Just because a person is accused of an offence, it is not expected to keep the person in custody for an endless period i.e. end of the Trial, when most of the cases end in acquittal.
And since the accused is presumed to be innocent unless proved guilty beyond a reasonable doubt, it is against the Constitutional right to life and personal liberty as enshrined in Article 21 of the constitution of India to keep an accused in custody for an endless period.
Also when Bail is a rule and jail is an exception, the accused should be given the benefit of bail to properly defend his case unless the courts have a reason to believe that the accused will not stand at his trial or it is not in the interest of the society to grant bail as such.
What is Bail?
Release of an accused person, on his furnishing a personal bond or surety to abide by the conditions imposed by the court and stand his trial before the court.
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 fundamental right to life and personal liberty of the accused is not violated and he should get to defend his case properly while he is on bail.
“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.”
Two Types of Offences
The Code of Criminal Procedure Code, 1973 defines the offences as bailable in the First Schedule or made bailable by any other law.
Bailable offences are one, in which the Bail is granted as a matter of right on accused furnishing personal bond or surety.
Offences other than bailable are considered to be non-bailable, and bail in case of non-bailable offences is not granted as a matter of right, rather as a judicial discretion of the court.
Can a person accused of a non-bailable offence, apply for a pre-arrest bail?
Yes, a person accused of a non-bailable offence can apply for a pre-arrest bail or anticipatory bail.
Section 438 of The Code Criminal Procedure Act,1973 grants the power to an accused person to apply for Anticipatory Bail before the Sessions Court or High Court.
The power provided under Section 438 though of ‘extraordinary character’ does not justify its use in exceptional cases. Due care, caution, and circumspection must be used while exercising such powers.
The applicant applying for Anticipatory Bail must satisfy that he has “reason to believe” that he may be arrested for a non-bailable offence.
Filing of a First Information Report is not a condition precedent to the exercise of the power under Section 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.
However, anticipatory bail can be filed even after the FIR, so long as the applicant has not been arrested.
The courts can impose reasonable conditions while granting anticipatory bail to keep a balance between the personal/individual right and investigational powers of the Police/ Society Interest.
The courts can take sufficient surety to their satisfaction to ensure that the accused will not violate the conditions imposed or will not be unavailable to stand his trial.
The Court’s task while deciding an application for Anticipatory Bail must be to balance the personal liberty of an accused and the investigational powers of the police.
Can Anticipatory Bail be Granted for Unlimited Period?
Hon’ble Supreme Court in Sushila Aggarwal vs State (Nct Of Delhi) on 29 January 2020 has held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed but can continue till the end of the trial.
Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.
Factors in Grant of Anticipatory Bail
Nature and gravity of allegations;
Genuineness of accusations made against the accused;
Prima facie or reasonable ground to believe that the accused had committed the offence;
Chances of the accused absconding from the processes of law or whether the accused have roots in the society;
Antecedents of accused i.e. whether habitual offender;
Chances of the accused creating hurdles in the fair investigation or the trial;
Chance of complainant/witnesses being threatened or evidence tampered;
Case required custodial interrogation;
Another fact about the likelihood of the offence being repeated;
Analyzing objectively whether the accused had joined and co-operated with the investigation
What is ‘Co-operation’ in Investigation?
Hon’ble Supreme Court in Santosh v. State of Maharashtra, (2017) 9 SCC 714 has held that:
Merely because the accused does not confess as the police want him to, it cannot be said that he is not cooperating with the investigation.
Also in Samrat Singh Nirula & Ors. v. State of NCT of Delhi, 2015 SCC OnLine Del 9486:
“It is settled law that the Court can draw an adverse inference against the accused but the Police cannot compel answers by custodial interrogation. No doubt that the police have the power to investigate the matters as per their way as per law but it does not mean that the police will exercise power just because there are allegations in the complaint by the complainant.”
The custodial interrogation is a euphemism for torture.
“While considering the application for anticipatory bail, the Court has to keep all these facts in its mind, especially in the cases of commercial type disputes and civil nature.”
Rights of Accused after arrest in Non-Bailable Offence?
After an accused is arrested in a non-bailable offence, he can file for regular bail under section 437 or section 439 of The Code of Criminal Code, 1973.
Factors for Grant or Refusal of Bail
Hon’ble Supreme in Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, and In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, culled following principles must be considered while granting or declining bail,
Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
Nature and gravity of the charge;
The severity of the punishment in the event of conviction;
The danger of the accused absconding or fleeing, if released on bail;
Character, behaviour, means, position, and standing of the accused;
Likelihood of the offence being repeated;
Reasonable apprehension of the witnesses being tampered with; and
Danger, of course, of justice being thwarted by grant of bail.