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Grant of bill –Relevant considerations

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    • #112029 Reply
      Giga
      Guest

      Grant of bill –Relevant considerations

      Pratapbhai Hamirbhai Solanki V. State of Gujarat and another. (2013) 1 SCC 613

      K.S.P. RADHAKRISHNAN AND DIPAK MISRA, JJ.

      Where fresh investigation ordered by High court in the view of perfunctory nature of investigation
      conducted by investigating authority , it would be inappropriate to enlarge accused on bail. In this case , An FIR was lodged against two persons alleging that they had fired at the deceased, an RTI activist from their revolver which resulted in his death. The occurrence allegedly took place at about 8.30 p.m. on a public road near the State Bar Council office. A police constable informed his superior inspector on his mobile phone about the incident. In the course of investigation, the appellant was arrested along with others for criminal conspiracy to commit murder. The investigating agency placed the charge- sheet before the competent court. The material on record showed that the appellant, a dealer in mobile phones to his friend who was a police constable and that a call had been traced from the mobile of the contract killer to the appellant. During the pendency of investigation, an application was filed before the Sessions Judge for grant of bail but the same was rejected. Thereafter, the appellant preferred a bail application under Section 439 Cr.P.C. before the High Court urging that the appellant for no justifiable reasons, had remained in custody for long and the charge-sheet had been filed under Sections 302, 201 and 120-B IPC solely on the basis of statement of a peon serving in the office of the appellant and that there was no material to rope him in the crime. The application for bail was resisted by the prosecution on the ground that the deceased had found the appellant to be involved in a number of illegal activities and he deceased had exposed the appellant in a number of ways as a consequence of which he had hatched the conspiracy with Accused 1 which ultimately resulted in hiring of Accused 2 as a contract killer to eliminate the deceased.

      The single Judge of the High Court held that the conspiracy between Accused 4, and the sharpshooter, a person who had absconded and that itself prima facie showed the involvement of the appellant-accused.

      The High Court taking note of all the aspects including the gravity of the offence declined to grant bail to the appellant. A Division Bench of the High Court in Bhikhalal Jethava v. State of Gujurat by its order dated 25-9- 2012 expressed its dissatisfaction with regard to the investigation which it called a perfunctory. After ascertaining reasons it directed CBI to expeditiously undertake a comprehensive investigation.

      Dismissing the appeal and denying bail, the Supreme Court

      Held:-

      It is true that liberty is a greatly cherished value in the life of an individual and no one would like to barter it for all the tea in Chine, but it is obligatory on the part of the court to scan and scrutinize, though briefly, as regards the prima facie case, the seriousness and gravity of the crime and the potentiality of the accused to tamper with the evidence apart from other aspects before the restriction on liberty is lifted on imposition of certain conditions.

      The ingredients of the offence of conspiracy are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Ordinarily, the Supreme Court would have proceeded to express its opinion on the basis of analysis of the material available on record. But the High Court in its order dated 25-9-2012 has directed CBI to conduct a comprehensive inquiry. It is open to the appellant to challenge the legal substantiality of the said order. But for the present, as there is a direction for fresh investigation, the appellant cannot be granted bail. In case the order for reinvestigation is annulled by the Supreme Court, it would be open for the appellant to file a fresh application for bail before the competent court. If the order of the High Court withstands scrutiny, after CBI submits its report, liberty is granted to the appellant to move the appropriate court for grant of bail. No opinion is expressed by the Supreme Court on the entitlement of the appellant to be released on bail or not because of the subsequent development i.e., direction by the High Court for comprehensive investigation by CBI.

      https://advocatetanmoy.com/2021/03/13/what-are-the-guiding-factors-for-exercising-the-power-to-granting-bail/

    • #112030 Reply
      Giga
      Guest

      Cr.P.C SEC-239,

      Shoraj singh Ahlawat and ors v. State of u.p. and anr. (AIR 2013 SC 52)

      T.S.THAKUR AND FAKKIR MOHAMED IBRAHIM KALLIFULLA, JJ. Issue, Discharge

      Consideration–Magistrate has on basis of material on record only to see whether there is ground to presume that accused has committed offence–Even strong suspicion about existence of facts constituting offence—Sufficent to refuse discharge.

      SEC-239,273

      Discharge

      Complaint of dowry harassment– Complaint making specific allegations not only against husband but also against in-laws–conceding that in matrimonial cases tendency to rope in as many members of family of husband as possible is on rise–court would not at intermediate stage speculate whether allegations are true or false and direct discharge-in-laws being senior citizens-their personal attendance however exempted.

    • #112802 Reply
      Advocatetanmoy
      Keymaster

      Section 436 in The Code Of Criminal Procedure, 1973

      436-In what cases bail to be taken.

      (1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:

      Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter

      Provided: Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446A .

      (2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail- bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.

    • #112805 Reply
      Advocatetanmoy
      Keymaster

      Section 437 in The Code Of Criminal Procedure, 1973

      437- When bail may be taken in case of non- bailable offence.

      (1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

      (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

      (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more,

      or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence:

      Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm:

      Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason:

      Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

      (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall, subject to the provisions of section 446 A and pending such inquiry, be released on bail or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

      (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary-

      (a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

      (b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

      (c) otherwise in the interests of justice.

      (4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its reasons or special seasons for so doing.

      (5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

      (6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

      (7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.


      NOTE

      Under Section 437(1) (i) of Cr.P.C., rider has been made upon the jurisdiction of the Magistrate in granting bail to the person arrested for non-bailable offences. The bar under Section 437 (1) (i) of Cr.P.C. is not an absolute bar but discretion is granted to Magistrate to consider and grant bail in exceptional circumstances as envisaged in first proviso to Section 437 (1) of Cr.P.C. The exceptions are that the person is under the age of 16 years or is woman or is sick or infirm . Only under the above contingencies, the Magistrate can allow bail on the application of persons who is charged for offence punishable with death or imprisonment for life.

      Reasonable ground for believing means that upon considering prima facie material placed before him and not to consider the evidence.

      Though under Section 437 (1) (i), there is no bar in entertaining application by the Judicial Magistrate First Class for grant of bail under Section 437 of Cr.P.C. but under Section 437 (1) (i) of Cr.P.C., there is restriction in release if there appear reasonable grounds for believing that applicant is guilty of offence punishable with death or imprisonment for life.

      Hon’ble Supreme Court in case of Prahlad Singh Bhati Vs. NCT Delhi & Anr. reported in (2001) 4 SCC 280 has held that the Magistrate will have no jurisdiction to grant bail unless offence is also exclusively triable by the Court of Sessions. Provision under Section 437 of Cr.P.C. does not make any difference that the offence alleged to be triable by the Judicial Magistrate or by the Court of Sessions, but it only mentions the restriction upon the jurisdiction of Magistrate to enlarge the person on bail arrested for commission of non-bailable offence if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Under Section 437 of Cr.P.C. what has been made important is consideration of punishment prescribed for the non-bailable offence and not the offence to be triable by the Court of Judicial Magistrate or Sessions Court. In case of Prahlad Singh Bhati (supra), Hon’ble Supreme Court in paragraph-7 has held “Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought.

    • #112813 Reply
      Advocatetanmoy
      Keymaster

      Section 436-A of the Code OF CRIMINAL PROCEDURE

      436-A > Maximum period for which an undertrial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

      Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

      Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

      Explanation – In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded.


      NOTE

      This section has been inserted by the Parliament in the Code by it’s Act, 2005, which came into force w.e.f. 23.06.2005. The legislative history of the provision lies embedded in prolonged debates, seemingly unending, amongst jurists and legal pundits on the subject of bail. While it has been generally acknowledged that it is not always just or advisable to confine the accused before conviction, the differences on the actual practice of bail are quite sharp. The opinion makers have been at variance as to how, when and on what conditions the bail be granted before conviction. Both ends of the spectrum of practice of bail are represented by extreme views.

      Now, if we take a look at the amending Act entitled the Code of Criminal Procedure (Amendment) Act, 2005, some disappointment would be in store for us as we do not come across any Statement of Objects and Reasons in so far as Section 436-A is concerned. However, there is annexed to the Bill introduced in the Rajya Sabha on 09th May, 1994 a Statement of Objects and Reasons. It would be quite helpful for us, to reproduce it here. It goes as under :-

      “Having regard to the recommendations made by the Law Commission and the National Police Commission, the observations made by the courts and the suggestions received from the State Governments and others, and with a view to removing certain difficulties or lacunae felt in its working, it has been found necessary to amend various sections of the Code of Criminal Procedure, 1973.
      2. The Notes on clauses explain, in brief, the various provisions of the Bill.
      3. The Bill seeks to achieve the above objects.”

       The raging controversy on practice of bail, recommendations of Law Commission and Statement of Objects and Reasons appended to the Bill introduced in the Rajya Sabha in 1994, would give us a fair idea about the situation prevailing at the time when the Code of Criminal Procedure (Amendment) Act, 2005 was passed, in so far as provisions made in Section 436-A are concerned. The situation which went into birth of Section 436-A was of under- trial prisoners, the primary concern being of their incarceration in jail for long period of time pending investigation, inquiry or trial, even though the presumption of innocence till found guilty was operating in their favour. By introducing Section 436-A to the Code, an endeavor was made to remedy the condition of torture and misery of accused persons as under-trial prisoners, relegated to dark corners within jails, away from the hustle and bustle of life activity without jails.

      Upon the closer examination of the language used in Section 436-A of the Code, it can be seen without any difficulty or doubt that the benefit intended to be given is for a person who has, during the period of investigation, inquiry or trial under the Code of an offence, not being an offence for which capital punishment has been prescribed as one of the punishments, undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law. In such a case, the person is required to be released on his personal bond with or without sureties in normal course of circumstances. But, there could be some special circumstances justifying his further detention, for reasons to be recorded, which makes the right of the person limited and not absolute. This is evident from the first proviso which lays down that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in writing, order continued detention of the person for a period longer than one half of the period mentioned in the Section or release him on bail instead of the personal bond with or without sureties. However, this limited right has the potential of becoming absolute when the condition prescribed in second proviso is fulfilled. The condition is that if the person has been detained during the period of investigation, inquiry or trial for Judgment more than maximum period of imprisonment provided for an offence under that law, the person has to be released. There is also an explanation appended to the section. It lays down that in computing the period of detention for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.

      The Section does not say that a person who has been detained for one half period of imprisonment imposed would be eligible. Mentioning of “the maximum period of imprisonment specified for that offence under that law” and omission of the words “punishment imposed” shows that the legislature was aware of the difference in the status of an Judgment undertrial prisoner and a convict, and with it of the consequences of detaining a person who enjoys presumption of innocence till found guilty for unduly long time. Such presumption of innocence being absent in case of a convict, the legislature refrained, and consciously, from mentioning the words “punishment imposed”. This clearly shows the intention of the legislature to confer the benefit on the under- trials and not the convicts. This being the position, we do not think that rule of liberal construction would have any application here.

      It clarifies as to how the period of detention contemplated under Section 436-A of the Code for granting bail has to be calculated. It lays down that period of delay in a proceeding caused by an accused must be Judgment excluded. Any occasion of causing of delay in a proceeding, if it has to arise, would arise only during trial as for hearing of an appeal against conviction, personal presence of the accused is not required, unless directed otherwise, and so there would be no question of the convict personally contributing to delay in an appeal proceeding.

    • #112822 Reply
      Advocatetanmoy
      Keymaster

      Power of the Court to suspend the sentence or order appealed against

      Section 389 of the Code specifically refers to a convicted person and the power of the Court to suspend the sentence or order appealed against and also direct release of the convict on bail, if he is in confinement. Section 389 of the Code has not been amended so as to include the limited right given by Section 436-A to a person under investigation or inquiry or facing trial. The other indicator is that Section 436-A has been inserted in Chapter- XXXIII containing provisions as to bail and bonds.

      The provisions contained in this Chapter, deal with bail and bonds and the principles applicable to them in relation to a person accused of or suspected of commission of an offence. These provisions do not by themselves enable a convict to secure bail, and he has to take recourse to Section 389 of the Code, which makes possibility of getting bail for a convict a reality, subject to appellate court suspending his sentence. In other words the provision does not make the event of grant of bail as independent of the satisfaction of the Court as regards the need for suspending the sentence or order appealed against, till final disposal of the appeal and it is only upon recording Judgment  necessary satisfaction that a convict would succeed in getting bail. So, in a pending appeal there is no right of bail for a convict which is alive and available for him to be taken advantage of at any point of time desired by him. The right remains eclipsed by the requirement of suspension of sentence and becomes clearly visible when the eclipse is removed. Even after the right becomes available, it’s realization depends on the discretion of the Court.

      But that is a different matter. The point here is of the exercise of right being dependent on suspension of sentence by the Court. That would show that the right of bail in Section 389 of the Code is consequential to suspension of the sentence and unless the first requirement is fulfilled, the consequence of bail of convict would not happen. If the legislature had intended that the benefit under Section 436-A of the Code should be given even to a convict before an Appellate Court, it would have amended suitably Section 389 of the Code. The legislature did not do it. It would show that the legislative policy was limited to extending benefit only to an undertrial prisoner and not to convicts whose appeal is pending before the Appellate Court under Section 374 of the Code.

      Section 436-A of the Code were not applicable to appeals and they would apply only during trials. Supreme Court was of the view that while deprivation of personal liberty guaranteed under Article 21 for some period may not be unavoidable, deprivation of the same pending trial/appeal could not be unduly long.

      Section 436-A of the Code can be used by an appellate court while considering application of a convict filed under Section 389 of the Code seeking suspension of sentence and bail, as constituting one of the relevant criteria for exercise of its discretion and of course not as a matter of any right or course.


       

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