On 2nd May of 2023, Supreme Court of India has taken a drastic step towards the judiciary system and asked the Allahabad High Court to immediate withdraw Judiciary work of a session judge and send him to the judicial academy to upgrade his judicial assessment skills. This action was taken against the trial courts which are continuously showing reluctance behaviour to grant a bail to accused in such cases where custody of accused was not necessary or needed despite of the various ruling of the Supreme Court where the court asked to adopt liberal approach and do not pass any detention order in routine or in mechanical way.
DETAIL OF CASES
Senior advocate Sidharth Luthra, who is assisting the court as amicus curiae, brought two orders passed in April to the court’s notice in which bail was rejected-
- One case is related to matrimonial dispute where a sessions judge in Lucknow rejected the anticipatory bail plea of a man and his mother, father and brother despite the fact that they were not arrested during the probe.
- In another case, an accused suffering from cancer was denied bail by CBI court in Ghaziabad.
BEFORE ANALYSIS OF THE JUDGMENT, LET’S UNDERSTAND THE CONCEPT OF BAIL
The term ‘Bail’ means temporary release of an accused person in criminal proceedings, whose trial is still pending by furnishing a bail bond with or without surety and with some conditions as well to which the accused person is compelling to remain within the jurisdiction of court.
As per the dictionary of ‘Law Lexicon’, ‘Bail’ is defined as ‘security for the appearance of the accused’.
The provisions related to Bail are mentioned under chapter XXXIII from section 436 to 450 of Criminal Procedure Code, 1973.
Further, the bail can be divided into: –
- REGULAR BAIL: An accused person who is already in police custody or arrested, can file an application for regular bail defined under section 436 and 437 of the Cr.P.C., based on the type of offence.
The offence can be of bailable and non-bailable, which are defines under section 436 and 437 respectively.
- Bailable offences: Section 2(a) of Cr.P.C. states that such offences that has been shown in the first schedule and which is made bailable by any other law for the time being in force.
In simple term we can understand the bailable offence as such offence which are not very serious in nature and the arrested person must be released after depositing the bail with the police. In such type of cases police has power to grant bail.
Section 436 of Criminal Procedure Code: under the said section when an accused person is arrested for bailable offence or detained without warrant, the police or court may release the accused on bail. In such type of bailable offenses accused has the right to be released on bail as a matter of right. The accused, if unable to furnish bail, shall be released on a personal bond.
- Non-bailable offences: Section 2(a) of Cr.P.C. further states that non-bailable offence are those offences which are not included in bailable offence in the First Schedule.
In other words, bailable offence are serious offences, where only court has discretionary power to grant bail. Unlike the bailable offences, in such cases police have no power to grant bail without the permission or order of Court.
As defined under section 437 ofCriminal Procedure Code, clearly states the conditions on which the accused can be released on bail or not. The bail application for non-bailable offences can only be dealt by High Court or session court on fulfilling of certain conditions as these types of offences are serious in nature.
LATEST RULING OF SUPREME COURT
The supreme Court of India in a case of “Satender Kumar Antil v. Central Bureau of Investigation &Anr.,dated July 11, 2022,issued some guidelines for deciding bail applications with the intent to ease the process of bail. The Court has divided the offences into four categories-
- Offences punishable with imprisonment of 7 years or less not falling in category B & D- For this category,
- First ordinary Summon to accused person.
- If not appeared then bailable warrant for physical appearance,
- Non-bailable warrant if failure to appear on issuance of bailable warrant,
- Bail application of such accused person on appearance may be decided without taking the accused in custody or by granting interim bail till the decision of bail application.
- Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years- The cases falling under category B, in such cases, after following the procedure of Category A, on appearance of accused the bail application may decide on merit.
- Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.- While dealing with the bail application under above mentioned special act, the court must consider the application on merit along with the additional condition of compliance of the provisions of Bail under NDPS S.37, 45 PMLA, 212(6) of Companies Act, 43 D (5) of UAPA, POSCO etc.
- Economic offences not covered by Special Acts- On appearance of the accused in Court pursuant to process issued bail application to be decided on merits.
Further, the Hon’ble Apex court has directed that-
- The officers are duty bound to comply with the mandatory provisions of section 41 and 41 A.
- There should be compliance of Section 41 and 41 A of the Cr.P.C. and further also stated that in case of non- compliance the accused person would be entitled for grant of bail.
- Further, the court has also directed that while dealing with the bail application under section 88, 170, 204 and 209 of Cr.P.C., there need not be any insistence.
- The bail application shall be decided within a period of two weeks except the provisions mandate otherwise.
- The anticipatory bail applications shall be disposed of within a period of six weeks.
- All courts including High Courts have to strictly adhere to all these stated guidelines.
ANALYSIS OF JUDGMENT
The apex court highlighted concerns about the overly stringent approach taken by the lower courts in granting bail to accused individuals. The judgment emphasized the fundamental principles of bail, emphasizing that bail is a right and not a punishment, and should be granted liberally to the accused especially when there is no risk of breach of conditions or unless there are valid reasons to believe that the accused will breach any conditions imposed.
In one of the cases, the accused persons approached the court for plea of the Anticipatory bail and the court denied the bail application to all accused persons, despite of the various precedent or judgment where the Hon’ble Apex court emphasized that detention should be the last resort and should only be imposed when it is necessary to prevent the accused from absconding or tampering with evidence. In cases where the accused can be effectively supervised and monitored through bail conditions, there is no justification for pre-trial detention.
In another case bail is denied to a person who is suffering from cancer by CBI court. The denial of bail to a person with a serious illness can raise ethical questions about compassion, humanity, and the right to healthcare. Balancing the rights of the accused with the demands of justice is a complex task, and courts have to consider those situations as well while denying a bail to a patient.
That the courts have failed to adhere with the guidelines of the Supreme Court provided in the case of Satendra Kumar Supra. Therefore, the directions given to High court to send the judges for further judicial academy marks a significant step towards promoting a fair and just criminal justice system. By emphasizing the importance of a more balanced approach to bail decisions, the judgment seeks to protect the rights of the accused and ensure that pre-trial detention is not imposed arbitrarily or disproportionately.
As per analysis of judgment, there can be following rational behind-
- Principle of Innocence: In India there is always a presumption that ‘An accused is presumed to be innocent until proven guilty’, denying bail without sufficient cause undermines this fundamental principle of criminal jurisprudence. Bail should be granted unless there are compelling reasons to believe that the accused will misuse their freedom.
- Bail as a Right: Bail is a right granted to an accused person, as opposed to a form of punishment. The denial of bail, therefore, should be the exception rather than the norm. As long as the accused can reasonably be trusted to comply with the conditions of bail, their liberty should not be unduly curtailed.
- Supreme Court as an Apex Court of India: The Supreme Court is the apex court of India, therefore, the precedent, Judgment and guidelines provided by the supreme court have binding effect on the all-other subordinate court as per the Article 141 of the Indian Constitution. Further, the courts have not considered the supreme court guidelines in respect of bail application while dealing with the bail application. Thus, violated the Indian Constitution, which is apex law of the land and must be protected by the Judiciary.
Further the whole judgment is stated that the session court should not take hard approach to grant bail to accused as bail is surety and if they have not breached any kind of condition then why not allow them bail.
CONCLUSION
The supreme court emphasizes the importance of a more balanced approach to bail decisions, highlighting that bail is a surety of the accused’s appearance and should be granted liberally unless there are valid reasons to believe that the accused will breach any conditions imposed. This approach will not only be contributing to overcrowding in prisons but also protects the principle of presumption of innocence until proven guilty.
- INTERIM BAIL: Interim bail is a temporary or short period bail granted by the court during the pendency of application seeking anticipatory or regular bail. Such type of bail is granted when the court is certain that for the sake of justice, there must not be unnecessary imprisonment or detention of an accused.
- ANTICIPATORY BAIL: When a bail granted in anticipation of arrest. In other words, a person can apply for anticipatory bail before being arrest.
Section 438 of Cr.P.C. provides the provisions related to anticipatory bail. When a person has sufficient reasons to believe that he may be arrested on accusation of committing a non-bailable offence, then he can move an application before the High court or Session court of that area under this section for anticipatory bail.
- DEFAULT BAIL: Default bail is a matter of Right of a person. Section 167(2) of Cr.P.C. defined that when the police failed to investigate a case within the specific time period provided under section 167 of the Cr.P.C., then the court shall release the person on bail. It is known as default bail. Therefore, it is a fundamental right of an accused person under Article 21 of the Indian Constitution, to get bail under section 167 (2) of the Cr.P.C., after following the due procedure established under the said section.
Though to grant bail, there are certain conditions to which every person or accused person must obliged. On non-compliance of any condition, the court immediately revoked the bail bond, get the person or accused person in custody and further become ineligible to get bail.
After understanding the bail concept, now we are clear on the fact that granting a bail is depend on the nature or gravity of an offence.