Should he send back to custody again?

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Should he send back to custody again?

More often than not this question comes to the mind of every person that once a person a granted bail, he cannot be send back to the prison and he can use his freedom the way he wishes. But now a day’s more number of cases for cancellation of bail are coming forward because the accused while taking bail swears to abide by the express terms and conditions if any imposed or even otherwise he has to abide by the implied conditions of the Criminal Jurisprudence but since the accused forget the conditions be it implied or express, which makes the other party to move an application for cancellation of the bail.

But now the question comes that cancellation of bail is as easy as the granting of bail, the answer to the question is big NO as held by Hon’ble Supreme Courts in number of cases and reason for the same that once a bail is granted it should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer to conductive to a fair trail to allow the accused to retain his freedom by enjoying the concession of bail during trail.

Now we see why the accused is required in custody because he should be presumed to be innocent unless proved guilty and that the law works on the principle of bail not jail, but then the question comes that even after applying these principles the court comes to know that the accused is taking law into his hands and interfering the fail trail by tampering with the witness or indulges into some criminal activity, the court has a reason to cancel the bail.

Following are the grounds as laid down by Hon’ble Supreme Court in Abdul Basit Vs. Abdul Kadir Chaudhary, 2014 (4) JCC 2810 held that U/S 439 (2) empowers the High Court to direct any person who has been released on bail under chapter XXXIII of the Code to be arrested and committed to custody, i.e. the power to cancel the bail granted to an accused person:-

1. The accused misuses his liberty by indulging in similar criminal activity.

2. The accused interferes with the course of investigation.

3. The accused attempts to tamper with evidence or witnesses.

4. The accused threatens witnesses or indulges in similar activities which would hamper smooth investigation.

5. The accused is likely to fell to another country, or otherwise avoid the due process of law.

6. The accused attempts to make himself scarce by going underground or becoming unavailable to the investigating agency.

7. The accused attempts to place himself beyond the reach of his surety.

The grounds mentioned are not exhaustive and merely illustrative. Therefore the accused are not to misuse the express as well as implied conditions imposed by the court and should not interfere in the due process of the court.

Kapil Chandna Advocate

Practicing at Supreme Court of India

Read Also : – How to seek bail in false 498A/406 IPC

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How to get bail in Section 420 IPC ?

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How to get bail in Section 420 IPC

Section 420 in the Indian Penal Code deals with Cheating and dishonestly inducing delivery of property.

  • 420:Cheating and dishonestly inducing delivery of property.: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable fine

 Essential elements of Section 420

(i) Cheating;
(ii) Dishonest inducement to deliver property or to make, alter or   destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security and
(iii) Mens rea of the accused at the time of making the inducement.

Making of a false representation is one of the essential ingredients to institute the offence of cheating under Section 420 IPC. In order to bring a case for the offence of cheating, it is not merely satisfactory to prove that a false representation had been made, but it is further necessary to prove that the representation was false to the knowledge of the accused and was made in order to deceive the complainant.

  • Cheating

      The term “cheating” has been defined under Section 415 of the Indian Penal Code. The element of cheating must be present in every offence under Section 420 of I.P.C.

Section 415 of IPC states that Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

For example – There are two persons A and Z. A exhibits the false sample of an article to Z and intentionally make Z believes that the article corresponds with the sample. A here induces Z to buy and pay for the false sample of article. A cheats Z.

  • Acting dishonestly

Section 24 defines that what is “acting dishonestly”. When the doing of any act or not doing of any act causes wrongful gain of property to one person or a wrongful loss of property to a person, the said act is done dishonestly.

  • Mens rea

Mens rea is a legal phrase which used to define the mental state of a person while committing a crime and that should be intentional. It can refer to a general intent to break the law or a specific prearranged plan to commit a particular offense. A criminal prosecutor must show beyond any reasonable doubt to convict an accused person that the suspect actively and knowingly contributed in a crime that affected another person or their property.

  • How Cheating is to be proved

You have to prove that there was an intention to cheat at the time of making the misrepresentation; and this fact is to be proved on the basis of all the subsequent conduct as acts and omissions of the accused. Therefore, all the acts and omissions of the accused must be clearly and legibly set out right from the date of making of false representation, till the filing of the complaint.

It must be shown that there is a failure of the promise which was made. It must be shown that there was no effort on the part of accused to perform his promise. The test of prudent man must be applied to appreciate the evidence on record.

  • Cognizance of an offence under Section 420

The offence is cognizable and falls under the category of Non Bailable. It is triable by Magistrate of the First Class and therefore FIR or Application u/s 156(3) or Private Complaint u/s 200 may be preferred.

  • Getting a bail under 420 IPC

Vaman Narain Ghiya v. State Of Rajasthan, Hon’ble Supreme Court has held that, Balance to be maintained between the personal liberty of the accused and the investigational right of the police. –An accused is not detained in custody with the object of punishing him on the assumption of his guilt thus can opt anticipatory bail.3

Offences under section 420 of IPC are non bailable offence, due to which it is possible to apply for anticipatory bail under sec 438 of CrPc.

  In Abdul Fazal Siddiqui vs Fatehchand Hirawat And Another JT 1996 (8), the court held that there was nothing on the record to show that the appellant had any knowledge about the property being an encumbered property or about the appointment of the Joint Receivers by the Calcutta High Court in a suit in respect of that property. There was no evidence to show that the appellant, knowingly made any false representation much less dishonestly or fraudulently. The basic ingredients of the offence of cheating were missing in the case. The evidence on tile record does not connect the appellant with the crime alleged against him at all. A mere representation, which was neither claimed or alleged to be dishonest or fraudulent would not attract the charge of cheating only because the complainant parts with his money on the basis thereof. In the present case the dishonest representation, both orally and in the deed of hypothecation, was made by  proprietor of the Calcutta Case. The conviction and sentence against the appellant as recorded by the trial court and confirmed by the High Court, under the circumstances was unsustainable ad thus accordingly the appellant was given bail.

           In Sandeep Chaudhary And Anr. vs State And Ors SC stated that in their opinion, the courts below could not have cancelled the bail solely on the ground that the appellant had failed to keep up his promise made to the court. Here we hasten to observe, first of all from the material on record, we do not find that there was any compromise arrived at between the parties at all, hence, question of fulfillling the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provisions of Chapter xxxviii of the Code and the provision therein does ;not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise.

What the court has to bear in mind while granting bail is what is provided for in Section 437 of the said Code. In our opinion, having granted the bail under the said provision of law, it is not open to the trial court or the High Court to cancel the same on a ground alien to the grounds mentioned for cancellation of bail in the said provision of law. Since the petitioners have been granted interim protection, that shall remain operative for a period of two weeks during which period the petitioners shall apply for regular bail before the trial court

          In a recent ruling in the case of Sangeetaben Mahendrabhai Patel v. State of Gujarat & Anr the Honorable Supreme court held that Case u/s.420 IPC are not barred if prior case u/s.138 Negotiable Instruments Act is pending!

Also in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr SCC 703, It has been held therein that once the conviction under Section 138 of N.I. Act has been recorded, the question of trying a same person under Section 420 IPC or any other provision of IPC or any other statute is not permissible being hit by Article 20(2) of the Constitution and Section 300(1) Cr.P.C.

In Ranubhai Bhikhabhai Bharwad vs State Of Gujarat the High court on the grounds of detention, a reference was made to three criminal cases registered against the petitioner as under as

(i) Gorva Police Station M. Case No.28/97 for offences under Sec.504, 506(2), 120(B), 406, 420, 386, 389, and 114 of IPC – In this case, the petitioner is enlarged on bail and the trial is pending.

(ii) J.P. Road Police Station Case No.139/98 for offences under Sec.342, 406, 420, 504, 323, 506(2) and 114 of IPC – In this case also, the trial is pending and the petitioner is on bail.  , thus for both the cases the petitioner was granted bail.

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Kapil Chandna

 851A,Patiala House Court , Near Delhi High Court, New Delhi-110001, India

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Latest Judgement Of Supreme Court Of India On Bail Not Jail

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Latest Judgement Of Supreme Court Of India On Bail Not Jail

Yes, this is how the principle is enshrined in the constitution of India and Article 21 of the constitution of India enshrines this principle as “Right to Life”. But can we say that this principle is being followed in the courts of law and the accused persons who are languishing under trails in jails on the basis of false allegations and getting the most cherished right of the constitution of India? I feel the answer is NO, because the courts have without going into the correctness of the allegations of case, rather merely dismissing the same by just saying that it is matter of trial and at this stage the same cannot be taken into consideration or just that since the charge sheet has not been filed and therefore it is not the right stage to apply for bail.

Now if we critically analyze the bend of mind of a Judge who is dismissing the bail applications without seeing the gravity of the same if the same person gets acquitted or there is a lack of evidence at the trial stage. The Judge seems to be following the course of action which is easy and not taking any blame on himself. But still, the question comes that are these accused persons getting the most cherished right and if yes then how many.

Perhaps the hard reality is the accused persons cannot except a Bail from lower court in any eventuality and they will have to come to Higher Courts to seek the bail and now the interesting question is when the Higher Courts are giving the Bail on same allegations and same grounds, then what is that stopping them to get the bail at the lower courts. The answer is clear that lower courts lack the gut feeling to take the responsibility to grant the bail despite having the same “Judicial Discretion” which the higher courts have.

Not commenting on any particular case or judge of the lower courts, rather this has become the fashion and we all face this difficulty for the clients. But the factors which the court must keep in mind before granting the bail applications as held by Hon’ble Supreme Court in “Sanjay Chandra vs CBI” speaking through G.S. Singhvi, H.L. Dattu wherein the Hon’ble Supreme Court has given the following factors which must be kept in mind while granting bail and the same factors must be kept in mind by any courts be it lower or higher courts. The factors to be considered as follows:

While granting the bail, the court has to keep in mind:

1 – The nature of accusations, the nature of the evidence in support thereof,

2 – The severity of the punishment which conviction will entail,

3 –  The character, behaviour, means and standing of the accused,

4 – Circumstances which are peculiar to the accused,

5 – A reasonable possibility of securing the presence of the accused at the trial,

6 – Reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.

7 – 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 dealing with the grant of bail can only satisfy it (sic itself) 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 reasonable doubt.”

Custody is not punitive in nature, but preventive, and must be opted only when the charges are serious and prima facie and not otherwise.

Punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

“The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court.”

To enquire into the antecedents of a man who is applying for bail to find whether he has a bad record–particularly a record which suggests that he is likely to commit serious offences while on bail.

In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held:

“The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

The time to be taken in trial and they should not be subject to indefinite custody.

Advocate Kapil Chandna (Practicing in Supreme Court of India)
Advocate.kapilc@gmail.com
9899011450
 

Guidelines for Quashing FIR Supreme Court of India

Criminal law fir in high court

Guidelines for Quashing FIR Supreme Court of India

The essential object of criminal law is to protect society against criminals and law- breakers. For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer the prescribed the punishment for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law as well as the procedural criminal law. Substantive criminal law defines offences and prescribes punishments for the same, while the procedural law is to administer the substantive law.

Our legal system’s law of crime is mainly contained in the Code of Criminal Procedure, 1973 which has come into force from April 1, 1974. It provides the machinery for the detection of crime, apprehension of suspected criminals, a collection of evidence, determination of the guilt or innocence of the suspected person and the imposition of suitable punishment on the guilty person. In addition, this Code also deals with the prevention of offences (Sections 106- 124, 129- 132 and 144- 153), maintenance of wives, children and parents (Sections 125- 128) and public nuisances (Sections 133- 143).

The Code also controls and regulates the working of the machinery set up for the investigation and trial of offences. On the one hand it has to give adequately wide powers to make the investigation and adjudicatory processes strong, effective and efficient, and on the other hand, it has to take precautions against errors of judgment and human failures and to provide safeguards against probable abuse of powers by the police or judicial officers. This often involves a “nice balancing of conflicting considerations, a delicate weighing of opposing claims clamouring for recognition and the extremely difficult task of deciding which of them should predominate”.

The Code has obviously tried to make itself exhaustive and complete in every respect; and it has generally succeeded in this attempt. However, if the Court finds that the Code has not made specific provision to meet the exigencies of any situation, the court of law has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may require.

The power to quash an FIR (First Information Report) is among the inherent powers of the High Courts of India. Courts possessed this power even before the Criminal Procedure Code (CrPC) was enacted. Added as Section 482 by an amendment in 1923, it is a reproduction of the section 561(A) of the 1898 code. Since high courts could not render justice even in cases in which the illegal was apparent, the section was created as a reminder to the courts that they exist to prevent injustice done by a subordinate court.

In R.P. Kapur v. State of Punjab, the Supreme Court considered the circumstances in which the High Court can, by invoking its inherent powers, quash the criminal proceedings in a subordinate criminal court. The Supreme Court observed:

“It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the al1egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 482 of the Code the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not.”

The following cases have been stated by the Supreme Court, by way of illustration wherein the extraordinary power under Article 226 or inherent power under Section 482 can be exercised by the High Court to prevent abuse of process of any court or to secure justice, while quashing the FIR :

1 – Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused.

2 – Where the allegations in the FIR or other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an Order of a Magistrate within the purview of Section 155(2).

3 – Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence.

4 – Where the allegations in the FIR or other materials do not constitute a cognizable offence but constitute a non- cognizable offence to which no investigation is permitted by the police without Order of a Magistrate under Section 155(2).

5 – Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6 – Where there is an express legal bar engrafted in any of the provisions of the Code or statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party.

7 –  Where a criminal proceeding is manifestly attended with mala fide intention and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused with a view to spite him due to private and personal vengeance.

Grounds above-mentioned are merely illustrative and not exhaustive and each case must be decided on its own facts and circumstances.

Kapil Chandna Advocate
Supreme Court of India
9899011450, 9911218741

Supreme Court on Granting Bail

Some Supreme Court Judgements For Granting Bail

Some Supreme Court Judgements For Granting Bail

(a) While granting bail the Court has to keep in mind not only the nature of the accusations but the severity of the punishment if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of granting of bail.

(c) While it is not acceptable to have the entire evidence establishing the guilt of the accused beyond a reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 

1 – Vaman Narain Ghiya v. the State Of Rajasthan, Hon’ble Supreme Court has held that:-

Balance to be maintained between the personal liberty of the accused and the investigation right of the police. –An accused is not detained in custody with the object of punishing him on the assumption of his guilt. 

Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigation right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty.

Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

A detailed discussion of the evidence and elaborate documentation of the merits is to be avoided while considering an application for bail-

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

2 – Sukhwant Singh and Others v.  State Of Punjab, it was held that:-

Reputation of a person is his valuable asset and is a facet of his right under Article 21- Granting of  bail pending regular bail application Following the decision of this Court in the case of Kamlendra Pratap Singh Vs. State of U.P. and Others [(2009) 4 SCC 437], we reiterate that a Court hearing a regular bail application has got inherent power to grant interim bail pending final disposal of the bail application. In our opinion, this is the proper view in view of Article 21 of the Constitution of India which protects the life and liberty of every person.
The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution.

When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the Constitution vide Deepak Bajaj v. State of Maharashtra and Another [(2008) 16 SCC 14]. Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not but the power is certainly there. 

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

Factors to be considered while granting bail:  It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge;(iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (See Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

Scope of interference in the matters of bail – Art 136 The general rule that this Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court.

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

Person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation.

Findings of a higher court or a coordinate bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier.

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

Subsequent bail application – Allowed, if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. 

The decisions given by a superior forum, undoubtedly, is binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application.

Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guaranty conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by courts earlier including the Apex Court of the country.

5 –  Akhtari Bi (Smt.) v. State Of M.P.

Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail .

To have speedy justice is a fundamental right which flows from Article 21 of the Constitution.

Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court, has time and again, reminded the executive of their obligation to appoint requisite number of judges to cope with the ever increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court’s verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction.

We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court.

Kapil Chandna Advocate

Practicing at Supreme Court of India

9899011450, 9911218741
Advocate.kapilc@gmail.com