Legal Provisions of Section 437 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
This section allows discretion to the Court or a police officer to release an accused on bail in a non-bailable case which is not punishable with death or with imprisonment for life. However, a person below 16 years of age, a woman or a sick or infirm person may be released on bail even if the offence with which he or she is charged is punishable with death or life imprisonment.
But while using discretion to release such accused, the Court or the police officer is guided by certain principles which must be kept in mind. The Supreme Court has ruled in a number of cases that the object of granting bail is to secure the attendance of the accused before the Court at the time of inquiry or trial and not to punish him. Therefore, law favours grant of bail as a rule, and its refusal in exceptional cases.
ADVERTISEMENTS:
The observations of the Apex Court in State of Rajasthan v. Balchand sufficiently highlight the desirability of judicious approach towards granting of bail to persons accused of a non-bailable offence. The Court inter alia observed:—
The basic rule may perhaps be tersely put as bail and not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with the Court when considering the question of bail. So also the heinousness of the crime……”
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Considerations for Grant of Bail
ADVERTISEMENTS:
Broadly speaking the Court or the police officer, while considering grant of bail in case of non-bailable offences, should refer to the following circumstances:—
1. The nature of accusation or charge;
2. The nature and character of evidence in support of the charge;
3. The severity of sentence which conviction will entail.
ADVERTISEMENTS:
4. The possibility of the accused of fleeing or absconding on his release on bail;
5. The apprehension of witnesses being tampered with or bribed or threatened;
6. The protracted nature of the trial;
7. Personal antecedents and conduct of the accused including his health, age, sex, family background, social status etc.;
8. The circumstances under which the offence has been committed.
9. The larger interest of public safety or state security and past conduct of the accused.
In order to determine whether the accused has his roots in the community which would deter him from absconding, the Court or the police officer may further take into consideration the length of his residence at a particular place, employment and financial status, family ties, reputation in society etc.
The considerations stated above are only illustrative and not exhaustive and there may be other factors which should be considered by the Court depending on the circumstances of the case as also the accused person.
The Supreme Court in the case of Ku. Kusum Pande v. State of Uttar Pradesh held that while granting bail under Section 437 the Court must use its discretion judiciously. Though the Court need not go into detailed examination of evidence or documents for this purpose but it must satisfy itself that there is a prima-facie case against the accused.
In the instant case the accused Ku. Kusum was charged with the offence of murder and the sole eye-witness in the case had gone to U. S. A. for studies. When she came to India, she was available for giving her evidence but the accused did not appear before the Court at that time as she wanted to delay the proceedings to avoid her arrest. The Court held that grant of bail to the accused in these circumstances was not at all justified.
In Rajesh Ranjan Yadav alias Pappu v. C. B.I, the Apex Court observed that there is no settled conclusive rule as to whether an accused should be released on bail or not, because it essentially depends upon the facts and circumstances of the case. It is also not necessary that an accused must be released on bail because he has been in prison for a long time.
The Court noted that Article 21 of the Constitution guarantees personal liberty to a person which is very important but at the same time it cannot be forgotten that maintenance of peace and security in the society is equally important. Therefore, no fundamental right is absolute and it may be reasonably fettered or restricted in the larger interest of the society.
In this case, the Court came to the conclusion that though the accused Pappu Yadav was in jail for more than six months but his release on bail was dangerous for the society as there was every possibility of his using muscle power to threaten or intimidate witnesses. He had created terror in the jail among the fellow prisoners and was availing many facilities illegally by pressuring the jail staff. Therefore, the Court held that under the circumstances repeated rejection of his bail application was justified as he was trying to delay the trial for one reason or the other for years.
The Supreme Court in a catena of cases has observed that the following factors also must be considered before granting bail—
(1) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(2) Reasonable apprehension of tampering of the witnesses or threat to the complainant or prosecution witness;
(3) Prima-facie satisfaction of the Court in support of charge against the accused.
The Court must indicate prima facie reasons for its conclusion as to grant of bail, particularly where an accused is charged of having committed a serious offence.
The Supreme Court in Lokesh Singh v. State of U. P., held that while dealing with an application for bail, the Court should indicate in its order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet reasons therefore must invariably be stated in the order. The considerations that should weigh before the Court for grant of bail are as follows—
(i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(ii) Reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant; and
(iii) Prima facie satisfaction of the Court in support of the charge.
Where the accused was charged of having committed serious offences of cruelty and dowry death, order granting bail de hors of reasons suffered from non-application of mind and therefore such an order deserved to be set aside.
The grant of bail to one of the co-accused in a non-bailable case does not necessarily entitle the main accused to be released on bail, if in the opinion of the Court the role of the accused in committing the offence does not warrant grant of his bail.
The first proviso to sub-section (1) contains an exception that the police officer or the Court may grant bail to a woman or a person under 16 years of age or a sick or infirm person even in cases where the accused is alleged to have committed an offence punishable with death or imprisonment for life. Perhaps the reason for this exemption is that they are not likely to interfere with the investigation or delaying the trial by their ascendance.
In case of a female accused, the necessity of making a search of the premises in her presence or her presence for interrogation in connection with investigation are no grounds for taking her into custody or for refusing the bail.
Sub-section (2) empowers the Court to grant interim bail to the accused pending further inquiry into the matter where the Court finds that there are no reasonable grounds for believing that the accused had committed a non-bailable offence, but there are valid reasons for further inquiry into his guilt.
Sub-section (3) empowers only the Court and not the police officer to impose conditions as necessary in the circumstances in order to ensure that the accused shall attend the Court or not repeat the offence or otherwise not interfere with the course of justice. The power to impose conditions under this sub-section can be exercised by the Court where—
(i) The offence is punishable with imprisonment which may extend to seven years or more; or
(ii) When the offence is against the State or against the human body or against property or;
(iii) Where the offences are of abetment of, conspiracy to, or attempt to commit any such offence as mentioned in (i) and (ii) above.
The conditions imposed should, however, be reasonable and they should not be in derogation of fundamental right guaranteed to the accused under the Constitution of India. Thus, a condition that the accused will accompany the police to various places for recovery of stolen goods was held to be violative of the right of the accused not to be a witness against himself as contemplated by Article 20 of the Constitution.
Likewise, granting bail upon condition that accused shall execute a bond of rupees fifty thousand with two sureties one of which will give a cheque for rupees two lakhs was held to be unreasonable by the Supreme Court. In this case, the accused had to languish in jail for ten months due to dishonouring of the said cheque. Therefore, the Supreme Court ordered his release on bail on a bond of rupees twenty five thousand with two solvent sureties.
Sub-section (4) makes it mandatory for the Court to record reasons in writing for grant of bail to the accused. Non-compliance of this provision does not make the bail illegal it is an irregularity which is curable under Section 465 of the Code.
Cancellation of bail:
The power to cancel bail under sub-section (5) has been given to the Court and not to the police officer. Therefore, a bail granted by the police cannot be cancelled by the Court of a Magistrate. It can be got cancelled only by invoking the powers of the High Court or the Court of Sessions under Section 439 of the Code.
Obviously, the question of cancellation of bail will arise only when bail was once granted. It would, therefore, necessitate review of the earlier decision and the supervening circumstances which could be no longer conducive to allow the accused to retain freedom during the trial. The bail once granted should not be generally cancelled unless there is material before the Court to show that the accused is likely to abuse his freedom or frustrate the fair trial.
It must be stated that there should be no difficulty in cancelling the bail which was granted improperly or illegally or under a wrongful exercise of power or erroneous judicial discretion. Such a bail may be cancelled even without the existence of supervening circumstances.
In State of Maharashtra v. Anant Chintaman Dighe, the accused was granted bail because he was a prominent leader of a political party and there was no possibility of his committing any offence in future. But after his release on bail, he was found to threaten prosecution witnesses of committing their murder and giving lectures inciting violence. The Apex Court therefore, held that the cancellation of bail of the accused was proper and hence needed no interference by the Court.
The High Court of Orissa in Vijay Ketan Mahanta v. State of Orissa, expressed a view that power to cancel bail may be used by the Court only when the accused is released on bail but if he is merely under custody, the question of his release on bail does not arise and, therefore, the Court has no power to order release of person under custody.
The principles on which bail is granted radically differ from those under which a bail be cancelled. The High Court of Madras, in its decision in Public Prosecutor v. George Williams, has enumerated the circumstances when a bail once granted, may be cancelled and the accused may be re-committed to jail. They are briefly as follows:—
(1) Where the person on bail, during the period of bail, commits the very same offence for which he is being tried or has been convicted, and thereby proves utter unfitness, to be on bail;
(2) If he hampers the investigations as will be the case if he, when on bail forcibly prevents the search of places under his control for the corpus delicit or other incriminating things;
(3) If he tampers with the evidence, as by intimidating the prosecution witnesses, interfering with the scene of offence in order to remove traces or proof of the crime, etc.;
(4) If he runs away to a foreign country or goes underground or beyond the control of the sureties; and
(5) If he commits acts of violence; in revenge against the police and the prosecution witnesses or those who have booked him or are trying to book him.
Sub-section (5) further provides that for the purpose of cancellation of bail under this Section, it is not relevant that before an order of grant of bail was passed under Section 167 (2), the bail petitions of the accused were discussed on merits; nor is it relevant that the challan was filed by the police subsequent to release of the accused on bail under Section 167(2).
In Subodh Kumar Yadav v. State of Bihar, the case was registered against the appellant under Section 498-A of IPC. The Supreme Court found that the Magistrate had taken into consideration totally irrelevant documents and showed undue haste in hearing the bail application on day appellant surrendered before the Court without hearing counsel for complainant. It appeared that there was anxiety on the part of Magistrate to release the appellant on bail anyhow.
The exercise of judicial discretion being arbitrary and with oblique motives, cancellation of bail by the High Court was proper and therefore, the Supreme Court found no reason to interfere and dismissed the appeal.
The High Court of Madhya Pradesh, in Kalyan Singh v. State of M.P. has held that where an accused was released on bail for a non-bailable offence and subsequently the offences were converted into more serious ones, then in such a case, the Court has the power to cancel bail under Section 437 (5) and take back the accused in custody.
The Supreme Court has ruled that a bail granted by one Bench of the High Court cannot be cancelled by another co-ordinate Bench of the same Court without any new additional grounds, particularly when the earlier order of grant of bail has become final and an appeal was pending against the same.
Before cancellation of bail, the accused must be afforded an opportunity to be heard and it should be cancelled only when a valid case justifying cancellation has been made out after hearing both the parties.
The Court does not have power to cancel a bail suo motu without any valid reason or without an application for such cancellation. Where there was a threat posed by the accused, to the life and property of the complainant and his family members, the cancellation of his bail was justified.
Sub-section (6) makes provision for the release of undertrial prisoners on bail if the trial is not concluded within sixty days from the first date fixed for taking evidence in the case. The object of this provision is to see that the under trials are not required to await the disposal of their case for an indefinite period. However, where the trial is not concluded within the stipulated time of 60 days, the undertrial may still not be released on bail provided the Magistrate thinks that he should not be so released and records reasons therefore in writing.
In Jayendra Saraswathi Swamigal v. State of Tamil Nadu, the accused, Sankaracharya of Kanchi Math was charged with conspiracy in the murder of Manager of the Devasthan. While considering his application for release on bail, the Supreme Court held that while granting bail the Courts should take the following points into consideration—
(1) The nature and gravity of the alleged offence;
(2) Nature of the evidence;
(3) Those circumstances which are peculiar and unusual in the context of the accused;
(4) The possibility of presence of the accused in the Court on the required dates,
(5) The possibility of accused tampering with the evidence;
(6) Public interest in general and security of the Nation; and
(7) Other factors which may be relevant to the facts and circumstances of the case.
Taking into consideration the aforesaid factors the Court granted bail to Swamy Jayendra Saraswathi on condition that he would not enter the premises of Kanchi Math until charge sheet is filed in the Court against him and that he will surrender his passport to the Chief Judicial Magistrate.
Relevant Cases
The Supreme Court has held that the Courts exercising bail jurisdiction should refrain from giving elaborate reasons in their orders for justifying the grant or refusal of bail.
The Supreme Court in Afzal Khan alias Babu Murthuzakhan Pathan v. State of Gujarat reiterated that order disposing bail application has to be reasoned but detailed reasons touching merits of the case should not be given for the simple reason that detailed examination of evidence and elaborate documentation of merits of the case is not done at this stage.
The Court further held that where accused appears to be a threat to security of state bail under Section 437, Cr. P.C. should generally be refused. In the instant case ASI, Ahmedabad Crime Branch in his F.I.R. against the accused stated that some youths from Ahmedabad city had gone to Pakistan for obtaining training for carrying on terrorist activities with a view to take revenge of loss of lives and properties caused in Godhra Massacre and they have returned back to India after training.
One of these youths, Afzal Khan was alleged to be a party to the conspiracy in committing offences under Sections 120 (B), 121, 121(A), 122 and 123,1.P.C. and Section 25/27/29 of the Arms Act. Other accused were alleged to have provided money and were found in possession of large quantity of arms. The Court therefore found prima facie case made out against the appellants and therefore bail to them was rightly refused.
While granting the bail the Court must take into consideration the financial and social status of the accused and the conditions of bail should not be so onerous as to make it beyond reach of the accused. Thus where the accused was required to furnish security of one lakh rupees with two sureties residing within the State, the Supreme Court held it virtually amounted to denial of bail.
The Rajasthan High Court in Shehat Ali v. Stated has observed that the mere fact that Section 437 of CrPC makes a distinction between persons accused of graver offences and less serious offences or that it creates exceptions in favour of young persons, woman and infirm persons does not render it discriminatory and unconstitutional under Article 14 of the Constitution because the classification is based on intelligible differentiation and also imposes a statutory obligation upon the Court to record reasons in writing.
The grant of bail by the Sessions Court on condition that the accused should pay a definite amount per month till the disposal of the case was held to be arbitrary and improper and, therefore, the bail order was set aside.
In Vashishtha Singh & another v. State of Bihar, the appellants were involved in a case against which a cross-case was also pending. The investigation in both these cases had been completed but the police had filed final report only in one of those cases.
The Apex Court held that whatever be the position of defence in this criminal proceeding, the applicants were entitled to grant of bail under Section 437, Cr. P. C. Therefore, the Session Court was directed to release the appellants on bail on a bond of Rs. 50,000/- each with two competent sureties.
In State of Tamil Nadu v. S.A. Raja, earlier application of the appellant was rejected by the High Court on the ground that accused was likely to influence witnesses and the rejection of bail was confirmed by the Supreme Court.
The accused (charged of murder) however, moved a fresh application within a short span of time. The Apex Court directed that fresh application should not be dealt with due to no change of circumstances. Hence, order granting bail was liable to be set aside.
The question of grant of bail on trial stayed by the Supreme Court at the stage of recording of statements of accused persons came up for consideration before the High Court of Gujarat in Patel Vishnubhai Sivrambhai v. State of Gujarat. In this case the evidence of prosecution witnesses before the Trial Court was already over. But the trial was stayed by Supreme Court at the stage of recording of statements of accused persons.
As the applicants, i.e., the accused persons had already remained in jail for almost two years hence they were entitled to be released on bail under Section 437 of the Code of Criminal Procedure. More so, because they had never attempted to jump bail when they were earlier released.
The High Court further observed that merely because the accused had surrendered or arrested by police after some time of cancellation of bail by Supreme Court, on inference could not be drawn that they were attempting to leave the country for ever.
In Surinder Singh v. State of Punjab, the Supreme Court granted bail to undertrial prisoners under Section 437, Cr. P.C. because the co-accused had already been released on bail. The accused in this case was convicted for the offence of murder and remained in custody for about six years and four months. On facts and circumstances of the case, the appellant (accused) was entitled to be granted bail particularly, because the co-accused had already been released on bail.
In Gobarbhai Naranbhai Singala v. State of Gujarat decided along-with Jayesbhai alias Panchabhai Muljibhai Satadiya v. Jayrajsingh Temubha Judeja and Another the Apex Court held that grant of bail to an accused of having allegedly committed murder, on the ground that trial of his case has not begun or progressed will not be proper and the fact that accused did not misuse his liberty while on temporary bail twice by itself is no justification for grant of bail in a murder case especially when he was allegedly involved in subsequent murder.
In the instant case, the accused apart from his involvement in two murder cases, had earlier been named in ten other criminal cases in the last 25 years or so, out of which 5 cases were under Section 307, I.P.C. for attempt to murder and another for murder under Section 302, I.P.C. Furthermore, the accused was acquitted in most of the cases for want of sufficient evidence. This speaks volumes about the antecedents and past criminal record of the accused. In the case before the Court in appeal three eye-witnesses stated in their statements recorded under Section 167, Cr. P.C. that accused was present at the time of occurrence and he had fired with his gun, therefore, setting aside the order of the Gujarat High Court granting bail to the said accused, the Supreme Court held that the High Court had ignored to consider the basic requirement necessary for grant of bail and the bail deserved to be cancelled.
[437A. Bail to require accused to appear before next appellate Court:
(1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.
(2) If such accused fails to appear, the bond stand forfeited and the procedure under Section 446 shall apply.]