Supreme Court Quarterly Digest 2023 On BAIL [January To March, 2023]

All those undertrial prisoners and convicts who have been released on emergency parole / interim bail pursuant to the recommendations of the High-Powered Committee in compliance of the orders passed by this Court have to surrender before the concerned prison authorities within 15 days. In Re: Contagion of COVID-19 Virus in Prisons, 2023 LiveLaw (SC) 238

Bail & Remand - Supreme Court expresses anguish at trial courts acting in violation of its judgments in Siddharth vs. State of Uttar Pradesh LL 2021 SC 391 & Satender Kumar Antil v. Central Bureau of Investigation & Anr. – 2022 LiveLaw (SC) 577 - We fail to understand why despite these judgments having been circulated, some of the trial Courts are conducting and passing the orders in the teeth of these judgments. It is a matter of concern that these cases thus, keep on coming up to the apex Court unnecessarily. Chandmal v. State of M.P., 2023 LiveLaw (SC) 94

Bail can be cancelled if serious offences are subsequently added to FIR': Supreme Court sets aside bail in 'casting couch' case. Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205

Bail can be granted in NDPS cases on ground of undue delay in trial despite stringent conditions in Section 37. Mohd. Muslim v. State (NCT of Delhi), 2023 LiveLaw (SC) 260

Code of Criminal Procedure 1973; Section 438 - Supreme Court sets aside anticipatory bail granted to an accused in a 'casting couch' rape case - The nature and gravity of the alleged offence has been disregarded by the HC - So has the financial stature, position and standing of the accused vis-à-vis the appellant/prosecutrix been ignored. (Para 22) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205

Code of Criminal Procedure, 1973 - High Courts should endeavour to ensure that all basic essentials (i.e. FIR No., Date, the concerned police station and the offences allegedly committed etc.) are duly recorded or reflected in the format of the bail orders. Ravish Kumar v. State of Bihar, 2023 LiveLaw (SC) 206

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Default bail can be cancelled on merits - there is no absolute bar that once a person is released on default bail under Section 167(2) Cr.P.C., his bail cannot be cancelled on merits and his bail can be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the concerned Trial Court etc. [Para 11] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - the bail so granted is not on merits - when an accused is released on default bail they are released on furnishing the bail bond by them on the failure of the investigating agency to complete the investigation and file the chargesheet within the stipulated time mentioned therein - the object and purpose of proviso to Section 167(2) Cr.P.C. is to impress upon the need for expeditious investigation within the prescribed time limit and to prevent laxity - the object is to inculcate a sense of its urgency and on default the Magistrate shall release the accused if he is ready and does furnish bail - it cannot be said that order of release on bail under proviso to Section 167(2) Cr.P.C. is an order on merits. [Para 8.1] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - deemed to be released under provisions of Chapter XXXIII of the Cr.P.C., which includes Section 437 and 439 also - deeming fiction under Section 167(2) Cr.P.C. cannot be interpreted to the length of converting the order of default bail, which is not on merits as if passed on merits. [Para 8.1] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457

Code of Criminal Procedure, 1973; proviso to Section 167(2) - Grant of Default Bail - the merits brought out in the chargesheet and attending circumstances are relevant, as the bail was granted due to default of the investigating officer without Court's adverting to the merits but strong grounds are necessary to cancel the bail and mere filing of the chargesheet itself is not sufficient. [Para 9.2, 9.4, 9.7] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - Grant of Default Bail - Order granting bail shall be deemed to be under Section 437(1) or (2) or Section 439(1) of the Cr.P.C. and that order can be cancelled when a case for cancellation is made out under Section 437(5) or 439(2) Cr.P.C. [Para 9.6, 9.7] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - In a case where an accused is released on default bail under Section 167(2) Cr.P.C., and thereafter on filing of the chargesheet, a strong case is made out and on special reasons being made out from the chargesheet that the accused has committed a non-bailable crime and considering the grounds set out in Sections 437(5) and Section 439(2), his bail can be cancelled on merits and the Courts are not precluded from considering the application for cancelation of the bail on merits. However, mere filing of the chargesheet is not enough, but as observed and held hereinabove, on the basis of the chargesheet, a strong case is to be made out that the accused has committed non-bailable crime and he deserves to be in custody. [Para 13] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457

Code of Criminal Procedure, 1973; Proviso to Section 167(2) - To hold that default bail cannot be cancelled on merits will be giving premium to lethargic investigation-In a given case, even if the accused has committed a very serious offence, may be under the NDPS or even committed murder(s), still however, he manages through a convenient investigating officer and he manages not to file the chargesheet within the prescribed time limit mentioned under Section 167(2) Cr.P.C. and got released on default bail, it may lead to giving a premium to illegality and/or dishonesty- Such an interpretation frustrates the course of justice. [Para 12] State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457

Code of Criminal Procedure, 1973; Section 167 - The day of remand is to be included for considering a claim for default bail - the stipulated 60/90 day remand period under Section 167 CrPC ought to be computed from the date when a Magistrate authorizes remand - In cases where the chargesheet / final report is filed on or after the 61st/91st day, the accused in our considered opinion would be entitled to default bail. In other words, the very moment the stipulated 60/90 day remand period expires, an indefeasible right to default bail accrues to the accused - 3 judge bench answers reference. Enforcement Directorate v. Kapil Wadhawan, 2023 LiveLaw (SC) 249

Code of Criminal Procedure, 1973; Section 389 - Appellant was convicted by the Trial Court under Sections 307,323 and 341 IPC - High Court suspended the sentence, but imposed strict conditions of deposit of fine amount of Rs. 1,00,000/- along with a surety of Rs. 1,00,000/- and two bail bonds of Rs. 50,000/- each - Waiving these conditions, the Supreme Court observed: Excessive conditions imposed on the appellant, in practical manifestation, acted as a refusal to the grant of bail - Can the Appellant, for not being able to comply with the excessive requirements, be detained in custody endlessly? To keep the Appellant in jail, that too in a case where he normally would have been granted bail for the alleged offences, is not just a symptom of injustice, but injustice itself. Guddan @ Roop Narayan v. State of Rajasthan, 2023 LiveLaw (SC) 45

Code of Criminal Procedure, 1973; Section 437 - 439 - The process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail - The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to be granted or not is required to be examined and the discretion is required to be exercised by the Court with reference to the material on record and the parameters governing bail considerations. The concession of pre-arrest bail or regular bail could be declined even if the accused has made payment of the money involved or offers to make any payment; conversely, in a given case, the concession of pre-arrest bail or regular bail could be granted irrespective of any payment or any offer of payment. (Para 10) Bimla Tiwari v. State of Bihar, 2023 LiveLaw (SC) 47 : (2023) 1 SCR 501

Code of Criminal Procedure, 1973; Section 437 - 439, Section 357 - Interim victim compensation cannot be imposed as a condition for anticipatory bail - Question of interim victim compensation cannot form part of the bail jurisprudence - Victim compensation is simultaneous with the final view taken in respect of the alleged offence, i.e., whether it was so committed or not and, thus, there is no question of any imposition pre-finality of the matter pre-trial - In cases of offences against body, compensation to the victim should be methodology for redemption. Similarly, to prevent unnecessary harassment, compensation has been provided where meaningless criminal proceedings had been started. Such a compensation can hardly be determined at the stage of grant of bail. Talat Sanvi vs State of Jharkhand, 2023 LiveLaw (SC) 83 : (2023) 1 SCR 289

Code of Criminal Procedure, 1973; Section 437-439, 389 - Excessive conditions cannot be imposed while granting bail/suspension of sentence - Conditions of bail cannot be so onerous that their existence itself tantamounts to refusal of bail. (Para 9-16) Guddan @ Roop Narayan v. State of Rajasthan, 2023 LiveLaw (SC) 45

Code of Criminal Procedure, 1973; Section 438 - Addition of a serious offence can be a circumstance where a Court can direct that the accused be arrested and committed to custody even though an order of bail was earlier granted in his favour in respect of the offences with which he was charged when his application for bail was considered and a favourable order was passed. The recourse available to an accused in a situation where after grant of bail, further cognizable and non-bailable offences are added to the FIR, is for him to surrender and apply afresh for bail in respect of the newly added offences. The investigating agency is also entitled to move the Court for seeking the custody of the accused by invoking the provisions of 437(5)3 and 439(2)34 Cr.P.C., falling under Chapter XXXII of the Statute that deals with provisions relating to bails and bonds. (Para 20) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205

Code of Criminal Procedure, 1973; Section 438 - Anticipatory bail application for money laundering offence should satisfy rigours of Section 45 PMLA - Observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.P.C. is just contrary to the decision in the case of Assistant Director Enforcement Directorate vs Dr VC Mohan and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah Vs. Union of India and Anr.; (2018) 11 SCC 1. (Para 5) Directorate of Enforcement v. M. Gopal Reddy, 2023 LiveLaw (SC) 138

Code of Criminal Procedure, 1973; Section 438 - Ordinarily, there is no justification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person apprehending arrest ought to make payment. (Para 11) Bimla Tiwari v. State of Bihar, 2023 LiveLaw (SC) 47 : (2023) 1 SCR 501

Code of Criminal Procedure, 1973; Section 438 - Victim has right to be heard in bail application of the accused - No doubt, the State was present and was represented in the said proceedings, but the right of the prosecutrix could not have been whittled down for this reason alone. In a crime of this nature where ordinarily, there is no other witness except for the prosecutrix herself, it was all the more incumbent for the High Court to have lent its ear to the appellant. (Para 23, 24) Ms. X v. State of Maharashtra, 2023 LiveLaw (SC) 205

Code of Criminal Procedure; Section 438 - Dismissal for default / non prosecution of bail application - Practice adopted by the High Court in passing orders for dismissal of bail application in default disapproved. Rahul Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 64

Day of remand should be included for considering default bail claim: Supreme Court answers reference. Enforcement Directorate v. Kapil Wadhawan, 2023 LiveLaw (SC) 249

Default bail can be cancelled on merits after presentation of chargesheet. State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457

Ensure basic essentials such as FIR number, police station are recorded in bail orders: Supreme Court to all High Courts. Ravish Kumar v. State of Bihar, 2023 LiveLaw (SC) 206

Excessive conditions cannot be imposed while granting bail / suspension of sentence. Guddan @ Roop Narayan v. State of Rajasthan, 2023 LiveLaw (SC) 45

If bail bonds are not furnished within one month, Trial Courts may consider suo motu relaxing conditions. In Re Policy Strategy for Grant of Bail, 2023 LiveLaw (SC) 76

Interim victim compensation cannot be imposed as a condition for bail. Talat Sanvi v. State of Jharkhand, 2023 LiveLaw (SC) 83 : (2023) 1 SCR 289

Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 – Effect of delay in trial – Grant of bail on ground of undue delay in trial not fettered by Section 37 – Imperative of Section 436A of Code of Criminal Procedure Act – Requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods – Applicable to offences under the NDPS Act – Held, special conditions as enacted under Section 37 can only be considered within constitutional parameters when the court is reasonably satisfied on a prima facie look at the material on record that the accused is not guilty – A plain and literal would effectively exclude grant of bail altogether - Further held, appellant deserves to be enlarged on bail – Appeal allowed. Mohd. Muslim v. State (NCT of Delhi), 2023 LiveLaw (SC) 260

Plain and literal interpretation of Section 37 NDPS Act would make bail impossible: Supreme Court adopts 'Prima Facie' Test. Mohd. Muslim v. State (NCT of Delhi), 2023 LiveLaw (SC) 260

Prevention of Money Laundering Act, 2002; Section 45 - Rigours under Section 45 are applicable to anticipatory bail applications. (Para 5) Directorate of Enforcement v. M. Gopal Reddy, 2023 LiveLaw (SC) 138

Process of criminal law not for money recovery; Bail can be granted irrespective of payment of money involved. Bimla Tiwari v. State of Bihar, 2023 LiveLaw (SC) 47 : (2023) 1 SCR 501

Right to Speedy Trial - Laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable - Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials – especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily. Mohd. Muslim v. State (NCT of Delhi), 2023 LiveLaw (SC) 260

Section 438 Cr.P.C. - Can HCs refuse to entertain anticipatory bail pleas for not exhausting Sessions Court remedy? Supreme Court to Consider. Gauhati High Court Bar Association v. State of Assam, 2023 LiveLaw (SC) 177

Section 45 PMLA conditions applicable to anticipatory bail applications for money laundering offence. Directorate of Enforcement v. M. Gopal Reddy, 2023 LiveLaw (SC) 138

Supreme Court disapproves Allahabad HC dismissing several bail applications on the same day for default. Rahul Sharma v. State of Uttar Pradesh, 2023 LiveLaw (SC) 64

Supreme Court issues directions to avoid delay in release of prisoners after getting bail. In Re Policy Strategy for Grant of Bail, 2023 LiveLaw (SC) 76

Supreme Court overturned a bail condition imposed by the High Court that a person accused of illegally claiming Input Tax Credit must deposit Rs. 70 lakhs, the alleged amount of improperly claimed ITC - Centre conceded that such a condition is unsustainable when final assessment has not taken place. Subhash Chauhan v. Union of India, 2023 LiveLaw (SC) 61

Supreme Court warns magistrates who don't follow judgments on bail; says they might be taken off from judicial work & sent for training. Satendra Kumar Antil v. Central Bureau of Investigation, 2023 LiveLaw (SC) 233

Supreme Court expresses anguish at Trial Courts acting in violation of its judgments on bail & remand. Chandmal v. State of M.P., 2023 LiveLaw (SC) 94

View that default bail cannot be cancelled on merits will reward lethargic investigation. State through CBI v. T. Gangi Reddy @ Yerra Gnagi Reddy, 2023 LiveLaw (SC) 37 : AIR 2023 SC 457