Principles governing grant of Regular Bail

Every person has a right guaranteed under Article 21 of the Constitution of India to protection of his life and personal liberty except according to procedure established by law. In order to safeguard the society from peril and menace, the law of the land provides for arrest of accused, subsequent detention and custody. The concept of bail and personal liberty goes hand in hand and therefore the accused person has right to seek bail in order to get himself released from custody until and unless proven guilty by a court of law.

As a presumably innocent person, the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. A man on bail has a better chance to prepare and present his case than one remanded in custody. An accused person who enjoys freedom is in a much better position to look after his case and properly defend himself than if he were in custody. Hence grant of bail is the rule and refusal is the exception.[1]

Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle for adjudicating a Regular Bail Application wherein Court takes into consideration several aspects viz. the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds.

Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests[2] in order to adjudicate bail applications.

The grant of bail is the Rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.[3] At pre-conviction stage there is always a presumption of innocence in the favour of the accused. Each bail application is to be decided on the basis of its peculiar facts and circumstances. No straitjacket formula exists for disposal of a bail application.[4]

At the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the Accused are prima face true.[5] Section 437 of the Code of the Criminal Procedure, 1973 lists circumstances where an accused may not be released on bail. The Phrase used in clause (i) sub-section (1) of Section 437 is “reasonable grounds for believing that he has been guilty of an offence …” and not evidence.

Grant of bail though being a discretionary order but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for Bail bereft of any cogent reason is not sustainable in the eyes of law. The grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts however do always vary from case to case.

While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail; more heinous is a crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.[6]

The gravity can only beget by the length of sentence provided in law and by asserting that the offence is grave, the grant of bail cannot be thwarted. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test[7] or the tripod test that normally applies. [8]

The [principles governing grant of bail][9] which the courts have to consider can be enumerated, though not exhaustively, as under:

1. The gravity and severity of the offence and the nature of accusation;
2. Severity of punishment;
3. The position and status of the accused vis-à-vis the victim and the opportunity to approach the victims/witnesses;
4. The likelihood of the accused fleeing from justice;
5. The possibility of tampering with the evidence and/or the witnesses;
6. Obstructing the course of justice or attempting to do so;
7. The possibility of repetition of the offence;
8. The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
9. The peculiar facts of each case and nature of supporting evidence.

It is a settled law that at the time of consideration of bail application, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence. What is to be seen is whether there is reasonable ground for believing that accused is not guilty of the offence(s) he is charged with.

This was so observed by Hon'ble Supreme Court in Union of India v. Rattan Mallik @ Habul | (2009) 2 SCC 624 and Union of India v. Shiv Shankar Kesari | (2007) 7 SCC 79 while deciding the bail application under Section 37 of the NDPS Act which also envisages the twin conditions as contemplated in Section 212(6)(ii) of the Companies Act.

The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. Several other factors are also taken into consideration while considering an application for bail:

1. The nature of accusation and the severity of the punishment in the case of conviction and the nature of materials relied upon by the prosecution;
2. Reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;
3. Reasonable possibility of securing the presence of the Accused at the time of trial or the likelihood of his abscondence;
4. Character behaviour and standing of the Accused and the circumstances which are peculiar to the Accused;
5. Larger interest of the public or the State.[10]

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.[11]

Detention is not supposed to be punitive or preventive. Seriousness of the allegations or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for an indefinite period if trial is not likely to be concluded within reasonable time.[12]

The Court has to strike a balance between the rights of the accused to his liberty and the interest of the society. Liberty of an accused cannot be snatched unreasonably for an uncertain time only on the basis of mere allegations.

Grounds for cancellation of Regular Bail

Bail once granted should not be cancelled unless a cogent case, based on a supervening event has been made out.[13] The existence of supervening circumstances or other circumstances as laid down in judicial precedents, must be strictly ascertained by the court before it cancels the bail already granted.
Once the investigation is complete in a case and the charge-sheet has been filed, there is no reason to initiate a suo-moto proceeding to cancel the bail.[14]

The Supreme Court has adumbrated in Dolat Ram's case[15] the following situations as supervening factors that may justify the cancellation of the bail:

1. Interference or attempt to interfere with the due course of administration of justice;
2. Evasion or attempt to evade the due course of justice;
3. Abuse of the concession granted to the accused;
4. Possibility of the accused absconding;
5. Likelihood of/actual misuse of bail.
6. Likelihood of the accused tampering with the evidence or threatening witnesses;
7. Other supervening circumstances, which have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by being on bail.

Various decisions of the Hon’ble Supreme Court vest courts with the power and discretion to cancel bail even when there are no supervening circumstances.

Those principles may be illustratively stated as below[16]:

1. Where the court granting bail ignores relevant material and takes into account irrelevant material of substantial nature and not trivial nature[17];
    
2. Where the court granting bail overlooks the position of the accused qua the victim especially if the accused is in some position of authority such as a policeman and there is prima facie, a misuse of position and power, including over the victim[18];
    
3. Where the court granting bail ignores the past criminal record and conduct of the accused while granting bail;
    
4. Where bail has been granted on untenable grounds;
    
5. Where the order granting bail suffers from serious infirmities resulting in miscarriage of justice[19];
    
6. Where the grant of bail was not appropriate in the first place, given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified;
    
7. When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.

End-Notes:

1. Bhadresh Bipinbhai Sheth v. State of Gujarat | (2016) 1 SCC 152, Anil Mahajan v. Commissioner of Customs & Anr. | 2000 SCC Online Del 119
2. Sangitaben Shaileshbhai Datanta vs. State of Gujarat | (2019)14SCC522, Myakala Dharmarajam and Ors. vs. The State of Telangana and Ors. | AIR 2020 SC 317 (Para 6)
3. P. Chidambaram vs. Directorate of Enforcement | 265 (2019) DLT 1
4. State of Bihar & Anr. v. Amit Kumar @ Bachcha Rai | (2017) 13 SCC 751, Sachindra Priyadarshi v. State (NCT) of Delhi | MANU/DE/0885/2020
5. National Investigation Agency vs. Zahoor Ahmad Shah Watali | AIR 2019 SC 1734
6. Ram Govind Upadhyay v. Sudarshan Singh and Ors | AIR 2002 SC 1475
7. Triple test doctrine: An accused can be granted bail if it can be established that he or she is not a flight risk, will not influence witnesses and will not tamper with the evidence.
8. P. Chidambaram vs. Directorate of Enforcement | 265 (2019) DLT 1
9. State v. Sanjeev Kumar Chawla | Crl. M.C. No. 1468/2020 (Delhi HC)
10. P. Chidambaram v. CBI | Criminal Appeal No. 1603/2019
11. Ram Govind Upadhyay v. Sudarshan Singh and Ors | AIR 2002 SC 1475
12. Abbas Ahmad Choudhary v. State of Assam | Crl. Appeal No. 951 of 2004
13. X vs. The State of Telangana and Ors. | (2018) 16 SCC 511
14. Ram Chandra Meena vs. High Court of Rajasthan and Ors. | MANU/SC/0966/2018
15. Dolat Ram v. State of Haryana | (1995) 1 SCC 349
16. State v. Sanjeev Kumar Chawla | Crl. M.C. No. 1468/2020 (Delhi HC)
17. Dinesh M.N. (S.P.) v. State of Gujarat, (2008) 5 SCC 66
18. Prakash Kadam and Ors. v. Ramprasad Vishwanath Gupta and Anr., (2011) 6 SCC 189
19. Kanwar Singh Meena v. State of Rajasthan and Anr., (2012) 12 SCC 180