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Trends of granting BAIL in non-bailable offences in India

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  • A newborn child shouldn’t suffer from hyper technicalities of law- Bail Granted under POCSO(AHC-02/06/2022) - Seeking Bail U/S 363, 366, 504, 506, 376 IPC & Sections 3/4 of P.O.C.S.O. Act-Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail.
  • A. GOSWAMI  VS UOI: SC upheld Press Rights, stayed FIRs except one while restraining coercive action, allowed three weeks for Bail-24/04/2020 - Save and except for FIR No 238 of 2020 dated 22 April 2020, registered at Police Station Sadar, District Nagpur City, Maharashtra, all further proceedings arising out of and emanating from the remaining FIRs and complaints listed out at Annexure P-2 of the petition shall remain stayed, until further orders; For a period of three weeks, the petitioner shall be protected against any coercive steps arising out of and in relation to the above FIR arising out of the telecast which took place on 21 April 2020;
  • Aminuddin Vs. State of Uttar Pradesh & Anr.(30/09/2022) - BAIL CANCELLED-There can be no manner of doubt that the protection of personal liberty under Article 21 is a constitutional value which has to be respected by the High Court, as indeed by all courts. Equally, in a matter such as the present, where a serious offence of murder has taken place, the liberty of the accused has to be necessarily balanced with the public interest in the administration of criminal justice system which requires that a person who is accused of a crime is held to account. The length or the period of custody of any of the co-accused persons has hardly any bearing on the subjectmatter of these appeals. Similarly, even if stringent conditions have been imposed, the orders impugned cannot sustain themselves, for being hit by the dictum of this Court.
  • An absconder or a Proclaimed Offender in terms of Section 82 CrPC is not entitled to relief of anticipatory bail-SC - Just as liberty is precious for an individual so is the interest of the society in maintaining law and order. Both are extremely important for the survival of a civilised society. Sometimes in the larger interest of the public and
  • Anticipatory bail granted depending on conduct and behavior of accused, continue end of trial- Issued guidelines: Constitutional Bench - “(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. (2) Whether the life of
  • Anticipatory bail is subject to extraordinary equitable discretion of Court - An order of anticipatory bail virtually converts a non bailable offence under the Code to a bailable one subject, of course, to appropriate conditions which the Court can in the interests of justice impose. The circumstances are not enumerated in
  • Ashish Mishra @ Monu vs State of U.P (26/07/2022) - The vital difference between the convict and accused has to be looked into by keeping at stake the cardinal principles of ''presumption of innocence until proven guilty' and ''guilt beyond reasonable doubt'. Media trial apart from taking up the investigation on its own leads to forming public opinion against the suspect even before the court takes cognizance of the case as a result the accused who should have been presumed innocent is treated a criminal.
  • Bhoopendra Singh Vs. State of Rajasthan & Anr (29/10/2021) - On the touchstone of the above decisions and for the reasons we have indicated above, the impugned order granting bail is unsustainable. The High Court has failed to notice relevant circumstances bearing on the seriousness and gravity of the crime and the role attributed to the second respondent. The High Court has proceeded on the erroneous basis that no overt act has been assigned to the second respondent. There was no change in circumstances warranting the grant of bail.
  • CHC stayed bail granted by CBI Court in CBI ACB Kolkata Vs Shri Firhad Hakim @ Bobby Hakim & Ors-17/05/2021 - Public trust and confidence in the judicial system is more important, it being the last resort. They may have a feeling that it is not rule of law which prevails but it is a mob which has an upper hand and especially in a case where it is led by the Chief Minister of the State in the office of CBI and by the Law Minister of the State in the Court Complex. If the parties to a litigation believe in Rule of Law such a system is not followed. The idea was different.
  • Court should not impose excessive condition for granting bail - Criminal Procedure Code, 1973 (CrPC) - Section 437 - Bail - Conditions for - Excessively onerous condition that accused should pay a huge sum of Rs. 2 lacs at stage of FIR - Accused failed to make the payment of said amount and languishing in jail endlessly - Not proper. Order passed by Metropolitan Magistrate imposing condition that accused should pay a huge sum of Rs. 2 lacs to be set at liberty, not proper. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lacs. If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to his legal remedies provided by law.
  • Custodial trial is not relevant while considering bail application u/s 439 of Cr.P.C, but may have some relevance for anticipatory bail -SC (17/11/2022) - Considering the fact that the charge-sheet has already been filed, the accused is already charge-sheeted and the relevant material is also now a part of the charge-sheet, the same is required to be considered by the High Court. Therefore, the matter ought to be remitted to the High Court to consider the bail application afresh and pass appropriate orders after considering the relevant material/evidence collected during the investigation which are now a part of the charge-sheet
  • Despite not providing for anticipatory bail under SC/ST Act, however Court can quash FIRs for want of Prima facie case: SC - Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions.
  • Discharge of a person arrested by police in thana level - Discharge of person apprehended No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate. Source: Cr.P.C
  • GANAPATI AND OTHERS Vs. THE STATE OF MYSORE - Indian Penal Code, 1860 (IPC) — Sections 147, 148, 307 — Cancelling the bail granted -Once the police had filed a charge sheet in the case, the Magistrate was not at all justified in entertaining any petition filed on behalf of the private complainant and that too acting upon it. behind the back of the accused and cancelling the bail granted to the petitioners-accused.
  • Gangster Vikas Dubey was granted bail on 28/05/2020 by Allahabad High Court - In the event of arrest the applicant shall be released on anticipatory bail till the submission of police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions
  • Gautam Kundu vs The Enforcement Directorate (28/02/2020) - This is an application for bail under Section 439, read with Section 436A of the Code of Criminal Procedure, 1973 on behalf of the petitioner who has prayed for his enlargement on bail on any condition.
  • Granting bail under NDPS Act - PRAJESH SHANTILAL VAGHANI Vs. THE INTELLIGENCE OFFICER, NARCOTICS CONTROL BUREAU AND ANOTHER BOMBAY 
  • Gurbaksh Singh Sibbia Versus The State of Punjab-9/04/1980 - Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Considerations for—Anticipation of foul play—The provision for grant of bail can be invoked to meet such contingency in addition to other grounds.
  • Harjit Singh Vs. Inderpreet Singh @ Inder and Anr – 24/08/2021 - Apex Court does not interfere with Bail order of HC. But, where the discretion of HC to grant bail has been exercised without due application of mind or in contravention of directions of apex Court, granting bail is liable to be set aside.
  • High Court of Judicature for Rajasthan Vs. State of Rajasthan & Anr-29/09/2021 - GRANTING BAIL-The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process
  • Icchu Devi Choraria Vs Union of India and others- 09/09/1980 - Habeas corpus-Constitution of India, 1950—Articles 32 and 22(5)—Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 3(3)— It is also necessary to point out that in case of an application for a writ of habeas corpus, the practice evolved by this Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activise this Court into examining the legality of detention—Once the rule is issued it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law.
  • In Re: Contagion Of Covid 19 Virus in Prisons-13/04/2020 - We make it clear that we have not directed the States/ Union Territories to compulsorily release the prisoners from their respective prisons. The purpose of our aforesaid order was to ensure the States/Union Territories to assess the situation in their prisons having regard to the outbreak of the present pandemic in the country and release certain prisoners and for that purpose to determine the category of prisoners to be released.
  • In Re: Harish K. Madan-13.08.2019 - An application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on 18.7.2019 in connection with Ballygunge P.S  case no. 27 of 2019 dated 1.3.2019 under sections 420/406/467/468/471/120B of the IPC - Bail granted
  • Indian constitutional philosophy of personal liberty - Idealistic view The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of States’ security, public order, disruption of national economic discipline etc. being envisaged as a necessary evil to be administered under strict
  • Informant shall be noticed before considering Bail by HC/Session U/S 376(3), 376-AB, 376-DA, and 376-DB IPC - The Criminal Law (Amendment) Act, 2018-it has been mandated that the presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code
  • Jagjeet Singh & Ors VS Ashish Mishra @ Monu & Anr-18/04/2022 - The victim’s right to participate in criminal trial and his/her right to know the status of investigation, and take necessary steps, or to be heard at every crucial stage of the criminal proceedings, including at the time of grant or cancellation of bail, were also duly recognised by the Committee.
  • Justice A B Singh of Jharkhand HC allowed Bail on condition of donation to Kerala Relief Fund - The Jharkhand HC Advocate Association general secretary said HCs in Madhya Pradesh and Karnataka had issued similar directions to some litigants to pay costs towards the relief fund in Kerala. Bombay HC also asked one Trademark infringer to deposit Cost
  • Justice S.P. Talukdar committee failed to sell property of Tower Group accused of Rs.350 Crores Scam, SC observed while cancelling bail of the group Chairman - CANCELLATION OF BAIL-However, it is argued by both the Counsel that the amount may be about Rs. 350 Crores. Be that as it may, having regard to the material on record, and since a huge amount of money belonging to investors has been siphoned off, as well as for the aforesaid reasons, the High Court, in our considered opinion, should not have released the Respondent on bail.
  • Karnataka HC Justice Krishna S. Dixit granted bail to a rapist because the Victim was tired and fell asleep after the crime! - the explanation offered by the complainant that after the perpetration of the act she was tired and fell asleep, is unbecoming of an Indian woman; that is not the way our women react when they are ravished;
  • Laxman Prasad Pandey Vs. State of Uttar Pradesh & Anr-11/12/2021 - BAIL CANCELLED- petitions under Section 439 Cr.PC-Section 147, 148, 149, 307 AND 302 IPC.reasons given for incompletion of the investigation is that the injured is still undergoing treatment which makes it obvious that he has suffered more than the simple injuries referred to by the learned counsel.
  • Mahipal Vs Rajesh Kumar @ Polia & Anr-05/12/2019 - Cancellation of Bail -Where an order refusing or granting bail does not furnish the reasons that inform the decision, there is a presumption of the non-application of mind which may require the intervention of this Court. Where an earlier application for bail has been rejected, there is a higher burden on the appellate court to furnish specific reasons as to why bail should be granted.
  • Manisha Vs. State of Rajasthan and Anr- 19/04/2022 - At the stage of granting bail the Court is not required to enter into a detailed analysis of the evidence in the case. Such an exercise may be undertaken at the stage of trial.
  • Mohammad Azam Khan Vs. State of Uttar Pradesh (19/05/2022) - WRIT-Article 142 of the Constitution of India-personal liberty-BAIL-grant interim bail to the petitioner in the peculiar facts and circumstances of the case, till he files the application for regular bail and the same is considered by the Competent Court.
  • Naresh Das vs State of Tripura- Bail Guidelines by Tripura High Court-2015 - However, the primary purpose of keeping a person under detention and not granting him bail is not to punish him because punishment can be inflicted only after he is convicted but to ensure that investigation is proper; that the prosecution evidence shall not be tampered with; that the accused shall not try to influence the witnesses; that the trial shall not be unduly delayed and other similar reasons.
  • P. CHIDAMBARAM Vs. CENTRAL BUREAU OF INVESTIGATION [DHC]-20/08/2019 - Anticipatory Bail application cancelled - Section 120B r/w Section 420 of IPC and Section 8 and Section 13 (1)(d) r/w Section 13(2) of the PC Act - Pre-arrest is not meant for high profile economic offenders. Time has come to recommend to the Parliament to suitably amend the Law to restrict the provisions of pre-arrest bail and make it inapplicable to economic offenders of high profile cases like the instant one.
  • P. CHIDAMBARAM VS DIRECTORATE OF ENFORCEMENT – 5/9/2019 - Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation.
  • P.Chidambaram Vs Directorate of Enforcement – 4/12/2019 - The instant appeal is allowed and the judgment dated 15.11.2019 passed by the High Court of Delhi in Bail Application No.2718 of 2019 impugned herein is set aside; The appellant is ordered to be released on bail if he is not required in any other case, subject to executing bail bonds for a sum of Rs.2 lakhs with two sureties of the like sum produced to the satisfaction of the learned Special Judge; The passport ordered to be deposited by this Court in the CBI case shall remain in deposit and the appellant shall not leave the country without specific orders to be passed by the learned Special Judge. The appellant shall make himself available for interrogation in the course of further investigation as and when required by the respondent. The appellant shall not tamper with the evidence or attempt to intimidate or influence the witnesses;
  • Prabhakar Tewari Vs. State of Uttar Pradesh & Anr-24/01/2020 - The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail.
  • Pradeep Ram Vs. State of Jharkhand & ANR-1/07/2019 - Sections 437(5) and 439(2) of Cr.P.C. Sub-section (5) of Section 437 of Cr.P.C-The question, as to whether when an accused is bailed out in a criminal case, in which new offences have been added, whether for arresting the accused, it is necessary to get the bail cancelled, has arisen time and again, there are divergent views of different High Courts on the above question.
  • Prayer for pre-arrest bail was turned down by Apex Court granted by Calcutta High Court -13.08.2019 - Bail granted - In the matter of: Riday @ Hriday Ghosh @ Ridoy - The accused was not named in the first information report and as co-accused persons are on regular bail/anticipatory bail, we are inclined to grant bail to the petitioner.
  • Prosecution fails to explain injuries of accused, this lacuna entitles to bail-Allahabad HC-3/9/2020 - It is, therefore, incumbent upon the prosecution to explain the injuries on the person of the accused as well and prima facie this lacuna or infirmity appearing in the prosecution case, entitles the applicants to be enlarged on bail. However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case but that would apply to cases where the injuries sustained by the accused are minor and superficial.
  • Protracted incarceration - Shaheen Welfare Association v. Union of India (1996) 2 SCC 616. and Hussain v. Union of India, (2017) 5 SCC 702 it was argued that such protracted incarceration violates the respondent’s right to speedy trial and access to justice; in which case, Constitutional Courts could exercise their powers to grant bail, regardless of limitations specified under special enactments.
  • Provisions for bail and bonds under Pocso Act 2012 - Pocso Act 2012 S 31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court: Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 including the provisions as to bail
  • Rajeev Kumar -Vs CBI, SP, Economic Offences –IV, CGO Complex-CHC 01/10/2019 - Therefore, the status of a witness is convertible to the accused during the course of investigation subject to the collection of independent sufficient incriminating materials against the petitioner, which must be in the nature of startling and clinching in sense.
  • Read Bail Order of Firhad Hakim, Subrata Mukherjee, Madan Mitra and Sovan Chatterjee by CBI Court Kolkata-17/05/2021 - Over and above when the purpose of investigation has already been completed as against the arrested persons Sir Madan Mitra, Firhad Hakim @ Bobby Hakim, Subrata Mukherjee and Sovan Chatterjee and where there is no prayer for C.B.I custody for further interrogation, mere prayer for judicial custody can not be the ground for detention of the arrest persons. I think what ever prayer has been made by the I.O in respect of the present case should not be entertained on the other hand what ever prayer has been made in respect of bail of the accused Sir Madan Mitra, Firhad Hakim @ Bobby Hakim, Subrata Mukherjee and Sovan Chatterjee should be allowed.
  • Rohit Sharma vs State Nct Of Delhi (27/09/2021) - Sections 186/353/307 IPC.- Applying the law laid down by the Supreme Court to the present case, no doubt the petitioner is charged with an offence under Section 307 IPC and if convicted, the petitioner may be sentenced for life, but that alone cannot be a factum to keep the petitioner in incarceration.
  • Sadhan Chaudhury Vs The State of Rajasthan and Anr- 12/07/2022 - Anticipatory bail under Section 438 CrPC-t is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.
  • Sanjay Chandra Vs CBI – 23/11/2011 - Criminal Procedure Code, 1973—Section 439—Constitution of India—Article 21—BAIL—Provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant BAIL to accused pending trial or in appeal against convictions—Since jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and interest of the society in general—BAIL is rule and committal to jail an exception.
  • SC granted bail to P. Chidambaram subject to executing bail bonds of Rs.2 lakhs u/s 439 of Cr.PC- 4/11/2019 - While the learned Judge was empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, the learned Judge ought not to have recorded finding based on the materials produced in a sealed cover.
  • SC Granted postarrest bail pending trial on the ground of long incarceration-01/12/2021 - That the requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008(hereinafter being referred to as "Act 2008") mandates that the trial under the Act of any offence by a Special Court shall be held on daytoday basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the Act 2008 but the ground realities are totally different as in the instant case, after the chargesheets came to be filed way back in 2012, the charges have been framed after 7 years of filing of the chargesheet on 20th June, 2019.
  • Somesh Chaurasia Vs. State of Madhya Pradesh & Anr-22/07/21 - Post Conviction Bail Cancelled-Observed: The courts comprised in the district judiciary are the first point of interface with citizens. If the faith of the citizen in the administration of justice has to be preserved, it is to the district judiciary that attention must be focused as well as the 'higher' judiciary.
  • SRI DASAIAH AND SMT. RATHNAMMAVs. THE STATE OF KARNATAKA - Indian Penal Code, 1860 (IPC) — Section 302 — Cancellation of bail granted — Petitioners having been unsuccessful in obtaining bail before jurisdictional Sessions Court are before the Court praying for being enlarged on bail — Petitioners shall not leave the jurisdiction of Sessions Court without express permission and they shall appear before Sessions Court on all the dates of hearing — If any such incident is reported prosecution is at liberty to move this Court for cancellation of bail granted
  • SRI MURUGESH Vs. STATE OF KARNATAKA - Indian Penal Code, 1860 (IPC) — Sections 498A, 302 — Offence punishable under Sections 498(A), 302 of IPC — Petitioner shall not tamper with the witnesses or in any manner interfere with or put obstacle to the investigation — Breach of any one of the above conditions will entitle the prosecution to move this Court for cancellation of the bail granted
  • State of Kerala Vs. Mahesh-19/03/2021 - It appears that the High Court has completely misappreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons. This Court did not direct release of all under-trial prisoners, irrespective of the severity of the offence. After hearing the learned Attorney General of India, Mr. Venugopal, the Amicus Curiae appointed by this Court, Mr. Dushyant Dave and other Learned Counsel, the States and Union Territories were directed to constitute a High Powered Committee to determine which class of prisoners could be released on parole or interim bail for such period as might be thought appropriate.
  • Sumedh Singh Saini Vs. State of Punjab and Anr- 3/12/2020 - FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra) and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, we are of the opinion that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C. Many a time, delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like 29 years as in the present case can certainly be a valid consideration for grant of anticipatory bail.
  • Supreme Court granted Bail to Teesta Setalvad without considering merits of the case (02/09/2022) - We hasten to add that the relief of interim bail is granted to the appellant in the peculiar facts including the fact that the appellant happens to be a lady. This shall not be taken to be a reflection on merits and shall not be used by the other accused.
  • Sushila Aggarwal and others Vs State (NCT of Delhi) and another – 29/1/2020 - Anticipatory Bail-An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.
  • Under S. 167(2) of Cr.P.C accused person is entitled to be released on bail if investigation is not completed within sixty days. - The Provision is Mandatory. In Natabar Parida v. State of Orissa, AIR 1975 SC 1465, the Court explained the mandatory character of the requirement of the proviso to S. 167(2) that an accused person is entitled to be released on
  • What are the guiding factors for exercising the power to granting bail - The considerations being: (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
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