BAIL

 Criminal Jurisprudence

 Bail is not defined under the Indian Law.

 Law Lexicon defines Bail as –

“the security for the appearance of the accused person on which he is released pending trial or investigation.”

 Black’s Law Dictionary defines Bail as –

“the procurement of release of person from legal custody by undertaking that he /she shall appear at the time and place
designated and submit him/herself to the jurisdiction and judgment of the court.”
 Circumstances in which bail is a right
(release is imperative)
2

1. Sec 436: Cases other than those of non-bailbale offence- Section provides that when a person is arrested or
detained in custody by an officer in charge of a police station, or appears or brought before the court and is
prepared to furnish bail shall be released on bail.
 For an indigent person, the requirement of sureties shall be removed and he can be granted release on his
own bond without sureties. (Explanation added in 2005) Person is said to be an indigent when he is unable
to furnish bail in such cases within a week.
 Sec 436 shall not apply to a person against whom security proceedings have been initiated (Sec 116 CrPC).

2. Sec 167 (2): Right to be released on bail if investigation not completed within the prescribed number of
days- Sec provides that when a person is arrested or detained in judicial custody during the time of
investigation for 60 or 90 days (for offence punishable for less than 10 years or 10 years or more respectively),
if no charge sheet is submitted at the end of the 60 or 90 day period then the person gets a right to be released
on bail. provided he is ready and willing to submit the bail.
 Computation of the period starts from the first day when the Magistrate grants custody.
 Circumstances in which bail is a right
(cont.)
3

3. Sec 437 (2): No sufficient grounds for believing the accused guilty of a non-bailable offence but sufficient
grounds for further inquiry- the court or such officer if he believes that there are no grounds for believing that
the accused is guilty of committing a non-bailable offence but enough grounds to believe that further inquiry is
required shall release such accused on bail under sec 437 (2).
 Reasons should be recorded for releasing a person under this section.

4. Sec 437 (6): Trial not concluded within 60 days:

 If the case is triable by a Magistrate and the trial is not concluded in 60 days from the first date fixed for
taking evidence in such a case the person shall be released on bail unless for reasons recorded in writing the
Magistrate directs otherwise.
 Only applicable if the Magistrate is trying the case. Not applicable for Session court as the gravity of crime,
complexity of evidence and nature of crime which is before the Sessions court is of a graver nature than a
magistrate’s court.
 Circumstances in which bail is a right
(cont.)
4

 5. Sec 437 (7): Right of bail after conclusion of trial but before judgment is delivered.
 At any time after the conclusion of trial but before the judgment is delivered if the court believes that there are
reasonable grounds to believe that the accused is not guilty of the non-bailable offence, the court shall release the
accused on bail.
 A bond executed by the accused without sureties is taken by the court to ensure his presence to hear the judgment.

 6. Sec 436 (A): Maximum period for which an undertrial can be detained.
 Added as an amendment in 2005.
 The person should not be accused of a crime for which one of the punishments is death penalty
 If during the stage of investigation, inquiry or trial, accused has undergone detention for a period extending to one
half of the maximum period of imprisonment specified for the offence he shall be released by the court on his
personal bond with or without sureties.
 The court may, after hearing the public prosecutor, prolong the detention after recording reasons in writing.
 No such person can be detained for more than the max. period of imprisonment provided for the said offence.
 If delay in proceeding is caused due to the accused, such period will be excluded in the calculation.
 Bail is a discretion
5

 1. Sec 437 (1): Power of a court other than a Session court or High Court, or of a police officer in charge of
a police station may grant bail o a person accused of or suspected of commission of a non-bailable offence.
 No bail: if there appears to be reasonable ground for believing that he has been guilty of an offence
punishable with death or life imprisonment [clause 437 (1) (i)].
 No bail: if the offence is cognizable in nature and he had been previously convicted of an offence punishable
with death, imprisonment for life or imprisonment for seven years or more or he had been previously
convicted on two or more occasions of [a cognizable offence punishable with imprisonment for three years
or more but not less than seven years (added in 2005 as an amendment)]. [clause 437 (1) (ii)].
 First proviso to 437 (1) provides that in both the above situations if the person is a woman, person below
16 years of age or sick or infirm court may direct release on bail.
 Second proviso to 437 (1) provides that any person who comes within clause 437 (1)(ii) court may direct
release on bail if court is satisfied that it is just and proper to do so for any other special reason.
 No person alleged to have committed an offence punishable with death, life imprisonment or imprisonment
for seven years or more will be released on bail without hearing the public prosecutor (Fourth proviso).
 Bail is a discretion
6

 2. Section 439: Power of the High Court and Session Court to grant bail.
 Sec 439 (1): the powers under this section are more expansive as compared to 437. the power is not fettered
as in 437. hence a person accused of an offence punishable by death or life imprisonment can approach
court under section 439.
 If the offence is of the nature specified in 437 (3), Session court or High Court may impose any condition on
the bail.
 Offences specified under 437 (3) are: offences punishable with imprisonment for seven years or more or
offence under Chapter 6 (offence against the State), Chapter 16 (offences against the human body) or
Chapter 17 (offences against property) of IPC. Abetment to, conspiracy of or attempt to commit any such
offence.
 Any condition imposed by a Magistrate can be modified or set aside by the Session or High court under this
section.
 Proviso to 439 states that before granting bail to a person who is accused of an offence which is triable
exclusively by the court of session or is punishable with imprisonment for life, notice of such bail
application should be given to the Public Prosecutor.
 Circumstances of grant or refusal of bail
7

 The enormity of the charge

 Nature of accusation
 Severity of punishment
 Nature of evidence
 Probability of absconding or tampering with witnesses or evidence
 Protracted nature of trial
 Opportunity to the accused to prepare for his defense
 Health age and sex of the accused
 Nature and gravity of the circumstances in which the offence was committed
 Position and status of accused as compared to the victim and/or witnesses
 Probability of accused committing same offence
 Any other circumstance with interest of society
 Bail with conditions
8

 1. Sec 437 (3): under this sub section, the power to impose conditions has been given specifically to a
court and not to police officer.
 offences punishable with imprisonment for seven years or more or offence under Chapter 6 (offence against
the State), Chapter 16 (offences against the human body) or Chapter 17 (offences against property) of IPC.
Or abetment of, or conspiracy to, or attempt to commit any such offence.
 The conditions listed in the sub section are:
 Person shall attend in accordance with the conditions of the bond.
 Person shall not commit an offence similar to the offence of which he is suspected or accused
 Person shall not directly or indirectly tamper with persons acquainted with the facts of the case.
 Any other condition in the interest of justice.

2. Sec 439: Session court or High Court may also impose condition if the offence is the one specified in 437 (3).
Any condition imposed by the magistrate’s court can be modified or set aside by the Session or High court.
 Cancellation of Bail
9

 1. Sec 437 (5):

 The power of cancellation of bail has not been given to a police officer.
 The court which granted the bail should be approached for cancellation as well.
 Bail granted by a police officer can’t be cancelled by the Magistrate’s court. The session court or high court
have to be approached for the same.
 Since cancellation of bail is a harsh order, it should be granted only if supervening circumstances exist
because of which it would no longer be conducive to fair trial to allow the accused to retain his freedom.
 An order granting bail can be appealed against as well if no supervening circumstances are present.
 If a bail order has been granted illegally or improperly by wrong or arbitrary exercise of judicial discretion,
it can be overturned in revisional jurisdiction of the High Court as well.
 GUIDELINES
10

Madras High Court has given some guidelines with espect to cancellation of bail:

 Where the person on bail commits the very same offence for which he is being tried or has been convicted
and hence shows that he is unfit to be on bail.
 If he hampers the investigation for example by preventing search of places under his control,
 interferes with the crime scene in order to remove traces or proof of crime or intimidates prosecution
witnesses,
 Runs away to a foreign country or goes underground or beyond the control of his sureties.
 If he commits acts of violence in revenge against the police officials or prosecution witnesses.
 Cancellation of Bail
11

 2. Sec 439 (2):

 The powers under this section are wider.

 Can be used for whether the bail was granted for a bailable or non bailable offence also whether it was
granted by a police officer or by a Magistarte.
 High Court may cancel the bail of a person who has been released on bail by a session court.
 A session court however, can not cancel the bail of person released by High Court unless some new
circumstances have come up.
 If the Session court has granted bail the State has two options: to approach the session court for
cancellation if some new circumstances have come up or to approach the High Court u/s 439 (2).
 Sanjay Chandra v. CBI
12

 SLP against the common judgment on bail applications of the accused appellants, rejecting the grant of bail
by the High Court.
 The allegations were related to criminal conspiracy to get licenses for telecom services by fraud.
 The applications were first rejected by the Special judge, CBI and then by the High Court.

 Arguments for the grant of bail:

 the impugned Judgment has not appreciated the basic rule laid down by this Court that grant of bail is the
rule and its denial is the exception.
 if there is any apprehension of the accused of absconding from trial or tampering with the witnesses, then it
is justified for the Court to deny bail. The learned senior counsel would submit that the accused has
cooperated with the investigation throughout and that his behavior has been exemplary.
 The appellant was not even arrested during the investigation and their was no threat from him of tampering
with the witnesses.
 Cont.
13

 the personal liberty is at a very high pedestal in our Constitutional system, and the same cannot be meddled
with in a causal manner.
 it was only after the appellants appeared in the Court in pursuance of summons issued, they were made to
apply for bail, and, thereafter, denied bail and sent to custody.
 the trial Judge does not have the power to send a person, who he has summoned in pursuance of Section
87 Cr.P.C to judicial custody. The only power that the trial Judge had, he would contend, was to 
ask for a bond as provided for in Section 88 Cr.P.C. to ensure his appearance.
 there is not even a prima facie case against the accused and would make references to the charge sheet and the
statement of several witnesses. He would emphatically submit that none of the ingredients of the offences
charged with were stated in the charge sheet.
 even if, there is a prima facie case, the rule is still bail, and not jail, as per the dicta of this Court in several
cases.
 the gravity of the offence charged with, is to be determined by the maximum sentence prescribed by the
Statute and not by any other standard or measure. The alleged amount involved in the so-called Scam is not
the determining factor of the gravity of the offence, but the maximum punishment prescribed for the offence.
 Cont.
14

 the only bar for bail pending trial in Section 437 is for those persons who are charged with offences
punishable with life or death, and there is no such bar for those persons who were charged with offences
with maximum punishment of seven years.
 the Court should bear in mind that such custody is not punitive in nature, but preventive, and must be
opted only when the charges are serious.

 Arguments against grant of bail:

 the offences that are being charged, are of the nature that the economic fabric of the 
country is brought at stake. Further, the learned ASG would state that the quantum of punishment could
not be the only determinative factor for the magnitude of an offence.
 one of the relevant considerations for the grant of bail is the interest of the society at large as opposed to the
personal liberty of the accused, and that the Court must not lose sight of the former
 Cont.
15

 consistency is the norm of this Court and that there was no reason or change in circumstance as to why this
Court should take a different view from the order of 20th June 2011 in Sharad Kumar Etc. v. Central Bureau
of Investigation, rejecting bail to some of the co-accused in the same case.
 Further, he would submit that the appellants, having cooperated with the investigation, is no ground for
grant of bail, as they were expected to cooperate with the investigation as provided by the law.
 the test to enlarge an accused on bail is whether there is a reasonable apprehension of tampering with the
evidence, and that there is an apprehension of threat to some of the witnesses.
 there is more reason now for the accused not to be enlarged on bail, as they now have the knowledge of the
identity of the witnesses, who are the employees of the accused, and there is an apprehension that the
witnesses may be tampered 
Section 437 of the Cr.P.C. uses the word "appears", and, therefore, that the argument of the learned senior
counsel for the appellants that the power of the trial Judge with regard to a person summoned
under Section 87 is controlled by Section 88 is incorrect.
 Cont.
16

 Addidtional arguments for grant of bail:

 as the presumption of innocence is the privilege of every accused, there is also a presumption that the
appellants would not tamper with the witnesses if they are enlarged on bail, especially in the facts of the
case, where the appellants have cooperated with the investigation.
 there are two principles for the grant of bail - firstly, if there is no prima facie case, and secondly, even if
there is a prima facie case, if there is no reasonable apprehension of tampering with the witnesses or
evidence or absconding from the trial, the accused are entitled to grant of bail pending trial.
 Cont.
17

 Discussion by the court:

 Court rejected the argument of the ASG that there has to be a consistency in the orders given to another co-
accused while rejecting his bail and the present SLP. The circumstances had changed as he co-accused was
brought before the court before framing of the charges. Now the charges are framed and the trial has
commenced.
 The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and109 of Indian
Penal Code and Section 13(2) read with 13(i)(d) of Prevention of Corruption Act, 1988.
 Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications
filed by the applicants as seriousness of the charge; the nature of the evidence in support of the
charge; the likely sentence to be imposed upon conviction; the possibility of interference
with witnesses; the objection of the prosecuting authorities; possibility of absconding from
justice.
 object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. 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.
 Cont.
18

 From time to time, necessity demands that some un-convicted persons should be held in custody pending
trial to secure their attendance at the trial but in such cases, `necessity' is the operative test.
 seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications
but that is not the only test or the factor : The other factor that also requires to be taken note of is the
punishment that could be imposed after trial and conviction, both under the Indian Penal
Code and Prevention of Corruption Act.

 State of Rajsthan v. Balchand: “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. . . It is true that the
gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh
with us when considering the question of jail. So also the heinousness of the crime”
 Cont.
19

 an accused party is detained in custody because of his guilt, but because there are sufficient probable
grounds for the charge against him as to make it proper that he should be tried, and because the detention
is necessary to ensure his appearance at trial
 the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment
to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.
 Inquiry 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 regard to
habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit
the opportunity to inflict further crimes on the members of society.
 Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the
Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under 
Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused
of an offence punishable with death or imprisonment for life.
 Cont.
20

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

"14. 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.“

Present case:
 Rejection of bail: the primary ground is that offence alleged against the accused persons is very serious
involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the
secondary ground is that the possibility of the accused persons tempering with the witnesses.
 Cont.
21

 the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of
cheating using as genuine a forged document. The punishment of the offence is punishment for a term
which may extend to seven years.
 It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to
which the party may be liable, if convicted, also bears upon the issue.
 The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the
State of the burden of keeping him, pending the trial, and at the same time, to keep the accused
constructively in the custody of the Court, whether before or after conviction, to assure that he will submit
to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
 There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and
the documents on which reliance is placed by the prosecution, is voluminous. The trial may take
considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than
the period of detention, had they been convicted. It is not in the interest of justice that accused should be in
jail for an indefinite period.
 Cont.
22

 In `Bihar Fodder Scam', this Court, taking into consideration the seriousness of the charges alleged and the
maximum sentence of imprisonment that could be imposed including the fact that the appellants were in
jail for a period more than six months as on the date of passing of the order, was of the view that the further
detention of the appellants as pre-trial prisoners would not serve any purpose.

 the investigating agency has already completed investigation and the charge sheet is already filed before the
Special Judge, CBI, New Delhi.
 Therefore, their presence in the custody may not be necessary for further investigation. We are of the view
that the appellants are entitled to the grant of bail.
 ORDER
23

 Order:
We order that the appellants be released on bail on their executing a bond with two solvent sureties, each in a sum of
`5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the following conditions :-
 a. The appellants shall not directly or indirectly make any inducement, threat or promise to any person
acquainted with the facts or the case so as to dissuade him to disclose such facts to the Court or to any other
authority.
 b. They shall remain present before the Court on the dates fixed for hearing of the case. If they want to remain
absent, then they shall take prior permission of the court and in case of unavoidable circumstances for remaining
absent, they shall immediately give intimation to the appropriate court and also to the Superintendent, CBI and
request that they may be permitted to be present through the counsel.
 c. They will not dispute their identity as the accused in the case.
 d. They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder of the
same, they shall swear to an affidavit. If they have already surrendered before the Ld.
 Special Judge, CBI, that fact should also be supported by an affidavit.
 e. We reserve liberty to the CBI to make an appropriate application for modification/recalling the order passed by
us, if for any reason, the appellants violate any of the conditions imposed by this Court.