial prisoners are detained in jail custody to an inde nite period, Article 21 of the
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When the under trial prisoners are detained in jail custody to an inde nite period, Article 21 of the
Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is:
whether the same is possible in the present case.
There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the
documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable
time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of
detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an
inde nite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged
huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail
when there is no serious contention of the respondent that the accused, if released on bail, would
interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in
custody, that too, after the completion of the investigation and ling of the charge-sheet.

(Read the entire judgment here.)


2. Vaman Narain Ghiya v. State Of Rajasthan


Citation (2009) 2 SCC 281
Coram Dr. Arijit Pasayat and Dr. M.K. Sharma, JJ.
D.O.D December 12 , 2008

Bail- Meaning
Held
Bail remains an unde ned term in the P.C. Nowhere else the term has been statutorily de ned.
Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing
restraints since the U.N. Declaration of Human Rights of 1948, to which India is a signatory , the concept
of bail has found a place within the scope of human rights. The dictionary meaning of the expression `bail
denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from
an old French verb `bailer which means to `give or `to deliver, although another view is that its
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an old French verb `bailer which means to `give or `to deliver, although another view is that its
derivation is from the Latin term baiulare, meaning `to bear a burden. Bail is a conditional liberty.
Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function
of securing the presence of the prisoners, and at the same time involves participation of the community in
administration of justice.

Balance to be maintained between the personal liberty of the accused and the investigational right of the police. -An
accused is not detained in custody with the object of punishing him on the assumption of his guilt.
Held
Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law.
Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A
balance is required to be maintained between the personal liberty of the accused and the investigational
right of the police. It must result in minimum interference with the personal liberty of the accused and
the right of the police to investigate the case. It has to dovetail two con icting demands, namely, on the
one hand the requirements of the society for being shielded from the hazards of being exposed to the
misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of
criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty
exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more
liberty we have.
The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in
the administration of justice and the concept of bail emerges from the con ict between the police power
to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in
favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on
the assumption of his guilt.

Detailed discussion of the evidence and elaborate documentation of the merits is to be avoided
while considering an application for bail
Held
While considering an application for bail ,detailed discussion of the evidence and elaborate
documentation of the merits is to be avoided. This requirement stems from the desirability that no party
should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be
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should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be
considered. Elaborate analysis or exhaustive exploration of the merits is not required. (See Niranjan
Singh and Anr. v. Prabhakar Rajram Kharote and Ors). Where the offence is of serious nature the question
of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of
the evidence and amongst others the larger interest of the public. (See State of Maharashtra v. Anand
Chaintaman Dighe AIR 1990 SC 625 and State v. Surendranath Mohanty 1990 (3) OCR 462).

(Read the entire judgment here.)

3. Sukhwant Singh and Others v. State Of Punjab


Citation (2009) 7 SCC 559
Coram Markandey Katju and Deepak Verma, JJ.
D.O.D May 18, 2009

Reputation of a person is his valuable asset and is a facet of his right under Article 21- Grant of interim bail pending
regular bail application
Held
Following the decision of this Court in the case of Kamlendra Pratap Singh Vs. State of U.P. and Others
[(2009) 4 SCC 437], we reiterate that a Court hearing a regular bail application has got inherent power to
grant interim bail pending nal disposal of the bail application. In our opinion, this is the proper view in
view of Article 21 of the Constitution of India which protects the life and liberty of every person.
When a person applies for regular bail then the court concerned ordinarily lists that application after a
few days so that it can look into the case diary which has to be obtained from the police authorities and in
the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his
reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is
a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra and
Another [(2008) 16 SCC 14].
Hence, we are of the opinion that in the power to grant bail there is inherent power in the court
concerned to grant interim bail to a person pending nal disposal of the bail application. Of course, it is in
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concerned to grant interim bail to a person pending nal disposal of the bail application. Of course, it is in
the discretion of the court concerned to grant interim bail or not but the power is certainly there.

(Read the entire judgment here.)

4. State of U.P. Through C.B.I v. Amarmani Tripathi


Citation (2005) 8 SCC 21
Coram Ashok Bhan and R.V. Raveendran, JJ.
D.O.D September 26, 2005

Application for cancellation of bail and appeal against order granting bail- Relevant factors to be considered
Held
In an application for cancellation, conduct subsequent to release on bail and the supervening
circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant
under Section 439 read with Section 437 Cr.P.C, continue to be relevant. We, however, agree that while
considering and deciding the appeals against grant of bail, where the accused has been at large for a
considerable time, the post-bail conduct and supervening circumstances will also have to be taken note
of. But they are not the only factors to be considered as in the case of applications for cancellation of bail.


Factors to be considered while granting bail
Held
It is well settled that the matters to be considered in an application for bail are (i) whether there is any
prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and
gravity of the charge;(iii) severity of the punishment in the event of conviction; (iv) danger of accused
absconding or eeing if released on bail; (v) character, behavior, means, position and standing of the
accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses
being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (See Prahlad
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8/25/2017 Landmark Judgments of the Supreme Court pertaining to Regular Bail -Part I Legal Arena

being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (See Prahlad
Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Administration) (1978) 1
SCC 118). While a vague allegation that accused may tamper with the evidence or witnesses may not be a
ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate
the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with
the evidence, then bail will be refused.

Scope of interference in the matters of bail Art 136


Held
The general rule that this Court will not ordinarily interfere in matters relating to bail, is subject to
exceptions where there are special circumstances and when the basic requirements for grant of bail are
completely ignored by the High Court.

[Refer to- Pawan v. Ram Prakash Pandey (2002) 9 SCC 166 and Ram Pratap Yadav v. Mitra Sen Yadav (2003) 1
SCC 15]
(Read the entire judgment here.)

5. Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another


Citation (2005) 2 SCC 42
Coram N. Santosh Hegde, S.B. Sinha and P.K. Balasubramanyan, JJ.
D.O.D January 18, 2005

Person whose application for enlargement on bail is once rejected is not precluded from ling a subsequent
application for grant of bail if there is a change in the fact situation
Held:
It is trite law that personal liberty cannot be taken away except in accordance with the procedure
established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees
the above right also contemplates deprivation of personal liberty by procedure established by law. Under
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the above right also contemplates deprivation of personal liberty by procedure established by law. Under
the criminal laws of this country, a person accused of offences which are non bailable is liable to be
detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such
detention cannot be questioned as being violative of Article 21 since the same is authorised by law.
But even persons accused of non bailable offences are entitled for bail if the court concerned comes to the
conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is
satis ed for reasons to be recorded that in spite of the existence of prima facie case there is a need to
release such persons on bail where fact situations require it to do so. In that process a person whose
application for enlargement on bail is once rejected is not precluded from ling a subsequent application
for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing
requires that such persons to be released on bail, in spite of his earlier applications being rejected, the
courts can do so.

Findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court
entertaining a bail application at a later stage when the same had been rejected earlier
Held
The principles of res judicata and such analogous principles although are not applicable in a criminal
proceeding, but the courts are bound by the doctrine of judicial discipline having regard to the
hierarchical system prevailing in our country. The ndings of a higher court or a coordinate bench must
receive serious consideration at the hands of the court entertaining a bail application at a later stage
when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds
which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues
which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the
same it would lead to a speculation and uncertainty in the administration of justice and may lead to
forum hunting.

Subsequent bail application Allowed, if there is a change in the fact situation or in law which requires the earlier
view being interfered with or where the earlier nding has become obsolete.
Held
The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same
issue even in bail matters unless of course, there is a material change in the fact situation calling for a
different view being taken. Therefore, even though there is room for ling a subsequent bail application in
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different view being taken. Therefore, even though there is room for ling a subsequent bail application in
cases where earlier applications have been rejected, the same can be done if there is a change in the fact
situation or in law which requires the earlier view being interfered with or where the earlier nding has
become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a
subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the
accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is
open to the aggrieved person to make successive bail applications even on a ground already rejected by
courts earlier including the Apex Court of the country.


( Read the entire judgment here.)

6. Ram Govind Upadhyay v. Sudarshan Singh and Others


Citation (2002) 3 SCC 598
Coram Umesh C. Banerjee and Y.K. Sabharwal, JJ
D.O.D March 18 , 2002

Order for bail bereft of any cogent reason cannot be sustained
Held
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 matter of course. Order for Bail bereft of any cogent reason cannot be
sustained. Needless to record, 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.

Relevant considerations for granting bail


Held
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Held
The nature of the offence is one of the basic consideration for the grant of bail more heinous is a crime,
the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the
matter.

Apart from the above, certain other which may be attributed to be relevant considerations may also be
noticed at this juncture though however, the same are only illustrative and nor exhaustive neither there
can be any. The considerations being:

(a) 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.
(b) 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.
(c) While it is not accepted 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.
(d) 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 there 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.

Basic criterion for cancellation of bail -interference or even an attempt to interfere with the due course of
administration of justice
Held
While it is true that availability of overwhelming circumstances is necessary for an order as regards the
cancellation of a bail order, the basic criterion, however, being interference or even an attempt to
interfere with the due course of administration of justice and/or any abuse of the indulgence/privilege
granted to the accused.

Duty incumbent on the High Court to explicitly state the reasons as to why the sudden departure in the order of grant
as against the rejection

Held
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Held
Undoubtedly, considerations applicable to the grant of bail and considerations for cancellation of such an
order of bail are independent and do not overlap each other, but in the event of non- consideration of
considerations relevant for the purpose of grant of bail and in the event an earlier order of rejection
available on the records, it is a duty incumbent on to the High Court to explicitly state the reasons as to
why the sudden departure in the order of grant as against the rejection just about a month ago.
The subsequent FIR is on record and incorporated therein are the charges under Sections 323 and 504
IPC in which the charge-sheet have already been issued the Court ought to take note of the facts on
record rather than ignoring it. In any event, the discretion to be used shall always have to be strictly in
accordance with law and not de-hors the same. The High Court thought it t not to record any reason far
less any cogent reason as to why there should be a departure when in fact such a petition was dismissed
earlier not very long ago.
The consideration of the period of one year spent in jail cannot in our view be a relevant consideration in
the matter of grant of bail more so by reason of the fact that the offence charged is that of murder under
Section 302 IPC having the punishment of death or life imprisonment it is a heinous crime against the
society and as such the Court ought to be rather circumspect and cautious in its approach in a matter
which stands out to be a social crime of very serious nature.

(Read the entire judgment here.)

7.Akhtari Bi (Smt.) v. State Of M.P.


Citation (2001) 4 SCC 355
Coram K.T. Thomas and R.P. Sethi, JJ.
D.O.D March 22 , 2001
Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers
a right upon him to apply for bail
Held
To have speedy justice is a fundamental right which ows from Article 21 of the Constitution. Prolonged
delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers
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delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers
a right upon him to apply for bail. This Court, has time and again, reminded the executive of their
obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing
judicial apparatus. Appeal being a statutory right, the trial courts verdict does not attain nality during
pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. It is
unfortunate that even from the existing strength of the High Courts huge vacancies are not being lled up
with the result that the accused in criminal cases are languishing in the jails for no fault of theirs. In the
absence of prompt action under the constitution to ll up the vacancies, it is incumbent upon the high
courts to nd ways and means by taking steps to ensure the disposal of criminal appeals, particularly such
appeals where the accused are in jails, that the matters are disposed of within the speci ed period not
exceeding 5 years in any case. Regular benches to deal with the criminal cases can be set up where such
appeals be listed for nal disposal.
We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the
convicts, such convicts may be released on bail on such conditions as may be deemed t and proper by the
Court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the
record and the delay attributable to the convict or his counsel can be deducted. There may be cases where
even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not
entitled to bail pending the disposal of the appeals led by them. We request the Chief Justices of the
High Courts, where the criminal cases are pending for more than 5 years to take immediate effective
steps for their disposal by constituting regular and special benches for that purposes.

(Read the entire judgment here.)


Compiled by Sneha Arya, GNLU

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This entry was posted in Landmark Judgments and tagged Article 21, Cancellation of bail, Factors to be considered for granting bail,
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