Supreme Court Quarterly Digest 2024 On BAIL [January To March, 2024]

Bail - Supreme Court Quarterly Digest, 2024

An accused, while joining investigation as a condition for remaining enlarged on bail, is not expected to make self-incriminating statements under the threat that the State shall seek withdrawal of such interim protection. Bijender v State of Haryana, 2024 LiveLaw (SC) 209

Anticipatory bail cannot be granted merely because the accused is willing to pay an interim compensation. State of Jharkhand v. Md. Sufiyan, 2024 LiveLaw (SC) 54

Anticipatory Bail - Custodial interrogation is one of the effective modes of investigating into the alleged crime. It is equally true that just because custodial interrogation is not required that by itself may also not be a ground to release an accused on anticipatory bail if the offences are of a serious nature. However, a mere assertion on the part of the State while opposing the plea for anticipatory bail that custodial interrogation is required would not be sufficient. The State would have to show or indicate more than prima facie why the custodial interrogation of the accused is required for the purpose of investigation. (Para 12) Ashok Kumar v. State of Union Territory Chandigarh, 2024 LiveLaw (SC) 223

Bail / Anticipatory Bail - Application for anticipatory bail was not decided for a period of more than four years. The Judges are not deciding the matter on merits but find an excuse to shunt the case on different grounds. Held, decide the matter pertaining to bail / anticipatory bail as expeditiously as possible. (Para 4 - 6) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Bail / Anticipatory Bail - Expeditious adjudication of bail matters - High Court's duty to ensure timely justice - Supreme Court's directive to High Court of Bombay - Constitutionality of Article 21 - Liberty of citizen paramount - Urgency in deciding bail applications emphasized. (Para 3 - 6) Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 159

Bail cannot be cancelled merely due to non-appearance of accused before court. Krishna Sharma v. State of West Bengal, 2024 LiveLaw (SC) 65

Bail condition restraining political activities violates fundamental rights, can't be imposed. Siba Shankar Das v. State of Odisha, 2024 LiveLaw (SC) 259

Cancellation of Bail - Merely because the accused did not appear personally could not have been a ground for cancellation of bail. The parameters for grant of bail and cancellation of bail are totally different. The bail already granted may be cancelled, if it is found that the person who has been granted the benefit of bail has violated any of the conditions or misused the liberty by influencing the witnesses or tampering with the evidence. Krishna Sharma v. State of West Bengal, 2024 LiveLaw (SC) 65

Code of Criminal Procedure, 1973; Sections 61, 70, 204, 437 - An accused cannot be taken into custody when he voluntarily surrenders before the Court even though the Court which has taken cognizance of the chargesheet has not issued a summoning order against him. Bail application filed by such an accused, who voluntarily surrendered even in the absence of a summoning order, cannot be entertained. (Para 10) Souvik Bhattacharya v. Enforcement Directorate, Kolkata Zonal Office - II, 2024 LiveLaw (SC) 122

Code of Criminal Procedure, 1973; Section 82(1) - An accused would not be entitled to pre-arrest bail if the non-bailable warrant and the proclamation under Section 82(1) Cr.P.C. is pending against him. (Para 5) Srikant Upadhyay v. State of Bihar, 2024 LiveLaw (SC) 232

Code of Criminal Procedure, 1973; Section 82 and 83 - Mere filing of an anticipatory bail application by the accused could not be treated as his appearance before the court which had initiated proceedings under Section 82/83 Cr.P.C. against the accused. (Para 20) Srikant Upadhyay v. State of Bihar, 2024 LiveLaw (SC) 232

Code of Criminal Procedure, 1973; Section 167 and 173 - Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C. (Para 23) Central Bureau of Investigation v. Kapil Wadhawan, 2024 LiveLaw (SC) 58 : AIR 2024 SC 905 : 2024 Cri LJ 1082

Code of Criminal Procedure, 1973; Section 173(2) – Right to default bail on grounds of incomplete police report – Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Cr.P.C. (Para 15) Dablu Kujur v. State of Jharkhand, 2024 LiveLaw (SC) 227

Code of Criminal Procedure, 1973; Section 438 – Anticipatory bail granted on the condition is totally alien to the principles governing bail jurisprudence and is nothing short of perversity. State v. B. Ramu, 2024 LiveLaw (SC) 128

Code of Criminal Procedure, 1973; Section 438 – Pre-arrest/Anticipatory Bail – Grant of pre-arrest bail to a police officer facing allegations of manipulating the investigation so as to favour an accused would send out a wrong signal in society and would be against public interest. Presumptions and other considerations applicable to a layperson facing criminal charges may not carry the same weight while dealing with a police officer who is alleged to have abused his office. Considering the position held by the respondent, even if he was suspended from service, the possibility of his tampering with the witnesses and the evidence was sufficiently high. Bail order is liable to be set aside. (Para 9 & 10) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Code of Criminal Procedure, 1973; Section 438 – Pre-arrest/Anticipatory Bail – Court must record reasons for grant of Bail – An order of bail, bereft of any cogent reason, could not be sustained. Though grant of bail is discretionary, it calls for exercise of such discretion in a judicious manner and not as a matter of course. The High Court did not deem it necessary to record as to what weighed with it while granting pre-arrest bail to the respondent, hence, bail order is set aside. (Para 5, 6 & 7) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Code of Criminal Procedure, 1973; Section 438 – Bail / Anticipatory Bail – Considerations by Court while dealing with a bail petition – Similar considerations would apply even for grant of anticipatory bail – The 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 interest of the public or the State and other similar factors relevant in the facts and circumstances of the case. (Para 7) State of Jharkhand v. Sandeep Kumar, 2024 LiveLaw (SC) 205

Code of Criminal Procedure, 1973; Sections 438 and 439 - Bail Applications - Applicants must include : details and copies of previous bail orders. Information on pending bail applications in any court, with a clear statement if none are pending. Bail applications in the same FIR should be heard by the same Judge, unless there are specific circumstances. The application indicates whether it is the first, second, or subsequent one for clarity. The court registry should attach a system-generated report on decided or pending bail applications for the specified crime case. This procedure applies to private complaints as well, with cases assigned specific numbers. The Investigating Officer or State Counsel should inform the court of relevant orders, and counsels must conduct themselves as officers of the Court. These suggestions aim to streamline proceedings and prevent anomalies in bail applications during ongoing trials or sentence suspension. (Para 20 & 21) Kusha Duruka v. State of Odisha, 2024 LiveLaw (SC) 47 : AIR 2024 SC 790

Code of Criminal Procedure, 1973; Section 439 (2) – Cancellation of Bail order - The exercise of jurisdiction by the learned Single Judge in cancelling the bail granted by another Single Judge of the same High Court, by examining the merits of the allegations, tantamounts to judicial impropriety/indiscipline. The application for cancellation of bail filed on merits as opposed to violation of the conditions of the bail order should have been placed before the same learned Single Judge who had granted bail to the accused. The act of reviewing the orders granting bail to the accused by another Single Judge is uncalled for and amounts to gross impropriety. (Para 10) Himanshu Sharma v. State of Madhya Pradesh, 2024 LiveLaw (SC) 157 : 2024 Cri LJ 1482

Code of Criminal Procedure, 1973; Section 439 – Grounds for cancellation of bail - Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail, (a) the accused has misused the liberty granted to him; (b) flouted the conditions of bail order; (c) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail; (d) or that the bail was procured by misrepresentation or fraud. None of these grounds existed while cancellation of bail granted by another bench. (Para 12) Himanshu Sharma v. State of Madhya Pradesh, 2024 LiveLaw (SC) 157 : 2024 Cri LJ 1482

Custodial Death - It is a fact that, in ordinary circumstances, we ought not to invoke our jurisdiction under Article 136 of the Constitution of India to invalidate an order granting bail to an accused. But this criteria, while dealing with the question of granting bail, would not apply in a case of custodial death, where police officials are arraigned as accused. Such alleged offences are of grave and serious nature. Ajay Kumar Yadav v. State of Uttar Pradesh, 2024 LiveLaw (SC) 266

Delays in the disposal of bail applications - Need for expeditious delivery of judgments - Bail applications should ideally be disposed of within two weeks, and anticipatory bail applications within six weeks. Despite these guidelines, the Court noted persistent delays and directed all courts to strictly adhere to the issued directions. The High Courts were left with the discretion to devise mechanisms for monthly checks on pending cases. (Para 5 – 9) Rajanti Devi @ Rajanti Kumari v. Union of India, 2024 LiveLaw (SC) 50

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 – Bail to the accused charged in connection with offence involving commercial quantity of a narcotic drug or psychotropic substance – In case of recovery of huge quantities of narcotic substance, the Courts should be slow in granting even regular bail to the accused, more so when the accused is alleged to be having criminal antecedents. The Court would have to mandatorily record the satisfaction in terms of the rider contained in Section 37 of the NDPS Act that there are grounds for believing that the accused is not guilty of the offence alleged and that he is not likely to commit any offence while on bail. The High Court not only omitted to record any such satisfaction, but has rather completely ignored the factum of recovery of narcotic substance, multiple times the commercial quantity. The impugned order is cryptic and perverse on the face of the record and cannot be sustained. Thus, the same is quashed and set aside. State v. B. Ramu, 2024 LiveLaw (SC) 128

Personal Liberty - When the petitioner applied for bail on merits and also on the ground that he had been incarcerated in jail for seven and a half years, the approach of the High Court in only permitting him to file an application for bail before the Trial Court/Sessions Court and not deciding the prayer for bail on merits, would amount to non-exercise of jurisdiction vested in it. The approach of the High Court was not in accordance with the sanctity that has been given to personal liberty in the catena of judgments. Amol Vitthal Vahile v. State of Maharashtra, 2024 LiveLaw (SC) 78

Unlawful Activities (Prevention) Act, 1967; Section 43D(2)(b) - Code of Criminal Procedure, 1973; Section 167(2) - Default Bail - Terrorism cases should not to be taken lightly. (Para 13) State of NCT of Delhi v. Raj Kumar @ Lovepreet @ Lovely, 2024 LiveLaw (SC) 10

Unlawful Activities (Prevention) Act, 1967; Section 43D(5) and Code of Criminal Procedure, 1973; Section 439 – Section 43D(5) of the UAP Act modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAP Act. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the 'final report' or 'Case Diary', the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied, that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). The restrictions, on granting of bail in section 43D(5) are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. The conventional idea in bail jurisprudence 'bail is the rule, jail is the exception' does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5) - 'shall not be released', in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released', suggests the intention of the Legislature to make bail, the exception and jail, the rule. (Para 17, 18 & 20) Gurwinder Singh v. State of Punjab, 2024 LiveLaw (SC) 100