High Courts Have Power To Grant Bail By Invoking Article 226 In Suitable Cases: Supreme Court

The Supreme Court has observed that a High Court in its jurisdiction under Article 226 of the Constitution of India has the power to grant bail in a suitable case.

"In an application under Article 226, the High Court must be circumspect in exercising its powers [to grant bail] on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power." the bench comprising Justices DY Chandrachud and Indira Banerjee observed in its judgment in Arnab Goswami case.

The court observed that the Bombay High Court  failed to discharge its adjudicatory function at two levels – first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first.

The court said that the High Court must consider the following settled factors while considering an application for the grant of bail under Article 226 in a suitable case:

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;
(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;
(iv) The antecedents of and circumstances which are peculiar to the accused;
(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
(vi) The significant interests of the public or the State and other similar considerations.

The bench added that the High Court must exercise its power with caution and circumspection, cognizant of the fact that this jurisdiction is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC. It said:

"The petition before the High Court was instituted under Article 226 of the Constitution and Section 482 of the CrPC. While dealing with the petition under section 482 for quashing the FIR, the High Court has not considered whether prima facie the ingredients of the offence have been made out in the FIR. If the High Court were to have carried out this exercise, it would (as we have held in this judgment) have been apparent that the ingredients of the offence have not prima facie been established. As a consequence of its failure to perform its function under Section 482, the High Court has disabled itself from exercising its jurisdiction under Article 226 to consider the appellant's application for bail. In considering such an application under Article 226, the High Court must be circumspect in exercising its powers on the basis of the facts of each case. However, the High Court should not foreclose itself from the exercise of the power when a citizen has been arbitrarily deprived of their personal liberty in an excess of state power."

Giving reasons for its order directing grant of interim bail to Arnab Goswami, the bench observed:

"In the backdrop of these principles, it has become necessary to scrutinize the contents of the FIR in the case at hand. In this batch of cases, a prima facie evaluation of the FIR does not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC. The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses. Taking these factors into consideration, the order dated 11 November 2020 envisaged the release of the appellants on bail."

Case:  Arnab Manoranjan Goswami vs. State of Maharashtra [Criminal Appeal No. 742 of 2020]

Coram: Justices DY Chandrachud and Indira Banerjee 

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