Tag Archives: Bail

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 bail if the investigation is not completed within sixty days. The Court said:

“But then the command of the Legislature in proviso(a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. In serious offences of criminal conspiracy-murders, dacoities, robberies by inter-State gangs or the like it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be to grant no discretion to the Court and to make it obligatory for it to release the accused on bail. Of course, it has been provided in proviso(a) that the accused released on bail under S. 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail, if it considers necessary so to do to direct that such person be arrested and committed to custody as provided in sub-section (5) of S. 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised under S. 309 of the new Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail. Such a law may be a “paradise for the criminals,” but surely it would not be so, as sometimes it is supposed to be because of the Courts. It would be so under the command of the Legislature.”

In Bashir v. State of Harayana, (1977) 4 SCC 410, the question arose whether a person who has been released under the proviso to S. 167(2) could later be committed to custody merely because a challan was subsequently filed. The Court hold that he could not be so committed to custody. But, the bail could be cancelled under S. 437(5) if the Court came to the conclusion that there were sufficient grounds, after the filing of the challan to believe that the accused had committed a non-bailable offence and that it was necessary to arrest him and commit him to custody. The Court said:

“Sub-section (2) of Section 167 and proviso(a) thereto make it clear that no Magistrate shall authorise the retention of the accused person in custody under this section for a total period exceeding sixty days. On the expiry of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail. So far there is no controversy. The question arises as to what is the position of the person so released when a challan is subsequently filed by the police.”

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“Sub-section (5) to Section 437 is important. It provides that any Court which has released a person on bail under sub-section (1) or subsection (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under S. 437(1) or (2). Section 437(5) empowers the Court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under S. 437(1) or (2) and these provisions are applicable to a person who has been released under Section 167(2). Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he has committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As the provisions of Section 437(1) (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed, is not sufficient to commit him to custody. In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a charge-sheet had been filed and that before the appellants were directed to be released under Section 167(2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5). Neither is it a valid ground that subsequent to release of the appetlants a challan was filed by the police. The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should proceed on the basis that he has been deemed to have been released under Section 437(1) and (2).”

In Talab Hazi Hussain v. Mondkar, AIR 1958 SC 376 a case arising under the old Code, the Court considered the grounds on which bail might be cancelled. It was said:

“There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the (inherent) powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the (inherent) power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the (inherent) power of the High Court can be legitimately invoked. In regard to non-bailable offences there is no need to invoke such power because S. 497(5) specifically deals with such cases.”

The result of our discussion and the case-law in this:An order for release on bail made under the proviso to S. 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under S. 309(2). The order for release on bail may however be cancelled under S. 437(5) or S. 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful acts. Where bail has been granted under the proviso to S. 167(2) for the default of the prosecution in not completing the investigation in sixty days. after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.

What are the factors and parameters to be considered while dealing with the anticipatory bail

The Supreme Court has cautioned in the case of Pokar Ram v. State of Rajasthan that since anticipatory bail intrudes the sphere of investigation of crime some very compelling circumstances have to be made out for granting anticipatory bail in serious offences.

The Supreme Court has recommended the following factors and parameters to be considered while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused’s likelihood to repeat similar or other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arrest.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and on the other hand harassment, humiliation and unjustified detention of the accused be voided;
ix. The court to consider apprehension of tampering of the witness or apprehension of threat to the complainant and;
x. Frivolity in prosecution should always be considered vis-àvis the element of genuineness in the matter. In the event of there being some doubt as to the genuineness of the prosecution, the accused should be considered entitled to an order of bail.

CONSTITUTION OF SPECIAL COURT- COGNISANCE AND BAIL UNDER NDPS ACT 1985

36. Constitution of Special Courts—

(1)The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification.
(2)A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court.
Explanation: In this sub-section, “High Court” means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge.
(3)A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge.

36A. Offences triable by Special Courts.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),–
(a)all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;
(b)where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under subsection (2) or sub-section (2A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers–
(i)when such person is forwarded to him as aforesaid; or
(ii)upon or at any time before the expiry of the period of detention authorised by him,
that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;
(c)the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to an accused person in such case who has been forwarded to him under that section;
(d)a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under section 36.

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”:

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.

36B. Appeal and Revision.—

The High Court may exercise, so far as may be applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 (2 of 1974), on a High Court, as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court.

36C. Application of Code to proceedings before a Special Court.—

Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

36D. Transitional Provisions.—

(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989), which is triable by a Special Court shall, until a Special Court is constituted under section 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Session.
(2) Where any proceedings in relation to any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989), are pending before a Court of Session, then, notwithstanding anything contained in sub-section (1), such proceeding shall be heard and disposed of by the Court of Session:
Provided that nothing contained in this sub-section shall affect the power of the High Court under section 407 of the Code of Criminal Procedure, 1973 (2 of 1974) to transfer any case or class of cases taken cognizance by a Court of Session under sub-section (1).

37. Offences to be cognizable and non-bailable.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a)every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless–
(i)the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii)where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

Sanjay Chandra Versus CBI[ALL SC 2011 NOVEMBER]

KEYWORDS:-BAIL

Apex court

In deciding BAIL applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial.

(2011) 13 SCALE 107

(SUPREME COURT OF INDIA)

Sanjay Chandra Appellant
Versus
CBI Respondent

(Before : H.L. Dattu and G.S. Singhvi, JJ.)

Criminal Appeal No. 2178 of 2011 (Arising out of SLP (Crl.) No. 5650 of 2011) : Decided On: 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.

Criminal Procedure Code, 1973—Section 439—BAIL—In determining whether to grant BAIL, both seriousness of charge and severity of punishment should be taken into consideration—Grant or refusal to grant BAIL lies within discretion of Court—Grant or denial is regulated, to a large extent, by facts and circumstances of each particular case—But, right to BAIL is not to be denied merely because of sentiments of community against accused.

Criminal Procedure Code, 1973—Section 439—Constitution of India—Article 21—BAIL—When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of Constitution is violated—Every person, detained or arrested, is entitled to speedy trial—Accused are charged with economic offences of huge magnitude—However, investigating agency has already completed investigation and charge sheet is already filed before Special Judge, CBI—Their presence in custody may not be necessary for further investigation—Appellants are entitled to grant of BAIL pending trial on stringent conditions—BAIL granted.

Counsel for the Parties:

Harin P. Raval, ASG, Ram Jethmalani, Mukul Rohatgi, Soil J. Sorabjee, Ashok H. Desai, Sr. Advs., Ritu Bhalla, Manu Sharma, Karan Kalia, Pranav Diesh, Ananya Ghosh, Sahil Sharma, Vijay Agarwal, Saurabh Kirpal, Ninad Laud, Purnima Bhat Kak, Shally Bhasin Maheshwari, Mahesh Agarwal, Siddharth Singla, Tapesh Kumar Singh, Rajiv Nanda, Anirudh Sharma, Harsh N. Parekh, Anando Mukherjee, Padmalakshmi Nigam and Arvind Kumar Sharma, Advs.

JUDGMENT

H.L. Dattu, J—Leave granted in all the Special Leave Petitions.

2. These appeals are directed against the common judgment and Order of the learned Single Judge of the High Court of Delhi, dated 23rd May 2011 in BAIL Application No. 508/2011, BAIL Application No. 509/2011 & Crl. M.A. 653/2011, BAIL Application No. 510/2011, BAIL Application No. 511/2011 and BAIL Application No. 512/2011, by which the learned Single Judge refused to grant BAIL to the accused-Appellants. These cases were argued together and submitted for decision as one case.

3. The offence alleged against each of the accused, as noticed by the Ld. Special Judge, CBI, New Delhi, who rejected BAIL applications of the Appellants, vide his order dated 20.4.2011, is extracted for easy reference:

Sanjay Chandra (A7) in Crl. Appeal No. 2178 of 2011 (arising out of SLP (Crl.) No. 5650 of 2011):

6. The allegations against accused Sanjay Chandra are that he entered into criminal conspiracy with accused A. Raja, R.K. Chandolia and other accused persons during September 2009 to get UAS licence for providing telecom services to otherwise an ineligible company to get UAS licences. He, as Managing Director of M/s Unitech Wireless (Tamil Nadu) Limited, was looking after the business of telecom through 8 group companies of Unitech Limited. The first-come-first- served procedure of allocation of UAS Licences and spectrum was manipulated by the accused persons in order to benefit M/s Unitech Group Companies. The cutoff date of 25.09.2007 was decided by accused public servants of DoT primarily to allow consideration of Unitech group applications for UAS licences. The Unitech Group Companies were in business of realty and even the objects of companies were not changed to ‘telecom’ and registered as required before applying. The companies were ineligible to get the licences till the grant of UAS licences. The Unitech Group was almost last within the applicants considered for allocation of UAS licences and as per existing policy of first-come-first-served, no licence could be issued in as many as 10 to 13 circles where sufficient spectrum was not available. The Unitech companies got benefit of spectrum in as many as 10 circles over the other eligible applicants. Accused Sanjay Chandra, in conspiracy with accused public servants, was aware of the whole design of the allocation of LOIs and on behalf of the Unitech group companies was ready with the drafts of ` 1658 crores as early as 10th October, 2007.

Vinod Goenka (A5) in Crl. Appeal No. 2179 of 2011 (arising out of SLP(Crl) No. 5902 of 2011):

5. The allegations against accused Vinod Goenka are that he was one of the directors of M/s Swan Telecom (P) Limited in addition to accused Shahid Usman Balwa w.e.f. 01.10.2007 and acquired majority stake on 18.10.2007 in M/s Swan Telecom (P) Limited (STPL) through DB Infrastructure (P) Limited. Accused Vinod Goenka carried forward the fraudulent applications of STPL dated 02.03.2007 submitted by previous management despite knowing the fact that STPL was ineligible company to get UAS licences by virtue of clause 8 of UASL guidelines 2005. Accused Vinod Goenka was an associate of accused Shahid Usman Balwa to create false documents including Board Minutes of M/s Giraffe Consultancy (P) Limited fraudulently showing transfer of its shares by the companies of Reliance ADA Group during February 2007 itself. Accused/applicant in conspiracy with accused Shahid Usman Balwa concealed or furnished false information to DoT regarding shareholding pattern of STPL as on the date of application thereby making STPL an eligible company to get licence on the date of application, that is, 02.03.2007. Accused/applicant was an overall beneficiary with accused Shahid Usman Balwa for getting licence and spectrum in 13 telecom circles.

12. Investigation has also disclosed pursuant to TRAI recommendations dated 28.08.2007 when M/s Reliance Communications Ltd. got the GSM spectrum under the Dual Technology policy, accused Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd., and said structure of holding companies, to accused Shahid Balwa and Vinod Goenka. In this manner they transferred a company which was otherwise ineligible for grant of UAS license on the date of application, to the said two accused persons belonging to Dynamix Balwa (DB) group and thereby facilitated them to cheat the DoT by getting issued UAS Licences despite the ineligibility on the date of application and till 18.10.2007.

13. Investigation has disclosed that accused Shahid Balwa and Vinod Goenka joined M/s Swan Telecom Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. as directors on 01.10.2007 and DB group acquired the majority stake in TTPL/ M/s Swan Telecom Pvt. Ltd. (STPL) on 18.10.2007. On 18.10.2007 a fresh equity of 49.90 lakh shares was allotted to M/s DB Infrastructure Pvt. Ltd. Therefore on 01.10.2007, and thereafter, accused Shahid Balwa and Vinod Goenka were incharge of, and were responsible to, the company M/s Swan Telecom Pvt. Ltd. for the conduct of business. As such on this date, majority shares of the company were held by D.B. Group.

Gautam Doshi (A9), Surendra Pipara (A10) and Hari Nair (A 11) in Crl. Appeal Nos. 2180,2182 & 2181 of 2011 (arising out of SLP (Crl) Nos. 6190,6315 & 6288 of 2011):

7. It is further alleged that in January-February, 2007 accused Gautam Doshi, Surendra Pipara and Hari Nath in furtherance of their common intention to cheat the Department of Telecommunications, structured/created net worth of M/s Swan Telecom Pvt. Ltd., out of funds arranged from M/s Reliance Telecom Ltd. or its associates, for applying to DoT for UAS Licences in 13 circles, where M/s Reliance Telecom Ltd. had no GSM spectrum, in a manner that its associations with M/s Reliance Telecom Ltd. may not be detected, so that DOT could not reject its application on the basis of Clause 8 of the UASL Guidelines dated 14.12.2005.

8. In pursuance of the said common intention of accused persons, they structured the stake-holding of M/s Swan Telecom Pvt. Ltd. in a manner that only 9.9% equity was held by M/s Reliance Telecom Ltd. (RTL) and rest 90.1% was shown as held by M/s Tiger Traders Pvt. Ltd. (later known as M/s Tiger Trustees Pvt. Ltd. – TTPL), although the entire company was held by the Reliance ADA Group of companies through the funds raised from M/s Reliance Telecom Ltd. etc.

9. It was further alleged that M/s Swan Telecom Pvt. Ltd. (STPL) was, at the time of application dated 02.03.2007, an associate of M/s Reliance ADA Group / M/s Reliance Communications Limited / M/s Reliance Telecom Limited, having existing UAS Licences in all telecom circles. Investigations have also disclosed that M/s Tiger Traders Pvt. Ltd., which held majority stake (more than 90%) in M/s Swan Telecom Pvt. Ltd. (STPL), was also an associate company of Reliance ADA Group. Both the companies has not business history and were activated solely for the purpose of applying for UAS Licences in 13 telecom circles, where M/s Reliance Telecom Ltd. did not have GSM spectrum and M/s Reliance Communications Ltd. had already applied for dual technology spectrum for these circles. Investigation has disclosed that the day to day affairs of M/s Swan Telecom Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. were managed by the said three accused persons either themselves or through other officers/consultants related to the Reliance ADA group. Commercial decisions of M/s Swan Telecom Pvt. Ltd. and M/s Tiger Traders Pvt. Ltd. were also taken by these accused persons of Reliance ADA group. Material inter-company transactions (bank transactions) of M/s Reliance Communications / M/s Reliance Telecommunications Ltd. and M/s Swan Telecom Pvt. Ltd. (STPL) and M/s Tiger Traders Pvt. Ltd. were carried out by same group of persons as per the instructions of said accused Gautam Doshi and Hari Nair.

10. Investigations about the holding structure of M/s Tiger Traders Pvt. Ltd. has revealed that the aforesaid accused persons also structured two other companies i.e. M/s Zebra Consultancy Private Limited & M/s Parrot Consultants Private Limited. Till April, 2007, by when M/s Swan Telecom Pvt. Ltd. applied for telecom licences, 50% shares of M/s Zebra Consultancy Private Limited & M/s Parrot Consultants Private Limited, were purchased by M/s Tiger Traders Pvt. Ltd. Similarly, 50% of equity shares of M/s Parrot Consultants Private Limited & M/s Tiger Traders Private Limited were purchased by M/s Zebra Consultancy Private Limited. Also, 50% of equity shares of M/s Zebra Consultancy Private Limited and M/s Tiger Traders Private Limited were purchased by M/s Parrot Consultants Private Limited. These 3 companies were, therefore, cross holding each other in an interlocking structure w.e.f. March 2006 till 4th April, 2007.

11. It is further alleged that accused Gautam Doshi, Surendra Pipara and Hari Nair instead of withdrawing the fraudulent applications preferred in the name of M/s Swan Telecom (P) Limited, which was not eligible at all, allowed the transfer of control of that company to the Dynamix Balwa Group and thus, enabled perpetuating and (sic.) illegality. It is alleged that TRAI in its recommendations dated 28.08.2007 recommended the use of dual technology by UAS Licencees. Due to this reason M/s Reliance Communications Limited, holding company of M/s Reliance Telecom Limited, became eligible to get GSM spectrum in telecom circles for which STPL had applied. Consequently, having management control of STPL was of no use for the applicant/accused persons and M/s Reliance Telecom Limited. Moreover, the transfer of management of STPL to DB Group and sale of equity held by it to M/s Delphi Investments (P) Limited, Mauritius, M/s Reliance Telecom Limited has earned a profit of around ` 10 crores which otherwise was not possible if they had withdrawn the applications. M/s Reliance Communications Limited also entered into agreement with M/s Swan Telecom (P) Limited for sharing its telecom infrastructure. It is further alleged that the three accused persons facilitated the new management of M/s Swan Telecom (P) Limited to get UAS licences on the basis of applications filed by the former management. It is further alleged that M/s Swan Telecom (P) Limited on the date of application, that is, 02.03.2007 was an associate company of Reliance ADA group, that is, M/s Reliance Communications Limited/ M/s Reliance Telecom Limited and therefore, ineligible for UAS licences.

12. Investigation has also disclosed pursuant to TRAI recommendations dated 28.08.2007 when M/s Reliance Communications Ltd. got the GSM spectrum under the Dual Technology policy, accused Gautam Doshi, Hari Nair and Surendra Pipara transferred the control of M/s Swan Telecom Pvt. Ltd., and said structure of holding companies, to accused Shahid Balwa and Vinod Goenka. In this manner they transferred a company which was otherwise ineligible for grant of UAS license on the date of application, to the said two accused persons belonging to Dynamix Balwa (DB) group and thereby facilitated them to cheat the DoT by getting issued UAS Licences despite the ineligibility on the date of application and till 18.10.2007.

4. The Special Judge, CBI, New Delhi, rejected BAIL Applications filed by the Appellants by his order dated 20.04.2011. The Appellants moved the High Court by filing applications under Section 439 of the Code of Criminal Procedure (in short, “Code of Criminal Procedure”). The same came to be rejected by the learned Single Judge by his order dated 23.05.2011. Aggrieved by the same, the Appellants are before us in these appeals.

5. Shri. Ram Jethmalani, Shri. Mukul Rohatgi, Shri Soli J. Sorabjee and Shri. Ashok H. Desai, learned senior counsel appeared for the Appellants and Shri. Harin P. Raval, learned Additional Solicitor General, appears for the Respondent-CBI.

6. Shri. Ram Jethmalani, learned senior counsel appearing for the Appellant Sanjay Chandra, would urge that the impugned judgment has not appreciated the basic rule laid down by this Court that grant of BAIL is the rule and its denial is the exception. Shri. Jethmalani submitted that if there is any apprehension of the accused of absconding from trial or tampering with the witnesses, then it is justified for the Court to deny BAIL. The learned senior counsel would submit that the accused has cooperated with the investigation throughout and that his behavior has been exemplary. He would further submit that the Appellant was not arrested during the investigation, as there was no threat from him of tampering with the witnesses. He would submit that the personal liberty is at a very high pedestal in our Constitutional system, and the same cannot be meddled with in a causal manner. He would assail the impugned judgment stating that the Ld. Judge did not apply his mind, and give adequate reasons before rejecting BAIL, as is required by the legal norms set down by this Court. Shri. Jethmalani further contends that it was only after the Appellants appeared in the Court in pursuance of summons issued, they were made to apply for BAIL, and, thereafter, denied BAIL and sent to custody. The learned senior counsel states that the trial Judge does not have the power to send a person, who he has summoned in pursuance of Section 87 Code of Criminal Procedure to judicial custody. The only power that the trial Judge had, he would contend, was to ask for a bond as provided for in Section 88 Code of Criminal Procedure. to ensure his appearance. Shri. Jethmalani submits that when a person appeared in pursuance of a bond, he was a free man, and such a free man cannot be committed to prison by making him to apply for BAIL and thereafter, denying him the same. Shri. Jethmalani further submits that if it was the intention of the Legislature to make a person, who appears in pursuance of summons to apply for BAIL, it would have been so legislated in Section 88 Code of Criminal Procedure. The learned senior counsel assailed the judgment of the Delhi High Court in the ‘Court on its own motion v. CBI’ 2004 (I) JCC 308, by which the High Court gave directions to Criminal Courts to call upon the accused who is summoned to appear to apply for BAIL, and then decide on the merits of the BAIL application. He would state that the High Court has ignored even the CBI Manual before issuing these directions, which provided for BAIL to be granted to the accused, except in the event of there being commission of heinous crime. The learned senior counsel would also argue that it was an error to have a “rolled up charge”, as recognized by the Griffiths’ case (R. v. Griffiths and Ors. (1966) 1 Q.B. 589). Shri.Jethmalani submitted that there is not even a prima facie case against the accused and would make references to the charge sheet and the statement of several witnesses. He would emphatically submit that none of the ingredients of the offences charged with were stated in the charge sheet. He would further contend that even if, there is a prima facie case, the rule is still BAIL, and not jail, as per the dicta of this Court in several cases.

7. Shri. Mukul Rohatgi, learned senior counsel appearing for the Appellant Vinod Goenka, while adopting the arguments of Shri. Jethmalani, would further supplement by arguing that the Ld. Trial Judge erred in making the persons, who appeared in pursuance of the summons, apply for BAIL and then denying the same, and ordering for remand in judicial custody. Shri. Rohatgi would further contend that the gravity of the offence charged with, is to be determined by the maximum sentence prescribed by the Statute and not by any other standard or measure. In other words, the learned senior counsel would submit that the alleged amount involved in the so-called Scam is not the determining factor of the gravity of the offence, but the maximum punishment prescribed for the offence. He would state that the only bar for BAIL pending trial in Section 437 is for those persons who are charged with offences punishable with life or death, and there is no such bar for those persons who were charged with offences with maximum punishment of seven years. Shri. Rohatgi also cited some case laws.

8. Shri. Ashok H. Desai, learned senior counsel appearing for the Appellants Hari Nair and Surendra Pipara, adopted the principal arguments of Shri.Jethmalani. In addition, Shri. Desai would submit that a citizen of this country, who is charged with a criminal offence, has the right to be enlarged on BAIL. Unless there is a clear necessity for deprivation of his liberty, a person should not be remanded to judicial custody. Shri. Desai would submit that the Court should bear in mind that such custody is not punitive in nature, but preventive, and must be opted only when the charges are serious. Shri. Desai would further submit that the power of the High Court and this Court is not limited by the operation of Section 437. He would further contend that Surendra Pipara deserves to be released on BAIL in view of his serious health conditions.

9. Shri. Soli J. Sorabjee, learned senior counsel appearing for Gautam Doshi, adopted the principal arguments of Shri. Jethmalani. Shri. Sorabjee would assail the finding of the Learned Judge of the High Court in the impugned judgment that the mere fact that the accused were not arrested during the investigation was proof of their influence in the society, and hence, there was a reasonable apprehension that they would tamper with the evidence if enlarged on BAIL. Shri. Sorabjee would submit that if this reasoning is to be accepted, then BAIL is to be denied in each and every criminal case that comes before the Court. The learned senior counsel also highlighted that the accused had no criminal antecedents.

10. Shri. Haren P. Raval, the learned Additional Solicitor General, in his reply, would submit that the offences that are being charged, are of the nature that the economic fabric of the country is brought at stake. Further, the learned ASG would state that the quantum of punishment could not be the only determinative factor for the magnitude of an offence. He would state that one of the relevant considerations for the grant of BAIL is the interest of the society at large as opposed to the personal liberty of the accused, and that the Court must not lose sight of the former. He would submit that in the changing circumstances and scenario, it was in the interest of the society for the Court to decline BAIL to the Appellants. Shri. Raval would further urge that consistency is the norm of this Court and that there was no reason or change in circumstance as to why this Court should take a different view from the order of 20th June 2011 in Sharad Kumar Etc. v. Central Bureau of Investigation (in SLP (Crl) No. 4584-4585 of 2011) rejecting BAIL to some of the co-accused in the same case. Shri. Raval would further state that the investigation in these cases is monitored by this Court and the trial is proceeding on a day-to-day basis and that there is absolutely no delay on behalf of the prosecuting agency in completing the trial. Further, he would submit that the Appellants, having cooperated with the investigation, is no ground for grant of BAIL, as they were expected to cooperate with the investigation as provided by the law. He would further submit that the test to enlarge an accused on BAIL is whether there is a reasonable apprehension of tampering with the evidence, and that there is an apprehension of threat to some of the witnesses. The learned ASG would further submit that there is more reason now for the accused not to be enlarged on BAIL, as they now have the knowledge of the identity of the witnesses, who are the employees of the accused, and there is an apprehension that the witnesses may be tampered with. The learned ASG would state that Section 437 of the Code of Criminal Procedure. uses the word “appears”, and, therefore, that the argument of the learned senior counsel for the Appellants that the power of the trial Judge with regard to a person summoned under Section 87 is controlled by Section 88 is incorrect. Shri. Raval also made references to the United Nations Convention on Corruption and the Report on the Reforms in the Criminal Justice System by Justice Malimath, which, we do not think, is necessary to go into. The learned ASG also relied on a few decisions of this Court, and the same will be dealt with in the course of the judgment. On a query from the Bench, the learned ASG would submit that in his opinion, BAIL should be denied in all cases of corruption which pose a threat to the economic fabric of the country, and that the balance should tilt in favour of the public interest.

11. In his reply, Shri. Jethmalani would submit that as the presumption of innocence is the privilege of every accused, there is also a presumption that the Appellants would not tamper with the witnesses if they are enlarged on BAIL, especially in the facts of the case, where the Appellants have cooperated with the investigation. In recapitulating his submissions, the learned senior counsel contended that there are two principles for the grant of BAIL – firstly, if there is no prima facie case, and secondly, even if there is a prima facie case, if there is no reasonable apprehension of tampering with the witnesses or evidence or absconding from the trial, the accused are entitled to grant of BAIL pending trial. He would submit that since both the conditions are satisfied in this case, the Appellants should be granted BAIL.

12. Let us first deal with a minor issue canvassed by Mr. Raval, learned ASG. It is submitted that this Court has refused to entertain the Special Leave Petition filed by one of the co-accused (Sharad Kumar v. CBI (supra)) and, therefore, there is no reason or change in the circumstance to take a different view in the case of the Appellants who are also charge-sheeted for the same offence. We are not impressed by this argument. In the aforesaid petition, the Petitioner was before this Court before framing of charges by the Trial Court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions.

13. The Appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read with 13(i)(d) of Prevention of Corruption Act, 1988. BAIL has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the BAIL applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities; possibility of absconding from justice.

14. In BAIL applications, generally, it has been laid down from the earliest times that the object of BAIL is to secure the appearance of the accused person at his trial by reasonable amount of BAIL. The object of BAIL is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of BAIL, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse BAIL as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse BAIL to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

15. In the instant case, as we have already noticed that the “pointing finger of accusation” against the Appellants is ‘the seriousness of the charge’. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the Appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering BAIL applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather “recalibration of the scales of justice.” The provisions of Code of Criminal Procedure. confer discretionary jurisdiction on Criminal Courts to grant BAIL to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of BAIL system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42, observed that “under the criminal laws of this country, a person accused of offences which are non-BAILable, is liable to be detained in custody during the pendency of trial unless he is enlarged on BAIL in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non- BAILable offences are entitled to BAIL if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on BAIL, where fact situations require it to do so.”

16. This Court, time and again, has stated that BAIL is the rule and committal to jail an exception. It is also observed that refusal of BAIL is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

2. The basic rule may perhaps be tersely put as BAIL, 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 the Court. We do not intend to be exhaustive but only illustrative.

3. 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 us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the Petitioner in this case is that, while he has been on BAIL throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the Petitioner being granted BAIL at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the Petitioner will report himself before the police station at Baren once every fortnight.

17. In the case of Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240, V.R. Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of BAIL thus:

3. What, then, is “judicial discretion” in this BAIL context In the elegant words of Benjamin Cardozo:

The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life”. Wide enough in all conscience is the field of discretion that remains.

Even so it is useful to notice the tart terms of Lord Camden that the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable…

Perhaps, this is an overly simplistic statement and we must remember the constitutional focus in Articles 21 and 19 before following diffuse observations and practices in the English system. Even in England there is a growing awareness that the working of the BAIL system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley.

6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on BAIL should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of BAIL would secure the presence of the convict at the stage of judgment, should he be enlarged. Lord Campbell, C.J. concurred in this approach in that case and Coleridge J. set down the order of priorities as follows:

I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial. It is a very important element in considering whether the party, if admitted to BAIL, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted.

In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death.

7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.

8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.

9. Thus the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for BAIL to find whether he has a bad record – particularly a record which suggests that he is likely to commit serious offences while on BAIL. In regard to habituals, it is part of criminological history that a thoughtless BAIL order has enabled the BAILee to exploit the opportunity to inflict further crimes on the members of society. BAIL discretion, on the basis of evidence about the criminal record of a Defendant is therefore not an exercise in irrelevance.

13. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a BAIL plea when the appeal before this Court pends Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding – if that be so – of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio- geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the BAIL plea are admissible in principle but shall not stampede the Court into a complacent refusal.

18. In Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118, this Court took the view:

22. In other non-BAILable cases the Court will exercise its judicial discretion in favour of granting BAIL subject to sub- section (3) of Section 437 Code of Criminal Procedure if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant BAIL to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse BAIL subject, however, to the first proviso to Section 437(1) Code of Criminal Procedure and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.

24. Section 439(1) Code of Criminal Procedure of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of BAIL. Unlike under Section 437(1) there is no ban imposed under Section 439(1), Code of Criminal Procedure against granting of BAIL by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of BAIL under Section 439(1) Code of Criminal Procedure of the new Code. The overriding considerations in granting BAIL to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) Code of Criminal Procedure of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.

19. In Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined:

8. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. and yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of BAIL is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. 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. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that human right.

16. Thus the legal principle and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for BAIL to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on BAIL. In regard to habituals, it is part of criminological history that a thoughtless BAIL order has enabled the BAILee to exploit the opportunity to inflict further crimes on the members of society. BAIL discretion, on the basis of evidence about the criminal record of a Defendant, is therefore not an exercise in irrelevance.

17. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of BAIL is not for punitive purpose but for the bi-focal interests of justice-to the individual involved and society affected.

18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the BAIL applicant. It makes sense to assume that a man on BAIL has a better chance to prepare or present his case than one remanded in custody. and if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of BAIL is limited, “community roots” of the applicant are stressed and, after the Vera Foundation’s Manhattan BAIL Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of BAIL unreasonable and a policy favouring release justly sensible.

20. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a BAIL plea when the appeal before this Court pends Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court’s verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding – if that be so – of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, it enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the BAIL plea are admissible in principle but shall not stampede the Court into a complacent refusal.

20. In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held:

14. The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted Defendants. The jailed Defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.

21. The concept and philosophy of BAIL was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281, thus:

6. “BAIL” remains an undefined term in Code of Criminal Procedure. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of BAIL has found a place within the scope of human rights. The dictionary meaning of the expression “BAIL” denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb “BAILer” which means to “give” or “to deliver”, although another view is that its derivation is from the Latin term “baiulare”, meaning “to bear a burden”. BAIL is a conditional liberty. Stroud’s Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states:

…when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law BAILable, offereth surety to those which have authority to BAIL him, which sureties are bound for him to the King’s use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is BAILed-that is to say, set at liberty until the day appointed for his appearance.

BAIL may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.

7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have. (See A.K. Gopalan v. State of Madras)

8. The law of BAIL, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of BAIL emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.

22. More recently, in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court observed that “(j)ust as liberty is precious to an individual, so is the society’s interest in maintenance of peace, law and order. Both are equally important.” This Court further observed:

116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

This Court has taken the view that when there is a delay in the trial, BAIL should be granted to the accused (See Babba v. State of Maharashtra (2005) 11 SCC 569, Vivek Kumar v. State of U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi (2000) 9 SCC 383).

23. The principles, which the Court must consider while granting or declining BAIL, have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, thus:

The jurisdiction to grant BAIL has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the BAIL, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the BAIL the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of BAIL can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

24. In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under:

18. It is well settled that the matters to be considered in an application for BAIL are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on BAIL; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of BAIL (see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)). While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse BAIL, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then BAIL will be refused. We may also refer to the following principles relating to grant or refusal of BAIL stated in Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11)

11. The law in regard to grant or refusal of BAIL is very well settled. The court granting BAIL should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting BAIL a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why BAIL was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting BAIL to consider among other circumstances, the following factors also before granting BAIL; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)

22. While a detailed examination of the evidence is to be avoided while considering the question of BAIL, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary.

25. Coming back to the facts of the present case, both the Courts have refused the request for grant of BAIL on two grounds: The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant BAIL, both the seriousness of the charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant BAIL lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to BAIL is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of BAIL in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. This Court in Gurcharan Singh and Ors. v. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of BAIL in non-BAILable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.

26. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the Appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the Appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the Appellants on BAIL when there is no serious contention of the Respondent that the accused, if released on BAIL, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet. This Court, in the case of State of Kerala v. Raneef, (2011) 1 SCC 784, has stated:

15. In deciding BAIL applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied BAIL but is ultimately acquitted, who will restore so many years of his life spent in custody Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant BAIL. In the present case the Respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied BAIL. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.

27. In ‘Bihar Fodder Scam’, this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the Appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the Appellants as pre-trial prisoners would not serve any purpose.

28. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the Appellants are entitled to the grant of BAIL pending trial on stringent conditions in order to ally the apprehension expressed by CBI.

29. In the view we have taken, it may not be necessary to refer and discuss other issues canvassed by the Learned Counsel for the parties and the case laws relied on in support of their respective contentions. We clarify that we have not expressed any opinion regarding the other legal issues canvassed by Learned Counsel for the parties.

30. In the result, we order that the Appellants be released on BAIL on their executing a bond with two solvent sureties, each in a sum of `5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the following conditions:

a. The Appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts or the case so as to dissuade him to disclose such facts to the Court or to any other authority.

b. They shall remain present before the Court on the dates fixed for hearing of the case. If they want to remain absent, then they shall take prior permission of the court and in case of unavoidable circumstances for remaining absent, they shall immediately give intimation to the appropriate court and also to the Superintendent, CBI and request that they may be permitted to be present through the counsel.

c. They will not dispute their identity as the accused in the case.

d. They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder of the same, they shall swear to an affidavit. If they have already surrendered before the Ld. Special Judge, CBI, that fact should also be supported by an affidavit.

e. We reserve liberty to the CBI to make an appropriate application for modification/recalling the order passed by us, if for any reason, the Appellants violate any of the conditions imposed by this Court.

31. The appeals are disposed of accordingly.

Gurbaksh Singh Sibbia Versus The State of Punjab [ALL SC 1980 APRIL]

KEYWORDS:- anticipatory bail-

Apex court

AIR 1980 SC 1632 : (1980) 3 SCR 383 : (1980) 2 SCC 565 : (1980) CriLJ SC 1125

(SUPREME COURT OF INDIA)

Gurbaksh Singh Sibbia Appellant
Versus
The State of Punjab Respondent

AND

Sarbajit Singh and another Appellant
Versus
The State of Punjab Respondent

(Before : Y. V. Chandrachud, C.J.I., P. N. Bhagwati, N. L. Untwalia, R. S. Pathak And O. Chinnappa Reddy, JJ.)

Criminal Appeals Nos. 335 to 339, etc. of 1977 and 1, 15 to 17 etc. of 1978 and Spl. Leave Petn. (Criminal) Nos. 260, 272 to 274 etc. of 1978, Decided on : 09-04-1980.

Criminal Procedure Code, 1973—Section 438—Reason to believe—Meaning of—Mere fear is no belief—The grounds forming belief must be capable of examination by court.

Precedent—Anticipatory bail—Decisions dealing with the grant of post arrest bail, are not relevant.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Status of accused—Effect of—No presumption that poor shall flee from justice.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Special case—Necessity to make out—Accused has to make out a prima facie case but it cannot be asked to make out a special case.

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.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Considerations for—Discretion of Court—Exercise of—The considerations for grant of regular bail though cannot be read into the provision for anticipatory bail but High Court or Court of Session may impose conditions on such similar considerations.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Procedure—Notice to Public Prosecutor—Necessity of—Order granting bail without notice—Order must be re-examined after promptly issuing notice to Public Prosecutor.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Investigation—Likelihood of discovery of facts by accused—Grant of anticipatory bail does not affect investigation.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Considerations for—Likelihood of disappearance of accused—There is no presumption that accused will flee from justice—A person seeking anticipatory bail is entitled to bail on conditions to this effect.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Gravity of offence—Effect of refusal to grant bail in connection with economic offence—Refusal without looking into facts is not proper.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Nature of—Though power to grant anticipatory bail is extraordinary but it does not justify conclusion that it should be exercised in exceptional cases only.

Criminal Procedure Code, 1973—Sections 437 and 438—Anticipatory bail—Operation of order—Period of—Court may limit operation of order to a short period but normal rule is not to limit the operation of order.

Counsel for the Parties: [SEE BELOW]

Judgement

Chandrachud, C, J—These appeals by Special Leave involve a question of great public importance bearing, at once, on personal liberty and the investigational powers of the police. The society has a vital stake in both of these interests, though their relative importance at any given time depends upon the complexion and restraints of political conditions. Our task in these appeals is how best to balance these interests while determining the scope of S. 438 of the Cr. P. C., 1973 (Act No. 2 of 1974).

2. Section 438 provides for the issuance of direction for the grant of bail to a person who apprehends arrest. It reads thus:

“488. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Session makes a direction under sub sec. (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including.

(i) a condition that the persons shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-sec. (3) of S. 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-sec. (1).”

3. Criminal Appeal No. 335 of 1975 which is the first of the many appeals before us, arises out of a judgment dated Sept. 13, 1977 of a Full Bench of the High Court of Punjab and Haryana. [1] The appellant therein, Shri Gurbaksh Singh Sibbia, was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab. Grave allegations of political corruption were made against him and others whereupon, applications were filed in the High Court of Punjab were filed in the High Court of Punjab and Haryana under S.438, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges. Considering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated Sept. 13, 1977 dismissed them.

4. The Cr. P.C. 1898 did not contain any specific provision corresponding to the present S. 438. Under the old Code, there was a sharp difference of opinion amongst the various High Courts on the question as to whether courts had the inherent power to pass an order of bail in anticipation of arrest, the preponderance of view being that it did. not have such power. The need for extensive amendments to the Cr. P.C. was felt for a long time and various suggestions were made in different quarters in order to make the Code more effective and comprehensive. The Law Commission of India, in its 41st Report dated Sept. 24, 1969 pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant “anticipatory bail”.

It observed in para. 39.9 of its report (Vol. I):

“39.9. The suggestion for directing the release of a person on bail prior to his arrest (commonly known as “anticipatory bail”) was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

In order to settle the details of this suggestion, the following draft of a new section is placed for consideration:

“497A. (1) When any person has a reasonable apprehension that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail.

(2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under S. 204 (1), either issue summons or a bailable warrant as indicated in the direction of the Court under sub-sec. (1).

(3) If any person in respect of whom such a direction is made is arrested without warrant by an officer-in-charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail.”

We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself. Superior Courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused.”

5. The suggestion made by the Law Commission was, in principle, accepted by the Central Government which introduced cl. 447 in the Draft Bill of the Cr. P.C. 1970 with a view to conferring an express power on the High Court and the Court of Session to grant anticipatory bail. That Clause read thus:

“447. (1) When any person has reason to believe that he would be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

(2) If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-sec. (1)”

6. The Law Commission, in para. 31 of its 48th Report (1972). made the following comments on the aforesaid Clause.

“31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.

We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.

It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith.”

Clause 447 of the Draft Bill of 1970 was enacted with certain modifications and became S.438 of the Cr.P.C. 1973 which we have extracted at the outset of this judgment.

7. The facility which S. 438 affords is generally referred to as ‘anticipatory bail’ an expression which was used by the Law Commission in its 41st report. Neither the section nor its marginal note so describes it but, the expression ‘anticipatory bail’ is a convenient mode of conveying that it is possible to apply for bail in anticipation of arrest. Any order of bail can, of course, be effective only from the time of arrest because, to grant bail, as stated in Wharton’s Law Lexicon, is to ‘set at liberty a person arrested or imprisoned, on security being taken for his appearance’. Thus, bail is basically release from restraint, more particularly, release from the custody of the police. The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial. Personal recognisance, suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself at the trial of offence or offences of which he is charged and for which he was arrested. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of he police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is threrafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. S. 46 (1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest” shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action”. A direction under S. 438 is intended to confer conditional immunity from this ‘touch’ or confinement.

8. No one can accuse the police of possessing a healing tough nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, in so far as the ordinary rule of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism . The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in hand-cuffs, apparently on way to a court of justice. The foul deed is done when an adversary, is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible. It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.

9. Are we right in saying that the power conferred by S. 438 to grant anticipatory bail is “not limited to these contingencies”? In fact that is one of the main points of controversy between the parties. Whereas it is argued by Shri M. C. Bhandare. Shri. O. P. Sharma and the other learned counsel who appear for the appellants that the power to grant anticipatory bail ought to be left to the discretion of the court concerned, depending on the facts and circumstances of each particular case, it is argued by the learned Additional Solicitor General on behalf of the State Government that the grant of anticipatory bail should at least be conditional upon the applicant showing that he is likely to be arrested for an ulterior motive, that is to say, that the proposed charge or charges are evidently baseless and are actuated by mala fides. It is argued that anticipatory bail is an extraordinary remedy and therefore. Whenever it appears that the proposed accusations are prima facie plausible, the applicant should be left to the ordinary remedy of applying for bail under S. 437 or S. 439, Criminal Procedure Code, after he is arrested.

10. Shri V. M. Tarkunde, appearing on behalf of some of the appellants, while supporting the contentions of the other appellants, said that since the denial of bail amounts to deprivation of personal liberty, courts should lean against the imposition of unnecessary restrictions on the scope of S. 438, when no such restrictions are imposed by the legislature in the terms of that Section. The learned counsel added a new dimension to the argument by invoking Art. 21 of the Constitution. He urged that S. 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must therefore be presumed to be innocent. The validity of that section must accordingly be examined by the test of fairness and reasonableness which is implicit in Art. 21. If the legislature itself were to impose an unreasonable restriction on the grant of anticipatory bail, such a restriction could have been struck down as being violating of Art. 21. Therefore, while determining the scope of S. 438, the Court should not impose any unfair or unreasonable limitation on the individual’s right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned counsel, would be violative of Art. 21. irrespective of whether it is imposed by legislation or by judicial decision.

11. The Full Bench of the Punjab and Haryana High Court rejected the appellant’s application for bail after summarising, what according to it is the true legal position, thus:

(1) The power under S. 438, Cr. P. C. is of an extraordinary character and must be exercised sparingly in exceptional cases only.

(2) Neither S. 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offence not yet committed or with regard to accusations not so far levelled:

(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding S. 437, are implicit therein and must be read into S. 438.

(4) In addition to the limitations mentioned in S. 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail. (5) Where a legitimate case for the remand of the offender to the police custody under S. 167 (2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under S. 438 should not be exercised.

(6) The discretion under S. 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless.

(7) The larger interest of the public ad State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under S. 438 of the Code should not be exercised; and

(8) Mere general allegations of mala fides in the petition are inadequate. The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless.

It was urged before the Full Bench that the appellants were men of substance and position who were hardly likely to abscond and would be prepared willingly to face trial. This argument was rejected with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the concept of equality before the law and that it could hardly be contended that every man of status, who was intended to be charged with serious crimes, including the one under S. 409 which was punishable with life imprisonment, “was entitled to knock at the door of the court for anticipatory bail”. The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail but is, if anything, an aggravating circumstance.

12. We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the Full Bench of the High Court has engrafted on the power conferred by S. 438. Cl. (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence. Though the right to apply for anticipatory bail was conferred for the first time by S.438, while enacting that provision the legislature was not writing on a clean slate in the sense of taking an unprecedented step, in so far saw the right to apply for bail is concerned. It had before it two cognate provisions of the Code:S. 437 which deals with the power of courts other than the Court of Session and the High Court of grant bail in non-bailable cases and S. 439 which deals with the “special powers” of the High Court and the Court and the Court of Session regarding bail. The whole of Session regarding bail. The whole of Section 437 is riddled and hedged in by restrictions on the power of certain courts to grant bail. That section reads thus:

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 appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of a offence punishable with death or imprisonment for life.

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:

Provided further 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, pending such inquiry be released on bail. or, at the discretion of such officer or Court, on the execution by him or 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 Chap. VI, Chap. XVI or Chap. XVII of the I.P.C. 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-sec. (1) or sub-section (2), shall record in writing his or its reasons for so doing.

(5) Any Court which has released a person on bail under sub-section (1) or sub-sec. (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.” Section 439 (1) (a) incorporates the conditions mentioned in S. 437 (3) if the offence in respect of which the bail is sought is of the nature specified in that sub-section. Section 439 reads thus:

439. “Special powers of High Court or Court of Session regarding bail – (1) A High Court or Court of Session may direct –

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-sec. (3) of S. 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”

The provisions of Ss. 437 and 439 furnished a convenient model for the legislature to copy while enaction S. 438. If it has not done so and has departed from a pattern which could easily be adopted with the necessary modifications, it would be wrong to refuse to give to the departure its full effect by assuming that it was not intended to serve any particular or specific purpose. The departure, in our opinion, was made advisedly and purposefully:Advisedly, at least in part, because of the 41st Report of the Law Commission which, while pointing out the necessity of introducing a provision in the Code enabling the High Court and the Court of Session to grant anticipatory bail, said in Para. 39.9 that it had “considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted but had come to the conclusion that the question of granting such bail should be left “to the discretion of the court” and ought not to be fettered by the statutory provision itself, since the discretion was being conferred upon superior courts which were expected to exercise it judicially. The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly, because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail. That is why, departing from the terms of Ss.437 and 439, S. 438 (1) uses the language that the High Court or the Court of Session “may, if it thinks fit” direct that the applicant be released on bail. Sub-section (2) of S. 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail. It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, “may include such conditions in such directions in the light of the facts of the particular case, as it may think fit”, including the conditions which are set out in Cls. (i) to (iv) of sub-sec. (2). The proof of legislative intent can best be found in the language which the legislature uses. Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence. It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non-bailable offence. A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non-bailable offence asks for bail. In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposing of all or any of the conditions mentioned in S. 437.

13. This is not to say that anticipatory bail, if granted, must be granted, must be granted without the imposition of any conditions. That will be plainly contrary to the very terms of S. 438. Though sub-sec. (1) of that section says that the Court “may, if it thinks fit” issue the necessary direction for bail, sub-sec. (2) confers on the Court the power to include such conditions in he direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in Cls. (i) to (iv) of that sub-section. The controversy therefore is not whether the Court has the power to impose conditions while granting anticipatory bail. It clearly and expressly has that power. The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in S. 437 or which are generally considered to be relevant under S. 439 of the Code.

14. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly, these are higher courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be excised by courts judicially and not according to whim, caprice or fancy. On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges. While dealing with the necessity for preserving judicial discretion unhampered by rules of general application, Earl Loreburn L.C. said in Hyman v. Rose, 1912 AC 623.

“I desire in the first instance to point out that the discretion given by the section is very wide …….. Now it seems to me that when the Act is so express to provide a wide discretion ……… it is not advisable to lay down any rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard an application for relief. But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded. If it were otherwise, the free discretion given by the statute would be fettered by limitations which have nowhere been enacted. It is one thing to decide what is the true meaning of the language contained in an Act of Parliament. It is quite a different thing to place conditions upon a free discretion entrusted by statute to the Court where the conditions are not based upon statutory enactment at all. It is not safe, I think, to say that the Court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the Court wish it had kept a free hand.”

15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore. even if we were to frame a ‘code for the grant of anticipatory bail’. which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail “if it thinks fit”. The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law.

16. A close look at some of the rules in the eight-point code formulated by the High Court will show how difficult it is to apply them in practice. The seventh proposition says:

“The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under S. 438 of the Code should not be exercised.”

17. How can the Court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the accusation will suffice for rejecting bail, even if the applicant’s conduct is painted in colours too lurid to be true? The eighth proposition framed by the High Court says:

Mere general allegations of mala fides in the petition are inadequate. The Court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless.”

Does this rule mean, and that is the argument of the learned Additional Solicitor General, that anticipatory bail cannot be granted unless it is alleged (and naturally, also shown, because mere allegation is never enough) that the proposed accusations are mala fide? It is understandable that if mala fides are shown, anticipatory bail should be granted in the generality of cases. But it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be mala fide. This, truly, is the risk involved in framing rules by judicial construction. Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.

18. According to the sixth proposition framed by the High Court, the discretion under S. 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now. S. 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed “a non-bailable offence”. We see no warrant for reading into this provision the conditions subject to which bail can be granted under S. 437 (1) of the Code. That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence “shall not be so released” if there appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in S. 437 91) should govern the grant of relief S. 438 (1), nothing would have been easier for the legislature than to introduce into the latter section a similar provision. We have already pointer out the basic distinction between these two sections. S. 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and, in fact, one of the pre-conditions of its application is that the person, who applies for relief under it. must be able to show that he has reason to believe that “he may be arrested”, which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under S. 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under S. 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in S. 437 (1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report. In the majority of cases falling under S. 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in S. 437 are to be read into the provisions of S. 438, the transplantation shall have to be done without amputation.That is to say, on the reasoning of the High Court, S. 438 (1) shall have to read as containing the clause that the applicant “shall not” be released on bail “if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.” In this process one shall have overlooked that whereas, the poser under S. 438 (1) can be exercised if the High Court or the Court of Session “thinks fit to do so, S. 437 (1) does not confer the power to grant bail in the same wide terms. The expression “if it thinks fit” which occurs in S. 438 (1) in relation to the power of the High Court or the Court of Session is conspicuously absent in Section 437(1). We see no valid reason for re-writing S. 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.

19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under S. 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under S. 27 of the Evidence Act. According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith. It is true that the functions of the Judiciary and the police are in a sense complementary and not overlapping. And, as observed by the Privy Council in King Emperor v. Khwaja Nazir Ahmed, 71 Ind App 203:

“Just as it is essential that every one accuse of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry ….. The functions of the judiciary and the police are complementary, not overlapping, and the combination of the individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function….”.

But, these remarks, may it be remembered, were made by the Privy Council while rejecting the view of the Lahore High Court that it had inherent jurisdiction under the old S. 561-A, Cr. P.C. to quash all proceedings taken by the police in pursuance of two F.I.Rs. made to them. An order quashing such proceedings puts an end to the proceedings with the inevitable result that all investigation into the accusation comes to a halt. Therefore, it was held that the Court cannot, in the exercise of its inherent powers, virtually direct that the police shall not investigate into the charges contained in the F.I.R. We are concerned here with a situation of an altogether different kind. An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the e usual conditions incorporated in a direction issued under S. 438 (1) are those recommended in sub-sec. (2) (i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witness during and after the investigation. While granting relief under S. 438 (1), appropriate conditions can be imposed under S. 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under S. 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of S. 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U. P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at page No. 26 to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that S. 46 of the Cr. P. C. does not contemplate any formality before a person can be said to be taken in custody sub-mission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under S. 167 (2) of the Code is made out by the investigating agency.

20. It is unnecessary to consider the third proposition of the High Court in any great details because we have already indicated that there is no justification for reading into S. 438 the limitations mentioned in S. 437. The High Court says that such limitations are implicit in S. 438 but, with respect, no such implications arise or can be read into that section. The plenitude of the section must be given its full play.

21. The High Court says in its fourth proposition that in addition to the limitations mentioned in S. 437, the petitioner must make out a “special case” for the exercise of the power to grant anticipatory bail. This, virtually, reduced the salutary power conferred by S. 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by S. 438 is not “unguided or uncanalised”, the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a “special case” for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a “special case.” We do not see why the provisions of S. 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution imaginable. A wise exercise of judicial power inevitable takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonable foreseeable consequences of its use, is the hall-mark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.

22. By proposition No. 1 the High Court says that the power conferred by Section 438 is “of an extraordinary character and must be exercised sparingly in exceptional cases only”. It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under S. 437 or Section 439. These Sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection. depending on circumstances justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to a rigorous code of self-imposed limitations.

23. It remains only to consider the second proposition formulated by the High Court, which is the only one with which we are disposed to agree but we will say more about it a little later.

24. It will be appropriate at this stage to refer to a decision of this Court in Balchand Jain v. State of Madhya Pradesh (1977) 2 SCR 562 on which the High Court has leaned heavenly in formulating its propositions. One of us, Bhagwati J. who spoke for himself and A. C. Gupta, J. observed in that case that:

“the power of granting ‘anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated, or a frivolous case might be launched against him, or “there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail” that such power is to be exercised.”

Fazal Ali, J. who delivered a separate judgment of concurrence also observed that:

“an order for anticipatory bail is an extraordinary remedy available in special cases.”

and proceeded to say:

“As S. 438 immediately follows S. 437 which is the main provision for bail in respect of non-bailable offences, it is manifest that the conditions imposed by S. 437 (1) are implicity contained in Section 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under S. 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of S. 437 nugatory and will give a free license to the accused persons charged with non-bailable offences to get easy bail by approaching the Court under S. 438 and by-passing S. 437 of the Code. This, we feel, could never have been the intention of the Legislature. Section 438 does not contain unguided or uncanalised powers to pass an order for anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from the conditions mentioned in S. 437, there is a special case made out for passing, the order. The words “for a direction under this section” and “Court may, if it thinks fit, direct” clearly slow that the Court has to be guided by a large number of considerations including those mentioned in S. 437 of the Code.”

While stating his conclusion Fazal Ali, J. reiterated in conclusion No. 3 that “S. 438 of the Code is an extraordinary remedy and should be restorted to only in special cases.”

25. We hold the decision in Balchand Jain (supra) in great respect but it is necessary to remember that the question as regards the interpretation of Section 438 did not at all arise in that case. Fazal Ali, J. has stated in Para 3 of his judgment that “the only point” which arose for consideration before the Court was whether the provisions of Section 438 relating to anticipatory bail stand overruled and repealed by virtue of R. 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can. By the rule of harmonious interpretation, exist side by side. Bhagwati, J. has also stated in his judgment, after adverting to S. 438 that Rule 184 is what the Court was concerned with in the appeal. The observations made in Balchand Jain regarding the nature of the power conferred by S. 438 and regarding the question whether the conditions mentioned in S. 437 should be read into S. 438 cannot therefore be treated as conclusion the points which arise directly for our consideration. We agree, with respect, that the power conferred by S. 438 is of an extraordinary character in the sense indicated above, namely that it is not ordinarily resorted to like the power conferred by Ss. 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain in an altogether different context on an altogether different point.

26. We find a great deal of substance in Mr. Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of S. 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. S. 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in S. 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in S. 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, (1978) 1 SCC 248 that in order to meet the challenge of Art. 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. S. 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust of unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.

27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King Emperor, AIR 1924 Cal 476. (479, 480) that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the ‘Meerut Conspiracy cases observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor AIR 1931 All 504 (SB) it was observed, while dealing with S. 498 which corresponds to the present S. 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding S. 497 which corresponds to the present S. 437. It was observed by the Court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by S. 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H. L. Hutchinson AIR 1931 All 356 at page No. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which bind the High Court, having regard to the fact that the legistature itself left the discretion of the Court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the privciple to be deduced from the various sections in the Cr. P.C. was that grant of bail is the rule and refusal is the exception. 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. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

28. Coming nearer home, it was observed by Krishna Iyer. J., in Gudikanti Narasimhulu v. Public Prosecutor. High Court of Andhra Pradesh (1978) 1 SCC 240 that “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 sensitized judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Art. 21 are the life of that human right.”

29. In Gurcharan Sing v. State (Delhi Admn.) (1978) 1 SCC 118 it was observed by Goswami, J., who spoke for the Court, that “there cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail”.

30. In American Jurisprudence (2d, Vol. 8, page 806, para 39) it is stated:

“Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circimstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.”

It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail

31. In regard to anticipatory bail if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “the larger interests of the public or the State” are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh. (1962) 3 SCR 622 which, though, was a case under the old S. 498 which corresponds to the present S. 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

32. A word of caution may perhaps be necessary in the evaluation of the consideration whether the applicant is likely to abscond. There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it. In his charge to the grand jury at Salisbury Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti (supra)), Lord Russell of Killowen said:

“…………… it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice.”

This, incidentally, will serve to show how no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise. No such rules can be laid down for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may have no more than ordinary signification in another case.

33. We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under S. 438 by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting, them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all. “the legislature in its wisdom” has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to excercise their discretionary powers in their wisdom, especially when the discretion is entrusted in their care by the legislature in its wisdom. if they err, they are liable to be corrected.

34. This should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings.

35. Section 438 (1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has “reason to believe’ that he may be arrested for a non-bailable offence. The use of the expression “reason to believe” shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere ‘fear’ is not ‘belief’, for which reason it is not enough for the applicant to show that he has somesort of a vague apprehension that ‘some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested S. 438 (1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual’s liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.

Secondly, if an application for anticipatory bail is made to the High Court or the Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for grant-in such relief. It cannot leave the question for the decision of the Magistrate concerned under S. 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.

Thirdly, the filing of a First Information Report is not a condition precedent to the excercise of the power under S. 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F. I. R. is not yet filed.

Fourthly, anticipatory bail can be granted even after in F. I. R. is filed, so long as the applicant has not been arrested.

Fifthly, the provisions of S. 438 cannot be invoked after the arrest of the accused. The grant of “anticipatory bail” to an accused who is under arrest involves a contradiction in terms, in so far as the offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under S. 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

36. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition No. (2). We agree that a ‘blanket order’ of anticipatory bail should not generally be passed. this flows from the very language of the section which, as discussed above, requires the applicant to show that he has “reason to believe” that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant’s apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under S. 438 (1) to the effect that the applicant shall be released on bail “whenever arrested for whichever offence whatsoever”. That is what is meant by a ‘blanket order’ of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which. no concrete information can possible be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.

37. Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under S. 438 (1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided.

A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vacuum.

38. There was some discussion before us on certain minor modalities regarding the passing of bail orders under S. 438 (1). Can an order of bail be passed under that section without notice to the public prosecutor ? It can be. But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re-examined in the light of the respective contentions of the parties. The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. Should the operation of an order passed under Section 438 (1) be limited in point of time? Not necessarily. The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under S. 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.

39. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in S. 438 (2) (i),(ii) and (iii). The Court has, in addition, directed in most of those cases that (a) the applicant should surrender himself to the police for a brief period if a discovery is to be made under S.27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the F.I.R. in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through those orders to strike a balance between the individual’s right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438 (1) of the Code.

40. The various Appeals and Special Leave Petitions before us will stand disposed of in terms of this judgment. The judgment of the Full Bench of the Punjab and Haryana High Court, which was treated as the main case under appeal, is substantially set aside as indicated during the course of this judgment.


[1]. Reported in AIR 1978 Punj and Har 1 (FB)


Mr. M. C. Bhandare, Sr. Advocate (335, 430, 431, 438);

Mr. Gobind Das, Sr. Advocate (153), Mr. K. S. Thapar, Advocate (506 and 154/78), Mr. Dilip Singh, Advocate (506 and 154/78)

Mrs. Sunanda Bhandare, Advocate, M/s. A. N. Karkhanis, Deepak Thaper, Advocates (in 335, 430, 431, 506/77 and 154/78) and Miss Malini, Advocate for Appellants in Crl. A. Nos. 335, 365, 430, 431, 506, 508, 499/77, 130, 141, 142, 153, 154 and Petitioners in SLPs. 272-274/78

Mr. Frank Anthony, Sr. Advocate (350), Mr. V. C. Mahajan, Sr. Advocate (338), Mr. O. P. Sharma, Advocate MR. R. C. Bhatia, Advocate for Appellants in Crl A. Nos. 336 to 338, 350, 396, 397-399, 473, 474/77 and 1, 15 to 17, 69, 70, 81,82, 98 and 149 and 109/78

Mr. Harjinder Singh, Advocate for Appellant in Crl. A. No. 339/77

Mr. B. S. Bindra, Sr. Advocate Mr. S. M. Ashri, Advocate Mrs. Lakshmi Arvind, Advocate for Appellants in Crl. As. Nos. 347, 366, 415-420, 477, 511, 512, 469/77 and 145/78

Mr. P.R. Mridul, Sr. Advocate (M/s. H. K. Puri, Aruneshwar Prasad and Vivek Seth, Advocate for Appellant in Crl. A. No. 346/77)

Mr. L. N. Sinha, Sr. Advocate (406 and 352), M/s. R. P. Singh, L. R. Singh, Suman Kapoor and Sukumar Sahu (406 and 352), Mr. M. C. Bhandare, Sr. Advocate (436), M/s. P. P. Singh, Advocate (435) and Mr. R. K. Jain, Advocate for Appellants in Crl. A. Nos. 351, 352, 406, 438-40, 463/77

Mr. S. K. Jain, Advocate for Appellant in Crl. A. No. 53/78

Mr. V. M. Tarkunde, Sr. Advocate (367), M/s. M. M. L. Srivastava R. Satish and E. C. Agrawala, Advocate for Appellant in Crl. A Nos. 367/77 and SLP 383/78

Mr. V. C. Mahajan, Sr. Advocate Mr. Harbhagwan Singh, Sr. Advocate M/s. S. K. Mehta, K. R. Nagaraja and P. N. Puri, Advocates for Appellant in Crl. A. Nos. 383/78 and 498/77

Mr. K. K. Mohan, Advocate for Appellant in SLP 260/78

Mr. A. K. Sen, Sr. Advocate Mr. Rathin Dass, Advocate for Appellant in Crl. A. Nos. 40, 41/78

Mr. M. M. L. Srivastava, Advocate for Appellant in SLP 388/78

Mr. L. M. Singhvi, Sr. Advocate Mr. N. S. Dass Behl, Advocate for Appellants in Crl. A. Nos. 38/78 and SLP 479/78

Mr. Soli J Sorabjee, Addl. Sol. Genl. (335), M/s. Bishamber Lal Khanna (355), Hardev Singh, R. S. Sodhi, and B. B. Singh, Advocates for Appellants in Cr. As. Nos. 447-449/77 and Respondents in Crl. A. Nos. 335-339, 347, 350-52 366, 367, 388, 396-398, 406, 415-420, 438-440, 463, 473, 474, 477, 498, 511/77, 1, 15-17/78, 469, 510/77, 109/78 and SLP Nos. 388/78, Crl. A. No. 98/78 and SLP No. 260/78

Mr. Soli J. Sorabjee, Addl. Sol Genl. (430), Mr. Thakur Naubat Singh, Dy. Adv. Genl. Haryana, (M/s. S. N. Anand, Advocate (431 and 499), Mr. R. N. Sachthey, Advocate for Respondents in Crl. A. Nos. 365, 430 and 431/77, 508, 499/77 and 38, 141 and 142/78

Mr. M. M. Kshatriya and G. S. Chatterjee, Advocates for Respondents in Crl. A. Nos. 40 and 41/78

Mr. M. M. Punchi and P. C. Bhartari, Advocates for Appellant in Crl. A. No. 346/77

M/s. J. K. Gupta, B. R. Agarwala, Janendra Lal, Advocates for Vice-Chancellor, Punjab University in Crl. A. No. 346/77.

An order for release on bail under proviso (a) to Section 167(2) may appropriately be termed as an order-on-default.

Cr.P.C. S.167(2) Proper Order:  Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is absolute. It is a legislative command and not court’s discretion. If the investigating agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be the accused in custody should be released on bail. But at that stage, merits of the case are not to be examined. Not at all. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.”-Rajnikant Jivanlal v. Intelligence Officer, Narcotic Control Bureau, (1989) 3 SCC 532

Sidhartha Vashisht alias Manu Sharma Versus State (NCT of Delhi)[ALL SC 2008 MAY]

KEYWORDS:-MURDER- CONVICTION-suspension of sentence pending appeal-BAIL

c

DATE:-  12-05-2008.

  • Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.
  • The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.
  • Hence, within ‘measurable distance of time’ the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant-appellant for suspension of sentence and grant of bail.

ACTS:- Section 302, IPC AND Section 389 of the Code of Criminal Procedure

AIR 2008 SC 2889 : (2008) 8 SCR 220 : (2008) 5 SCC 230 : (2008) 7 SCALE 321 : (2008) CriLJ SC 3524 : JT 2008 (6) SC 476

(SUPREME COURT OF INDIA)

Sidhartha Vashisht alias Manu Sharma Appellant
Versus
State (NCT of Delhi) Respondent

(Before : C. K. Thakker And D. K. Jain, JJ.)

Criminal Misc. Petn. No. 1775 of 2007 in Cri. Appeal No. 179 of 2007, Decided on : 12-05-2008.

Criminal Procedure Code, 1973—Sections 389 and 379—Suspension of sentence and grant of bail—Pendency of appeal before Supreme Court—jessica Lal murder case—Applicant-appellant found acquitted by trial Court, but convicted and sentenced to life imprisonment under Section 302, IPC by High Court in appeal—Appeal by applicant-appellant likely to be heard by Supreme Court within ‘measurable distance of time’—In view of gravity of offence and manner in which it was committed, application not allowed.

Criminal Procedure Code, 1973—Section 389—Suspension of sentence and grant of bail—Grant of bail during period of trial and absence of misuse of liberty—Cannot per se warrant suspension of sentence and grant of bail.

Counsel for the Parties:

Ram Jethmalani, Sr. Advocate, P.H. Parekh, Ms. Lata Krishnamurthy, E.R. Kumar, Lalit Chauhan, Ajay Jha, Ms.Saurabh Ajay Gupta, Ms. Mary Mizty, Ms. Rajdeep Banerjee, Ms. Joyeeta Banerjee, Ms. Bansuri Swaraj, Ms. Rukhmini Bobde, Somandri Goud (for M/s. P. H. Parekh and Co.) with him for the Appellant

Gopal Subramanium ASG, Ms.Mukta Gupta, Nikhil Nayyar, Ankit Singhal, T.V.S. Raghavendra and Vibha Garg, with him for the Respondent; Ms. Mamta Kalra, In person for Intervening Party.

Judgment

C. K. Thakker, J—The present application is filed by the appellant-accused under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for suspension of sentence pending appeal in this Court and to release him on bail.

2. Since an appeal against an order of conviction and sentence recorded by the High Court of Delhi is admitted by this Court and awaits final hearing, we will not enter into larger questions and deal with the present application for suspension of sentence and bail.

3. Shortly stated, the case of the prosecution was that on April 29-30, 1999, a party was organized at Tamarind Cafe’ inside Qutub Colonnade. It was a private party where certain persons were invited and liquor was served. jessica Lal (since deceased) and one Shyan Munshi were in charge of the bar. It was the allegation of the prosecution that appellant Sidhartha Vashisht alias Manu Sharma along with his friends came there and asked for liquor. jessica Lal and Shyan Munshi did not oblige him by providing liquor since the bar was closed. According to the prosecution, the appellant got enraged on refusal to serve liquor, took out his 22 pistol and fired two rounds, first into the ceiling and the second at jessica Lal. jessica Lal fell down as a result of the shot which proved fatal and she died. According to the assertion of the prosecution, several persons witnessed the incident. Beena Ramani who was present, stopped the appellant and questioned him as to why he had shot jessica Lal. She also demanded weapon from the accused but the accused did not handover pistol and fled away.

4. FIR was lodged, a case was registered and investigation was carried out. At the trial, more than 100 witnesses had been examined. The trial Court acquitted the accused holding that it was not proved by the prosecution that the accused had committed the offence with which he, along with other accused, was charged.

5. The State preferred an appeal against an order of acquittal recorded by the trial Court. The High Court of Delhi held that the trial Court was wrong in acquitting the accused and the prosecution was successful in proving the guilt against the appellant (as well as two other accused) and accordingly recorded conviction inter alia for an offence punishable under Section 302, Indian Penal Code (IPC) and imposed sentence of imprisonment for life.

6. The High Court observed that it has “no hesitation in holding” that the appellant was guilty of an offence punishable under Section 302 read with Sections 201 and 120B, IPC and also under Section 27 of the Arms Act, 1959 for having committed murder of jessica Lal on April 29-30, 1999 at ‘Tamarind Cafe’ and ordered him to undergo rigorous imprisonment for life and also imposed sentence for other offences.

7. With regard to the other two accused, however, the Court held that they were guilty for committing an offence punishable under Sections 201 and 120B, IPC.

8. The appellant-applicant approached this Court by instituting an appeal under Section 2 (a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 as also under Section 379 of the Code. The appeal was placed for admission. On March 7, 2007, the appeal was admitted and notice was issued on application for bail. Counsel appeared on behalf of the respondent and accepted the notice. It was ordered to be listed in the first week of April, 2007, meanwhile, counter affidavit, if any, was to be filed.

9. On April 2, 2007 when the matter appeared on Board, the Court passed orders of bail in respect of other accused, but in the instant case (Crl. M.P. No. 1775 of 2007), the Court fixed final hearing of the matter. It, however, appears that the appeal could not be heard. On January 24, 2008, the Court ordered listing of appeals along with bail applications “before any other appropriate Bench” on 12th February, 2008. The matter was thus placed before this Bench.

10. In view of several other matters, however, the appeal could not be taken up for hearing. Mr. Ram Jethmalani, learned senior advocate, appearing for the appellant-accused, no doubt, requested the Court to take up the matter out of turn. He alternatively tively submitted that if the appeal is not heard, the application for bail may be heard as according to him, he did not press for bail earlier when the appeal was placed for, admission hearing and was admitted since the Court had fixed final hearing of main matter. According to him, the appellant was in jail and if the appeal will not be heard for a considerable long time, serious prejudice will be caused to the accused. On the facts and in the circumstances, therefore, we directed the Registry to place the application for suspension of sentence and grant of bail on Board so that an appropriate order may be passed on the, prayer of the applicant-appellant-accused.

11. We have heard learned counsel for the parties.

12. The learned counsel for the applicant submitted that no case has been made out by the prosecution against the appellant-accused. The trial Court, after considering the evidence of the prosecution witnesses in its entirety, recorded an order of acquittal in favour of the accused. He submitted that the trial Court held that P.W. 1 Deepak Bhojwani and P.W. 30 Shravan Kumar had been ‘planted’ by the prosecution. P.W. 2 Shyan Munshi had expressly stated that shots were fired by two persons and appellant-accused was not one of them. Neither P.W. 1 Deepak Bhojwani nor P.W. 2 Shyan Munshi, nor P.W. 3 Shiv Dass Yadav, nor P.W. 4 Karan Rajput were eye-witnesses. For rejecting ocular evidence of P.W. 6 Malini Ramani and P.W. 20 Beena Ramani, cogent and convincing reasons have been recorded by the trial Court. It was not proved that Tata Safari was in possession of the appellant-accused, nor was there anything to show that he used the said vehicle on 29th April, 1999. Report of ballistic expert does not support prosecution and on that ground also, the trial Court was right in passing the order of acquittal.

13. According to the learned counsel, Beena Ramani P.W. 20, was not an eye-witness. A statement to that effect was made by the Public Prosecutor at the trial in the Sessions Court. It was also clear that a false excise case had been registered against the said witness and she was pressurised to depose in favour of prosecution and as soon as her evidence was over, she was obliged by compounding the offence on imposing fine which went to show that it was the systematic effort of the prosecution to involve the appellant-accused who was totally innocent. The counsel also submitted that photograph of the accused was collected by the Police during investigation and was shown to the prosecution witnesses and identification of the accused was meaningless. Media had played active role and even before the conclusion of the trial, they had virtually described the applicant not as an ‘accused’ but as a ‘convict’ or an ‘offender.’ According to the learned counsel, the trial Court dispassionately and objectively considered the evidence in its proper perspective without being influenced by extraneous factors and granted benefit of doubt to the accused. The High Court was ‘wholly’ wrong in reversing the finding of the trial Court and in convicting the applicant and in imposing sentence of imprisonment for life. The order passed by the High Court, submitted the counsel, is not in consonance with law and the applicant has fair and good chance of his appeal being allowed. He is in jail since long and as the appeal is likely to take time, a reasonable prayer for suspension of sentence and grant of bail deserves to be accepted by enlarging the applicant-accused on bail on such terms and conditions as this Court deems fit.

14. Mr. Gopal Subramanyam, learned Addl. Solicitor General, on the other hand, strongly opposed the prayer made by the applicant of suspension of sentence and grant of bail. He submitted that the order of acquittal recorded by the trial Court was clearly wrong and against the evidence on record. The High Court, as a Court of ‘first appeal,’ considered the evidence and held that the trial Court was ‘wholly’ wrong in not believing the prosecution witnesses. The High Court also observed that the grounds which weighed with the trial Court for not believing prosecution witnesses, could not be said to be legal, proper or based on evidence on record. The counsel submitted that there was no reason for the trial Court not to believe evidence of P.W. 1 Deepak Bhojwani, P.W. 30 Shravan Kumar, P.W. 20 Beena Ramani, P.W. 6 Malini Ramani and other witnesses. The counsel submitted that the High Court considered in detail, the reasons recorded by the trial Court and rightly observed that to describe a particular witness as ‘planted’ by the prosecution is a serious matter and normally no Court of law would proceed on that basis. Mr. Subramanyam also submitted that from the prosecution evidence, it is clear that the applicant along with other accused came to Tamarind Cafe on 29th April, 1999, asked for liquor and when he was refused liquor on the ground that the bar was closed, he became very angry, took out his 22 pistol and fired two rounds; one towards ceiling and the other towards jessica Lal due to which she died. This was witnessed by several persons who were present at that time. Some of them, however, did not support the prosecution. The learned Addl. Solicitor General submitted that the terror of the accused was clear from the fact that about two dozen witnesses had been turned hostile. The trial Court ought to have considered this aspect. But even otherwise, in view of the above situation, the witnesses who were examined and supported the prosecution ought to have been believed by the trial Court. It, however, failed to do so. The High Court was, therefore, ‘fully’ justified in believing the evidence of those witnesses and in recording the order of conviction.

15. It was also stated that according to the High Court, after the commission of offence, the accused absconded. His farm house was raided by the police authorities during the course of investigation. He was neither found there nor did he surrender immediately. The High Court also recorded a finding that Tata Safari, used by the accused at the time he visited Qutub Colonnade was recovered from NOIDA which was removed from the place of offence. According to the High Court, the evidence on record showed that Tata Safari was parked at Qutub Colonnade in the night of April 29-30, 1999. The vehicle belonged to Piccadilly Agro Industries Limited of which the accused was admittedly a Director. The vehicle was surreptitiously removed from the scene of occurrence. The High Court noted that it was admitted by the accused that he was having licensed pistol of .22 bore. The High Court was also aware that several witnesses turned hostile and did not support the prosecution but from the available material, it was proved beyond reasonable doubt that it was the applicant who had visited Qutub Colonnade on the night of 29th/30th April, 1999 and demanded liquor and on refusal by jessica Lal and Shyan Munshi, he became angry and fired two shots one of which hit jessica Lal and proved fatal. It was, therefore, submitted by the learned Addl. Solicitor General that the order passed by the High Court is legal, valid and in consonance with law and no error has been committed by the High Court in setting aside the order of acquittal recorded by the trial Court.

16. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent Criminal Court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

17. In para 56, the High Court observed as under :

“56. In the totality of circumstances adduced from material on record, the judgment under challenge appears to us to be an immature assessment of material on record which is self-contradictory, based on misreading of material and unsustainable. We find that Beena Ramani has identified Sidhartha Vashisht alias Manu Sharma, Amardeep Singh Gil, Alok Khanna and Vikas Yadav to be the persons present at the Tamarind Cafe at the time of the incidence. She also saw Manu Sharma firing the fatal shot which hit jessica Lal. Her testimony finds corroboration from the testimony of Malini Ramani and Geroge Mailhot. There is evidence on record to show that Manu Sharma had a licensed pistol of .22 bore which he has not produced to establish his innocence and on the contrary has taken false plea that the pistol, its ammunition and licence had been removed by the Police on 30-4-1999. We also find from the material on record that Manu Sharma abandoned his vehicle while making good his escape. We also find that the ammunition used in the causing of the firearm injury to jessica Lal was of .22 bore which Manu Sharma admittedly possessed and a similar live cartridge was recovered from the abandoned Tata Safari. From this, we have no hesitation in holding that Manu Sharma is guilty of an offence under S. 302. I.P.C. for having committed the murder of jessica Lal on 29/30-4-1999 at the Tamarind Cafe as also under S. 27. Arms Act.”

(Emphasis supplied)

18. The High Court has also given cogent reasons for not accepting the view of the trial Court and grounds recorded for not believing prosecution witnesses.

19. Mr. Ram Jethmalani, learned senior advocate no doubt submitted that the trial Court was right in not relying upon the prosecution witnesses, but Mr. Gopal Subramanyam submitted that the approach of the trial Court was incorrect and improper. According to the High Court it was on the verge of ‘perversity.’

20. It is premature to express any opinion, one way or the other at this stage but the fact remains that the order of acquittal recorded by the trial Court has been set aside and the applicant-accused has been convicted for an offence punishable under S. 302, I.P.C. and ordered to undergo imprisonment for life.

21. Mr. Ram Jethmalani, learned senior advocate, invited our attention to several decisions of this Court. Some of them relate to grant of bail at the pre-trial stage. The Courts in such cases have considered several factors, such as, there is a presumption of innocence in favour of an accused till it is established that he is guilty; he has to make preparation for his defence and he must have every opportunity to look after his case; it will be very difficult for an accused to make such preparation if he is in jail than he is out of jail. One of the considerations which a Court of law would keep in mind at that stage is to secure the attendance of the accused. Hence, on security being furnished, he is released on bail if the Court is satisfied that the case on hand was fit one to grant such concession in favour of the accused.

22. Before about eight decades, in the leading case of Emperor v. Hutchinson, AIR 1931 All 356 : 32 Cri LJ 1271 : 33 IC 842 (the Meerut Conspiracy case), Boys, J. observed :

“As to the object of keeping an accused person in detention during the trial, it has been stated that the object is not punishment, that to keep an accused person under arrest with the object of punishing him on the assumption that he is guilty even if eventually he is acquitted is improper. This is most manifest. The only legitimate purposes to be served by keeping person under trial in detention are to prevent repetition of the offence with which he is charged where there is apparently danger of such repetition and to secure his attendance at the trial. The first of those purposes clearly to some extent involves an assumption of the accused’s guilt but the very trial itself is based on a prima facie assumption of the accused’s guilt and it is impossible to hold that in some circumstances it is not a proper ground to be considered. The main purpose however is manifestly to secure the attendance of the accused.”                                                (Emphasis supplied)

23. In concurring judgment, Mukherji, J. also stated :

“The principle to be deduced from Ss.496 and 497, Criminal P. C., therefore is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to freedom and every opportunity to look after his own case. It goes without saying that an accused person. If he enjoys freedom, will be in a much better position to look after his case and to properly defend himself than if he were in custody.                                                                                  (Emphasis supplied)

24. The above principle has been reiterated from time to time thereafter.

25. Section 389 of the Code expressly and specifically deals with suspension of sentence pending appeal and release of appellant on bail. It states :

389. Suspension of sentence pending the appeal; release of appellant on bail :- (1) Pending any appeal by a convicted person, the appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also if he is in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on a appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall –

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

26. Bare reading of the above provision makes it clear that during the pendency of appeal, an appellate Court is empowered to suspend sentence on the appellant by releasing him on bail. Such action, however, can be taken only after affording opportunity to the Public Prosecutor in case of offence punishable with death or imprisonment for life or imprisonment for ten years or more and after recording reasons in writing.

27. Mr. Jethmalani, relying on the decisions in Kashmira Singh v. State of Punjab (1977) 4 SCC 291; Babu Singh and Ors. v. State of U.P., (1978) 1 SCC 579; Shailendra Kumar v. State of Delhi, (2000) 4 SCC 178 : 2000 (1) JT (SC) 184, and other cases, submitted that one of the factors which weighed with this Court in granting suspension of sentence and releasing the applicant on bail is that in case of acquittal by the trial Court and conviction by the appellate Court, hearing of appeal takes long time and the applicant has to remain in jail.

28. As observed in those cases, the practice of not releasing a person on bail who had been sentenced for imprisonment for life under S. 302, I.P.C. was that the appeal was likely to be heard in near future. But if such appeal would not be heard for long and not disposed of within a ‘measurable distance of time,’ it would not be in the interest of justice to keep such person in jail for a number of years and it would be appropriate if the power under S. 389 of the Code is exercised in favour the applicant.

29. In Kashmira Singh, this Court stated :

“Now, the practice in this Court as also in many of the High Court has been not to release on bail a person who has been sentenced to life imprisonment for an offence under S. 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person : “We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?” What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.”                                                                                                    (Emphasis supplied)

30. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to been ‘innocent person’ until the final decision is recorded by the superior Court in his favour.

31. Mr. Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, (2000) 6 SCC 461; Vinay Kumar v. Narendra and Ors. (2002) 9 SCC 364 : JT 2002 Supp (1) SC 60; Ramji Prasad v. Rattan Kumar Jaiswal and Anr., (2002) 9 SCC 366 : JT 2000 (7) SC 477; State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6; Kishori Lal v. Rupa and Ors. (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 SCALE 412 : JT 2008 (4) SC 461.

32. In the above cases, it has been observed that once a person has been convicted, normally, the appellate Court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate Court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vinay Kumar that in considering the prayer for bail in a case involving a serious offence like murder punishable under S. 302, I.P.C., the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.

33. In Hasmat, this Court stated :

“6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of S. 389 is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he is released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant, aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.”                                                                                     (Emphasis supplied)

34. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.

35. On the facts and in the circumstances of the case, in our considered opinion, this is, not a fit case to exercise power under Section 389 of the Code. Though the trial Court has acquitted the applicant-accused for the offences with which he was charged, the High Court reversed the order of acquittal and convicted him under Section 302, IPC and ordered him to undergo rigorous imprisonment for life. Being aggrieved by the said order, he has filed an appeal which has been admitted, is already on board and awaits final hearing. Hence, within ‘measurable distance of time’ the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant-appellant for suspension of sentence and grant of bail. The application deserves to be dismissed and is accordingly dismissed.

36. Before parting with the matter, we may clarify that we may not be understood to have expressed any opinion on merits of the matter one way or the other and all the observations made by us hereinabove should be taken as confined to dealing with the prayer of the applicant-appellant under Section 389 of the Code. As and when the main matter i.e. criminal appeal will come up for hearing, it will be decided on its own merits without being inhibited or influenced by the observations in this order.

37. The application is accordingly disposed of.

Dataram Singh Vs. State of Uttar Pradesh & ANR[ SC 2018 February]

KEYWORDS:- Bail Granted-

c

DATE:- February 6, 2018-

If an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973

ACTS:- Bail Granted -FIR u/s 419, 420, 406 and 506 of the Indian Penal Code

Dataram Singh Vs. State of Uttar Pradesh & ANR.

[Criminal Appeal No.227 /2018 arising out of S.L.P. (CRL.) No. 151 of 2018]

Madan B. Lokur, J.

1. Leave granted.

2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences.

Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer.

Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab in which it is observed that it was held way back in Nagendra v. King-Emperor that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.

7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

8. We have been constrained to make these observations in the present appeal, in which the grant of bail has not been opposed by the State, but there is vehement opposition from the complainant.

9. On 13th January, 2016 the complainant lodged a First Information Report (FIR) No.16 of 2016 at Police Station Sahjanawa, Gorakhpur, Uttar Pradesh, alleging that the appellant had cheated him of an amount exceeding Rs.37 lakhs and had therefore committed an offence punishable under Sections 419, 420, 406 and 506 of the Indian Penal Code. It was also alleged that the appellant had issued a cheque for Rs. 18 lakhs in favour of the complainant (returning a part of the amount of Rs. 37 lakhs) but had stopped payment of that cheque in violation of Section 138 of the Negotiable Instruments Act, 1881.

10. Thereafter the complainant filed Complaint Case No. 206 of 2016 on or about 21st January, 2016 alleging the commission of an offence by the appellant under Section 138 of the Negotiable Instruments Act, 1881. Cognizance was taken and summons issued to the appellant by the concerned Magistrate in the complaint case.

11. Much later, on or about 15th August, 2016, the investigating officer filed a charge sheet against the appellant being Case Crime No. 18 of 2017. It is not clear why the Case Crime was registered so late (it may be a typo), but be that as it may, it appears that during the investigations the appellant was not arrested.

12. Fearing arrest after the charge sheet was filed against him, the appellant moved the Allahabad High Court for quashing the FIR lodged against him. The record of the case reveals that on 7th February, 2017 the High Court declined to quash the FIR, but granted two months time to the appellant to appear before the trial judge. Presumably, it was directed that during this period, the appellant should not be arrested. On 11th April, 2017 the appellant approached the Allahabad High Court once again, this time for a further period of two weeks to enable him to appear before the trial judge. Time as prayed for, appears to have been granted and eventually on 24th April, 2017 the appellant appeared before the trial judge and was taken into judicial custody. The appellant has been in judicial custody ever since.

13. A bail application moved by the appellant was rejected by the trial judge on 27th April, 2017 and another application for bail was rejected by the Allahabad High Court on 21st September, 2017 (impugned before us).

14. On 23rd January, 2018 when the appeal was listed before us, the complainant was represented by learned counsel even though he was not a party to the proceedings. However, on the oral request of learned counsel for the appellant the complainant was impleaded as a party respondent. Notice was then issued to the State of Uttar Pradesh, while notice was accepted by learned counsel for the complainant on his behalf. A request was made for filing a reply to the petition for special leave to appeal and two days time was granted for this purpose since the appellant was in judicial custody for a considerable period.

15. Even though the State of Uttar Pradesh has been served in the appeal, no one has put in appearance on its behalf. As far as the complainant is concerned, no reply was filed by the time the matter was taken up for consideration on 29th January, 2018. Accordingly, the matter was adjourned to 2nd February, 2018 by which date also no reply was filed by the complainant. As mentioned above, no one has put in appearance on behalf of the State of Uttar Pradesh to oppose the grant of bail to the appellant.

16. Learned counsel for the complainant vehemently contended that the appellant had duped him of a considerable amount of money and that looking to the seriousness of the allegations against him, this was not a case in which the appellant ought to be granted bail by this Court. Learned counsel supported the view taken by the trial judge as well as by the Allahabad High Court. He argued that given the conduct of the appellant in not only cheating the complainant and depriving him of a considerable sum of money but thereafter issuing a cheque for which payment was stopped made it an appropriate case for dismissal.

17. In our opinion, it is not necessary to go into the correctness or otherwise of the allegations made against the appellant. This is a matter that will, of course, be dealt with by the trial judge. However, what is important, as far as we are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time.

When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity.

18. In our view, taking all these and other factors into consideration, it would be appropriate if the appellant is granted bail on conditions that may be reasonably fixed by the trial judge. We order accordingly.

19. We should not be understood to have expressed any opinion on the allegations made against the appellant, both in the charge sheet as well as in the complaint case filed against him.

20. The appeal is allowed.

J (Madan B. Lokur)

J (Deepak Gupta)

New Delhi;

February 6, 2018

Barun Chandra Thakur Vs. Central Bureau of Investigation and Others [ SC 2017 DECEMBER]

KEYWORDS:-Anticipatory bail- interim bail granted-murder of a seven years old student-

Capture

DATE :-DECEMBER 11, 2017-

Acts:-  Offences punishable under Sections 302 read with Section 34 IPC, Section 25 of the Arms Act, Section 75 of the JJ Act and Section 12 of POCSO, Act, 2012  And Section 438(2)(i) to (iv) Cr.P.C.

Thus, as on date, the CBI is yet to examine and analyse the role of the private respondents in this case and there is no evidence of their complicity in the crime and there is not even a pointer of involvement of respondents herein in the alleged crime. Their involvement cannot be established until and unless, there is some substantial evidence against them.

SUPREME COURT OF INDIA

Barun Chandra Thakur Vs. Central Bureau of Investigation and Others

[Criminal Appeal Nos. 2152-2153 of 2017 arising out of Special Leave Petition (CRL.) Nos. 9783-9784 of 2017)

Diary No. 38240 of 2017

O R D E R

rkagrawal

R.K. Agrawal, J.

1. Leave granted.

2. The present appeal is directed against the judgment and order dated 21.11.2017 passed by the High Court of Punjab & Haryana at Chandigarh in Criminal Miscellaneous Nos. M-35002 and 35003 of 2017 whereby learned single Judge of the High Court had granted interim bail to Mr. Ryan Pinto, Dr. Augustine Francis Pinto and Mrs. Grace Pinto-the top management executive of the Ryan International School till the presentation of challan subject to certain conditions.

3. Brief facts:

(a) On 08.09.2017, the appellant herein dropped his son Pradyumn Thakur, aged 7 years, and his daughter, Vidhi Thakur to their School, viz., Ryan International School, Bhondsi at 8:00 a.m. At 08:10 a.m., the appellant received a phone call of his wife who asked him to immediately call Ms. Anju Dudeja of the said School. When the appellant contacted Ms. Anju Dudeja, she told him that his son had a cut on his neck and is profusely bleeding. She asked him to reach Badshahpur Hospital where he was being taken.

The appellant, along with his wife, left for Badshahpur Hospital but on the way he received a call from Ms. Anju Dudeja that they were taking the child to Artemis Hospital. On reaching there, the appellant found that there was a cut on the right side of his son’s neck up to the ear and his son was in Emergency Ward. The Doctor informed the appellant that his son Pradyumn had died.

(b) On receipt of the information, the police recorded a First Information Report (FIR) being No. 250 of 2017 dated 3 08.09.2017 at Police Station Bhondsi, Gurugram and arrested one Ashok Kumar, son of Amichand, on the same day. The State Government (Haryana), issued a Notification dated 17.09.2017, requesting the Central Bureau of Investigation (CBI) to take up the investigation. The Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) Government of India, New Delhi, vide Notification dated 22.09.2017, transferred the investigation of the case to the CBI which re-registered the FIR already registered by the police authorities as case bearing No. RC8(S)/2017/SC-III/New Delhi on 22.09.2017 itself which is a reproduction of the FIR recorded by the police authorities at Police Station Bhondsi, Gurugram.

(c) The private respondents, viz., Mr. Ryan Pinto, Dr. Augustine Francis Pinto and Mrs. Grace Pinto approached the Bombay High Court by filing Anticipatory Bail Application being Nos. 1599 and 1608 of 2017 for grant of transit/ anticipatory bail. Learned single Judge of the High Court of Judicature at Bombay, vide order dated 12.09.2017 in Anticipatory Bail Application No. 1599 of 2017 granted interim stay from arrest of these persons and the matter was posted for 13.09.2017.

On coming to know about the filing of the above anticipatory bail applications, the appellant herein approached the High Court of Bombay by filing the intervention application opposing the transit bail. Learned single Judge of the High Court, vide order dated 14.09.2017, rejected the anticipatory bail applications being Nos. 1599 and 1608 of 2017. However, the interim relief granted by the High Court vide order dated 12.09.2017 was extended till 5:00 p.m. of 15.09.2017 subject to certain conditions.

(d) It may be relevant to mention here that immediately on the next date of the incident, that is, on 09.09.2017, a Resolution was passed by the District Bar Association, Gurugram condemning the brutal and dastardly act of the accused unanimously resolving that no Member of the Bar would appear/represent the accused before the Court or any other Forum. A similar Resolution was passed by the District Bar Association, Sohna.

(e) The private respondents approached the Punjab & Haryana High Court on 15.09.2017 by filing CRM-M Nos. 5 35002 and 35003 of 2017 for grant of interim bail. However, the said petition was accepted by the Registry of the High Court on 17.09.2017 and the copy of the said petition was supplied to the office of learned Advocate General for the State of Haryana on 18.09.2017. It appears that in the meantime, Dr. Augustine Francis Pinto approached this Court by filing a writ petition (criminal) being No. 139 of 2017 seeking transfer of case from the Punjab & Haryana High Court to Delhi which was taken up on 18.09.2017 and this Court disposed of the writ petition while deprecating the practice of the Bar Associations to pass a Resolution of this nature and also recorded the fact that the Bar Associations have withdrawn the Resolution.

(f) CRM-M Nos. 35002 and 35003 of 2017 for grant of interim bail were taken up by the Punjab & Haryana High Court but the effective order was passed only on 28.09.2017 staying the arrest of the private respondents till 07.10.2017 when the matter was directed to be listed. The appellant approached this Court by filing a petition for Special Leave to Appeal being Diary No. 30996 of 2017 which was taken up on 6 13.10.2017 by this Court when learned counsel for the appellant informed this Court that the appeal had become infructuous.

(g) Learned single Judge of the High Court, vide judgment and order dated 07.10.2017 in CRM-M Nos. 35002 and 35003 of 2017, considered the submissions made by the respective parties including that of the appellant and while fixing the cases for 05.12.2017 granted interim bail to the private respondents with certain directions. The operative portion of the order dated 07.10.2017 is reproduced below:-

“It is a case where a student of a school has been murdered. After registration of the case, investigation with CBI is still at initial stage. It is working on the theory of possibilities and trying to analyse certain facts and evidence collected so far in the matter. The petitioner are admittedly resident of Mumbai. The question before the investigation agency is as to whether the provisions of Section 75 of the JJ Act or 12 of POCSO Act are attracted against the petitioner; whether the child was in direct and actual control of petitioners; or they have any other role in this case. Keeping in view the facts discussed above, I find it appropriate to give time to the investigation agency to analyse the evidence before it, look into the role of petitioners in this case and apprise this Court with further progress in the investigation and evidence against petitioners co9llected during investigation.

On behalf of Ryan Augustine Pinto, it has been argued that he has no concern with the Trust running Ryan Schools but a magazine of the Ryan International School, Bhondsi, Gurugram shows that it has a message with his photograph, when he is mentioned as CEO of Ryan International Group. By joining the investigation, petitioner Ryan Augustine Pinto will be in a position to place required material before the CBI regarding allegations against him that he is in management of the school. Consequently, petitioners in both the petitions are directed to join the investigation by the CBI on receipt of notice in this regard.

In the event of their arrest being required, they will be allowed interim bail in case bearing FIR No. RC 8(S)/2017/SC-III/New Delhi dated 22.09.2017 for the offences punishable under Sections 302 read with Section 34 IPC, Section 25 of the Arms Act, Section 75 of the JJ Act and Section 12 of POCSO, Act, 2012 (earlier FIR No. 250 dated 08.09.2017 registered at Police Station Bhondsi, Gurugram) till next date on their furnishing bonds to the satisfaction of Investigation Agency. However, they shall abide by the terms and conditions as envisaged under Section 438(2)(i) to (iv) Cr.P.C. failing which they shall loose the benefit of interim bail allowed to them. Further report relating to investigation be submitted on the next date. List on 05.12.2017.”

(h) The appellant, once again approached this Court by filing petition for Special Leave to Appeal (Criminal) being Nos. 8044-8045 of 2017 challenging the order dated 07.10.2017 passed by learned single Judge of the Punjab & Haryana High Court. This Court, vide order dated 06.11.2017, disposed of the special leave petitions by requesting the High Court to dispose of the bail applications within a period of 10 (ten) days hence. This Court was inclined to made such request as the High Court had granted interim protection to the private respondents under Section 438 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) for a long period. Pursuant to the order dated 06.11.2017 passed by this Court, learned single Judge of the High Court, considered the matter afresh and vide judgment and order dated 21.11.2017, made absolute the interim bail granted on 07.10.2017 to the private respondents till the presentation of the challan subject to certain conditions.

4. We have heard learned counsel for the parties and perused the records.

5. Learned counsel for the appellant contended that the private respondents while approaching the High Court for grant of interim bail/anticipatory bail have concealed and suppressed the material facts. He further contended that the respondents have also committed/indulged in fraud. According to him, they ought to have approached the Sessions Court, Gurugram, instead of directly approaching the High Court when on 15.09.2017, the Resolution passed by the District Bar Associations Gurugram and Sohna dated 09.09.2017 to the effect that no lawyer will represent the accused in the instant matter, stood withdrawn. He further  submitted that the private respondents have committed heinous offence as would be clear from the averments made by the CBI in the reply affidavit filed by it before the High Court. A special reference was made to the following averments:-

“……The interrogation of the petitioner is very much essential in the interest of investigation of the case and also to unearth the larger conspiracy behind the murder of a seven years old boy in his school. Any relief at this stage in the form of anticipatory bail may hamper the course of investigation of the case as there is every possibility that he will misuse the liberty granted by this Hon’ble Court.

(1) That the petitioners is not entitled to relief (s) as prayed for. The petition is misconceived apart from being meritless and hence deserves to be dismissed……” “4(J)-(P) ….Prima facie it seems that the careless attitude of the Management has aided to the murder of Master Pradhyuman in the washroom of the school and accordingly local police arrested two school officials namely Francis Thomas and Jayesh Thomas in the instant case.

10. That the contention of petitioner at paragraph 10 of the petition are opposed by the prosecution on the following grounds:

i) That CBI has taken up the investigation of the case and the investigation of this case is still pending at crucial stage. Larger conspiracy behind the murder of a seven year old boy is yet to be unearthed.

iii) That the possibility of him being members of the conspiracy behind the murder of Master Pradhuman in the washroom of Ryan International School, Sohna Road, Bhondsi, Gurugram on 08.09.2017 and its abetment, destruction of the evidence by him cannot be ruled out as he is within the ambit of investigation and he is to be dealt by the law at par with other accused.

iv) That CBI has taken up the investigation of this case on 22.09.2017, the records of the school management and those of the head office of Ryan International Group of Institutions have not been collected by CBI and the investigation is at a preliminary stage.” Learned counsel, thus, contended that even the CBI, on the materials and possibilities of the involvement of the private respondents, had opposed the plea of grant of interim bail/anticipatory bail, and therefore, the High Court ought not to have granted interim bail to them.

6. Learned senior counsel for the private respondents, however, submitted that from a reading of the FIR registered by the Police Station, Bhondsi, Gurugram, which was re-registered by the CBI, there is no allegation against the private respondents. Learned senior counsel further submitted that even the CBI in the reply affidavit filed before the High Court as also the documents produced before learned single Judge at the time of hearing of the matter does not show any involvement of the private respondents in the alleged offence. He, thus, submitted that the order dated 21.11.2017 passed by learned single Judge does not call for any interference.

7. We have given our thoughtful consideration to the various pleas raised by learned counsel for the parties.

8. In our considered opinion, the private respondents cannot be held guilty of any suppression, concealment or fraud in this matter for the simple reason that the petitions were prepared on 15.09.2017 and accepted by the Registry of the Punjab & Haryana High Court on 17.09.2017. The fact relating to the withdrawal of the Resolution passed by the District Bar Associations, Gurugram and Sohna cannot be said to be in the knowledge of the private respondents. Moreover, this plea had been dealt with by learned single Judge in the order dated 07.10.2017 and had been negated.

9. Further, we cannot lose sight of the fact that this incident had received wide coverage in the media, both electronic and print. In fact, it can be said that there was a trial by media, therefore, when the private respondents have directly approached the High Court for grant of anticipatory/interim bail under Section 438 of the Code, that too when the High Court has concurrent jurisdiction, we cannot find any fault with the action of the private respondents.

10. Coming to the merits of the case, on going through the FIR registered by the Police Station, Bhondsi dated 08.09.2017 which admittedly has been re-registered by the CBI, we find that no allegation has been made against the private respondents herein. Learned single Judge of the High Court, after considering the material and evidence on record as also the material produced by the CBI before it has held as under:-

“14. From the submissions of learned retainer counsel for CBI, it appears that against petitioners investigation of the case and the evidence collected by investigating agency stand at the same stage as it was on 07.10.2017. While allowing interim relief to the petitioners on 28.09.2017, it was ordered that if required, petitioners will be called and joined in investigation of the case, however, till 07.10.2017, they were never called to join the investigation. Vide order dated 07.10.2017, petitioners in both the petitions were directed to join the investigation on receipt of notice in this regard and it has been fairly conceded that no notice calling upon the petitioners to join investigation have been issued till date.”

16. In para 9 of preliminary submissions, it has again been submitted that here is possibility of petitioners being member of conspiracy behind the crime in this case. In para 12 of the para-wise reply, it has been stated that CBI has yet to examine and analyze the role of petitioners in this case. Similar pleas have also been raised in the reply filed in petition CRM-M-35002-2017.

17. The question, which arise for consideration at this stage is as to whether CBI intends to arrest petitioner without any evidence of their complicity in the crime only on the basis of possibilities and probabilities. The answer to this question will be in negative. It is not disputed that in the investigation conducted so far, there is not even a pointer of involvement of petitioners in the crime in this case. Some lapse or negligence on the part of school management or even of the trustees or other office bearer of the school if found at any point of time, may not be a pointer towards their complicity in commission of murder of a school student, until and unless there is some substantial evidence of their involvement in this crime.

While passing order dated 07.10.2017, it was observed that CBI “is working on the theory of possibilities and trying to analyze certain facts and evidence collected so far in the mater, as such, it will be appropriate to give time to investigating agency to analyze the evidence before it, look into the role of petitioners in this case and apprise this Court with further progress in the investigation and evidence against petitioners collected during investigation. Till date, status of investigation against the petitioners is at the same stage as it was on the date of passing of order dated 07.10.2017.

It is a case where a seven years old student of the school was brutally murdered in the school. It is not only an unfortunate incident but also a gruesome and heinous crime and the State Government thought it appropriate to hand over the investigation of the case to CBI, a premier investigating agency of the country. As admitted by learned counsel representing CBI, petitioners have not ever been called for joining the investigation and CBI has arrested a student of the school as main accused for murder of Pradyumn and is concentrating on his role in committing the crime.

It has not come on record that this crime committed by the conductor (Ashok), who was arrested by the police on the day of occurrence or the student arrested by the CBI in this case, in conspiracy with the petitioners or he had ever any contact with them. Petitioners Dr. Augustine Francis Pinto and Mrs. Grace Pinto (in CRM-M-35003-2017) are trustees of Saint Xavier’s Education Trust, which is running several school in the country. The status of petitioner Ryan Augustine Pinto (in CM-M-35002-2017) with regard to the management of the school in which crime was committed is yet to be ascertained. It will also be a point of investigation for the Investigating Agency as to whether the petitioners, while living in Mumbai, are directly responsible for any lapse of the Administration in the School.

11. Thus, as on date, the CBI is yet to examine and analyse the role of the private respondents in this case and there is no evidence of their complicity in the crime and there is not even a pointer of involvement of respondents herein in the alleged crime. Their involvement cannot be established until and unless, there is some substantial evidence against them.

Learned single Judge, while granting interim bail to the private respondents till the presentation of Challan had laid down certain conditions which are as follows:- “As a result of my above discussion, I find merits in both the petitions and the same are allowed. Order dated 07.10.2017 granting interim bail to the petitioners is made absolute, till the presentation of Challan, subject to the following terms:-

(i) that the petitioners shall make themselves available for interrogation by the investigating agency as and when required;

(ii) that the petitioners shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the accusation against them so as to dissuade him from disclosing such facts to the Court or to investigating agency;

(iii) that the petitioners shall not leave India without the prior permission of the Court.

(iv) that the petitioners will seek regular bail on the presentation of Challan in Court.”

12. In our considered opinion, without expressing anything on the merits of the case as the investigation is still under progress and the CBI is yet to come to a conclusion regarding the involvement of the private respondents in the crime, the private respondents herein have made out a case for grant of protection by way of interim bail till the presentation of Challan by the CBI as has been passed by learned single Judge. Therefore, the order passed by learned single Judge granting interim bail to the answering respondents till the presentation of Challan cannot be faulted with.

13. In view of the foregoing discussion, we therefore, do not find any good ground to interfere with the order dated 21.11.2017 passed by learned single Judge of the High Court. The appeal is dismissed. However, the parties shall bear their own costs.

(R.K. AGRAWAL)

 (ABHAY MANOHAR SAPRE)

NEW DELHI;

DECEMBER 11, 2017

Unknown vs Dhananjoy Singh @ Motu & Anr [CALCUTTA HC 2015]

KEYWORDS : BAIL- POCSO -CANCELLATION OF BAIL

KHC

The legal proposition that under the POCSO Act only the Special Court has been singularly vested with all the powers to try an offence under the Act and to entertain and consider application for bail filed by the accused and to deal with any incidental matter thereto including the power of detention and remand of the accused.

Calcutta High Court (Appellete Side)

Unknown vs Dhananjoy Singh @ Motu & Anr

on 8 April, 2015
Author: Shib Sadhan Sadhu
Form No.J(1)

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction Appellate Side Present: The Hon’ble Mr. Justice Shib Sadhan Sadhu, J.

C.R.R. No.2562 of 2014 Ramrahit Singh … Petitioner Versus Dhananjoy Singh @ Motu & Anr.

…Opposite Parties

For the Petitioner : Mr.Animesh Mookherjee

For the State : Mr.Ayan Bhattacharya

For the O.P. No.1 : Mr.Subhasish Dasgupta
Mr. Kunal Ganguly
Mr.Anirban Roy Chowdhury

Heard on : March 18, 2015

Judgment on : April 08, 2015

Shib Sadhan Sadhu, J.

1. By preferring the present application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973, (hereinafter referred to as Cr.P.C. for brevity) the petitioner has prayed that the order dated 15.07.2014 passed by the Learned Additional Sessions Judge, 2nd Court, Burdwan in Criminal Misc. Case No.4027 of 2013, thereby dismissing the revision and affirming the order dated 29.07.2013 passed by the Learned Additional Chief Judicial Magistrate, Asansol in G.R. Case No.1366 of 2013 in respect of granting of bail of the O.P. No.1 be quashed and set aside.

2. The factual matrix which gave rise to the present application is as follows:

An offence was registered being No.40/13 dated 01.06.2013 under the provisions of Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POCSO Act for brevity) and Section 506 of the Indian Penal Code against Dhananjoy Singh @ Motu (O.P.No.1 herein).
3. As per the F.I.R. lodged on 01.06.2013 the petitioner on 20.05.2013 went to his native place in Bihar keeping his two minor sons and the minor daughter aged about 13 years 4 months 16 days (victim girl) in his house. Taking advantage of his absence his neighbour’s son Dhananjoy Singh @ Motu trespassed into his house in the night and committed rape upon his minor daughter on 21.05.2013, 24.05.2013 and 28.05.2013 under threat to kill her and her minor brothers. In the night on 28.05.2013 around 12.30 hours the complainant returned home and saw the accused Dhananjoy Singh @ Motu fled away from his house. His daughter (victim girl) narrated the incident to the petitioner and his wife.

4. Investigation was conducted and charge sheet being No.52 of 2013 was submitted against the accused Dhananjoy Singh @ Motu under Section 6 of the POCSO Act and under Section 506 of the IPC on 24.07.2013.

5. On 29.07.2013 the Learned Additional Chief Judicial Magistrate, Asansol granted bail to the accused on the ground that charge sheet has been submitted and the accused is in custody for 58 days. Being aggrieved by such order the petitioner made an application on 27.11.2013 before the Learned Sessions Judge, Burdwan under Section 439 (2) of the Cr.P.C. praying for cancellation of bail granted to the accused. That application was registered as Misc. Case No.4027 of 2013 and was transferred to the Court of Additional Sessions Judge, 2nd Court, Burdwan which was designated to try the offences under the POCSO Act, for disposal. The accused (O.P.No.1) opposed the said application.

After hearing rival submissions, Learned Additional Sessions Judge, 2nd Court, Burdwan dismissed the said application by order dated 15.07.2014 and thereby confirmed the impugned order therein passed by the Learned Additional Chief Judicial Magistrate, Asansol on 29.07.2013. Hence, the petitioner has questioned the correctness and legality of both the said orders in the present Revisional Application.

6. Mr. Animesh Mukherjee, Learned Counsel, appearing on behalf of the petitioner, submitted that the victim was a 13 years plus old daughter of the petitioner and she was subjected to forcible rape by the accused in this case. He further submitted that as per the definition of “child” under the POCSO Act, a child means any person below the age of 18 years. Thus the victim girl was definitely a child on the date of occurrence. He submitted yet further that as per provision of POCSO Act only the designated Special Court is empowered to try the offences under the said Act and so the Learned Additional Chief Judicial Magistrate, Asansol has no jurisdiction to entertain and consider the application for bail moved by the accused in this case. Therefore, the impugned order passed by him granting bail to the accused is illegal and without jurisdiction. But the Learned Additional Sessions Judge, Burdwan completely ignored such fact and without application of judicial mind and in a very casual manner passed the impugned order dated 15.07.2014 affirming the said order dated 19.07.2013 inter-alia holding that there is no provision that the Learned Magistrate has got no authority or power to grant bail, if the accused is produced before him. Therefore, according to the Learned Counsel, both the impugned orders are unjustified, illegal and perverse and are liable to be quashed.

7. Mr. Ayan Bhattacharya, Learned Counsel appearing on behalf of the State subscribed to the submission made by the Learned Counsel Mr. Mukherjee and added that the POCSO Act which came into force on 20.06.2012 was enacted in order to protect the children of our country from the heinous offences of sexual assault, sexual harassment and pornography and to secure such object provisions have been made in the said Act for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. Mr. Bhattacharya further submitted that after the Act came into force, any Court other than the Special Court constituted under Section 28 of the POCSO Act has been divested of the jurisdiction to entertain or deal with any application in relation to such case. Further Section 33 of the Act has laid down that a Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts. He submitted yet further that in terms of the provisions of the Criminal Law Amendment Act (46 of 1952) the Court of a Special Judge is a Court of original Criminal Jurisdiction and in order to make it functionally oriented some powers were conferred by the Act itself. So the Special Court under the Act has to function as a Court of original criminal jurisdiction and it enjoys all the powers save and except those which have been specifically denied. The Special Court under the Act is not bound by the terminological status description of Magistrate or a Court of Sessions and the Special Judge would be a Magistrate empowered to try a case under Section 167 of the Cr.P.C. and he is empowered to exercise the powers that are conferred upon a Magistrate having jurisdiction to try the case. Referring to the provisions of Section 4 of the Cr.P.C., Mr. Bhattacharya further submitted that since Section 33 of the Act provides for special procedure for the manner of taking cognizance and trial of the offences under the Act those must prevail. Also in terms of Section 42-A of the Act the provisions of the Act shall be in addition to and not in derogation of the provision of any other law for the time being in force and, in case of any inconsistency, the provisions of the Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency. Therefore, in view of such position, the Learned Additional Chief Judicial Magistrate, Asansol has no jurisdiction to entertain and consider the application for bail moved by the accused prosecuted for an offence under the Act. According to him, although the Act does not prohibit the Magistrate in passing the order of first remand of an accused suspected and proceeded for an offence under the Act, on his production before him, as he is empowered to do so by the provision of Section 167 of the Cr.P.C. but he has no power or jurisdiction to pass any subsequent order of remand or to entertain or consider any application for bail filed by such accused which can only be done by the Special Court. He referred to the provisions of Section 167(2) of the Cr.P.C. on this score which reads as follows:

“The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if, he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.” The Learned Counsel submitted further that the Learned Magistrate also took cognizance of the offence on submission of the chargesheet despite having no jurisdiction. Thus it is apparent that the entire course adopted by the Learned Magistrate is illegal being contrary to the express provisions contained in the Act. He, thus, concludingly submitted that the impugned orders are not only without jurisdiction but those also amount to gross abuse of process of Court and so this Court’s interference is warranted to set the wrong right. He relied on the decisions reported in 2014 (136) AIC 852 (Rajasthan High Court) Ramu Ram Vs. State of Rajasthan & Others; 2013(3) RCR (Cri) 526 (Kerala High Court) V.Prasad Vs. State of Kerala; AIR 1979 Supreme Court 1255 (State of Tamil Nadu Vs. Krishnaswami Naidu & Anr.; AIR 1984 Supreme Court 718 (A.R.Antulay Vs. Ramdas Sriniwas Nayak & Anr.); and AIR 2001 Supreme Court 3774 (Harshad S.Mehta & Others V. State of Maharashtra) in order to substantiate his submission.

8. Mr. Subhasis Dasgupta, Learned Counsel appearing on behalf of the O.P.No.1 countering the submissions made by his Learned Adversaries contended that there are no cogent and overwhelming circumstances to cancel the bail which was granted to the accused/O.P. No.1 earlier by the Learned Additional Chief Judicial Magistrate, Asansol as there is no total prohibition in the Act against grant of bail merely because a person is accused of commission of offence of serious nature. On the contrary Section 437 of the Cr.P.C. empowers the Magistrate to grant bail even in a non-bailable offence. Therefore, according to Mr. Dasgupta, the Learned Magistrate was quite empowered to grant bail to the accused by exercising his discretion. He further submitted that taking cognizance of the offence by the Learned Magistrate is a mere irregularity and it cannot make the impugned order of granting bail illegal or without jurisdiction as there was no failure of justice or no prejudice was caused. It was also contended by the Learned Counsel that there is no grievance or allegation made by the petitioner that the accused misused the liberty granted to him. Therefore, the Learned Additional Sessions Judge was justified in rejecting the prayer for cancellation of bail granted to the accused as he found no supervening circumstances and that there was no adverse report against the accused. According to the Learned Counsel appearing on behalf of the O.P.No.1, once bail is granted to the O.P.No.1 by the Learned Magistrate and confirmed by the Learned Additional Sessions Judge, the same cannot be cancelled abruptly only on the sweet desire of the petitioner. He strenuously contended that the Learned Additional Chief Judicial Magistrate, Asansol has rightly passed the impugned order dated 29.07.2013 and the Revisional Court has rightly rejected the revision preferred against the said order. Accordingly he urged that the present application be dismissed. He cited the decisions reported in (2012) 2 Supreme Court Cases (Cri) 481 : (2012) 4 Supreme Court Cases 516 (Rattiram and others v. State of Madhya Pradesh) and (Satyanarayan & Ors. V. State of Madhya Pradesh) and 2005 CRI.L.J. 2984 (Sanjay Narhar Malshe v. State of Maharashtra) in support of his contention.

9. Having regard to the rival submission and contention advanced by the Learned Counsel for the parties in the light of the decisions placed, I must say at the very outset that POCSO Act, 2012 was enacted to effectively address the heinous crimes of sexual exploitation and sexual abuse of children and to protect them from all forms of sexual exploitation and sexual abuse.This Act was introduced basing upon the Statement of Objects and Reasons which mentioned inter-alia that : “1. Article 15 of the Constitution, inter-alia, confers upon the State powers to make special provision for children. Further, Article 39, inter-alia, provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. (2) The United Nations Convention on the Rights of Children, ratified by India on 11th December, 1992, requires the State Parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials.

(3) The data collected by the National Crime Records Bureau shows that there has been increase in cases of sexual offences against children. This is corroborated by the ‘Study on Child Abuse : India 2007’ conducted by the Ministry of Women and Child Development.

Moreover, sexual offences against children are not adequately addressed by the extant laws.

A large number of such offences are neither specifically provided for nor are they adequately penalized. The interests of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need to be defined explicitly and countered through commensurate penalties as an effective deterrence.

(4) It is, therefore, proposed to enact a self contained comprehensive legislation inter-alia to provide for protection of children from the offences of sexual assault, sexual harassment and pornography with due regard for safeguarding the interest and well being of the child at every stage of the judicial process, incorporating child-friendly procedures for reporting, recording of evidence, investigation and trial of offences and provision for establishment of Special Courts for speedy trial of such offences.

10. In this context I think it pertinent to quote the observation made by the Hon’ble Supreme Court in the case of Gaurav Jain Vs. Union of India reported in AIR 1997 Supreme Court 3021 which is as follows:

“31…………………………………………………………………………Children ‘s programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endorse with the skills and motivations needed by the society. They participate in equal measure in democratic governance of the State of useful citizens. Equal opportunities for development to all children during the period of growth should be our aim; for this we would serve our larger purpose of reducing inequality and ensuring social justice. To care for, plan out needs of the children and successful implementation is, therefore, our duty, as citizen, be an Administrator, a Magistrate or a Judge.”

11. Before entering into the arena of merits of the matter I think it would be useful to have a look on some relevant provisions of the POCSO Act which have a direct bearing upon the issue of controversy with which we are now concerned.

“Section 6. Punishment for aggravated penetrative sexual assault._ Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.

Section 28. Designation of Special Courts-(1) for the purposes of providing a speedy trial, the State Government shall in consultation with the Chief Justice of the High Court, by notification in the Official Gazette, designate for each district, a Court of Session to be a Special Court to try the offences under the Act:

Provided that if a Court of Session is notified as a Children’s Court under the Commissions for Protection of Child Rights Act, 2005 (4 of 2006) or a Special Court designated for similar purposes under any other law for the time being in force, then, such Court shall be deemed to be a Special Court under this section.

Section 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 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provision, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.

Section 33. Procedure and powers of Special Court.-(1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

Section 42-A. Act not in derogation of any other law.-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency.

12. A conjoint reading of the aforesaid provisions of the Act clearly spells out that cognizance of an offence under the Act without any order of committal or trial can be taken by the Special Court on a complaint disposing facts, which constitute such offence, or upon a police report on such facts. Such being the position, where the Special Court is empowered to take cognizance of the offence on a complaint or police report on facts constituting an offence under the Act, the Judicial Magistrate has no jurisdiction to entertain and consider the application for bail moved by any accused proceeded for an offence under the Act. The Actdoes not interdict the Magistrate in passing the order for the first remand of an accused suspected and prosecuted for an offence under the Act, the accused being produced before him since he is empowered under Section 167 of the Cr.P.C. to do so. However, he has no jurisdiction to pass any subsequent order of remand and to entertain or to consider any application of bail filed by such accused and that can only be done by the Special Court.

13. In the case of State of Tamil Nadu Vs. V. Krishnna Swami Naidu (Supra) cited by the Learned State Counsel the Hon’ble Supreme Court explaining the status, power and position of the Special Court held:

“Section 8 of the Criminal Law Amendment Act specifically empowers the Special Judge to take cognizance of the offence without the accused being committed to him. In taking cognizance of an offence without the accused being committed to him he is not a Sessions Judge for Section 193, Cr.P.C. provides that no Court of Sessions Judge shall take cognizance for any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Strictly he is not a Magistrate for no Magistrate can take cognizance as a Court of Session without committal. The Criminal Law (Amendment) Actbeing an Amending Act the provisions are intended to provide for a speedy trial of certain offences. The Criminal Law (Amendment) Act is not intended to be a complete code relating to procedure. The provisions of the Cr.P.C. are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act. Thus read there could be no difficulty in coming to the conclusion that the Cr.P.C. is applicable when there is no conflict with the provisions of Criminal Law (Amendment) Act. If a Special Judge who is empowered to take cognizance without committal is not empowered to exercise powers of remanding an accused person produced before him or release him on bail it will lead to an anomalous situation. A Magistrate other than a Magistrate having jurisdiction cannot keep him in custody for more than 15 days and after the expiring of the period if the Magistrate having jurisdiction to try the case does not include the Special Judge, it would mean that he would have no authority to extend the period of remand or to release him on bail. So also if the Special Judge is not held to be a Magistrate having jurisdiction, a charge sheet under Section 173 cannot be submitted to him. It is relevant to note that the General Clauses Act Section 32 defines a Magistrate as including every person exercising all or any of the powers of a Magistrate under the Code of Criminal Procedure for the time being in force. Section 3 of the Criminal Procedure Code provides that any reference without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires in the manner stated in the sub-sections. If the context otherwise requires the word ‘Magistrate’ may include Magistrates who are not specified in the section. Read along with the definition of the Magistrate in the General Clauses Act there can be no difficulty in construing the special Judge as a Magistrate for the purposes of Section 167.”

14. Therefore, there remains no scope for harbouring even the slightest doubt to accept the legal proposition that under the POCSO Act only the Special Court has been singularly vested with all the powers to try an offence under the Act and to entertain and consider application for bail filed by the accused and to deal with any incidental matter thereto including the power of detention and remand of the accused.

15. The Hon’ble Supreme Court made the following observation while passing judgment in Criminal Appeal No.2087/2008 arising out of SLP (Crl.) No.5126 of 2007 (Brijnandan Jaiswal v. Munna @ Munna Jaiswal & Anr.) : “It is now well-settled law that complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any Court, the only way to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant can question the merits of the order granting bail. However, we find from the order that no reasons were given by the Learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While granting bail, particularly in serious case like murder some reasons justifying the grant are necessary.”

16. Like most things in life, there is an ever present duality in the criminal justice process. There is a never ending dialectic in legal philosophy between the right of the accused to be presumed innocent until proven guilty and the need of the complainant (s) or victim (s) for a fair trial, uninfluenced by powerful or nasty (or both) accused persons. Bail is a legal provision which has great potential to provide mischievous or criminal elements an opportunity to influence the course of a trial in all the wrong ways. Sometimes people are bailed out and they misuse their freedom. Bail cancellation is the most obvious post-facto way in which such abuse can be curtailed.

17. In the decision reported in 2012 Cr.L.J. 4670 (Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu & Anr.) the Hon’ble Supreme Court has held that concept of cancellation of bail and of nullifying order granting bail in appeal are different. It has been further held therein that the concept of setting aside an unjustified, illegal or perverse order is totally different from the cancelling an order of bail on the ground that the accused had misconducted himself or because of some supervening circumstances warranting such cancellation.

18. Now let us assume for the sake of argument, of course by stretching our imagination beyond the horizon, that the Learned Magistrate had jurisdiction to grant bail to the accused. In that event too the Learned Magistrate was divested of such jurisdiction because the charge sheet was submitted on 24th July, 2013 i.e. on the 53rd day from the date of production of the accused which is very much within the statutory period. The order granting bail by the Learned Magistrate is absolutely perverse as he did not record any reason for granting bail in such serious and atrocious offence save and except that further detention of the accused would not help the investigation of the case. It is horrible to note the lack of legal conception demonstrated by the Learned Magistrate by recording such reason as only after completion of the investigation the charge sheet was submitted. Therefore, the impugned order granting bail to the accused is not only without jurisdiction but is also vitiated by illegality and perversity. The conduct of the Learned Additional Sessions Judge cannot also be appreciated either. The manner in which he approached and addressed the issue is highly condemnable as he missed the wood for the trees and totally misdirected himself in passing the impugned order dated 15.07.2014 which is equally perverse.

19. I would like to make it clear that it is not an application for cancellation of bail, as cancellation is not sought because of supervening circumstances. The present one is basically an application challenging grant of bail where the Learned Magistrate passed such order despite having no jurisdiction to entertain or consider the bail application which makes the order perverse.

20. Before concluding the discussion, I would like to add that the decision in the case of Sanjay Narhar Malshe vs. State of Maharashtra (Supra) cited by Mr. Dasgupta, Learned Counsel appearing for the O.P.No.2, was in connection with an offence punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which is though triable by a Special Court but in that Act there is no provision empowering the Special Judge of the Special Court to take cognizance of the offence as a Court of original jurisdiction without the case being committed to it for trial. In that view of the matter it was held in that decision that there is no total prohibition against grant of bail by the Magistrate. Striking dissimilarity between the said Act and the present Act is that in the POCSO Act the Special Judge has been empowered to take cognizance of an offence under the Act without any order of committal and the Magistrate has no jurisdiction to entertain and consider the application for bail. Therefore, that decision can have no manner of application in the instant case. The other decision cited by him being (2012) 2 Supreme Court Cases (Cri)481: (2012)4 Supreme Court Cases 516 (Supra) also relates to an offence punishable under Section 3(1) (X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and otherSections of the Indian Penal Code. In that case the Learned Special Court took cognizance directly without commitment of the case to it by the Magistrate in accordance with the provisions of Sections 209 and 193 of the Cr.P.C. That case ended into conviction of the accused persons. Appeal was preferred before the High Court and it was dismissed. Against that the appellants moved before the Hon’ble Supreme Court and the Hon’ble Supreme Court held that mere non-compliance with Section 193 of the Cr.P.C. does not vitiate the trial and on the said ground alone the conviction cannot be set aside or there cannot be a direction for retrial. Therefore, this decision also does not have any bearing upon the instant matter. On the contrary the decisions referred to by Mr. Bhattacharya, the Learned State Counsel, are quite relevant and on the point and thus have a sound bearing upon the case in hand.

21. Consequently both the impugned orders passed by the Learned Additional Chief Judicial Magistrate, Asansol and by the Learned Additional Sessions Judge, 2nd Court, Burdwan are set aside and the bail bond of the accused is cancelled. The accused (O.P.No.1 herein) is directed to surrender to custody forthwith failing which it shall be the duty of the Learned Additional Sessions Judge, 2nd Court, Burdwan which is designated to try the offences under the Act to take him to custody immediately. I would like to make it further clear that whatever has been stated in this judgment are only for the purpose of annulment of the order of grant of bail and its confirmation by the Learned Additional Sessions Judge and they would have no bearing whatsoever on trial.

22. The application is thus allowed.

23. The Learned Registrar General is directed to circulate a copy of this judgment to all the Learned District & Sessions Judges of West Bengal and Andaman Nicobar Islands who in their turn shall circulate it to all the Judicial Officers under their control so that they can exercise criminal jurisdiction properly.

24. Let a copy of this judgment be also sent to the Learned Director, West Bengal Judicial Academy, Bijan Bhawan, Salt Lake City, Kolkata for sensitization of the Judicial Officers attending the Academy.

25. Keeping in view the age of the case and nature and gravity of the offence, the Learned Additional Sessions Judge, 2nd Court, Burdwan (Designated Special Court) is directed to finally dispose of the G.R. Case No.1366 of 2013 as expeditiously as possible but not later than (three) 3 months from the date of communication of this order.

26. Criminal Section is directed to deliver urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.

(Shib Sadhan Sadhu, J.)

Hussain and ANR. Vs. Union of India[SC 2017 MARCH]

 KEYWORDS:-bail pending trial-speedy trial- DIRECTION ISSUED:-

SC

  • Bail applications be disposed of normally within one week;
  • Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years
  • The High Courts are requested to ensure that bail applications filed before them  are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest

DATE: March 9, 2017.

SUPREME COURT OF INDIA

Hussain and ANR. Vs. Union of India

[Criminal Appeal No.509 of 2017 arising out of Special Leave Petition (CRL.) No. 4437 of 2016]

Aasu Vs. State of Rajasthan

[Criminal Appeal No.511 of 2017 arising out of Special Leave Petition (CRL.) No. 348 of 2017]

ADARSH KUMAR GOEL, J. I

1. Leave granted. Grievance in these appeals is against denial of bail pending trial/appeal where appellants have been in custody for a long period.

2. In the first case, the appellants have been in the custody since 4th August, 2013 on the allegation of having committed offence under Section 21(c) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (the NDPS Act). Their bail application, pending trial, has been dismissed. In the second case, the appellant is in custody since 11th January, 2009. He has been convicted by the trial court under Section 302 IPC and sentenced to undergo life imprisonment. His bail application has been dismissed by the High Court pending appeal. The appellants contend that, having regard to the long period of custody, they are entitled to bail as speedy trial is their fundamental right under Article 21 of the Constitution.

3. To consider the question as to the circumstances in which bail can be granted on the ground of delayed proceedings when a person is in custody, notice was also issued to learned Attorney General and Mr. Siddharth Luthra, Senior Advocate was appointed Amicus Curiae.

4. We have heard learned counsel for the parties, the learned amicus and the learned Additional Solicitor General.

5. During the hearing reference has been made to the decisions of this Court dealing with the issue and reference has also been made to Section 436A Cr.P.C. which provides for grant of bail when a person has undergone detention upto one half of maximum prescribed imprisonment. It was submitted that the said provision applies only during trial and the first case is not covered by the said provision as the appellant therein has not undergone the requisite detention period to claim bail under the said provision.

6. With regard to grant of bail, pending appeal, reference has been made to decisions of this Court in Akhtari Bi (Smt.) v. State of M.P. and Surinder Singh alias Shingara Singh v. State of Punjab which provides that if the appeal is not heard for 5 years, excluding the delay for which the accused himself is responsible, bail should normally be granted. The second case is not covered by the said judgment as the pending appeal in the High Court is of the year 2013.

7. In Abdul Rehman Antulay and ors. v. R.S. Nayak and anr. while holding that speedy trial at all stages is part of right under Article 21, it was held that if there is violation of right of speedy trial, instead of quashing the proceedings, a higher court can direct conclusion of proceedings in a fixed time. In the light of these principles, the present appeals can be disposed of by directing that the pending trial in the first case and the appeal in the second case may be disposed of within six months. We order accordingly and dispose of the matters to the extent of grievance in the two cases. II

8. However, since the issue is arising frequently, inspite of earlier directions of this Court, further consideration has become necessary in the interest of administration of justice and for enforcement of fundamental right under Article 21.

9. As already noticed, speedy trial is a part of reasonable, fair and just procedure guaranteed under Article 21. This constitutional right cannot be denied even on the plea of non-availability of financial resources. The court is entitled to issue directions to augment and strengthen investigating machinery, setting-up of new courts, building new court houses, providing more staff and equipment to the courts, appointment of additional judges and other measures as are necessary for speedy trial.

10. Directions given by this Court in Hussainara Khatoon (supra) to this effect were left to be implemented by the High Courts[5] are as follows:

“2. Since this Court has already laid down the guidelines by orders passed from time to time in this writ petition and in subsequent orders passed in different cases since then, we do not consider it necessary to restate the guidelines periodically because the enforcement of the guidelines by the subordinate courts functioning in different States should now be the responsibility of the different High Courts to which they are subordinate. General orders for release of undertrials without reference to specific fact-situations in different cases may prove to be hazardous.

While there can be no doubt that undertrial prisoners should not languish in jails on account of refusal to enlarge them on bail for want of their capacity to furnish bail with monetary obligations, these are matters which have to be dealt with on case-to-case basis keeping in mind the guidelines laid down by this Court in the orders passed in this writ petition and in subsequent cases from time to time. Sympathy for the undertrials who are in jail for long terms on account of the pendency of cases has to be balanced having regard to the impact of crime, more particularly, serious crime, on society and these considerations have to be weighed having regard to the fact- situations in pending cases.

While there can be no doubt that trials of those accused of crimes should be disposed of as early as possible, general orders in regard to judge strength of subordinate judiciary in each State must be attended to, and its functioning overseen, by the High Court of the State concerned. We share the sympathetic concern of the learned counsel for the petitioners that undertrials should not languish in jails for long spells merely on account of their inability to meet monetary obligations. We are, however, of the view that such monitoring can be done more effectively by the High Courts since it would be easy for that Court to collect and collate the statistical information in that behalf, apply the broad guidelines already issued and deal with the situation as it emerges from the status reports presented to it.

The role of the High Court is to ensure that the guidelines issued by this Court are implemented in letter and spirit. We think it would suffice if we request the Chief Justices of the High Courts to undertake a review of such cases in their States and give appropriate directions where needed to ensure proper and effective implementation of the guidelines. Instead of repeating the general directions already issued, it would be sufficient to remind the High Courts to ensure expeditious disposal of cases. …”

(emphasis added)

11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. This Court has held that while a person in custody for a grave offence may not be released if trial is delayed, trial has to be expedited or bail has to be granted in such cases.

12. Timely delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice. Directions of this Court in Noor Mohammed v. Jethanand and anr.[7] are as follows: “

34. … … …Therefore, we request the learned Chief Justice of the High Court of Rajasthan as well as the other learned Chief Justices to conceive and adopt a mechanism, regard being had to the priority of cases, to avoid such inordinate delays in matters which can really be dealt with in an expeditious manner. Putting a step forward is a step towards the destination. A sensible individual inspiration and a committed collective endeavour would indubitably help in this regard.

Neither less, nor more.”

13. In Thana Singh v. Central Bureau of Narcotics this Court directed that liberal adjournments must be avoided and witnesses once produced must be examined on consecutive dates. Directions were also issued for setting up of sufficient laboratories, for disposal of seized narcotics drugs and for providing charge-sheets and other documents in electronic form in addition to hard copies of same to avoid delay.

14. In Akhtari Bi (supra) this Court observed as under:

“5. … … …it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular Benches to deal with the criminal cases can be set up where such appeals be listed for final disposal.

We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them.

We request the Chief Justices of the High Courts, where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special Benches for that purpose.”

15. Again in Imtiyaz Ahmad v. State of Uttar Pradesh and Ors. it was observed that long delay has the effect of blatant violation of rule of law and adverse impact on access to justice which is a fundamental right. Denial of this right undermines public confidence in justice delivery. These observations have been reiterated in recent Constitution Bench judgment in Anita Kushwaha etc. etc. v. Pushap Sudan etc. etc.[10]. In the said judgment it was noticed that providing effective adjudicatory mechanism, reasonably accessible and speedy, was part of access to justice.

16. In Bhim Singh V. Union of India, it was observed that central government must take steps in consultation with the state governments in fast tracking all types of criminal cases so that criminal justice is delivered timely and expeditiously. In the same case, in a further order[12] it was noted that more than 50% of the prisoners in various jails are undertrial prisoners. In spite of incorporation of Section 436A in Cr.PC. undertrial prisoners continue to remain in prisons in violation of the mandate of the said section.

Accordingly, this court directed jurisdictional Magistrate/Chief Judicial Magistrate/Session judge to hold one sitting in a week in each jail/prison for 2 months for effective implementation of Section 436A. Again in Re: Inhuman Conditions in 1382 Prisons reference was made to the advisory issued by Ministry of Home Affairs to all States for implementation of Section 436A, Cr.PC. stipulating constitution of a review committee in every district under the chairmanship of the District Judge. It was noted that 67% of the prisoners in the jails were undertrials prisoners.

III

17. In Imtiyaz Ahmad (supra) this Court noted that serious cases involving murder, rape, kidnapping and dacoiting were pending for long period. In some cases proceedings are delayed on account of stay orders. Out of the said cases, in 9 per cent cases stay was operating for more than 20 years, in 21 per cent stay was operating for more than 10 years. Having regard to the situation noticed in the judgment, this Court directed the High Courts to dispose of cases in which proceedings were stayed preferably within six months from the date of stay orders.

The Law Commission was directed to make recommendation for measures to be adopted by way of creation of additional courts and the like matters. The Law Commission made its recommendations in its 245th Report which was examined by the National Court Management Systems Committee (NCMSC) to determine additional number of courts required. The said report was thereafter considered by this Court in judgment dated 2nd January, 2017 in Imtiyaz Ahmad v. State of U.P. & Ors. [Criminal Appeal No. 254-262 of 2012].

After noticing the stand of the Ministry of Law and Justice on the subject of creation of additional posts, this Court also noted the recommendations of the 14th Finance Commission whereby additional fiscal allocation was provided. In that context, the Prime Minister’s letter to the Chief Ministers calling upon them to allocate funds in the State Budgets was also referred to. Further follow up letter of the Law Minister and Resolution of Chief Justices’ Conference held in April, 2016 were also referred to. Thereafter, this Court issued directions for computing the required judge strength of the district judiciary and also directed the State Governments to take steps for enhancing the judge strength accordingly.

The directions are as follows:

“22. Having regard to the above background, we now proceed to formulate our directions in the following terms :

i) Until NCMSC formulates a scientific method for determining the basis for computing the required judge strength of the district judiciary, the judge strength shall be computed for each state, in accordance with the interim approach indicated in the note submitted by the Chairperson, NCMSC;

ii) NCMSC is requested to endeavour the submission of its final report by 31 December 2017;

iii) A copy of the interim report submitted by the Chairperson, NCMSC shall be forwarded by the Union Ministry of Law and Justice to the Chief Justices of all the High Courts and Chief Secretaries of all states within one month so as to enable them to take follow-up action to determine the required judge strength of the district judiciary based on the NCMSC interim report, subject to what has been stated in this judgment;

iv) The state governments shall take up with the High Courts concerned the task of implementing the interim report of the Chairperson, NCMSC (subject to what has been observed above) and take necessary decisions within a period of three months from today for enhancing the required judge strength of each state judiciary accordingly;

v) The state governments shall cooperate in all respects with the High Courts in terms of the resolutions passed in the joint conference of Chief Justices and Chief Ministers in April 2016 with a view to ensuring expeditious disbursal of funds to the state judiciaries in terms of the devolution made under the auspices of the Fourteenth Finance Commission;

vi) The High Courts shall take up the issue of creating additional infrastructure required for meeting the existing sanctioned strength of their state judiciaries and the enhanced strength in terms of the interim recommendation of NCMSC;

vii) The final report submitted by NCMSC may be placed for consideration before the Conference of Chief Justices. The directions in (i) above shall then be subject to the ultimate decision that is taken on receipt of the final report; and

viii) A copy of this order shall be made available to the Registrars General of each High Court and to all Chief Secretaries of the States for appropriate action.” The said matter now stands adjourned to July, 2017.

18. During Joint Conference of Chief Ministers of States and Chief Justices of High Courts held in April, 2015, a decision was taken that all High Courts will establish Arrears Committees and prepare a plan to clear backlog of cases pending for more than 5 years. Such Committees have reportedly been established. In Chief Justices’ Conference held in April, 2016 under Item No. 8 inter alia the following resolution was passed:

” [8] DELAY AND ARREARS COMMITTEE:

xxx xxx xxx

Resolved that

(i) all High Courts shall assign top most priority for disposal of cases which are pending for more than five years;

(ii) High Courts where arrears of cases pending for more than five years are concentrated shall facilitate their disposal in mission mode;

(iii) High Courts shall progressively thereafter set a target of disposing of cases pending for more than four years;

(iv) while prioritizing the disposal of cases pending in the district courts for more than five years, additional incentives for the Judges of the district judiciary be considered where feasible; and

(v) efforts be made for strengthening case-flow management rules.”

19. The position of five year old cases continues to be alarming in many States. Total number of more than five year old cases in subordinate courts at the end of the year 2015 is said to be 43,19,693 as noted in para 9 of the judgment of this Court dated 2nd January, 2017 in Imtiyaz Ahmad v. State of U.P. & Ors. [Criminal Appeal No. 254-262 of 2012]. Number of undertrials detained for more than five years at the end of the year 2015 is said to be 3599.] Number of appeals pending in High Courts where detention period is beyond five years may be still higher.

20. It appears that annual action plans have been prepared by some High Courts with reference to the subject of discussion in the Chief Justices’ Conference. Reference to action plan of the Punjab and Haryana High Court for the year 2011-2012 shows that undertrials who were in custody for more than two years as on 1st April, 2011 in Session Trial cases and those in custody for more than six months in Magisterial Trial cases were targeted for disposal, apart from five year old cases and other priority cases.

Similar targets were fixed for subsequent years and result reflected in the pendency figures shows improvement in disposal of five year old cases and cases of undertrials in custody beyond two years in Session Trial cases and six months in Magisterial Trial cases in subordinate courts in the jurisdiction of Punjab & Haryana High Court. Reportedly, success is on account of monitoring inter alia by holding quarterly meetings of District Judges with Senior High Court Judges as well as constant monitoring by concerned Administrative Judges. Presumably, there is similar improvement as a result of planned efforts elsewhere. In view of successful implementation of plan to dispose of cases of undertrials in custody in two years in Session Trial cases and six months in Magisterial trials, we do not see any reason why this target should not be set uniformly.

The same need to be regularly monitored and reflected in performance appraisals of concerned judicial officers. Handicaps pointed out can be tackled at appropriate level. Accordingly, we are of the view that plan of each High Court should include achieving the said target and not the target of five years for undertrials in custody. Of course, if such cases can be disposed of earlier, it may be still better. Plans can be revised as per local conditions. We also feel delay in disposal of bail applications and cases where trials are stayed are priority areas for monitoring.

Timeline for disposal of bail applications ought to be fixed by the High Court. As far as possible, bail applications in subordinate courts should ordinarily be decided within one week and in High Courts within two-three weeks. Posting of suitable officers in key leadership positions of Session Judges and Chief Judicial Magistrates may perhaps go a long way in dealing with the situation. Non performers/dead word must be weeded out as per rules, as public interest is above individual interest.

21. Another suggestion which cropped up during the hearing of the present case relates to remedying the situation of delay in trials on account of absconding of one or the other accused during the trial. In this regard our attention has been drawn to an amendment in the Code of Criminal Procedure, 1898 of Bangladesh by way of adding Section 339B to the following effect: “Trial in absentia 339B.

(1) Where after the compliance with the requirements of section 87 and section 88, the Court has reason to believe that an accused person has absconded or concealing himself so that he cannot be arrested and produced for trial and there is no immediate prospect of arresting him, the Court taking cognizance of the offence complained of shall, by order published in at least two national daily Bengali Newspapers having wide circulation, direct such person to appear before it within such period as may be specified in the order, and if such person fails to comply with such direction, he shall be tried in his absence.

(2) Where in a case after the production or appearance of an accused before the Court or his release on bail, the accused person absconds or fails to appear, the procedure as laid down in sub-section (1) shall not apply and the Court competent to try such person for the offence complained of shall, recording its decision so to do, try such person in his absence.”

(emphasis added)

22. It is for the concerned authority to take cognizance of the above amendment which may considerably reduce delay in cases where one or the other accused absconds during the trial.

23. Learned Amicus Curiae as well as learned Additional Solicitor General have suggested that monitoring by all High Courts is necessary to ensure minimizing adjournments at all levels, taking steps to remove obstacles in speedy trials including setting up of adequate number of laboratories, use of Video Conferencing to examine scientific experts or otherwise, appointment of public prosecutors, compliance of Section 207/208 Cr.P.C. by scanning/digitizing police reports, introduce system for electronic service of summons (wherever necessary), issuing timelines for disposal of bail matters at all levels.

It has also been suggested that suitable amendments ought to be made in the Code of Criminal Procedure for permitting tendering evidence of medical witnesses on the pattern of Section 293 Cr.P.C. While we have discussed some of the issues germane to the subject of speedy trials, in view of directions already issued by this Court, issuance of further directions and monitoring of directions already issued is left to the concerned High Courts.

24. In view of the above, we do consider it necessary to direct that steps be taken forthwith by all concerned to effectuate the mandate of the fundamental right under Article 21 especially with regard to persons in custody in view of the directions already issued by this Court. It is desirable that each High Court frames its annual action plan fixing a tentative time limit for subordinate courts for deciding criminal trials of persons in custody and other long pending cases and monitors implementation of such timelines periodically.

This may perhaps obviate the need for seeking directions in individual cases from this Court. We also feel that it is desirable for Chief Justices of all the High Courts to take other steps consistent with the directions already issued by this Court for expeditious disposal of criminal appeals pending in High Courts where persons are in custody by fixing priority having regard to the time period of detention.

We also reiterate the directions for setting up of adequate number of forensic laboratories at all levels. Specification of some of these issues is in addition to implementation of other steps including timely investigation, timely serving of summons on witnesses and accused, timely filing of charge-sheets and furnishing of copies of charge-sheets to the accused. These aspects need constant monitoring by High Courts.

25. One other aspect pointed out is the obstruction of Court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work after condolence references. In view of judgment of this Court in Ex. Captain Harish Uppal versus Union of India, such suspension of work or strikes are clearly illegal and it is high time that the legal fraternity realizes its duty to the society which is the foremost. Condolence references can be once in while periodically say once in two/three months and not frequently.

Hardship faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on undertrials in custody on account of such avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps. In any case, this needs attention of all concerned authorities – the Central Government/State Governments/Bar Councils/Bar Associations as well as the High Courts and ways and means ought to be found out to tackle this menace. Consistent with the above judgment, the High Courts must monitor this aspect strictly and take stringent measures as may be required in the interests of administration of justice.

26. Judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time. Chief Justices and Chief Ministers have resolved that all cases must be disposed of within five years which by any standard is quite a long time for a case to be decided in the first court. Decision of cases of undertrials in custody is one of the priority areas.

There are obstructions at every level in enforcement of right of speedy trial – vested interests or unscrupulous elements try to delay the proceedings. Lack of infrastructure is another handicap. Inspite of all odds, determined efforts are required at every level for success of the mission. Ways and means have to be found out by constant thinking and monitoring. Presiding Officer of a court cannot rest in the state of helplessness. This is the constitutional responsibility of the State to provide necessary infrastructure and of the High Courts to monitor the functioning of subordinate courts to ensure timely disposal of cases. The first step in this direction is preparation of an appropriate action plan at the level of the High Court and thereafter at the level of each and every individual judicial officer. Implementation of the action plan will require serious efforts and constant monitoring.


27. To sum up:

(i) The High Courts may issue directions to subordinate courts that –

(a) Bail applications be disposed of normally within one week;

(b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;

(c) Efforts be made to dispose of all cases which are five years old by the end of the year;

(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;

(e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports.

(emphasis added)

(ii) The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest;

(iii) The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts;

(iv) The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time;

(v) The High Courts may take such stringent measures as may be found necessary in the light of judgment of this Court in Ex. Captain Harish Uppal (supra) .

28. Accordingly, we request the Chief Justices of all High Courts to forthwith takeLine-min appropriate steps consistent with the directions of this Court in Hussain Ara Khatoon (1995) 5 SCC 326) (supra), Akhtari Bi (Smt.) (supra), Noor Mohammed (supra), Thana Singh (supra), S.C. Legal Aid Committee (supra), Imtiaz Ahmad (supra), Ex. Captain Harish Uppal (supra) and Resolution of Chief Justices’ Conference and observations hereinabove and to have appropriate monitoring mechanism in place on the administrative side as well as on the judicial side for speeding up disposal of cases of undertrials pending in subordinate courts and appeals pending in the High Courts.

We place on record our appreciation for the valuable assistance rendered by Mr. Atmaram N.S. Nadkarni, learned Additional Solicitor General and Mr. Siddharth Luthra, learned Senior Advocate. A copy of this order be sent to all the courts.

[Adarsh Kumar Goel]

[ Uday Umesh Lalit]

Nikesh Tarachand Shah Vs. Union of India & ANR.[SC 2017 November]-(Challenging Statute)

KEYWORDSmoney-laundering-constitutional validity 

Capture

we declare Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matters before us in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail.

The conditions are that the Public Prosecutor must be given an opportunity to oppose any application for release on bail and the Court must be satisfied, where the Public Prosecutor opposes the application, that there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail , is declared unconstitutional.

DATE : November 23, 2017

BENCH :  (R.F. Nariman)  (Sanjay Kishan Kaul)

ACT : Section 45(1) of the Prevention of Money Laundering Act, 2002

SUPREME COURT OF INDIA

Nikesh Tarachand Shah Vs. Union of India & ANR.

[Writ Petition (Criminal) No. 67 of 2017] [Writ Petition (Criminal) No. 103 of 2017] [[Writ Petition (Criminal) No.144 of 2017] [Writ Petition (Criminal) No.152 of 2017] [Criminal Appeal No. 2012 of 2017 arising out of SLP (CRL) No.7326 of 2017] [Criminal Appeal No. 2013 of 2017 arising out of SLP (CRL) No.7786 of 2017] [Criminal Appeal No. 2014 of 2017 arising out of SLP (CRL) No.7789 of 2017]

R.F. Nariman, J.

1. Leave granted.

2. The present writ petitions and appeals raise the question of the constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002. Section 45(1) imposes two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act is involved. The conditions are that the Public Prosecutor must be given an opportunity to oppose any application for release on bail and the Court must be satisfied, where the Public Prosecutor opposes the application, that there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail.

3. The Prevention of Money Laundering Act, 2002 was introduced, as its Statement of Objects and Reasons mentions, to make money laundering an offence, and to attach property involved in money laundering, so that this serious threat to the financial system of India is adequately dealt with. It is worth setting out the Statement of Objects and Reasons of the Act in full.

STATEMENT of OBJECTS AND REASONS

It is being realised, world over, that moneylaundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initiatives taken by the international community to obviate such threats are outlined below:-

(a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug crimes and other connected activities and confiscation of proceeds derived from such offence.

(b) the Basle Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money-laundering.

(c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material for comprehensive legislation to combat the problem of money-laundering. The recommendations were classified under various heads. Some of the important heads are-

(i) declaration of laundering of monies carried through serious crimes a criminal offence;

(ii) to work out modalities of disclosure by financial institutions regarding reportable transactions;

(iii) confiscation of the proceeds of crime;

(iv) declaring money-laundering to be an extraditable offence; and

(v) promoting international co-operation in investigation of money-laundering.

(d) the Political Declaration and Global Programme of Action adopted by United Nations General Assembly by its Resolution No. S-17/2 of 23rd February, 1990, inter alia, calls upon the member States to develop mechanism to prevent financial institutions from being used for laundering of drug related money and enactment of legislation to prevent such laundering.

(e) the United Nations in the Special Session on Countering World Drug Problem Together concluded on the 8th to the 10th June, 1998 has made another declaration regarding the need to combat money-laundering. India is a signatory to this declaration.

2. In view of an urgent need for the enactment or a comprehensive legislation inter alia for preventing money-laundering and connected activities confiscation of proceeds of crime, setting up of agencies and mechanisms for coordinating measures for combating money-laundering, etc., the Prevention of Money-Laundering Bill, 1998 was introduced in the Lok Sabha on the 4th August, 1998. The Bill was referred to the Standing Committee on Finance, which presented its report on the 4th March, 1999 to the Lok Sabha. The recommendations of the Standing Committee accepted by the Central Government are that

(a) the expressions “banking company” and “person” may be defined;

(b) in Part I of the Schedule under Indian Penal Code the word offence under section 477A relating to falsification of accounts should be omitted;

(c) ‘knowingly’ be inserted in clause 3(b) relating to the definition of money-laundering;

(d) the banking companies, financial institutions and intermediaries should be required to furnish information of transactions to the Director instead of Commissioner of Income-tax

(e) the banking companies should also be brought within the ambit of clause II relating to obligations of financial institutions and intermediaries;

(f) a definite timelimit of 24 hours should be provided for producing a person about to be searched or arrested person before the Gazetted Officer or Magistrate;

(g) the words “unless otherwise proved to the satisfaction of the authority concerned” may be inserted in clause 22 relating to presumption on interconnected transactions;

(h) vacancy in the office of the Chairperson of an Appellate Tribunal, by reason of his death, resignation or otherwise, the seniormost member shall act as the Chairperson till the date on which a new Chairperson appointed in accordance with the provisions of this Act to fill the vacancy, enters upon his office;

(i) the appellant before the Appellate Tribunal may be authorised to engage any authorised representative as defined under section 288 of the Income-tax Act, 1961,

(j) the punishment for vexatious search and for false information may be enhanced from three months imprisonment to two years imprisonment, or fine of rupees ten thousand to fine of rupees fifty thousand or both;

(k) the word ‘good faith’ may be incorporated in the clause relating to Bar of legal proceedings. The Central Government have broadly accepted the above recommendations and made provisions of the said recommendations in the Bill.

3. In addition to above recommendations of the standing committee the Central Government proposes to (a) relax the conditions prescribed for grant of bail so that the Court may grant bail to a person who is below sixteen years of age, or woman, or sick or infirm,

(b) levy of fine for default of non-compliance of the issue of summons, etc.

(c) make provisions for having reciprocal arrangement for assistance in certain matters and procedure for attachment and confiscation of property so as to facilitate the transfer of funds involved in moneylaundering kept outside the country and extradition of the accused persons from abroad.

4. The Bill seeks to achieve the above objects.”

4. Though the Act was passed by Parliament in the year 2002, it was brought into force only on 1.7.2005. Some of the important provisions, with which we are directly concerned, are set out hereinbelow:

Section 2. Definitions.

(1) In this Act, unless the context otherwise requires,-

(p) “money-laundering” has the meaning assigned to it in section 3;

(u) “proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country; (x) “Schedule” means the Schedule to this Act;

(y) “scheduled offence” means-

(i) the offences specified under Part A of the Schedule; or

(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or

(iii) the offences specified under Part C of the Schedule.

Section 3. Offence of money-laundering.- Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.

Section 4. Punishment for money-laundering.- Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.

Section 5. Attachment of property involved in money-laundering.

(1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of material in his possession, that-

(a) any person is in possession of any proceeds of crime; and

(b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed:

Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country:

Provided further that, notwithstanding anything contained in first proviso, any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such belief to be recorded in writing), on the basis of material in his possession, that if such property involved in money-laundering is not 9 attached immediately under this Chapter, the nonattachment of the property is likely to frustrate any proceeding under this Act.

(2) The Director, or any other officer not below the rank of Deputy Director, shall, immediately after attachment under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed.

(3) Every order of attachment made under subsection (1) shall cease to have effect after the expiry of the period specified in that sub-section or on the date of an order made under sub-section (2) of section 8, whichever is earlier. (4) Nothing in this section shall prevent the person interested in the enjoyment of the immovable property attached under sub-section (1) from such enjoyment.

Explanation.- For the purposes of this sub-section, “person interested”, in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property.

(5) The Director or any other officer who provisionally attaches any property under subsection (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority.

xxx xxx xxx

Section 43. Special Courts.-

(1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4, by notification, 10 designate one or more Courts of Session as Special Court or Special Courts or such area or areas or for such case or class or group of cases as may be specified in the notification.

Explanation.- In this sub-section, “High Court” means the High Court of the State in which a Sessions Court designated as Special Court was functioning immediately before such designation.

(2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial.

Section 44. Offences triable by Special Courts.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or

(b) a Special Court may, upon perusal of police report of the facts which constitute an offence under this Act or upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under section 3, without the accused being committed to it for trial;

(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed.

(d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) as it applies to a trial before a Court of Session.

(2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section includes also a reference to a “Special Court” designated under section 43.

Section 45. Offences to be cognizable and nonbailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given a opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by-

(i) the Director; or

(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.

(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.

(2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

Section 46. Application of Code of Criminal Procedure, 1973 to proceedings before Special Court.-

(1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor: Provided that the Central Government may also appoint for any 13 case or class or group of cases a Special Public Prosecutor.

(2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an advocate for not less than seven years, under the Union or a State, requiring special knowledge of law.

(3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a Public Prosecutor within the meaning of clause (u) of section 2 of the Code of Criminal Procedure, 1973 (2 of 1974) and the provisions of that Code shall have effect accordingly.

xxx xxx xxx

Section 65. Code of Criminal Procedure, 1973 to apply.– The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation investigation, prosecution and all other proceedings under this Act.

xxx xxx xxx

Section 71. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”

5. Shri Mukul Rohatgi, learned senior advocate appearing on behalf of the petitioners, has argued before us that Section 45 of the said Act, when it imposes two further conditions 14 before grant of bail is manifestly arbitrary, discriminatory and violative of the petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution. According to learned senior counsel, at the stage that the said Act was a Bill (which was referred to a Standing Committee on Finance of the Parliament, and which presented its report on 4.3.1999 to the Lok Sabha), the Central Government broadly accepted the recommendations of the Standing Committee, which were then incorporated in the said Bill along with some other changes.

At this stage, argued Shri Rohatgi, it is interesting to note that Clauses 43 and 44 of the Bill, which correspond to Sections 44 and 45 of the present Act, were very differently worded and dealt only with offences under the 2002 Act. The twin conditions laid down as additional conditions for grant of bail were, at this stage, only qua offences under the 2002 Act. When Parliament enacted the 2002 Act, this scheme was completely changed in that Section 45 of the Act now spoke only of the predicate/scheduled offence and not the offence under the 2002 Act. In the present Act, a scheduled offence, which is an offence under other penal laws contained in Part A 15 of the Schedule, that is tried with offences under the Act, bail would be granted only after satisfying the twin conditions laid down in the Section.

Also, when the Act was originally enacted, according to learned senior counsel, part A of the Schedule was very sparsely populated, in that it comprised of two paragraphs only consisting of two offences under the Indian Penal Code, 1860 and 9 offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. These offences were considered extremely heinous by the legislature and were, therefore, classified apart from offences under Part B, which dealt with certain other offences under the Indian Penal Code and offences under the Arms Act 1959, Wildlife (Protection) Act 1972, Immoral Traffic (Prevention) Act, 1956 and the Prevention of Corruption Act, 1988. According to learned senior counsel, this classification was maintained right until the Amendment Act of 2012, which then incorporated Part B offences into Part A of the Schedule, resulting in offences under 26 Acts, together with many more offences under the Indian Penal Code, all being put under Part A.

This, according to learned senior counsel, was done because the definition of 16 “scheduled offence” in Section 2(y) of the Act made it clear that, if offences are specified under Part B of the Schedule at the relevant time, the total value involved for such offences should be Rs.30 lakhs or more. The idea behind the 2012 Amendment, as the Statement of Objects of the said Amendment discloses, is that this limit of Rs.30 lakhs be removed, which is why the entire Part B of the Schedule was subsumed in Part A. He further argued that the object was not to deny bail to those charged with offences under the erstwhile Part B, and that putting Part B offences together with heinous offences in Part A would amount to treating unequals equally and would be discriminatory and violative of Article 14 of the Constitution.

In addition, such lumping together of disparate offences would have no rational relation to the object sought to be achieved by the Amendment Act of 2012, that is to obviate the Rs.30 lakh limit qua Part B offences, and it would violate Article 14 on this ground as well. According to learned senior counsel, the change from the original scheme of the Bill to introducing offences outside the 2002 Act dependent upon which bail would be granted, with the twin conditions as aforestated first having to be satisfied, is itself manifestly arbitrary, in that the predicate offence, which is the scheduled offence, and the classification of such offence as being punishable with three years or more would again be wholly irrelevant and would have absolutely no rational relation to the object of granting bail insofar as offences under the 2002 Act are concerned.

Learned senior counsel also referred to Article 21 of the Constitution and stated that the aforesaid procedure would be unfair, unjust and would fall foul of Article 21 inasmuch as it would certainly fall foul of the US Constitution’s Eighth Amendment which interdicts excessive bails. Since this Court has recognized that this feature of the Eighth Amendment would fall within Article 21, it would be a direct infraction thereof.

He also argued that a person will be punished for an offence contained under the 2002 Act, but will be denied bail because of a predicate offence which is contained in Part A of the Schedule, which would again render Section 45(1) as manifestly arbitrary and unreasonable. He referred to Nikesh Tarachand Shah‘s case, which is Writ Petition (criminal) No.67 of 2017, in which the scheduled offences were Sections 120B, 409, 420, 471 and 477A of the 18 Indian Penal Code read with Section 13 of the Prevention of Corruption Act.

These offences were being investigated by the CBI in CBI Special Case No.91/2009 in which the petitioner was granted bail by the Sessions Court by an order dated 10.12.2015. When the offence under the 2002 Act was added to the aforesaid offences, thanks to the applicability of the twin conditions in Section 45(1), he was denied bail with effect from 27.11.2015, which itself shows that Section 45(1) is being used in an extremely manifestly arbitrary fashion to deny bail for offences which extend only to seven years under the 2002 Act, as opposed to predicate offences which may extend even to life imprisonment. Also, according to learned senior counsel, the threshold of three years and above contained in Section 45 of the 2002 Act is itself manifestly arbitrary in that it has no reference to the offence of money laundering under the 2002 Act, but only to three years and more of the predicate offence.

There is no condition, so far as the 2002 Act is concerned, of classification based on the amount of money that is laundered, which perhaps may be a valid basis for classification. Also, according to learned senior counsel, if the twin conditions of Section 45(1) are to be satisfied at the stage of bail, the defendants will have to disclose their defence at a point in time when they are unable to do so, having been arrested and not being granted bail at the inception itself. Another conundrum raised by Section 45 is the fact that, there being no interdict against anticipatory bail in the 2002 Act, and the Code of Criminal Procedure applying to offences under the 2002 Act, it would be clear that anticipatory bail could be granted for both offences under the 2002 Act and predicate offences.

This being so, unlike the Terrorist and Disruptive Activities (Prevention) Act 1987, where anticipatory bail expressly cannot be granted, the twin conditions of Section 45 would not apply at the anticipatory bail stage, which would mean that a person charged of money laundering and a predicate offence could continue on anticipatory bail throughout the trial without satisfying any of the twin conditions, as opposed to a person who applies for regular bail, who would have to satisfy the twin conditions, which in practice would mean denial of bail.

For all these reasons, according to learned senior counsel, Section 45 needs to be struck down. Also, according to learned senior counsel, it is not 20 possible to read down the provision to make it constitutional as the very scheme of Section 45 is manifestly arbitrary and irrational. Shri Rohatgi cited various judgments to buttress his submissions which will be referred to by us in the course of this judgment.

6. On the other hand, the learned Attorney General Shri K.K. Venugopal impressed upon us the fact that the Parliamentary legislation qua money laundering is an attempt by Parliament to get back money which has been siphoned off from the economy. According to the learned Attorney General, scheduled offences and offences under Sections 3 and 4 of the 2002 Act have to be read together and the said Act, therefore, forms a complete code which must be looked at by itself. According to the learned Attorney General, it is well settled that classification which is punishment centric has been upheld by a catena of judgments and so have the twin conditions been upheld by various decisions which were referred to by him. According to him, the expression “any offence” in Section 45(1)(ii) would mean offence of a like nature and not any offence, which would include a traffic offence as well.

According  to the learned Attorney General, Section 45 can easily be read down to make it constitutional in two ways. First, the expression “there are reasonable grounds for believing that he is not guilty of such offence” must be read as the making of a prima facie assessment by the Court of reasonable guilt. Secondly, according to the learned Attorney General, in any case the conditions contained in Section 45(1)(ii) are there in a different form when bail is granted ordinarily insofar as offences generally are concerned and he referred to State of U.P. through C.B.Iv. Amarmani Tripathi, (2005) 8 SCC 21 for this purpose. According to the learned Attorney General, if harmoniously construed with the rest of the Act, Section 45 is unassailable. He relied upon Section 24 of the Act, which inverts the burden of proof, and strongly relied upon Gautam Kundu v. Directorate of Enforcement (Prevention of Money- Laundering Act), (2015) 16 SCC 1 and Rohit Tandon v. The Enforcement Directorate, Criminal Appeal Nos.1878– 1879 of 2017 decided on 10th November, 2017.

In answer to Shri Rohatgi’s argument on the object of the 2012 Amendment Act, according to the learned Attorney General, it is well settled that where the language of the Act is plain, no recourse can be taken to the object of the Act and he cited a number of judgments for this proposition. He referred us to Section 106 of the Indian Evidence Act, 1872 and argued that when read with Section 24 of the 2002 Act, it would be clear that the twin conditions contained in Section 45 are only in furtherance of the object of unearthing black money and that we should, therefore, be very slow to set at liberty persons who are alleged offenders of the cancer of money laundering.

Ultimately, according to the learned Attorney General, Section 45 being part of a complete code must be upheld in order that the 2002 Act work, so that money that is laundered comes back into the economy and persons responsible for the same are brought to book.  Having heard learned counsel for both sides, it is important to first understand what constitutes the offence of money laundering. Under Section 3 of the Act, the kind of persons responsible for money laundering is extremely wide. Words such as “whosoever”, “directly or indirectly” and “attempts to indulge” would show that all persons who are even remotely involved in this offence are sought to be roped in. An important ingredient of the offence is that these persons must be knowingly or actually involved in any process or activity connected with proceeds of crime and “proceeds of crime” is defined under the Act, by Section 2 (u) thereof, to mean any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence (which is referred to in our judgment as the predicate offence).

Thus, whosever is involved as aforesaid, in a process or activity connected with “proceeds of crime” as defined, which would include concealing, possessing, acquiring or using such property, would be guilty of the offence, provided such persons also project or claim such property as untainted property. Section 3, therefore, contains all the aforesaid ingredients, and before somebody can be adjudged as guilty under the said provision, the said person must not only be involved in any process or activity connected with proceeds of crime, but must also project or claim it as being untainted property.

Under Section 4 of the Act, the offence of money laundering is punishable with rigorous imprisonment for a minimum period of three years which may extend to 7 years and fine. Also, under 24 the proviso, where the proceeds of crime involved in money laundering relate to a predicate offence under paragraph 2 of Part A of the Schedule, the sentence then gets extended from 7 years to 10 years.

8. Under Section 5 of the Act, attachment of such property takes place so that such property may be brought back into the economy. Coming now to Chapter VII of the Act with which we are really concerned, Section 43 lays down that Special Courts to try offences under the Act are to be designated for such area or areas or for such case or class or group of cases as may be specified by notification. Section 44 is very important in that the Section provides for the trial of a scheduled offence and the offence of money laundering together by the same Special Court, which is to try such offences under the Code of Criminal Procedure as if it were a court of sessions.

Under Section 46, read with Section 65 of the Act, the provisions of the Code of Criminal Procedure apply to proceedings before the Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a court of sessions.

9. When the Prevention of Money Laundering Bill, 1999 was tabled before Parliament, Section 44, which corresponds to Section 45 of the present Act, provided that several offences punishable under “this Act” are to be cognizable, and the twin conditions for release on bail would apply only insofar as the offences under the Act itself are concerned. When the Act was finally enacted in 2002 and notified in 2005, this scheme changed radically. Now, both the offence of money laundering and the predicate offence were to be tried by the Special Court, and bail is granted only if the twin conditions under Section 45(1) are met, where the term of imprisonment is more than three years for the predicate offence.

It is important to note that Clause 44 of the Bill referred only to offences under Sections 3 and 4 of the Bill, whereas Section 45 of the Act does not refer to offences under Sections 3 and 4 of the Act at all. Reference is made only to offences under Part A of the Schedule, which are offences outside the 2002 Act. This fundamental difference between the Bill and the Act has a great bearing on the constitutional validity of Section 45(1) with which we are directly and immediately concerned.

10. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows: “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.” It is well known that Magna Carta, which was wrung out of King John by the barons on the 15th of June, 1215, was annulled by Pope Innocent III in August of that very year.

King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognized by kingly authority. In fact, by the statutes of Westminster of 1275, King Edward I repeated the injunction contained in clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a matter of divine right, a struggle ensued between Parliament and King Charles I.

This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility to the Duke of Buckingham, the House of Commons denied King Charles I the 27 means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as “the Five Knights”. Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King’s Bench, headed by the Chief Justice, made an order sending the knights back to prison.

The Chief Justice’s order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, “let right be done as is desired by the petition”. Among other things, the Petition had prayed that no free man should be imprisoned or detained, except by authority of law.

11. In Bushel’s case, decided in 1670, Chief Justice Sir John Vaughan was able to state that, “the writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it.” Despite this statement of the law, one Jenkes was arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles II be petitioned to call a new Parliament. Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, “immediately commanded that the laws should have their due course.” (See Jenke’s case, 6 How. St. Tr. 1189 at 1207, 1208 (1676)).

It is cases like these that led to the next great milestone of English history, namely the Habeas Corpus Act of 1679. This Act recited that many of the King’s subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King’s Bench Judges subject to penalties for non-compliance.

12. The next great milestone in English history is the Bill of Rights of 1689, which was accepted by the only Dutch monarch 29 that England ever had, King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression “excessive bail ought not to be required….” first appears in Chapter 2, clause 10.

13. What is important to learn from this history is that clause 39 of Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial.

It may only be added that one century after the Bill of Rights, the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. We may only add that the Eighth Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar v. State through Government of NCT of Delhi (2011) 13 SCC 706, at paragraphs 60 and 61.

14. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out with great felicity as follows:- “27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the ‘Meerut Conspiracy cases’ observations are to be found regarding the right to bail which deserve a special mention.

In K.N. Joglekar v. Emperor [AIR 1931 All 504 : 33 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously.

In Emperor v. Hutchinson [AIR 1931 All 356, 358 : 32 Cri LJ 1271] it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. 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. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) “… 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 sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right.”

29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that: (SCC p. 129, para 29) 32 “There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.”

30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p. 806, para 39), it is stated: “Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.” It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”

15. The stage is now set for an examination of the constitutional validity of Section 45 of the 2002 Act.

16. At this stage, it is important to advert to the tests for the violation of Article 14, both in its discriminatory aspect and its “manifestly arbitrary” aspect. It is settled by a catena of cases 33 that Article 14 permits classification, provided such classification bears a rational relation to the object sought to be achieved.

In an early judgment of this Court, State of Bombay and Anr. v. F.N. Balsara (1951) SCR 682 at 708, Fazl Ali, J. summarized the law as follows:

“(1) The presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.

(2) The presumption may be rebutted in certain cases by showing that on the face of the statute, there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.

(3) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.

(4) The principle does not take away from the State the power of classifying persons for legitimate purposes.

(5) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.

(6) If a law deals equally with members of a welldefined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons.

(7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis.”

Proposition 7 is important for the present purpose. Also, it is well settled that Article 14 condemns discrimination not only by substantive law, but also by procedural law. (See Budhan Choudhry v. State of Bihar, (1955) 1 SCR 1045 at 1049).

17. After adverting to these judgments, Bhagwati J., in Asgarali Nazarali Singaporawalla v. The State of Bombay, 1957 SCR 678 at 690-692 held: “The first question which we have to address to ourselves is whether there is in the impugned Act a reasonable classification for the purposes of legislation. If we look to the provisions of the impugned Act closely it would appear that the legislature classified the offences punishable under Sections 161, 165 or 165-A of the Indian Penal Code or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 in one group or category. They were offences relating to bribery or corruption by public servants and were thus appropriately classified in one group or category. The classification was founded on an intelligible differentia which distinguished the offenders thus grouped together from those left out of the group.

The persons who committed these offences of bribery or corruption would form a class by themselves quite distinct from those offenders who 35 could be dealt with by the normal provisions contained in the Indian Penal Code or the Code of Criminal Procedure, 1898 and if the offenders falling within this group or category were thus singled out for special treatment, there would be no question of any discriminatory treatment being meted out to them as compared with other offenders who did not fall within the same group or category and who continued to be treated under the normal procedure.

The next question to consider is whether this differentia had a rational relation to the object sought to be achieved by the impugned Act. The preamble of the Act showed that it was enacted for providing a more speedy trial of certain offences. An argument was however addressed before us based on certain observations of Mahajan, J. (as he then was) at p. 314, and Mukherjea, J. (as he then was) at p. 328 in Anwar Ali Sarkar’s case [(1952) SCR 284] ) quoted at p. 43 by Patanjali Sastri, C.J. in the case of Kedar Nath Bajoria v. State of West Bengal [(1954) SCR 30] that the speedier trial of offences could not afford a reasonable basis for such classification. Standing by themselves these passages might lend support to the contention urged before us by the learned counsel for the appellant. It must be noted, however, that this ratio was not held to be conclusive by this Court in Kedar Nath Bajoria’s case [(1954) SCR 30] where this Court held:

“(1) That when a law like the present one is impugned on the ground that it contravenes Article 14 of the Constitution the real issue to be decided is whether, having regard to the underlying purpose and policy of the Act as disclosed by its title, preamble and provisions, the classification of the offences for the trial of which the Special Court is set up and a special procedure 36 is laid down can be said to be unreasonable or arbitrary and therefore violative of the equal protection clause;

(2) having regard to the fact that the types of offences specified in the Schedule to the Act were very common and widely prevalent during the post war period and had to be checked effectively and speedily tried, the legislation in question must be regarded as having been based on a perfectly intelligent principle of classification, having a clear and reasonable relation to the object sought to be achieved, and it did not in any way contravene Article 14 of the Constitution.” In the instant case, bribery and corruption having been rampant and the need for weeding them out having been urgently felt, it was necessary to enact measures for the purpose of eliminating all possible delay in bringing the offenders to book.

It was with that end in view that provisions were enacted in the impugned Act for speedier trial of the said offences by the appointment of Special Judges who were invested with exclusive jurisdiction to try the same and were also empowered to take cognizance thereof without the accused being committed to them for trial, and follow the procedure prescribed for the trial of warrant cases by Magistrates.

The proceedings before the Special Judges were thus assimilated to those before the courts of sessions for trying cases without a jury or without the aid of assessors and the powers of appeal and revision invested in the High Court were also similarly circumscribed. All these provisions had the necessary effect of bringing about a speedier trial of these offences and it cannot be denied that this intelligible differentia had rational relation to the object sought to be achieved by the impugned Act. Both these conditions were thus fulfilled and it could not be urged that the provisions of the impugned Act were in any manner violative of Article 14 of the Constitution.”

18. In so far as “manifest arbitrariness” is concerned, it is important to advert to the majority judgment of this Court in Shayara Bano v. Union of India and others, (2017) 9 SCC 1. The majority, in an exhaustive review of case law under Article 14, which dealt with legislation being struck down on the ground that it is manifestly arbitrary, has observed:

“87The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable.

All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.

xxx xxx xxx 101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121] stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14.

The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

This view of the law by two learned Judges of this Court was concurred with by Kurian, J. in paragraph 5 of his judgment. 19. Article 21 is the Ark of the Covenant so far as the Fundamental Rights chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights chapter (along with Article 20) that cannot be suspended even in an emergency (See Article 359(1) of the Constitution). At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India (1978) 1 SCC 248.

Thus, in Rajesh Kumar (supra) at 724-726, this Court held: “56. Article 21 as enacted in our Constitution reads as under: “21. Protection of life and personal liberty.-No person shall be deprived of his life or personal liberty except according to procedure established by law.” 57. But this Court in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] held that in view of the expanded interpretation of Article 21 in Maneka Gandhi [(1978) 1 SCC 248], it should read as follows: (Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] , SCC p. 730, para 136) 40 “136. … ‘No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.’ In the converse positive form, the expanded article will read as below: ‘A person may be deprived of his life or personal liberty in accordance with fair, just and reasonable procedure established by valid law.'”

58. This epoch-making decision in Maneka Gandhi [(1978) 1 SCC 248] has substantially infused the concept of due process in our constitutional jurisprudence whenever the court has to deal with a question affecting life and liberty of citizens or even a person. Krishna Iyer, J. giving a concurring opinion in Maneka Gandhi [(1978) 1 SCC 248] elaborated, in his inimitable style, the transition from the phase of the rule of law to due process of law.

The relevant statement of law given by the learned Judge is quoted below: (SCC p. 337, para 81) “81. … ‘Procedure established by law’, with its lethal potentiality, will reduce life and liberty to a precarious plaything if we do not ex necessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with ‘do or die’ patriotism, was launched be sapped by formalistic and pharisaic prescriptions, regardless of essential standards? An enacted apparition is a constitutional, illusion. Processual justice is writ patently on Article 21. It is too grave to be circumvented by a black letter ritual processed through the legislature.”

59. Immediately after the decision in Maneka Gandhi [(1978) 1 SCC 248] another Constitution Bench of this Court rendered decision in Sunil 41 Batra v. Delhi Admn. [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] specifically acknowledged that even though a clause like the Eighth Amendment of the United States Constitution and concept of “due process” of the American Constitution is not enacted in our Constitution text, but after the decision of this Court in Rustom Cavasjee Cooper [(1970) 1 SCC 248] and Maneka Gandhi [(1978) 1 SCC 248] the consequences are the same. The Constitution Bench of this Court in Sunil Batra [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] speaking through Krishna Iyer, J. held: (Sunil Batra case [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] , SCC p. 518, para 52)

52. True, our Constitution has no ‘due process’ clause or the Eighth Amendment; but, in this branch of law, after Cooper [(1970) 1 SCC 248] and Maneka Gandhi [(1978) 1 SCC 248], the consequence is the same.”

60. The Eighth Amendment (1791) to the Constitution of the United States virtually emanated from the English Bill of Rights (1689). The text of the Eighth Amendment reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. The English Bill of Rights drafted a century ago postulates, “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”.

61. Our Constitution does not have a similar provision but after the decision of this Court in Maneka Gandhi case [(1978) 1 SCC 248] jurisprudentially the position is virtually the same and the fundamental respect for human dignity underlying the Eighth Amendment has been read into our jurisprudence.

62. Until the decision was rendered in Maneka Gandhi [(1978) 1 SCC 248], Article 21 was viewed 42 by this Court as rarely embodying the Diceyian concept of the rule of law that no one can be deprived of his personal liberty by an executive action unsupported by law. If there was a law which provided some sort of a procedure it was enough to deprive a person of his life or personal liberty. In this connection, if we refer to the example given by S.R. Das, J. in his judgment in A.K. Gopalan [AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] that if the law provided the Bishop of Rochester “be boiled in oil” it would be valid under Article 21.

But after the decision in Maneka Gandhi [(1978) 1 SCC 248] which marks a watershed in the development of constitutional law in our country, this Court, for the first time, took the view that Article 21 affords protection not only against the executive action but also against the legislation which deprives a person of his life and personal liberty unless the law for deprivation is reasonable, just and fair. And it was held that the concept of reasonableness runs like a golden thread through the entire fabric of the Constitution and it is not enough for the law to provide some semblance of a procedure. The procedure for depriving a person of his life and personal liberty must be eminently just, reasonable and fair and if challenged before the court it is for the court to determine whether such procedure is reasonable, just and fair and if the court finds that it is not so, the court will strike down the same.

63. Therefore, “law” as interpreted under Article 21 by this Court is more than mere “lex”. It implies a due process, both procedurally and substantively.”

20. Given the parameters of judicial review of legislation laid down in these judgments, we have to see whether Section 45 can pass constitutional muster.

21. It is important to first set out the genesis of Section 45 as it appeared in the Prevention of Money Laundering Bill, 1999. In its original avatar, the precursor to Section 45, which was Section 44 of the said Bill, read as follows:-

“44.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of more than three years under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail; Provided that a person who is under the age of sixteen years, is a woman or is sick or infirm, may be released on bail, if the Special Court so directs; Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by-

(i) the Director; or

(ii) any officer of the Central Government or State Government authorized in writing in this behalf by the Central Government by a general or a 44 special order made in this behalf by that Government.

(2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.”

At this stage, it is clear that this Section referred only to offences punishable under the Act itself, in which the twin conditions for grant of bail were imposed, in addition to limitations for such grant under the Code of Criminal Procedure. Somehow, this provision did not translate itself into dealing with offences under the 2002 Act, but became Section 45 of the 2002 Act, which was brought into force in 2005. This provision originally read as follows:

45. Offences to be cognizable and nonbailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by-

(i) the Director; or

(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.

(2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” The change made by Section 45 is that, for the purpose of grant of bail, what was now to be looked at was offences that were punishable for a term of imprisonment of three years or more under Part A of the Schedule, and not offences under the 2002 Act itself. At this stage, Part A of the Schedule contained two paragraphs – Para 1 containing Sections 121 and 121A of the Indian Penal Code, which deal with waging or attempting to 46 wage war or abetting waging of war against the Government of India, and conspiracy to commit such offences.

Paragraph 2 dealt with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. Part B of the Schedule, as originally enacted, referred to certain offences of a heinous nature under the Indian Penal Code, which included murder, extortion, kidnapping, forgery and counterfeiting. Paragraphs 2 to 5 of Part B dealt with certain offences under the Arms Act 1959, Wildlife (Protection) Act 1972, Immoral Traffic (Prevention) Act, 1956 and the Prevention of Corruption Act, 1988. When the Act was originally enacted, it was, thus, clear that the twin conditions applicable under Section 45(1) would only be in cases involving waging of war against the Government of India and offences under the Narcotic Drugs and Psychotropic Substances Act.

Even the most heinous offences under the Indian Penal Code were contained only in Part B, so that if bail were asked for such offences, the twin conditions imposed by Section 45(1) would not apply. Incidentally, one of the reasons for classifying offences in Part A and Part B of the Schedule was that offences specified under Part B would get attracted only if the total value involved in such offences was Rs.30 lakhs or more (under Section 2(y) of the Act as it read then). Thereafter, the Act has been amended several times. The amendment made in 2005 in Section 45(1) was innocuous and is not an amendment with which we are directly concerned. The 2009 Amendment further populated Parts A and B of the Schedule.

In Part A, offences under Sections 489 A and B of the Indian Penal Code, relating to counterfeiting were added and offences under the Explosive Substances Act, 1908 and Unlawful Activities (Prevention) Act, 1967, which dealt with terrorist activities, were added. In Part B, several other offences were added from the Indian Penal Code, as were offences under the Explosives Act 1884, Antiquities and Arts Treasures Act 1972, Securities and Exchange Board of India Act 1992, Customs Act 1962, Bonded Labour System (Abolition) Act 1976, Child Labour (Prohibition and Regulation) Act 1986, Transplantation of Human Organs Act 1994, Juvenile Justice (Care and Protection of Children) Act 2000, Emigration Act 1983, Passports Act 1967, Foreigners Act 1946, Copyright Act 1957, Trademarks Act 1999, Information Technology Act 48 2000, Biological Diversity Act 2002, Protection of Plant and Farmers Rights Act 2001, Environmental Protection Act 1986, Water (Prevention and Control of Pollution Act) 1974, Air (Prevention and Control of Pollution Act) 1981 and Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms of Continental Shelf Act, 2002.

22. By the Amendment Act of 2012, which is Act 2 of 2013, a very important amendment was made to the Schedule by which the entire Part B offences were transplanted into Part A.

The object for this amendment, as stated in the Statement of Objects and Reasons for the amendment in clause 3 (j), specifically provided: “(j) putting all the offences listed in Part A and Part B of the Schedule to the aforesaid Act into Part A of that Schedule instead of keeping them in two Parts so that the provision of monetary threshold does not apply to the offences.”

23. By the Finance Act of 2015, by Section 145, the limit of Rs.30 lakhs in Section 2(y) was raised to Rs.1 crore and in the Schedule after Part A, Part B was populated with only one entry, namely Section 132 of the Customs Act. Certain other 49 amendments were made, by the Finance Act of 2016, to the 2002 Act with which we are not directly concerned.

24. The statutory history of Section 45, read with the Schedule, would, thus show that in its original avatar, as Clause 44 of the 1999 Bill, the Section dealt only with offences under the Act itself. Section 44 of the 2002 Act makes it clear that an offence punishable under Section 4 of the said Act must be tried with the connected scheduled offence from which money laundering has taken place.

The statutory scheme, as originally enacted, with Section 45 in its present avatar, would, therefore, lead to the same offenders in different cases having different results qua bail depending on whether Section 45 does or does not apply. The first would be cases where the charge would only be of money laundering and nothing else, as would be the case where the scheduled offence in Part A has already been tried, and persons charged under the scheduled offence have or have not been enlarged on bail under the Code of Criminal Procedure and thereafter convicted or acquitted. The proceeds of crime from such scheduled offence may well be discovered much later in the hands of Mr. X, who now becomes charged 50 with the crime of money laundering under the 2002 Act.

The predicate or scheduled offence has already been tried and the accused persons convicted/acquitted in this illustration, and Mr. X now applies for bail to the Special Court/High Court. The Special Court/High Court, in this illustration, would grant him bail under Section 439 of the Code of Criminal Procedure – the Special Court is deemed to be a Sessions Court – and can, thus, enlarge Mr. X on bail, with or without conditions, under Section 439. It is important to note that Mr. X would not have to satisfy the twin conditions mentioned in Section 45 of the 2002 Act in order to be enlarged on bail, pending trial for an offence under the 2002 Act.

25. The second illustration would be of Mr. X being charged with an offence under the 2002 Act together with a predicate offence contained in Part B of the Schedule. Both these offences would be tried together. In this case, again, the Special Court/High Court can enlarge Mr. X on bail, with or without conditions, under Section 439 of the Code of Criminal Procedure, as Section 45 of the 2002 Act would not apply. In a third illustration, Mr. X can be charged under the 2002 Act 51 together with a predicate offence contained in Part A of the Schedule in which the term for imprisonment would be 3 years or less than 3 years (this would apply only post the Amendment Act of 2012 when predicate offences of 3 years and less than 3 years contained in Part B were all lifted into Part A).

In this illustration, again, Mr. X would be liable to be enlarged on bail under Section 439 of the Code of Criminal Procedure by the Special Court/High Court, with or without conditions, as Section 45 of the 2002 Act would have no application.

26. The fourth illustration would be an illustration in which Mr. X is prosecuted for an offence under the 2002 Act and an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule. In this illustration, the Special Court/High Court would enlarge Mr. X on bail only if the conditions specified in Section 45(1) are satisfied and not otherwise. In the fourth illustration, Section 45 would apply in a joint trial of offences under the Act and under Part A of the Schedule because the only thing that is to be seen for the purpose of granting bail, under this Section, is the alleged occurrence of a Part A scheduled offence, which has imprisonment for over three years.

The likelihood of Mr. X being enlarged on bail in the first three illustrations is far greater than in the fourth illustration, dependant only upon the circumstance that Mr. X is being prosecuted for a Schedule A offence which has imprisonment for over 3 years, a circumstance which has no nexus with the grant of bail for the offence of money laundering. The mere circumstance that the offence of money laundering is being tried with the Schedule A offence without more cannot naturally lead to the grant or denial of bail (by applying Section 45(1)) for the offence of money laundering and the predicate offence.

27. Again, it is quite possible that the person prosecuted for the scheduled offence is different from the person prosecuted for the offence under the 2002 Act. Mr. X may be a person who is liable to be prosecuted for an offence, which is contained in Part A of the Schedule. In perpetrating this offence under Part A of the Schedule, Mr. X may have been paid a certain amount of money. This money is ultimately traced to Mr. Y, who is charged with the same offence under Part A of the Schedule and is also charged with possession of the proceeds of crime, 53 which he now projects as being untainted.

Mr. X applies for bail to the Special Court/High Court. Despite the fact that Mr. X is not involved in the money laundering offence, but only in the scheduled offence, by virtue of the fact that the two sets of offences are being tried together, Mr. X would be denied bail because the money laundering offence is being tried along with the scheduled offence, for which Mr. Y alone is being prosecuted. This illustration would show that a person who may have nothing to do with the offence of money laundering may yet be denied bail, because of the twin conditions that have to be satisfied under Section 45(1) of the 2002 Act. Also, Mr. A may well be prosecuted for an offence which falls within Part A of the Schedule, but which does not involve money laundering.

Such offences would be liable to be tried under the Code of Criminal Procedure, and despite the fact that it may be the very same Part A scheduled offence given in the illustration above, the fact that no prosecution for money laundering along with the said offence is launched, would enable Mr. A to get bail without the rigorous conditions contained in Section 45 of the 2002 Act.

All these examples show that manifestly arbitrary, 54 discriminatory and unjust results would arise on the application or non application of Section 45, and would directly violate Articles 14 and 21, inasmuch as the procedure for bail would become harsh, burdensome, wrongful and discriminatory depending upon whether a person is being tried for an offence which also happens to be an offence under Part A of the Schedule, or an offence under Part A of the Schedule together with an offence under the 2002 Act.

Obviously, the grant of bail would depend upon a circumstance which has nothing to do with the offence of money laundering. On this ground alone, Section 45 would have to be struck down as being manifestly arbitrary and providing a procedure which is not fair or just and would, thus, violate both Articles 14 and 21 of the Constitution.

28. Another interesting feature of Section 45 is that the twin conditions that need to be satisfied under the said Section are that there are reasonable grounds for believing that the accused is not guilty of “such offence” and that he is not likely to commit any offence while on bail. The expression “such offence” would be relatable only to an offence in Part A of the Schedule. Thus, in an application made for bail, where the 55 offence of money laundering is involved, if Section 45 is to be applied, the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of the offence under Part A of the Schedule, which is not the offence of money laundering, but which is a completely different offence.

In every other Act, where these twin conditions are laid down, be it the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985, the reasonable grounds for believing that the accused is not guilty of an offence is in relation to an offence under the very Act in which such section occurs. (See for example, Section 20(8) of TADA and Section 37 of the NDPS Act). It is only in the 2002 Act that the twin conditions laid down do not relate to an offence under the 2002 Act at all, but only to a separate and distinct offence found under Part A of the Schedule.

Obviously, the twin conditions laid down in Section 45 would have no nexus whatsoever with a bail application which concerns itself with the offence of money laundering, for if Section 45 is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. Bail would be denied on grounds germane to the scheduled or predicate offence, whereas the person prosecuted would ultimately be punished for a completely different offence – namely, money laundering.

This, again, is laying down of a condition which has no nexus with the offence of money laundering at all, and a person who may prove that there are reasonable grounds for believing that he is not guilty of the offence of money laundering may yet be denied bail, because he is unable to prove that there are reasonable grounds for believing that he is not guilty of the scheduled or predicate offence. This would again lead to a manifestly arbitrary, discriminatory and unjust result which would invalidate the Section.

29. It is important to notice that Section 45 classifies the predicate offence under Part A of the Schedule on the basis of sentencing. The learned Attorney General referred to a number of judgments in which classification on this basis has been upheld. It is unnecessary to refer to these judgments inasmuch as the classification of three years or more of offences 57 contained in Part A of the Schedule must have a reasonable relation to the object sought to be achieved under the 2002 Act. As has already been pointed out, the 2002 Act was enacted so that property involved in money laundering may be attached and brought back into the economy, as also that persons guilty of the offence of money laundering must be brought to book.

It is interesting to note that even in the recent 2015 amendment, the Legislature has used the value involved in the offence contained in Part B of the Schedule as a basis for classification. If, for example, the basis for classification of offences referred to and related to offences under the 2002 Act with a monetary limit beyond which such offences would be made out, such classification would obviously have a rational relation to the object sought to be achieved by the Act i.e. to attach properties and the money involved in money laundering and to bring persons involved in the offence of money laundering to book. On the other hand, it is clear that the term of imprisonment of more than 3 years for a scheduled or predicate offence would be a manifestly arbitrary and unjust classification, having no rational relation to the object sought to be achieved by an Act dealing with money laundering. Again a few illustrations would suffice to prove the point.

30. An extremely heinous offence, such as murder, punishable with death or life imprisonment, which is now contained in Part A of the Schedule may yield only Rs.5,000/- as proceeds of crime. On the other hand, an offence relating to a false declaration under Section 132 of the Customs Act, punishable with a sentence of upto 2 years, which is an offence under Part B of the Schedule, may lead to proceeds of crime in crores of rupees. In short, a classification based on sentence of imprisonment of more than three years of an offence contained in Part A of the Schedule, which is a predicate offence, would have no rational relation to the object of attaching and bringing back into the economy large amounts by way of proceeds of crime.

When it comes to Section 45, it is clear that a classification based on sentencing qua a scheduled offence would have no rational relation with the grant of bail for the offence of money laundering, as has been shown in the preceding paragraphs of this judgment. Even in the judgments citied by the learned Attorney General, it is clear that a 59 classification is justified only if it is not manifestly arbitrary. For example, in Special Courts Bill, 1978, In re, (1979) 1 SCC 380, a judgment cited by the learned Attorney General, proposition 9 contained at page 425 states: “If the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject-matter of legislation in accordance with the objective indicated in the statute.

If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the Legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.” It is clear from a reading of this judgment that offences based on sentencing of the scheduled offence would have no rational relation to the object of the 2002 Act and to the granting of bail for offences committed under the Act, and, therefore, have to be annulled on the basis of the equal protection clause.

31. When we go to Part A of the Schedule as it now exists, it is clear that there are many sections under the Indian Penal Code punishable with life imprisonment which are not included in Part A of the Schedule, and which may yet lead to proceeds of crime. For example, Sections 232 and 238 of the Indian Penal Code, which deal with counterfeiting of Indian coin and import or export of counterfeited Indian coin, are punishable with life imprisonment. These sections are not included in Part A of the Schedule, and a person who may counterfeit Indian coin is liable to be tried under the Code of Criminal Procedure with conditions as to bail under Section 439 being imposed by the High Court or the Sessions Court. As against this, a person who counterfeits Government stamps under Section 255 is roped into Part A of the Schedule, which is also punishable with life imprisonment.

If such person is to apply for bail, the twin conditions contained in Section 45 would apply to him. Similar is the case with offences where a punishment of maximum of 10 years is given. Section 240 dealing with delivery of Indian coin possessed with knowledge that it is counterfeit; Section 251 dealing with delivery of Indian coin 61 possessed with knowledge that it is altered; Sections 372 and 373 which deal with the selling and buying of minors for the purpose of prostitution, are all offences which are outside Part A of the Schedule and are punishable with the maximum of 10 years sentence.

Each of these offences may involve money laundering, but not being in Part A of the Schedule, a person prosecuted for these offences would be able to obtain bail under Section 439 of the Code of Criminal Procedure, without any further conditions attached. On the other hand, if a person is charged with extortion under Sections 386 or 388, (such sections being included in Part A of the Schedule) and Section 4 of the 2002 Act, the person prosecuted under these sections would only be able to obtain bail after meeting the stringent conditions specified in Section 45. This is yet another circumstance which makes the application of Section 45 to the offence of money laundering and the predicate offence manifestly arbitrary.

32. When we come to paragraph 2 of Part A of the Schedule, this becomes even more apparent. Sections 19, 24, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 62 1985 are all sections which deal with narcotic drugs and psychotropic substances where a person is found with, what is defined as, “commercial quantity” of such substances. In each of these cases, under Section 37 of the NDPS Act, a person prosecuted for these offences has to meet the same twin conditions which are contained in Section 45 of the 2002 Act.

Inasmuch as these Sections attract the twin conditions under the NDPS Act in any case, it was wholly unnecessary to include them again in paragraph 2 of Part A of the Schedule, for when a person is prosecuted for an offence under Sections 19, 24, 27A or 29 of the NDPS Act, together with an offence under Section 4 of the 2002 Act, Section 37 of the NDPS Act would, in any case, be attracted when such person is seeking bail for offences committed under the 2002 Act and the NDPS Act.

33. Also, the classification contained within the NDPS Act is completely done away with. Unequals are dealt with as if they are now equals. The offences under the NDPS Act are classified on the basis of the quantity of narcotic drugs and psychotropic substances that the accused is found with, which are categorized as: (1) a small quantity, as defined; (2) a 63 quantity which is above small quantity, but below commercial quantity, as defined; and (3) above commercial quantity, as defined.

The sentences of these offences vary from 1 year for a person found with small quantity, to 10 years for a person found with something between small and commercial quantity, and a minimum of 10 years upto 20 years when a person is found with commercial quantity. The twin conditions specified in Section 37 of the NDPS Act get attracted when bail is asked for only insofar as persons who have commercial quantities with them are concerned.

A person found with a small quantity or with a quantity above small quantity, but below commercial quantity, punishable with a one year sentence or a 10 year sentence respectively, can apply for bail under Section 439 of the Code of Criminal Procedure without satisfying the same twin conditions as are contained in Section 45 of the 2002 Act, under Section 37 of the NDPS Act. By assimilating all these three contraventions and bracketing them together, the 2002 Act treats as equal offences which are treated as unequal by the NDPS Act itself, when it comes to imposition of the further twin conditions for grant of bail. This is yet another manifestly  arbitrary and discriminatory feature of the application of Section 45.

34. A reference to paragraph 23 of Part A of the Schedule would also show how Section 45 can be used for an offence under the Biological Diversity Act, 2002. If a person covered under the Act obtains, without the previous approval of the National Biodiversity Authority, any biological resources occurring in India for research or for commercial utilization, he is liable to be punished for imprisonment for a term which may extend to 5 years under Section 55 of the Act. A breach of this provision, when combined with an offence under Section 4 of the 2002 Act, would lead to bail being obtained only if the twin conditions in Section 45 of the 2002 Act are satisfied.

By no stretch of imagination can this kind of an offence be considered as so serious as to lead to the twin conditions in Section 45 having to be satisfied before grant of bail, even assuming that classification on the basis of sentence has a rational relation to the grant of bail after complying with Section 45 of the 2002 Act.

35. Another conundrum that arises is that, unlike the Terrorist and Disruptive Activities (Prevention) Act, 1987, there is no provision in the 2002 Act which excludes grant of anticipatory bail. Anticipatory bail can be granted in circumstances set out in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 (See paragraphs 109, 112 and 117). Thus, anticipatory bail may be granted to a person who is prosecuted for the offence of money laundering together with an offence under Part A of the Schedule, which may last throughout the trial. Obviously for grant of such bail, Section 45 does not need to be satisfied, as only a person arrested under Section 19 of the Act can only be released on bail after satisfying the conditions of Section 45. But insofar as pre-arrest bail is concerned, Section 45 does not apply on its own terms.

This, again, would lead to an extremely anomalous situation. If prearrest bail is granted to Mr. X, which enures throughout the trial, for an offence under Part A of the Schedule and Section 4 of the 2002 Act, such person will be out on bail without his having satisfied the twin conditions of Section 45. However, if in an identical situation, Mr. Y is prosecuted for the same offences, 66 but happens to be arrested, and then applies for bail, the twin conditions of Section 45 will have first to be met. This again leads to an extremely anomalous situation showing that Section 45 leads to manifestly arbitrary and unjust results and would, therefore, violate Articles 14 and 21 of the Constitution.

36. However, the learned Attorney General has argued before us that we must uphold Section 45 as it is part of a complete code under the 2002 Act. According to him, Section 45, when read with Sections 3 and 4, would necessarily lead to the conclusion that the source of the proceeds of crime, being the scheduled offence, and the money laundering offence, would have to be tried together, and the nexus that is provided is because the source of money laundering being as important as money laundering itself, conditions under Section 45 would have to be applied. We are afraid that, for all the reasons given by us earlier in this judgment, we are unable to agree.

The learned Attorney General asked us to read down Section 45 in that when the Court is satisfied that there are reasonable grounds for believing that a person is not guilty of an offence, it only meant that the Court must prima facie come to such a 67 conclusion. Secondly, the fact that he is not likely to commit “any offence” while on bail would only be restricted to any offence of a like nature. Again, we are afraid that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination, as has been pointed out by us hereinabove.

Also, we cannot agree with the learned Attorney General that Section 45 imposes two conditions which are akin to conditions that are specified for grant of ordinary bail. For this purpose, he referred us to Amarmani Tripathi (supra) at para 18, in which it was stated that, for grant of bail, the Court has to see whether there is prima facie or reasonable ground to believe that the accused has committed the offence, and the likelihood of that offence being repeated has also be seen.

It is obvious that the twin conditions set down in Section 45 are a much higher threshold bar than any of the conditions laid down in paragraph 18 of the aforesaid judgment. In fact, the presumption of innocence, which is attached to any person being prosecuted of an offence, is inverted by the conditions specified in Section 45, whereas for grant of ordinary bail the presumption of innocence attaches, after which the various 68 factors set out in paragraph 18 of the judgment are to be looked at. Under Section 45, the Court must be satisfied that there are reasonable grounds to believe that the person is not guilty of such offence and that he is not likely to commit any offence while on bail.

37. In United States v. Anthony Salerno & Vincent Cafaro 481 US 739 (1987), a provision of the Bail Reform Act of 1984, which allowed a Federal Court to permit pre-trial detention on the ground that the person arrested is likely to commit future crimes, had been declared unconstitutional as offending substantive due process by the United States Court of Appeals for the Second Circuit. A majority of the US Supreme Court reversed this judgment with reference to both substantive due process and to the 8th amendment to the US Constitution. The majority judgment concluded:

“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception. We hold that the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully limited exception. The Act authorizes the detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel. The numerous procedural safeguards detailed above must attend this adversary hearing. We are unwilling to say that this congressional determination, based as it is upon that primary concern of every government-a concern for the safety and indeed the lives of its citizens-on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment.”

In a sharply worded minority judgment of Justice Marshall, with whom Justice Brennan agreed, the minority held that the Bail Reform Act, which permitted pre-trial detention on the ground that the person arrested is likely to commit future crimes would violate substantive due process and the 8th amendment to the US Constitution. This it did with reference to an earlier judgment, namely, Stack v. Boyle, 342 US 1, where Chief Justice Vinson stated that unless pre-trial bail is preserved, the presumption of innocence secured only after centuries of struggle would lose its meaning. The dissenting judgment concluded:

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the 70 values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves.” Justice Stevens also dissented, agreeing with Justice Marshall’s analysis.

38. We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling State interest for tackling serious crime. Absent any such compelling State interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a compelling State interest in tackling crimes of an extremely heinous nature.

39. The judgment in Kartar Singh v. State of Punjab, (1994) 3 SCC 569 at 707 is an instance of a similar provision that was upheld only because it was necessary for the State to deal with terrorist activities which are a greater menace to modern society than any other. It needs only to be mentioned that, unlike Section 45 of the present Act, Section 20(8) of TADA, which speaks of the same twin conditions to be applied to offences under TADA, would pass constitutional muster for the reasons stated in the aforesaid judgment. Ultimately, in paragraph 349 of the judgment, this Court upheld Section 20(8) of TADA in the following terms:

“349. The conditions imposed under Section 20(8)(b), as rightly pointed out by the Additional Solicitor General, are in consonance with the conditions prescribed under clauses (i) and (ii) of sub-section (1) of Section 437 and clause (b) of sub-section (3) of that section. Similar to the conditions in clause (b) of sub-section (8), there are provisions in various other enactments – such as Section 35(1) of Foreign Exchange Regulation Act and Section 104(1) of the Customs Act to the effect that any authorised or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under the respective Acts, may arrest such person.

Therefore, the condition that “there are grounds for believing that he is not guilty of an offence”, which 72 condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution.” It is clear that this Court upheld such a condition only because the offence under TADA was a most heinous offence in which the vice of terrorism is sought to be tackled. Given the heinous nature of the offence which is punishable by death or life imprisonment, and given the fact that the Special Court in that case was a Magistrate and not a Sessions Court, unlike the present case, Section 20(8) of TADA was upheld as being in consonance with conditions prescribed under Section 437 of the Code of Criminal Procedure.

In the present case, it is Section 439 and not Section 437 of the Code of Criminal Procedure that applies. Also, the offence that is spoken of in Section 20(8) is an offence under TADA itself and not an offence under some other Act. For all these reasons, the judgment in Kartar Singh (supra) cannot apply to Section 45 of the present Act. 40. A similar provision in the Maharashtra Control of Organised Crime Act, 1999, also dealing with the great menace of organized crime to society, was upheld somewhat grudgingly by this Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr, (2005) 5 SCC 294 at 317, 318-319 as follows:

“38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity.

What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done.

The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.” The Court then went on to say:

“44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably.

It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.”

41. The learned Attorney General relied heavily on Section 24 of the 2002 Act to show that the burden of proof in any proceeding relating to proceeds of crime is upon the person 75 charged with the offence of money laundering, and in the case of any other person i.e. a person not charged with such offence, the Court may presume that such proceeds are involved in money laundering. Section 45 of the Act only speaks of the scheduled offence in Part A of the Schedule, whereas Section 24 speaks of the offence of money laundering, and raises a presumption against the person prosecuted for the crime of money laundering. This presumption has no application to the scheduled offence mentioned in Section 45, and cannot, therefore, advance the case of the Union of India.

42. The learned Attorney General then relied strongly on Gautam Kundu (supra) and Rohit Tandon (supra). Gautam Kundu (supra) is a judgment relating to an offence under the SEBI Act, which is a scheduled offence, which was followed in Rohit Tandon (supra). In Rohit Tandon (supra), Khanwilkar, J., speaking for the Bench, makes it clear that the judgment does not deal with the constitutional validity of Section 45 of the 2002 Act. Both these judgments proceed on the footing that Section 45 is constitutionally valid and then go on to apply Section 45 on the facts of those cases.

These judgments, therefore, are not of much assistance when it comes to the constitutional validity of Section 45 being challenged. 43. Shri Rohatgi’s alternate argument, namely, that if Section 45 were not to be struck down, the 2012 Amendment Act should be read down in the manner indicated in Gorav Kathuria v. Union of India and Ors., 2017 (348) ELT 24 (P & H) and having been expressly approved by this Court, must apply to the facts of these cases.

44. In Gorav Kathuria (supra), the 2012 Amendment Act was read down having regard to the object sought to be achieved by the amendment, namely, that Part B of the Schedule is being made Part A of the Schedule, so that the provision of a monetary threshold limit does not apply to the offences contained therein. The High Court concluded: “12.20 Guided by the aforesaid principles laid down by the Hon’ble Supreme Court regarding statutory interpretation and the duty of the Court to secure the ends of justice, we have no hesitation in holding that in 2013, Part B of the Schedule was omitted and the Scheduled Offences falling thereunder were incorporated in Part A with the sole object to overcome the monetary threshold limit of Rs. 30 lakhs for invocation of PMLA in respect of the laundering of proceeds of crime involved in those offences.

No substantive amendment was proposed with express intention to apply limitations on grant of bail as contained in Section 45(1) in respect of persons accused of such offences which were earlier listed in Part B. Therefore, twin limitations in grant of bail contained in Section 45(1) as it stands today, are not applicable qua a person accused of such offences which were earlier listed in Part B.” The matter came to this Court by a certificate of fitness granted by the High Court. Sikri, J and Ramana, J., by their order dated 12th August, 2016, stated:

“Though the High Court has granted certificate to appeal, we have heard the learned counsel for some time and are of the opinion that the impugned judgment of the High Court is correct. This appeal is, accordingly, dismissed.” The complaint of the learned Attorney General is that this was done at the very threshold without hearing the Union of India. Be that as it may, we are of the opinion that, even though the Punjab High Court judgment appears to be correct, it is unnecessary for us to go into this aspect any further, in view of the fact that we have struck down Section 45 of the 2002 Act as a whole.

45. Regard being had to the above, we declare Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matters before us in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail. All such orders are set aside, and the cases remanded to the respective Courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act. Considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. The writ petitions and the appeals are disposed of accordingly.

Principles for considering application for the Cancellation of Bail

sc

 In ‘Kamar Singh Meena vs. State of Rajasthan’, reported in (2012) 12 SCC 180, it was observed that:

“wherein it was observed that while cancelling bail under Section 439(2) of Cr.P.C., the primary considerations which weigh with the Court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant materials indicting prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the Court from cancelling the bail.”

7. In Onkar Gulati vs. State & Anr. reported in 71 (1998) DLT 463 in which the Apex Court observed as under:-

“6. It is a well established principle of law that it is easier to grant bail in a non bailable case. However, once a bail is granted it cannot be cancelled merely on a request from the side of the complainant unless and until the complainant shows that the same is being misused and it is no longer conducive in the interest of justice to allow him any further to remain on bail. Once a man has been set at liberty through an order of a Court he cannot be deprived of the same unless the complainant makes out a case for cancellation of the same. There is a consensus amongst different High Courts and the Hon’ble Supreme Court on this points that a bail once granted can be cancelled only in those discerning few cases where it is shown that a person to whom the concession of bail has been granted is misusing the same by subverting the course of justice i.e. efforts are being made to suborn the witnesses, threats are being extended to the witnesses and they are being intimidated not to appear against the accused persons and in case they do so they will have to bear dire consequences. The bail can also be cancelled in case the accused on bail fails to appear before the court at the time of the trial and thus there is an abuse of the process of the court.”

Rohit Tandon Vs. The Enforcement Directorate [SC 2017 NOV]

KEYWORDS: BAIL DENIED-MONEY LAUNDERING

Capture

The fact that the investigation in the predicate offence instituted in terms of FIR No.205/2016 or that the investigation qua the appellant in the complaint CC No.700/2017 is completed; and that the proceeds of crime is already in possession of the investigating agency and  provisional attachment order in relation thereto passed on 13th February, 2017 has been confirmed; or that chargesheet has been filed in FIR No.205/2016 against the appellant without his arrest; that the appellant has been lodged in judicial custody since 2nd January, 2017 and has not been interrogated or examined by the Enforcement Directorate thereafter; all these will be of no consequence.

  • The grant or denial of bail is regulated to a large extent by the facts and circumstances of each case

ACTS : Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 -bail application under Section 439 of the Cr.P.C.

DATES:10th November, 2017

BENCH: CJI. (Dipak Misra) (A.M. Khanwilkar) (D.Y. Chandrachud)

HISTORY: The appellant first approached the Additional Sessions Judge, South East Saket Court, New Delhi for releasing him on bail by way of an application under Section 439 of the Code of Criminal Procedure, 1973 read with Section 45 of the Act of 2002. The said bail application came to be rejected vide judgment dated 7th January, 2017 by the said Court. The appellant thereafter approached the High Court of Delhi at New Delhi by way of Bail Application No.119 of 2017 and an interlocutory application filed therein, being Criminal M.B. No.121 of 2017. The High Court independently considered the merits of the arguments but eventually rejected the prayer for bail vide impugned judgment dated 5th May, 2017.


 

SUPREME COURT OF INDIA

Rohit Tandon Vs. The Enforcement Directorate

[Criminal Appeal Nos.1878-1879 of 2017 arising out of SLP (CRL.) No. 6896-6897 of 2017]

A.M. Khanwilkar, J.

1. By these appeals the order of the High Court of Delhi at New Delhi dated 5th May, 2017, rejecting the Bail Application No.119 of 2017 and Criminal M.B. No.121 of 2017 has been assailed. The appellant was arrested on 28th December, 2016 in connection with ECIR/18/DZII/ 2016/AD(RV) registered under Sections 3 & 4 of the Prevention of Money Laundering Act, 2 2002 (hereinafter referred to as “the Act of 2002”). The said ECIR was registered on 26th December, 2016 as a sequel to FIR No.205/2016 dated 25th December, 2016 in relation to the offences punishable under Sections 420, 406, 409, 468, 471, 188 and 120B of the Indian Penal Code, 1860 (“IPC” for short). The said FIR was registered by the Crime Branch of Delhi Police, New Delhi. The ECIR, however, has been registered at the instance of Assistant Director (PMLA), Directorate of Enforcement, empowered to investigate the offences punishable under the Act of 2002.

2. The appellant first approached the Additional Sessions Judge, South East Saket Court, New Delhi for releasing him on bail by way of an application under Section 439 of the Code of Criminal Procedure, 1973 read with Section 45 of the Act of 2002. The said bail application came to be rejected vide judgment dated 7th January, 2017 by the said Court. The appellant thereafter approached the High Court of Delhi at New Delhi by way of Bail Application No.119 of 2017 and an interlocutory application filed therein, being Criminal M.B. No.121 of 2017. The High Court independently considered the merits of the arguments but eventually rejected the prayer for bail vide impugned judgment dated 5th May, 2017.

3. The ECIR has been registered against Ashish Kumar, Raj Kumar Goel and other unknown persons for offences punishable under Sections 3/4 of the Act of 2002 on the basis of information/material, as evident from the predicate offence registered by P.S. Crime Branch, Delhi against the named accused and unknown accused for offences punishable under Sections 420, 406, 409, 467, 468, 471, 188 and 120B of IPC, being FIR No.205/2016 dated 25th December, 2016. The relevant facts noted in the ECIR read thus:

“A. It is reported that during the course of investigation of Case FIR No.242/16 u/s 420, 467,468,471, 120B IPC, PS C.R. Park, Delhi, it is revealed that Accused Raj Kumar Goel along with associates are engaged into earning profits by routing money into various accounts by using forged documents and thereby receiving commission from the prospective clients who either need money by cheque or in cash. In order to obtain large profits, accused Raj Kumar Goel and few of his associates have opened many Bank Accounts in Kotak Mahindra and ICICI Bank at Naya Bazar, Chandni Chowk, Delhi.

B. On 08.11.2016, the Government if India announced demonetization of one thousand( 1000) and five hundred (500) rupee notes. On this accused Raj Kumar Goel conspired with the bank manager of Kotak Mahindra Bank, Cannaught Place, namely Ashish Kumar r/o A701, Bestech Park, Sector 61, Gurugram, Haryana and one Chartered Accountant, name unknown, having mobile number 9711329619 to earn huge profit by converting black money in the form of old currency 4 notes into new currency notes. In this conspiracy, the said CA acted as a mediator and arranged prospective clients who intended to convert their black money into legitimate money. For the same, alleged CA offered 2% commission to the other accused persons on all such transactions.

C. The accused were having bank accounts in the Naya Bazar branch of Kotak Mahindra Bank but the CA and Bank Manager Ashish asked accused Raj Kumar to deposit old currency notes in Cannaught Place branch of Kotak Mahindra Bank. It is also revealed that the accused opened bank accounts in the name of Quality Trading Company, Swati Trading Company, Shree Ganesh Enterprises, R.K. International, Mahalxmi Industires, Virgo International and Sapna International on the basis of forged/false documents and deposited approx. Rs.25 Crore after the demonetization.

As per the preliminary investigation of the said case it is transpired that accused Raj Kumar Goel, Bank Manager Ashish, CA along with their associates are involved in a deep roted conspiracy and were indulged in converting old currency which were entrusted to bank/Govt officials and were supposed to be delivered to general public/guidelines issued by the Reserve Bank of India/Ministry of Finance and hand thus cheated the public at large. The accused persons have also caused monetary loss to the Govt. of India and thereby Committed offences u/s 420, 406, 409, 467, 468, 471, 188, 120B IPC.”

It is then noted that the offences under Sections 420, 468, 471 and 120B of IPC are scheduled offences under the Act of 2002 and that from the available facts, a reasonable inference is drawn that the named accused and unknown accused have made illegal earnings arising out of the said criminal conspiracy which might have undergone the process of laundering and thereby an offence under Section 3 of the Act of 2002 was made out. It is noted that prima facie case for 5 commission of offence under Section 3 punishable under Section 4 of the Act of 2002 was made out and accordingly the case is being registered and taken up for investigation under the Act of 2002 and rules framed thereunder.

4. The learned Sessions Judge while considering the bail application adverted to the relevant materials including the CDR analysis of Mobile number of Ashish Kumar, Branch Manager, Kotak Mahindra Bank, K.G. Marg Branch, Kamal Jain, CA of Rohit Tandon (hereinafter referred to as “appellant”), Dinesh Bhola, Raj Kumar Goel; the statements of Kamal Jain, Dinesh Bhola and Ashish Kumar, recorded under Section 50 of the Act of 2002; and analysis of bank statements of stated companies. All these reveal that Ashish Kumar conspired with other persons to get deposited Rs.38.53 Crore in cash of demonetized currency into bank accounts of companies and got demand drafts issued in fictitious names with intention of getting them cancelled and thereby converting the demonetized currency into monetized currency on commission basis.

Further, the investigation also revealed that the entire cash was collected on the instructions of the appellant herein, by Ashish Kumar, Raj Kumar Goel and others through Dinesh Bhola, an employee of the appellant. According to the prosecution, all the associates of the appellant acted on instructions of the appellant for getting issued the demand drafts against cash deposit with the help of Ashish Kumar, Branch Manager of Kotak Mahindra Bank and others, to the tune of Rs.34.93 Crore from Kotak Mahindra Bank, K.G. Marg Branch. It was also noted that the demand drafts of Rs.3.60 Crore were issued in fictitious names on the instructions of Bank Manager Ashish Kumar in lieu of commission received by him in old cash currency.

The demand drafts amounting to Rs.38 Crore were issued in favour of Dinesh Kumar and Sunil Kumar which were recovered from the custody of Kamal Jain who had kept the same on the instructions of the appellant. Out of the said amount, the demand drafts of other banks, apart from Kotak Mahindra Bank Limited, were also recovered. The prosecution suspected that there could be other dubious transactions made by the appellant in other banks and that Ashish Kumar, Bank Manager and others were acting on the instructions of the appellant for executing the crime.

5. The Sessions Court rejected the argument of the appellant that the investigation of the offence registered against the appellant and others under Section 3/4 of the Act of 2002 being a sequel to the FIR registered by the Crime Branch of Delhi Police, it cannot be investigated by the Enforcement Directorate. For, the Enforcement Directorate was not concerned with the outcome of the investigation of the predicate offence registered by the Delhi Police. It thus opined that the matter on hand must be examined only in reference to the registration of ECIR by the Enforcement Directorate. The fact that the investigation in FIR registered by the Crime Branch of Delhi Police, bearing FIR No.205/2016, had not commenced will also be of no avail to the appellant.

The Sessions Court also found that as per Section 19 of the Act of 2002, the only condition to be satisfied for arrest of a person is the reasonable belief of the authority gathered on the basis of material in its possession. Further, in the present case, the accused was arrested by the competent authority on the basis of material in his possession giving rise to a reasonable belief about the complicity of the accused in the commission of 8 offence punishable under the Act of 2002. As such the arrest of the appellant under the Act of 2002 cannot be termed as illegal. After having dealt with those contentions, the Sessions Court took note of the material pressed into service by the prosecution and analysed the same in the following words:

“21. Pursuant to registration of FIR No.205/2016 under section 420, 406, 409, 468, 471, 188, 120B IPC by Crime Branch, the matter was taken up by ED and ECIR No.18/16 was opened for investigation. Transaction statements of accounts in Kotak Mahindra Bank in FIR No.205/16 in respect of companies i.e. Delhi Training Company, Kwality Tading Company, Mahalaxmi Industries, R.K. International, Sapna Trading Company, Shree Ganesh Enterprises, Swastik Trading Company arid Virgo International were sought and scrutinized, Huge cash deposits in the said accounts were identified during November, 2016, post demonetization announcement it was found that demand drafts were issued in fictitious names like Dinesh Kumar, Sunil Kumar, Abhilasha Dubey, Madan Kumar, Madan Saini, Satya Narain Dagdi and Seema Bai.

22. Statement of Ashish Kumar, accused named in FIR No.205/16, Branch Manager, Kotak Mahindra Bank, K.G. Marg branch was recorded under section 50 of PMLA which revealed that Kamal Jain, CA of accused Rohit Tandon contacted him to get the demonetized currency on behalf of accused/applicant, converted into monetized currency on commission basis.

The commission of Ashish Kumar was decided @ 35%, who in turn contacted one Yogesh Mittal and Rajesh Kumar Goel, accused in FIR No.205/16 to carry out the criminal design of getting the demonetized cash converted into monetized valuable form. Demonetized currency was deposited in different accounts of companies pertaining to Raj Kumar Goel besides others through Raj Kumar Goel with the help of Ashish Kumar in different bank accounts of Kotak Mahindra Bank and DDs were issued in fictitious names.

The illegal conversion of demonetized currency, getting the same deposited and issuance of demand drafts is corroborated through CDR  analysis of relevant persons for the relevant period. Dinesh Bhola and Kamal Jain, in their statements recorded under section 50 of PMLA have also confirmed and reiterated the facts as stated by Ashish Kumar, the Branch Manager. The statements of persons recorded under section 50 of PMLA, which has evidentiary value under section 50(4) of PMLA, have confirmed that the old demonetized currency pertains to accused Rohit Tandon and the conspiracy was executed on his instructions.

23. Lastly, it was submitted by learned senior counsel for accused that accused fully cooperated with the investigating agency and there was no need to arrest him in this case. He further submitted that the actions of Accused persons as mentioned in the FIR attract implications and as such the correct authority to investigate into the same is the Income Tax Department and not the ED. Per contra, learned Special Prosecutor for ED submitted that accused only cooperated in the investigation in ECIR No.14/16 and not in ECIR No. 18/16. He further submitted that as sufficient material surfaced on record against the present accused and he did not cooperate in the investigation in the present case, therefore, accused Rohit Tandon was arrested in this case. He submitted that he does not dispute the jurisdiction of Income Tax Department so far as other aspects of the matter are concerned.

24. As per section 45 of PMLA, while considering grant of bail to accused, the court has to satisfy that:i. There are reasonable grounds for believing that accused is not guilty of such offence and that ii. He is not likely to commit any offence, while on bail.

25. In the present case, accused has failed to satisfy this court that he is not guilty of alleged offence punishable under section 3 of PMLA. He has not been able to discharge the burden as contemplated under section 24 of the Act.

26. Accused is alleged to have been found involved in a white collar crime. The alleged offence was committed by accused in conspiracy with other coaccused persons in a well planned and thoughtful manner. It has been observed in a catena of decisions by Hon’ble Superior Courts that economic 10 offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public, funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.”

(emphasis supplied)

6. Having formed that opinion and noticing that the investigation was at the initial and crucial stage and that the source of funds of proceeds of crime was yet to be ascertained till then and that the recovery of balance proceeds of crime was in the process, the question of enlarging the appellant on bail does not arise, more so, when there was every possibility that he may tamper with the evidence and influence the material prosecution witnesses. Accordingly, the bail application was rejected by the Sessions Court vide judgment and order dated 7th January, 2017.

7. Aggrieved, the appellant approached the High Court of Delhi by way of bail application under Section 439 of the Cr.P.C. read with Section 45 of the Act of 2002. The High Court independently analysed all the contentions raised by the appellant and after adverting to the relevant materials, rejected the application for grant of bail preferred by the appellant. The High Court found that the Act of 2002 does not prescribe that the Enforcement Directorate is debarred from conducting investigation in relation to the offences under Sections 3 & 4 of the Act of 2002 unless the Crime Branch concludes its investigation in relation to FIR No.205/2016 or was to file chargesheet for commission of scheduled offence.

Further, the proceedings under the Act of 2002 are distinct from the proceedings relating to scheduled offence and both the investigations can continue independently. The High Court then noted that Section 44 of the Act of 2002 is an enabling provision, to have a joint trial in such a situation to avoid conflicting and multiple opinions of the Courts. But proceeded to hold that the said possibility would arise only when the chargesheet is filed after completion of investigation in relation to FIR No.205/2016 and the case is committed to the concerned Court.

The High Court held that Section 44 of the Act of 2002 does not envisage a joint investigation but is a provision stipulating that the trial of offence under Section 3/4 of the Act of 2002 and any scheduled offence connected to the offence under that section may be tried only by the Special Court constituted for the area in which the offence has been committed. While considering the merits of the allegations against the appellant, in particular, the materials on record, the High Court analysed the same in the following words:

“14. In FIR No.205/2016 allegations are that Raj Kumar Goel; Ashish Kumar, Bank Manager, Kotak Mahindra Bank, K.G.Marg Branch and others conspired for illegal conversion of demonetized currency notes into monetized currency by way of depositing cash in various accounts of the firms and subsequently getting Demand Drafts issued in fictitious names.

It is further alleged in the said FIR that accused therein opened bank accounts in the name of ‘Group of Companies’ in Kotak Mahindra Bank. In ECIR No.18, transactions statements of accounts were collected pertaining to these ‘Group of Companies’ from Kotak Mahindra Bank and it emerged that from 15.11.2016 to 19.11.2016, there was huge cash deposit to the tune of `31.75 crores by Raj Kumar Goel and his associates. It was also found that the Demand Drafts amounting to `38 crores were issued in fictitious names during that period. It cannot be said at this stage that offences referred in FIR No.205/2016 and the ECIR No.18 have no nexus.

15. Prosecution under Section 45 of PMLA for commission of offence under Section 3 punishable under Section 4 of PMLA has already been initiated by ED in the Special Court. By an order dated 25.02.2017, learned Addl. Sessions Judge / Special Court (PMLA) has taken cognizance against Rohit Tandon (present petitioner), Ashish Kumar and Raj Kumar Goel. Dinesh Bhola and Kamal Jain have also been summoned to face trial under Section 4 of PMLA. Raj Kumar Goel and Ashish Kumar continue to be in custody in the said proceedings.

16. On perusal of the complaint lodged under Section 45 PMLA, it reveals that serious and grave allegations have been leveled against the petitioner and others. The allegations are categorical and specific; definite role has been assigned to each accused. It is alleged that during the period from 15.11.2016 to 19.11.2016, huge cash to the tune of `31.75 crores was deposited in eight bank accounts in Kotak 13 Mahindra Bank in the accounts of the ‘Group of Companies’. It gives details of Demand Drafts issued during 15.11.2016 to 19.11.2016 from eight bank accounts in the name of Sunil Kumar, Dinesh Kumar, Abhilasha Dubey, Madan Kumar, Madan Saini, Satya Narain Dagdi and Seema Bai on various dates. Most of the Demand Drafts issued have since been recovered. Its detail finds mention in Table No.2 given in the complaint.

17. During arguments, specific query was raised and the learned Senior Counsel for the petitioner was asked as to, to whom the money deposited in the various accounts belonged. Learned Senior Counsel for the petitioner was fair enough to admit that the whole money belonged to the petitioner. When enquired as to from which ‘source’, huge cash was procured, there was no clear response to it. Again, learned Senior Counsel for the petitioner was asked as to how the cash belonging to the petitioner happened to be deposited in various accounts of the ‘Group of Companies’ which were not owned by the petitioner and what was its purpose.

It was further enquired as to why the Demand Drafts were got issued in the names of the persons referred above and what was its specific purpose. Learned Senior Counsel for the petitioner avoided to answer these queries stating that the defence of the petitioner could not be disclosed at this juncture to impact his case during trial. Apparently, no plausible explanation has been offered as to what forced the petitioner to deposit the old currency to the tune of `31.75 crores in eight accounts of the different ‘Group of Companies’ in Kotak Mahindra Bank during the short period from 15.11.2016 to 19.11.2016. There was no explanation as to why the Demand Drafts for the said amount were got issued in the name of sham people whose identity was not known.

The purpose of all this exercise seemingly was to deposit the cash (old currency) first, get the Demand Drafts issued in fictitious names and obtain monetized currency by cancelling them subsequently. The petitioner also did not place on record any document whatsoever to show as to from which legal source, the cash was procured to deposit in the bank accounts of strangers. I find no substance in the petitioner’s plea that petitioner’s only liability was to pay income tax on the unaccounted money / income. In my considered view, mere payment of tax on the unaccounted money from any ‘source’ whatever would not convert it into ‘legal’ money. Needless to say, huge deposit was a sinister attempt / strategy by the petitioner and others to convert the ‘old currency’ into new one to frustrate the Demonetization Policy primarily meant to unearth black money.

18. Allegations against the petitioner are not without substance. The prosecution has recorded statements of the petitioner on various dates and that of Dinesh Bhola, Ashish Kumar (Branch Manager, Kotak Mahindra Bank), Raj Kumar Goel, Kamal Jain (petitioner’s Chartered Accountant), Vimal Negi, Jivan Singh and Varun Tandon under Section 50 PMLA on various dates. There statements have evidentiary value under Section 50 PMLA. Prima facie, the version given by them is in consonance with the prosecution case. The prosecution has further relied upon Call Data Records, CCTV footage, Account Trend Analysis.”

(emphasis supplied)

8. The High Court opined that keeping in mind the rigors of Section 45 of the Act of 2002 for the release of the accused charged under Part A of the Schedule, on bail, coupled with the antecedents of the appellant of being involved in other similar crime registered as FIR No.197/2016, for offence under Section 420, 409, 188, 120B of IPC dated 14th December, 2016 by Crime Branch and ECIR No.14/DZ/II/2016 registered on 16th December, 2016 by Enforcement Directorate for offences under Sections 3/4 of the Act of 2002. Further, during a raid conducted jointly by the Crime Branch and Income Tax Department on 10th December, 2016 at around 10.00 P.M. at the office premises of the appellant, currency of Rs.13.62 Crore was recovered including new currency in the denomination of Rs.2000/amounting to Rs.2.62 Crore.

In addition, the appellant had surrendered Rs.128 Crore during the raid conducted by the Income Tax Department on 6/8 October, 2016 in his office and residential premises. No reliable and credible documents were forthcoming from the appellant about the source from where he had obtained such a huge quantity of cash. The possibility of the same being proceeds of crime cannot be ruled out. Hence, it noted that the question of granting bail did not arise, taking into consideration the serious allegations against the appellant and other facts including severity of the punishment prescribed by law. Accordingly, the bail application of the appellant came to be rejected. As a consequence, the pending application which was considered along with the bail application was also disposed of by the impugned judgment and order dated 5th May, 2017 passed by the High Court.

9. We have heard Mr. Mukul Rohatgi, learned senior counsel appearing for the appellant and Mr. Tushar Mehta, learned Additional Solicitor General for the Union of India. They have also filed written submissions.

10. Before we analyse the rival submissions, for the completion of record, we must mention that after the impugned judgment, the Crime Branch filed the chargesheet before the appropriate Court in relation to FIR No.205/2016 on 24th June, 2017. Similarly, the Enforcement Directorate has filed supplementary complaint CC No.700/2017 in relation to ECIR 18/2016, which refers to further material gathered during the investigation, indicating the complicity of the concerned accused in the crime for offence punishable under Section 3 of the Act of 2002. A comprehensive supplementary complaint has been filed before the District and Sessions Judge, Saket, New Delhi (Designated Court under the Prevention of MoneyLaundering Act, 2002) on 2nd August, 2017.

11. Before this supplementary complaint was filed, the appellant preferred second bail application in the present case 17 before the High Court of Delhi at New Delhi, being Bail Application No.1361/2017. This application was filed on 12th July, 2017. Along with the said bail application the appellant filed an application being Criminal M.A. No.1293 of 2017 for directing his interim release in connection with ECIR/DZ/II/2016 on the assertion that his mother was seriously ill and required immediate medical attention because of the injuries suffered by her on 20th June, 2017.

The said interim release application was allowed on 10th August, 2017. Notably, the appellant was advised to withdraw the regular (second) Bail Application No.1361/2017. The learned Single Judge of the High Court by order dated 10th August, 2017 acceded to the prayer so made by the appellant. The order passed by the learned Single Judge of the High Court reads thus: “BAIL APPLN. 1361/2017 The petitioner has prayed for bail in connection with ECIR/18/DZII/2016/AD registered under Section 3 & 4 of Prevention of Money Laundering Act, 2002.

Simultaneously an application has been filed seeking interim bail on the ground of illness of the mother of the petitioner who has recently suffered a fracture in the neck. Mr. Mukul Rohatgi, learned Sr. Advocate seeks permission to withdraw the regular bail application on 18 the observation of the bench that the earlier bail application was rejected only on 5th of May, 2017. However he presses the interim bail application. Accordingly the regular bail application is dismissed as withdrawn. Crl.M.A.No.1293/2017 (application for interim bail) It has been submitted on behalf of the petitioner that he is the only son of his mother who has suffered a fall and has got a fracture in her neck. The sister of the petitioner is stationed abroad. The petitioner has a son who is of young age.

The petitioner has also drawn the attention of this Court to the medical report which indicates that a plaster has been put on the fracture but she has been suffering from acute pain. It has been further submitted that the charge sheet in the main case has been submitted and that the petitioner has remained in jail for more than seven months by now.

Opposing the aforesaid prayer for grant of interim bail, Mr. Mahajan, learned Sr. Standing Counsel submits that this is a case of serious fiscal impropriety of great magnitude and there is a possibility of the petitioner tampering with evidence if he comes out from the jail even for a short period. No definite reasons, however, have been assigned by Mr.Mahajan, for such a presumption that the petitioner would tamper with the evidence specially when charge sheet in the main case has already been submitted. Mr.Rohtagi, learned senior counsel has drawn the attention of this Court to the fact that whenever the petitioner was summoned to answer to the Queries, he had visited the office of the ED and in the past, had never tried to evade the process of investigation.

Taking into account the aforesaid facts, specially the period of incarceration of the petitioner, submission of the charge sheet in the main case and the illness of the mother of the petitioner, this Court is inclined to grant interim bail to the petitioner for a period of 3 weeks. Let the petitioner be released on interim bail for the period of 3 weeks, to be counted from the date of his release, on his furnishing a bond in the sum of Rs. 25,000/with two sureties of the like amount to the satisfaction of special court. However it is made clear that the petitioner shall not tamper with the evidence or commit any act which would be prejudicial to the prosecution side. Should anything of that kind be reported, this Court would consider the desirability of withdrawing/cancelling the interim bail.

The petitioner shall not, unnecessary, seek extension of the interim bail granted to him. It is also specified that the petitioner shall not leave the country under any circumstances whatsoever. Should the petitioner intend to go out of the territorial confines of NCR of Delhi, permission would be required to be taken from the Special Court. The petitioner shall also deposit his passport before the Special court while furnishing his bonds. Application is disposed of accordingly. Dasti.”

(emphasis supplied)

12. It is relevant to note that the aforementioned order for interim release of the appellant was confirmed by this Court on 12th August, 2017.

13. The appellant was thereafter advised to file the present appeals to assail the judgment and order dated 5th May, 2017 passed by the High Court of Delhi at New Delhi in Bail Application No.119 of 2017 and Criminal M.B. No.121 of 2017. The special leave petitions were filed on 18th August, 2017. During the pendency of these special leave petitions, the 20 appellant was advised to also file a writ petition under Article 32 of the Constitution of India to challenge the validity of the provisions of the Act of 2002. The same was filed on 23rd August, 2017, being Writ Petition (Civil) No.121 of 2017. The reliefs claimed in the said writ petition read thus:

“PRAER

(i) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the conditions/limitations contained in Section 45(1) of Prevention of Money Laundering Act, 2002 (Act 15 of 2003) to the extent that it imposes rigors/restrictions in the grant of bail in any offence punishable upto 7 years under the provisions of Prevention of Money Laundering Act, 2002 (Act 15 of 2003) as unreasonable, arbitrary and unconstitutional being violative of the fundamental rights of the Petitioner guaranteed and protected under Articles 14 and 21 of the Constitution of India;

(ii) In the alternative to prayer (i) above, issue a writ of mandamus or any other appropriate writ, order or direction reading down the scope and ambit of Section 45(1) of the Prevention of Money Laundering Act, 2002 (Act 15 of 2003), so that the rigors in grant of bail are not applicable in the case of the Petitioner, where the alleged scheduled offences in CC No. 41 of 2017 arising out of chargesheet No. 1 dated 24.06.2017 filed by the Crime Branch, New Delhi alleging commission of offences under Sections 420/188/109/120B/34 IPC and Section 12 of the Prevention of Corruption Act, 1988 (none of which were under Part A of the Schedule prior to the Prevention of Money Laundering (Amendment) Act, 2012 (Act 2 of 2013) and formed part of Part B of the Schedule;

(iii) Issue a writ of mandamus or any other appropriate writ, order or direction declaring the continued incarceration of the Petitioner since 28.12.2016 in 21 ECIR/18/DZII/ 2016/AD dated 26.12.2016 under Section 3/4 of the Prevention of Money Laundering Act, 2002 is illegal, unconstitutional and in violation of the fundamental right of the Petitioner guaranteed and protected under Article 21 of the Constitution of India;

(iv) Issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus declaring that the offences under the Prevention of Money Laundering Act, 2002 (Act 15 of 2003) pursuant to the Prevention of Money Laundering (Amendment) Act, 2005 (Act 20 of 2005) which came into force w.e.f. 01.07.2005 are noncognizable offences and therefore, it is mandatory to comply with the provisions of Sections 155, 177(1) and 172 of the Code of Criminal Procedure, 1973 and declare that the law laid down by the Division Bench of the Hon’ble Delhi High Court in its judgment dated 27.4.2016 (reported in 2016 SCC Online Delhi 2493) and by the Hon’ble Gujarat High Court in Rakesh Manekchand Kothari vs. Union of India [Special Criminal Application (Habeas Corpus) No. 4247/2015] decided on 03.08.2015 holding that the offences under Section 3 of the Prevention of Money Laudnering Act, 2002 punishable under Section 4 thereof is a noncognizable offence is good law and the contrary view taken by the Hon’ble Bombay High Court in its judgment dated 14.12.2016 in Chhagan Chandrakant Bhujbal vs. Union of India & Ors. is bad in law;

(v) lay down guidelines for compliance by all Courts for grant of bail in proceedings arising out of and concerning the Prevention of Money Laundering Act, 2002 by expounding the scope of Section 439 of the Code of Criminal Procedure, 1973;

(vi) Issue rule nisi in terms of Prayers (i) to (v) above; and (vii) And/or pass any other or further orders which Your Lordships may deem fit and proper in the interest of justice.

14. The aforementioned writ petition was listed together with the appeals on 30th October, 2017. During oral arguments, however, the counsel appearing for the appellant, in all fairness, stated that the grounds urged in the said writ petition need not be considered at this stage and that the appeals preferred against the impugned judgment and order dated 5th May, 2017 be examined on the basis of the prevailing statutory provisions, including the rigors of Section 45 of the Act of 2002. In other words, the challenge to the impugned judgment will have to be considered as per the prevailing provisions and not with reference to the challenge regarding the validity thereof.

15. Reverting to the first contention of the appellant, that the reasons which weighed with the learned Single Judge of the High Court while directing interim release of the appellant, would apply proprio vigore for considering the regular bail. In that, the learned Single Judge vide order dated 10th August, 2017 noted the following circumstances:

i) Petitioner never tried to evade the investigation;

ii) The period of incarceration (7 1/2 months);

iii) Submission of chargesheet in the main case on 24/6/17;

iv) Illness of the mother of the Petitioner;

v) No definite reasons assigned by the Counsel for the Respondent to substantiate allegation that Petitioner would tamper with evidence especially when chargesheet in the main case has been submitted.

16. The argument though attractive at the first blush deserves to be rejected. In our opinion, the order dated 10th August, 2017 passed by the High Court directing interim release of the appellant was primarily on account of the illness of his mother. No more and no less. The other observations in the said order will have no bearing on the merits of the controversy and required to be reckoned whilst considering the prayer for grant of regular bail. For that, the appellant must succeed in overcoming the threshold of the rigors of Section 45 of the Act of 2002.

Indubitably, the appellant having withdrawn the regular (second) bail application, the consideration of prayer for grant of interim release could not have been taken forward. Besides, in the backdrop of the opinion recorded by the Coordinate Bench of the High Court (in its decision dated 5th May, 2017) whilst considering the application for grant of regular bail, which was after filing of the initial complaint CC 24 No.700/2017 (on 23rd February, 2017), was binding until reversed or a different view could be taken because of changed circumstances.

Suffice it to observe that indulgence shown to the appellant in terms of order dated 10th August, 2017 will be of no avail. In that, the facts such as the appellant never tried to evade the investigation or that he has suffered incarceration for over 71/2 months or that the chargesheet has been filed in the predicate offence registered under FIR No.205/2016 or the factum of illness of the mother of the appellant or the observation that no definite reason has been assigned by the respondents for substantiating the allegation that the appellant would tamper with the evidence, may become relevant only if the threshold stipulation envisaged under Section 45 of the Act of 2002 was to be fulfilled. The said provision reads thus:

“45. Offences to be cognizable and nonbailable.-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by-

(i) the Director; or

(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.

(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.

(2) The limitation on granting of bail specified in subsection (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.”

(emphasis supplied)

The sweep of Section 45 of the Act of 2002 is no more res intergra. In a recent decision of this Court in the case of Gautam Kundu Vs. Directorate of Enforcement (Prevention of MoneyLaundering Act), Government of 26 India, this Court has had an occasion to examine it in paragraphs 2830. It will be useful to advert to paragraphs 28 to 30 of this decision which read thus:

“28. Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of the PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with moneylaundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict.

29 . Section 45 of the PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under PartA of the Schedule of the PMLA:

(i) That the prosecutor must be given an opportunity to oppose the application for bail; and

(ii) That the Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail.

30. The conditions specified under Section 45 of the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also 1 (2015) 16 SCC 1 27 Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in sofaras they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act.

Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant.”

(emphasis supplied)

17. In paragraph 34, this Court reiterated as follows:

34. “xxx xxx xxx

We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is a sick or infirm.

Therefore, there is no doubt that the conditions laid down under Section 45A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure.”

The decisions of this Court in the case of Subrata Chattoraj Vs. Union of India,2 Y.S. Jagan Mohan Reddy Vs. CBI 3, and Union of India Vs. Hassan Ali Khan 4 have been noticed in the aforesaid decision.

18. The consistent view taken by this Court is that economic offences having deeprooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Further, when attempt is made to project the proceeds of crime as untainted money and also that the allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifts on the accused persons under Section 24 of the Act of 2002.

19. It is not necessary to multiply the authorities on the sweep of Section 45 of the Act of 2002 which, as aforementioned, is no more res integra. The decision in the 2 (2014) 8 SCC 768 3 (2013) 7 SCC 439 4 (2011) 10 SCC 235 29 case of Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and Anr.,5 and State of Maharashtra Vs. Vishwanath Maranna Shetty,6 dealt with an analogous provision in the Maharashtra Control of Organised Crime Act, 1999. It has been expounded that the Court at the stage of considering the application for grant of bail, shall consider the question from the angle as to whether the accused was possessed of the requisite mens rea. The Court is not required to record a positive finding that the accused had not committed an offence under the Act.

The Court ought to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail. In Ranjitsing Brahmajeetsing Sharma 5 (2005) 5 SCC 294 6 (2012) 10 SCC 561 30 (supra), in paragraphs 44 to 46 of the said decision, this Court observed thus:

“44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial.

Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.

However, while dealing with a special statute like MCOCA having regard to the provisions contained in Subsection (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting  or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.”

20. Reverting to the decision in the case of Manoranjana Sinh Vs. Central Bureau of Investigation we hold that the same is on the facts of that case. Even in the said decision, the Court has noted that the grant or denial of bail is regulated to a large extent by the facts and circumstances of each case. In the case of Sanjay Chandra Vs. Central Bureau of Investigation, the Court was not called upon to consider the efficacy of Section 45 of the Act of 2002 which is a special enactment.

21. Keeping in mind the dictum in the aforesaid decisions, we find no difficulty in upholding the opinion recorded by the Sessions Court as well as the High Court in this regard. In our opinion, both the Courts have carefully analysed the allegations and the materials on record indicating the complicity of the appellant in the commission of crime punishable under Section 3/4 of the Act of 2002. The Courts have maintained the delicate balance between the judgment of acquittal and conviction and order granting bail before commencement of trial. The material on record does not commend us to take a contrary view.

22. Realizing this position, the learned counsel appearing for the appellant would contend that even if the allegations against the appellant are taken at its face value, the incriminating material recovered from the appellant or referred to in the complaint, by no stretch of imagination, would take the colour of proceeds of crime. In fact, there is no allegation in the chargesheet filed in the scheduled offence case or in the prosecution complaint that the unaccounted cash deposited by the appellant is as a result of criminal activity. Absent this basic ingredient, the property derived or obtained by the appellant would not become proceeds of crime. To examine this contention, it would be useful to advert to Sections 3 and 4 of the Act of 2002.

The same read thus:

“3. Offence of moneylaundering. Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as 33 untainted property shall be guilty of offence of moneylaundering.

4. Punishment for moneylaundering. Whoever commits the offence of moneylaundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in moneylaundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words “which may extend to seven years”, the words “which may extend to ten years” had been substituted.”

23. As the fulcrum of Section 3 quoted above, is expression ‘proceeds of crime’, the dictionary clause in the form of Section 2(1)(u) is of some relevance.

The same reads thus:

“2(1)(u) ‘proceeds of crime’ means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country;”

It will be useful to advert to the meaning of expression “property” as predicated in Section 2(1)(v). The same reads thus: “2(1)(v) “property” means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and 34 instruments evidencing title to, or interest in, such property or assets, wherever located; The expression ‘scheduled offence’ has been defined in Section 2(1)(y) of the Act of 2002. The same reads thus: “2(1)(y) ‘scheduled offence’ means

( i) the offences specified under Part A of the Schedule; or

(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or

(iii) the offences specified under Part C of the Schedule;” Indisputably, the predicate offence is included in Part A in paragraph 1 of the Schedule in the Act of 2002, in particular Sections 420, 467, 471 and 120B of IPC. Indeed, the expression “criminal activity” has not been defined. By its very nature the alleged activities of the accused referred to in the predicate offence are criminal activities. The possession of demonetized currency in one sense, ostensibly, may appear to be only a facet of unaccounted money in reference to the provisions of the Income Tax Act or other taxation laws.

However, the stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens rea. In that, the concealment, possession, 35 acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a scheduled offence. That would come within the meaning of Section 3 and punishable under Section 4 of the Act, being a case of moneylaundering. The expression ‘moneylaundering’ is defined thus:

“2(1)(p) “moneylaundering” has the meaning assigned to it in section 3;

24. The appellant then relies upon the decision in the case of Gorav Kathuria Vs. Union of India,9 of the Punjab and Haryana High Court which has taken the view that Section 45(1) of the Act of 2002 requires to be read down to apply only to those scheduled offences which were included prior to the amendment in 2013 in the Schedule. It is contended that the offence, in particular, under Sections 420, 467 and 471 of IPC, may not be treated as having been included in the scheduled offences for the purpose of the Act of 2002. Further, if any other view was to be taken, the provision would be rendered ultra vires. We are in agreement with the stand taken by the 9 (2016 SCC Online P & H 3428 36 respondents that the appellant cannot be permitted to raise the grounds urged in the writ petition, hearing whereof has been deferred on the request of the appellant. In other words, the appellant should be in a position to persuade the Court that the allegations in the complaint and the materials on record taken at its face value do not constitute the offence under Section 3 read with the schedule of the Act of 2002 as in force.

25. It has been brought to our notice that the decision in Gorav Kathuria (supra) was challenged before this Court by way of Criminal Appeal No.737 of 2016, which has already been dismissed on 12th August, 2016. The order originally passed on the said criminal appeal reads thus:

“Though the High Court has granted certificate to appeal, after arguing the matter for some time, learned counsel for the petitioner concedes that the impugned judgment of the High Court is correct. This appeal is, accordingly, dismissed.” However, that order has been subsequently revised which reads thus: “Though the High Court has granted certificate to appeal, we have heard the learned counsel for some time and are of the opinion that the impugned judgment of the High Court is correct.

This appeal is, accordingly, dismissed.” At the same time the respondents have drawn our attention to a chart contained in their written submissions pointing out that other High Courts have disagreed with the principle expounded in Gorav Kathuria’s case.

The said chart reads thus:

(i) Crl. Misc. Application (for Regular Bail) No.7970/17 Jignesh Kishorebhai Bajiawala vs. State of Gujarat & Ors. Manu/GJ/1035/2017 High Court of Gujarat

(ii) Crl. Petition No.366/2017 SC Jayachandra vs Enforcement Directorate, Bangalore 2017 (349) ELT 392 KAR High Court of Karnataka at Bengaluru

(iii) WP[Crl.] No.333 of 2015 Kishin S. Loungani vs. UOI & ors. (2017) 1 KHC 355 High Court of Kerala at Ernakulam

(iv) Crl. Mic. Application (for Regular Bail) No.30674/16 Pradeep Nirankarnath Sharma vs Directorate of Enforcement 2017 (350) ELT 449 (GUJ) High Court Gujarat at Ahmedabad

(v) Crl. Writ Petition No.3931/2016 Chhagan Chandrakant Bhujbal vs Union of India & Ors. 2016 SCC Online Bom 9983 High Court of Bombay

26. For the time being, it is not necessary for us to examine the issues arising from the decision of the Punjab and Haryana High Court or the rejection of criminal appeal by this Court against that decision. The constitutional validity of Section 45 of the Act of 2002 will have to be examined by this Court in the writ petition on its own merits. The summary dismissal of criminal appeal will not come in the way of considering the correctness of the decision of the Punjab and Haryana High Court in view of the conflict of opinion with the other High Courts.

27. Suffice it to observe that the appellant has not succeeded in persuading us about the inapplicability of the threshold stipulation under Section 45 of the Act. In the facts of the present case, we are in agreement with the view taken by the Sessions Court and by the High Court. We have independently examined the materials relied upon by the prosecution and also noted the inexplicable silence or reluctance of the appellant in disclosing the source from where such huge value of demonetized currency and also new currency has been acquired by him.

The prosecution is relying on statements of  witnesses/accused already recorded, out of which were considered by the Delhi High Court. These statements are admissible in evidence, in view of Section 50 of the Act of 2002. The same makes out a formidable case about the involvement of the appellant in commission of a serious offence of money laundering.

It is, therefore, not possible for us to record satisfaction that there are reasonable grounds for believing that the appellant is not guilty of such offence. Further, the Courts below have justly adverted to the antecedents of the appellant for considering the prayer for bail and concluded that it is not possible to hold that the appellant is not likely to commit any offence ascribable to the Act of 2002 while on bail. Since the threshold stipulation predicated in Section 45 has not been overcome, the question of considering the efficacy of other points urged by the appellant to persuade the Court to favour the appellant with the relief of regular bail will be of no avail.

In other words, the fact that the investigation in the predicate offence instituted in terms of FIR No.205/2016 or that the investigation qua the appellant in the complaint CC No.700/2017 is completed; and that the proceeds of crime is already in possession of the investigating agency and  provisional attachment order in relation thereto passed on 13th February, 2017 has been confirmed; or that chargesheet has been filed in FIR No.205/2016 against the appellant without his arrest; that the appellant has been lodged in judicial custody since 2nd January, 2017 and has not been interrogated or examined by the Enforcement Directorate thereafter; all these will be of no consequence.

28. It was urged on behalf of the appellant that Demonetization Notification dated 8th November, 2016 imposes no limit in KYC compliant accounts on the quantum of deposit and no restrictions on noncash transactions. The relevant portion of the said notification reads thus:

“(iii) there shall not be any limit on the quantity or value of specified bank notes to be credited to the account maintained with the bank by a person, where the specified bank notes are tendered; however, where compliance with extant Know Your Customer (KYC) norms is not complete in an account, the maximum value of specified bank notes as may be deposited shall be Rs. 50,000/;

(vii) there shall be no restriction on the use of any noncash method of operating the account of a person including cheques, demand drafts, credit or debit cards, mobile wallets and electronic fund transfer mechanisms or the like;”

We fail to understand as to how this argument can be countenanced. The fact that no limit for deposit was specified, would not extricate the appellant from explaining the source from where such huge amount has been acquired, possessed or used by him. The volume of demonetized currency recovered from the office and residential premises of the appellant, including the bank drafts in favour of fictitious persons and also the new currency notes for huge amount, leave no manner of doubt that it was the outcome of some process or activity connected with the proceeds of crime projecting the property as untainted property. No explanation has been offered by the appellant to dispel the legal presumption of the property being proceeds of crime.

Similarly, the fact that the appellant has made declaration in the Income Tax Returns and paid tax as per law does not extricate the appellant from disclosing the source of its receipt. No provision in the taxation laws has been brought to our notice which grants immunity to the appellant from prosecution for an offence of money laundering. In other words, the property derived or obtained by the appellant was the result of criminal activity relating to a scheduled offence.

The argument of the appellant that there is no allegation in the charge sheet filed in the scheduled offence case or in the prosecution complaint that the unaccounted cash deposited by the appellant is the result of criminal activity, will not come to the aid of the appellant. That will have to be negatived in light of the materials already on record. The possession of such huge quantum of demonetized currency and new currency in the form of Rs.2000/notes, without disclosing the source from where it is received and the purpose for which it is received, the appellant has failed to dispel the legal presumption that he was involved in money laundering and the property was proceeds of crime.

29. Taking overall view of the matter, therefore, we are not inclined to interfere with the well considered opinion of the Sessions Court and the High Court rejecting the prayer for grant of regular bail to the appellant. However, considering the fact that the appellant is in custody since 28th December, 2016 and the offence is punishable with imprisonment for a term extending to seven years only, but not less than three years, the Trial Court will be well advised to proceed with the trial on day to day basis expeditiously. We clarify that the Trial Court must examine the evidence/material brought on record during the trial on its own merit and not be influenced by the observations in this decision which are limited for considering the prayer for grant of regular bail.

30. Accordingly, the appeals are dismissed in the above terms.

General Provisions for Granting and rejecting Bail by Criminal Courts in India

Keywords:-Bail- Bond- Sureties-Under Trial prisoners-Discharge from Custody

Arrest

BULLET 2Provisions under special Acts
BULLET 2Provisions under Criminal Code 

Chapter XXXIII – Provisions as to Bail and Bonds

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, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:

Explanation.- Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.

Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 161 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.

436A. 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.

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 cognizable offence punishable with imprisonment for three years or more but not less than seven years :

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if 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 the shall comply with such directions as may be given by the Court.

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.

(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 446A 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 (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the Court shall impose the conditions,–

(a)that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b)that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c)that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
and may also impose, in the interests of justice, such other conditions as it considers necessary.

(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 reasons 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.

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.

438. Direction for grant of bail to person apprehending arrest

(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, interalia, the following factors, namely:–

(i)the nature and gravity of the accusation;
(ii)the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii)the possibility of the applicant to flee from justice; and.
(iv)where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court,

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including-
(i)a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii)a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii)a condition that the person shall not leave India without the previous permission of the Court;
(iv)such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

439. Special powers of High Court or Court of Session regarding bail

(1) A High Court or Court of Session may direct-

(a)that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b)that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.


440. Amount of bond and reduction thereof

(1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.
(2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

441. Bond of accused and sureties

(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3)If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
(4)For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness.

441A. Declaration by sureties

Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.

442. Discharge from custody

(1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and when he is in jail the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the orders shall release him.
(2) Nothing in this section, section 436 or section 437 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed.

443. Power to order sufficient bail when that first taken is insufficient

If, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so to do, may commit him to jail.

444. Discharge of sureties

(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.
(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him.
(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail.

445. Deposit instead of recognizance

When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond.

446. Procedure when bond has been forfeited

(1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited,
or where in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited,
the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.
Explanation.-A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property before any Court to which the case may subsequently be transferred.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:
Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.
(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only.
(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.

446A. Cancellation of bond and bailbond

Without prejudice to the provisions of section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition-
(a)the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and
(b)thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:
Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.

447. Procedure in case of insolvency or death of surety or when a bond is forfeited

When any surety to a bond under this Code becomes insolvent or dies, or when any bond is forfeited under the provisions of section 446, the Court by whose order such bond was taken, or a Magistrate of the first class may order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order, and if such security is not furnished, such Court or Magistrate may proceed as if there had been a default in complying with such original order.

448. Bond required from minor

When the person required by any Court, or officer to execute a bond is a minor, such Court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only.

449. Appeal from orders under section 446

All orders passed under section 446 shall be appealable,—
(i)in the case of an order made by a Magistrate, to the Sessions Judge;
(ii)in the case of an order made by a Court of Sessions, to the Court to which an appeal lies from an order made by such Court.

450. Power to direct levy of amount due on certain recognizances

The High Court or Court of Session may direct any Magistrate to levy the amount due on a bond for appearance or attendance at such High Court or Court of Session.

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Bail guidelines for Defendants in UK

England-min

  1. Introduction
  2. Police Bail
    Pre-Charge
    Post Charge
    Variation of police imposed bail conditions
  3. The Right to Bail
    Exclusions to the right to bail
    Exceptions to the right to bail
  4. Opposing Bail: Information for prosecutors
    Victims and Witnesses
    Opposing Bail: Procedure
  5. Conditions of Bail
    General
    Types of Condition
    Credit for period of remand on bail with an electronic tag
    Youths
    Variation/Appeal
  6. Reconsideration of Bail
  7. Breach of Conditions of Bail
  8. Remands into Custody
  9. Length of Remand into Custody
    Appearance by Live Link
    Warrants of further detention – pre charge: s. 43 PACE
    Detention in a police station – post charge: s. 128(7)(8) Magistrates Court Act 1980 (MCA)
    Detention in police custody for drug offenders: s. 152 Criminal Justice Act 1988
    Technical Bail
    Youth Remands
    Mentally Disordered Offenders
  10. Appeals in relation to Grant of Bail
    By the Prosecutor
    By the Defence
    Failure to Surrender
    Commencing a prosecution
    Evidential Considerations
    Reasonable Cause (excuse)
    Public Interest Considerations
    Procedure
  11. Bail Applications involving the Official Solicitor
  12. File Endorsements

Introduction

The decisions on bail, in criminal proceedings, represent an important stage in the prosecution process. The results of these decisions can have far reaching consequences for victims of crime and the public in general.

From the viewpoint of the defendant, bail decisions made by a Court can result in the deprivation or restriction of liberty for a substantial period of time.

It is for these reasons that the Crown Prosecution Service has included the way in which these decisions are made as a benchmark of the quality of our case management and preparation in our Casework Quality Standards.

A benchmark of the quality of CPS case preparation is that we are:

“Continually reviewing the remand status of defendants, and ensuring that custody time limit cases are dealt with in accordance with the national standard.”

Custody Time Limits are dealt with elsewhere in the Legal Guidance.

A benchmark of the quality of CPS case presentation is that we are:

“Opposing bail where it is appropriate to do so, taking account of the risk posed to victims, the public and the course of justice.”

It is vital that Prosecutors recommend the appropriate course of action to a Court in connection with bail and that sufficient comprehensive information is available to a Court in connection with the decision whether or not to grant bail. It is also vital that the reasons for opposing bail, representations made by the Defence and the decisions of courts are recorded on the case file or CMS.

These standards and much of the guidance below will apply whether the question of bail is before a magistrates’ court, a Youth Court, a Crown Court or the High Court.

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Police Bail
Pre-Charge
This can be imposed:

Where there is as yet insufficient evidence to charge a suspect and he is released pending further investigation (ss. 37(2), 34(2) and 34(5) of the Police and Criminal Evidence Act 1984 (PACE)).

Where it is no longer necessary to detain a suspect to secure or preserve evidence or obtain it by questioning, yet the police are not in a position to charge, the suspect must be released, but it is open to the police to release him on bail where there is a need for further investigation of any matter for which he was detained.

Where s. 37(2) PACE is cited and the custody officer has authorised the release of the suspect, having determined that there is currently insufficient evidence to charge, he may be released pending the obtaining of further evidence and conditions of bail can be attached where necessary to prevent the suspect from failing to surrender, offending on bail, interfering with prosecution witnesses or otherwise obstructing the course of justice, or for his own protection. Where s. 34 PACE is cited (for example, where detailed and lengthy investigation is required and no assessment of the evidence can be made), no conditions of bail can be imposed – see R (on an application by Torres) v Metropolitan Police Commissioner [2007] EWHC 3212.
Where the police consider that there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision (s. 37(7)(a) PACE).

See s.37B PACE and the Director’s Guidance on Charging for guidance and procedure relating to the provision of charging advice by the CPS.

In order to obtain this advice, the police may release a suspect on bail to return to the police station at a future date and may impose conditions on that bail (s. 47(1A) PACE. Such advice will normally be provided under the Full Code Test of the Code for Crown Prosecutors prior to the suspect’s return.
Under the Code for Crown Prosecutors the Threshold Test may only be applied where the prosecutor is satisfied that all of the following four requirements are met:

there is insufficient evidence currently available to apply the evidential stage of the Full Code Test, and
there are reasonable grounds for believing that further evidence will become available within a reasonable period, and
the seriousness or the circumstances of the case justifies the making of an immediate charging decision, and;
there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and, in all the circumstances of the case, an application to withhold bail may be properly made.
Accordingly the Threshold Test may only be used to charge a suspect who is to be detained in custody to allow evidence to be gathered in order to meet the Full Code Test. Where a suspect is considered eligible for bail pending the obtaining of further evidence, the Threshold Test is not appropriate.

Breach of pre-charge bail conditions

The police have a power of arrest where an officer has reasonable grounds for believing that conditions imposed on pre-charge bail have been breached (s. 46A(1A) PACE).

Once in detention, the custody officer will determine whether the suspect can be charged (s. 37C(2)(a) PACE). If authorisation to charge has been provided, the arrested person can be charged in accordance with that advice. If authorisation has not been given, then this can be sought whilst the suspect is detained. The breach of bail conditions may necessitate the Threshold Test being applied, where previously, the grounds for applying this test were not met.

If a charge is not authorised, the suspect can be released without charge, either on bail or without bail (s. 37C(2)(b) PACE). Section 37C(4) states that if a person is released on bail under s. 37C(2)(b), then that person shall be subject to whatever conditions applied immediately before his arrest for breach. There is no power to vary the conditions of bail that previously applied.

Post Charge

Where there is sufficient evidence and the suspect is charged with an offence (s. 37(7)(d) PACE), the police can keep him in detention or release him on bail to appear at court at a future date and may impose conditions on that bail (s. 47(1A) PACE). It should be noted that (either pre or post charge) the police cannot impose conditions on a suspect:

to reside at a bail hostel;
to attend an interview with a legal adviser;
to make him or herself available for enquiries and reports;
that contain electronic monitoring requirements.
Breach of post charge bail conditions

The procedure for dealing with breach of police imposed bail conditions that are in place prior to the first court appearance matches the procedure for dealing with breaches of court imposed conditions – see below.

Variation of police imposed bail conditions
Conditions imposed by a custody officer may be varied by:

The same custody officer or another custody officer serving at the same police station on receipt of a request from the person to whom bail was granted (s. 3A(4) PACE). There is no stated procedure for this process, but the police will normally require that a request is in writing. More onerous conditions can be imposed.
The magistrates’ court on application by the suspect (s. 47(1E) PACE). The magistrates can confirm the same conditions, impose different conditions, or direct that bail shall be unconditional. It continues to be police bail and the procedure for applying for the variation is set out at: Criminal Procedure Rules, Part 14, bail in the magistrates’ court and the Crown Court – specifically Criminal Procedure Rule (Crim.PR.) 14.6.
Where a defendant applies to the magistrates’ court to vary conditions of bail imposed by the Police, the Court will fix a hearing date and notify the CPS. (Courts must hear the application within 72 hours of its receipt – not counting Christmas Day, Good Friday, Bank Holidays or Sundays).

If the CPS has already received a file from the Police, the prosecutor should ask the Police to give their view of the application.

If the CPS has not already received a file, the prosecutor should request a file from the Police. The Police will supply either the appropriate Manual of Guidance file, or if this is not yet available, sufficient information relating to the circumstances of the case and the suspect’s antecedents to enable an application to be dealt with effectively.

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The Right to Bail
Under s. 4 of the Bail Act 1976, on each occasion that a person is brought before a court accused of an offence, or remanded after conviction for enquiries or a report, he must be granted bail without condition, if none of the exceptions to bail apply.

Prosecutors must keep the issue of bail under review throughout the life of the case.

Conditions of bail may only be imposed where necessary to ensure that the exceptions to bail are addressed. Only where conditions are not sufficient to address the exceptions to bail should a remand in custody be sought.

Under s. 5 of the Bail Act 1976, the court or officer refusing bail or imposing conditions must give reasons for their decision.

Exclusions to the right to bail
The general right to bail does not apply in the following circumstances:

Murder

The power of magistrates to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed by s. 115(1) of the Coroners and Justice Act 2009. This does not apply to attempted murder or conspiracy to murder.

Where a person is charged with an offence of murder or attempted murder, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence (as listed in s. 25(2) of the Criminal Justice and Public Order Act 1994), he shall only be granted bail where there are exceptional reasons, which justify it.

Section 114 of the Coroners and Justice Act 2009 amends Schedule 1 to the Bail Act 1976. Section 114(2) provides that bail may not be granted to someone charged with murder unless the court is satisfied that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. In coming to that decision, the court must have regard to the nature and seriousness of the offence, the suspect’s character and antecedents and his record in relation to previous grants of bail.

Manslaughter and Serious Sexual Offences

Where a person is charged with an offence of manslaughter, rape or a serious sexual offence, and has previously been convicted in the UK or court of an EU Member State of an offence of murder, attempted murder, rape or a serious sexual offence (as listed in s. 25(2) of the Criminal Justice and Public Order Act 1994), he shall only be granted bail where there are exceptional reasons, which justify it.

Note: Where a person charged with one of the offences referred to above has a previous conviction for manslaughter or culpable homicide in the UK or EU court, he shall only have his right to bail restricted where he received a sentence of imprisonment or detention upon conviction.

Class A Drug Users – Designated areas only

In certain parts of the country, Paragraphs 6A to 6C of Part I of Schedule I of the Bail Act 1976 apply which set out the exception to bail for adult drug users where their offending is drug-related, and where they have been required to undergo drug testing but have failed to comply with that requirement.


Exceptions to the right to bail

The grounds for refusing bail are set out in Schedule 1 to the Bail Act 1976.

A person may be denied bail if there are substantial grounds for believing that any of the exceptions in Schedule 1 of the Bail Act 1976 are made out. Different exceptions will apply depending on the category of offence and the flow charts at Annexes One – Six set out the approach to be taken by the court in deciding whether to withhold bail to a person charged with a particular category of offence.

In cases involving criminal damage where the court is clear that the value involved is less than £5000, these offences are treated for the purposes of bail as if they were summary only: see Section 22 of the Magistrates’ Courts Act 1980.
Certain exceptions to bail are subject to the “no real prospect” test where a remand should not be sought for an un-convicted defendant who has no real prospect of receiving a custodial sentence. In less serious cases prosecutors should give careful consideration to the surrounding circumstances of the offence, the defendant’s antecedents and any relevant sentencing guidelines in deciding whether there is a “real prospect” of a custodial sentence. Where this is not clear cut, it may be more appropriate to leave it to the court to decide and to make objections to bail in the usual way.
It is vital that prosecutors note that this is not a consideration in cases involving domestic violence or any other risk of physical or mental injury to persons associated with the defendant.
Post-conviction applications.

Pursuant to section 4(2) of the Bail Act 1976, there is no general right to bail for convicted persons.

However where a person has been convicted and is then brought before either the magistrates’ or Crown Court to be dealt with for breach of the requirements of a community order or breach of certain youth community orders (s. 4(3)); or a court adjourns a case for enquiries or a report (such as a pre-sentence report) to be made in order to assist the court in dealing with the offence (s. 4(4)), the right to bail remains. Accordingly, in these circumstances, prosecutors should make appropriate representations (including any objections) as to the grant of bail.

By inference the presumption to bail does not apply to those defendants who appear before a court post-conviction where proceedings are adjourned for any other reason, for example committal for sentence.

In this situation, prosecutors are reminded of their duty to assist the court in providing information that may be relevant to their decision.

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Opposing Bail: Information for prosecutors
Information that prosecutors may need from the police in order to decide whether the exceptions to bail are made out may include:

Any history of offending, absconding or witness interference whilst on bail in the current or in previous proceedings;
Any express or implied intention to continue to offend, abscond or interfere with the course of justice and any apparent motive for doing so (for example, to obtain money for the purpose of drug purchases);
The extent to which the defendant has continued to offend whilst subject to other orders of the Court, such as suspended or deferred sentences and conditional discharge, and any relevant breach proceedings in respect of other sentences as the presence of one or more of the features may demonstrate an unwillingness or inability to comply with other orders of the Court such as bail conditions;
Any previous breaches of bail conditions in earlier or concurrent proceedings or a history of absconding and failing to surrender to custody;
Any evidence of violence or threats towards or undue influence over the victim of the crime, or other vulnerable witnesses;
The degree of temptation to abscond. It should be noted that the risk of failing to surrender owing to the severity of the likely sentence, if convicted was a matter to be assessed in the light of other relevant factors. The likely sentence could not of itself provide grounds for a remand in custody (R (Thompson) v Central Criminal Court [2006] A.C. 9);
Any factors which might affect the defendant’s ability to comply with bail conditions, such as drug or alcohol dependency. Care must be taken, however, with mentally disordered offenders to ensure that the risks of the future events are reduced in a way most compatible with their proper care and treatment (for example by diversion to a recognised medical treatment scheme or by a remand on bail to an appropriate probation or medical facility); and
The effect that the seriousness of the proceedings and the likely penalty of conviction may have upon the defendant. Generally speaking, the more serious the offence and the higher the likely penalty, the stronger will be the need to guard against one of the future risks.
Victims and Witnesses
When dealing with bail hearings in court, prosecutors should ensure that the victim’s views are considered, in deciding whether to seek a remand in custody.

Prosecutors are also reminded to ensure that victims are informed of bail decisions especially in cases involving ‘vulnerable’ and ‘intimidated’ victims and witnesses.

See further:

Code of Practice for Victims of Crime
Direct Communication with Victims and Witnesses
Care and Treatment of Victims and Witnesses
Homicide cases – Guidance on CPS service to Bereaved Families
Opposing Bail: Procedure
The procedures governing applications and appeals in relation to bail are set out in Part 14 of the Criminal Procedure Rules.

Under Schedule One, Part IIA of the Bail Act 1976, a person is entitled to be granted bail at the first hearing at which he appears charged with an offence. If a remand in custody is sought, he may apply for bail using any argument of fact or law that he chooses.

If bail is refused, then paragraph 1 of Part IIA applies and the court is under a duty to consider bail at each subsequent hearing at which the defendant appears (Remands in absence under the Magistrates Court Act 1980 are not counted). At the first hearing after which bail is refused, any argument as to fact and law may be advanced and the court must consider it. Thereafter, paragraph 3 of Part IIA states that court need not hear arguments as to fact or law that it has heard previously, unless there has been a change or circumstances that might have affected the earlier decision see R v Dover & East Kent JJ., ex p. Dean [1992] Crim. L. R.33.

In exceptional cases where there is a material change in circumstances, the prosecutor can ask the court to withdraw bail that has previously been granted see s. 5B of the Bail Act 1976 and R (Burns) v Woolwich CC and CPS [2010] EWHC 3273.

Murder Cases – s. 115(1) Coroners and Justice Act 2009

Where a murder case is to be sent to the Crown Court, the magistrates have no jurisdiction to consider bail. The papers will be sent to the Crown Court and will be placed before a Crown Court judge authorised to hear murder trials or preliminary hearings. That judge will decide if there should be a hearing and if the defendant should be produced. If no murder-ticketed judge is available, the list officer will refer the case to the Resident Judge.

The hearing/consideration of bail must be within 48 hours, beginning with the day after the day on which the magistrates send or refer the case (excluding Saturdays, Sundays, Christmas Day, Good Friday and Bank Holidays).

The CPS must be ready to deal with the section 115 hearing in the Crown Court irrespective of whether there is to be a bail application as the prosecutor will need to assist the judge with information to establish a legitimate reason for withholding bail.

In R (on the application of A) v Lewisham Youth Court [2011] EWHC 1193 it was confirmed that the power of the youth court to determine the appropriate form of custody was not displaced by s. 115 of the Coroners and Justice Act 2009. Youths charged with the serious offences listed in s. 115 should be dealt with in accordance with the procedure as set out at Annex Four: Youth Defendant: Indictable Only or Either Way Imprisonable Offence, Annex Five and Annex Six and in the section on Youths below.

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Conditions of Bail
General
Bail conditions should only be imposed in order to address any of the risks that would be inherent in granting unconditional bail. In proposing (or considering) conditions of bail, prosecutors must ensure that that they are necessary, reasonable, proportionate and capable of being enforced. Consideration should also be given to the extent to which they meet the objections to bail. Conditions that are unsuitable may give rise to a continuing risk of further offending, of absconding, or of harm to the victim(s) or public and prosecutors should be prepared to challenge their imposition or seek further evidence from the police before acceding to them, should they have any concerns.

Types of Condition
Reporting to a police station: This must be necessary to avert the risk it is designed to meet. For example, care should be taken to ensure that the interval between reporting times is not so long as to be insufficient to prevent a defendant from absconding.
Doorstep condition: It was held in R (CPS) v Chorley Justices [2002] EWHC 2162 (Admin) that a doorstep condition was not contrary to the ECHR. Where it is proportionate and necessary to enforce a curfew or a residence condition imposed for one of the statutory purposes, then such a condition may be appropriate.
Murder cases: Under s.115 of the Coroners and Justice Act 2009, a Crown Court must impose conditions in accordance with s.3(6A) of the Bail Act 1976 providing for the medical examination of the defendant. The Court need not impose the conditions if it is content that satisfactory reports have already been obtained.
Not to drive: The court must be satisfied that such a condition is necessary and, in doing so, ought to consider whether its imposition might have unexpected and unjust results: R v Kwame 60 Cr. App. R. 65
Sureties can be expressed as being continuous throughout the court proceedings and if they are taken on these terms, there is no requirement for the surety to attend each hearing. Prosecutors should be prepared to assist the court to explore the status and means of the potential surety, in the interests of justice and the surety. The prosecutor should be prepared to ask for time to make enquiries as to the sufficiency of the surety.
Securities should be lodged with the court or, in exceptional circumstances, with the police, and not with the CPS.
Electronic tagging: Where the court is satisfied that there is local provision for electronic tagging, and but for the tagging of the offender, he would not be granted bail, it may order that this condition be imposed (s. 3AB of the Bail Act 1976).
Credit for period of remand on bail with an electronic tag
Section 240A of the Criminal Justice Act 2003 provides that a court must direct that the period for which a defendant was subject to a curfew and an electronic monitoring condition, to count as time served by the offender as part of the sentence.

The credit period is the number of days represented by half of the sum of the number of days on which the offender is subject to an electronically monitored curfew of at least nine hours per day. The day on which the conditions are imposed is counted but the last day is excluded because it counts as the first day of the sentence.

Note: No credit period is available for monitored curfews which are less than 9 hours.

Subsection (4)(a) of section 240A provides that the Secretary of State may make rules to dis-apply the credit provision. The current rules namely the Remand on Bail (Disapplication of Credit Period) Rules 2008 provide that credit is not to be given for:

sentences of imprisonment for consecutive terms;
sentences of imprisonment for terms which are wholly or partly concurrent;
periods during which a person granted bail subject to the relevant conditions is also subject to electronic monitoring required by an order made by a court or the Secretary of State (e.g. a curfew order).
The court may decline to make a credit direction if it is, in the opinion of the court, just in all the circumstances not to give a direction under that subsection. This will enable the court not to give credit to all or part of the credit period when the defendant was in breach of bail. Under subsection (5), a court may nonetheless direct that a period of days which is less than the credit period is to count as time served by the offender as part of the sentence.

The court must state in open court:

the number of days on which the offender was subject to the relevant conditions, and
the number of days in relation to which the direction is given.
Where the court does not give a direction that credit is given or directs that reduced credit is given, it must state in open court:

that its decision is in accordance with rules made under subsection (4)(a) or
that it is of the opinion mentioned in paragraph (b) of that subsection and what the circumstances are.
Calculating the credit period

The court, which first imposes the electronically monitored curfew, will commence a paper record which documents the conditions imposed and the date on which they are imposed. The document will also carry information about breach of bail and information to do with the dis-application provisions. This form will travel with the defendant’s court file so that it is made available to the sentencing court.

Youths
The court may impose conditions that appear to be necessary for the same reasons as adults save that the court may also impose a condition “for his own welfare or in his own interests” (s. 3(6)(ca) Bail Act 1976).

10 & 11 year olds

Youths aged 10 and 11 may be remanded on unconditional bail, conditional bail, bail supervision and support or bail Intensive Supervision and Surveillance Programme (ISSP). Where a court remands on bail a 10 or 11 year old who is either charged with or has been convicted of a serious offence or, in the opinion of the court, is a persistent offender on bail the court may order a local authority to make an oral or written report specifying where the child is likely to be placed or maintained if he is remanded into local authority accommodation (s. 23B Children and Young Persons Act 1969).

12 – 17 year olds

Youths aged 12 to 17 may be remanded on unconditional bail, conditional bail, conditional bail with electronic monitoring, bail supervision and support, bail supervision and support with electronic monitoring, bail Intensive Support and Surveillance Programme (ISSP), with voice verification and/or with electronic monitoring.

An electronic monitoring requirement may only be imposed on a youth aged 12 to 17 inclusive if the following conditions are satisfied:

the child or young person has been charged with or convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or
is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings, amount, or would amount if convicted of the offences with which he is charged, to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation; and
the court has been notified by the Secretary of State that electronic monitoring arrangements are available in the area and is satisfied that the necessary provision can be made under those arrangements; and
the youth offender team has informed the court that the electronic monitoring requirement is suitable for that child or young person (s. 3AA of the Bail Act 1976).
Variation/Appeal
Where a court has granted bail, the prosecutor or the Defence may apply to the magistrates’ court (or, where a person has been committed to the Crown Court for trial or sentence, to the committing Court or to the Crown Court) for conditions of bail to be varied or for conditions to be imposed where unconditional bail was granted – s. 3(8) of the Bail Act 1976.

Under s. 16 of the Criminal Justice Act 2003, a person who has been unsuccessful in securing the variation or lifting of a bail condition may appeal that decision to the Crown Court.

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Reconsideration of Bail
The prosecutor may apply under s. 5B of the Bail Act 1976 to have bail reconsidered by the magistrates’ court. This only applies to bail granted by the magistrates’ court or the police, and only in relation to offences triable on indictment or either way. The prosecutor may apply to vary the conditions of bail, impose conditions on bail which had been granted unconditionally, or revoke bail.

The prosecutor may only apply on the basis of information which was not available to the court or the police when the original decision was taken. It is unclear whether information which the custody officer should have known or could reasonably be expected to have known will be treated by the court as not having been available. In the absence of case law, the prosecutor should treat such information as not having been available to the police.

If the information is withheld from the court (for example by the Police or the CPS), then it was not available to the court, unless someone else tells the Court. The prosecutor should not withhold information from the court with a view to using it to support a Section 5B application later.

The new information need not relate directly to the offence but may relate to matters such as the defendant’s criminal record, or his or her address in relation to the complainant’s address.

It is not necessary to use section 5B to ask the magistrates’ court to reconsider bail when the defendant is already present at court in answer to bail. In other words, section 5B is not the only provision available to the court to allow it to reconsider bail. The court still has a duty to consider bail every time the defendant appears before it.

Where the CPS has already received a file from the Police, the Police will supply information on the relevant Manual of Guidance form and suggestion that a Section 5B application be made. Where the CPS has not yet received a file from the Police (for example where the defendant has only recently been charged and bailed), the Police will submit either a custody remand file or the appropriate Manual of Guidance National file Standard, file, together with information supporting a proposed Section 5B application.

Where the CPS receives information from a source other than the Police which may justify a Section 5B application, the prosecutor should provide details to the Police and request the Police view. Where the CPS has not yet received a file from the Police, the prosecutor should request a file. The Manual of Guidance gives details of the forms and procedures to be used.

The prosecutor should consider the following when deciding whether to use section 5B:

The length of time since the original decision and the bail history since that decision;
The length of time before the defendant would next appear in Court if no applications were made;
Whether the original decision would have been different if the new information had been available then (or if the new circumstances had obtained them);
Whether, even if the original decision would have been different, a different decision is likely to be taken now.
If the prosecutor decides to proceed with a Section 5B application, the application must be made in accordance with Rule 93B of the Magistrates’ Courts Rules 1981/552.

The prosecutor must make the application to the magistrates’ court which granted bail or in the case of bail granted by the police, the “appropriate” court. The appropriate court is the one appointed by the Custody Officer as the court before which the person granted bail has a duty to appear, or, if no such court has been appointed, the court acting for the petty sessions area in which the Police Station at which bail was granted is situated.

The application must:

be in writing;
contain a statement of the grounds on which it is made;
specify the offence in respect of which bail was granted;
specify the decision to be reconsidered, including any bail conditions and the reasons for them having been imposed;
specify the name and address of any surety.
The CPS must send the application to the Clerk of the Court. A hearing date will be fixed by the Clerk which must be not later than 72 hours after receipt by the Clerk of the application (not counting Christmas Day, Good Friday, Bank Holidays and Sundays).

Responsibility for service of notice on the defendant lies with the Court.

The application may proceed in the absence of the defendant provided that it is proved (on oath or by certificate of service) that the defendant has been served with notice.

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Breach of Conditions of Bail
Breach of conditions of bail is not a Bail Act offence, nor is it a contempt of court unless there is some additional feature (R v Ashley [2004] 1 Cr. App. R. 23).

Section 7(3) of the Bail Act 1976 confers power upon a police officer to arrest a person if he has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions.

Under s. 7(4) of the Bail Act 1976, a person so arrested must be brought as soon as practicable, and in any event within 24 hours of his arrest, before the magistrates court for the area in which he was arrested. The arrested person must be dealt with within that 24 hour period; bringing him before the court is insufficient – R v Culley [2007] EWHC 109 (Admin). Although a contrary view was expressed by the Divisional Court in the case of McElkerney v Highbury Corner Magistrates’ Court [2009] EWHC 2621 (Admin), it is submitted that prosecutors should take care to ensure that the court is aware of the 24 hour limit and try and have the case disposed of within that time, or risk the defendant’s release.

Under s. 7(5) of the Bail Act 1976, the magistrates’ court before which the defendant is brought may remand him in custody or grant bail subject to the same or to different conditions if it is of the opinion that:

the defendant is not likely to surrender to custody; or
that the defendant has broken or is likely to break any condition of bail.
The effect of s. 7(5) of the Bail Act 1976 was considered in R v Liverpool City Justices ex p DPP (1993) QB 233, which established five propositions:

That the arresting officer must state his grounds for believing the defendant had broken or is likely to breach a condition of his bail. This may well involve the giving of “hearsay evidence”.
Where the defendant disputes the ground on which he was arrested, there is no necessity for the giving of evidence on oath or for providing an opportunity to the person arrested, or his legal representatives, to cross-examine witnesses or give evidence. However, there should be some way in which the defendant can respond to the alleged breach.
The magistrates’ court has have no power to adjourn the proceedings and must consider, on the material before them, whether they are able to form one of the opinions set out in s. 7(5) and if so, go on to decide whether or not to remand the defendant in custody or on bail on the same or more stringent conditions.
If the court feels unable to form one of the opinions set out in s. 7(5) they must order the person concerned to be released on bail on the same terms as were originally imposed.
Proceedings under s. 7(5) do not preclude a defendant who is remanded in custody from making an application for bail to the Justices, or to a Crown Court or to a Judge, as appropriate.
The presumption in favour of granting bail under s. 4 of the Bail Act 1976 will be subject not only to the exceptions of the right to bail in part 1, paragraph 2 of schedule 1 to the Bail Act 1976, but also to the exception in paragraph 6 of the Schedule.

It should also be noted that:

The procedures adopted above do not amount to breaches under Article 5 and 6 of the European Convention on Human Rights – R v Havering Magistrates ex parte DPP and R v Wirral Borough Magistrates ex parte Mark McKeown (2001) 2 Cr App R 2 considered these propositions and whether or not there were any and has held that R v Liverpool City Justices ex parte DPP (1993) QB 233 remains good law.
The issue for the court is whether there has been a breach and, if so, whether the defendant ought to be re-admitted to bail. The words “reasonable excuse” should not be imported into s. 7(5), and the breach of conditions was just one factor for the court to take into account when deciding whether to grant bail – R (Vickers) v West London Magistrates’ Court [2003] EWHC 1809 (Admin). In practice, Prosecutors should not ask courts to deny a defendant bail simply because he or she was arrested in pursuance of s. 7 and courts should not withhold bail simply on that ground alone.
Where the defendant is arrested for a new offence and for breach of one or more bail conditions, the police must give consideration as to whether the breach of bail as well as the new offence should be placed before the court within 24 hours of the arrest. If this is possible, the suspect should be arrested for breach of bail as well, but must be placed before a magistrates’ court within 24 hours, irrespective of the stage at which the investigation for the new offence has reached.
Where the nature of the investigation of the new offence is such that it is not practicable for the defendant to be placed before the court within 24 hours of an arrest for breach of bail, the police should delay the arrest under s. 7 of the Bail Act 1976 and only make the arrest when the enquiries for the new offence have been completed.

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Remands into Custody
Length of Remand into Custody
It should be remembered that these provisions should always be viewed as being subject to Custody Time Limits.

In the magistrates’ court, a defendant can only remand a person in custody for a maximum of eight days, except where it has previously remanded him in custody and it has a set a date for the next stage of those proceedings. In those circumstances, having heard representations from the defendant’s representatives, he can be remanded in custody for a period ending in that date or for a period of 28 days, whichever is the less – s. 128A of the Magistrates Courts Act 1980.

There is no maximum period of remand into custody in the Crown Court, where the judge is able to adjourn cases to the next stage in the proceedings.

Appearance by Live Link
Preliminary hearings, including those considering bail, may be held via live video link and where live link is used, the defendant is deemed to be present – s. 57A(2) of the Crime and Disorder Act 1998 (CDA).

There is no requirement that the defendant be in custody in relation to the offences to which the preliminary hearing relates. As such, prosecutors should consider the savings in time and cost that might result from using the live link where a prisoner serving a sentence in relation to another offence needs to be produced in court. In these circumstances, it is important to liaise with any Defence solicitors, where known.

The court may require an initial hearing to determine whether to make an order for the proceedings to be heard via live link, at which the defendant may be required to attend via live link, and in relation to which he (or those representing him) should be able to make representations – s. 57B(4)(5) CDA.

Warrants of further detention – pre charge: s. 43 PACE
An arrested person must be charged or released within 24 hours of his arrest or arrival at the police station (s. 41 PACE). This can be extended to 36 hours on authorisation of a police superintendent (s. 42 PACE). Thereafter, a police officer may apply on oath (supported by an information) to the magistrates’ court for that period of detention to be extended where the court is satisfied (s. 43(4) PACE) that:

His detention without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest or to obtain such evidence by questioning him;
The offence is an indictable one, and;
The investigation is being conducted diligently and expeditiously.
The application must be made before the 36 hour period has expired and the police may apply for the warrant of further detention to be extended up to a period of no more than 96 hours from the time of arrest or arrival at the police station (s. 44 PACE). For the detailed requirements as to the timing of applications, prosecutors should have regard to the provisions of ss. 43 and 44 PACE.

Prosecutors may find that, since it is usually the investigating police officer who makes the application on oath and that these applications are often made outside of normal court sitting hours, the officer will make the application to the court. However, if the court is sitting and, especially if the suspect is represented, the prosecutor may be required to assist the court by questioning the officer to establish that the grounds (see above) are made out.

If so, the prosecutor must ensure that the information in support of the application accords with the requirements of s. 43(14) PACE in that it contains:

The nature of the offence for which the suspect was arrested;
The general nature of the evidence;
What enquiries have been made and what further enquiries are proposed;
The reasons for believing that the suspect’s continued detention is necessary for the purpose of such further enquiries.
Detention in a police station – post charge: s. 128(7)(8) Magistrates Court Act 1980 (MCA)
Prosecutors may also hear this provision referred to as a “lay down” and it is commonly used where a defendant has been charged for one or more offences and has been remanded in custody by the court for that matter, but the police wish to detain him in police custody for a short period to question him in relation to other offences.

Section 128 (7) MCA states that a magistrates’ court having power to remand a defendant in custody may, if the remand is for no more than three days, commit him to be detained at a police station. He may only be detained at a police station if there is a need for him to be so detained for the purposes of enquiries into other offences and he shall be brought back to court as soon as that need ceases (s.128(8)(a)(b) MCA). His detention will be kept under continuous review, in accordance with PACE, whilst in police detention.

In the case of a person aged less than 18 years, the maximum period of the “lay down” is 24 hours – s. 91(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Prosecutors need to approach this application by firstly satisfying themselves that a remand in custody on the offence charged is justified, having regard to whether one or more of the exceptions to bail are made out. Only at this point, will they have to address the necessity for detaining him in the police station for further enquiries to be made.

If so satisfied, the application for a remand in custody will be made by way of a two stage application – for the remand into custody, and, if granted to police custody. Many defendants will be keen to go straight to prison and their advocates may argue that it is open to the police to bail the defendant to be produced at the police station, once the further enquiries are complete.

As such, it is vital that prosecutors are provided with sufficient information to justify the necessity for this type of detention – in addition to the remand file.

Detention in police custody for drug offenders: s. 152 Criminal Justice Act 1988
Where a defendant is brought before a magistrates’ court charged with possession of a controlled drug or a drug trafficking offence, the Magistrates have the power to remand the defendant into the custody of a police officer or customs officer for a period not exceeding 192 hours, if the court considers it appropriate to do so.

In practice, this application will only be made in circumstances where the police are in a position to charge the offender and it is anticipated the maximum period of 96 hours under PACE will not be sufficient for the defendant to pass swallowed or concealed drugs from his body.

The prosecutor will first consider and apply for a remand in custody and, thereafter ask the court to remand initially for up to 192 hours into police custody. The police will be expected to provide evidence to support their assertion that the defendant has concealed drugs in his body and this will usually be in the form of an X-ray or other medical opinion, or observations of his conduct both before and after arrest.

Technical Bail
Prosecutors are instructed not to consent to technical bail at magistrates’ court or Crown Court hearings.

Technical bail is where bail is granted to a defendant in circumstances where there are substantial grounds for believing that a remand into custody is justified but the defendant is either serving a custodial sentence, or is remanded in custody for other matters before the same or other courts. Unconditional bail under these circumstances is granted on a technical basis, thereby avoiding the need to bring the defendant back to court unnecessarily for interim remand hearings. It also means that only one set of custody time limits needs to be monitored.

The risks inherent in agreeing to technical bail are:

If the defendant is released from his sentence or custodial remand before the conclusion of the proceedings for which technical bail is granted, a person who is likely to re-offend, abscond or present a risk to witnesses is released into the community without even the safeguards offered by conditions of bail being in place.
The risks are heightened in cases where the defendant is subject to recall to prison because the recall process can be lengthy, and it may not always be clear whether the defendant has been recalled for his original offence(s) when technical bail is being considered for the later matters. Furthermore, a decision to recall may be successfully challenged before the conclusion of the criminal proceedings.
Public safety and public confidence in the criminal justice system must not be compromised by administrative convenience. While the decision to grant bail is ultimately for the court, prosecutors should be prepared to object to technical bail where satisfied that one or more grounds for withholding bail has been made out.

In objecting to bail, prosecutors should point out to the court that:

A defendant need not be granted bail if he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts (see Schedule 1 Part I paragraph 4, Part IA paragraph 6 and Part II paragraph 4 of the Bail Act 1976);
The use of remands by prisoner to court video link (PCVL) will avoid the need to transport the defendant;
There is no guarantee that defendants who are remanded in custody on other matters or who are serving prisoners would not be released before the conclusion of the instant proceedings.
In a case where he is satisfied that there are no grounds for opposing bail, a prosecutor can still invite the court to impose conditions to take effect, should the defendant be released from custody.

The prosecutor’s reasons for adopting this course of action should be recorded fully on the file.

Given the importance of this advice to maintaining public safety, the Justices’ Clerks’ Society and the office of the Senior Presiding Judge has been made aware of this advice.

Youth Remands
The question of a remand will only arise where an adjournment is sought and therefore the first point to consider is whether or not the adjournment is necessary. Prosecutors should be aware of the necessity of dealing with youth offenders in an expeditious manner.

The Bail Act 1976 applies to youth offenders and there is a presumption that the defendant has a right to bail.

The court must also have regard to the welfare of the youth (s. 44 of the Children and Young Persons Act 1933). This includes a specific obligation to consider a bail application, even if the court has refused bail twice and there is no change of circumstances nor any considerations which were not before the court when the youth was last remanded (R (on the application of B) v Brent Youth Court [2010] EWHC 1893 Admin.). Prosecutors should be mindful of their corresponding duty to have regard to the interests of the youth and the principal aim of the youth justice system which is to prevent offending (s. 37 CDA), when considering representations in respect of bail.

The best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies: Article 3 United Nations Convention on the Rights of the Child 1989 (UNCRC).

In dealing with a person aged under 18 years, prosecutors are reminded that they should first satisfy themselves that the exceptions to the right to bail are made out (see Annex Four, Annex Five and Annex Six) and that conditions of bail will not allay their fears.

If so satisfied, the prosecutor should seek a remand into local authority accommodation (s. 91(3) of the Legal Aid and Punishment of Offenders Act 2012 (LASPO)). A remand into youth detention accommodation should only be sought where one of the sets of conditions set out in ss. 98 and 99 LASPO are met (s. 91(4)(a) LASPO).

Remands to Local Authority Accommodation

If bail is refused to a child the court must remand him or her to local authority accommodation, (s. 91 LASPO).

A remand to local authority accommodation is a remand in custody and custody time limits will apply (s. 23(11)(b) Prosecution of Offences Act 1985).

The remand is for a maximum of eight days as the remand in absence procedure not applying to youth offenders. If the remand is after conviction, then the maximum period is three weeks.

The Court shall designate the local authority that is to receive the youth offender (s. 92(2) LASPO).

Local Authority Remand with Conditions

The Court may impose any condition on the local authority remand that could be imposed under s. 3(6) of the Bail Act 1976 (s. 93(1) LASPO).

An electronic monitoring requirement may only be imposed if the criteria in s. 94 (2) to (6) LASPO are satisfied, namely:

the child is at least 12 years old;
one or more of the offences for which the child is remanded is imprisonable;
one or more of the offences for which the child is
remanded is a violent or sexual offence (as defined in Parts 1 and 2 of Schedule 15 Criminal Justice Act 2003) or
punishable in the case of an adult with imprisonment for a term of 14 years or more or taken together with any other imprisonable offences of which the child has been convicted in any proceedings,
amounts (or would, if the child is convicted of the offence(s) for which he or she is remanded) to a recent history of committing imprisonable offences while on bail or subject to a custodial remand;
electronic monitoring is available and the youth offending team have informed the court that electronic monitoring is suitable for the child.
The court may also impose requirements on the authority itself for securing compliance with any conditions imposed on the child or stipulating that the child shall not be placed with a named person (s. 93(3) LASPO).

The authority itself may ask the Court to impose conditions on a remand to local authority accommodation (s. 93(5) LASPO) and both the local authority and the child can apply to the court to vary or revoke any conditions previously imposed (s. 93(6) LASPO).

The court must consult the designated local authority before imposing conditions on the child or the local authority (s. 93(4) LASPO).

“Consultation” with the local authority is defined as such consultation (if any) as is reasonably practicable in all the circumstances of the case (s. 93(9) LASPO).

Prosecutors should know something of the local authority’s arrangements for accommodation of youth offenders on remand. In all applications, it will be advisable to talk to the representative from the youth offending team before addressing the Court on the need for any conditions to be imposed on the remand, or for a stipulation that the defendant should not live with a named person.

Remands to Youth Detention Accommodation

Youths aged 10 and 11 can only be remanded to local authority accommodation.

The Court may remand a youth aged between 12 and 17 to youth detention accommodation, rather than local authority accommodation if the youth satisfies either the first or second set of conditions set out in ss. 98 and 99 LASPO 2012. These provisions are set out in Annex Seven: Youth Defendant Remand Provisions.

Prosecutors are advised to consult the Youth Offending Team to explain the objections to bail and the reasons for seeking a remand to youth detention accommodation and to ascertain whether they can offer a suitable alternative such as ISSP or bail support. You should only make an application for a remand to youth detention accommodation when you have considered all of the alternatives and decided that they would be inadequate to protect the public from serious harm or to prevent the commission of further offences. Prosecutors should not use the mere existence of an offence or history condition to make an application for a remand to youth detention accommodation.

The court no longer has a power to remand a 15 or 16 year old boy to secure accommodation rather than a young offenders’ institution. All children remanded to youth detention accommodation will be placed in a secure children’s home, secure training centre or young offenders’ institution.

Prosecutors should advise the defence solicitor, the Court and the youth offender team and of any information on the CPS file that indicates that a youth remanded to youth detention accommodation has any physical or emotional maturity issues or a propensity to self- harm to enable the child to be placed appropriately.

Secure Accommodation Orders

If a youth offender is remanded to local authority accommodation, the authority can separately apply to the Court for a Secure Accommodation Order. The application is made under s. 25 Children Act 1989, where the remand has been made by the Youth Court or magistrates’ court, the authority must apply to that Court and not to the Family Proceedings Court.

The maximum period for which a Court can make a Secure Accommodation Order on a youth offender who has been remanded to local authority accommodation is the period of the remand. If the authority intends to make this application, then it may well be advisable for Prosecutors to delay any application for remand to local authority accommodation until the local authority application has been heard. If the application is successful you can consider seeking a remand on bail with a condition of residence where directed by the local authority. In cases where the offender is likely to be remanded for a considerable period of time, it will obviate the need for the offender to be produced at court every seven days.

If the offender is not already in care, then the remand must be dealt with first and a remand to local authority accommodation granted before the local authority has power to seek a Secure Accommodation Order. Time that is spent remanded or committed in custody (including Police detention, or in secure accommodation), is deducted from the final sentence. Time spent remanded or committed to local authority accommodation does not count against the final sentence.

Local Remands

A custody officer, after charge, is under a duty to ensure that an arrested youth is moved to local authority accommodation, unless it is certified in the case of:

a child who is aged 12 to 17 inclusive, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him; or
any child that, for the reasons specified on the certificate, it is impracticable to make the transfer (s 38(6) PACE).
Although the new sub-section uses the word “impracticable” in relation to those under 12 years, the construction of the statutory provision makes clear that the type of accommodation in which the local authority propose to place the youth is not a factor which the custody officer may take into account in considering whether the transfer is acceptable. As the detention of children under 12 in youth detention accommodation would not be available to the Court, other than at the instigation of the local authority, itself under s. 25 of the Children Act 1989 it would be improper to try and use s. 38(6) PACE to achieve it.

See also the legal guidance on Youth Offenders.

Mentally Disordered Offenders
A defendant may have been detained in hospital under the Mental Health Act 1983 as a civil patient prior to charge. The court has no power to grant bail on condition that the defendant resides at the hospital and must remand the defendant in custody. However, the Secretary of State for Justice is able to consider a transfer under s. 48 Mental Health Act 1983 and facilitate a remand straight to hospital from the magistrates’ court where:

He is satisfied by reports from two registered medical practitioners that the defendant is suffering from a mental disorder of a nature and degree that makes hospital treatment appropriate and urgent and that such treatment is available for the defendant, and;
That such treatment is expedient in the public interest and in all of the circumstances of the case.
Where the statutory criteria are satisfied, early liaison with the appropriate caseworker at the Mental Health Casework Section (MHCS) of the National Offender Management Service (NOMS) is essential. Cases are allocated according to the surname of the patient so please click on this link to find the correct caseworker. Prosecutors should contact the caseworker in advance of the first appearance to agree the information needed which will include:

Details of the alleged offence, including a case summary and list of antecedents;
Reports from at least two registered medical practitioners;
Details of the hospital where the defendant is being treated so that the MHCS can send the hospital Form H1004 to complete and ensure that they understand the process.
The MHCS will decide whether the hospital offers a sufficient level of security given the nature of the charges and antecedent history and any risk assessment. The fact that the defendant is already being treated at that hospital will be taken into account.

The transfer will be affected by a warrant directing the defendant’s transfer to hospital. The section 48 warrant cannot be issued until the court has remanded the defendant in custody. Therefore the court remand warrant must be faxed or emailed to MHCS as soon as it is issued, and MHCS will send back the section 48 warrant. Warrants cannot be issued at the weekends or on Bank Holidays.

Section 52 of the Mental Health Act 1983 provides that a defendant remanded in hospital under section 48 can be remanded in his absence without the need for him to appear back before the court, provided that he shall not be remanded in his absence, unless he has appeared before the court within the previous six months.

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Appeals in relation to Grant of Bail
By the Prosecutor
From the Magistrates Court

Where a Prosecutor has applied for a defendant to be remanded in custody and the offence in relation to which the remand was sought was an imprisonable one, the prosecutor has a right of appeal to the Crown Court, under s. 1 of the Bail Amendment Act 1993 (BAA).

In deciding whether to seek a remand in such a case, the prosecutor should also consider whether an appeal would be appropriate in the event that the Court decides to grant bail. The decision and reasons for it must be clearly endorsed on the file.

Factors to Consider

In considering whether an appeal is appropriate, the key factor to consider is the level of risk posed to a victim, group of victims or the public at large.

The nature and seriousness of the offence which the defendant faces is relevant if it illustrates the risk created by granting bail. Examples might be extreme cases of personal violence such as murder, rape, robbery or aggravated burglary, particularly if it is alleged that weapons have been used in offences of violence or during the commission of sexual offences.

A serious risk of harm to public safety and property might be demonstrated in an offence of arson with intent to endanger life or being reckless as to whether life is endangered, terrorist offences or riot.

The risk to the individual victim or victims may be shown to be greater where there is:

A record which discloses previous convictions, particularly of a similar kind against the same victim or victims with similar characteristics;
Evidence of violence or threats of violence to the victim or his or her family, or;
Evidence of undue influence over the victim, for example where there are alleged sexual offences against young people or children.
A strong indication that the defendant may abscond may be a reason to appeal in circumstances where the defendant has no right to remain in the jurisdiction or has substantial assets or interests abroad. On the other hand the right of appeal should not be used simply because the defendant has no fixed address or settled way of life, particularly where this may be coupled with mental health problems (unless accompanied by genuine indications of danger to the public).

This guidance is not intended to be exhaustive and each case will need to be decided on its merits after consideration of any representations made to the court and any other information which may become available.

Where a prosecutor has decided to exercise a right of appeal, authorisation should be sought from a Level E manager.

Procedure

Oral notice must be given to the court at the conclusion of the bail hearing and before the defendant is released – s. 1(4) BAA. The giving of an oral notice after a short delay of five minutes after the Magistrates had withdrawn and before the defendant was released was held to satisfy s. 1(4) – R v Isleworth CC ex p. Clarke [1998] 1 Cr. App. R. 257. The defendant is remanded in custody and should remain in the cells, pending the giving of the notice.
A written notice must be served on the court and the defendant in person within two hours of the conclusion of the bail hearing – s. 1(5) BAA. If the notice is not served, the appeal is deemed disposed of and the defendant is released. A copy of the written notice is available on CMS. If necessary, the defendant should be produced in court within the two hour time limit in order to effect personal service of the written notice.
The appeal must be heard within 48 hours of the end of the day on which the bail application was heard, excluding weekends and public holidays.
Under CPR 14.9 (9), a prosecutor may abandon the appeal at any time before the hearing begins by serving notice on the Magistrates Court, the Crown Court and the Defence.
The appeal hearing is a complete re-hearing of the application at the Magistrates Court with the judge at liberty to remand the defendant in custody, or grant bail on any conditions he or she deems appropriate.
In the event of a successful appeal to the Crown Court, the Judge should be invited to remand the defendant, where he or she is subject to the magistrates’ court’s jurisdiction, to appear before the Justices on a date which must be no more than eight clear days from the date of his last appearance before them.
Youths

The BAA applies to youth offenders charged with, or convicted of, offences punishable (in case of an adult) with five years or more imprisonment, or offences under ss. 12 and 12A of the Theft Act 1968 and in respect of whom the prosecutor has made representations that he or she should be remanded to local authority accommodation, or youth detention accommodation under the provisions of ss. 98 or 99 LASPO (see above).

In addition to the authorisation referred to above, the decision to appeal the granting of bail should be taken or confirmed by a Youth Offender Specialist and the Area Youth Co-ordinator should be notified of the result of the appeal.

From the Crown Court

Where a Prosecutor has applied for a defendant to be remanded in custody and the offence in relation to which the remand was sought was an imprisonable one, the prosecutor has a right of appeal to the High Court, under s. 1(1B) BAA. Authority to appeal to the High Court has to come at the level of Deputy Chief Crown Prosecutor.

The right of appeal to the High Court under this section does not enable a prosecutor to appeal a decision by the Crown Court to uphold the decision of Magistrates to grant bail – s. 1(1C) BAA.

The provisions on factors to consider, authorisation and procedure relating to an appeal from the Crown Court match those on appeal from the magistrates’ court, save that prosecutors should note that:

RSC Order 79, Rule 9(15) states that proceedings on appeal to the High Court can be commenced by lodging the written notice with that court; but,
For precise information as to what documents to lodge and where, prosecutors should have regard to Practice Direction 4, which supplements that rule.
Habeus Corpus/Judicial Review

The High Court no longer has jurisdiction to entertain an application in relation to bail.

The High Court jurisdiction in respect of habeas corpus is unaffected. In Sumpter v Director of Public Prosecutions (6th July 2004, unreported), Treacy J. stated:

“The preservation of the Habeas Corpus remedy in these circumstances is not to be regarded as a substitute route for the now abolished inherent right of the High Court to grant bail after a decision by the Crown Court.

“The intention of Parliament plainly was to achieve a degree of finality in relation to Bail Act applications and decision making and the route which has been adopted today is not one which the court wishes to encourage.”

Prosecutors should be aware however that the possibility of a judicial review of a decision of bail still exists despite these changes, but authority indicates that this should be used sparingly – see R (ex parte R) v Snaresbrook Crown Court [2011] EWHC 3569 (Admin).

By the Defence
Under s. 81 of the Senior Courts Act 1981, a defendant may appeal a decision of a Magistrates Court to withhold bail, but only where he or she has obtained a certificate from the Magistrates (under s. 5(6A) of the Bail Act 1976) that they have heard full argument from the defendant before refusing his application.

Rule 14.8 of the Criminal Procedure Rules sets out what the Defence must include in its Notice of Application and how the Crown must respond. The CPS should note that the importance of seeking the views of the police and any identified victims as to any proposed conditions and should ensure that these applications are brought to the attention of the police as soon as possible. Where necessary, prosecutors should be proactive in seeking more time for a response to be received – see Crim. PR 14.8 (6) and (7).

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Failure to Surrender
It is an offence for a suspect released on bail in criminal proceedings, to fail without reasonable cause to surrender to custody – s. 6(1) of the Bail Act 1976.

It is an offence for a suspect released on bail in criminal proceedings, who having reasonable cause for failing to surrender at the appointed place and time, fails to surrender at that place and time as soon as is reasonably practicable thereafter – s. 6(2) of the Bail Act 1976.

It is punishable as a summary only offence (maximum penalty 3 months and/or a level 5 fine), or as a contempt of court. If sentenced in the Crown Court (whether dealt with as a contempt of court or committed to the Crown Court for sentencing) the maximum penalty is 12 months’ imprisonment and/or fine.

Commencing a prosecution
Where bail is granted by the police and the defendant fails to surrender, the police may charge him as long as the charge is laid within six months of him failing to surrender, or three months of him surrendering to custody, being arrested or being brought before the court for the offence for which he is bailed, whichever is sooner – ss. 6(11) – (14) of the Bail Act 1976.

Where a defendant is bailed by the police and fails to surrender at the first hearing, the prosecutor should make an oral application for an information to be laid in relation to both the offence under s. 6(1) and that under s. 6(2), as it cannot be anticipated at that stage when the defendant will surrender and whether he will advance a reasonable cause. Where the defendant is brought before the court, having not been charged by the police and with no information having been laid previously, the prosecutor may ask for an information to be laid at this stage, subject to the time limits as set out above.

Where a defendant has been bailed by the court and fails to surrender, the court may try him for that offence at any point after he has been brought before the court for that offence, irrespective of the length of time since he failed to surrender – s. 6(10) of the Bail Act 1976.

When a defendant fails to appear at Court, the prosecutors should generally apply to the Court for a warrant without bail. In exceptional circumstances, they may use their discretion as to whether a warrant backed for bail may be appropriate.

Evidential Considerations
Prosecutors need to consider whether:

The defendant was bailed in criminal proceedings

There is no need to call formal evidence unless contesting the defence of reasonable cause. The Court’s record of the grant of bail, or the charge sheet, if Police bail was granted, giving details of the time and date the defendant was due to surrender, will be sufficient.

There was a failure to surrender

Whether or not the defendant has failed to surrender to court bail will depend on the arrangements in the particular court to which the defendant is to surrender. The position may differ between the magistrates’ court and the Crown Court.

Magistrates Court – In DPP v Richards (1989) 88 Cr. App. R. 87 the defendant was on bail to appear at the magistrates’ court. The court displayed a notice which required all persons due to appear in court to report to the enquiry counter. The defendant did report and then complied with the instructions to wait in the concourse before becoming tired of waiting and leaving the building. Following conviction for failing to surrender the defendant appealed to the Crown Court, Glidewell LJ stated:

“… what precisely constitutes the person or body to whom a person on bail is to surrender depends upon the procedure followed at the particular court and the directions given in accordance with that procedure to the person who is coming to surrender … If having done so the person at the Inquiry office said: ‘Go to the cells and surrender to a prison officer’ that would have been the surrender. If the Inquiry officer says: ‘Go and sit in the concourse until your case is called,’ then the court procedure envisages that being the surrender to the court.”

Accordingly, in the magistrates’ court, what constitutes surrender may vary according to the arrangements which are made for accepting surrender at any particular court. In this instance, by surrendering to the enquiry desk, the defendant could not be said to have failed to surrender.

Even if the circumstances do not amount to a Bail Act offence, the court may still issue a warrant for the defendant’s arrest (s. 7(2)).

In R v Evans (Scott Lennon) [2011] EWCA Crim 2842, the defendant arrived at the Crown Court where he informed his advocate of his arrival. He left before his case was called and was convicted of failing to surrender.

The Court of Appeal did not agree that reporting to the usher amounted to surrendering.

Mere arrival at the Crown Court building does not constitute a surrender, neither did reporting to an advocate. Surrender has to be accomplished personally by the defendant.

“… in the absence of special arrangements either particular to the court or particular to the individual case, surrender to the Crown Court is accomplished when the defendant presents himself to the custody officers by entering the dock or where a hearing before the judge commences at which he is formally identified as present. Secondly, if there has been no previous surrender, as ordinarily there will have been it is also accomplished by arraignment. Thirdly, the position in the magistrates’ court may be the same, but may easily differ as explained in DPP v Richards.”

Reasonable Cause (excuse)
Under s. 6(3) of the Bail Act 1976, it is for the defendant to prove that he had a reasonable cause for failing to surrender. Error or forgetfulness is unlikely ever to amount to a reasonable excuse, but may be relevant mitigation for the court to consider (Laidlaw v Atkinson The Times (02 August 1986)).

Issuing of Medical Certificates

This guidance clarifies the roles and responsibilities of medical practitioners when issuing medical certificates in criminal proceedings.

Doctors will be aware that medical notes/certificates are normally submitted by defendants in criminal proceedings as justification for not answering bail; they may also be submitted by witnesses who are due to give evidence and jurors.

If a medical certificate is accepted by the court, this will result in cases (including contested hearings and trials) having to be adjourned rather than the court issuing a warrant for the defendant’s arrest without bail. Medical certificates will also provide the defendant with sufficient evidence to defend a charge of failure to surrender to bail.

However, a court is not absolutely bound by a medical certificate. The medical practitioner providing the certificate may be required by the court to give evidence. Alternatively the court may exercise its discretion to disregard a certificate, which it finds unsatisfactory – R v Ealing Magistrates Court Ex p. Burgess (2001) 165 J.P. 82.

Circumstances where a court may find a medical certificate to be unsatisfactory include:

Where the certificate indicates that the defendant is unfit to work (rather than to attend court);
Where the nature of the defendant’s ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court;
Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.
It therefore follows that as a minimum standard a medical certificate should set out:

The date on which the medical practitioner examined the defendant;
The exact nature of the defendant’s ailment;
If it is not self-evident, why the ailment prevents the defendant from attending court;
An indication as to when the defendant is likely to be able to attend court, or a date when the current certificate expires.
Medical practitioners should be aware that when issuing a certificate to a defendant in criminal proceedings they make themselves liable to being summonsed to court to give evidence about the content of the certificate, and may be asked to justify their statements.

This guidance on the issuing of medical certificates, which was originally agreed with the British Medical Association (BMA) after a period of consultation, is now Criminal Practice Directions CPD1 General Matter 5C Issue of Medical Certificates.

Public Interest Considerations
A prosecution will normally be in the public interest where a defendant has deliberately failed to attend with no reasonable cause unless he or she is able to put forward substantial mitigating circumstances.

Where a defendant has surrendered to bail at court later than the appointed time, consideration ought to be given to the following questions in deciding whether or not it is in the public interest to proceed with an offence of failing to surrender:

Has the defendant breached his bail before, in this case or in the past?
Has there been any inconvenience to the court generally?
If late on the date for trial, whether any witnesses have been inconvenienced
Has any reason offered by the defendant for his late appearance; and
Has the defendant arrived at court at a time after a warrant for his arrest has been issued?
Procedure
Where the court is looking to proceedings for failure to surrender (separate to consideration as to whether bail should be revoked or amended), it should consider the content of Criminal Practice Direction (Custody and Bail) [2013] 1 W.L.R 3164, the main requirements of which are:

These offences should be dealt with as soon as practicable, and where possible, at the first hearing after arrest, as its outcome will be relevant to the consideration of bail.
Proceedings for failing to surrender ought not to be adjourned, even the proceedings for the offence that led to the grant of bail are adjourned. If an application to adjourn is made, the court will need to consider all of the circumstances including likely length of proceedings and the penalty that might be imposed for failing to surrender
even if the defendant fails to surrender to court bail, it is the prosecutor who conducts proceedings.
Bail should be reconsidered in the light of the failing to surrender.
A separate penalty should be considered for the failing to surrender.
The court should give reasons in open court if it decides not deal with the Bail Act offence at the earliest opportunity.

If proceedings are sent to the Crown Court, then, the defendant can be committed for sentence to the Crown Court, but only if convicted in the magistrates’ court – s. 6(6) of the Bail Act 1976.

If the defendant is sentenced for the Bail Act offence at the same time as for the substantive offences, then any term of imprisonment for failure to surrender should run consecutively to any other term of custody.

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Bail Applications involving the Official Solicitor
The Official Solicitor to the Supreme Court acts for defendants in custody who wish to apply for bail but are unable to do so through lack of means to instruct a solicitor – (RSC, Order 79 r 9).

The procedure is that the defendant completes the appropriate Home Office form and the Prison or Remand Centre should send the form to the Official Solicitor and a copy, for information, to the local Crown Court Centre. At the same time the Prison or Remand Centre sends a request for a report in the form of a standard letter and questionnaire direct to the Police Station dealing with the defendant’s case. The questionnaire requests details of any objections to bail.

In the light of s. 15(3) of the Prosecution of Offences Act 1985, it has been decided (with the concurrence of the Official Solicitor) that responsibility for the content of the completed form should rest with the Crown Prosecution Service rather than the Police.

The questionnaire should be properly completed by a Prosecutor and returned to the office of the Official Solicitor. Thereafter the Official Solicitor will deal with the CPS Unit Office.

The Official Solicitor’s address is:

81 Chancery Lane,
London
WC2A 1DD

Telephone: General Enquiries – 020 7911 7127
Fax: 020 7911 7105
DX 0012 London Chancery Lane WC2
Email enquiries@offsol.gsi.gov.uk.

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File Endorsements
It is vital that grounds for objecting to bail and the reasons for court decisions are accurately recorded by both the Crown and the Court. This information should be recorded by the prosecutor on the electronic Hearing Record Sheet (HRS).

Prosecutors, whether reviewing a case or appearing as advocates, should ensure that the following information is recorded:

The bail or custody representations, including any proposed conditions;
The results of any discussions with the Police concerning bail;
Full reasons for the bail or custody representations referring to the relevant provisions of the Act where conditional bail or a remand in custody is suggested;
Recommendations, applications and decisions resulting from considering the provisions of the Bail (Amendment) Act 1993 (BAA);
A full note of the Court’s decision and the grounds for the decision;
Where appropriate, the oral notice and the time it was given in relation to an appeal under the BAA; and
Any relevant information which would not be readily apparent from the papers on the file.
Given that bail can be re-visited at various stages of a case (including appeals by the prosecution against the granting of bail), it is important that the Crown’s objections to bail and the Court’s decision (including which grounds if any it upholds) are clearly noted by all parties and the Court.


Adopted and Modified from : Crown Prosecution Service

Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra[SC 2017][bail granted ]

Keywords:-bail application-investigational rights  of agency

Criminal Law-min

  • An accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.
  • At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.

Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra

[Criminal Appeal No. 1448 of 2017 arising out of Special Leave Petition (CRL.) No. 3716 of 2017]

Acts: Section 43(D)(5) of the UAP,

  1. History: appellant is in jail since last about eight years and eight months and the delay is on account of the prolonged time taken by the investigation agencies
  2. Offences under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code, 1860 (in short ‘the IPC’) read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959.
  3. ATS, Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 5 18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the Explosive Substances Act.
  4. After filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi 6 as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIA re-registered the offence in respect of the said incident as CR No. 5/11. The NIA submitted supplementary charge sheet dropping the charges under MCOCA against all the accused persons including the appellant herein.

Bench:  (R.K. AGRAWAL) (ABHAY MANOHAR SAPRE)

R.K. Agrawal, J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 25.04.2017 passed by the High Court of Judicature at Bombay in Criminal Appeal No. 664 of 2016 whereby the Division Bench of the High Court dismissed the bail application filed by the appellant herein.

3. Brief facts:

a. On 29.09.2008, at around 9:35 p.m., a bomb explosion took place at Malegaon, District Nasik, opposite Shakil Goods 2 Transport Company between Anjuman Chowk and Bhiku Chowk. The said blast was caused by explosive device fitted in LML Freedom Motor Cycle bearing Registration No. MH-15-P-4572. As a result of the said explosion, six persons were killed and about 100 persons had received injuries of various nature. Damage to the property was also caused.

b. The offence came to be registered under CR No. 130/2008 in Azad Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code, 1860 (in short ‘the IPC’) read with Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5 and 25 of the Arms Act, 1959.

c. During the course of investigation, the samples collected from the place of offence were sent to the Forensic Science Laboratory at Nasik and the same were found to be containing Cyclonite (RDX) and Ammonium Nitrate. On 18.10.2008, the provisions of Sections 15, 16, 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in short ‘the UAP Act’) were invoked and the case was entrusted to Deputy Superintendent of Police, (HQ), Nasik Rural. On 3 26.10.2008, the Anti-Terrorist Squad (ATS), Mumbai took charge of the investigation and on 29.11.2008, the provisions of Maharashtra Control of Organized Crime Act, 1999 (in short ‘the MCOC Act) were added.

d. During investigation, it was found that the appellant herein, along with other co-accused in the case, entered into a criminal conspiracy between January, 2008 to October, 2008 with a common object and intention to strike terror in the minds of people caused bomb blast at Malegaon by using explosive substances to cause damage to life and property and to create communal rift. According to ATS, the appellant herein had brought RDX with him from Kashmir for the purpose of Bomb Blast at Malegaon.

e. During investigation, it has been further revealed by the ATS that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities). The appellant herein floated ‘Abhinav Bharat’ organization in the year 2007 inspite of being serving as a Commissioned Officer in Armed Forces. The other co-accused in the case were also the members of the said 4 organization. The object of the Organization was to turn India into a Hindu Rashtra called as ‘Aryavrat’. They had planned to train persons for guerrilla war and had also decided to kill the persons opposing their object of formation of a Hindu Rashtra.

As per the investigation, it has also come out that the appellant herein along with other persons had participated in various meetings of the said Organization to discuss various aspects for achieving their goals. Further, it is the case of the ATS that the organization, viz., ‘Abhinav Bharat’ is an Organized Crime Syndicate and its members including the appellant herein were active since 2003. In one of the meetings at Bhopal, on 11/12 April, 2008, the criminal conspiracy to cause bomb blast at Malegaon was hatched. In the said meeting, the appellant herein took the responsibility of providing explosives for the common object in order to take revenge of ‘Jihadi’ activities by Muslim community.

f. After completion of the investigation, on 20.01.2009, the ATS, Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A read with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 5 18, 20 and 23 of the UAP Act, Sections 3(1)(i), 3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the Explosive Substances Act.

g. The appellant came to be arrested on 05.11.2008 in connection to the said offence. The appellant herein preferred a Bail Application being No. 42 of 2008 before the Special Judge under MCOCA for Greater Mumbai. By order dated 31.07.2009, the Special Judge discharged the appellant and other co-accused from the offences under MCOC Act and directed to transfer the case to the regular court at Nasik. The State Government, being aggrieved by the order dated 31.07.2009, filed an appeal being 866 of 2009 before the High Court.

A Division Bench of the High Court, vide order dated 19.07.2010, set aside the order dated 31.07.2009 and restored the bail application filed by the appellant herein for hearing on merits. The appellant herein went in appeal before this Court and filed Criminal Appeal Nos. 1969-1970 of 2010. It would be appropriate to mention here that after filing of the charge sheet by ATS, Mumbai, the investigation of the same was started by the National Investigation Agency, (NIA), New Delhi 6 as per the order of the Government of India dated 01.04.2011 and on 13.04.2011, the NIA re-registered the offence in respect of the said incident as CR No. 5/11.

h. This Court, in Prasad Shrikant Purohit vs. State of Maharashtra and Another (2015) 7 SCC 440, dismissed the criminal appeals filed by the appellant herein while restoring the Bail Application No. 42 of 2008 to the file of the Special Judge for passing orders on merits. On the question of applicability of the MCOC Act, this Court has observed as under:-

“95. In the light of our above conclusions on the various submissions, we are convinced that in respect of the appellant in Criminal Appeal No. 1971 of 2010, namely, A-7, there is no scope even for the limited purpose of Section 21(4)(b) to hold that application of MCOCA is doubtful. We have held that the said appellant A-7 had every nexus with all the three crimes, namely, Parbhani, Jalna and Malegaon and, therefore, the bar for grant of bail under Section 21 would clearly operate against him and there is no scope for granting any bail.

Insofar as the rest of the appellants are concerned, for the purpose of invoking Section 21(4)(b), namely, to consider their claim for bail, it can be held that for the present juncture with the available materials on record, it is not possible to show any nexus of the appellants who have been proceeded against for their involvement in Malegaon blast with the two earlier cases, namely, Parbhani and Jalna.

There is considerable doubt about their involvement in Parbhani and Jalna and, therefore, they are entitled for their bail applications to be considered on merits.” Vide order dated 12.10.2015, the Special Judge, rejected the bail application of the appellant herein. Aggrieved by the decision dated 12.10.2015, the appellant herein preferred a Criminal Appeal being No. 138 of 2016 before the High Court. During the pendency of the aforesaid appeal before the High Court, the NIA submitted supplementary charge sheet dropping the charges under MCOCA against all the accused persons including the appellant herein.

In view of the supplementary charge sheet by the NIA, the High Court permitted the appellant herein to file fresh bail application.

(i) The appellant herein filed a fresh bail application before the Court of Special Judge under MCOC Act, 1999 and NIA Act, 2008 for Greater Mumbai. The Special Judge, vide order dated 26.09.2016, denied the bail to the appellant herein. Being aggrieved by the order dated 26.09.2016, the appellant herein went in appeal before the High Court and filed Criminal Appeal No. 664 of 2016. The NIA resisted the bail application of the appellant herein on various grounds before the High Court. On 25.04.2017, a Division Bench of the High Court, dismissed the bail application of the appellant herein. Aggrieved by the order dated 25.04.2017, the appellant has filed this appeal before this Court by way of special leave.


4. Heard Mr. Harish Salve, learned senior counsel for the appellant herein and Mr. Maninder Singh, learned Additional Solicitor General for the respondent-State and Mr. Amarendra Sharan, learned senior counsel for the intervenor-Nisar Ahmed Haji Sayed Bilal, who is the father of one of the deceased.

Point(s) for consideration:-

5. The only point for consideration before this Court is whether in the present facts and circumstances of the case, the appellant has made out a case for grant of bail or not?

Rival contentions:-

6. Mr. Harish Salve, learned senior counsel for the appellant herein contended before this Court that in view of the supplementary report filed by the NIA, dropping the charges in respect of the offences under the MCOC Act, it has to be held that there is no prima facie case against the appellant herein. Learned senior counsel further contended that earlier, the bail applications were rejected mainly on the basis of the confessional statements of the co-accused under the MCOC Act and now, as the charges under the MCOC Act have been dropped, the confessional statements of the co-accused are required to be excluded from consideration and in their absence thereof, there is no incriminating material against the appellant herein so as to deny him the benefit of bail.

Learned senior counsel further contended that during investigation by NIA, PW-79, PW-112 and PW-55 have retracted their previous statements made before the ATS. The fact that the material witnesses have retracted from their statements while complaining about the harassment and torture meted out by the officers of the ATS, clearly indicate that the investigation carried out by the ATS was not fair but it was tainted. The statements and confessions have been extracted subjecting the witness and co-accused to the torture and duress, under the threats of implicating them falsely. Learned senior counsel contended that in view of the withdrawal of those statements and confessions, there remains nothing on record to implicate the appellant herein with the alleged offence.

7. Learned senior counsel further contended that the appellant was a Military Intelligence Officer at the relevant 10 time and had participated in the meetings held at various places like Faridabad, Bhopal etc. in discharge of his duties as such for collecting intelligence and creating new sources and the said fact has also been revealed in the Report of Court of Inquiry (CoI) conducted by the Army Officers against him as well as in the reply filed by the Ministry of Defence and the documents filed by the said Ministry in the Special Court. Learned senior counsel further contended that there was no sufficient material to show that in the said meetings, any conspiracy was hatched to commit the bomb blast at Malegaon.

8. Learned senior counsel vehemently contended the statement of PW-21 that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence in order to suggest that no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence. Even the appellant herein also informed that it was a ‘covert operation’ of Military Intelligence.

9. Learned senior counsel further contended that the Report of Inquiry (RoI) also reveals that the RDX was planted by the ATS officer in the house of Sudhakarn Chaturvedi (A-11). The statements of PW-180 and PW-183 also indicate the same but the courts below disbelieved the version of NIA in this regard.

10. Further, learned senior counsel strenuously contended that whether the amended provision of Section 43(D)(5) of the UAP Act be applied retrospectively to the appellant herein.

The said provision had been amended on 31.12.2008 while the incident had taken place on 29.09.2008. He further contended that the High Court was not right in holding that the right of bail of the accused is a procedural right and cannot be considered as a substantive right for retrospective applicability of the provision. Further, the sanction granted for prosecution of the appellant under Section 45(1) of the UAP Act was not valid.

He further stressed upon the point that the High Court erred in ignoring the Doctrine of Parity while granting bail to Pragya Singh Thakur (A-1) wherein the court has taken into account the changed circumstances in the charge sheet filed by the NIA but the very same facts have been ignored in the case of the appellant herein. Learned senior counsel finally submitted that the appellant is in jail since last about eight years and eight months and the delay is on account of the prolonged time taken by the investigation agencies and the appellant herein has a good prima facie case to succeed for grant of bail before this Court.

11. Learned Additional Solicitor General (ASG) for the respondent-State strongly controverted the contentions raised by learned senior counsel for the appellant herein by submitting that he was the main conspirator and prima facie there is sufficient material on record to prove his involvement in the alleged offence. Merely because the charges have been dropped under the MCOC Act, it does not mean that there is no material against the appellant herein in respect of other charges. The NIA has given clean chit to Pragya Singh Thakur (A-1) and some other accused person but it has not exonerated the appellant herein from the charges leveled against him which clearly proves that the NIA has also found sufficient material to implicate the appellant.

12. Learned ASG finally submitted that the conclusions about involvement of the appellant herein in the offences alleged against him as drawn by the ATS are supplemented and supported by the NIA officers in their detailed investigation. Having regard to the gravity and seriousness of the offence, which were in the nature of waging war against the unity and integrity of the Nation, and, that too, by violent means, the bail application of the appellant could not have been allowed and it has rightly been rejected by the courts below and no interference is sought for by this Court.

13. Mr. Amarendra Saran, learned senior counsel for the intervenor submitted that there are sufficient material and evidence on record to establish a prima facie case of the involvement of the appellant herein in the criminal offence and the report of the Court of Inquiry (CoI) submitted by the Military authorities cannot be taken into consideration for deciding the question of grant of bail.

Discussion:-

14. In order to prove the prima facie case against the appellant, the prosecution has relied upon the transcription of 14 the conversations of the meetings obtained from the laptop of Swami Amrutanand (A-10), statement of prosecution witnesses recorded under Sections 161 and 164(5) of the Code of Criminal Procedure, 1973 (in short ‘the Code’), intercepted telephonic conversations between the appellant herein and co-accused persons and lastly the finding of traces of RDX in the house of co-accused Sudhakar Chaturvedi (A-11).

With regard to the transcription of the conversations of the meetings, it was urged from the side of the appellant that there was no such conspiracy hatched between the persons present in the meeting to commit bomb blasts at Malegaon and the persons present have expressed their general opinion about the then prevailing political and social situation. In this backdrop, it is relevant to note that the appellant herein was a serving Army Officer and was associated with Military Intelligence and Interior Terrorism (Insurgency Activities).

In the statement of PW-21, it has been revealed that immediately after the alleged conspiracy meeting, he found the appellant herein disclosing the details of the said meeting to his superior officers in Military Intelligence. Even the appellant herein also informed that it was a ‘covert operation’ of Military Intelligence and he attended the said meetings to create the counter intelligence and no conspirator will ever divulge the details of the conspiracy to the superior officers in Military Intelligence. Besides this, the documents filed by the Ministry of Defence and the papers of the Court of Inquiry also substantiate the claim of the appellant herein. Similarly, intercepted telephonic conversations between the co-accused and the appellant herein were supported as part of duty.

15. The NIA started the investigation on the basis of the facts stated in the FIR and the evidence collected by the ATS, Mumbai. During investigation, it was found that there were contradictions with regard to the evidence led in the charge sheet by the ATS. On the basis of the specific points covered during the investigation conducted by the NIA, it was concluded that no offence under the MCOC Act was attracted and the confessional statements recorded under the provisions of the said Act by ATS Mumbai were not being relied upon by the NIA in the charge sheet against the accused persons. In fact, on evaluation of the evidence against Pragya Singh 16 Thakur (A-1), the evidence on record were not found sufficient by the NIA to prosecute her as all the witnesses had retracted from their statements and thus no case was made out against her.

16. As regards the other parameters to be considered while deciding the application of bail, like, reasonable apprehension of the witnesses being tampered with and danger, of-course, of justice being thwarted by grant of bail, needless to state that already some of the witnesses have retracted their statements made before the ATS. A perusal of the statements of various prosecution witness recorded under Section 164 of the Code by the NIA, it was revealed that the ATS, Mumbai forced them to make the statements under the aforesaid Section by threatening them to falsely implicate them in the case. In other words, witnesses retracted from their statements recorded by the ATS, Mumbai at Mumbai.

Even during re-examination of PW-79 recorded under Section 164 of the Code, he deposed that he did not attend any meeting of ‘Abhinav Bharat’ held at Bhopal and he had never visited Bhopal until ATS took him to Ram Mandir, Bhopal in the month of May, 2009. The very same statement was again recorded at Delhi by learned Metropolitan Magistrate, where he confirmed the same.

17. In view of the above, it would be relevant to quote the retracted statement of PW-55, mentioned in the charge sheet filed by the NIA, wherein he stated that he did not retract in front of the Magistrate while his statement was being recorded under Section 164 of the Code due to threat and pressure of the ATS. However, he sent one complaint to Maharashtra State Human Rights Commission, Mumbai on 05.10.2009 stating that he was forced to give the confessional statement as dictated to him by the ATS Mumbai that too before transfer of the investigation of the case to the NIA. He further alleged that the following lies were dictated to him to depose before the Magistrate by the ATS which he also incorporated in the complaint sent to State Human Rights Commission which are as under:-

(1) That Lt. Col. Prasad Purohit gave him 3 weapons and ammunition to be kept in his house for a month sometime in 2006. The description of the weapons was also dictated to him.

(2) That he saw RDX in the house of Lt. Col. Prasad Purohit in a green sack at Devlali.

(3) That Lt. Col. Purohit confessed to him about having supplied RDX for Samjhauta Express Blast.

(4) That Lt. Col. Purohit told him in the early 2008 that something was planned to be done soon. He further told him that an action was planned in Nashik District in Oct/Nov. 2008.

(5) That he was asked to say that Lt. Col. Purohit had confessed to him about planning and executing the Malegaon blast along with his accomplices.

18. Apart from the above, during the investigation by the NIA, it was revealed that the Army authorities had conducted a Court of Inquiry (CoI) against the appellant herein. During scrutiny of the proceedings of the CoI, a different story of assembling of IED in the House of Sudhakar Chaturvedi (A-11) came to light. During re-examination of the witnesses by the NIA who deposed before the Court of Inquiry (CoI), it was revealed that they suspiciously found API Bagde of ATS in the house of A-11 when A-11 was not present in the house. On considering the facts narrated by the witnesses, the question arises here as to why API Bagde visited the house of A-11 in his absence. It is also pertinent to mention her that the ATS conducted the search of the house of A-11 on 25.11.2008 wherefrom they had taken the swab of RDX which creates a doubt on the recovery of RDX keeping in view the examination of the witnesses.

Even in the charge sheet filed by the ATS, it has been very specifically mentioned that the recovery itself becomes suspect on the ground that the ATS Mumbai may have planted the RDX traces to implicate him and the other accused persons in the case.

19. Further, with regard to the contention of learned senior counsel as to the non-applicability of Section 43-D(5) of the UAP Act or want of valid sanction for the prosecution, it was rightly suggested by the learned ASG that it can be considered at the time of trial and not at this stage.

Conclusion:-

20. In our considered opinion, there are material contradictions in the charge sheets filed by the ATS Mumbai and the NIA which are required to be tested at the time of trial and this Court cannot pick or choose one version over the other. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational rights of the agency. It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case.

21. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.

22. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.

23. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused.

24. In view of the foregoing discussion, we are of the considered opinion that there are variations in the charge sheets filed by ATS Mumbai and NIA. Further, the appellant herein, who was at the relevant time was an Intelligence officer of the Indian Army has refuted the claim of conspiracy on the ground of Intelligence inputs which he informed to his superior officers as well and the alleged role of ATS officials in the planting of RDX at the residence of A-11 clearly indicate the fresh grounds which persuade the appellant herein to take a view different from the one taken in the earlier applications. As mentioned earlier, at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken.

However, keeping in view the fact that NIA has submitted the supplementary charge-sheet which is at variance with the charge-sheet filed by the ATS and that the trial is likely to take a long time and the appellant has been in prison for about 8 years and 8 months, we are of the considered view that the appellant has made out a prima facie case for release on bail and we deem it appropriate to enlarge the appellant herein on bail, subject to the following conditions:

(i) On his furnishing personal security in the sum of Rs 1 (one) lakh with two solvent sureties, each of the like amount, to the satisfaction of the trial court.

(ii) The appellant herein shall appear in court as and when directed by the court.

(iii) The appellant herein shall make himself available for any further investigation/interrogation by NIA as and when required.

(iv) The appellant herein shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade that person from disclosing such facts to the court or to the investigating agency or to any police officer.

(v) The appellant herein shall not leave India without the previous permission of the trial court.

(vi) In case the appellant herein is in possession of a passport, the same shall be deposited with the trial court before being released on bail.

(vii) We reserve liberty to the respondents to make an appropriate application for modification/recalling the order passed by us, if for any reason, the appellant herein violates any of the conditions imposed by this Court.

25. It is further made clear that the grant of bail to the appellant herein shall be no consideration for grant of bail to other accused persons in the case and the prayer for bail by other accused persons (not before us) shall be considered on its own merits. We also make it clear that the Special Court shall decide the bail applications, if filed by the other accused persons, uninfluenced by any observation made by this Court. Further, any observations made by us in this order shall not come in the way of deciding the trial on merits.

26. In view of the above, we set aside the judgment passed by the High Court dated 25.04.2017 and grant bail to the appellant herein on the conditions mentioned above. Intervention Application is allowed. The appeal is allowed.

J. (R.K. AGRAWAL)

J. (ABHAY MANOHAR SAPRE)

NEW DELHI;

AUGUST 21, 2017.

Bail Allowed applying “similarly placed as the other two accused” principle

18-04-2011

Supreme Court-min

Commercial Crime -Customs Act, 1872—Sections 132 and 135—Penal Code, 1860—Sections 120B, 417, 420, 468 and 471.

(SUPREME COURT OF INDIA)

Sumeet Saluja Appellant
Versus
State of U.P. tr. cbi Respondent

(Before : Altamas kabir and Cyriac Joseph, JJ.)

Criminal Appeal No. 953 of 2011 (Arising out of SLP (Crl.) No. 1863 of 2011) : Decided On: 18-04-2011

ORDER

1. Leave granted.

2. This appeal is directed against the judgment and order dated 13th January, 2011, passed by the Allahabad High Court, rejecting the Petitioner’s prayer for grant of bail in Crl. Misc. Bail Application No. 34595 of 2010.

3. There are three accused in this case. Charge-sheet has been filed against all of them on 8th December, 2010, under Sections 120B, 417, 420, 468, 471 IPC and 132 and 135 of the Customs Act, P.S.C.B.I. Ghaziabad. While apart from the Appellant, one of the other two accused, Mr. Surinder Singh has been granted bail after his arrest, the third accused, Gyan Chand filed a writ petition, being No. 37 of 2011, in this Court, in which directions have been given that he should not be arrested in connection with the case in question.

4. The present Appellant is in custody since 11th October, 2010, and it appears that he is similarly placed as the other two accused. Accordingly, the appeal is allowed.

5. Let the Appellant be released on bail to the satisfaction of the trial court, upon such conditions, as may be considered necessary to ensure his presence at the time of trial. Such conditions may also include, reporting to the SHO of the local police station once every month until further orders and deposit of his passport to the court.

6. Since this matter involves a question of some importance as far as commercial crimes are concerned, let the trial be completed as quickly as possible, without unnecessary adjournments and delay.

Rushikesh Tanaji Bhoite Versus State Of Maharashtra & Ors [2012 SC]

Criminal Law-min

04-01-2012

Bail-Detention

When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.

The other offenses referred to in the order of detention suffer from remoteness and want of proximity to the order of detention.

Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE ORIGINAL JURISDICTION
CRIMINAL APPEAL NO. 24 OF 2012
[ARISING OUT OF SLP (CRL.) NO. 6118 OF 2011]

RUSHIKESH TANAJI BHOITE Appellant

VERSUS

STATE OF MAHARASHTRA & ORS. Respondents

J U D G M E N T
R.M. Lodha, J.

1. Leave granted.

2. We have heard Dr. A.M. Singhvi, learned senior counsel for the appellant, Mr. Shankar Chillarge, learned counsel for the State of Maharashtra and Mr. Suhas Kadam, learned counsel for the respondent no. 4.

3. On January 10, 2011, the District Magistrate, Jalgaon in exercise of the powers conferred upon him by sub-section (1) of Section 3 of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981 (for short ‘the 1981 Act’) and the Government Order Home Department (Special) Mantralaya, Mumbai No. DDS 1210/Cr-207/SPL-3(B) dated 31.12.2010 directed Tanaji Keshavrao Bhoite resident of Kishavkunj, Bhoite Nagar, Jalgaon to be detained under the provisions of the 1981 Act. This order was followed by another order of the same date directing that Tanaji Keshavrao Bhoite shall be detained in Central Prison, Nagpur.

4. The legality of the detention order dated January 10, 2011 was challenged by the present appellant, who is son of the detenu, in the Bombay High Court at Aurangabad Bench, Aurangabad. The Division Bench of that Court dismissed the Criminal Writ Petition filed by the appellant on May 13, 2011. It is from this order that the present appeal, by special leave, has arisen.

5. Dr. A.M. Singhvi, learned senior counsel for the appellant urged diverse grounds in challenging the order of the High Court. We do not want to deal with all the grounds urged by Dr. A.M. Singhvi as in our view, appeal deserves to be allowed on the short ground that we indicate hereinafter.

6. In pursuance of Section 8 of 1981 Act, the detenu was supplied with the grounds for detention setting out therein particulars of offences and the action taken against him. The offences registered against the detenu way back in the year 1980 upto the last offence registered on August 14, 2010 have been noted by the detaining authority in reaching at the satisfaction that the detenu’s activities were prejudicial to the maintenance of public order and he was dangerous person within the meaning of Section 2 (b-1) of the 1981 Act. The last criminal case referred to in the grounds is against the detenu for the offences under Sections 143, 147, 323, 504, 506, 353, 427 of the Indian Penal Code read with Section 7 of Criminal Law Amendment Act read with Section 37 (1)(3) for breach of Section 135 of the Bombay Police Act, 1951, registered at Dharangaon Police Station on August 14, 2010.

7. The admitted position is that detenu was arrested in connection with the above crime on August 15, 2010 and he was released on bail by the Judicial Magistrate, 1st Class, Dharangaon on that very day. One of the conditions imposed in the Order of Bail was that the detenu would appear at Dharangaon Police Station on every Monday between 10.00 a.m. to 12 O’Clock till the charge-sheet was filed. Later on, the detenu made an application before the Judicial Magistrate, 1st Class, Dharangaon seeking relaxation of the above condition. That application was allowed and the above condition was relaxed by the concerned Judicial Magistrate on January 4, 2011.

8. It would be, thus, seen that the order releasing the detenu on bail in the crime registered on August 14, 2010 and the order relaxing the bail condition were passed by the Judicial Magistrate, 1st Class, Dharangaon much before the issuance of detention order dated January 10, 2011. However, the detention order or the grounds supplied to the detenu do not show that the detaining authority was aware of the bail order granted in favour of the dentenu on August 15, 2010.

9. In a case where detenu is released on bail and is enjoying his freedom under the order of the court at the time of passing the order of detention, then such order of bail, in our opinion, must be placed before the detaining authority to enable him to reach at the proper satisfaction.

10. In the present case, since the order of bail dated August 15, 2010 was neither placed before the detaining authority at the time of passing the order of detention nor the detaining authority was aware of the order of bail, in our view, the detention order is rendered invalid. We cannot attempt to assess in what manner and to what extent consideration of the order granting bail to the detenu would have effected the satisfaction of the detaining authority but suffice it to say that non-placing and non-consideration of the material as vital as the bail order has vitiated the subjective decision of the detaining authority.

11. A three Judge Bench of this Court in the case of Rekha vs. State of Tamil Nadu Through Secretary to Government and Another, reported in (2011) 5 SCC 244, decided recently held as under:

“In this connection,it may be noted that there is nothing on the record to indicate whether the detaining authority was aware of the fact that the bail application of the accused was pending on the date when the detention order was passed on 08.04.2010. On the other hand, in para 4 of the grounds of detention it is mentioned that “Thiru. Ramakrishnan is in remand in crime No. 132/2010 and he has not moved any bail application so far”. Thus, the detaining authority was not even aware whether a bail application of the accused was pending when he passed the detention order, rather the detaining authority passed the detention order under the impression that no bail application of the accused was pending but in similar cases bail had been granted by the courts. We have already stated above that no details of the alleged similar cases has been given. Hence, the detention order in question cannot be sustained.”

12. In the case of Rekha (supra), the detention order was held to be bad as the detaining authority was not aware of the fact that the bail application of the detenu was pending on the date when the detention order was passed. In the present case, the detenu was already released on bail but the detaining authority was not aware of the fact of grant of bail to the detenu.

13. A reference to the decision of the majority view in the case of Vijay Narain Singh vs. State of Bihar and Others, reported in (1984) 3 SCC 14, may not be out of the context. In paragraph 32 of the Judgment, Venkataramiah, J. (as His Lordship then was) speaking for the majority observed as follows:

“When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.”

14. The other offences referred to in the order of detention suffer from remoteness and want of proximity to the order of detention. None of the criminal cases, except the offence registered on August 14, 2010, referred to in the grounds for detention, can be said to be proximate to the order of detention.

15. In view of the above, we are satisfied that the order of detention dated January 10, 2011 cannot be sustained and has to be set aside. We order accordingly.

16. Appeal is allowed and the order dated May 13, 2011 passed by the Bombay High Court, Aurangabad Bench, Aurangabad, is set aside. The detenu – Tanaji Keshavrao Bhoite – is ordered to be released forthwith, if not required in any other case.

17. In light of the above order, no order is required to be passed on the Application for Impleadment and the same stands disposed of accordingly.

(R.M. Lodha)

(H.L. Gokhale)


(H.L. Gokhale) New Delhi, January 4, 2012 ITEM NO.201 COURT NO.10 SECTION IIA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl) No(s).6118/2011 (From the judgement and order dated 13/05/2011 in CRLWP No.123/2011 of The HIGH COURT OF BOMBAY AT AURANGABAD) RUSHIKESH TANAJI BHOITE Petitioner(s) VERSUS STATE OF MAHARASHTRA & ORS. Respondent(s) (With appln(s) for permission to file additional documents and impleadment and permission to file rejoinder affidavit and office report) (FOR FINAL DISPOSAL) Date: 04/01/2012 This Petition was called on for hearing today. CORAM :

HON’BLE MR. JUSTICE R.M. LODHA HON’BLE MR. JUSTICE H.L. GOKHALE For Petitioner(s) Dr. A.M. Singhvi,Sr.Adv.

Mr. Jayant Bhushan,Sr.Adv.

Mr. Shivaji M. Jadhav,Adv.

Mr. Anish R. Shah,Adv.

Mr. Jayant Bhatt,Adv Mr. Nishant R Katneshwarkar,Adv.

For Respondent(s) Mr. Shankar Chillarge,Adv.

Mr. Asha Gopalan Nair,Adv.

Mr. Debasis Misra ,Adv for Res. No. 4 Mr. Suhas Kadam,Adv.

Mr. Debasis Misra,Adv.

UPON hearing counsel the Court made the following O R D E R Judgment has been dictated. Release of full Judgment may take time. It is, therefore, directed that following operative Order may be issued:

“The appeal is allowed and the Order dated May 13, 2011 passed by the Bombay High Court, Aurangabad Bench, Aurangabad is set aside.
The Detenu – Tanaji Keshavrao Bhoite – is ordered to be released forthwith, if not required in any other case.”

(N.K. Goel) (Renu Diwan)
Court Master Court Master

…………………………J.
(R.M. Lodha)
…………………………J.
(H.L. Gokhale)

New Delhi,
January 4, 2012

Bail Granting Policy

SUPREME COURT

PRINCIPLES FOR GRANTING BAIL

A balance is required to be maintained between the personal liberty of the accused and the investigation rights of the agency. It must result in minimum interference with the personal liberty of the accused and the right of the agency to investigate the case[Lt. Col. Prasad Shrikant  Purohit versus state of Maharashtra 21.08.2017] More-