Sample: Criminal Procedure Code

 PROVISIONS  OF   BAIL    AND   BONDS

Explanatory Notes by DLA on bail provisions

What is bail?

  • To grant bail is to ‘set at liberty a person arrested or imprisoned, on security being taken for his appearance’. Thus, bail is basically a release from restraint, more particularly, release from the custody of the police.
  • An order of bail gives back to the accused freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence of which he is charged and for which he was arrested.

How should the court proceed?

  • Whenever an application for bail is made to a court, the first question that it has to decide is whether the  offence for which the accused is being prosecuted is bailable or otherwise.
  • If the offence is bailable, bail will be granted under Section 436 of the Code of Criminal Procedure without more ado; but if the offence is not bailable, further considerations will arise and the court will decide the question of grant of bail in the light of those further considerations.
  • Here are some of the considerations the court should take into account: nature and seriousness of the offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with the larger interests of the public or the State.

Object of bail

  • The object of bail is to secure the attendance of the accused at the trial. The proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. It is indisputable that bail is not to be withheld as punishment.

Rationale for grant of bail

  • Consequences of pre-trial detention are grave. Defendants presumed innocent are 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.

Question

  • Is surety a necessary requirement of bail?

Ans.

  • Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigents’ rights, we hold that bail covers both—release on one’s own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables. [Source:  Supreme Court in Moti Ram v. State of MP 1978]
  • Poor men – Indians are, in monetary terms, indigents – young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances – put whatever reasonable conditions you may.

Question

  • Should the surety be from the same district in which the court is situated?

Ans.

  • The magistrate has demanded sureties from his own district! What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies.
  • What law prescribes surety is from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? [Source:  Supreme Court in Moti Ram v. State of MP 1978]

 

Statutory Provisions:

Section 436                 Bail in bailable offences

  • When a person not accused of a non-bailable offence
    • is arrested or detained without warrant
      • by an officer in charge of a police station or
    • appears or is brought before a Court
  • and is prepared to give bail
    • at any time while in custody of such officer or
    • at any stage of proceeding before such Court
  • such person shall be released on bail
  • Instead of taking bail from such person
    • such officer or Court may discharge him
    • on his executing a bond without sureties
  • If such person is indigent and unable to furnish surety
    • such officer or Court shall discharge him
    • on his executing a bond without sureties

Indigent person

  • Where a person is unable to give bail
    • within a week of his arrest
  • it shall be sufficient ground
    • to presume that he is an indigent person
[Note:  Inserted w.e.f 23.6.2006]

 

  • Where a person fails to comply with conditions of bail bond
    • as regards time and place of attendance
  • Court may refuse to release him on bail
    • when on a subsequent occasion in the same case
    • he appears before Court or is brought in custody

 

Section 436A

  • Where a person has undergone detention
    • upto half of maximum imprisonment specified for his offence
    • during investigation or trial
  • he shall be released by court on his personal bond
    • with or without sureties
  • Court may order
    • after hearing Public Prosecutor
    • and for reasons to be recorded in writing
  • continued detention of such person
    • longer than one-half of maximum imprisonment
  •  or release him on bail
    • instead of personal bond with or without sureties
  • No such person shall in any case
    • be detained during investigation or trial
    • for more than the maximum imprisonment for his offence

 

Note:     What is bail?

  • Traditionally bail is some form of property
    • deposited or pledged to a court
  • to persuade it to release a suspect from jail
    • on the understanding that
  • he will return for trial or forfeit the bail

Recognizance

  • When an accused is released on recognizance
    • he promises to court to attend all required judicial proceedings
    • and will not engage in prohibited conduct
  • Typically a monetary amount is set by court
    • but is not paid by defendant
    • unless court orders it forfeited
  • This is called an unsecured appearance bond
    • or release on one’s own recognizance

Surety Bond

  • By a surety bond
    • a third party agrees to be responsible
    • for debt or obligation of defendant

Property Bond

  • Accused or a person acting on his behalf
    • pledges real property
    • having a value at least equal to amount of bail
  • If the principal fails to appear for trial
    • State can institute foreclosure proceedings against the property
    • to recover the bail

Cash

  • Cash-only:
    • where the only form of bail that Court will accept is cash
  • Court-ordered cash bonds require total amount of bail to be posted in cash
    • Court holds this money until the case is concluded

 

Section 437                 Bail in non-bailable cases

  • When a person accused of, or suspected of, a non-bailable offence
    • is arrested or detained without warrant
      • by an officer-in-charge of a police station
    • or appears or is brought before a Court
      • other than High Court or Court of session
  • he may be released on bail, but

(i)

  • such person shall not be so released
    • if there are reasonable grounds for believing that
    • he has been guilty of an offence
    • punishable with death or imprisonment for life

(ii)

  • such person shall not be so released
    • if such offence is a cognizable offence
    • and he had been previously convicted of an offence
      • punishable with death 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 3 years or more
      • but not less than 7 years

 

  • Court may direct that
    • a person in clauses (i) and (ii) be released on bail
    • if such person
      • is under sixteen years
      • is a woman
      • is sick or infirm

 

  • Court may also direct that
    • a person under clause (ii) be released on bail
    • if it is just and proper so to do for any other special reason

 

  • Mere fact that accused may be required
    • for being identified by witnesses during investigation
    • shall not be sufficient ground for refusing to grant bail
      • if he is otherwise entitled to be released on bail
      • and gives an undertaking that he shall comply with directions of Court

 

  • If offence is punishable with death or imprisonment for 7 years or more
    • no person shall be released on bail by court
    • without hearing Public Prosecutor

 

Section 437(2)

  • If it appears to such officer or Court at any stage
    • that there are no reasonable grounds for believing
    • that accused has committed a non-bailable offence
    • but there are sufficient grounds for further inquiry into his guilt
  • accused shall be released
    • on bail or
    • on execution by him of a bond without sureties

 

Section 437(3)

  • When a person accused or suspected of
    • an offence punishable with imprisonment of seven years or more or
    • an offence under Chapters VI, XVI or XVII of IPC
  • is released on bail
  • Court shall impose these conditions:

(a)

  • such person shall attend in accordance with conditions of bond

(b)

  • such person shall not commit
    • an offence similar to the offence of which he is accused or suspected

(c)

  • such person shall not
    • make any inducement, threat or promise
      • to any person acquainted with facts of case
      • so as to dissuade him from disclosing such fact
      • to court or to any police officer or
    • tamper with evidence
  • Court may also impose
    • other necessary conditions in interest of justice

 

Section 437(4)

  • An officer or Court releasing any person on bail
    • shall record in writing reasons or special reasons for so doing

 

Section 437(5)

  • Any Court which has released a person on bail
    • may direct if necessary that such person be arrested
    • and commit him to custody

 

Section 437(6)

  • In a case triable by Magistrate:
  • If trial in case of a non-bailable offence
    • is not concluded in sixty days
    • from the first date fixed for taking evidence
  • accused shall be released on bail
    • if he is in custody during the whole of this period
  • unless for reasons to be recorded in writing
    • Magistrate otherwise directs

 

Section 437(7)

  • In case of a non-bailable offence
    • at any time after conclusion of trial
    • but before judgement is delivered
  • if Court has reasonable grounds for believing that accused is not guilty
    • it shall release him, if he is in custody
    • on execution by him of a bond without sureties

 

Explanatory Notes by DLA on section 437

  • Section 437 Cr.P.C. provides as to when bail may be taken in case of non-bailable offences.
  • Section 437 deals with two stages during the initial period of investigation of a non-bailable offence. Even the officer in-charge of the police station may, by recording his reasons in writing, release a person accused of or suspected of commission of any non-bailable offence provided there are no reasonable grounds for believing that the accused has committed a non-bailable offence punishable with death or imprisonment for life.

Two categories of offences under section 437(1)

  • Sub-section (1) of Section 437, makes a dichotomy in dealing with non-bailable offences. The first category relates to offences punishable with death or imprisonment for life and the rest are all other non-bailable offences.

The First Category

  • With regard to the first category, Section 437(1), imposes a bar to grant of bail by the Court or the officer incharge of a police station to a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, if there appear reasonable grounds for believing that he has been so guilty. Naturally, therefore, at the stage of investigation unless there are some materials to justify an officer or the Court to believe that there are no reasonable grounds for believing that the person accused of or suspected of the commission of such an offence has been guilty of the same, there is a ban imposed under Section 437(1), Cr.P.C. against granting of bail.
  • Whenever a person is arrested by the police for such an offence, there should be materials produced before the Court to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the Court has no other option than to commit him to custody.
  • At that stage, the Court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits.
  • It is clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence.
  • This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest for the accusation or for strong suspicion of commission by the person of such an offence.
  • It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life (Section 41 ) and forwards him to a Magistrate [Section 167(1) ] the Magistrate at that stage will have reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to Section 437(1) bail appears to be out of question.

The Second Category

  • In all other non-bailable cases judicial discretion will always be exercised by the Court in favour of granting bail subject to sub-section (3) of Section 437 with regard to imposition of conditions, if necessary. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life.
  • Under sub-section (4) an officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) is required to record in writing his or its reasons for so doing. That is to say, law requires that in non-bailable offences punishable with death or imprisonment for life, reasons have to be recorded for releasing a person on bail, clearly disclosing how discretion has been exercised in that behalf.

Role of Courts

  • Courts over-see the action of the police and exercise judicial discretion in granting bail, always bearing in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the cause of justice does not suffer. After the Court releases a person on bail under sub-section (1) or sub-section (2) of Section 437 it may direct him to be arrested again when it considers necessary so to do. This will be also in exercise of its judicial discretion on valid grounds.
  • Section 437(6) is intended to speed up trial without unnecessarily detaining a person as an undertrial prisoner, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
  • Section 437(7) provides that if at any time after the conclusion of a trial of any person accused of non-bailable offence and before the judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of such an offence, it shall release the accused, if he is in custody, on the execution of him of a bond without sureties for his appearance to hear the judgment.

The principle underlying Section 437

  • The principle underlying Section 437 is therefore, towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail.

Applicability

  • Section 437 is concerned only with the Court of Magistrate. It expressly excludes the High Court and the Court of Session.

 

Section 437A

  • Before conclusion of trial or disposal of appeal:
  • court shall require accused
    • to execute bail bonds with sureties
    • to appear before higher court
    • when such court issues notice on any appeal filed against judgment
  • Such bail bonds shall be in force for 6 months

 

Section 438(1)             Bail to person apprehending arrest

  • Where any person has reason to believe
    • that he may be arrested on accusation of a non-bailable offence
  • he may apply to High Court or Court of Session
    • for a direction that in the event of such arrest
    • he shall be released on bail
  • After taking into consideration
    • nature and gravity of accusation
    • antecedents of applicant, including whether he has previously undergone
      •  imprisonment on conviction for a cognizable offence
    • possibility of applicant to flee from justice
    • whether accusation has been made with object of
      •  injuring or humiliating applicant by having him arrested
  • High Court or Court of Session may
    • either reject the application forthwith
    • or issue interim order for grant of anticipatory bail
  • Where High Court or Court of Session
    • has not passed any interim order
    • or has rejected application for grant of anticipatory bail
  • it shall be open to police officer
    • to arrest applicant without warrant on the basis of accusation

 

Section 438(1A)

  • Where Court grants an interim order:
  • it shall forthwith cause
    • a notice of not less than seven days
    • together with a copy of such order
  • to be served on Public Prosecutor and Superintendent of Police
    • with a view to give Public Prosecutor a reasonable opportunity of being heard
    • when application shall be finally heard by Court

Section 438(1B)

  • Presence of applicant seeking anticipatory bail
    • shall be obligatory
    • at the time of final hearing and passing of final order
  • if on application made by Public Prosecutor
  • Court considers such presence necessary in interest of justice
[Note:  Inserted by CrPC Amendment Act 2005]

 

Section 438(2)

  • When High Court or Court of Sessions makes such direction
  • it may impose conditions including
    • a condition that the person shall make himself available
      • for interrogation by a police officer as and when required
    • a condition that the person shall not cause
      • any inducement, threat or promise to a person acquainted with facts of case
      • so as to dissuade him from disclosing such facts to Court or police officer
    • a condition that the person shall not leave India
      • without previous permission of Court
    • such other condition as may be imposed u/s 437(3)
      • as if bail were granted under that section

 

Section 438(3)

  • If such person is thereafter arrested
    •  by a police officer without warrant on such accusation
    • and is prepared at the time of arrest or while in custody to give bail
  • he shall be released on bail
  • If a Magistrate taking cognizance of such offence decides
    • that a warrant should be issued against that person
    • he shall issue a bailable warrant in confirmity with direction of Court

 

New provision:                   Section 438(4)

**Note: Inserted by the Criminal Law Amendment Act 2018 wef 21 April 2018

  • This section shall not apply
    • to any case involving the arrest of any person
    • on accusation of having committed an offence u/s 376(3) or 376AB or 376DA or 376DB of IPC

Explanatory Notes by DLA on section 438(4)

  • As a result of this new provision inserted by the Criminal Law Amendment Act 2018, protection of anticipatory bail would henceforth not be available to persons accused of having committed  rape and gang rape of women under sixteen years of age and under twelve years of age.

 

Note:

  • Section 18 of SCs and STs( Prevention of Atrocities) Act 1989 provides:
  • Nothing in section 438 of Criminal Procedure Code shall apply
    • to a case involving arrest of any person
    • on an accusation of having committed an offence under this Act

Explanatory Notes by DLA on section 18 of SC/ST Act

Cases where the bar against anticipatory bail under the SC/ST Act is not applicable

If a person is able to show that, prima facie, he has not committed any atrocity against a member of SC and ST and that the allegation was mala fide and prima facie false and that prima facie no case was made out, there is no justification for applying Section 18 in such cases.

Exclusion of Section 438 Cr.P.C. applies when a prima facie case of commission of offence under the Atrocities Act is made. On the other hand, if it can be shown that the allegations are prima facie motivated and false, such exclusion will not apply.

Rationale

Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court.

An accused is certainly entitled to show to the Court, if he apprehends arrest, that the case of the complainant was motivated. If it can be so shown, there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent.

Unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case, there will be no protection available to innocent citizens.

Thus, limiting the exclusion of anticipatory bail in such cases is essential for protection of fundamental right of life and liberty under Article 21 of the Constitution.

Conclusion

There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide.

Source:  Dr.  Subhash  Kashinath  Mahajan    v.    State  of  Maharashtra    March 20, 2018

 

Subsequent amendment by Parliament

Parliament has since amended the SC & ST [Prevention of Atrocities] Act in August 2018 to nullify the abovesaid judgment of the Supreme Court.

The following provision has been inserted in that Act:

  • “The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any  judgment or order or direction of any Court.”

The current legal position therefore is that anticipatory bail is not available in case of accusations under the SC & ST [Prevention of Atrocities] Act.

 

Other Explanatory Notes by DLA on section 438

  • Section 438 affords what is generally referred to as ‘anticipatory bail‘, an expression which was used by the Law Commission in the 41st Report. Any order of bail can, of course, be effective only from the time of arrest.

What is an anticipatory bail?

  • The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.
  • Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence in respect of which the order is issued.
  • In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.

When is an anticipatory bail sought?

  • Anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest.
  • That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent.
  • In fact, the stage, at which anticipatory bail is sought, brings about its striking dissimilarity with the situation in which a person who is arrested for commission of a non-bailable offence asks for bail.

Are there limitations similar to section 437?

  • Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail. There is no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1).
  • Section 437(1), while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence “shall not be so released” if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437(1) should govern the grant of relief under Section 438(1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision.

Reasons

  • In cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing.

Can conditions be imposed?

  • While granting relief u/s 438(1), appropriate conditions can be imposed u/s 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery u/s 27 of Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.

But no unnecessary restrictions

  • Since denial of bail amounts to deprivation of personal liberty, the court should lean against imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section.
  • Section 438 is a procedural provision which is concerned with personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail.
  • An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.

Grant of anticipatory bail

  • If the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.
  • The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.

Reason to believe

  • Section 438(1) lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
  • Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested.
  • Grounds on which belief of applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, as  it is then alone that court can determine whether applicant has reason to believe that he may be so arrested.

Is filing of an FIR necessary?

  • 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 FIR is not yet filed.
  • Also, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.

No blanket order

  • A ‘blanket order’ of anticipatory bail should not generally be passed. This flows from the very language of the section which requires the applicant to show that he has “reason to believe” that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine.

What should the bail application contain?

  • Specific events and facts must be disclosed by the applicant in order to enable the court to judge the reasonableness of his belief, the existence of which is the sine qua non of exercise of power conferred by this section.

Paramount consideration

  •  It is of paramount consideration to remember that freedom of individual is as necessary for the survival of society as it is for the egoistic purpose of the individual.
  • A person seeking anticipatory bail is still a free man entitled to presumption of innocence. He is willing to submit to restraints on his freedom, by acceptance of condition which the court may think fit to impose, in consideration of the assurance that if arrested he shall be enlarged on bail.

 

Section 439            Bail powers of High Court, Court of Sessions

(1)

  • High Court or Court of Sessions may direct
    • that any person accused of an offence and in custody
    • be released on bail
  • If offence is of nature specified in Section 437(3)
    • Court may impose any condition necessary for purposes mentioned there
  • High Court or Court of Sessions may direct
    • that any condition imposed by a Magistrate when releasing any person on bail
    • be set aside or modified

Proviso:    [Inserted by the Criminal Law Amendment Act 2018 wef 21 April 2018]

  • High Court or Court of Session shall
    • before granting bail to a person accused u/s 376(3) or 376AB or 376DA or 376DB of IPC
  • give notice of the application for bail to the Public Prosecutor
    • within fifteen days from the date of such application

 

Explanatory Notes by DLA on section 439(1)

  • Section 439(1) of the new Code confers special powers on High Court or Court of Session regarding bail. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases.
  • Unlike under Section 437(1) there is no ban imposed under Section 439(1) 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. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused.
  • Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1). The over-riding considerations in granting bail which are common both in the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds.

Considerations before  the Sessions Judge or the High Court

  • It is difficult to reach a conclusion that the Sessions Judge or the High Court need not even bear in mind the guidelines which the Magistrate has necessarily to follow in considering bail of an accused.
  • It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying wide powers, will be oblivious of considerations of likelihood of the accused being guilty of an offence punishable with death or imprisonment for life.
  • Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of bail under Section 437 Cr.P.C for the Magistrate will be ignored by the High Court or Sessions Judge.

What is the scope of the expression “in custody” in section 439(1)?

  • A person is said to be in custody when he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court’s jurisdiction and submitted to its orders by physical presence.
  • He who is under the control of the court or is in the physical hold of an  officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person.
  • Custody, in the context of Section 439, ( not for anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and order of the court.
  • A person can be in custody not merely when the police arrest him, produce him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions.
  • Sections 107 and 108 of the Customs Act do not contemplate immediate arrest of a person being summoned in connection with an enquiry, but only contemplates surrendering to the custody of the Customs Officer which could subsequently lead to arrest and detention.

Pre-condition for applying for bail under section 439(1)

  • The pre-condition to applying the provisions of Section 439 of the Code is that a person who is an accused must be in custody and his movements must have been restricted before he can move for bail. A person can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.

 

New provision inserted by the Criminal Law Amendment Act 2018 wef 21 April 2018:

Section 439(1A)

  • Presence of the informant or any person authorised by him
    • shall be obligatory at the time of hearing of bail application u/s 376(3) or 376AB or 376DA or 376DB of IPC

 

Section 439(2)

  • High Court or Court of Sessions may direct
    • that any person who has been released on bail
    • be arrested and commit him to custody

Explanatory Notes by DLA on section 439(2)

  • Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection.

Law on cancellation of bail

  • Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another.
  • It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves review of a decision already made and can by and large be permitted only if by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.
  • The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt.
  • Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent.
  • Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution.

Nature of burden

Question

What is the nature of burden which rests on the prosecution in an application for cancellation of bail?

Ans.

  • The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused.
  • The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused.
  • The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses.
  • Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.

Question

  • Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because they are won over by the accused?

Ans.

  • No. It is sufficient if it is proved by preponderance of probabilities.

Competency of Courts

  • Under Section 439(2) of the Code, a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. However,  a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court.
  • If a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody.
  • When the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail.
  • The High Court has undoubtedly jurisdiction to entertain the application under Section 439(2) for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail.
  • But, ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of an accused.

The two paramount considerations

The two paramount considerations in determining cancellation of bail:

  • Likelihood of the accused fleeing from justice
  • Likelihood of the accused tampering with prosecution evidence

Both of these relate to ensuring a fair trial of the case in a Court of Justice.

Conclusion

The power under section 439(2), though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses.

************

 

CASE   LAW   ON   BAIL   PROVISIONS

1.  Moti Ram      v.     State of M.P.     [1978 SC]

2.  State      v.     Captain Jagjit Singh         [1962 SC]

3.  Gurbaksh Singh Sibbia      v.      State of Punjab      [1980 SC]

4.  Gurcharan Singh           v.       State (Delhi Admn.)             [1978 SC]

5.  State (Delhi Administration)     v.     Sanjay Gandhi     [1978 SC]

 

Case law on grant of bail

Moti Ram      v.     State of M.P.     [1978 SC]

“The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread,” lampooned Anatole France.

Criminal appeal of the petitioner pends in this Court and he has obtained an order for bail in his favour “to the satisfaction of the Chief Judicial Magistrate”. The direction of this Court did not spell out the details of the bail, and so, the magistrate ordered that a surety in a sum of Rs 10,000 be produced which, in actual impact, was a double denial of the bail benefit.

For one thing the miserable mason, the petitioner before us, could not afford to procure that huge sum or manage a surety of sufficient prosperity. Affluents do not befriend indigents. For another, the magistrate made an odd order refusing to accept the surety ship of the petitioner’s brother because he and his assets were in another district.

Geographic allergy at the judicial level makes mockery of equal protection of the laws within the territory of India. India is one and not a conglomeration of districts, untouchably apart.

When this Court’s order for release was thus frustrated by magisterial intransigence the prisoner moved this Court again to modify the original order “to the extent that petitioner be released on furnishing surety to the tune of Rs 2,000 or on executing a personal bond”.

From this factual matrix three legal issues arise

(1) Can the Court, under the Code of Criminal Procedure, enlarge, on his own bond without sureties, a person undergoing incarceration for a nonbailable offence either as undertrial or as convict who has appealed or sought special leave?

(2) If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and

3) Is it within the power of the Court to reject a surety because he or his estate is situate in a different district or State?

The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are persona grata, may well lie the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners of our country with its vast diversity.

There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of that matter do not have to be examined now. It is a sombre reflection that many little Indians are forced into long cellular servitude for little offences because trials never conclude and bailors are beyond their meagre means.

There is no definition of bail in the Code although offences are classified as bailable and non-bailable.

According to the American Jurisprudence, there is power in the court to release the defendant without bail or on his own recognizance. Likewise, the definition of bail as given in Webster’s Third Year International Dictionary: “The process by which a person is released from custody”.

The concept of bail has a long history and deep roots in English and American law. Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial. From this grew the modern practice of posting a money bond through a commercial bondsman who receives a cash premium for his service, and usually demands some collateral as well. In the event of non-appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may produce the accused in court.

The consequences of pre-trial detention are grave. Defendants presumed innocent are 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.

The legal literature on bail jurisprudence lends countenance to the contention that bail, loosely used, is comprehensive enough to cover release on one’s own bond with or without sureties.

Primarily Chapter XXXIII is the nidus of the law of bail. Section 436 of the Code speaks of bail but the proviso makes a contradistinction between ‘bail’ and ‘own bond without sureties’. Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence ‘is prepared to give bail’.

Here, ‘bail’ suggests ‘with or without sureties’. And, ‘bail bond’ in Section 436(2) covers own bond. Section 437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. It cannot be that a small boy or sinking invalid or pardanashin should be refused release and suffer stress and distress in prison unless sureties are hauled into a far-off court with obligation for frequent appearance:

‘Bail’ there suggests release, the accent being on undertaking to appear when directed, not on the production of sureties. But Section 437(2) distinguishes between bail and bond without sureties.

Section 445 suggests, especially when read with the marginal note, that deposit of money will do duty for bond ‘with or without sureties’. Section 441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation of bail as covering own bond with and without sureties. Superficially viewed, it uses the words ‘bail’ and ‘own bond’ as antithetical, if the reading is literal. Incisively understood, Section 441(1) provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub-section. To read ‘bail’ as including only cases of release with sureties will stultify the sub-section; for then, an accused released on his own bond without bail, i.e. surety, cannot be conditioned to attend at the appointed place. Section 441(2) uses the word ‘bail’ to include ‘own bond’ loosely as meaning one or the other or both. Moreover, an accused in judicial custody, actual or potential, may be released by the court to further the ends of justice and nothing in Section 441(1) compels a contrary meaning.

Section 441(2) and (3) use the word ‘bail’ generically because the expression is intended to cover bond with or without sureties.

The slippery aspect is dispelled when we understand the import of Section 389(1):

389(1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

The court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an under-trial is worse off than a convict or that the power of the court to release increases when the guilt is established. It is not the court’s status but the applicant’s guilt status that is germane. That a guilty man may claim judicial liberation, pro tempore without sureties while an undertrial cannot is a reductio ad absurdem.

Likewise, the Supreme Court’s powers to enlarge a prisoner, as the wide words of Order 21 Rule 27 (Supreme Court Rules) show, contain no limitation based on sureties. Counsel for the State agrees that this is so, which means that a murderer, concurrently found to be so, may theoretically be released on his own bond without sureties while a suspect, presumed to be innocent, cannot. Such a strange anomaly could not be, even though it is true that the Supreme Court exercises wider powers with greater circumspection.

The truth, perhaps, is that indecisive and imprecise language is unwittingly used, not knowing the draftsman’s golden rule:

In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand.

If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with, after being found guilty, if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, surety ship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on the provisions. The hornet’s nest of Part III need not be provoked if we read ‘bail’ to mean that it popularly does, and lexically and in American Jurisprudence is stated to mean, viz. a generic expression used to describe judicial release from custodia juris.

Bearing in mind the need for liberal interpretation in areas of social justice, individual freedom and indigents’ rights, we hold that bail covers both—release on one’s own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.

Even so, poor men – Indians are, in monetary terms, indigents – young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances – put whatever reasonable conditions you may.

It shocks one’s conscience to ask a mason like the petitioner to furnish sureties for Rs 10,000.

To add insult to injury, the magistrate has demanded sureties from his own district! What is a Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies.

What law prescribes surety is from outside or non-regional language applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own homeland.

We mandate the magistrate to release the petitioner on his own bond in a sum of Rs 1,000.

We leave it to Parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community, membership of stable organisations, should prevail for bail bonds to ensure that the ‘bailee’ does not flee justice. The best guarantee of presence in court is the reach of the law, not the money tag. the judiciary will do well to remember that the geo-legal frontiers of the Central Codes cannot be disfigured by cartographic dissection in the name of language or province.

********

 

Case Law on section 439(1)

State      v.     Captain Jagjit Singh         [1962 SC]

The respondent Jagjit Singh along with two others was prosecuted for conspiracy and also under Sections 3 and 5 of the Indian Official Secrets Act. The respondent is a former captain of the Indian Army and was at the time of his arrest in December, 1960, employed in the delegation in India of a French company. The other two persons were employed in the Ministry of Defence and the Army Headquarters, New Delhi. The case against the three persons was that they in conspiracy had passed on official secrets to a foreign agency.

The respondent applied for bail to the Sessions Judge; but his application was rejected. Thereupon the respondent applied under Section 498 of the Code of Criminal Procedure to the High Court, and the main contention urged before the High Court was that on the facts disclosed the case against the respondent could only be under Section 5 of the Act, which is bailable and not under Section 3 which is non bailable.

The High Court was of the view that it was hardly possible at that stage to go into the question whether Section 3 or Section 5 applied; but that there was substance in the suggestion on behalf of the respondent that the matter was arguable. Consequently the High Court took the view that as the other two persons prosecuted along with the respondent had been released on bail, the respondent should also be so released, particularly as it appeared that the trial was likely to take a considerable time and the respondent was not likely to abscond. The High Court, therefore, allowed bail to the respondent. Thereupon the State made an application for special leave which was granted. The bail granted to the respondent was cancelled by an interim order by this Court, and the matter has now come up before us for final disposal.

There is in our opinion a basic error in the order of the High Court. Whenever an application for bail is made to a court, the first question that it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise. If the offence is bailable, bail will be granted under Section 436 of the Code of Criminal Procedure without more ado; but if the offence is not bailable, further considerations will arise and the court will decide the question of grant of bail in the light of those further considerations. The error in the order of the High Court is that it did not consider whether the offence for which the respondent was being prosecuted was a bailable one or otherwise. Even if the High Court thought that it would not be proper at that stage, where commitment proceedings were to take place, to express an opinion on the question whether the offence in this case fell under Section 5 which is bailable or under Section 3 which is not bailable, it should have proceeded to deal with the application on the assumption that the offence was under Section 3 and therefore not bailable. The High Court, however, did not deal with the application for bail on this footing, for in the order it is said that the question whether the offence fell under Section 3 or Section 5 was arguable. It follows from this observation that the High Court thought it possible that the offence might fall under Section 5. This, in our opinion, was the basic error into which the High Court fell in dealing with the application for bail before it, and it should have considered the matter even if it did not consider it proper at that stage to decide the question whether the offence was under Section 3 or Section 5, on the assumption that the case fell under Section 3 of the Act.

It should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with the larger interests of the public or the State, and similar other considerations, which arise when a court is asked for bail in a non-bailable offence. It is true that under Section 498, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence. This, the High Court does not seem to have done, for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one.

The only reasons which the High Court gave for granting bail in this case were that the other two persons had been granted bail, that there was no likelihood of the respondent absconding, he being well-connected, and that the trial was likely to take considerable time. These are however not the only considerations which should have weighed with the High Court if it had considered the matter as relating to a non-bailable offence under Section 3 of the Act.

The first question therefore that we have to decide in considering whether the High Court’s order should be set aside is whether this is a case which falls prima facie under Section 3 of the Act. It is, however, unnecessary now in view of what has transpired since the High Court’s order to decide that question. It appears that the respondent has been committed to the Court of Session along with the other two persons under Section 120-B of the Indian Penal Code and under Sections 3 and 5 of the Act read with Section 120-B. Prima facie therefore, a case has been found against the respondent under Section 3, which is a nonbailable offence.

It is in this background that we have now to consider whether the order of the High Court should be set aside. Among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under Section 498 of the Code of Criminal Procedure. Now Section 3 of the Act erects an offence which is prejudicial to the safety or interests of the State. Obviously, the offence is of a very serious kind. The case against the respondent is in relation to the military affairs of the Government, and prima facie, therefore, the respondent if convicted would be liable upto fourteen years’ imprisonment. In these circumstances considering the nature of the offence, it seems to us that this is not a case where discretion, which undoubtedly vests in the court, under Section 498, should have been exercised in favour of the respondent. We advisedly say no more as the case has still to be tried.

It is true that two of the persons who were prosecuted along with the respondent were released on bail prior to the commitment order; but the case of the respondent is obviously distinguishable from their case in as much as the prosecution case is that it is the respondent who is in touch with the foreign agency and not the other two persons prosecuted along with him. The fact that the respondent may not abscond is not by itself sufficient to induce the court to grant him bail in a case of this nature. Further, as the respondent has been committed for trial to the Court of Session, it is not likely now that the trial will take a long time. In the circumstances we are of opinion that the order of the High Court granting bail to the respondent is erroneous and should be set aside. We therefore allow the appeal and set aside the order of the High Court granting bail to the respondent.

We, however, direct that the Sessions Judge will take steps to see that as far as possible the trial of the respondent starts within two months of the date of this order.

* * * * *

 

Case Law on section 438

Gurbaksh Singh Sibbia      v.      State of Punjab      [1980 SC]

These appeals by special leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests. Our task in these appeals is how best to balance these interest while determining the scope of Section 438 of the Code of Criminal Procedure.

Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in Punjab. Grave allegations of political corruption were made against him whereupon, applications were filed in the High Court under Section 438, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges. A Full Bench dismissed them.

The Code of Criminal Procedure, 1898 did not contain any specific provision corresponding to the present Section 438. The Law Commission of India, in its 41st Report in 1969 pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant “anticipatory bail”.

The facility which Section 438 affords is generally referred to as ‘anticipatory bail’, an expression which was used by the Law Commission in the 41st Report. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton’s Law Lexicon, is to ‘set at liberty a person arrested or imprisoned, on security being taken for his appearance’. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. An order of bail gives back to the accused freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested.

The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued.

In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.

Departing from Sections 437 and 439, Section 438(1) uses the language that High Court or Court of Session “may, if it thinks fit” direct that the applicant be released on bail.

It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, insofar as one may, and to give full play to the presumption that he is innocent. In fact, the stage, at which anticipatory bail is sought, brings about its striking dissimilarity with the situation in which a person who is arrested for commission of a non-bailable offence asks for bail.

The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such condition as the case may warrant.

Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless the court at the stage of granting anticipatory bail is satisfied that such a charge appears to be false or groundless.

Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail. We see no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1).

That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence “shall not be so released” if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437(1) should govern the grant of relief under Section 438(1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision.

In cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In case falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing.

The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release there applicant on bail is, normally the credibility of the allegations contained in the first information report. In the majority of cases falling under Section 438, that data will be lacking for forming the requisite belief.

While granting relief u/s 438(1), appropriate conditions can be imposed u/s 438(2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery u/s 27 of Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.

Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya [1960 SC] to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed so have surrendered himself to police.

The broad foundation of this rule is stated to be that Section 46 does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient.

Since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.

As long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as punishment.

In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. But it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.

The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.

It is of paramount consideration to remember that freedom of individual is as necessary for the survival of society as it is for the egoistic purpose of the individual. A person seeking anticipatory bail is still a free man entitled to presumption of innocence. He is willing to submit to restraints on his freedom, by acceptance of condition which the court may think fit to impose, in consideration of the assurance that if arrested he shall be enlarged on bail.

We would therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion.

Section 438(1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe” that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested.

Grounds on which belief of applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, as  it is then alone that court can determine whether applicant has reason to believe that he may be so arrested.

Thirdly, the 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 FIR is not yet filed.

Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.

A ‘blanket order’ of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has “reason to believe” that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine.

The rationale of a direction u/s 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of exercise of power conferred by the section.

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Case Law on cancellation of bail under section 439(2)

Gurcharan Singh           v.       State (Delhi Admn.)             [1978 SC]

These two appeals are directed against the judgment and order of the Delhi High Court cancelling the orders of bail of each of the appellants passed by the Sessions Judge. They were all arrested in pursuance of the First Information Report lodged by CBI in June 1977 in what is now described as the “Sunder Murder Case”.

Sunder was said to be a notorious dacoit who was wanted in several cases of murder and dacoity alleged to have been committed by him in Delhi and elsewhere. It is stated- that by May, 1976 Sunder became a “security risk for Mr Sanjay Gandhi”. It appears Sunder was arrested at Jaipur on August 31, 1976 and was in police custody in Delhi between November 2, 1976 and November 26, 1976.

It is alleged that the appellants ranging from the Deputy Inspector General of Police and the Superintendent of Police at the top down to some police constables were a party to a criminal conspiracy to kill Sunder and caused his death by drowning him in the Yamuna in pursuance of the conspiracy. According to the prosecution, the alleged murder took place on the night of November 24, 1976.

The appellants were arrested in connection with the above case between June 10, 1977 and July 12, 1977 and the Magistrate declined to release them on bail. Thereafter, they approached the Sessions Judge under Section 439 (1) and secured release on bail of the four appellants on August 1, 1977 and of the eight other police personnel on August 11, 1977.

The Delhi Administration moved the High Court under Section 439(2) Cr. P.C. against the orders of the Sessions Judge for cancellation of the bail. On September 19, 1977 the High Court set aside the orders of the Sessions Judge.

On the allegations, this is principally a case of criminal conspiracy to murder a person in police custody be he a bandit. Police personnel from the Deputy Inspector General of Police to police constables are said to be involved as accused.

Before the FIR, there had been a preliminary inquiry conducted by the CBI. Fifty-three witnesses were examined in that inquiry and six of them were said to be eye-witnesses. These eye-witnesses were all police personnel. During this preliminary inquiry, all the six alleged eye-witnesses did not support the prosecution case, but gave statements in favour of the accused.

The FIR was lodged on June 10, 1977. During the course of investigation, seven witnesses including six persons already examined during the preliminary inquiry, gave statements implicating the appellants in support of the prosecution. The witnesses were also forwarded to the Magistrate for recording their statements under Section 164, Cr.P.C. All the seven witnesses, continued to support the prosecution case in their statements under Section 164. Six eye-witnesses who made such discrepant statements and had supported the defence version at one stage, explained that some of the accused, namely, D.S.P. R. K. Sharma and Inspector Harkesh had exercised pressure on them to make such statements in favour of the defence.

It is in the above background that the Delhi Administration moved the High Court for cancellation of the bail granted by the Sessions Judge, alleging that there was grave apprehension of the witnesses being tampered with by the accused persons on account of their position and influence which they wielded over the witnesses.

Under the Code an accused after being arrested is produced before the Court of a Magistrate. There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court. Section 437(1) Cr.P.C. takes care of the situation arising out of an accused being arrested by the police and produced before a Magistrate.

The Law of Bail

It is difficult to reach a conclusion that the Sessions Judge or the High Court need not even bear in mind the guidelines which the Magistrate has necessarily to follow in considering bail of an accused. It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying wide powers, will be oblivious of considerations of likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of bail under Section 437 Cr.P.C for the Magistrate will be ignored by the High Court or Sessions Judge.

Section 439

Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct a person who has been released on bail to be arrested and committed to custody.

Under Section 439(2) of the new Code, a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court.

If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.

It is significant to note that under Section 397, Cr.P.C, while the High Court and Sessions Judge have concurrent powers of revision, it is expressly provided under sub-section (3) that when an application under that section has been made by any person to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

There is no provision in the new Code excluding jurisdiction of the High Court in dealing with an application under Section 439(2) Cr.P.C. to cancel bail after the Sessions Judge had been moved and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction to entertain the application under Section 439(2) Cr.P.C for cancellation of bail notwithstanding that the Sessions Judge had earlier admitted the appellants to bail.

Section 436

Chapter XXXIII of the new Code contains provisions in respect of bail bonds. Section 436, Cr.P.C. with which this Chapter opens makes an invariable rule for bail in case of bailable offences subject to the specified exception under sub-section (2) of that section.

Section 437

Section 437 Cr.P.C. provides as to when bail may be taken in case of non-bailable offences. Sub-section (1) of Section 437, makes a dichotomy in dealing with non-bailable offences. The first category relates to offences punishable with death or imprisonment for life and the rest are all other non-bailable offences.

With regard to the first category, Section 437(1) imposes a bar to grant of bail by the Court or the officer incharge of a police station to a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life, if there appear reasonable grounds for believing that he has been so guilty. Naturally, therefore, at the stage of investigation unless there are some materials to justify an officer or the Court to believe that there are no reasonable grounds for believing that the person accused of or suspected of the commission of such an offence has been guilty of the same, there is a ban imposed under Section 437(1), Cr.P.C. against granting of bail.

In all other non-bailable cases judicial discretion will always be exercised by the Court in favour of granting bail subject to sub-section (3) of Section 437 with regard to imposition of conditions, if necessary. Under sub-section (4) an officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) is required to record in writing his or its reasons for so doing. That is to say, law requires that in non-bailable offences punishable with death or imprisonment for life, reasons have to be recorded for releasing a person on bail, clearly disclosing how discretion has been exercised in that behalf.

Section 437 deals with two stages during the initial period of investigation of a non-bailable offence. Even the officer in-charge of the police station may, by recording his reasons in writing, release a person accused of or suspected of commission of any non-bailable offence provided there are no reasonable grounds for believing that the accused has committed a non-bailable offence punishable with death or imprisonment for life.

Quick arrests by the police may be necessary when there are sufficient materials for the accusation or even for suspicion. When such an accused is produced before the Court, the Court has a discretion to grant bail in all non-bailable cases except those punishable with death or imprisonment for life if there appear to be reasons to believe that he has been guilty of such offences. The Courts over-see the action of the police and exercise judicial discretion in granting bail, always bearing in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the cause of justice does not suffer. After the Court releases a person on bail under sub-section (1) or sub-section (2) of Section 437 it may direct him to be arrested again when it considers necessary so to do. This will be also in exercise of its judicial discretion on valid grounds.

Under the first proviso to Section 167(2) no Magistrate shall authorise detention of an accused in custody under that section for a total period exceeding 60 days on the expiry of which the accused shall be released on bail if he is prepared to furnish the same. This type of release under the proviso shall be deemed to be a release under the provisions of Chapter XXXIII relating to bail. This proviso is an innovation in the new Code and is intended to speed up investigation by the police so that a person does not have to languish unnecessarily in prison facing a trial.

There is a similar provision under sub-section (6) of Section 437. This provision is again intended to speed up trial without unnecessarily detaining a person as an undertrial prisoner, unless for reasons to be recorded in writing, the Magistrate otherwise directs. We may also notice in this connection sub-section (7) of Section 437 which provides that if at any time after the conclusion of a trial of any person accused of non-bailable offence and before the judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of such an offence, it shall release the accused, if he is in custody, on the execution of him of a bond without sureties for his appearance to hear the judgment.

The principle underlying Section 437 is therefore, towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail.

Section 437 is concerned only with the Court of Magistrate. It expressly excludes the High Court and the Court of Session. The language of Section 437(1) may be contrasted with Section 437(7). While under subsection (1) the words are: “If there appear to be reasonable grounds for believing that he has been guilty”, sub-section (7) says: “that there are reasonable grounds for believing that the accused is not guilty of such an offence”. This difference in language occurs on account of the stage at which the two sub-sections operate. During the initial investigation of a case in order to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Whereas after submission of charge-sheet or during trial for such an offence the Court has an opportunity to form somewhat clear opinion as to whether there are reasonable grounds for believing that the accused is not guilty of such an offence.

Whenever a person is arrested by the police for such an offence, there should be materials produced before the Court to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the Court has no other option than to commit him to custody. At that stage, the Court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits.

In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub-section (3) of Section 437, Cr.P.C if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life.

It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest for the accusation or for strong suspicion of commission by the person of such an offence.

It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life (Section 41 of the new Code) and forwards him to a Magistrate [Section 167(1) of the new Code] the Magistrate at that stage will have reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to Section 437(1) bail appears to be out of question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as investigation progresses and more facts and circumstances come to light.

Section 439

Section 439(1) 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) 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. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused.

Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1). The over-riding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.

The question of cancellation of bail under Section 439(2) is certainly different from admission to bail under Section 439(1).  In considering the question of bail justice to both sides governs the judicious exercise of the Court’s judicial discretion.

Ordinarily the High Court will not exercise its discretion to interfere with an order of bail granted by the Sessions Judge in favour of an accused.

Application of the law on the facts of this case

In the peculiar nature of the case revealed from the allegations and the position of the appellants in relation to the eyewitnesses it was incumbent upon the Sessions Judge to give proper weight to the serious apprehension of the prosecution with regard to tampering with the eyewitnesses, which was urged before him in resisting the application for bail. The matter would have been different if there was absolutely no basis for the apprehension of the prosecution with regard to tampering of the witnesses and the allegation rested only on a bald statement.

The witnesses stated on oath under Section 164 that they had made the earlier statements due to pressurisation by some of the appellants. Where the truth lies will be determined at the trial. The only question which the Sessions Judge was required to  consider at that stage was whether there was a prima facie case made out, as alleged, on the statements of the witnesses and on other materials. There appeared at least nothing at that stage against the statement of ASI Gopal Das who had made no earlier contradictory statement. Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of trial.

In considering the question of bail of an accused in a non-bailable offence punishable with death or imprisonment for life, it is necessary for the Court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors referred to above. As a link in the chain of criminal conspiracy the prosecution is also relying on the conduct of some of the appellants in taking Sunder out of police lockup for making what is called a false discovery and it is but fair that the Panch witness in that behalf be not allowed to be got at.

We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence, relate to ensuring a fair trial of the case in a Court of Justice. It is essential that due and proper weight should be bestowed on these two factors apart from others.

We are satisfied that the High Court has correctly appreciated the entire position.

We find that the case is now before the committing Magistrate. The Magistrate will, therefore, without loss of further time pass an appropriate order under Section 209. The Court of Session will, thereafter, commence trial at an early date and examine all the eyewitnesses first and such other material witnesses thereafter as may be produced by the prosecution as early as possible. Trial should proceed de die in diem as far as practicable at least so far as the eyewitnesses and the above referred to Panch witness are concerned.   After statements of the eye-witnesses and the said Panch witness have been recorded, it will be open to the accused to move the Sessions Judge for admitting them to bail, pending further hearing.

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Case Law on section 439(2)

State (Delhi Administration)     v.     Sanjay Gandhi     [1978 SC]

Facts of the case

One Shri Amrit Nahata had produced a film called ‘Kissa Kursi Ka’, which portrayed the story of the political doings of the respondent and his mother, Smt. Indira Gandhi. The Board of Censors declined to grant a certificate for exhibition of the film whereupon Shri Nahata filed a writ petition in this Court for a Writ of mandamus. On October 29, 1975, a direction was given by the Court that the film be screened on November 17 to enable the Judges to see whether the censorship certificate was refused rightly.

In order to prevent this Court from exercising its constitutional jurisdiction and with a view to preventing the film from being publicly exhibited, the respondent and his co-accused Shri Vidya Charan Shukla, who was then the Minister for Information and Broadcasting, entered into a conspiracy to take possession of the film and to destroy it. The Supreme Court was informed that it was not possible to screen the film for evaluation by the Judges as spools of the film had got mixed up with some other films received by Government in connection with the International Film Festival.

After the emergency was lifted, information was received in consequence of which a raid was effected on the Gurgaon premises of Maruti Limited. The raid yielded incriminating material to show that the 13 boxes which had been received from Bombay at the New Delhi Railway Station containing spools of the film ‘Kissa Kursi Ka’ were burnt and destroyed in the factory premises. R. B. Khedkar, a Security Officer of the Maruti Limited and his assistant, Kanwar Singh Yadav, were arrested on the very day of the raid. Yadav made a statement on the following day stating how the film was burnt in the premises of the factory. Yadav’s confessional statement was recorded by the Chief Metropolitan Magistrate on June 3 and Khedkar’s on June 4. They were granted pardon under Section 306 of the Code of Criminal Procedure on July 14, 1977.

After completion of investigation, a charge-sheet was filed by the C.B.I. under Section 120B read with Sections 409, 435 and 201 of the Penal Code.

The committal proceedings commenced in the court of Chief Metropolitan Magistrate, Delhi on February 20, 1978. Khedkar who was examined on that day supported the prosecution. On February 21, the second approver Yadav was examined by the prosecution. He resiled both from the statement which he made to the police under Section 161 of the Code of Criminal Procedure as well as from his judicial confession.

On February 27, 1978, an application was filed by Delhi Administration, in the High Court of Delhi for cancellation of the respondent’s bail. That application was dismissed.

Law on cancellation of bail

Rejection of bail when bail is applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.

The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent.

Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution.

Therefore, one has to countenance a reasonable possibility that the employees of Maruti like the approver Yadav might have, of their own volition, attempted to protect the respondent from involvement in criminal charges. Their willingness now to oblige the respondent would depend upon how much the respondent has obliged them in the past. It is therefore necessary for the prosecution to show some act or conduct on the part of the respondent from which a reasonable inference may arise that the witnesses have gone back on their statements as a result of an intervention by or on behalf of the respondent.

Nature of burden

Before we go to the facts of the case, it is necessary to consider what precisely is the nature of burden which rests on the prosecution in an application for cancellation of bail. Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because they are won over by the accused? We think not.

The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. Whether an accused is absconding and therefore his property can be attached under Section 83 of the Criminal Procedure Code, whether a search of person or premises was taken as required by the provisions of Section 100 of the Code, whether a confession is recorded in strict accordance with the requirements of Section 164 of the Code and whether a fact was discovered in consequence of information received from an accused as required by Section 27 of the Evidence Act are all matters which fall particularly within the ordinary sweep of criminal trials. But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the same rigorous standard.

Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused.

The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail.

Our task therefore is to determine whether, by the application of the test of probabilities, the prosecution has succeeded in proving its case that the respondent has tampered with its witnesses and that there is a reasonable apprehension that he will continue to indulge in that course of conduct if he is allowed to remain at large.

Application of this law on the facts of this case

Kanwar Singh Yadav was working at the relevant time as a Security Supervisor under R. B. Khedkar. Both of them were arrested on the very day of the raid, that is, on May 25, 1977. On the 26th, the police recorded Yadav’s statement and on the 28th, he made a petition to the Chief Metropolitan Magistrate, expressing his willingness to confess.

On 14th February, the two approvers, Yadav and Khedkar, appeared at the C.B.I. office and filed written complaints dated the 13th that the respondent was making repeated attempts to call Yadav to meet him by sending the car with Ram Chander, driver of the respondent. One of these complaints is signed by Yadav and the other by Khedkar. Yadav turned hostile when he was examined on the 21st February before the Committing Magistrate. He went back on his police statement, resiled from his confession and risked his pardon. But he admitted in his cross-examination to the Public Prosecutor that he had given the complaint to the C.B.I. He explained it away by offering a series of excuses but we will only characterise that attempt as lame and unconvincing.

There is more than satisfactory proof of the respondent having attempted to suborn Yadav. Whether Yadav succumbed to the persuasion is not for us to say. The Sessions Judge shall have to decide that question uninfluenced by anything appearing herein. We are concerned with the respondent’s conduct, not with Yadav’s reaction or his motives. Khedkar stuck to the complaint.

That is in regard to the event of the 14th February. On the 17th Yadav and the respondent were seen together, the former leaving, the Maruti factory with the respondent in his car. This is supported by the affidavits of Sat Pal Singh, a constable of the Haryana Armed Constabulary who was on duty at the Factory, Ganpat Singh, a Postal Peon and Digambar Das, an Assistant Despatch Clerk in Maruti. It is undisputed that the respondent had gone for official work to the factory on the 17th.

We are inclined to the view that the respondent ultimately succeeded in establishing contact with Yadav. Whether the respondent succeeded in achieving his ultimate object is beyond us to say except that Yadav turned hostile in the Committing Magistrate’s court on February 21.

It cannot be overlooked that Charan Singh did turn hostile. The respondent knows that the witness turned hostile and significantly, though the witness refused to support the prosecution, he made an important admission that he had submitted a written application or complaint to Inspector Ved Prakash on July 12, 1977 and that “whatever is mentioned in that application is correct”. That application, which is really a complaint, contains the most flagrant allegation of attempted tampering with the witness by the respondent, through his driver Chattar Singh.

Even excluding the last incident in regard to Charan Singh which is really first in point of time and though it is corroborated by an entry in the General Diary, we are of the opinion that (i) Yadav’s complaint of the 14th February, (ii) Khedkar’s complaint of even date (iii) Yadav’s admission in his evidence that he did make the written complaint inspite of the fact that he had turned hostile (iv) affidavits of Sat Pal Singh, Ganpat Singh and Digambar Das in regard to the incident of the 17th furnish satisfactory proof that the respondent has abused his liberty by attempting to suborn the prosecution witnesses. He has therefore forfeited his right to remain free.

Section 439(2) of the Code of Criminal Procedure confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses.

But avoidance of undue hardship or harassment is the quintessence of judicial process. Justice, at all times and in all situations, has to be tempered by mercy, even as against persons who attempt to tamper with its processes. The apprehension of the prosecution is that ‘Maruti witnesses’ are likely to be won over. The instances discussed by us are also confined to the attempted tampering of Maruti witnesses like Yadav and Charan Singh, though we have excluded Charan Singh’s complaint from our consideration.

Since the appellant’s counsel has assured us that the prosecution will examine the Maruti witnesses immediately and that their evidence will occupy no more than a month, it will be enough to limit the cancellation of respondent’s bail to that period.

In the result, we allow the appeal partly, set aside the judgment of the High Court dated April 11, cancel the respondent’s bail for a period of one month from today and direct that he be taken into custody. Respondent will, in the normal course, be entitled to be released on fresh bail on the expiry of the aforesaid period.

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