Supreme Court Half Yearly Digest 2022 on BAIL

Anticipatory bail granted to Trinamool Congress leader Sheikh Sufiyan in a case relating to the murder of a BJP supporter during the West Bengal post -poll violence. Sk. Supiyan @ Suffiyan @ Supisan v. Central Bureau of Investigation, 2022 LiveLaw (SC) 146 : 2022 (3) SCALE 42

Bail - Appeal against Allahabad HC granting bail to an accused - Allowed - Order of High Court granting bail to co-accused was earlier set aside - Reasons which have weighed with this Court in cancelling the bail which was granted to the co-accused would equally apply to the case of the first respondent which also arises out of the same first information report and incident. Rishipal @ Rishipal Singh Solanki v. Raju, 2022 LiveLaw (SC) 344

Bail - While granting bail, the relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. (Para 9) Sunil Kumar v. State of Bihar, 2022 LiveLaw (SC) 85 : AIR 2022 SC 715 : (2022) 3 SCC 245

Code of Criminal Procedure 1978; Section 438 - Anticipatory Bail - Court is expected to pass orders in one way or other taking into account the merits of the matter at the earliest - Posting an application for anticipatory bail after a couple of months cannot be appreciated - Matter involves personal liberty. Sanjay v. State (NCT of Delhi), 2022 LiveLaw (SC) 555

Code of Criminal Procedure, 1973 - Section 167(2) Proviso - Default Bail - Filing of a charge -sheet is sufficient compliance with the provisions of Section 167 CrPC - An accused cannot demand release on default bail under Section 167(2) on the ground that cognizance has not been taken before the expiry of 60 days. (Para 10) Serious Fraud Investigation Office v. Rahul Modi, 2022 LiveLaw (SC) 138 : AIR 2022 SC 902

Code of Criminal Procedure, 1973 - Section 167(2) Proviso - Default Bail - There is no additional requirement of cognizance having to be taken within the period prescribed under proviso (a) to Section 167(2), CrPC, failing which the accused would be entitled to default bail, even after filing of the charge -sheet within the statutory period. (Para 15) Serious Fraud Investigation Office v. Rahul Modi, 2022 LiveLaw (SC) 138 : AIR 2022 SC 902

Code of Criminal Procedure, 1973 - Section 436 - 439 - Bail - Grant of bail, though a discretionary order, requires such discretion to be exercised in a judicious manner and on the application of certain settled parameters. More heinous the crime, greater is the chance of rejection of bail, though the exercise also depends on the factual matrix of the matter - The Court, amongst others, must consider the prima facie view of whether the accused has committed the offence, nature of the offence, gravity, likelihood of the accused obstructing in any manner or evading the process of justice. Grant of bail draws an appropriate balance between public interest in the administration of justice and protection of individual liberty in a criminal case. The prima facie examination is on the basis of analysis of the record, and should not be confused with examination in detail of the evidence on record to come to a conclusive finding. Jameel Ahmad v. Mohammed Umair Mohammad Haroon, 2022 LiveLaw (SC) 222

Code of Criminal Procedure, 1973 - Section 436 - 439 - Bail - Grant of bail, though a discretionary order, requires such discretion to be exercised in a judicious manner and on the application of certain settled parameters. More heinous the crime, greater is the chance of rejection of bail, though the exercise also depends on the factual matrix of the matter - The Court, amongst others, must consider the prima facie view of whether the accused has committed the offence, nature of the offence, gravity, likelihood of the accused obstructing in any manner or evading the process of justice. Grant of bail draws an appropriate balance between public interest in the administration of justice and protection of individual liberty in a criminal case. The prima facie examination is on the basis of analysis of the record, and should not be confused with examination in detail of the evidence on record to come to a conclusive finding. Jameel Ahmad v. Mohammed Umair Mohammad Haroon, 2022 LiveLaw (SC) 222

Code of Criminal Procedure, 1973 - Section 438 - Indefinite adjournment in a matter relating to anticipatory bail, that too after admitting it, is detrimental to the valuable right of a person - When a person is before the Court and that too in a matter involving personal liberty, least what is expected is for such a person to be given the result one way or the other, based on the merit of his case and not push him to a position of uncertainty or be condemned without being heard, when it matters. Rajesh Seth v. State of Chhattisgarh, 2022 LiveLaw (SC) 200

Code of Criminal Procedure, 1973 - Section 439 - Bail - In the case of murder (under Section 302 IPC), it is expected that at least some reason would be given while reversing the order of the Trial Court, which had rejected the bail application by a reasoned order. (Para 4) Sabir v Bhoora @ Nadeem, 2022 LiveLaw (SC) 210 : 2022 (5) SCALE 89

Code of Criminal Procedure, 1973- Sections 437 and 439 - Bail Considerations - Gravity of the offences alleged and the evidence collected during the investigation, which are forming part of the charge sheet has to be considered. (Para 9.3) Jayaben v. Tejas Kanubhai Zala, 2022 LiveLaw (SC) 29 : AIR 2022 SC 358 : (2022) 3 SCC 230

Code of Criminal Procedure, 1973; Section 389 - Seeking relief of suspension of execution of sentence and to be released on bail is the statutory right of the appellant and there is no warrant for such a proposition that any appellant be debarred, from renewing his prayer for suspension of execution of sentence, for a particular period. As to whether such a prayer is to be granted or not is a matter entirely different but such kind of time-specific debarment is not envisaged by the law. (Para 3, 4) Krishan Kumar v. State of Haryana, 2022 LiveLaw (SC) 126

Code of Criminal Procedure, 1973; Section 437, 439 - Bail - High Court order granting bail to murder accused - Allowed - The High Court has not at all considered the gravity, nature and seriousness of the offences alleged. Manno Lal Jaiswal v. State of Uttar Pradesh, 2022 LiveLaw (SC) 88 : AIR 2022 SC 704

Code of Criminal Procedure, 1973; Section 437, 439 - Bail - Relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. (Para 9) Manno Lal Jaiswal v. State of Uttar Pradesh, 2022 LiveLaw (SC) 88 : AIR 2022 SC 704

Code of Criminal Procedure, 1973; Section 437, 439 - While elaborate reasons may not be assigned for grant of bail or an extensive discussion of the merits of the case may not be undertaken by the court considering a bail application, an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. In such a case the prosecution or the informant has a right to assail the order before a higher forum - Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused. (Para 17-19) Manoj Kumar Khokhar v. State of Rajasthan, 2022 LiveLaw (SC) 55 : AIR 2022 SC 364 : (2022) 3 SCC 501

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail - Ordinarily, no such mandatory order or directions should be issued while rejecting the application for pre-arrest bail that the accused person has to be arrested - When the prayer for pre-arrest bail is declined, it is for the investigating agency to take further steps in the matter. Whether the investigating agency requires custodial interrogation or not, is also to be primarily examined by that agency alone. We say no more. S. Senthil Kumar v. State of Tamil Nadu, 2022 LiveLaw (SC) 314

Code of Criminal Procedure, 1973; Section 439 - Bail - A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail - This discretion is not unfettered - bail must be granted after the application of a judicial mind, following well established principles, and not in a cryptic or mechanical manner. (Para 28) Jagjeet Singh v. Ashish Mishra @ Monu, 2022 LiveLaw (SC) 376 : AIR 2022 SC 1918

Code of Criminal Procedure, 1973; Section 439 - Bail - A recent trend of passing such orders granting or refusing to grant bail, where the Courts make a general observation that "the facts and the circumstances" have been considered - Such a situation continues despite various judgments of this Court wherein this Court has disapproved of such a practice. (Para 13) Ms. Y v. State of Rajasthan, 2022 LiveLaw (SC) 384 : AIR 2022 SC 1910

Code of Criminal Procedure, 1973; Section 439 - Bail - Appeal against Bail granted by the High Court in a murder case - Allowed - The High Court has granted bail to the ­accused by passing a very cryptic and casual order, de hors cogent reasoning. We find that the High Court was not right in allowing the applications for bail filed by the accused. Kamla Devi v. State of Rajasthan, 2022 LiveLaw (SC) 272 : AIR 2022 SC 1524

Code of Criminal Procedure, 1973; Section 439 - Bail - Appeal against bail granted by Allahabad HC to murder accused - Allowed -This Court on account of the factors like (i) irrelevant considerations having impacted the impugned order granting bail; (ii) the High Court exceeding its jurisdiction by touching upon the merits of the case; (iii) denial of victims' right to participate in the proceedings; and (iv) the tearing hurry shown by the High Court in entertaining or granting bail to the respondent/accused; can rightfully cancel the bail, without depriving the Accused of his legitimate right to seek enlargement on bail on relevant considerations. Jagjeet Singh v. Ashish Mishra @ Monu, 2022 LiveLaw (SC) 376 : AIR 2022 SC 1918

Code of Criminal Procedure, 1973; Section 439 - Bail - Appeal against Rajasthan HC order granting bail to appellant accused of rape of his niece - Allowed - The impugned order passed by the High Court is cryptic, and does not suggest any application of mind. Ms. Y v. State of Rajasthan, 2022 LiveLaw (SC) 384 : AIR 2022 SC 1910

Code of Criminal Procedure, 1973; Section 439 - Bail - Appeal against Delhi High Court order granting bail to a man accused of kidnapping and murdering the 13-year-old son of a Delhi jeweler in 2014, whose body was found in a drain in East Delhi in November 2014 - Allowed - An important circumstance which should have, but has not been taken into consideration by the High Court is that crucial witnesses are yet to be examined. The release of the accused on bail, at this stage, would run a grave risk of impeding a fair trial. The apprehension that the witnesses may be tampered with cannot be regarded as lacking in substance. Mamta v. State (NCT of Delhi), 2022 LiveLaw (SC) 531 : 2022 (9) SCALE 178

Code of Criminal Procedure, 1973; Section 439 - Bail - Appellate Court required to analyze whether the order granting bail was illegal, perverse, unjustified or arbitrary. On the other hand, an application for cancellation of bail looks at whether supervening circumstances have occurred warranting cancellation. (Para 11-15) Ms. Y v. State of Rajasthan, 2022 LiveLaw (SC) 384 : AIR 2022 SC 1910

Code of Criminal Procedure, 1973; Section 439 - Bail - Circumstances where bail granted to the accused under Section 439 (1) of the Cr.P.C. can be cancelled - Discussed. (Para 24-26) Ms. P v. State of Madhya Pradesh, 2022 LiveLaw (SC) 448 : AIR 2022 SC 2183

Code of Criminal Procedure, 1973; Section 439 - Bail - High Court or Sessions Court have a wide discretion in deciding an application for bail under Section 439 Cr.P.C. However, the said discretion must be exercised after due application of the judicial mind and not in a routine manner - Considerations for bail discussed. (Para 13- 19) Ms. P v. State of Madhya Pradesh, 2022 LiveLaw (SC) 448 : AIR 2022 SC 2183

Code of Criminal Procedure, 1973; Section 439 - Bail - It is not necessary for a Court to give elaborate reasons while granting bail, particularly when the case is at the initial stage and the allegations of the offences by the accused would not have been crystalised as such. There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. (Para 26) Kamla Devi v. State of Rajasthan, 2022 LiveLaw (SC) 272 : AIR 2022 SC 1524

Code of Criminal Procedure, 1973; Section 439 - Bail - No accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the right of liberty guaranteed under Article 21 of the Constitution. (Para 40) Jagjeet Singh v. Ashish Mishra @ Monu, 2022 LiveLaw (SC) 376 : AIR 2022 SC 1918

Code of Criminal Procedure, 1973; Section 439 - Bail - Parameters which must be considered while granting bail discussed - certain important factors that are always considered, inter­alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused - At the stage of granting bail the Court is not required to enter into a detailed analysis of the evidence in the case. (Para 8-10) Ms. Y v. State of Rajasthan, 2022 LiveLaw (SC) 384 : AIR 2022 SC 1910

Code of Criminal Procedure, 1973; Section 439 - Bail - Posters saying "Bhaiya is back" was put up to celebrate the release of a rape-accused on bail - Bail set aside - Brazen conduct of the accused has evoked a bona fide fear in complainant's mind that she would not get a free and fair trial if he remains enlarged on bail and that there is a likelihood of his influencing the material witnesses. Ms. P v. State of Madhya Pradesh, 2022 LiveLaw (SC) 448 : AIR 2022 SC 2183

Code of Criminal Procedure, 1973; Section 439 - Bail - Principles that a Court must bear in mind while deciding an application for grant of bail discussed- A court should refrain from evaluating or undertaking a detailed assessment of evidence, as the same is not a relevant consideration at the threshold stage. While a Court may examine prima facie issues, including any reasonable grounds whether the accused committed an offence or the severity of the offence itself, an extensive consideration of merits which has the potential to prejudice either the case of the prosecution or the defence, is undesirable. (Para 30-33) Jagjeet Singh v. Ashish Mishra @ Monu, 2022 LiveLaw (SC) 376 : AIR 2022 SC 1918

Code of Criminal Procedure, 1973; Section 439 - Bail - The Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt which would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused. (Para 26) Kamla Devi v. State of Rajasthan, 2022 LiveLaw (SC) 272 : AIR 2022 SC 1524

Code of Criminal Procedure, 1973; Section 439 - Bail - When bail has been granted to an accused, the State may, if new circumstances have arisen following the grant of such bail, approach the High Court seeking cancellation of bail under section 439 (2) of the CrPC. However, if no new circumstances have arisen since the grant of bail, the State may prefer an appeal against the order granting bail, on the ground that the same is perverse or illegal or has been arrived at by ignoring material aspects which establish a prima ­facie case against the accused. (Para 29) Kamla Devi v. State of Rajasthan, 2022 LiveLaw (SC) 272 : AIR 2022 SC 1524

Code of Criminal Procedure, 1973; Section 439 - Where a Court while considering an application for bail fails to consider the relevant factors, an Appellate Court may justifiably set aside the order granting bail. Appellate Court is thus required to consider whether the order granting bail suffers from a non­application of mind or a prima facie view from the evidence available on record. Centrum Financial Services v. State of NCT of Delhi, 2022 LiveLaw (SC) 103 : AIR 2022 SC 650

Code of Criminal Procedure, 1973; Section 439 - While granting bail, the relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and 18 circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. Centrum Financial Services v. State of NCT of Delhi, 2022 LiveLaw (SC) 103 : AIR 2022 SC 650

Code of Criminal Procedure; Section 438 - Once the prayer for anticipatory bail is made in connection with offence under the Prevention of Money Laundering Act, the underlying principles and rigors of Section 45 of the Prevention of Money Laundering Act, 2002 must get triggered although the application is under Section 438 of Code of Criminal Procedure. Asst. Director Enforcement Directorate v. Dr. V.C. Mohan, 2022 LiveLaw (SC) 16

Constitution of India, 1950 - Article 136 - Bail - The application filed by the petitioner having been dismissed as not pressed, the question of interference by this Court in exercise of power under Article 136 of the Constitution of India cannot and does not arise. Santo Devi v. State of U.P., 2022 LiveLaw (SC) 133

Constitution of India, 1950 - Article 32 - Bail - Writ petition challenging the order of the Magistrate granting bail - Judge granting bail and Addl. District Judge who refused to interfere with said order impleaded by name - Conduct of the petitioner deprecated - No reason why the petitioner should have filed this writ petition directly in this court. Balakram @ Bhura v. State of Uttar Pradesh, 2022 LiveLaw (SC) 215

Constitution of India, 1950; Article 136 - An order granting bail to an accused, if passed in a casual and cryptic manner, de hors reasoning which would validate the grant of bail, is liable to be set aside by this Court while exercising jurisdiction under Article 136 of the Constitution of India. Kamla Devi v. State of Rajasthan, 2022 LiveLaw (SC) 272 : AIR 2022 SC 1524

Contempt of Courts Act, 1971 - Appeal against Madras High Court's order holding advocate guilty of Contempt and sentencing him to 2 weeks imprisonment as well as debarring him from practicing for a period of 1 year for obstructing the execution of a non-bailable warrant issued by the HC against him - Upheld - Appellant has no respect for the administration of justice. The finding of contempt, as well as the sentence cannot be regarded as disproportionate. P.R. Adikesavan v. Registrar General, High Court of Madras, 2022 LiveLaw (SC) 530 : AIR 2022 SC 2779

Control of Terrorism and Organized Crime Act, 2015 (Gujarat) - To invoke this Act in respect of such an activity more than one charge-sheet must have been filed before a competent Court in the preceding ten years- Bail granted to accused as only one chargesheet has been filed against him. Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 LiveLaw (SC) 538

Copyright Act, 1957; Section 63 - Code of Criminal Procedure, 1973; Part II of First Schedule - Section 63 of the Copyright Act is a cognizable and non­bailable offence. (Para 7) Knit Pro International v. State of NCT of Delhi, 2022 LiveLaw (SC) 505 : 2022 (8) SCALE 647

Criminal Cases - Where it is found that the accused are released on bail in serious offences, the State Government/legal department of State Government and the Director of Prosecution shall take prompt decision and challenge the order passed by the trial court and/or the High Court as the case may be. (Para 11) Jayaben v. Tejas Kanubhai Zala, 2022 LiveLaw (SC) 29 : AIR 2022 SC 358 : (2022) 3 SCC 230

Judicial Service - Appeal against High Court judgment which upheld discharge of a judicial officer - Allowed - Charges filed against the appellant are vague in nature and that absolutely no details have been provided regarding the said allegation of passing the bail order for extraneous considerations/ ulterior motive - Even if appellant's act is considered to be negligent, it cannot be treated as "misconduct" - The appellant be reinstated with all consequential benefits including continuity of service and seniority, but will be entitled to be paid only 50% backwages, which may be paid within a period of four months. Abhay Jain v. High Court of Judicature for Rajasthan, 2022 LiveLaw (SC) 284 : 2022 (4) SCALE 784

Practice and Procedure - Anticipatory Bail Applications - When an application for anticipatory bail accompanied by an application for ad -interim relief is listed before the court, it should decide the same one way or the other, so far as the ad -interim prayer or should have taken up for consideration after giving some reasonable time to the State. Even if admitted, the court should list the same for final disposal on a specific date - Not giving any specific date is not a procedure which can be countenanced. Rajesh Seth v. State of Chhattisgarh, 2022 LiveLaw (SC) 200

Practice and Procedure - Draft Rules of Criminal Practice 2021 - Bail - Para 17 (i) of the Draft Rules should be read as mandating the furnishing of the bail order to the prison concerned - The bail order should be furnished by the prison authorities to the accused. In Re To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trial, 2022 LiveLaw (SC) 433

Prevention of Money Laundering Act, 2002; Section 45 - Code of Criminal Procedure; Section 438 - Once the prayer for anticipatory bail is made in connection with offence under the Prevention of Money Laundering Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered although the application is under Section 438 of Code of Criminal Procedure. Asst. Director Enforcement Directorate v. Dr. V.C. Mohan, 2022 LiveLaw (SC) 16

Protection of Children from Sexual Offences (POCSO) Act, 2012, Section 6 - Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen years of age on the date when the alleged offence took place, both the grounds, namely that "there was a love affair" between the appellant and the second respondent as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established. The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are extraneous in view of the age of the prosecutrix, having regard to the provisions of Section 376 of IPC and Section 6 of POCSO. X (Minor) v. State of Jharkhand, 2022 LiveLaw (SC) 194

Supreme Court Rules, 2013; Order XXII Rule 5 - Application seeking exemption from surrendering is not required to be filed along with a special leave petitions against cancellation of bail orders - Order XXII Rule 5, applies only to cases where the petitioner is 'sentenced to a term of imprisonment' and it cannot be confused with simple orders of cancellation of bail. Mahavir Arya v. State Govt. NCT of Delhi, 2022 LiveLaw (SC) 30

Unlawful Activities (Prevention) Act, 1967; Section 43D(5) - Appeal against Rajasthan HC order denying bail to UAPA accused- under trial - Allowed - In the nature of the case against the appellant, the evidence which has already unfolded and above all, the long period of incarceration that the appellant has already undergone, time has arrived when the appellant be enlarged on bail. Jahir Hak v. State of Rajasthan, 2022 LiveLaw (SC) 372 : 2022 (6) SCALE 210