POWER OF GRANTING AND CANCELLING BAIL BY THE COURT: ARBITRARY OR DISCRETIONARY?

Author: Shreya Chauhan (Amity Law School, Delhi)


INTRODUCTION The Code of Criminal Procedure is cryptic on the subject of Bail, as highlighted in Narasimhulu case and, the court dealing with the cases prefers to be tacit whether the order is custodial or not. Still, the issue of bail is one of the obliging public treasury, liberty, justice, and public safety, all of which indicate that a developed jurisprudence of bail is basic to a socially sensitized judicial process. Bail is defined as the release of an arrested person when a fixed amount of money is pledged or deposited for ensuring the arrested person’s appearance in the court when required by court and fulfillment of conditions as regards the time and place of attendance imposed by the court granting the bail. It is to procure that the arrested person shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court. While exercising discretion in granting or canceling bail, the judge should not yield to spasmodic sentiment to vague and unregulated benevolence rather he must draw his inspiration from consecrated principles. The words bail and released on bail implies that the accused is under restraint and is being set at the liberty from that restraint.

BAILABLE AND NON BAILABLE OFFENCES Bail under bailable offence is a mandatory right of the accused when he is arrested without the warrant. In such cases, while granting bail court has no discretion since it’s the right of accused and court cannot impose any condition except demanding of security with sureties. Whereas bail under non-bailable offence is the only a matter of privilege to be granted at the discretion of the court. POWERS OF COURT TO GRANT THE BAIL An arrest can be made by several persons like police officer, a private citizen, an in-charge of the police station or a magistrate. While only in-charge of the police station or to the magistrate is empowered to release the arrested person brought before them and only magistrates are allowed to cancel the bail of the accused and bring them in custody. Furthermore, the court which grants the bail to an arrested person can only cancel the bail. Bail granted by a police officer can be canceled under section 439 by the High Court or Court of Session. An accused person cannot be granted bail on the concession made by public prosecutor. Such judicial discretion exercised is improper and wrong... PRINCIPLE OF PARITY The court when it grants bail must draw his inspiration from consecrated principles. One such principle is PRINCIPLE OF PARITY, which was used by courts to grant bail. This principle lays rule that the subject-matter in every case should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. It is to avoid disproportionate sentences among convicted persons where, essentially, the same facts and circumstances indicate like sentences and to ensure fairness and justice. Law of parity is a desirable rule in rejection of bail.The apex court in the case of Izharul Haq Abdul Hamid Shaikh v State of Gujarat granted bail to the co-accused on the basis of parity, not going into the subject matter of trial, that since other labourers working under the employment of Izharul Haq Abdul Hamid Shaikh have been granted bail, he should be granted bail along with other. In case of Vishnu Maheshwari v. State of MP, the Madhya Pradesh High Court granted bail order on the principle of parity when the bail of co-accused was rejected and it was held by the court that the accused cannot be held responsible for such omission rather it was the duty of prosecutor to bring the subject before the court. Contending a different opinion Allahabad High Court has ruled that it is no binding precedent that if a bail has been granted by a Bench to any accused, then another Bench is bound to grant bail to other similarly placed accused. Such principle, however may not be applied where the two cases of co-accused are similar and application of one accused has been rejected by the court without hearing him if the accused applies for bail application later. EXERCISE OF JUDICIAL DISCRETION GRANTING OF BAIL The exercise of judicial discretion under section 438 must be exercised for the larger interest of the society and the state. The main concentration of judicial discretion by High Courts and Courts of Session in bail matters must be on personal liberty of the arrested person as enshrined in articles 19 and 21 of the Constitution of India. It must be correlated with the values of our Constitution. An individual should be deprived of his freedom only when it begins to jeopardy administration of justice. There is no hard and fast rule regarding the discretion of bail. The only established principle is there should be a judicial exercise of that decision. The combined effect of all the circumstances that must weigh with the court. For example, refusing of the bail on the ground that the offence was highly anti-social character would amount to refusal to hear the accused and already declaring him guilty by punishing him. Since consequences of pre-trial detention are serious and such punishment may subject innocent to the psychological and physical deprivations of jail life, which is more onerous that conditions then convicted are subjected to. He loses his job and is prevented from contributing to the preparation of his defence. The risk of monetary loss by the accused to bail should also be one of the most important factors court should consider while deciding bail application. Our bail system more than often forget to consider the financial condition of the accused which is most relevant because of which the accused has to either fall back on touts and professional securities for providing bail and suffer pretrial detention. The deprivation of liberty for reason of financial poverty only has only been incongruous element in a society raised pillars of social justice and it also violated fundamental principles of the constitution. GRANTING OF ANTICIPATORY BAIL The anticipatory bail as the word describes is made if the person making application is under the anticipation of arrest. The object of anticipatory bail is to save the persons from losing his freedom because of false causes or losing his reputation where influential persons take revenge by getting them detained in jail. Where there are grounds to believe that the accused person will not misuse his liberty be absconding or fleeing from justice, there is no reason he should be kept in custody or remain in prison for days and then apply for bail. For the prayer of anticipatory bail, it is mandatory that there must be issuance of warrant against the person. The filing of FIR is not a condition precedent for filing of anticipatory bail application. There must be reasonable grounds for an applicant to believe that he is going to be arrested. Mere fear is not a reasonable ground for application, but the applicant has to show that he has an apprehension that someone is going to arrest him. The High Court and the Court of Session must be left free, when the application for anticipatory bail, for exercising their discretion to grant bail considering the particular facts and circumstances of the case and such conditions as the case may warrant. CANCELLATION OF BAIL It is easier to reject a bail application in a non bailable case than to cancel a bail granted in such a case as cancellation of bail includes review of the decision already made, can by and large be permitted only in supervening or extraordinary circumstances . Hence, the power of cancellation of bail is not as wide in discretion as power of granting bail. According to section 437(5) of criminal procedure code, only the magistrates who grant bail can cancel it. Furthermore, the bail granted by high court cannot be canceled by Court of Session whereas bail granted of court of sessions can be canceled by the High Court. Where a High Court canceled bail on the condition that the applicant moved to both sessions and High Court for deciding his bail application, it was canceled by the High Court on the ground that party concealed the fact from sessions court and that party was not straight forward. Here the Apex Court held that the accused cannot be punished before his conviction by refusing bail on such ground. One cannot court cannot interfere with discretionary power of another court by cancelling it. The anxiety of the judge must be kept in mind by the other court while cancelling the bail ordered by the other court. High court is not permitted to interfere with the discretionary power unless there are very cognate and overwhelming circumstances. CONCLUSION Whatever may be the nature of the matter in regard which is required to be exercised all kinds of discretionary powers have to be used with due care and caution. One ought not to make a bugbear of the power to grant anticipatory bail. However, it can be ruled that judicial discretion should remain in domain of discretion and it must be exercised objectively which can be corrected by the High Court. In a recent judgment the Apex while setting aside the Rajasthan High Court decision has held that merely recording ‘having perusal the record’ and ‘on the basis of facts and circumstances of the case’ is not satisfactory and it does not sub serve the object of a reasoned judicial order? The factors on the basis of which judge made his mind which he applied in the bail matter, are fundamental premise of open justice, to which our justice system is committed and hence it is compulsory for the court to give specific reasons for his decision in such matters. It can be rightly said that refusal of the bail is not an indirect process of punishing an accused person before he is convicted. The court can only refuse the bail in very serious circumstances. The correctness of an order granting bail is tested on the question of whether the court was arbitrary or not in granting or refusal of bail. The court should consider following points while exercising its power in bail matters: It is not an obligatory condition for an accused to make out the case for grant of anticipatory bail; reading an otherwise wide power would fetter court’s discretion. The court has not been given an ordinary power by the legislature but yet its use cannot be confined to exceptional or special cases. The court cannot presume on its own that a particular class of accused persons that is those who are accused of very heinous crimes or those who belong to poorer sections of the society are likely to abscond. The anticipatory bail orders must be of limited duration only and on the expiry of such duration or extended duration the matter should be left in the hands of regular court to deal with the investigation of the case and appreciation of evidence placed before it after investigation.

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