Essence Behind Bailable & Non-Bailable Offence:
Every crime is considered to be wrong against society. The societal interest lies in fair investigation, inquiry, trial, and conviction of an accused. Therefore, arrest and custody are also justified in societal interest but it is also to be kept in mind that the person arrested is yet not declared guilty. Therefore, he also has the protection of art 21.
Whenever there are conflict b/w individual and societal interest, a balance has to be drawn. In bailable offense, the parliament already has done them justice in favor of the accused. But in the case of non-bailable offense, the balance of interest has to be examined by the court itself.
Grounds/ Factors to be taken into consideration at the the time of hearing bail application:
- The court shall examine whether there is a prima facie case against the accused or not as, without prima facie case, any detention of accused is illegal.
- The nature and the gravity of offense alleged against the accused shall also be examined. In case of extremely grave offenses, the court will normally be reluctant to grant the bail as the element of societal fear is always involved.
- The character and the behavior of the accused in the past and in particular immediately before the filing of the bail application have to be examined. In the context, the previous conviction of the accused will also be relevant. From the past conduct and the demeanor of the accused, the court will examine whether there is a possibility of the accused repeating the offense or absconding.
- The duration of detention before the bail application would also be material to some extent.
- The chance of accused tampering with the evidence or influencing the witness would also be examined. In this context the nature of evidence and the witness is material. It shall also be examined as to what is the socio-economic status of the accused about witness and evidence i.e. does the accused can control witness or evidence. The socio-economic condition per se would not be criteria rather if it is such that it provides effective control to the accused over evidence, then it will be a material factor.
- The fact that the accused is the sole-bread earner of the family may be taken onto consideration but it will not be the sole ground to grant the bail.
- The fact that the accused is pregnant or has a small child may be given some weightage. However, it is a weak ground.
- Old-age of the accused per se cannot be a ground for the bail. But other factors have to be examined.
- At the time of granting bail, the court will always examine the case diary to find out the above factors.
- At the time of deciding the bail application court will not get into of case rather limit itself to examine prima facie case and above-stated factors.
Gurubaksh Singh Sibia v/s St of Punjab
The essential purpose of anticipatory bail is to protect the applicant from unnecessary restraint w.r.t. his right to life and personal liberty. Anticipatory bail is not an immunity from arrest rather it is an immunity from custody. It is the bail in anticipation of arrest.
The applicant firstly has to prove that he has the reason to believe that he may be arrested for a non-bailable offense. Here, the reason to believe means some sufficient cause to believe. On a mere suspicion, the applicant will not be entitled to relief as mere suspicion is not equivalent to reason to believe. There has to a tangible ground on which the court is convinced that the apprehension of the applicant is genuine.
Anticipatory bail order is effective only about a specific case. Therefore, a blanket order for anticipatory bail cannot be passed to benefit the accused in any and every case.
The lodging of FIR is not the pre-condition for grant of pre- anticipatory bail. It can be granted at any stage of the proceeding i.e. prior or after FIR or at any subsequent stage. However, practically such an application is to be filed as early as possible because the applicant would not be allowed the benefit of anticipatory bail though he has been evading arrest for long.
Such bail not be granted at once rather the court is free to grant interim anticipatory bail first and thereafter upon hearing the bail application will pass the bail order.
In para 42nd of the Gurubaksh case, the court has held that generally, the order of anticipatory bail shall not be for a limited period but in the proper case, it may be for short period also. However, w.r.t. duration of anticipatory bail, it has been held in Adhri Dharan Das v/s St of WB, 2003 SC, while referring to Salauddin Abdul Ahmed Sheikh v/s St of Maharashtra, 1996 SC that anticipatory bail should be for a limited period only.
In Sattingappa Mahatre v/s St of Maharashtra, 2011 SC, held that the above two judgment has been passed per in-curium, i.e. in ignorance of decision of larger bench. However, in this case, the court held that any limited order of anticipatory bail is illegality and such bail should be for an unlimited period only.
It can be observed that the above ruling of the Siddharam case is also not directly line with the Gurubaksh Singh case as in para 42nd of the judgment, the SC has explicitly held that short duration order may be passed.
The present status of law, therefore, has to be guided by Gurubaksh Singh Case being a larger bench judge on this point.
Cancellation of Bail: –
The general rule is that bail shall not be canceled on the grounds or facts which arise before the bail. The court is deemed to have heard the bail application on all the existing circumstance and the prosecution has to raise all such facts before the court at the time of such hearing. Thus if cancellation is sought on such ground then the burden will be higher.
Nityanand Rai v/s St of Bihar, 2005 SC
Panchanad Mishra v/s Digambar Mishra & Others, 2005 SC
However, there can be the case where some facts which existed before the grant of bail is discovered by the prosecution after bail and if it is proved that even with due diligence, the prosecution could not have discovered such facts and it is also proved that the facts are so materially important that it could have affected the discretion of the court to grant them bail and the accused has deliberately suppressed such facts. Then the bail can be canceled on such grounds.
Ram Babu Tiwari v/s St of MP & Another’s, 2009 SC
If the bail has been granted by the court upon some illogical, irrelevant, and absurd consideration then the bail may be canceled on that grounds.
The illogical factor is such a factor that ought not to have been made the ground of bail. In such a case, the court before which the cancellation application is filed, shall not per se cancel the bail merely because some illogical consideration was taken into account at the time of bail rather the court will examine the importance or weightage of such factors about factor which were relevant. And if the court is of opinion that the bail could have been granted even if such illogical factors were not taken into account, it will not cancel the bail. On the other hand, if the court believes that the bail could not have been granted independently of such illogical factors, then it will cancel the bail.
Hameeda v/s Rashish Alias Basheed & Others, 2008 SC
The court has the power to impose the condition that the bail will be canceled if after the bail nature of offense aggravates. In such cases, if such a charge occurred, the court may cancel the bail. Whenever a bail is to be canceled, the court shall apply its judicial mind and only after the proper hearing will pass the cancellation as cancellation of bail is a direct encroachment of the accused protected u/a 21. Bail order, as well as cancellation order, has to be speaking order.
Successive Bail Application: –
Rajesh Rajan Alias Pappu Yadav v/s Kalyan Chander Sarkar, 2005 SC
The accused has the right to file bail application in successive but once the bail application has been rejected then the subsequent bail application should be based upon some new and different facts. As if the successive bail application is on the same facts then judicial proprietary and judicial discipline require that the bail cannot be granted on the same facts.
Particularly after the production of charge-sheet, the facts of the case become more static, and hence successive bail application will be deemed to be upon the same facts, unless, the applicant can prove new facts.
Such application, particularly after the production of charge-sheet, be filed before the same court so that it may on the face of it be observed if the facts have been charged or not and if there is no such charge found then it may dismiss the application without any hearing.
Akhilesh Kumar Singh v/s St of UP through DGP & Others, 2008 SC
The successive bail application can be filed if some material facts of the case have changed i.e. upon some new grounds but if the facts were the same and only the arguments are changed, then the application will not be heard.
Rajesh Rajan Yadav v/s CBI, 2007 SC
The applicant alleges that I have some new grounds;
- That the trial in my case has been unduly delayed. And the court has held that you have committed a grave offense punishable with death. In such cases, proper scrutiny is required which does take some time. So this is not new ground.
- The applicant alleges that he has been suffering from illness and he requires medical treatment, then court-ordered proper medical treatment in the jail itself.
- Due to my illness, I am not able to participate in the proceeding, hence my right to effective defense is being defeated. Court has ordered for video conferencing and denied to give bail.