TABLE OF CONTENTS

Object of the Study...............................................................................................................i

Scope of the Study................................................................................................................i
Research Methodology.........................................................................................................i
Chapterisation......................................................................................................................ii
CHAPTER I.......................................................................................................................1
INTRODUCTION.............................................................................................................1
1.1 Concept of Bail..............................................................................................................1
1.2 Evolution of the Concept of Bail...................................................................................3
1.3 Human Rights and the Right of Bail..............................................................................5
1.4 Article 21 of the Constitution and Right To Bail..........................................................7
CHAPTER II....................................................................................................................10
PROCEDURE OF GRANTING BAIL..........................................................................10
2.1 Basic Principles of Bail................................................................................................10
2.2 Bail in Bailable Offences.............................................................................................10
2.3 Bail in Non- Bailable Offences....................................................................................11
2.3.1. Where the investigation is not completed within the time prescribed......................12
2.3.2. Where no reasonable grounds exist for believing the accused guilty of non-bailable offence
................................................................................................................ 13
2.4 Cancellation of Bail...................................................................................................13
2.4.1. Criteria for cancellation of bail in non-bailable offences.........................................13
2.5 Policy Considerations Underlying Bail.......................................................................14
CHAPTER III..................................................................................................................17
ANTICIPATORY BAIL.................................................................................................17
3.1 Meaning.......................................................................................................................17
3.2 Necessity of Anticipatory Bail.....................................................................................19
3.3 Historical Perspective..................................................................................................20
3.4 Section 438: Grant of Bail to a Person Apprehending Arrest.....................................21
3.5 Application for Anticipatory Bail................................................................................23
3.6 Functioning And Applicability of Anticipatory Bail...................................................24

1
3.7 Direction For Grant Of Bail To Person Apprehending Arrest....................................26
3.7.1 Reasonable Apprehension of Arrest for a Non- Bailable Offence...........................26
3.8 Refusal to Anticipatory Bail........................................................................................28
3.8.1 Statutory Bar On Anticipatory Bail..........................................................................28
3.8.2 Heinous Crimes........................................................................................................29
3.8.3 Gang Rape Cases......................................................................................................30
3.8.4 Dowry Death Cases..................................................................................................30
3.8.5 Foreign Exchange Regulation Act, 1973 (FERA) Cases..........................................31
CHAPTER IV..................................................................................................................32
EVALUATION OF THE LAW OF BAILS..................................................................32
4.1 The Practice.................................................................................................................32
4.2 Confusions and Convolutions......................................................................................33
4.3 Ground Realities..........................................................................................................35
CHAPTER V....................................................................................................................38
CONCLUSION AND SUGGESTIONS.........................................................................38
5.1 Conclusion...................................................................................................................38
5.2 Suggestions..................................................................................................................39
BIBLIOGRAPHY.............................................................................................................vi
Books And Articles.............................................................................................................vi
Web Sources.......................................................................................................................vi
Statutes Referred...............................................................................................................vii

2
I) SCOPE OF THE STUDY
The scope of the study is to get the first-hand knowledge about the working and effectiveness
of the provisions of bail system on the criminal justice system in India and how these
provisions help in affirming the rights of the prisoners as well as under trials
II) OBJECTIVES OF THE STUDY
The present paper aims at discussing the role , importance as well as effectiveness of the bail
system in India and its relevance in the criminal justice system and to study the purpose it
serves as well to discuss, their value, and their effectiveness with regard to being an instrument
which affirms one`s fundamental rights
The objective of the study is to also understand the criteria for getting bail and also the
mechanism for its cancellation when the need arises
III) RESEARCH METHODOLOGY:
In the present research paper , the methodology used for determining the questions relating to
probation and parole is doctrinal research methodology since the present research is purely a
theoretical research and Conventional legal sources like reports of committees, legal history,
judicial pronouncements, Acts passed by legislature and parliament etc are used as the sources
of present research
IV) CHAPTERISATION PLAN
The present paper has been divided in 5 chapters
The 1st chapter basically gives a general introduction as well as a brief insight into the history
of bail system in India to and its evolution in the changing times
The 2nd chapter exclusively and extensively deals with the procedure for granting the bail and
conditions under which the bail provide can be cancelled
The 3rd chapter exclusively and extensively deals with the concept of anticipatory bail, the
condition under which it can be granted as well as its relevance in the present times.
The 4th chapter basically evaluates the effectiveness of the bail system as well as provides an
insight into the working of the bail system at practical level
The 5th and the last chapter acts as the conclusion of the present paper and also provides for
various suggestions relating to the law of bail system in India.

3
 CHAPTER 1 |

INTRODUCTION

Bail is one of the thresholds of the criminal justice system. Bail, in law, means procurement of
| | | |

rel ease from prison of a person awaiting trial or an appeal, by depositing security to ensure his
|s | | | |s | | |

submi ssion at the required time to legal authority.1 It carries a twin objective of enabling an
| | | | | | | |

accused to c
ontinue with his life activities and, at the same time, providing a mechanism to seek to ensure
| | | | | | |

his presence on trial.2

1.1 Concept of Bail |

Liberty is the most precious of all the human rights. It had been founding faith of the human | | | | | | |

race f or more than 200 years. Both the American Declaration of Independence, 1776 and the
| | | | | | | |

French De claration of Rights of Man and Citizens, 1789, spoke of liberty being one of the
| | | | | | | | | |

natural and inalie nable rights of man. The Universal Declaration of Human Rights adopted by
| | | | | | | |s

the General Assembl y of the United Nations on December 10, 1948, contains several articles
| |

designed to protect & pro mote the liberty of Individuals. So does the International Covenant on | | | | |

Civil and Political Rights, 1 966.

Above all, Article 21 of the Indian Constitution proclaims that no one shall be deprived of his | |

libe rty except in accordance with the procedure established by law.3 Liberty along with equality
| | |
s
|

is the
most fundamental of all human rights and fundamental freedoms guaranteed by our constitution.4
| | | | | |

Whether it is for securing interest of an individual or for maintaining the peace and law and | | | |

order in the society, law is essential. Not only there should be a proper law, there should also | |

be proper i mplementation of law.5 |

It is therefore required of law that it should try to promote both these contending concepts and
| | | |

to maintain a balance between them, viz., the balance between the necessity to protect & |

promote th e liberty of an individual and the necessity to maintain peace and law and order in
| | | | | | |

the society.6

1
BRAYAN A. GARNER, BLACK’S LAW DICTIONARY 150 (2009). |

2
Rajendra Prasad v State of UP, (1989) 26 ACC 57 (All).
|y | | | |

3
Article 21, The Constitution of India, 1950.
| |

4 N.D. BASU, CODE OF CRIMINAL PROCEDURE, 3 (2007). | |

5 N.V. PRANJAPE, CODE OF CRIMINAL PROCEDURE 41 (2005). |

6
Law Commission of India, 177th Report, December 2011.
|
Arrest is an instrument awarded by the society to its servants to infringe the most cherished and
| | | | | |

pr otected fundamental right of liberty of the individual to protect the society from his criminal
| | | | | | |

wron gs and to compel wrong doer to be dealt in accordance to the law.7 On the contrary Bail is
| | | | |

a mecha nism to restore the liberty of the arrested person by entrustment or bailment himself
| |

either to hims elf or to some creditable person willing to stand surety, that the arrested person
| | | | |

shall face the trial and behave in a manner, which must not be prejudicial to the administration
| | | | | | | | | |

of justice and the inte rest of the victim.8

|
|

The basic rule is to release the accused on bail unless there is a possibility of him fleeing from
| | | | | | |s

just ice or thwarting the course of justice.9 When bail is refused, it is a restriction on one`s | | | | | |
s
|

personal lib
erty of the individual guaranteed by Article 21 of the Constitution and therefore such refusal must
| | | | | | | | |

be rare.10 Personal liberty is a very precious fundamental right and it should be curtailed only when | | | | | |

n it becomes imperative according to the peculiar facts and circumstances of the 11 The signif
| | | |

case.
icance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and | | | |

perm issible only when the law authorizing it is reasonable, even- |

handed and geared to the goals of community good & State necessity spelt out in Article 19.12 | | | | | |s

It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the
| | | | | |

punish ment to which the party may be liable, if convicted, also bears upon the issue. Therefore,
| | | | |s

in deter mining whether to grant bail, both the seriousness of the charge and the severity of the
| | | | | | | | |

punishmen t should be taken into consideration. The grant or refusal to grant bail lies within the | | | | | | | |

discretion of t he 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 sentim ents of the community against the accused.13
| | |

Literally the expression bail denotes a security for appearance of a prisoner for his release. | |

Etymol ogically, the word is derived from an old French verb ‘hailer’ which means to ‘give’ or | | | | | | |

‘to deliver ’.14

7
Hidayat Husain Khan (Dr.) v State of UP, 1992 CrLJ 3534 (All).
| | | | |

8
BATUK LAL, COMMENTARY ON CODE OF CRIMINAL PROCEDURE 9 (2006).
| | |

9
State of Rajasthan v Balchand, AIR 1977 SC 2447; Gudikanti Narasimhulu v Public Prosecutor, AIR 1978
| | | | | | | | |

SC 429.
10
Babu Singh v. State of Uttar Pradesh, AIR 1978 SC 527; Afsar Khan v State of Karnataka, 1992 CrLJ 167 |y | | | |

6 (Kant).
|

11
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2015) 1 SCC 694. | | |

12
Babu Singh v. State of Uttar Pradesh, (1978) 1 SCC 579. |

13
Sanjay Chandra v. Central Bureau of Investigation, (2016) 1 SCC 40. |

14 M.S. ADIL, LAW ON ARREST AND BAIL 19 (2005).

According to Blackstone:

“..The intent of the arrest being only to compel an appearance in court at the retur
n of the writ, that purpose is equally answered. whether the Sheriff detains his
pers on, or takes sufficient security for his appearance, called bail.., because the
defend ant is bailed, or delivered to his sureties, upon their giving security for his
appear ance and is supposed to continue in their friendly custody instead of going
to goal. ”15

Bail is a very vital instrument in the criminal justice system. It carries a twin objective of carrying
| | | | | | |

an accused to continue with his life activities and, at the same time, providing a mechanism to see
| | | | |

k to ensure his presence on trial.

| | 16 It is not always just and advisable to confine the accused
| |s | |

before conviction. Only the sovereign interest or threat to social order may necessitate such an
| | | |

action. Or dinarily detaching an individual from a society adds to the problem rather than
| | | | | | |

solving them.17

18
In the landmark case of Moti Ram v State of
| | | | the Apex Court |

M.P., observed:
“..The subject of bail belongs to the blurred area of criminal justice system and largel
y hinges on the hunch of the bench, otherwise called judicial discretion. The Code is
c ryptic on this topic and the Court prefers to be tacit, be the order custodial or not.
|

An d yet, the issue is one of liberty, justice, public safety and burden of public |

treasury all of which insist that a developed jurisprudence of bail is integral to a

| |

socially sensitiz ed judicial process.”

1.2 Evolution of the Concept of Bail

| |

15 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, Vol. III, 290. | | |

16
Rasiklal v. Kishore Khanchand Wadhwani, AIR 2009 SC 1341. | | |

17
Mool Chand v State, AIR 1992 SC 1618. |y |

18
Moti Ram v. State of M.P, (1978) 4 SCC 47.
| | |
Under the English Law, the operational mode for interim release of an accused was that a surely
| | | | | |

h ad to be bound to produce the accused to stand his trial on the day appointed for such trial. If
| | | | | | |

in cas e such felonious accused disappeared, in that event it made responsible the party in whose
| | | | | | |

custody the accused had been delivered, under the recognized principle of law that a body could
|

be detain ed for the body released.19

In India, the concept is traced back to ancient Hindu jurisprudence which required, inter alia, an
| | | | | | |

e xpedient disposal of disputes by the functionaries responsible for administration of justice. | | |

No lax ity could be afforded in the matter as it entailed penalties on the functionaries.| | | | |

Under Mughal Law, an interim release could possibly be actuated by the consideration that if | | |

disp ensation of justice got delayed in one’s case then compensatory claims could be made on
| | | | |

the judg e himself for losses sustained by the aggrieved party.20

| | | |

On the adoption of the UN Declaration of Human Rights of 1948, the concept of bail formally
| | | | | | | |

pie rced into the arena of personal liberty. Its constitutional bulwark is to be found in Article 21
| | | | | | | | |

of the Constitution of India, 1950.

| |

The law Commission has also stated that even in respect of offences punishable with death or | | | | | |s

im prisonment for life, the Sessions Court and the High Court ought to have even a wider
| | | |

discretion i n the matter of granting bail. | | |

1.3. Human Rights and the Right of Bail | | | |

At a bail hearing relating to an alleged offence against a person, the human rights in question
| | | | | | | | |

invol ve the right to life and personal safety of the victim or the person whose life, dignity or | | |

personal se curity was affected; the right to liberty and a fair trial of the alleged offender (and |

his family and d ependants); and the right to safety of the wider public who may be at risk if the
| | | | | |

offender is bailed.

Before actually determining the place of bail within human rights framework as conferred by | | |

the Constitution, it is important to examine the object and meaning of bail, such that an analysis | | | | | |

of the se fundamental objects and change therein may reveal a change. The object detention of
| | | | | | | |

an accuse d person is primarily to secure her/his appearance at the time of trial and is available
| | | |

to receive sen tence, in case found guilty. If his/her presence at the trial could be reasonably
| | | | | |

ensured other than b | |

19
AFZAL WANI, RIGHT TO BAIL, 4 (2000).
|

20
M. R. Mallick, Bail- Law and Practice, 3rd edition, Eastern Law House, Allahabad, 1999, p. 14. | | |y |
y his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty | | | | | |

during pendency of criminal proceedings.21

International human rights law does not recognize a right to bail or release pending trial. | |

Rather, it recognizes the right to have a court decide the lawfulness of a defendant‘s detention
| | | |

promptly afte r arrest.22 Detention and release of international criminal defendants also
| | | |

implicates a number of c ore human rights, including the presumption of innocence, the rights | |

to liberty and to be free from arbitrary detention, and to a speedy and fair trial.23 | |

A human rights approach involves consideration of a number of factors. Aspects such as

| | | | | |

transpare ncy, accountability and empowerment are comparatively straight forward but a |

human rights appr oach also requires a proposal to be measured against the agreed human rights
| | | | | | | |

norms in the internat ional instruments. Further, the rights of all those involved need to be
| | | | |

identified and, where there is a conflict, balanced, to maximize respect for all.24
| | |

1.4. Article 21 of the Constitution and Right To Bail | | |

Under Article 21 of the Constitution no person shall be deprived of his life or personal liberty | | |

exc ept according to procedure established by law.25

| |

In Hussainara Khatoon v. State of Bihar,26 the Supreme Court has cautioned that
| | | | |

pre-
trial detention is not to be encouraged nor is encourageable pre-
trial release on sureties, that if the Court is satisfied after taking into consideration that the
|s | | |

accuse d has his roots in the community and is not likely to abscond he can safely be released
| | | | |

on his perso nal bond.

|

The protection of Article 21 is available to all persons arrested or detained, be he a citizen or a non
| | | | | |

-
citizen. Such freedom also extends even to a person convicted subject only to the limitations
| | | | |

impo sed by his conviction under the Law.27 The object of Article 21 is to prevent
| | | |

encroachment upon p ersonal liberty by the executive save in accordance with law and in |

conformity with provisions th | |

21
State of Maharashtra v. Sitaram Popat Vetal, AIR 2015 SC 4258. |

22
Bernard Ginsburg, Bail, 6 LAW SOCIETY JOURNAL, 680, 680-715 (1934-1935).
| | |

23
Caroline L. Davidson, No Shortcuts on Human Rights: Bail and the International Criminal Trial, AMERICAN UNIV
| | | | | |

ERSITY LAW REVIEW, (2010).

24
Retrieved from’http://www.rethinking.org.nz/assets/Newsletter/Issue_106/03_Bail_Amendment_Bill.pdf, last |y

accesse d on 28 September, 2018.

| |

25
Maneka Gandhi v. Union of India, AIR 1978 SC 597. | |

26
Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360. |

27
Sunil Batra v. Delhi Admn. AIR 1978 SC 1675; Bhuban v. State of U.P. AIR 1974 SC 2092.
| |y |y | |
ereof.28 Before a person is deprived of his personal liberty the procedure established by law must
| | | | | |

be strictly followed and must not be departed from to the disadvantage of the person affected.
| | | | | | | | |s

The expression ‘personal liberty’ according to Gopalan’s29 case means freedom from physical res
| | | |
s
| |

traint of person by incarceration or otherwise. But in the later decisions the Supreme Court has
| | | | |

ab andoned the meaning of ‘personal liberty’ as given in Gopalan’s case and in view of these | |

later de cisions the ‘personal liberty’ includes all varieties of rights which go to make up a | | |

person’s person
al liberty other than those which are already included in the several clauses of Article 30. Even
| | | | | | |

19 t
he expression ‘procedure established by law’ which was originally interpreted by the Supreme
| | | | |

Co urt in Gopalan’s case as State-

| |

made or enacted law and not as an equivalent law embodying the principles of natural justice | | | |

yet g radually the expression ‘procedure established by law’ has undergone significant change | |

in later Supreme Court decisions.

31
In Hussainara Khatoon v. State of
| the Supreme Court has ordered release of the |s |

Bihar undertria
l prisoner who is in jail for a period longer than the maximum term for which he could have
| | | | | |

been s entenced if convicted. In the said decision as well as in other decisions the Supreme
| | | | | | |

Court has also held the procedure to be unreasonable which does not provide for speedy trial.
| | |

The classification of the offences into bailable offences and non- |s | |

bailable offences and recognizing the right of bail in bailable offences as a matter of right is
| | | | | |

defini tely to make the law regarding the bail reasonable.32 Only in respect of non-
| | | | | |

bailable offences, bail is a matter of discretion of the concerned Court.33 | |

Courts have refused to exercise their discretion to grant bail on non-

| |

justifiable grounds such as for going abroad for propagation of Hindu religion,34 very grave charg
| | | |

es against the accused,35 where offence was alleged to be committed under the Narcotic Drugs
| | | | |

& Psychotropic Substances Act, 1985,36 threat of security to state.37

28
Dr. Vinod Narain v. State of Uttar Pradesh, 1996 CrLJ 1309 (All).
|

29
A. K. Gopalan v. State of Madras AIR 1950 SC 27: 1950 SCR 88. |y | |y

30
Maneka Gandhi v. Union of India AIR 1978 SC 597; Kirit v. Union of lndia AIR 1981 SC 161; Kharak Singh v. St
| |y | | |y | |

ate of U.P. AIR 1963 SC 1295; Sitamm v. State of U.P. AIR 1979 SC 745; RC Cooper v. Union of India; AIR 1970 S
|y | | |

C 564.
31
Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360. |

32
Shehat Ali v. State of Rajasthan, 1992 CrLJ 1335 (Raj). |

33
Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598. |

34
Chandraswami v. Central Bureau of Investigation, AIR 1997 SC 2575. | |

35
Rajesh Ranjan Yadav v. Central Bureau of Investigation, AIR 2007 SC 451. | |

36
Abdul Hamiddhan v. State of Gujarat, 1989 CrLJ 468 (Guj).
Also, where reasonable grounds exist, courts have exercised discretion in favour of the accused,
| | | | | |

s uch as prolonged trial,38 non likelihood of tampering with evidence and witnesses,39
| | |

1.5. Interrelation between Writ of Habeas Corpus & Bail

|

When the detention is found to be illegal, writ of habeas corpus can be issued to quash such
| | | |

detent ion and to release the person detained forthwith. When it is found that there is no valid
| | | | | | |

order of re mand by a competent Court of law then the accused is entitled to be released on an
| | | | | | | | | |

application for habeas corpus.40 However, where it is found that the person is committed to jail
| | |

custody by a com petent court by an order which prima facie does not appear to be without | | |

jurisdiction or wholly ill egal, writ of Habeas Corpus shall not be granted.41
|

37
Afzalkhan v. State of Gujarat, AIR 2007 SC 2111.
|y

38
Satya Brat Gain v. State of Bihar, AIR 2000 SC 2080.
| |y |

39
State of Maharashtra v. Arun G. Gawali, 1990 CrLJ 2171 (Bom).
40
State of Bihar v. Rambalak Singh, AIR 1966 SC 1441. |

41
Manubhai Ratilal Patel v. State of Gujarat, AIR 2013 SC 313.
| | |
CHAPTER 2

PROCEDURE FOR GRANTING BAIL |

The statutory fabric of the bail system in India is mainly comprised of some provisions of the
| | | | | |

Cod e of Criminal Procedure, 1973, particularly extending from Sections 436 to 439 of the | |s |

Code. The real matrix of the system is, however, found in judicial decisions. Nonetheless, the
| | | | | | |

provisions mus t be studied meticulously. | |

2.1 Basic Principles of Bail

| |s

The broad principles adopted in Courts regard to bail are:

| | |s

i. Bail is a matter of right if the offence is bailable.42

| | |

ii. Bail is a matter of discretion if the offence is not bailable.43

| | | |

iii. Bail may be granted even if the offence is punishable with death or imprisonment for life i
| | | | |

f the accused is a woman or a minor under the age of 16 years or a sick or infirm person.
| | | 44 | | |

2.2 Bail in Bailable Offences

Section 436 of the The Code of Criminal Procedure, 1973 reads as:

“….When any person other than a person accused of a non-bailable offence is

arrested or detained without warrant by an officer in charge of a police station,
or appears or is brought before a court, and is prepared at, any, time-, while-in,
the custody of such officer or at any stage of the proceeding before such court to
give bail, such person shall be released on bail.”45

The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute
| | | | |

and indefeasible right. In bailable offences there is no question of discretion in granting bail as
| |s | | | | |

the wor

42
Mir Hashamali, (1917) 20 Bom LR 121; Kanubhhai Chhaganlal, 1973 CrLJ 533; Raghunandan Pershad, (1
| | | | |

904) 32 Cal 80. |

43
Mansab Ali v. Irsan, AIR 2003 SC 707.
| |

44
Venkataramanappa v. State of Karnataka, 1992 CrLJ 2268 (Kant).
45
§ 436, The Code of Criminal Procedure, 1973.
ds of Section 436 are imperative.
| | 46 While this section entitles a person other than a person
| | | |

accused of non-
bailable offences to be released on bail, it is seen that Section 50(2) makes it obligatory for a | | | | | |

polic e officer arresting such a person without a warrant to inform him of his right to be released | |

on bail. As soon as it appears that the accused person is prepared to give bail, the police officer
| | | | |s | | |

or the cour t, before whom he offers to give bail, is bound to release him on such terms as to bail | | | | | | |

as may appea r to the officer or the court to be reasonable.47 It would even be open to the officer | | | | | |

or the court to di
scharge such person on executing his bond instead of taking bail from him.
| | | | | | |

2.2.1. Cancellation of bail |

Even though a person accused of a bailable offence is entitled to be released on bail pending his
| | | | | | | |s | |

tri al, if his conduct subsequent to his release, is found to be prejudicial to a fair trial, he forfeits | | | | |

his ri ght to be released on bail and such forfeiture can be made effective by invoking the | | | | | |

inherent powe r of the High Court under Section 482 of the Code.48
|
s
| | |

2.3 Bail in Non- Bailable Offences | | |

Bail is a matter of right if the offence is bailable. However, it is a matter of discretion if the
| | | | | |

offenc e is non-
bailable.49 It is manifest that the discretion given to the High Court and also to the Court of Sessio | | | | |

ns is unrestricted in any way by the terms of the statute, i.e., The Code of Criminal Procedure.
| | | |s | |

Tw o things follow from this, firstly that the discretion is one which must be judicially | | |

exercised and s econdly that the Court has power if it does grant bail to grant it on such
| | | | | | | |s

conditions as the circumst ances of the case and the public interest may require.50
| |

The judge may refuse to grant bail or may grant it, in his discretion. However, in conformity | |s | |

with t he principles of natural justice, his order should be a reasoned one.51 An order grating bail
|
| | | | |

without providing for reasons in a serious offence constituted non- | | |

52
application of mind and is liable to be set aside. | | |

46
Rasiklal v Kisore, AIR 2009 SC 1341. | |

47
Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376.
| | |y |

48
Ratilal v. Assistant Collector of Customs, AIR 1967 SC 1639. |y

49
D BANERJEE, CRIMINAL JUSTICE & SUPREME COURT, 38 (1st Ed. 2005). | | | |

50
Emperor v HL Hutchinson, AIR 1931 All 356; KN Joglekar v. Emperor, AIR 1931 All 504(E); Vasant v
| | | | |y

S tate, AIR 1951 MP 104; Keshav Vasudeo v Emperor, AIR 1933 Bom 492; Ashraf Ali v. Emperor, AIR
| |y | | |y

1915 Cal 784; HM Boudville v. Emperor, AIR 1925 Rang 129. |y

51
Dhruv K. Jaiswal v. State of Bihar, AIR 2000 SC 209; Puran v. Rambilas, 2001 CrLJ 2566. | |y | |

52
Gajanand Agarwal v. State of Orissa, AIR 2006 SC 3248. | |y |
The scope of discretion is depends upon various considerations:
| |

i. The scope of the discretion varies in inverse proportion to the gravity of the crime. As the
| | | | | |

gr avity of crime increases, the discretion to release the offender on bail gets narrowed | |

down.

ii. As between the police officers and the judicial officers, wider discretion to grant bail has
|

be en given to judicial officers.

| |

iii. Amongst the judicial officers and courts, a High Court or a court of session has far wider | | | | | |

dis cretion than that given to other courts and judicial officers.53
|
s
|
s
| | |
s
|

While considering the scope of the discretion one important thing should always be kept in
| | | | |s

mind. Whether the discretion in granting bail is wide or narrow, it is not to be used in an
| | | |

arbitrary manne r.54

The Apex Court, in the landmark judgment of State of Uttar Pradesh v Amarmani Tripathi,55 held
| | | | | |

as under:
|

“It is well settled that the matters to be considered in an application for bail are

 Whether there is any prima facie or reasonable ground to believe that the accused
| |

ha d committed the offence;

 Nature and gravity of the charge;

 Severity of the punishment in the event of conviction;

 Danger of the accused absconding or fleeing, if released on bail;

 Character, behavior, means, position and standing of the accused;

 Likelihood of the offence being repeated;

 Reasonable apprehension of the witnesses being tampered with; and |

 Danger, of course, of justice being thwarted by grant of bail.”

53
RUSTOM KAWASHA SUNAVALA, A TREATISE ON THE LAW OF BAILS, 89 (1st Ed. 1978).
| | |

54
Mazahar Ali v. State, 1982 CrLJ 1222 (J&K). |

55
State of Uttar Pradesh v. Amarmani Tripathi, (2005) 8 SCC 21; Gurcharan Singh v. State (Delhi Administ
ration), AIR 1978 SC 179, State v. Captain Jagjit Singh, AIR 1962 SC 253.
|y | | |
It has also to be kept in mind that for the purposes of granting the bail the legislature has used
| | | | |

the words "reasonable grounds for believing" instead of "the evidence" which means the court | |

dealin g with the grant of bail can only satisfy it as to whether there is a genuine case 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 reaso nable doubt.56 |

2.3.1. Where the investigation is not completed within the time prescribed |

A person arrested without a warrant cannot be detained by the police for more than 24 hours.57 If t
| | | | |
s
|

he police officer considers it necessary to detain such person for a longer period for the | | | | | |

purposes o f investigation, he can do so only after obtaining a special order of a magistrate

| | | | |s

under Section 167. According to Section 167(2), the total period of detention of the accused
|s |

which a magistrate can a uthorize shall not exceed ninety days, where the investigation relates | | |

to an offence punishable wit h death, imprisonment for life or imprisonment for a term not less
| |s | | | |

than ten years, and sixty days, where the investigation relates to any other offence. On the
| | | |

expiry of the period of ninety days or s ixty days, as the case may be, the accused person shall
|s | | | | | |

be released on bail if he is prepared to and d oes furnish bail, and every person so released on
| |s | | | |

bail shall be deemed to be so released under Cha pter XXXIII of the Code (i.e. relating to Bail)
| | | |

for the purposes of that chapter. |

2.3.2. Where no reasonable grounds exist for believing the accused guilty of
non- bailable offence

Where any person accused of or suspected of the commission of any | |s |s |

non- bailable offence is arrested or detained without warrant by an |

officer-in-
charge of a police station or appears or is brought before a court, and 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 | | | |

reason able grounds for believing that the accused has committed a non- | | | |

bailable offence, but there are sufficient grounds for further inquiry into his guilt, then, | | | |

according to Section 437(2), the accused shall, 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
| | | | |s | | | |

appearance. An officer or a court releasing any person on bail under this provision is required to
| | | | |

record reason for so doing.

| |s

56
Prahlad Singh Bhatt v. NCT Delhi, AIR 2001 SC 1444. |

57
L.R. Chawla v. Murari, 1976 Cri LJ 212. |
2.4 Cancellation of Bail | | |

If an accused person who has been released on bail attempts to obstruct the smooth progress of a
| | | | | | | | | |s |

f air trial either by suborning or by intimidating prosecution witnesses or tries to jump bail and | |

to ab scond or to run away to a foreign country, it would be just and reasonable that his bail is | |

cancelled and he is arrested and committed to custody.58 Very cogent and overwhelming
| | | | | |

circumstances are necessary for an order directing the cancellation of bail already granted.59 The
| | | |

basic criteria for ca

ncellation are interference or even an attempt to interfere with the due course of justice and abuse | | | |

of the privilege granted to the accused.60 An order for cancellation of bail cannot be passed suo m
| | | | | | |

oto unless both parties are heard.61 A reasonable opportunity must be afforded to the accused.62 R | | | |

ecording of reasons for cancellation of bail is imperative.63 However, the order disposing of a bail
| | | | | |

application has to be a reasoned order, detailed reasons touching the merits of the case have to be
| | | | | | | |

avoided.64

2.4.1. Criteria for cancellation of bail in Non-Bailable offences | |

Once an accused is released on bail under Section 167 (2), he cannot be taken again in custody
| | | | | | | |

me rely on the filing of a charge- | | |

sheet, but there must exist special reasons for so doing, besides the fact that the charge- | | | |

sheet reveals the commission of a non- | | |

bailable crime. The grounds for cancellation of bail granted under Section 437 (1) or (2) or 439 |s |

(1) are as follows:-65

|

i. Misuse of liberty by the accused by indulging in similar criminal activity;

| | | | |

ii. Interference with the course of investigation; | |s

iii. Attempt to tamper with evidence of witnesses; |

iv. Threatening witnesses or indulging in similar activities which would hamper smooth
| | | | | |

inve stigation66;
v. Likelihood of fleeing away of the accused to another country;
| | | | |

58
N.D. BASU, CODE OF CRIMINAL PROCEDURE, 157 (2007).
| |

59
Savitri Agarwal v. State of Maharashtra, AIR 2009 SC 3173. |y |

60
Ram Govind Upadhyay v. Sudarshan Singh, 2002 CrLJ 1849 (SC).
|

61
RJ Sharma v. RP Patankar, 1993 CrLJ 1550 (Bom); Chuni Lal v. State of Punjab, 1996 CrLJ 4474 (P&H) | | |

62
Ram Doss v. State of Tamil Nadu, 1993 CrLJ 2147 (Mad).
| |

63
Brij Nandan Jaiswal v. Munna, AIR 2009 SC | |

1021. 64 Afzalkhan v. State of Gujarat, AIR 2007 SC |y

2111. 65 M.S. ADIL, LAW ON ARREST AND BAIL 216

(2005).
66
Omar Usman Chamadia v. Abdul, AIR 2004 SC 1508. | |
 vi. Attempt to make the accused scarce by going underground or becoming
| | |

non- available to the investigating agency;

vii. Attempt to place himself beyond the reach of his surety etc.67
| | |

67
Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC 1.
|y |
CHAPTER 3 |

ANTICIPATORY BAIL

3.1 Meaning

Anticipatory bail refers to a pre- | |

arrest order passed by a court that says that in the event a person is arrested, he is to be granted bail
| | | | | |s |

The ‘anticipatory’ labeling of the order can be misleading as it is not an order which grants a | | |s |

perso n bail before he is arrested as bail cannot come into effect before a person is arrested.
| | | | | | |

Having said that, the fundamental difference between an order for bail and one for anticipatory
| | | |

bail is that the f ormer is granted only after arrest and becomes operative subsequently, but the
|

latter is granted bef ore arrest and hence is operative from the moment of arrest.
| |

The Law Commission of India in its report summed up the necessity of granting anticipatory
bail in the following words:
“…..sometimes influential persons try to implicate their rivals in false cases for
the purpose for/or disgracing them or for other purposes by getting them detained
in jail for some days….apart from false cases, where there are reasonable
grounds for holding that a person accused of an offence is not likely to abscond,
or otherwise misuse his liberty while on bail, there seems to be no justification to
require him first to summit to custody, remain in prison for some days and then to
apply for bail.”68

According to Section 438 of The Code of Criminal Procedure (CrPC), the High Court and the
| | | |

Co urt of Session are empowered to grant anticipatory bail, that is, a direction to release a
| | | | | |

person on b ail issued even before the person is arrested. Anticipatory bail cannot be claimed as
|s | | | | | |

a matter of rig ht, it is essentially a statutory right conferred long after the coming into force of
| |s | | |

the Constitution.
|

69
In the landmark case of Gurbaksh Singh Sibbia v. State of
| | | the Hon’ble Supreme Court
|

Punjab, l
aid down various principles in regard to anticipatory bail, which are as follows:
| | | | |

68
Shailender Malik, The Code of Criminal Procedure, 11th Ed., Allahabad Law Agency, Faridabad, 2011, p. 45. | | |
69
Gurbaksh Singh Sibbia v. State of Punjab 1980 AIR 1632.
| | | |y
 i. The discretion granted upon the High Court/ Session Court is very wide and that the
| | | |

limita tions imposed in Section 437 are not relevant here. However the discretion granted is to
| | | | |

exercised with care and circumspection.70

ii. Specific events and facts must be laid before the Court by the Accused in order to get an a
|

nticipatory bail
iii. The Court while granting bail may impose restrictions so as to balance out an | | | | |

individual’s right and investigational rights (Section 438 (2))

| |

iv. Although it is possible to pass an ex- |

parte order in this regard however, the court should try and give prosecution a chance to
| | |

present th eir side

|

v. It should be kept in mind that such an order is no blanket cover.

| | | |s |

vi. The section does not require filing of the case as a condition precedent for invoking the
| | | | | | | |

sai d section
|

vii. It is only applicable before the stage of arrest of the accused

| | | |s |

viii. Such a bail order is effective till the conclusion of the trial
| | | | | |

ix. The Court granting the bail is empowered to even cancel the bail on reasonable grounds.
| |

x.Various considerations such seriousness of charges, reasonable apprehension to evidence

| | | |

being tampered with, etc. must be kept in mind while granting such bail. | | | |

The State of Uttar Pradesh has no provision for anticipatory bail, and on the importance of the
same, J. Markandey Katju has said71 that:

“…I make a strong recommendation to the Uttar Pradesh government to immediately

issue an ordinance to restore the provisions for anticipatory bail and empower the
Allahabad High court as well as the sessions courts in the state to grant anticipatory
bail.”

3.2 Necessity of Anticipatory Bail

The necessity for granting anticipatory bail has arisen because sometimes influential persons | | |

try t o implicate their rivals in false cases for harassment at the hands of the police or for the
| | | |

purpose of disgracing them or for any other reason, by getting them detained in jail for some
| |s | |

days. In recent t imes, with the accentuation of political rivalry, this tendency is showing signs
| |

of steady increase.
|

70
State (CBI) v. Anil Sharma, (1997) 9 SCC 187. |
71
Retrieved from http://www.hindu.com/2008/01/31/stories/2008013159450600.html, last accessed on 28 August,
2018.
Apart from false cases, where there are reasonable grounds for holding that a person accused of
| | |

an offence is not likely to abscond, or otherwise misuse his liberty, while on bail, there seems
| | |

no just ification to require him first to submit to custody, remain in prison for some days and
| | | | |s | |

then apply f or bail.72

|

Anticipatory bail is not to be exercised as if a punishment before trial is being imposed. The
| | | | | | |

only material consideration in such a situation is whether the accused would be really available
| | | |s | |

for his t rial and whether he is likely to abuse the discretion granted in his favour by tampering
| | | |s | |

with the evi dence. For mere interrogation arrest of the accused is not all necessary.73 | | |

The power of anticipatory bail has to be exercised cautiously and only in exceptional cases, that is | | | |

, where the Courts strongly feel that the applicant is being framed in the charge, and not | |

otherwise. An indirect use of the power to grant bail would be an abuse of the judicial process
| | | | | | | | |

and would sha ke the confidence of the general public in the judiciary. No hard and fast rule
| | |

should be laid down in discretionary matters like the grant or refusal, nor can there be inflexible
| | | | |

principle governing th e exercise or discretion except that discretion should be exercised |

judiciously having regard to pec uliar facts and circumstances of each case. The Court is not
| | |s | |

expected to conduct a pre-

trial of the case and consider the probability of guilt or innocence, but can certainly look into the
| | | |

material available on record for exercise of its power. The fact that offence is a serious one is not
|s | | | | |

b y itself a good ground for refusal, if otherwise entitled to.74

| |s |

3.3 Historical Perspective |

The Code of Criminal Procedure, 1898 did not contain any specific provision of anticipatory | | |

bail. Under the old Code, there was a sharp difference of opinion amongst the various High | | | |

Courts on t he question as to whether the courts had an inherent power to pass an order of bail in
| | |s | | | | | |

anticipation |

75
of arrest, the preponderance of view being that it did not have such
| | |

power.
The Law Commission of India, in its 41st Report76 pointed out the necessity of introducing a prov
| | | | |

ision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions
| | | | | | |

to grant "anticipatory bail". It observed in para 39 of its report (Volume I) and the same is set
out as under:

72
Law Commission of India, 41st Report, Vol.I, pp.320, 321, para 39.9. | | |
73
Sajjan Kumar v. State, 1991 CrLJ 645, 653 (Del). |

74
R.L.Jalappa v. Delhi Police Establishment, 1989 (3) Crimes 113, 116 (Kant). | |

75
P.D. Mathew, Criminal Procedure, Indian Social Institute, New Delhi, 2005, p. 55.
76
Law Commission of India, 41st Report, September 1969.
 “….The suggestion for directing the release of a person on bail prior to his arrest
(commonly known as "anticipatory bail") was carefully considered by us. Though
there is a conflict of judicial opinion about the power of a court to grant
anticipatory bail, the majority view is that there is no such power under the
existing provisions of the Code. The necessity for granting anticipatory bail arises
mainly because sometimes influential persons try to implicate their rivals in false
cases for the purpose of disgracing them or for other purposes by getting them
detained in jail for some days. In recent times, with the accentuation of political
rivalry, this tendency is showing signs of steady increase. Apart from false cases,
where there are reasonable grounds for holding that a person accused of an
offence is not likely to abscond, or otherwise misuse his liberty while on bail,
there seems no justification to require him first to submit to custody, remain in
prison for some days and then apply for bail.”77

The Law commission recommended acceptance of the suggestion: The Law Commission in para
31 of its 48th Report (July, 1972)78 made the following comments on the aforesaid clause:

“…The Bill introduces a provision for the grant of anticipatory bail. This is
substantially in accordance with the recommendation made by the previous
Commission. We agree that this would be a useful addition, though we must add
that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to
abuse at the instance of unscrupulous petitioners, the final order should be made
only after notice to the Public Prosecutor. The initial order should only be an
interim one. Further, the relevant section should make it clear that the direction
can be issued only for reasons to be recorded, and if the court is satisfied that
such a direction is necessary in the interests of justice.”79

Police custody is an inevitable concomitant of arrest for non-

| |

bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a
| | | | | | |

n on-

77
Ibid.
78
Law Commission of India, 48th Report, July 1972.
79
Ibid.
bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the
| | | | | | | |

arr est.

3.4 Section 438: Grant of Bail to a Person Apprehending Arrest80

| | |

(1) When any person has reason to believe that he may be arrested on an accusation of having
| |

c ommitted a non-
bailable offence, he may apply to the High Court or the Court of Session for direction under
this section; and that court may, if it thinks fit, direct that in the even of such arrest, he shall be
| |

relea sed on bail.

(2) When the High Court or the Court of Session makes a direction under sub-
section (1), it may include such conditions in such directions in the light of the facts of the
partic ular case, as it may thinks fit, including -

(i) A condition that the person shall make himself available for interrogation by a police
officer and when required;

(ii) A condition that the person shall not, directly or indirectly,-

make any inducement, threat or promise to any person acquainted with the facts of the case so
a s to dissuade him from disclosing such facts to the court or to any police officer,
|

(iii) A condition that the person shall not leave India without the previous permission of the
cour t;

(iv) Such other condition as may be imposed under sub-

section (3) of section 437, as if the bail were granted -under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police
statio n on such accusation, and is prepared either at the time of arrest or at any time while in
|

the cust ody of such officer to give bail, he shall be released on bail, and if a Magistrate taking
cognizan ce of such offence decides that a warrant should issue in the first instance against that
person, h e shall issue a bailable warrant in conformity with the direction of the court under
sub-
section (1).

80
Section 438 of The Code of Criminal Procedure (Act II of 1974), substituted by the CrPC (Amendment)
| | | |

Act, 2005 (25 of 2005).

|
In India, anticipatory bail can only be invoked if a person is apprehending arrest for a non-
| | | | | | |

bailable offence as under s. 438 of the Code of Criminal Procedure. When any person has
| | | |

reason to believe that he may be arrested on an accusation of having committed a non-

| | | | |

bailable offence, he may apply to the High Court or the Court of Sessions for a direction under
| | |

thi s section that in the event of such arrest he shall be released on bail and that court may, after
| | | | | | | |s | | |

taking into consideration, inter alia the following factors, namely:

i. The nature and gravity of the accusation; |

ii. The antecedents of the applicant including the fact as to whether he has previously | | | |

underg one imprisonment on conviction by a Court in respect of any cognizable offence; | | | |

iii. The possibility of the applicant to flee from justice; | |s

iv. Where the accusation has been made with the object of injuring or humiliating the
| | |s | |

applica nt by having him so arrested, either reject the application forthwith or issue an interim |s | | |

order for th e grant of anticipatory bail [section 438(1)]. | |

It can be given when a person apprehends arrest for a non-

| | |

bailable offence. It is given in those circumstances when the court believes that there is a | | | |

possibili ty that the accused has been falsely implicated and that his freedom will not hamper | | | |s

the investigati on of the crime. Having said that, bail is granted under section 438 may be
| | | | |

cancelled at any time if the investigation is hampered or if a condition under the order is |s | | |

violated by the arrested person. It is important that the attendance of the person apprehending
| | | | | | | |

arrest is compulsory at the final heari ng. | |

3.5 Application for Anticipatory Bail

When any person apprehends that there is a move to get him arrested on false or trump up
| | | |

charges, or due to enmity with someone, or he fears that a false case is likely to be built up
| | | |

against him. He has the right to move the Court of Session or the High Court under section 438
| | | | | |s

for grant of bail in t he event of his arrest, and the court may, if it thinks fit, direct that in the
| | | | |

event of such arrest, he sh all be released on bail.

| | | |

Conditions That May Be Imposed By The Court: The High Court or the Court of Session may
| | | | | |

incl ude such conditions in the light of the facts of the particular case, as it may think fit,
| | | |s | |

including:

i. A condition that the person shall make himself available for interrogation by the police | | | |

off icer as and when required; |

ii. A condition that the person shall not, directly or indirectly, make any inducement, | |

threat o r 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; | | |

iii. A condition that the person shall not leave India without the previous permission of the |

co urt.81

3.6 Functioning And Applicability of Anticipatory Bail |

The purpose of this section inter alia appears to be to secure that a person anticipating arrest is
| | | |

not obliged to go to jail till he is able to move the court for being released on bail.82 The object
| | | | | | | | |

which i
s sought to be achieved by this section is that the moment a person is arrested, if he has already
| | | |

obt ained an order granting anticipatory bail from the Session Judge or the High Court, he
| | | |s

would be re leased immediately without having to undergo the rigor of jail even for a few days
| | | | |

which would n ecessarily be taken up if he has to apply for bail after arrest. So, there is no
| | | | |

question of release on b ail unless a person is arrested and, therefore, it is only on arrest that the
| | | | | |

order granting anticipatory bail becomes operative.

In respect of non-
| |

bailable offences, all the conditions imposed by Section 437 are implicitly contained in this | |

sectio n as well. In order to successfully invoke the jurisdiction under this section apart from
| | | | | | |

satisfying t he conditions under Section 437, the applicant must, in addition make out a special | | | | |

case for securi ng an order of anticipatory bail which is of an exceptional type. He must prove
| | | | | |

that the charge lev eled against him is malafide and stems from ulterior motive. It is for the
| | | |

applicant to prima facie s ubstantiate his allegation that the charge of serious non- | | |

bailable offences against him has been | | leveled malafide. The provision for granting |s

anticipatory b ail are not applicable to the offences under Scheduled Castes and Scheduled
| | | | | |

Tribes (Prevention of Atrocities) Act, 1989 vide Section18 thereof. This has been held to be
| | | | |

constitutional.

Consideration for grant of anticipatory bail is the same as that of under S. 437 or S. 439. A | | |s |

person already on bail, whether ordinary or anticipatory, cannot apply afresh for bail in respect
| |s |

of the sam e accusation. The Court has power to grant anticipatory bail even in cases where
| | | |

either cognizanc e has been taken or charge sheet has been filed. Anticipatory bail can be | | | | | |

granted even after the Cri minal Court has taken cognizance, and summons of warrant has been
| | | | | |

issued by the Court. Section

| |s

81
Ibid.
82
Natturasu v. State, 1998 CrLJ 1762 (Mad).
|
438 becomes inoperative only when the accused has been arrested, that is it cannot be invoked
| | | |

aft er the arrest of the accused has been done. | |

The exercise of power under this section is with regard to a specific accusation and cannot be
|s | | | | | |

exte nded in a blanket fashion to cover all offences which the petitioner may come to be | | |

charged.

On an application for grant of anticipatory bail, the investigating agency would be given
| | | | |

reasonab le time to file objection to the application. Where the copy of the application was | | | | |

served on the ap pellant only in the afternoon the order for bail passed on the next day would be
| | | | |s | |s |

set aside. In case of regular bail there is no provision made in the code, that a complainant or a
| | |

third party can interve ne and make any submissions independently in opposing the application
| | | | | |

for grant of bail or antici patory bail.83 | |

The State legislature has the requisite power to make laws to amend the provisions of the Code | | | |

of Criminal Procedure, 1973, subject to the other provisions of the constitution.41 So, in effect | |

to it state of Maharashtra and Orissa has substituted section 438 of CrPC by its own section,
| | | |

West Ben gal has only inserted a proviso to sub section- | | | | | |

1 of section 438 CrPC. The proviso added by West Bengal and Orissa are almost similar, the
| | |s | | | |

diffe rence is in time of giving notice. | |

The Orissa Act reads as, where the apprehended accusation relates to an offence punishable | | | |

with death, imprisonment for life or imprisonment for a term of not less than seven years, no
| | | | |s | | |

final order shall be made on such application without giving the state notice to present its case.
| | |s | | |

Whereas according to the West Bengal Act where the apprehended accusation relates to an
| | |

offenc e punishable with death, imprisonment for life or imprisonment for a term of not less
than seven y ears, no final order shall be made to such application without giving the state not | | |

less than seven d ays notice to present its case.

| | |

There is even a State where this section does not apply that is Uttar Pradesh which has omitted
| | | | | |

sec tion 438. In Kartar Singh v. State of Punjab84, a five judge constitutional bench of Supreme
|
s
| |

Court
had upheld the constitutional validity of the U.P. law scrapping the operation of anticipatory
| | | | | |

bail provision. The constitutional bench has said that deletion of anticipatory bail provision did | | | | | |

not off end the fundamental rights under Article 14, Article 19, and Article 21 of the
| | |

constitution.

83
Indu Bala v. Delhi Administration, 1991 CrLJ 1774 (Del).
|
84
Kartar Singh v. State of Punjab 1994 SCC (3) 569.
| |
 3.7 Direction For Grant Of Bail To Person Apprehending Arrest
| | | | |

Anticipatory bail can be granted in respect of non- | | | | |s

bailable offences whether they are cognizable or non- | |

cognizable offences. Moreover granting of anticipatory bails in case of |

non- bailable offences is not confined to those non- | |

bailable offences which are punishable with death or imprisonment for life
| | |

3.7.1 Reasonable Apprehension of Arrest for a Non- Bailable Offence |

Section 438(1) confers on the High Court and the court of session the power to grant
| | |s | | | | | |

anticipatory bail if the applicant has reason to believe that he may be arrested on the
| | | |

accusation of having com mitted ‘a non-

| |

bailable offence’. He may apply to the High Court or Court of Session for anticipatory bail i.e., | | | | | |

in the event of arrest, he shall be released on bail. While granting anticipatory bail, the court
| | | | | | |

may im pose certain conditions in the interest of justice and to ensure that no obstructions are
| | | | |

created on th e path to justice. The accused may have to take the permission of the court before
| | | | | |

leaving the coun try. The anticipatory bail is valid during the whole proceedings of the case
| | | | | | |

unless cancelled earlier |

If the offence is non-

| |

bailable, it is immaterial for the purpose of Section 438 whether the offence is cognizable or non- | | |

cognizable,85 or whether it is one under the Indian Penal Code or under any other Law like Custo | | |

ms Act, 1962.86 Anticipatory bail was granted by the Karnataka High Court to accused who was
| | | | | |

a pprehending arrest by Forest officials.87 There is no restriction on granting anticipatory bail

| | | | | |

merel
y because the alleged offence is one punishable with death or imprisonment for life. | | |s |

Section 438 does not require that the offence in respect of which the anticipatory bail is asked
| | | | |

for has been registered with the police. The filing of FIR is not a condition precedent to the
| | | | | | | |

exercise o f the power under Section 438. The imminence of a likely arrest founded on a
| | | | |

reasonable belief ca n be shown to exist even if an FIR is not yet filed.

| | | |s | |

The use of expression ‘reason to believe’ shows that the belief that applicant may be so arrested
| | | |

m ust be founded on reasonable grounds. Mere ‘fear’ is not belief for which reason is not
| | | | |s |

enough for

85
Suresh Vasudeva v. State, 1978 Cri LJ 677 (Del).
86
E. Joseph v. Asstt. Collector of Customs, 1982 Cri LJ 559 (Mad). |
87
Shankar Nayak v. State of Karnataka, 1991 Cri LJ 1468 (Kant).
| |
the applicant to show that he has some sort of a vague apprehension that someone is going to
| | | | | | | | |

mak e an accusation against him, in pursuance of which he may be arrested. The grounds on
| | | | | |

which the belief of the applicant is based that he may be arrested for a non-
| | | |

bailable offence, must be capable of being examined by the court objectively, because it is then
| |

al one that the court can determine whether the applicant has reason to believe that he may be
| | | | |

so arre sted. But in this determination the complainant does not have right to argue against the
| | | |

grant of an ticipatory bail as in all probability such a complainant would be swayed with
| | | | | | |

emotions to seek rev enge. However, the court’s decision has to be a balanced one. | | |

If the apprehension of a person continues even at the stage of committal court proceedings there
| | | | | | |

i s nothing in Section 438 to debar such person from applying for anticipatory bail in case of
| | | | | | | | |

appreh ended commitment under custody. On such an application the High Court or Court of | | | |

Session ma y pass an order under Section 438 directing the committing magistrate not to
| | |

commit the person in custody to the Court of Session.

| | |s |

In this connection the Supreme Court has observed:

| |s |

“…In regard to anticipatory bail, if the proposed accusation appears to stem not from motives
of furthering the ends of justice but from some ulterior motive, the object being to injure and
humiliate the applicant by having him arrested, a direction for the release of the applicant on
bail in the event of his arrest would generally be made. On other hand, if it appears likely,
considering the antecedents of the applicant, that taking advantage of the order of anticipatory
bail he will flee from justice, such an order would not be made. But the converse of these
propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule
that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated
by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the
applicant will abscond. There are several other considerations, too numerous to enumerate, the
combined effect of which must weigh with the Court while granting or rejecting anticipatory
bail. The nature and seriousness of the proposed charges, the context of the events likely to lead
to the making of the charges, a reasonable possibility of the applicant's presence not being
secured at the trial, a reasonable apprehension that witnesses will be tampered with and ‘the
larger interests of the public or the State’ are some of the considerations which the Court has to
keep in mind while deciding an application for anticipatory bail.”88

88
State v. Captain Jagjit Singh, 1980 SCC(Cri) 465.
3.8 Refusal to Anticipatory Bail | |

3.8.1 Statutory Bar On Anticipatory Bail89

i. In case of offences under Terrorist and Disruptive Activities (Prevention) Act, 1985,
| | | | |

(TADA) Section 20(7) excludes the application of section 438, Cr PC In Kartar Singh v. State |

of Punjab,90 the Supreme Court upheld the validity of Section 20(7) of TADA and negative the | | | | |

contention that Section 20(7) of the act is violative of Article 21 of the Constitution.
| | | | | |

ii. Similarly, Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of | | | |

atrocities) Act, 1989, excludes the application of Section 438, Cr PC to any case involving the | | | | |

arrest of any p erson accused of an offence under the act.

| | | |s

3.8.2 Heinous Crimes

Heinous crimes are extremely wicked and deeply criminal. The punishment in such cases could
| | | | |

b e anything from imprisonment to the death penalty or life imprisonment or something much
|s |

less s erious depending on the law in the place where the crime was committed. And people | | | |

involving in such crimes completely deserve a harsh punishment. In such cases, Section 438 is | |

not applicable.

In Nadia Torrado Murder case, former Goa Tourism Minister Francisco Mickey Pacheco, who
| | |

was a very close friend of Nadia, was suspected to have attacked Nadia with a blunt weapon
| | | | | |

and that he then tried to destroy evidence. It also alleged that Pacheco had given Nadia's family
| | | | | | | |

close t o Rs 35 lakhs to ensure they protect him.

| |

Nadia died in a Chennai hospital where she had been moved after she allegedly drank rat poison.91
| |
s
|

Her family offered the baffling explanation, one backed by Pachecho, that Nadia died because
| | | |

sh e mistakenly used rat poison instead of toothpaste. | | |

Police have charged Pacheco with culpable homicide while Monteiro has been accused of destr |

oying evidence. The Goa bench of the Bombay High Court rejected the anticipatory bail plea of | | |

Pacheco. The Bombay High Court, while rejecting the bail plea, had said the offence was of se | | | | |

rious nature and custodial interrogation was required in the case92

| | | | |

89
R.V. Kelkar, Criminal Procedure, 5th Ed, Eastern Book Company, Lucknow, 2008.
| | | |

90
Kartar Singh v. State of Punjab 1994 Cri.L.J. 3139 (SC). |

91
http://www.ndtv.com/news/india/nadia-torrado-case-did-goa-ex-minister-pacheco-bribe-her-family-
30786.php , Last accessed 9 October,2018.
| | |

92
Retrieved from http://www.hindustantimes.com/Pacheco-s-anticipatory-bail-plea-
rejected/Article14.aspx, last accessed on 28th August, 2018. |
Observing that the accused had the propensity to influence the trial, the Supreme Court dismiss
| | |

ed the anticipatory bail plea of Pacheco. A bench of Justices RM Lodha and AK Patnaik rejecte
| | | | | |s

d the plea of the former minister that he was not involved in the murder even though he had a re
| | | | |

lationship with the deceased Nadia Torrado.

3.8.3 Gang Rape Cases

In a case where Vinamra Soni and five others had been accused of gang raping a 23-year-
| | | | | |s |

old US national pursuing a gender and development course at Tata Institute of Social Science
| | | | |s |s

(TI SS). Rejecting the anticipatory bail plea of Soni, the court said that foreign students come
| | | | |

to the c ountry for education and this case has set a bad example at international level.
| |s | | |

Additional Sessions Judge K P Joshi, Mumbai stated, ‘The nature and gravity of the offence
| |s | |s

and it s impact on society is high. The accused outraged the modesty of a woman and was
| | | | |

involved in a heinous crime of gang raping her. Bail in such case is completly unacceptable.’ 93
| | | | | | |

3.8.4 Dowry Death Cases

In yet another case, the petitioner had moved the plea for anticipatory bail after his wife, Mita
| | |

Cho udhury, died of burn injuries at Purba Bhaina in Nadia at her in-
| | | | |

laws place. Her husband was away for work in Dubai at the time. According to sources, Mita
| | | | | | |

had gone to attend a function and returned home late, following which an altercation broke out
| | | | | |

with he r mother-in-law.
|

The next day, neighbours noticed smoke billowing out of Mita’s kitchen and rushed over. They
| | | | |

fo und her in flames and took her to a hospital where she succumbed to her injuries.
| |

It was learnt that when the couple had married, a sum Rs 60,000 and ornaments were given as | | | |

do wry. Later Mita was allegedly tortured, for a further amount of Rs 30,000 was demanded. |

The anticipatory bail plea was rejected by the Division Bench of Mr Justice Asim Banerjee and
| | |s | | | |

M r Justice Raghunath Roy of Calcutta High Court today.94

| | |

93
Retrieved from http://www.indianexpress.com/news/anticipatory-bail-denied-to-
accused/449714/, last accessed on 28th September, 2018.
|y | |

94
Retrieved from http://www.thestatesman.net/index.php?option=com_content&view=article&showtime-
archive&id=339207&catid=72&year=2010&month=8&day=26&Itemid=66, last accessed on 2nd October, 2018. | | | |
3.8.5 Foreign Exchange Regulation Act, 1973 (FERA) Cases
95
In
Harshad S. Mehta v. Union of
| , the fact that the petitioner had been in custody since 4-
| |

India
6-
1992 at the behest of the CBI, that some information in relation to the FERA violations had
| |

come t o light as a result of the CBI interrogation and that that he was ready to subject himself
| | | | | |

to a custod y less interrogation by the Enforcement Directorate Officers, had to be weighed

|s | |

against the requir ements of the FERA authorities to interrogate and effectively do so a
| | |

complicated and complex w eb of offences falling under the FERA. As, always it was the
| | | |

public interest which should prevail and the request for anticipatory bail by the petitioner had to
| |

| | | |

be turned down.96

95
Harshad S. Mehta v. Union of India 1992 CriLJ 4032rd |
96
Batuk Lal The Code of Criminal Procedure, 1973, 3 Ed., Orient Publishing Company, Delhi, 2006.
| | | | | |
CHAPTER IV

EVALUATION OF THE LAW OF BAILS

4.1 The Practice |

The law governing bail in India is inadequate uncertain and above the ground. The working of | | | |

the system is also unsatisfactory. The administration of criminal justice has recognised that a | | | | | |

bail deci sion is a recurring one which takes place through a number of distinct stages. It also
| | | | | | | |

recognises tha t pre-

trial releases by the police on bail are within the purview of the bail system. Further bail can be | |s |s |

gr anted before the accused makes an appearance before the court or before the verdict of the
| | | |

trial is passed and even after he has been declared guilty and convicted in order to enable him to
| | | | | | | | |

avail the appeal process.

The practice of releasing on bail has assumed the form wherein an accused enters into a bond | | | |s |

spec ifying a sum of money which he is liable to forfeit if he fails to perform any of the
| | | | | |

obligations imp osed on him by the court. Generally, the stipulated guarantee in terms of | | |

money in a bond is not d eposited in cash in a court, though the practice to do so in the case of a
| | | | | | | | |s |

police bail may be a valid o ne. |

In addition to the bond, the release condition on bail may require a surety (or sureties), who has
| | |s | | |

al so to bind himself to pay a specified sum of money in the event of the failure of an accused to
| | | | | |

appe ar before the police or the court on the appointed day. In the common law, a surety was | | |

essential t o bailout a person, which was later dispensed with. However, the Code of Criminal |

Procedure ne ver spelled out the requirement of a surety as a pre- | |

condition for release on bail though in practice the courts grant bail only on the accused’s
| | | | | | |

furnishi ng a bond with a surety. | | |

Predominant mindset of Judges: It is generally seen that while hearing a bail petition in the | |

sessio ns court, the judges instead of going into the merits of the bail petition decides the matter
| |s | | | | |s | |

on his w hims and fancies. Some of them act very strict in granting bail whereas others are very
| | | | | | | | |

lenient in g ranting the same. Hence, the purpose of the bail provisions is failed in the spirit of
| | | | | | | |

its application.
4.2 Confusions and Convolutions |

Law does not define the nature and extent of the conditions which may be imposed by courts on
| | | | | | |

gr ant of bail. In re Kota Appalakonda it has been pointed out that a person accused of a bailable
| | | | |

offe nce shall be granted bail with no conditions except those sanctioned by law.97 The |

condition presc ribed under the law is the preparedness of an accused to give bail. A person is | | |

entitled for his relea se on his readiness to offer bail on bond which he can only miss if he is
| | | | | |

unwilling or unable to offe r bail or lacks the capacity to execute bail bonds and pay the fixed | | | | |

amount.’ The bail amounts oug ht not to be excessive and the demand for verification of surety
| | | | |

not unreasonable.98 The amount ca

n be changed with change in circumstances. Condition may be imposed on the accused about
| | | | | | | | |

his attendance in the court on a fixed date and place. A condition requiring daily attendance in
| | |s | | | |

the co urt is, however, illegal.99

|

A condition imposed must have a bearing with the nature or purpose of the bail, which for all | | | | | |

prac tical purposes is a process of the system of criminal justice besides being a mode to secure | | | | | |

the acc used’s freedom. Thus, an order that the accused would appear on the requisition by the | | | |

police whe n needed is a competent order, or a direction to attend to investigation when needed
| | | | |

is valid.
|

The courts have been putting unwarranted restrictions on the freedom of an accused even after | | | |s | |

he had fulfilled lawful conditions for securing his release on bail. In Narendra Lal v. | |

Emperor.100 Th e court held that conditions could be imposed to keep an accused within the | | | |

confines of his own h ouse and also to prevent him from communicating with anyone
| | | | |

associating in crime. Similarly in Jogtekar v. Emperor101 a condition was imposed, on an

|
| | | |

accused under section 121-

A of IPC that he would not take part in any demonstration or agitation of any kind, nor would
| | | | | |

he d eliver any public speech or address the press while on bail. It was held that the order was a | | | | |s | |

valid o ne. In the context of article 19 of the Constitution of India, the exercise of judicial
| | | | | | |

power to impos e conditions as stated above ought not be deemed valid since such actions | | | | | |

collide, with one or the other freedoms guaranteed to an individual under the Constitution, But
| | | |

it is doubtful whether such conditions can be raised as unconstitutional and invalidated in view | | | | | |

of the Supreme Court decisio

| |

102
n in Naresti Mirajkar v. State of
| From this, it is apparent that the bail order with
| | | |

Maharastura
conditions, even though it may be an unreasonable restriction on the person’s fundamental rights,
| | | | |

97
Re Kota Appacakonda, 44 CLLJ 202 (1943).
| | |

98
Moti Ram v. State of M P, AIR 1978 SC | |y |
1595. 99 B. L. Joshi v. State, AIR 1954 Sau. 109.
|

100
Narendra Lal v. Emperor.ILR 36 Cal. 166, (1908).
| |

101
Jogtekar v. Emperor AIR 1931 All. 504.
|y

102
Naresti Mirajkar v. State of Maharastura AIR 2017 SC 100.
| | |
would remain invulnerable and the conditions valid. In order to strengthen the bail system, the
| | | | |

law requires that courts be vested with such discretion as may call for the use of such conditions
| | | | | | |

as ma y promote the policy and purpose of bail m ensuring the accused’s attendance before the | | | | | |

court whi le on release and also that his behaviour during the period of release conforms to such
| | |

norms as m ay not cause prejudice in the minds of the court and the community that his freedom
| | | | | | | | |

s on bail may j eopardise the criminal process with a view to frustrating the interests of justice.
| | | | | |

The limited discre tion thus vested may be helpful in tailoring a bail order to the requirements | | | | | | | |

of a particular case and to a particular accused.

| |

Another issue which has prompted up in the granting of bail is the doctrine of presumption of | | | | |

inno cence, which is sometimes taken as a plea foe dissuading the courts to exercise their | | | | |

discretion ag ainst the accused. An accused is presumed innocent until it is proved to be the
| | | |

contrary. Thus, a re fusal to bail can result in injustice to him and the said principle. The present | | | |

law is uncertain as to how far the bail process does affect the presumption of innocence. In | | |

practice, the use of the doctri ne has been seldom made and whenever the plea is forwarded, the | | | |

courts bypass it on being satisfi ed that the proof of guilt in police possession outweighs the
| | | | | | |

claim of the presumption. | |

4.3. Ground Realities

The practice that invariably seems to operate in the enforcement of criminal law is to arrest a | | | | | | | | |

pers on accused of a crime. The person is then taken to the police station. Thus apprehended, he
| | | | | |

is eithe r released on bail or is detained in the police lock-

| | | | |

up pending his production before the court. Use of discretion by the police to grant or refuse
| | | | | | |

bail a rises at this stage.

| |

The question of granting of bail in bailable offences is considered and taken up as a matter of
|s | | | | | | | |s

right for the arrested person. It is granted by the police officer at the police station in petty | |

matters invo lving persons who arc otherwise not known as anti-socials- | |s |

The known bad characters are detained awaiting some more investigation. The practice is,
| | | | |

howev er, marked with certain inefficient and dishonest features, in as much as the discretion is | | | |

effected t o yield expeditious | results at | the instance and | pressure of | influential

recommendations or through some settlement of pecuniary gains transacted between the agents | | | | | |

of the parties concerned.

In case of offences alleged to be of a non-

| | | |

bailable nature, the practice is to detain the arrested person in the lock- | | | |

up for an unduly long period for standing his trial. No formal case is registered. The arrested perso
| | | | |
n is also not produced before the court on the expiry of twenty-
| | | | |

four hours after his arrest. In such cases, the arrest is not entered into the formal records
| |s | | |

although s ome paper work is shown to be done. The police is callous in applying the judicial | | | | | | | |

mind while issu ing the warrant for arrests under warrant In cases where the antecedents of a | |

person are known to t he police and the police can safely assume that the presence of the person | | |

when required would no t create much difficulty, the perfunctory practice of arresting a person
| |

on mere accusation obvious ly abuses the very process. The police should exercise the power to |s |

arrest and bail out only after s ome investigation has been carried out. | |

The frequent adjournment of cases in criminal courts is also a factor to be reckoned with to
| | | | | | | |

assess the efficacy of the system of release on bail. The delayed disposal of criminal cases | | | | | | |

together with t he fact that the accused person had been enlarged on bail affords opportunity to | | | |

an accused to appr oach and influence witnesses and also to exploit the gains of dismal memory
| | | | | | |s |

of the events narrate d by a witness after a long lapse of time. This adversely affects the
|s | | | | |

administration of criminal law and justice. A prolonged release on bail of an accused person
| | | | | | | |

caused by successive adjournments of trial has the potential of reducing even the chances of the
| | | | | | | | | |

accused appearing in the court to recei ve his conviction, if found guilty.

| |

There is a complete absence of any standard to determine the amount of bail. The amount
| | | | |s

required to be furnished in a case is mostly determined arbitrarily. No consideration is ever

| | |

given to the pe rsonality of the accused or to his financial ability. No standards are followed to
| | | | |

ascertain the integ rity and capacity of the sureties as well.

| | | | |

The existence of professional sureties in the system of bail, within the knowledge of the | | | | | | | |

magistrac y, the lawyers and the police is an anomaly in the system. Bonds are accepted from
| | |

them as suretie s for those who are unknown to them personally. These bailsmen have come to
| | | | | | | | |

stay as an integral part of the system in subordinate courts and identifiable lawyers trade with | | | | | |

them in the release of t he arrested persons from custody. No system of verifying the character
| | | | |s |

or status of the person stan ding as surety or his property exists in the records of the courts. The
| | | |s

capacity, antecedents and cha racter of the sureties are seldom questioned during the | | | | |

proceedings. There have also not been pros ecutions for perjury or furnishing false bail bonds. | |

The law on bail as legislatively enacted is poorly drafted as the classification of offences as
| | | | |

bailab le and non-bailable hardly indicates any rationale. The inter-

changeable forms and modes of release like surety, security bond and bail prescribed under the Co | | | |
de serve an identical purpose. The various forms for the same mode of release make most of
| | | | | | |s

them repetitive and redundant except that their retention in the Code without declaring the
| | | | | |

specific purp ose and scope helps confusion worse confounded.

| | | |

In sum, the confusion in the concept of bail and also in the working of the the bail system is
| | | |

largel y the result of a basic misunderstanding of the concept and the lack of its proper
| | | | | | | | |

formulation unde r the code. A new law on the subject alone can rectify the errors. However, a
| | |s | |

proper functioning of the bail process in our legal system should guarantee the existence of
| | | | | |

changed social facts, which may be prerequisites for a successful functioning of the bail
| | |

system.
 CHAPTER V

CONCLUSION AND SUGGESTIONS

5.1 Conclusion

It is indisputable that an unnecessarily prolonged detention in prison of under trials before | | |s

being b rought to trial is an affront to all civilized norms of human liberty and any meaningful | | | | |

concept of i ndividual liberty which forms the bedrock of a civilized legal system must view
| | | | | |

with distress pate ntly long periods of imprisonment before persons awaiting trial can receive
| | | |

the attention of the ad ministration of justice. Thus the law of anticipatory must continue to
| |

allow for sufficient discretio n, in all cases, to prevent a miscarriage of justice and to give way | | | | |

to the humanization of criminal j ustice system. The object and purpose of bail have always
| | | | | | |

been intelligible in the criminal law juri sprudence. The perspectives are at times lost and the
| | | |

bail process has either been used to give an o ver-| |

emphasis either to the liberty of the individual or to the security of the state. The mal | | | | |

functioning o f the administrative machinery and its loose control over the law-
| |

enforcement agencies have brought to the fore instances where judicial action to protect
| | | | | |

personal l iberty in the wake of the growing awareness of human rights has hardly been a
| | | | | | | | |

redeeming feature. This approach has resulted in some Imbalances in the mechanism, system |s | | |

and process of bail whi ch is a vital component of the machinery geared to serve the ends of
| |s | | | | | |s

criminal justice. This perspec tive has to remain constantly in view while understanding the
| | | |

working of the bail system. | |

The law on bail as legislatively enacted is poorly drafted, leaving broadly the system to be
| | | |

build b y the enforcement agencies themselves, which they have been doing till date. The
| | | |

preceding page s have brought to the fore criss- |

cross of confusion that pervades the jurisprudence of bail. The classification of offences as
| | | | | | |

bailabl e and non-bailable hardly indicates any rationale. The inter-

|

changeable forms and modes of release like surety, security, bond and bail prescribed under the | | | | | |

C ode serve an identical purpose. The various forms for the same mode of release make most
| | | |s

of the m repetitive and redundant except that their retention in the Code without declaring the
|s | | | | | | | |

specific p urpose and scope aggravates confusion. | |

The provision of anticipatory bail fulfils the spirit of unhindered liberty of a person, but the power of
| | | | | | |

antic ipatory bail has to be exercised cautiously and only in exceptional cases, that is, where the Courts
| | | |s |s | | | | | |

strongly feel that the applicant is being framed in the charge, and not otherwise. An indirect use of the
| | | | | | | | | |

power to gra |
nt bail would be an abuse of the judicial process and would shake the confidence of the general public
| | | |s |s | |

in t he judiciary. No hard and fast rule should be laid down in discretionary matters like the grant or
| |s | | | |s | |

refusal, n or can there be inflexible principle governing the exercise or discretion except that discretion
| | | | |

should be ex ercised judiciously having regard to peculiar facts and circumstances of each case.
| |s | |

More so, the actual practice regarding the granting of bail in the courts must be adhered to
| | | | |

rational e and the merits of each case, rather than on preconceived and predominant notions in
| | | | | | | |

the minds o f the judges. The spawns from the fact that the principle of presumption of
| | | | | |

innocence must be adh ered to. | |

In sum, the confusion in the concept of bail and also in the working of the bail system is largely
| | | | | | | | |

th e result of a basic misunderstanding of the concept and the lack of its proper formulation
| | | | |

under the code. A new law on the subject alone can rectify the errors. However, a proper
| |

functioning of the bail process in our legal system should guarantee the existence of changed
| | | | |s | | |s |

social facts, which may be prerequisites for a successful functioning of the bail system.
| | | | |

5.2 Suggestions

Reform of the existing bail law would require enactment of a comprehensive code to replace the
existing law on the subject, the proposed code must reflect the basic philosophy, utility and
guidance for grant and refusal of bail. In view of the emergence of certain issues under the
human rights jurisprudence, specific mention of arrangements has become necessary about
dealing the cases of minors, lunatic, and those detained for preventive purposes under the
speciallaws. The reformation of bail law must, therefore replace the vagueness and uncertainity |s | | |

b y clarity and coherence. Matters relating to jurisdiction, the successive stages necessary for
| | |

availi ng of the freedom on bail, the extent and the power of various courts in their hierarchical
| | | | | |s | |

order to grant, refuse or cancel bail, the discretion to grant bail and prescribing the prohibitions | | | |

in cases w here bail ought not to be granted, must be well comprehended under the scheme.
| | | | |

Bail may be appropriately viewed as presumption which seeks to favour the release of an
| | | | | |

arrested person. Consequently, this would require the defendant to rebut theprosecution | |

presumption that he may be failing to appear before the court on the appointed day or that he
| | | | |

would commit an offe nce or obstruct the course of justice by interfering with the witness or
| | | | |

tampering with the evidence

. Any, presumption in favour of bail would, however, terminate upon conviction of the accused.
| | | |s | |
Courts should be empowered to impose reasonable conditions but these may not be statutorily
| | |

list ed. However, it can be provided that the conditions must have a bearing to the object and
| | | | | |

the purp ose of bail, viz., ensuring the presence of the accused on the appointed day and that he
| | | | | | | | |

does not ob struct the course of justice.

The procedure for bail hearing needs a special treatment. The courts may be empowered to | | |

condu ct any bail hearing in private. It may also be empowered to receive such information or
| | | | | |

material as may be relevant despite the question of its admissibility under the rules of evidence.
| | | | |s

The law relating to sureties must take into account the capacity, integrity and the proximity of
| | | | |

the surety (in relation to kinship, place of residence or work) as well as his suitability in terms
| | | | | | | |

of mora l worthiness. In case of individual sureties, a procedure for verification of the

| | | |

antecedents, capacit y and suitability shall have to be provided for. This can be a check on the | | | | |s

growth of a clandestine c hannel of professional sureties.

| | |

In sum, the reformation of bail law is not a mere revision of the law. It is a prelude to any
| | | | | | | | | | | |

commit ment to reform the administrator of criminal justice. The law of bails contained in the
| | |

Code remai ns clouded in the sundry legislative provisions as well as in the plethora of judicial
| | | | | |

precedents. Th e law lacks cogency in its understanding and application. Thence, it needs a
| | | | |

meticulous overhaul f or the system to work and balance the interests of both the detained | | | | | |

person and the society.

|
 BIBLIOGRAPHY

Books And Articles

|

1. Banerjea, D, Criminal Justice And Supreme Court, 1st Edition, 2005 Rustom Kawasha Sunavala, A T
|

reatise on the Law of Bails, 1st Edition

2. Kelkar, R.V., Criminal Procedure, 5th Ed, Eastern Book Company, Lucknow, 2008.
|

3. Lal, Batuk, The Code of Criminal Procedure, 1973, 3rd Ed., Orient Publishing Company, Delhi,
2006
.
4. Mahapatra Dhananjay, ‘Anticipatory Bail Law Most Misused: SC’, The Times of India, Patna-
Ranchi

5. Malik, Shailender, The Code of Criminal Procedure, 11th Ed., Allahabad Law Agency, Faridabad,
2011

6. National, 10 June 2008,

7. Ranchhoddas, Ratanlal, Dhirajlal, The Code of Criminal Procedure, 30th Ed., Lexis Nexis
Butterworths Wadhwa, Delhi, 2007.

8. Wani, Afzal, Right to Bail, Indian Law Institute, New Delhi, 2000 M. R. Mallick, Bail- Law and
Practice, 3rd edition, Eastern Law House, 1999

Web Sources

1. http://www.hindu.com/2008/01/31/stories/2008013159450600.htm

2. http://www.hindustantimes.com/Pacheco-s-anticipatory-bail-plea-rejected/Article1-565757.aspx

3. http://www.indianexpress.com/news/anticipatory-bail-denied-to-accused/449714/

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4. http://www.ndtv.com/news/india/nadia-torrado-case-did-goa-ex-minister-pacheco-bribe-her-
family-30786.php

5. http://www.thestatesman.net/index.php?option=com_content&view=article&show=archive&id=33
9207&catid=72&year=2010&month=8&day=26&Itemid=66.

Statutes Referred

1. The Code of Criminal Procedure, 1973

2. Indian Penal Code, 1860
3. The Constitution of India, 1950

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