Bail Laws in India

Bail Laws in India

Just because a person is accused of an offence, it is not expected to keep the person in custody for an endless period i.e. end of the trail, when most of the cases end in acquittal.

And since the accused is presumed to be innocent unless proved guilty beyond reasonable doubt, it is against the Constitutional right to life and personal liberty as enshrined in Article 21 of the constitution of India to keep an accused in custody for endless period.

In Babua @ Tazmul Hossain V. State of Orissa, Hon’ble Supreme Court of India has held that:-

“It is well settled that pre-trail detention is not to be restored to as a measure of punishment. The mere fact that the case prime facie involves a serious crime is not by itself conclusive.

Deprivation of liberty by refusing to grant bail is not as a measure of punishment or for the punitive purpose, but for the interests of justice to the individual concerned and to the society affected.”

Also when Bail is a rule and jail as an exception, the accused should be given the benefit of bail to properly defend his case, unless the courts have a reason to believe that the accused will not stand at his trail or it is not in the interest of the society to grant bail as such.

What is Bail?

Release of an accused person, on his furnishing a personal bond or surety to abide by the conditions imposed by the court and stand his trail before the court.

Objective

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.

Accused fundamental right to life and personal liberty is not violated and he should get to defend his case properly while he is on bail.

“Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.”

Two Types of Offences

Bailable Offences

The Code of Criminal Procedure Code, 1973 defines the offences as bailable in the First Schedule or made bailable by any other law.

Bailable offences are one, in which the Bail is granted as a matter of right on accused furnishing personal bond or surety.  

Non-Bailable Offences

Offences other than bailable are considered to be non-bailable, and bail in non- bailable offences is not granted as a matter of right, rather as a judicial discretion of the court.

The Indian Penal Code, 1960 offences are specifically shown to be bailable or non-bailable in Part I of Schedule I of the Code of Criminal Procedure, 1973.

Can a person accused of a non-bailable offences, apply for a pre-arrest bail?

Yes, a person accused of a non-bailable offences can apply for a pre-arrest bail or anticipatory bail.

Section 438 of The Code Criminal Procedure Act,1973 grants the power to an accused person to apply for Anticipatory Bail before the Sessions Court or High Court.

Hon’ble Supreme Court in Gurbaksh Singh Sibbia Etc vs State Of Punjab on 9 April, 1980, for the first time clarified the law relating to Anticipatory Bail:-

  1. The power provided under Section 438 though of ‘extraordinary character’ does not justify its use in exceptional cases. Due care, caution and circumspection must be used while exercising such powers.
  2. The applicant applying for Anticipatory Bail must satisfy that he has “reason to believe” that he may be arrested for a non-bailable offence.
  3. Filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.However, anticipatory bail can be filed even after the FIR, so long as the applicant has not been arrested.
  4. “Blanket order” like “whenever arrested for which ever offence whatsoever” of anticipatory bail should not generally be passed.
  5. The operation of an order passed under section 438(1) need not necessarily be limited in point of time. However, the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order.
  6. The courts can impose reasonable conditions while granting anticipatory bail order to keep a balance between the personal/individual right and investigational powers of the Police/ Society Interest.
  7. The courts can take sufficient surety to their satisfaction to ensure that the accused will not violate the conditions imposed or will not be available to stand his trail.
  8. The Courts task while deciding an application for Anticipatory Bail must be to balance personal liberty of an accused and investigational powers of the police.

Can Anticipatory Bail be Granted for Unlimited Period?

Hon’ble Supreme Court in Sushila Aggarwal vs State (Nct Of Delhi) on 29 January, 2020 has held that:-

The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial.

The life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial.

Factors in Grant of Anticipatory Bail

Nature and gravity of allegations;

Genuineness of accusations made against the accused;

Prima facie or reasonable ground to believe that the accused had committed the offence; ;

Chances of the accused absconding from the processes of law or whether the accused has roots in the society;

Antecedents of accused i.e. whether habitual offender;

Chances of the accused creating hurdles in the fair investigation or the trial;

Chance of complainant/witnesses being threatened or evidence tampered;

Case required custodial interrogation;

Another fact about likelihood of the offence being repeated;

Analyzing objectively whether the accused had joined and co-operated with the investigation

What is ‘Co-operation’ in Investigation? 

Hon’ble Supreme Court in Santosh v. State of Maharashtra, (2017) 9 SCC 714 has held that:-

Merely because the accused does not confess as the police wants him to, it cannot be said that he is not co-operating with the investigation.

Also in Samrat Singh Nirula & Ors. v. State of NCT of Delhi, 2015 SCC OnLine Del 9486

It is settled law that the Court can draw an adverse inference against the accused but the Police cannot compel answers by custodial interrogation.

No doubt that the police have the powers to investigate the matters as per their way as per law but it does not mean that the police will exercise power just because there are allegations in the complaint by the complainant.

The custodial interrogation is a euphemism for torture.

While considering the application for anticipatory bail, the Court has to keep all these facts in its mind, especially in the cases of commercial type disputes and of civil nature.

Accused Rights after arrest in Non-Bailable Offence?

After an accused in arrested in a non-bailable offence, he can file for a regular bail under section 437 or section 439 of The Code of Criminal Code, 1973.

Factors for Grant or Refusal of Bail

Hon’ble Supreme in Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, and In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, culled following principles must be considered while granting or declining bail,

  1. Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
  2. Nature and gravity of the charge;
  3. Severity of the punishment in the event of conviction;
  4. Danger of the accused absconding or fleeing, if released on bail;
  5. Character, behaviour, means, position and standing of the accused;
  6. Likelihood of the offence being repeated;
  7. Reasonable apprehension of the witnesses being tampered with; and
  8. Danger, of course, of justice being thwarted by grant of bail

No Trail Before Trail

In P. Chidambaram vs Directorate Of Enforcement on 4 December, 2019 Hon’ble Supreme Court held that:-

“At the stage of granting bail, an elaborate examination of evidence and detailed reasons touching upon the merit of the case, which may prejudice the accused, should be avoided.”

At the stage of bail application, the courts are generally expected to look into “reasonable grounds for believing” instead of “the evidence”

It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

Nature and Gravity of Offence

In P. Chidambaram vs Directorate Of Enforcement on 4 December, 2019 Hon’ble Supreme Court held that:-

Merely because the accusations relates to grave and heinous crime like the one of grave economic offence, the bail should not be denied, if other factors favor the accused.

Economic offences would fall under the category of “grave offence” and the nature of allegation made against the accused is to be considered while granting bail along with the term of sentence prescribed for the offence alleged.

Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.”

What after first bail application is dismissed?

If the first bail application is dismissed by Magistrate Court or Sessions Court, the accused can file challenge dismissal order before the Sessions Court or High Court i.e. accused can challenge the order before the next superior court in hierarchy.

However, if the accused wishes to apply bail before the same court who dismissed the previous bail application, the accused has to show fresh grounds (based on material change of circumstances) which persuaded it to take a view different from the one taken in the earlier applications.

Hon’ble Supreme Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav  (2004) 7 SCC 528 held that:-

Court entertaining subsequent bail application has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases the court also has a duty to record what are the fresh grounds (based on material change of circumstances) which persuaded it to take a view different from the one taken in the earlier applications.

Forum Shopping: Decryable in law

M/S Gati Limited vs T. Nagarajan Piramiajee on 6 May, 2019, Hon’ble Supreme Court has held that:-

“Successive bail applications should be placed before the same Judge who had refused bail in the first instance, unless that Judge is not available.

Otherwise a party aggrieved by an order passed by one bench of the High Court would be tempted to attempt to get the matter reopened before another bench, and there would not be any end to such attempts.

Besides, it was not consistent with the judicial discipline which must be maintained by courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary.

The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum_shopping, which is decryable in law.”

What if the chargesheet is not filed within a specified period?

Thought the investigation agency is not bound to complete the investigation within a limited period of time, but if the accused is in custody and no chargesheet has been filed within a period of 60 or 90 days, the accused can take the benefit of Default Bail or Statutory Bail under Proviso to Section 167(2) of The Code of Criminal Procedure,1973.

Hon’ble Supreme Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 has held that:-

“Immediately on the completion of 60 days (where the offence is punishable with less than 10 years) or 90 days (where the offence is punishable with not less than 10 years), if no chargesheet is filed the accused can take the benefit of default bail by furnishing a surety.

No formal application for default bail is required as such.”

Conclusion

Thought bail is a rule and jail is an exception, but the Hon’ble Court dealing with the bail applications has to keep a check balance between individual constitutional rights of the accused with the society interest keeping in mind that neither accused right to properly defend his case nor prosecution right to present its case, should suffer at the hands of each other . 

Kapil Chandna Advocate

Practicing Advocate at Supreme Court of India

9899011450,9911218741

Supreme Court : Bail in Times’ of COVID-19

Supreme Court : Bail in Times’ of COVID-19

Since the Jail in India are congested and over crowded , Hon’ble Supreme Court of India held that social distancing is not possible if jails remain overcrowded, making it difficult to for maintaining social distancing.

Taking note of the above-mentioned fact, Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 1/2020, In Re: Contagion of COVID-19 Virus in Prisons, on 23rd March 2020 directed all the states and Union Territory to constitute a High- Powered Committee for release of prisoners on Parole or Interim Bail.

“We, therefore, direct that each state shall & union territories to constitute a high-level committee comprising of home secretary and chairman, State Legal Service Authority to determine a class of prisoners, who can be released on parole for four to six weeks or on interim bail,”

While directing the States & Union Territories, Hon’ble Supreme Court also suggested the states and union territories can consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

Interim Bail Granted By Supreme Court

Hon’ble Supreme Court granted an interim bail for a period of two months saying that:-

“We desire to release the petitioner on bail only on the aforementioned ground for a temporary period of two months so as to enable the petitioner to take treatment properly. We make it clear that we have not considered the matter on merits,” the bench said in its May 15 order after hearing the case through a video link.

“After two months he should surrender before the jail authorities,”.

Supreme Court Default Bail in COVID-19?

The extended period of limitation as per order dt. 23.03.2020 in Re: Cognizance for Extension of Limitation will not be applied in the context of Default Bail.

Delhi High Court High-Powered Committee

Based on Supreme Court directions, Hon’ble Delhi High Court High-Powered Committee in its report dated 8th May 2020 directed that 2177 prisnors already released on interim bail or parole be further extended for 45 days, observing that prisoners falling in following criteria may now be considered for grant of interim bail for 45 days in view of the circumstances in which we are in, preferably on ‘Personal Bond’ :

(i) Under trial prisoners facing trial for a case under Section 302 IPC and are in jail for more than two years with no involvement in any other case;

(ii) Under trial prisoners facing trial for offence under Section 304 IPC and are in jail for more than one year with no involvement in any other case;
(iii) Under trial prisoners facing trial in a case under Section 307 or 308 IPC and are in jail for more than six months with no involvement in any other case;

(iv) Under trial prisoners facing trial/remand prisoners in Theft cases and are in jail for more than 15 days;

(v) Male Under trial prisoners (above 65 years of age) facing trial in a case except the ones excluded hereunder and are in jail for more than six months with no involvement in any other case;

(vi) Female Under trial prisoners (above 60 years of age) facing trial in a case except the ones excluded hereunder and are in jail for more than six months with no involvement in any other case;

However, It has further been resolved that following category of Under Trial Prisnors, even if falling in the above criterion or the criteria adopted in the earlier Meetings, should not be considered :-

(i) Those inmates who are undergoing trial for intermediary/ large quantity recovery under NDPS Act ;

(ii) Those under trial prisoners who are facing trial under Section 4 & 6 of POCSO Act;

(iii) Those under trial prisoners who are facing trial for offences under section 376, 376A, 376B, 376C, 376D and 376E and Acid Attack;

(iv) Those Under Trail Prisnors who are foreign nationals ;

(v) Those under trial prisoners who are facing trial under Prevention of Corruption Act (PC Act) / PMLA, MCOCA ;

(vi) Cases investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc.

Signed Vakalatnama in the time of COVID-19?

Hon’ble Delhi High Court in Hansraj & Ors. V. State (WP (Crl) 804/2020, has held that:-

“In consideration of the lockdown, there will be no insistence on filing of signed/attested vakalatnama, affidavits, or applications where the applicant is in jail and/or his family members reside outside Delhi since bail is moved for the benefit of a person who is in jail.

Maharashtra High-Powered Committee

Decided to grant temporary bail or parole to 50% of prisoners in prisons across the state during the coronavirus outbreak.

However, the committee clarified that prisoners charged or convicted under provisions of special laws will not be granted temporary bail.

These include the Maharashtra Control of Organised Crime Act (MCOCA), Prevention of Money Laundering Act (PMLA), Maharashtra Protection of Interest of Depositors Act (MPID), Unlawful Activist Prevention Act (UAPA), The Protection of Children from Sexual Offences (POCSO) and Narcotic Drugs and Psychotropic Substances Act (NDPS).

Uttar Pradesh High Committee

Decided that the interim bail or parole granted to 14,854 under trial prisoners, 2256 convicted prisoners and 492 Juveniles who were released until May 19,2020, be further extended for a period of 8 weeks.

“Under trail criminals facing criminal cases in which maximum sentence is 7 years may be released on 8 weeks, as the case may be on furnishing personal bond with an undertaking that written on personal bond itself that he/she shall surrender before the expiry of the interim bail. Other conditions may be imposed if the court thinks fit, considering the circumstances of the case”.

Haryana High Committee

Extended the period for another six weeks concluding that”…readmitting around 4,000 prisoners released on parole or interim bail back into the jails at this stage is a huge risk. It is likely to increase the risk of Covid infection to the existing inmates and will defeat the whole objective of releasing them on parole/interim bail,”

Conclusion

Most of the States have decided to release the persons accused or convicted of offenses with upto or less than 7 years, however, most of the states have excluded prisoners under special acts such as POCSO, PMLA, NDPS, MCOCA, UAPA, etc from consideration for release.

And Courts across the Country have included bail applications, in the category of “extremely urgent” or “urgent matters”, to be heard and decided even with the restricted functioning of the courts.

Kapil Chandna Advocate

Practicing at Supreme Court of India

9899011450,9911218741

Considerations’ for Regular Bail in Commercial Quantity: NDPS ACT

Considerations’ for Regular Bail in Commercial Quantity: NDPS ACT

The cardinal principle of presumption of innocane unless proved guilty or bail rule jail exception is not applicable to special Acts such as NDPS, MCOCA etc, because of the fact that the offences under those special acts are considered to be the gravest one and they shake the very conscience of the society at large.

Also keeping in mind the tendency or impact of the offences allegedly  committed under the NDPS ACT, 1985, the legislature in its wisdom had already inserted an inbuilt presumption of Culpable Mental State on accused persons i.e. the courts shall presume the existence of such mental state (Intention, Motive, Knowledge of a fact or reason to believe), but it shall be a defence for the accused to prove that he had no mental state with respect to the act charged.

The Narcotics Drugs and Psychotropic Substances Act (NDPS ACT) 1985 was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances.

NDPS Act categorizes the offences into three Categories:-

Small Quantity:-

As per section 37 of the NDPS Act, 1985 all the offences falling under the act are cognizable and non-bailable. Meaning thereby, if we go by section 37 of the NDPS Act,1985 even the matters pertaining to small quantity are non-bailable.

However if we go by schedule 2 of Cr.P.C 1973, which divides the offences punishable upto two years are bailable. There were instances where the special courts under NDPS Act,1985 even refused to admit persons arrested for small quantity on bail by referring to the aforesaid section 37 of the NDPS Act,1985.

Hon’ble Delhi High Court for the first time in Minnie Khadim Ali Kuhn vs State Nct Of Delhi & Ors. on 8 May, 2012 has held that the matter involving small quantity are bailable irrespective of the fact that it is mentioned in the NDPS ACT, 1985 that all offences are cognizable and non-bailable.

Intermediate Quantity (less than commercial)

For the offences falling under the intermediate or less than commercial quantity stringent provisions of section 37 are not attracted and the offences under the said category are governed by Section 437 of the Code of Criminal Procedure,1973 i.e. general principles for grant of bail as applied in other cognizable and non-bailable offences.

For the acts involving Intermediate quantity one can visit https://kapilchandna.legal/bail-laws-in-india/ and check for considerations and parameters for grant of bail in non-bailable offences.

Commercial Quantity

Commercial quantity offences are punishable with not less than 10 years and there is an embargo of Section 37 of the NDPS, 1985 in so far as the bail in commercial quantity is concerned.

As per section 37 of the NDPS ACT, 1985 bail should not be granted to an accused unless the accused is able to satisfy :-

A. Reasonable ground for believing that the accused is not guilty of such offence.

B. The additional burden on the accused that the accused will not likely to commit offence if he was granted bail.

To Satisfy the twin test of Section 37 of the NDPS, ACT, Hon’ble Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another: 2005 AIR SCW 2215 while considering the provisions of Section 21 of the Maharashtra Control of organized Crime Act, 1999 which are paramateria to Section 37 of the NDPS ACT, has laid down the approach to be adopted while deciding the bail application:-

Reasonable ground for believing that the accused is not guilty of such offence

“Section 21(4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohibited to enlarge him on bail. Each case, therefore, must be considered on its own facts.

The question as to whether he is involved in the commission of organized crime or abetment thereof must be judged objectively.

Only because some allegations have been made against a high ranking officer, which cannot be brushed aside, may not by itself be sufficient to continue to keep him behind the bars although on an objective consideration the court may come to the conclusion that the evidences against him are not such as would lead to his conviction.

In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the Court must also consider the question as to whether the circumstantial evidence is such whereby all the links in the chain are complete.

Accused likely to commit offence if he was granted bail

Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.

However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction.

The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.”

Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 Hon’ble Supreme Court has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT:

“The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.

It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.

But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”

Non-Compliance of Mandatory Provisions

Since the offences under NDPS Act are punishable with maximum imprisonments, the legislature to safeguard the rights of accused from being falsely implicated, has mandated the compliance of mandatory provisions i.e. Section 42 or Section 50 of the NDPS Act, failure of which will result in acquittal.

Hon’ble Supreme Court in Sarija Banu Alias Janarthani Alias Janani and Anr. v. State through inspector of police, criminal appeal No 302 of 2004, while granting regular bail had held that:-

There was a serious violation of Section 42 of The NDPS Act, 1985 and since Section 42 of The NDPS ACT, 1985 is a mandatory provision , the accused is granted regular bail.

Sudesh Singh@ Tandu v. State of Punjab, 2011(9) R.C.R. (Criminal) 922 Hon’ble Punjab & Haryana High has held that:-

As per the FIR, the mandatory provision of Section 50 were not    complied with and also there was no case pending against the petitioner.

Thus, the petitioner was granted regular bail.

5 Whether It Is To Be Circulated To … vs State Of Gujarat on 24 December, 2014, Hon’ble Gujrat High Court considering the factors favoring accused:-

1. There are material contradictions so far as,

(a) topography of house where raid was conducted,
(b) floor of the house, whether ground or first,
(c) ownership and possession of the house.

2. There was no proper warrant for seizure or raid.

3. Raid was conducted in breach of provisions of Section 42 i.e. after sunset.

4. Presence of accused was not confirmed at the place.

5. Some of the panch witness have turned hostile and one of them has stated that police has simply noted his name but his statement was not recorded by asking him the facts.

6. One of the witnesses categorically admits that contraband material was not seized before him and, that, accused was not arrested before him but police has told him to identify the accused and, therefore, he has identified the accused.

7. The owner of the premises or her son was not examined, since they would be the best person who can confirm that house was rented to appellant and hold by him only.

Accused unaware of Illegal Activities

Sujit Tiwari vs The State Of Gujarat on 28 January, 2020, Hon’ble Supreme Court has held that:-

“Without going into the merits, we feel that the case of the appellant herein is totally different from the other accused.

Reasonable possibility is there that he may be acquitted.

He has been behind bars since his arrest on 04.08.2017 i.e. for more than 2 years and he is a young man aged about 25 years.

He is a B.Tech Graduate.

Therefore, under facts and circumstances of this case we feel that this is a fit case where the appellant is entitled to bail because there is a possibility that he was unaware of the illegal activities of his brother and the other crew members.

Differences in Test Results

Ram Narayan vs State on 24 May, 2005 Hon’ble Delhi High Court :-

“I find that the differences in the test results of the samples taken from the very same packet cast doubts on the issue as to whether the case property is the same as what is alleged to have been recovered from the petitioner.

This is not a definite finding and that would come at the time of trial.

However, on the basis of the materials brought on record, there is every likelihood that the petitioner may not be convicted in this case.

It is further to be examined as to whether there is any likelihood of the petitioner committing any offence while on bail.

Mere Disclosure or confession by an accused in not sufficient without independent incriminating material found

Rajesh Sharma vs Directorate Of Revenue … on 16 November, 2018, Hon’ble Delhi High while granting regular bail has held that:-

“The prosecution did not find any incriminating independent material apart from incriminating statement of the co-accused as well as confession by the present petitioner.

Petitioner has also retracted the statements given by him and contended that force, coercion and third degree methods were used to extract the confession.

Further, there is nothing on record to show that the petitioner, was earlier involved in any similar offence or during the period that he was enlarged on bail, he was involved in any offence”.

Narotam Pradhan vs State Of Nct Of Delhi on 18 January, 2019, Hon’ble Delhi High while granting regular bail to accused has held that:-

“No recovery has been made from the petitioner.

Further even as per the prosecution the confessional/disclosure statement of either the petitioner or the co accused has not led to the recovery of any incriminating material.

Accordingly, at the present stage there are missing links between the petitioner and the commission of the subject offence”.

Dalip Singh @ Langda vs The State (Nct Of Delhi) on 14 January, 2019 Hon’ble Delhi High while grating regular bail has held that:-

“On perusal of the record, it is prima facie seen that there are two major missing links in the case of the prosecution.

There is no link established    by the prosecution between the petitioner with the alleged supplier Manoj.

Further the entire case of the prosecution, in so far as petitioner is concerned is circumstantial i.e. based solely on disclosure statement of a co-accused which is per se not admissible without there being any corroboration.

Prosecution has not been able to establish any connection between the subject offence and the bank accounts, where the petitioner is alleged to have been depositing money or with the holders of those accounts.

Merely because the petitioner has been having telephonic conversation with the co-accused, would not be sufficient to hold that petitioner is guilty of the subject offence. There is no recovery made from the petitioner.

I am of the view that requirement of Section 37 of the NDPS Act are satisfied. In so far as the petitioner is concerned, there are reasonable grounds to believe that petitioner is not guilty of the said offence.”

Rahul Gupta @ Roshan @ Khalla vs State on 5 July, 2019 Hon’ble Delhi High while granting regular bail to an accused has held that:-

“When there is no other material apart from confessional statement of the accused, the petitioner has made out a case for regular bail”.

Gaurav Mavi vs State on 28 February, 2020 Hon’ble Delhi High while granting regular bail to an accused has held that:-

“The petitioner has been arrested on the basis of the disclosure statement of co-accused Pulkit Rastogi from whom charas and morphine were recovered.

However, no psychotropic substance was recovered from the car of the petitioner, the petitioner deserves to be granted regular bail”.

Regular Bail on Parity

Shashi Kant vs State Of Punjab on 4 April, 2014, has held that:-

Investigation in the case is complete and the challan has already been presented.

Out of total eight prosecution witnesses cited, three have been examined. The trial, as such, will take some time to complete.

In the totality of circumstances and without expressing any opinion on the merits of the case, this Court is of the considered view that the petitioner is entitled to the concession of bail. Petition is allowed.

Babu Ram @ Bau@ Babu vs State Of Punjab on 2 March, 2015, has held that:-

That the investigation in the present case is complete and the challan has been presented on 29.01.2015. The trial, as such, is at the initial stage.

Also the other co-accused has been granted regular bail by this court, the present accused deserves the benefit and a regular bail is accordingly granted to the present accused.

Jenisbhai Thakarshibhai … vs State Of Gujarat & on 3 December, 2015, Hon’ble Gujrat High Court has held that:-

“The charge-sheet has been filed, the investigation is over and the fact that the co-accused, who have played a similar role has been enlarged on bail by the Coordinate Bench of this Court vide order dated 06.11.2015 passed in Criminal Misc. Application No.19710 of 2015, I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

Default Bail in NDPS Act

Lakhbir Khan v. State of Punjab, 2011(9) R.C.R. (Criminal) 884 has held that:-

Since the challan is required to be presented within a period of 180 days in an offence involving commercial quantity as per Section 36A(4), in the present case it was presented on the 183rd day.

This gave the accused the indefeasible right to be released on bail, Hence bail was granted.

Conclusion

Therefore, even in commercial quantity if the courts are satisfied of the twin test i.e reasonable ground for believing that the accused is not guilty of such offences (Non-compliance of mandatory provisions of the NDPS Act i.e. Section 42 or Section 50, disclosure statement of co-accused or accused is not corroborated by any independent incriminating evidence etc) along with the condition that the accused will not likely to commit an offence if he was granted bail (keeping into consideration the antecedents of the accused, his propensities and nature and the manner in which he is alleged to have committed the offence), the courts can grant regular bail even in commercial quantity cases.

Contempt: Only Saviour From Mal-Administration

Contempt: Only Saviour From Mal-Administration

For the sake of the administration of justice and in order to maintain the decency and order of judicial proceedings, that this extensive and summary power is confided to a Judge. To maintain law and order, the judges have and must have, power at once to deal with those who offend against it.

In India, the concept of Contempt of Court is defined in Section 2(a) of the Contempt of Courts Act, 1971 which has broadly describe it as civil contempt or criminal contempt. Civil contempt consists in willful disobedience to the judgments, orders or other processes of the court. Any willful disobedience to the order of the court to do or abstain from doing any act, or the breach of any undertaking given to the court, is prima facie a civil contempt. Disobedience to the summons issued from the court is also civil contempt. Criminal contempt is criminal in nature. They include outrages on Judges in open court, interference with persons attending court, defiant disobedience to the Judge in court, libels on Judges or courts or their officers, insolence to Judges or comments in court on their decisions, interfering with witnesses or officers of the court, creating a disturbance in court, and any publication which offends the dignity of the court or tends to prejudice the course of justice in any pending trial or litigation.

Similarly, a witness who, without lawful excuse, refuses to be sworn or, being sworn, refuses, or who prevaricates, or who remains in court after the witnesses have been ordered out of court, is guilty of contempt in the face of the court and may be fined and imprisoned. In civil proceedings a witness may decline to answer on the ground that he may incriminate himself or on the grounds of privilege. If a witness declines to answer on the former ground, the court must be satisfied that there are reasonable grounds for him to apprehend charges. While it is clear that the refusal by a witness to answer a question can constitute in facie contempt, it is necessary to show that the question was relevant.

Apex Court in Jhareswar Prasad Paul & Anr. vs. Tarak Nath Ganguly & Ors. (2002) 5 SCC 352, in paragraph 11, opined thus: ­

“11. … The court exercising contempt jurisdiction is not entitled to enter into questions that have not been dealt with and decided in the judgment or order, violation of which is alleged by the applicant. The court has to consider the direction issued in the judgment or order and not to consider the question as to what the judgment or order should have contained.”

Apex Court in Ram Kishan vs. Tarun Bajaj & Ors (2014) 16 SCC 204 held that:-

  1. It is a well­settled principle of law that if two interpretations are possible, and if the action is not contumacious, a contempt proceeding would not be maintainable

In Subodh Gopal Bose v. State of Bihar AIR 1969 Pat 72, it was held that even the State is subject to the jurisdiction of the court in the matter of injunction and its officers are guilty of contempt in case of disobedience and violation of the order of injunction, so long as it exists. It would not affect the liability of the State even if it had acted on a piece of wrong legal advice.

Priya Gupta and another v.  Additional Secretary, Ministry of Health and Family Welfare, and others have clearly held that if there is a direction of the court and it has not been complied with or there is willful disobedience then, the contempt petition would lie. Paragraph 23 of the report states as follows: –

“23. … The sine qua non to initiation of proceedings under the Act is an order or judgment or direction of a court and its willful disobedience. Once thee ingredients are satisfied, the machinery under the Act can be invoked by a party or even by the court suo motu. …”

If Contempt petitioner be relegated to the remedy of execution then contempt petition would not be maintainable as held in the matters of Niaz Mohammad and others v.  State of Haryana and othersR.N. Dey and others v.  Bhagyabati Pramanik and othersKanwar Singh Saini v. High  Court of Delhi and the decision of this Court in the matter of Itwar Singh v. Ganeshram and another

Section 20 of the Contempt of Court Act, 1971 deals with the limitation for the action of Contempt. It states that no court shall initiate any proceedings of contempt in two conditions:

  • Either the proceedings are on his own motion, or,
  • After the period of one year from the date on which the contempt is alleged to have been committed.

R v. Almon

A court of justice without power to vindicate its own dignity, to enforce obedience to its mandate, to protect its officers, or to shield those who are entrusted to its care, would be an anomaly, which could not be permitted to exist in any civilized community.

The jurisdiction to punish for contempt is an inalienable attribute of and inheres in, every superior court of record. This is the jurisdiction of necessity incident to the court of justice.

Focus Areas and Considerations for Bail in POCSO ACT

Focus Areas and Considerations for Bail in POCSO ACT

POCSO is a special act enacted with the objective to protect children from sexual assault and to ensure that the person accused of crime under the POCSO Act, should not get away with the accusations as easily’, therefore section 30 was incorporated in the Act, which presumes culpable mental state of the accused unless rebutted in accordance with the law.

Because of the sensitivity of the matter (child being the victim) and stringent provisions involved (presumption against the accused), it is very difficult to seek bail in POCSO ACT, in my this column I will be sharing some focus areas and considerations, wherein the accused persons were granted Bails’ in POCSO Act.

  1. Delay without reasonable explanation in lodging complaint or even not disclosing the matter to her mother for a period of 4 years gives benefit to the accused and bail was granted. (Anu Devi Vs State of Himachal Pradesh Crl MP 187 of 2019).
  2. Material difference in victims statement recorded under section 161, 164 Cr.P.C gives benefit to the accused and bail was granted (Amarjeet Panday Vs State of NCT of Delhi Bail Appln. 2340/2017).
  3. Substantial improvement in victims statement, unexplained delay in lodging an FIR gives benefit to the accused and bail was granted (Bhusan Malik Vs State of NCT of Delhi Bail Appln. 1545/2018).
  4. Victim frequent changing her stand gives benefit to the accused and bail was granted (Dilshad Khan Vs State Bail Appln. 2350/2018).
  5. Friendly relation between the accused and prosecutrix established , no independent witness stating anything incrimination against the petitioner, investigation complete and chargesheet already filed, benefit to accused and bail was granted (Jatin Sethi Vs State Bail Appln. 1995/2018).
  6. Victim and accused already got married, victim do not support the case of the prosecution in her statement recorded under section 164 Cr.P.C and victim is blessed with a daughter from accused, benefit to accused and bail was granted (Manoj Kumar Vs State Bail Appln. 2552/2019).
  7. Victim is aged 17 years and 11 months, was in friendship with the accused since 3-4 years, was in touch with the accused on social media and even on the date of alleged incident the victim and the accused were touch on social media, FIR was merely registered on the pressure of the family members of the victim, benefit to the accused and bail was granted (Shashank Vs State of NCT of Delhi Bail Appln. 692/2019).
  8. Since the accused is in custody for more than four years, whereas section 35 of the Act postulates the trail to be concluded within one year from the date of court taking cognizance, benefit to the accused and bail was granted ( Sanjay Mahawal Vs State of NCT of Delhi Bail Appln. 18/2020).
  9. Victim already aged 21 years, no material to corroborate except bald statement made by the victim, forensic or medical report does not support forcible relationship with the victim, prosecutrix already examined and cross-examined and as such there is no possibility that the victim be influenced, benefit to accused is given and bail is granted (Paramdeep Vs State of NCT of Delhi Bail Appln. 656/2019).
  10. Prosecutrix herself stated that there was a quarrel that took place between her family on one side and between the family of the accused on the other side, to which no enquiry was made by the police rather “ at the instance of the police, she was made to write the present complaint”, also in her statement U/S 164 Cr.P.C before the Magistrate the prosecutrix informed the Court that “ Whatever she stated was told by the police and neighbors”, keeping the abovementioned facts,benefit to accused and bail was granted (Rajeev Chauhan Vs State of NCT of Delhi Bail Appln. 284/2018).
  11. Prosecutrix does not object to grant of bail, also keeping in mind that the accused is only 25 years of age, his subsequent conduct as well as the assurances given by the family of the accused, benefit to accused and bail was granted (Rajeev Ghaloth Vs State of NCT of Delhi Bail Appln. 2116/2018).
  12. Testimony of the prosecutrix before the trial court has already been recorded and there is no possibility that the prosecutrix can be influenced, benefit to accused and bail was granted (Ramkishan @ Sonu Vs State of NCT of Delhi Bail Appln. 599/2018).
  13. There was friendship between the petitioner as well as the complainant for the last four years and the complaint has been lodged at the behest of her parents, Call Details Record (CDR) obtained by the Investigating Officer shows that even after the incident as late 9 pm in the evening of 07.11.2017 and on the following day, i.e. on 09.11.2017, there were calls made by the complainant to the phone of the petitioner, lasting in one instance for 1105 seconds, benefit to accused was given and bail was granted (Sohan Kumar @ Sonu Tomar Vs State of NCT of Delhi Bail Appln. 1294/2018).
  14. Prosecutrix was a friend of the petitioner, used to roam around with the petitioner and had written several love letters to the petitioner, which are available with the petitioner including a letter in which she has used her own blood to write “sorry, I love you”, the complaint has been lodged at the behest of the family members, chargesheet has already been filed, benefit to accused and bail was granted (Sunny Vs State of NCT of Delhi Bail Appln. 2558/2017).
  15. Allegation against the petitioner for sexually assaulting the minor girl were false, as the complainant party demanded money from the petitioner that he refused to give. From the medical report also, the allegation was not proved. Also the charge sheet was not filed against the petitioner on expiry of 90 days. Therefore, default bail was granted to the petitioner (Paras Ram v. State of Rajasthan, 2019(3) Cri.CC 487: 2019(4) Crimes 455).
  16. The ingredients of offence are not made out against the applicant, since the victim herself left her house and went to the applicant. She was not enticed away by him and she also married the applicant on her sweet will. Also the applicant has no criminal history to his credit and he is languishing in jail since 13.11.2019. Thus, court agreed to grant bail under certain conditions (Kamlesh Kumar vs State Of U.P., CRIMINAL MISC. BAIL APPLICATION No. – 13901).
  17. Since in view of the restricted working of the Courts due to pandemic COVID-19 situation, the trial was likely to take some time and in view of the facts that the petitioner herein has been in custody since 08.06.2019 and that the statements of the material witnesses have been recorded, no useful purpose would have been served in keeping the petitioner behind bars. Thus, petitioner was released on bail on certain conditions (Ajaib Singh Alias Naibu vs State Of Punjab, CRM-M-11469-2020).

Though it is difficult to seek bail in POCSO Act, but if we focus on the parameters basis which bails were already granted to accused persons, the courts can grant bail by imposing certain conditions in the interest of Justice.