Bail in Non-Bailable Offence

Liberty of a person is of great importance and  most important Fundamental right guaranteed in the Indian Constitution. Grant or refusal of Bail to an accused is the matter that has to be handled with caution and efficiency. Even the Code of Criminal Procedure, 1973 speaks for the grant of bail because BAIL and not  JAIL is what the aim of the Law is.

The judges in the matters of the Bail is in no need to use any calculations or research any special provisions of law as bail in bailable offence is a matter of course, and that has to be done at a pre-trial stage. The actual interpretation  of Judiciary   comes   when the offence is Non Bailable.

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

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

(I) such person shall not be so released if there appear reasonable grounds for believing

That he has been guilty of an offence punishable with death or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable offence and he had

Been previously convicted of an offence punishable with death, imprisonment for life or

Imprisonment for seven years or more, or he had been previously convicted on two or

More occasions of a non-bailable and cognizable offence:

Provided that the Court may direct that a person referred to in clause (I) or clause (ii) be released on bail 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.

(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,  conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) the Court may impose any condition which the Court considers necessary—

(a) In order to ensure that such person shall attend in accordance with the conditions of

The bond executed under this Chapter, or

 (b) In order to ensure that such person shall not commit an offence similar to the offence

Of which he is accused or of the commission of which he is suspected, or

(c) Otherwise in the interests of justice.

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

Evidence in the case, such person shall, if he is in custody during the whole of the  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.

Even though bail is a matter of right and not a matter of choice ,  person cannot exercise this right for indefinite times. He cannot go on filing bail applications, because if he does so then that will amount to an abuse of process of the court and consequently will disturb the already set law. Any fresh application for the grant of the bail by an accused person without any substantial change of the facts and circumstances of the case in no circumstances is maintainable and must be dismissed; court must evaluate the entire available material against the accused carefully. Also bail may be granted in non-bailable offences if the investigating  offciers think that there prevails no more need of detention of accused then bail can be  granted. But there must prevail such sufficient reasons for so. Through principles of Res Judicata and principles analogous thereto are not applicable in criminal proceeding, still the courts are bound by doctrine of judicial discipline, having regard to the hierarchical system prevailing in the country[1]. When bail applications are made in higher courts after rejected by lower court, the higher court should not ignore the reasons why lower court rejected the bail and due weight should be given to those  reasons for rejection before entertaining application and granting bail. Similarly Court cannot cancel bail, once granted and that its cancellation is subject to provisions under section 437(5) of the Code of Criminal Procedure, 1973 and that these powers are to be exercised in extraordinary circumstances only.

It can be said that judges should exercise their immense power of interpretation of law,

The court must try to determine that how the provision of Bail even after not being a matter of right in case of non-bailable offences still stands firmly by the accuse and is helpful in protecting his basic right to life i.e freedom.[2]"No person shall be deprived of his life or personal liberty except according to procedure established by law." Liberty is a dynamic concept, therefore, continual research is necessary to regularly assess the changing dimension of the right to personal liberty guaranteed.  .The entire intention of law is justice. And that of punishment is to set an example in society of the consequences that one could meet with if they violate or disobey the law, it is not to put  somebody behind the bars even before they are proven guilty by giving priority in granting bail. Before refusing bail in non-bailable offences the court must from every side of the case should analyse the following factor with complete caution and acute sense of judgement[3]. Arrest should be the last option and that too when there is no room left for the judge to grant bail. [4]The factors that can be taken into consideration is as follows:

The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made.

The antecedents of the applicant including   the fact as to whether the  accused has   previously undergone imprisonment by conviction on Court in respect of any cognizable offence.

The possibility   of the applicant to flee from   justice.

The possibility  of the   accuser’s likelihood to repeat similar or   the other offences.

Where the    have been made only with the object of injuring or humiliating the applicant by arresting him or her. Impact of grant of anticipatory bail  or bail.

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 section 34 and 149 of the Indian Penal Code, they should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern.

If there does not prevail any of the above possibilities then there arises no question of retaining a person in jail. At the time of entertaining bail application court should not go into the merits of the case. Court should take into  consideration  the gravity of the alleged offence, the deep roots of the accused in the society, the possibility of his appearing in the court during trial, the control of the surety over the accused and various other guidelines laid down by the Supreme Court in its judgements delivered from time to time. It is not at all desirable that the court should appreciate the evidence at the pre-trial stage. The 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 a character that his mere presence at large would intimidate the witnesses or if there is material to show that he use his liberty to subvert justice or tamper with the evidence, then bail may be refused[5]. Also the grant of bail by cryptic order without taking into consideration the relevant circumstances is not proper[6].Indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a straight jacket formula. The court must exercise its discretion having regard to all the relevant facts and circumstances[7].

To conclude The granting of bail is usually considered to be an inherent right. However, there are certain circumstances where bail may be refused. In non-bailable offences accused may be granted bail if competent authority deems it fit, exceptional circumstances should be brought in and presented to show that bail would not harm further process of trial and justice. A court is bound to presume a person innocent till the trial is complete. A bail hearing is not a hearing on the merits of the matter itself and does not go into the issue of guilt. Therefore granting of bail is the norm except in cases where specific grounds are made out based on which the bail can be refused. It is true that our law has some   loopholes but law also has perfect provisions for every occurring in society and there is very rare no for turning the law.

[1] . Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, (2005) 2 SCC 42: AIR 2005 SC 921: 2005 Cr LJ 944.

[2]  The constitution of India guarantees this fundamental right in part II under section 21. The fundamental right of right to life also include right to life with dignity. Keeping a person in jail even when his crime is not proved is nothing but depriving him of his personal freedom thereby setting his dignity at critical position  in society and hurting his dignity.

[3] Section 41 of CrPc specifies that Police officer can arrest a person without warrant or without order from magistrate when a person has committed a cognizable offense. The said section was amended, amendment to this section is a police officer is empowered to arrest a person in all cases of cognizable offences only when it is committed in his presence in all other situations if the offense is punishable.

[4] Jai Prakash Singh v. State of Bihar, AIR 2012 SC 1676:2012 Cr LJ 210: 2012 AIR SCW 2081.

[5] Kalyan Chandra Sarkar v. Rajesh Ranjan,(2004) 7SCC 21:AIR 2004 SC 1866.

[6] Ajay Kumar Sharma v. State of Uttar Pradesh, (2005) 7 SCC 507.

[7] Surinder Singh @ Shingara Singh v. State of Punjab, (2005)7 SCC 387; 2005 Cr LJ 4119: AIR 2005 SC 3669.