[BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-V

Ans. Yes. Those are the observations made by the Supreme Court in State of Tamil Nadu v. S.A. Raja AIR 2005 SC 4462 – K. G. Balakrishan, P. P. Naolekar – JJ). The Court has a duty to record what are the fresh grounds which persuade the Court to take a view different from the one taken in the earlier bail applications (Vide Kalyan Chandra Sarkar v. Rajesh Ranjan – AIR 2004 SC 1866 – 3 Judges – N. Santhosh Hegde, B. P. Singh - JJ; State of M. P. v. Kajad AIR 2001 SC 3317 – M. B. Shah, R. P. Sethi – JJ - (Held that without any change in circumstances, a second application would amount to seeking a review of the earlier order); Prasad Shrikant Purohit v. State of Maharashtra (2018) 11 SCC 458 = AIR 2017 SC 3986 – R. K. Agrawal, A. M. Sapre - JJ)

In non-bailable offences bail is the rule and committal to jail, an exception. (Vide para 16 of Sanjay Chandra v. CBI (2G Spectrum Case) (2012) 1 SCC 40 = AIR 2012 SC 830 – G. S. Singhvi, H. L. Dattu – JJ.)

Completion of investigation was considered as a change of circumstance. (Vide para 28 of Sanjay Chandra (Supra – AIR 2012 SC 830.)

In Jayaraj v. State of Kerala – 2009 (3) KLT 653 (Kerala) – Thomas P. Joseph – JJ, it has been held that a subordinate criminal Court cannot entertain a petition for bail after a Superior pourt has declined to grant bail on merits, unless it is for default bail; See also Virupakshappa Gowda v. State of Karnataka (2017) 5 SCC 406 = AIR 2017 SC 1685 – Dipak Misra, A. M. Khanwilkar - JJ; Akhilesh Kumar Singh v. State of U. P. AIR 2008 SC 1680 – 3 Judges – K. G. Balakrishan – CJI, R. V. Raveendran, D. K. Jain - JJ; Ram Govind Upadhyaya v. Sudarshan Singh AIR 2002 SC 1475 – Umesh C. Banerjee, Y. K. Sabharwal - JJ; State of T. N. v. S. A. Raja AIR 2005 SC 4462. Such successive bail applications may even amount to “forum shopping”. (Vide para 13 of Jagmohan Bahl v. State (NCT of Delhi) (2014) 16 SCC 501 = 2014 KHC 5360 (SC) – Dipak Misra, Uday U. Lalit - JJ; Hence, subsequent bail application should be placed before the same Judge (if available) who disposed of the earlier bail application. (Vide Shahzad Hasan Khan v. Ishtiaq Hasan Khan AIR 1987 SC 1613 – M. P. Thakkar, K. N. Singh - JJ; State of Maharashtra v. Buddhikota Subha Rao AIR 1989 SC 2292 – A. M. Ahmadi, K. N. Saikia – JJ; Sharad Kumar v. CBI (2012) 1 SCC 65 – G. S. Singhvi, dr. B. S. Chauhan – JJ.)

Q.22 Does Section 436 Cr.P.C. authorize the Magistrate to release on bail a person who is not accused of any offence but has been arrested and produced before the Magistrate?

Ans. Yes. Unlike Section 437 Cr.P.C. the person covered by Section 436 Cr.P.C. need not be accused of an offence at all. There are circumstances such as those covered by Section 41(1) (b) to (i) Cr.P.C., Section 151 Cr.P.C. etc., where a person may be arrested by a Police Officer without a warrant. Such a person cannot be detained beyond 24 hours unless in the meanwhile the commission of an offence is disclosed and is incorporated. Such persons can also be released on bail under Section 436 Cr.P.C. (Vide Ahamed Noor Mohammed Bhatti v. State of Gujarat AIR 2005 SC 2115 and Manikandan v. S.I. of Police (2007) 2 KLT 466 – N. Santhosh Hegde, B. P. Singh, S. B. Sinha - JJ). In fact, there is no need of a person arrested under Sec. 151 Cr.P.C. to be produced before a Magistrate. The Police Officer himself should release him within 24 hours. (Vide Ahmed Noor Mohmed Bhatti (Supra).

Q.23 An accused who is alleged to have committed a bailable offence fails to appear in response to the summons issued against him. He is arrested and produced before Court pursuant to a warrant issued against him. Is he entitled to bail as of right?

Ans. Yes. Where any person other than a person accused of a non-bailable offence is arrested by a police officer, such police officer has a duty under Section 50 (2) Cr.P.C. to inform the arrested person that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

Bail in a bailable offence can be claimed as of right. (Vide para 17 of Vikas v. State of Rajashtan (2014) 3 SCC 321 = 2014 Cri.L.J. 183 – H. L. Dattu, M. Y. Eqbal – JJ).

The said right is an absolute indefeasible right. In bailable offences there is no question of any discretion being exercised in granting bail as the words of Section 436 Cr.P.C. are imperative. (Vide para 10 of Rasiklal v. Kishore (2009) 4 SCC 446 – R. V. Raveendran, J. M. Panchal - JJ).

Summons and warrant are only processes to secure the attendance of the accused before Court. Once he appears or is produced before Court he has the indefeasible right to bail in a bailable offence and the said right is not forfeited by him merely because he failed to respond to the summons. But if the accused fails to comply with the condition of the bail bond as regards the time and place of attendance, the Court may refuse to release him on bail on a subsequent occasion in the same case. (See Section 436(2) and Section 446(A)(b) Cr.P.C.). The Court may, however, in its discretion grant bail to him on a fresh bond with one or more sureties in view of the proviso to Section 446A Cr.P.C. (Vide Oseela Abdul Khader and Another v. State of Kerala and Others 2012 (4) KLT 535 – S. S. Satheeshchandran - J).

Q.24 Who else other than an accused person can be ordered to be arrested and produced before Court?

Ans. Yes. A witness who fails to appear in response to summons can be ordered to be arrested by recourse to Section 87 Cr.P.C. and produced before Court. Such witness should be released on bail if after production before Court he is prepared to give bail.

Q.25 Can the court impose a condition (for instance, a condition that the accused should appear before the Police) while granting bail in a bailable offence?

Ans. No. (Vide Poulose v. State 1978 KLT 337 - Kochu Thommen – J.)

The only condition which can be imposed in a case involving a bailable offence is a condition regarding the place and time of appearance as indicated by Section 436 (2) Cr.P.C.

NOTE BY VRK: One reason why, unlike in the case of non-bailable offences where the Magistrate can cancel the bail by recourse to Section 437 (5) Cr.P.C., there is no provision in Section 436 Cr.P.C. enabling the Magistrate to cancel the bail may be because if the bond is only for appearance and if that condition is breached by the accused, the Court can proceed against the accused and the sureties for forfeiture of the bail bond and once the bond is forfeited, it results in the automatic cancellation of the bond by the operation of Section 446 A (a) Cr.P.C.

Part 2: [BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-II

Part 1: [BAIL] Questions & Answers By Justice V. Ramkumar-Regular Bail-PART-I