Bail & Related matters

The Supreme Court (SC) says that the High Courts and Trial Courts have forgotten that bail cannot be denied as a punishment, in its judgement in Javed Gulam Nabi Shaikh v The State Of Maharashtra.

Default bail under Section 167(2) of the Criminal Procedures Code, 1973 (CrPC) can be granted to an accused based on an oral application alone, and no physical copy or written application is needed for seeking default bail, says High court of Kerala in a judgement in Akshay v State of Kerala [ 2023(1) KLT SN 44 (C No 38)].

After the dismissal of anticipatory bail application by the High Court (HC), a petitioner cannot file a subsequent anticipatory bail application, pointing out changes in circumstances, before the Sessions Court (SC). This is what the High Court of Kerala directs in Bipin Sunny v State of Kerala [ 2023 (5) KHC 125].

The Supreme Court in Teesta Atul Setalvad v State of Gujarat states that the factors, which are essentially considered at the stage of granting of bail under Sections 437 and 439 of the Code of Criminal Procedure, 1973, are: Whether the prima facia case is established The possibility of the accused tampering with the evidence or influencing the witness The possibility of the accused fleeing away from the hands of justice, and The gravity and the seriousness of the offence

Even if custodial interrogation is not required by the prosecution, then that would not be a sound reason to grant anticipatory bail. The need for custodial interrogation is a relevant aspect to be considered in anticipatory bail petitions. But that is not the only ground that the courts need to consider while deciding any application for anticipatory bail. In many cases, custodial interrogation of the accused may not be required at all. But that does not mean that the accused might be granted anticipatory bail.

Absurd, burdensome or unreasonable bail conditions are being thrust upon the accused by courts, while granting bail, based on the whims and fancies of the judges rather than in strict adherence to the provisions of law.

The Supreme Court (SC) in State of Kerala v Mahesh (AIR Online 2021 SC 205) sets aside an order of the High Court (HC) of Kerala granting bail to the accused. The order clarifies when the SC can set aside a bail order granted by a HC.

he object of pre-trial detention of the accused is not to impose punishment but to subject him to the penal procedures of law. The “bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial". Therefore, granting of bail should be the rule and cancellation of bail should be resorted to only in rarest of the rare cases where the accused on bail has done something wholly wrong against the sanctity of legal provisions of bail.

Bail is the rule but not its refusal Bail is the rule and refusal of bail is the exception. When the bail is refused the personal liberty of the citizen is deprived. Such deprivation can be done only by following the principles and procedures known to law. That means refusal of bail must be done by following due process of law. Bail can be granted at any stage of the trial.

Factors to be considered while granting anticipatory bail The court must take the following broad factors into consideration before allowing or rejecting an application for anticipatory bail. The nature and gravity of the accusation The antecedents of the applicant such as his previous conviction or imprisonment. The probability of applicant fleeing from trial or other proceedings Whether the accusation is for injuring or humiliating the applicant