Supreme Court Quarterly Digest on Bail July- September, 2022

Bail - Post-conviction bail – All persons who have completed 10 years of sentence and appeal is not in proximity of hearing with no extenuating circumstances should be enlarged on bail. Sonadhar v. State of Chhattisgarh, 2022 LiveLaw (SC) 788

Bail - The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails. (Para 72-73(a)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 138 - Anticipatory Bail - Adverse order against third party by High Court in an anticipatory bail proceedings - It is a peremptory direction affecting a third party. The adverse impact of the direction goes to the very livelihood of the appellant. It has also civil consequences for the appellant. Such a peremptory direction and that too, without even issuing any notice to the appellant was clearly unjustified. Kanchan Kumari v. State of Bihar, 2022 LiveLaw (SC) 640

Code of Criminal Procedure, 1973; Section 209 - Power of the Magistrate to remand a person into custody during or until the conclusion of the trial - Since the power is to be exercised by the Magistrate on a case-to-case basis, it is his wisdom in either remanding an accused or granting bail. (Para 38) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 309 - Bail - While it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. (Para 41) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 389 - "Presumption of innocence" and "bail is the rule and jail is the exception" may not be available to the appellant who has suffered a conviction - The power exercisable under Section 389 is different from that of the one either under Section 437 or under Section 439 of the Code, pending trial- Delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436A of the Code among other factors ought to be considered for a favourable release on bail. (Para 42-44) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 436A - The word 'shall' clearly denotes the mandatory compliance of this provision - There is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused - While taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. (Para 47) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 437 - Scope - The jurisdictional Magistrate who otherwise has the jurisdiction to try a criminal case which provides for a maximum punishment of either life or death sentence, has got ample jurisdiction to consider the release on bail. (Para 53-55, 58) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 437, 439 - The first proviso to Section 437 facilitates a court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm - This has to be applied while considering release on bail either by the Court of Sessions or the High Court, as the case may be. (Para 58) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Section 438 - Anticipatory Bail Jurisdiction - cannot implead third party to proceedings - especially those parties who are neither necessary nor proper parties to the application under consideration - application under Section 438 of the Code of Criminal Procedure is limited to the cause of the concerned applicant, applying for grant of anticipatory bail in connection with offence already registered against him and apprehending his arrest in connection with such a case for extraneous reasons or otherwise - in such proceedings, the inquiry must be limited to the facts relevant and applicable to the concerned applicant who has come before the Court - no attempt should be made to inquire into matters pertaining to some third party much less beyond the scope of the complaint/FIR in question - even if the application is entertained by the High Court, the High Court should exercise circumspection in dealing with the application only in respect of matters which are relevant to decide the application and not to over-state facts or other matters unrelated to the applicant before the Court. Subrata Roy Sahara v. Pramod Kumar Saini, 2022 LiveLaw (SC) 601

Code of Criminal Procedure, 1973; Section 438 - Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Appeal against High Court order that granted anticipatory bail on the ground that no recovery was effected from the accused and that they had been implicated only on the basis of the disclosure statement of the main accused - Allowed -The respondents may be able to take advantage of the decision in Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1 , perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. To grant anticipatory bail in a case of this nature is not really warranted. State of Haryana v. Samarth Kumar, 2022 LiveLaw (SC) 622

Code of Criminal Procedure, 1973; Section 439 - Bail - Cancellation of Bail - Cancellation of bail cannot be limited to the occurrence of supervening circumstances - Illustrative circumstances where the bail can be cancelled :- a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record. b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim. c) Where the past criminal record and conduct of the accused is completely ignored while granting bail. d) Where bail has been granted on untenable grounds. e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice. f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified. g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case. (Para 30-34) Deepak Yadav v. State of U.P., 2022 LiveLaw (SC) 562

Code of Criminal Procedure, 1973; Section 439 - Bail - Principles governing grant of bail - There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations. (Para 19-29) Deepak Yadav v. State of U.P., 2022 LiveLaw (SC) 562

Code of Criminal Procedure, 1973; Section 439 - Bail - The offer of payment of ad interim compensation to the victim cannot be a ground to release the accused on bail. (Para 7) State of Jharkhand v. Salauddin Khan, 2022 LiveLaw (SC) 755

Code of Criminal Procedure, 1973; Section 439(2) - Bail conditions -The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed. [Para 29] Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629

Code of Criminal Procedure, 1973; Section 87-88 - Courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant may be issued- Issuing non-bailable warrants as a matter of course without due application of mind against the tenor of the provision. (Para 31-32) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Sections 41, 41A - The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail - The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 - Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action - State Governments and the Union Territories to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code. (Para 73 (b-d)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Sections 437, 439 - Bail - Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application. (Para 73 (k)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Sections 438, 439 - Bail applications must be decided as expeditiously as possible and not to be posted in due course of time. Tulsi Ram Sahu v. State of Chhattisgarh, 2022 LiveLaw (SC) 764

Code of Criminal Procedure, 1973; Sections 439, 161 - Bail - Statements under Section 161 of Cr.P.C. may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence. Indresh Kumar v. State of Uttar Pradesh, 2022 LiveLaw (SC) 610

Code of Criminal Procedure, 1973; Sections 440, 436A - Undertrials - The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release- While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind - An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court. (Para 73 (h-j)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Code of Criminal Procedure, 1973; Sections 88, 170, 204 and 209 - There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. (Para 73 (e)) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Constitution of India, 1950; Article 19(1)(a) - Freedom of speech and expression - Mohammed Zubair Case- Blanket bail orders to prevent the petitoner from tweeting cannot be imposed, merely because the case is based on tweets- Gag orders have a chilling effect on the freedom of speech. According to the petitioner, he is a journalist who is the co-founder of a fact checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos. Passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession. [Para 30] Mohammed Zubair v. State of NCT of Delhi, 2022 LiveLaw (SC) 629

Criminal Trial - Presumption of Innocence - Onus on the prosecution to prove the guilt before the Court -The agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied - Presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. (Para 13-18) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

High Court Rules (Patna) - Rule 8 of Chapter XII - Appeal against conviction shall be heard for admission unless the accused has surrendered to the order of the Court below convicting him to a sentence of imprisonment except in a case where the appellant has been released on bail by the trial court after convicting him - This Rule applies to the pre-admission stage, not applicable after admission. (Para 7) Dhananjay Rai @ Guddu Rai v. State of Bihar, 2022 LiveLaw (SC) 597

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Bail considerations - The length of the period of his custody or the fact that the charge-sheet has been filed and the trial has commenced are by themselves not considerations that can be treated as persuasive grounds for granting relief to the respondent under Section 37 of the NDPS Act. (Para 17-18) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - Bail - The admissions made by the accused while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside - Confessional statement recorded under Section 67 of the NDPS Act inadmissible in the trial of an offence under the NDPS Act. (Para 16) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - At the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. (Para 15) Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 - NCB's appeal against Delhi HC order granting bail to accused - Allowed - Even dehors the confessional statements, the other circumstantial evidence brought on record by the NCB ought to have dissuaded the High Court from exercising its discretion in favour of the accused - The observation made in the impugned order that since nothing was found from the possession of the respondent, he is not guilty of the offence for which he has been charged. Such an assumption would be premature at this stage - Set aside Bail order. Narcotics Control Bureau v. Mohit Aggarwal, 2022 LiveLaw (SC) 613

Narcotic Drugs and Psychotropic Substances Act, 1985; Sections 27A, 37 - Appeal against Calcutta High Court order granted bail to a person accused under Sections 21(b)/29/27A of NDPS Act - Dismissed - No reason to consider interference in the order passed by the High Court granting bail to the respondent with specific conditions. State of West Bengal v. Rakesh Singh @ Rakesh Kumar Singh, 2022 LiveLaw (SC) 580

Penal Code 1860; Section 376(2)(n) - Offence of committing repeated rape on same woman - The complainant has willingly been staying with the appellant and had the relationship - Now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC - Observations while granting anticipatory bail to accused. Ansaar Mohammad v. State of Rajasthan, 2022 LiveLaw (SC) 599

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Narcotic Drugs and Psychotropic Substances Act, 1986; Section 37 - If detenue was ordered to be released on bail despite the rigours of Section 37 of the NDPS Act, 1985, then the same is suggestive that the Court concerned might not have found any prima facie case against him. (Para 23) Sushanta Kumar Banik v. State of Tripura, 2022 LiveLaw (SC) 813

Prevention of Money Laundering Act, 2002 - Supreme Court upholds constitutionality of powers of Enforcement Directorate for arrest, search and seizure, attachment - Court upholds the constitutionality of reverse burden of proof (Section 24) and twin conditions of bail (Section 45). Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Prevention of Money Laundering Act, 2002; Section 45 - Bail - Post Nikesh Tarachand Shah v. Union of India (held Section 45 pre- 2018 Amendment as unconstitutional) the provision was not obliterated from the statute book; it merely held that the provision as it stood then was violative of A. 14 and 21 - it was open for the Parliament to cure the defect - once cured, the provision got revived - observations in Nikesh distinguishing the challenge to twin bail condition under PMLA from Kartar Singh v. State of Punjab dealing with TADA Act (calling PMLA less heinous than terrorism) overruled - twin condition though strict does not impose absolute restraint on garnet of bail - similar twin conditions is provided in several other special legislations - the twin bail conditions is also applicable for anticipatory bail - Section 436A CrPC providing maximum period for which under-trial prisoner can be detained, could be invoked by person accused under 2002 Act. [Para 115-149] Vijay Madanlal Choudhary v. Union of India, 2022 LiveLaw (SC) 633

Protection of Children from Sexual Offences Act, 2012 - Appeal against HC order that granted bail to POCSO Accused who allegedly raped and murdered his 11 year old daughter - Allowed - Ex facie, the allegations are grave, the punishment is severe and it cannot be said that there are no materials on record at all - Order set aside. Indresh Kumar v. State of Uttar Pradesh, 2022 LiveLaw (SC) 610

Words and Phrases - Bail - A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial - Bail is the rule and jail is the exception. (Para 8-12) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577

Words and Phrases - Trial - An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter - Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the Court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors - An appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. (Para 7) Satender Kumar Antil v. Central Bureau of Investigation, 2022 LiveLaw (SC) 577