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Law relating to grant, rejection and cancellation of bail

The art of striking a balance between the rights of the individual and the interests of society.

AMAN SAREEN

Published

5:17 am IST

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Life without liberty is eyes without vision, ears without hearing and a mind without a coherent thinking faculty. The concept of bail is a necessary implication of Article 21 enshrined in the Constitution of India. However, liberty is not an absolute abstract concept and it has to be governed by law. Chapter-XXXIII (Section 436 to 450) of the Criminal Procedure Code deals with various provisions as to bail.

There is no definition of bail under Cr.P.C. apart from definition of bailable and non-bailable offences. Section 436 of the Cr.P.C deals with bail in bailable offences. It casts a mandatory duty on the police official as well as on the court to release the accused on bail “as a matter of absolute and indefeasible right” even where he does not make an application for bail. It is mandated upon them to inform the accused of his right to be released on bail irrespective of the availability of surety and on his personal recognisance.

Section 436-A of Cr.P.C. states that subject to certain conditions, a person who has undergone detention for a period extending half the maximum period of imprisonment imposed for a particular offence shall be so released. However, Section 436 (2) places a strict condition on the bail so granted by specifically stating that if a person failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the court may cancel his bail. Section 437 Cr.P.C. deals with provisions regarding granting and cancellation of bail in a non-bailable offence.

The provisions of S 437 empower two authorities namely a court and an officer-in-charge of the police station to grant bail to person who has been accused of commission of a non-bailable offence. Since the power to grant bail is permissive/discretionary and not obligatory, it has to be exercised judiciously. The bail in non-bailable offence has been classified them under two heads: (1) Offences punishable with death or imprisonment for life/accused which had been previously convicted and those which are not so punishable.

At the stage of consideration of bail, the court is normally required to consider the nature and seriousness of the accusation, severity of the offences, chances of the accused absconding from the trial and tampering with the evidence and witnesses and possibility of repetition of such crime. Section 437 (3) of Cr.P.C. forms the backdrop of the application for cancellation of bail preferred by the IO/Complainant/Any Other Person who is threatened with the liberty so granted to the accused to the extent that it so interferes with the administration of justice, process of fair investigation.

According to Section 439(1) of the Cr.P.C, a High Court or Court of Session may direct that any person accused of non-bailable offence and in custody be released on bail. It also empowers that a High Court or Court of Session may modify or set aside any condition imposed by a Magistrate when granting bail. Presently, it is mandatory by the High Court or Court of Session to give notice of application to the complainant in cases involving child-related offences or sexual offences related to women. Section 438 of Cr.P.C. deals with anticipatory bail which is exclusively vested with the Court of Session and High Court.

There must be a sufficient reason/ apprehension to believe that the applicant may be arrested in accusation of having committed a nonbailable offence. The court considering the nature and gravity of accusation, antecedent of applicant, possibility of fleeing from justice and whether the accusation has been made with object of injury or humiliate the applicant may either reject the application or grant anticipatory bail. Generally, the court imposes a specific condition that the person shall make himself available for the interrogation by police officer as and when required and the person shall not directly or indirectly make any inducement, threats or promise to any witness.

Recently, it has been held by the Supreme Court of India that there is nothing in CrPC that indicates the grant of anticipatory bail should be time-bound and it can continue till the end of the trial period. However, it is a discretionary power of the court to decide on a case-to-case basis and impose a time limit on prearrest bail. Section 167(2) of Cr.P.C. empowers judicial magistrates to detain the accused in police/judicial custody and release him on bail on expiry of the statutory period of 60 or 90 days of total period of custody.

It is referred to as Default Bail. The legal provisions pertaining to cancellation of bail are mainly contained in S.437 (5) and 439(2) Cr.P.C. Section 437(5) states that a Magistrate which has released a person on bail may, if it considers it necessary so to do, direct that such person be re-arrested. Section 439(2) confers powers on the High Court and the Sessions Court to direct re-arrest of the accused who have been released on bail by any court.

The power of cancellation of bail can be resorted to in the following two situations:

(i) On merits of a case mainly on the ground of the order granting bail being perverse, passed without due application of mind or in violation of any substantive or procedural law and

(ii) On the ground of misuse of liberty after the grant of bail or other supervening circumstances. Bail in the first type of cases can be cancelled by superior courts only, whereas in the second category of cases bail can be cancelled by the very court which may have granted bail.

Sometimes the principles of cancellation of bail on the ground of subsequent conduct or supervening circumstances have been wrongly brought in and applied to the cases where cancellation of bail is sought on the merits of the case. It is therefore necessary to clearly understand the aforesaid distinct principles of cancellation of bail operating in these two different fields.

The bail under second types of cases can be cancelled where the accused misuses his liberty by indulging in similar criminal activity, attempts to tamper with evidence, threatens/influences witnesses and attempts to flee from country. These grounds are illustrative and not exhaustive. However, bail once granted should not be cancelled in a mechanical manner without considering whether any cogent and overwhelming circumstances have rendered it no longer conducive to a fair trial. Proceedings for cancellation of bail are not in the nature of an appeal from the grant of bail.

However, cancellation of bail and rejection of bail are two different circumstances and hence the approach of the court should also be different. At the time of hearing bail application, the court looks at the possibilities of the violation of bail conditions and it has to be more open and flexible whereas while hearing the cancellation application, the court has to be more rigid and it has to examine not only the possibility of violations but whether the actual violation has taken place or not. It is thus stated that the underlying factor behind the concept of bail is the balancing of conflicting interests of sanctity of individual liberty and the interest of the society.

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