Life and personal liberty are recognized as inviolable rights of every person under the Constitution of India ("Constitution"). Article 21 thereof provides, "No person shall be deprived of his life or personal liberty except according to a procedure established by law". The concept of bail has a direct nexus to Article 21 of the Constitution. Hon'ble Supreme Court1 has recognized that bail acts a safeguard to the right of personal liberty enshrined under Article 21 of the Constitution.
No definition of the term "bail" is provided under the Code of Criminal Procedure, 1973 ("CrPC"). However, slight clarity on the meaning of bail is attempted to be provided through judicial interpretation. As per the Hon'ble Madras High Court2, bail connotes the process of procuring the release of an accused charged with certain offence by ensuring his future attendance in the Court for trial and compelling him to remain within the jurisdiction of the Court. The provision for bail goes back to Magna Carta itself3, which provides that no free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
Grant of bail has also a direct correlation to the principle, "presumption of innocence until proven guilty", which is a fundamental principle underlying the Criminal Jurisprudence, enshrined under Article 11(1)4 of the Universal Declaration of Human Rights. The said principle has also been, frequently, recognized by the Indian Judiciary5 as one of the three cardinal principles of criminal jurisprudence. No doubt, the said principle has become one of the imperative determining factors for the grant of bail to an accused.
Chapter XXXIII, Sections 436 till 450 CrPC, deals with the provisions relating to bail and bonds. Crucial amongst them being, the provisions of Section 437 and 439 CrPC, which provide for grant of regular bail by Magistrate and by Sessions and High Court, respectively and Section 438 CrPC, which deals with the provisions relating to the grant of anticipatory bail by the Courts of Sessions and High Court. Courts in India have unswervingly worked on the principle, "Grant of bail is a rule and refusal is an exception6". The reason behind the same being that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than, if he were in custody. Of equal importance is the power of Courts to grant interim bail, till a final adjudication on the regular/ anticipatory bail application, so preferred by an accused. As per the Hon'ble Supreme Court7, interim bail acts as a means/ measure to safeguard the reputation of an accused. The Hon'ble Apex Court has further recognized that "in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application."
The importance of interim bail cannot be emphasized enough. Courts in India have consistently recognized that interim bail acts a means to protect a person's reputation till the adjudication on the main application of bail, susceptible to be dented by the mere event of arrest of such person and stigma associated therewith. In this regard, the Hon'ble Supreme Court, discussing the scope of interim bail, in Lal Kamlendra Pratap Singh v. State of U.P. and Ors., (2009)4 SCC 437 has held, "In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person's reputation...." Similarly, in the cases of pendency of anticipatory bail application, the Hon'ble High Court of Delhi8 had observed, "where there is no likelihood of the accused fleeing from justice, or tampering with the evidence, or a clear case for custodial interrogation is not made out and the application for grant of anticipatory bail cannot be heard at an early date, then the interim protection should normally be provided to such accused persons. Otherwise, the very object and purpose for grant of anticipatory bail would get defeated."
It is settled law that the grant or refusal of bail is dependent on the discretion of the Court. However, such discretion must be "judicial", that is, a sound discretion guided by law. "It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular.9" Such judicious exercise is even more of importance at the stage of determining a prayer/ request for grant of interim bail, for the simple reason that at that stage, the merits and severity of the case may not be completely appreciated by the Courts.
Since, such power in exercise in the interregnum and largely on limited facts and circumstances brought to the knowledge of the Court, it is not quite uncommon that such a power of Court is often misused by unscrupulous litigants/ accused. Instances of such misuse and abuse may be many, ranging from violation and disregard of bail conditions to extreme, elopement from the process of Law. One such instance of misuse of interim bail was recognized by the Hon'ble Supreme Court in Rukmani Mahato v. State of Jharkhand, (2017) 15 SCC 574. In the said case, the Hon'ble Apex Court deprecated the practice of the subordinate Courts, granting regular bail on the strength of the interim/pre-arrest bail granted by the superior court. The Hon'ble Court held, "..even if the superior court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior court meaningless."
Another such instance may be where an accused, post arrest, on his representation is able to obtain the relief of interim bail for limited duration. However, while evading arrest, such accused, blatantly, disregards the bail conditions and even fails to appear before Court, post expiry of such duration. Instances such as these are nothing but an abuse of process of Court and must be dealt with severity. While dealing with similar instance of judicial abuse, the Hon'ble High Court of Rajasthan10 has held that in such a case, an evading accused can neither seek recourse to the inherent jurisdiction of the High Court(s) under Section 482 CrPC, nor is the remedy under Section 438 CrPC available. At the same time, as per the Hon'ble Supreme Court, even the power under Section 439 CrPC cannot aid such erring accused unless such accused/ person surrenders and in the custody. While relying of the judgments of the Hon'ble Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharota11 and Gurbaksh Singh v. State of Punjab12, the Hon'ble High Court held, "...They cannot be granted bail under section 439 Cr. P.C. unless, as explained above, they surrender before the Court and submit to its directions. They cannot invoke the aid of section 438 Cr. P.C. either, because, as already stated, they were arrested by the police......The law is well settled, that anticipatory bail can be granted so long only as the applicant has not been arrested."
Pertinently, instances are also not uncommon where dishonest accused have attempted to abuse/ misuse the inherent power of the High Courts, invoking the provisions of Section 482 CrPC to seek the remedy of interim bail/ protection. In this regard, the Hon'ble Apex Court has time and again clarified13 that the power of High Court(s) under Section 482 CrPC cannot be resorted to where there are specific provisions under law the redressal of the grievance of the aggrieved party or where alternative remedy is available. The Hon'ble Court14 has firmly disapproved the practice of conversion of the application under Section 482 CrPC to that under Sections 438 and 439 CrPC. In fact, it has been a consistent stand of the Hon'ble Supreme Court that in matters related to criminal prosecution/ arrest/ investigation/ etc., there should limited interference15 by the High Courts, while exercising their power under Section 482 CrPC.
Conclusively, life and personal liberty are too valuable a right to be lightly dealt with. Indian judicial and legal system have time and again emphasized the importance of such indispensable rights of individuals, including the cases of grant and refusal of bail. However, the Courts are also to be cautious of the fact that where the judicial devices become means of misuse and abuse by dishonest litigants/ persons, same must be strictly dealt with. Undoubtedly, law aids and assists the honest and cannot be utilized in the aid of or for carrying out the scheme of fraud. Interim bail, as the name suggests, in a conditional protection for the interregnum and cannot be stretched to evade judicial process altogether. Any such process of abuse of law, must be strictly dealt with by the Courts.
1 Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240 has held, "Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community."
2 Natturasu v. State, 1998 Cri LJ 1762
3 Referred to in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1
4 "(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."
5 Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233; Sunil Kumar Sharma v. State (CBI), (2007) 139 DLT 407
6 Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab, AIR 1980 SC 1632; Nikesh Tarachand Shah v. Union of India (UOI) and Ors., AIR 2017 SC 5500
7 Sukhwant Singh & Ors v. State of Punjab, (2009) 7 SCC 559
8 Parminder Singh and Ors. v. The State, 95 (2002) DLT 410
9 Refer to Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240
10 Phool Chand v. State of Rajasthan, 1983 SCC OnLine Raj 124:1983 RLW 294
11 AIR 1980 SC 785
12 AIR 1980 SC 1632
13 State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770; Simrikhia v. Dolley Mukherjee, (1990) 2 SCC 437
14 Refer, Savitri Goenka v. Kusum Lata Damani, (2007) 14 SCC 373
15 Refer to State of Rajasthan v. Ravi Shankar Srivastava, (2011) 10 SCC 632; Ramlal Yadava v. State of U.P., 1989 Cri LJ 1013
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