Jeremy Bentham says: “Witnesses are eyes and ears of justice.” However, now-a-days, witnesses are often made blind and deaf by illegal means and justice is molded as per own needs. Witnesses play a major role in any trial. More the serious and grave the alleged offence, the less likely a witness comes forward. In India, witnesses are oftenly shot dead by unknown persons (in most cases hired by accused persons) when they dared to give their testimony before competent authorities. Thus, the trial is hindered and wheels of justice are broken. Due to fear created around the surroundings of the witness, they tend to back out. When such a witness backs out or tends to back out from his statement which was recorded by the police (or any other authority competent to do so), he is called a “hostile witness.” It is because of the resultant fear, the witness, when appearing in the court display a tendency to reduce the effectiveness of their evidence by deposing to a version different from what was previously stated before the Police. The ability of a witness to cooperate with the authorities fearlessly is sin qua non to maintain the rule of law. The Hon’ble Apex court made an observation regarding the “common phenomenon, almost a regular feature” in criminal cases of witnesses turn hostile. The apex court observed that the following could be the reasons that make witnesses retract their statements before the court and turn hostile: “(i) Threat/intimidation. (ii) Inducement by various means. (iii) Use of muscle and money power by the accused. (iv) Use of Stock Witnesses. (v) Protracted Trials. (vi) Hassles faced by the witnesses during investigation and trial. (vii) Non-existence of any clear-cut legislation to check hostility of witnesses.” Surprisingly there is no specific witness protection law in India and there is a huge burst from the public for its demand but there is silence from the legislature. Presently, the police officials are deported for protection of prime witnesses. To avoid hostility of witnesses, S. 195 takes care. However, these officials are mostly unarmed and armed with less qualified weapons which are of no use. As per TOI, a 38-year old man was shot in the head when two security personnel were appointed for security. When the matter is of high profile, for example, recently Umesh, a prime witness in the murder of UP MLA Raju Pal was shot dead, one of security personnel also got killed in the incident. 198th Law commission report suggested for the Witness Protection Scheme to which the legislature is mum. The report divided the witnesses into three categories: (a) witnesses known to the accused, which primarily includes victims; and (b) witnesses unknown to the accused. (b) Victim-witnesses who are unknown to the accused; (c) witnesses whose identities are unknown. According to the paper, different levels of security are required for different groups of witnesses. Category (a) requires trauma protection, whilst categories (b) and (c) demand that their identity not be divulged.
The “Witness Protection Scheme, 2018” was developed by the GOI in partnership with the National Legal Services Authority in response to suggestions made by law commissions, instructions given by the Supreme Court, and reports filed by numerous States/UTs. Following that, the Supreme Court, in its judgment dated December 5, 2018, emphasized the critical need for our country to develop a witness protection mechanism plan. The Supreme Court adopted the scheme and declared it to be law within the broad powers granted by Article 141 of our Constitution. However, the scheme is yet to gain statutory recognition. There are dozens of examples of Witness intimidation and increasing thereof on a daily basis.
The witnesses are threatened, abducted and bribed in murder case. In particular to murder bail, the conditions for granting bail itself consist of possibilities to be explored if a witness gets threatened upon release of the accused. Irony of law is that a person is prosecuted for perjury after decades completing of trial, the Kerala HC recently in Rajan v. State quashed proceedings against a witness who had turned hostile in the ‘Kalluvaathukkal liquor tragedy’ case. The Bombay High Court (Aurangabad bench) in a very unique case where 75-year old woman was charged for killing of her husband out of quarrel and 5 out of 7 witnesses turning hostile, made the court to brought an important observation that, “The reasons for turning hostile could include threats, coercion and pressure tactics. However, it is a matter of a great concern if the witnesses turn hostile for extraneous considerations and such hostile witnesses begin to believe that they are far beyond the reach of the arms of law. This would not only be a serious ailment/
disease to the justice dispensation system, but could as well be cancerous to the rule of law and the justice delivery system. Though the respect for law cannot be ensured by the threat of legal action, the time has come to initiate action against hostile witnesses in all such cases so as to send out a message loud and clear to the society at large that the witnesses becoming hostile cannot be ignored or pardoned.” A three-judge bench of Apex court in Sudha Singh v. State of UP, while dealing with appeal to grant of bail to murder accused held that the impact on the witnesses or victims must be considered. The accused in this case was alleged to be contract killer and sharp shooter. The HC ignored the criminal antecedents and potential of committing further crimes upon bail. The appellant cites the example of a person who was prosecuted in connection with 64 criminal cases which included cases of murders under the UP-Gangster Act, etc., but who was released on bail. Ultimately, when a police team went to apprehend him in a case, allegedly 8 policemen were killed. Thus, the SC warned the courts not to deal with murder bail pleas in a casual manner. Also, the court made it clear that the witnesses who involved themselves in hostility will be dealt with iron hands. Lastly, I feel we have protection of law if not adequate enough at the time and the same lack a prompt and effective implementation.
Cancellation of Bail is governed u/s. 437(5) and 439(2) of the Cr.P.C. According to it, any court which has released a person on bail may, if it considers it necessary to do so, directs that such person be arrested and committed to custody. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances.
In Public Prosecutor v. George W, the Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail: 1) where the person on bail, during the period of the bail, commits the very same offence for which he is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; 2) if he hampers the investigation, as will be the case if he, when on bail, forcibly prevents the search of places under his control for the corpus delicti or other incriminating things; 3) if he tampers with the evidence, as by intimidating the prosecution witnesses, interfering with the scene of the offence in order to remove traces or proofs of crime, etc.; 4) if he runs away to a foreign country, or goes underground or beyond the control of his sureties; and 5) if he commits acts of violence, in revenge, against the police and the prosecution witnesses and those who have booked him or are trying to book him.
The issue of cancellation of bail can arise only in a criminal case, but as it is only an incidental matter, it is not required to be proved beyond reasonable doubt.
I feel that the offence of murder, when bail is granted. It is difficult to establish grounds for cancellation backed by sources and instances. The burden never shifts but the onus can. Herein the bail is granted on the basis of onus and presumption of innocence. But, when it is required to be cancelled is deprivation of personal liberty of the accused, it has to be beyond reasonable doubt.
Many recent events have shaped this subject. For example, grounds are being substantiated like change in circumstances and addition of grave offenses, differentiation of cancellation and setting aside of bail, supreme court directing HC not to put trial judges on fear because adjudicating in a very casual manner and many more.
When the matter is of serious nature like murder, an accused if influential and sharp minded is more likely to misuse the bail and commit further crimes. We have many examples who fled the country by illegal means. Many of them create new fake identities like Vijay Palande who committed seven offences after he was let out on bail in 2007. He jumped off the parole and HC later in 2013 was pleased to cancel bail on the grounds that discretion of suspending the sentence was misused.
Now it is settled law that any order obtained by fraud is to be treated null and void and limitation to challenge cannot be defined. Very recently, the Calcutta High Court in a revision case upheld an order of cancellation of bail passed by the Sessions Court on the ground that the accused supressed the fact before the Sessions Court that his earlier bail prayer was turned down by the High Court. It is the mandate under the law that the application for bail u/s 439 Cr.P.C. should be filed with an affidavit of the applicant regarding the fact that whether his earlier bail prayer was pending or rejected by the upper court.
The court in this case found that while submitting the bail prayer the petitioner on affidavit stated no application for bail has been either rejected by the High Court or is pending for disposal before the High Court upon which the order of bail was granted by the Sessions Court. If the fact of rejection of bail prayer was not suppressed, the prayer for bail would not have been granted.
Thus, the CASE TRAVEL is also a determining factor in cancellation or granting of bail in murder case.
Apart from violation of bail conditions, the cancellation grounds are closely similar to that of regular bail. The distinction is the leading evidence for possibility of absconding, likelihood of misusing bail, past records. When bail order completely disregard vital points and is capricious, chances are more that bail can be cancelled.
In serious offence like murder, victim security and psychology needed to be considered, herein victim places his/her faith in judiciary and the stakes are of public at large0
There is a divergence from the apex court itself which I felt pertinent to visit, on one hand, it states that supervening circumstances are required and challenging order is different from cancellation and on other hand, cancellation can be sustained on malice/defect within grant of bail order. The second proposition is again reiterated in different fashion in CBI VS Gangi Reddy case. Thus, clarification is required.
| S.No. | Case Name | Relevant Paragraph |
| Deepak Yadav v. State of Uttar Pradesh, 2022 SCC OnLine SC 672 Date: NV Ramana, Krishna Murari and Hima Kohli, JJ Significance: Manner in which cancellation of bail applications to be adjudicated. 302-bail on parity-overturned. | 30. This Court has reiterated in several instances that bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail. 39. Grant of bail to the Respondent No.2/Accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court has not taken into consideration the criminal history of the Respondent No.2/Accused, nature of crime, material evidences available, involvement of Respondent No.2/Accused in the said crime and recovery of weapon from his possession. | |
| Sk. Farid @ Fariduddin v. The State of West Bengal C.R.R. No. – 1525 of 2018 Calcutta HC Date: 20.04.2023 | The brief fact of the case is that the present petitioner was arrayed as an accused along with others. If the fact of rejection of bail prayer was not suppressed, the prayer for bail would not have been granted. In passing the impugned order Learned Sessions Judge, had correctly opined that suppression of Order of a High Court regarding rejection of pail prayer tantamount to practising fraud upon court. The power u/s 439(2) Cr.P.C. for cancellation of bail granted earlier is discretionary and the present petitioner has adopted several dilatory tactics to vitiate the trial. | |
| State through CBI v. Gangi Reddy., CRIMINAL APPEAL NO. 37 OF 2023 Supreme Court 16.01.2023 | The issue involved in the present appeal is answered in the affirmative and it is observed and held that in a case where an accused is released on default bail under Section 167(2) Cr.P.C., and thereafter on filing of the chargesheet, a strong case is made out and on special reasons being made out from the chargesheet that the accused has committed a non-bailable crime and considering the grounds set out in Sections 437(5) and Section 439(2), his bail can be cancelled on merits and the Courts are not precluded from considering the application for cancelation of the bail on merits. However, mere filing of the chargesheet is not enough, but as observed and held hereinabove, on the basis of the chargesheet, a strong case is to be made out that the accused has committed non-bailable crime and he deserves to be in custody |
Criminal trials and applications, such as murder and/or rape, can last decades, and civil suits can last generations. Only smugglers, scammers, and bigwigs, politicians and bureaucrats, and those charged in major cases, shout their faith in the courts from the rooftops. A common man, however, who is always going after justice and being humiliated in the process, with justice eluding him even after decades, does not share this viewpoint. By not settling cases quickly, the court not only aids criminals and wrongdoers, but also legitimizes the illegalities being committed. Many undertrials continue to remain in jail despite grant of bail because of their inability to arrange surety bonds.
In 1985, Justice E.S. Venkatramiah of the Supreme Court granted bail to Lalit Mohan Thapar, a major industrialist, in a criminal case at night at his residence. It was challenged in Bihar Legal Support Society v. Chief Justice of India, 1987 SCR (1) 295, in which the petitioner contended that the Supreme Court gives priority to important people at the cost of poor people. The Supreme Court disposed of the petition saying that it shares society’s concern about the poor but it does not discriminate between the rich and the poor. It said that the mentioning process for urgent listing is in force and it cannot comment upon the administrative side of the judiciary. It said that the job is of the High court as it is normally the final arbiter.
This case made it realize that the Supreme Court is unhappy with the way but is not wanting to make some judicial reform to curb the rich-poor, urban-rural divide.
Another argument which is prevailing in recent times is that senior designated lawyers with the privileges be it the first in queue, length of arguments and other associated influence can be only afforded by rich people. Inherent problems of bribery, retirement perks/elevation of judges, public prosecutor turning to police prosecutor and many such, are difficult to even inspect.
Another instance where the granting of bail to Salman Khan by the Bombay High Court on 6 May 2015, barely three hours after he was sentenced to five years of rigorous imprisonment by the district court for culpable homicide in a hit and run case, and that too on an oral prayer as the copy of the judgment was not available, is an eloquent commentary on the might of the haves. In fact, the prayer was made after the normal working hour of the high court.
Similarly, S.L. Bhayana, additional district judge in Delhi, was elevated to the Delhi High Court and then made a permanent judge in 2007, though the Delhi High Court passed a severe stricture against him for acquitting the accused in the much publicized Jessica Lal murder case. The High Court went to the extent of recording that the judge was in a hurry to reach a particular conclusion.
In some other cases too, concerning VIPs, the court has given orders which defy logic and reason.
On 1 September 2009, the Bombay High Court directed the Maharashtra government to pay Rs 1 lakh as compensation to Bapu Pandu Mali, a 40-year-old man, who languished in prison for over 10 years for a crime he never committed. He was in jail for five years as an under trial prisoner battling against rape and murder charges. being acquitted by the trial court, the poor Mali remained incarcerated for five years longer as he was not able to pay the bail amount when his case went into appeal. A division bench of Bilal Nazki and A.R. Joshi, JJ, lamented, ‘This is a sorry state of affairs in which not only the prosecuting agency but also the Courts are involved. This is a reflection on our own system, which needs to be corrected.’
In the case of Nanu Gordhan v State of Gujarat, the judge held that asking a poor man to furnish an excessive bail amount is as good as refusing bail to him.
A well explained in a journal written by Arvind Pennathur about the domino effect wherein a poor sole bread-earner of the family is kept behind the bars for particular surety or bail amount will lead to his family members getting involved into crimes for its fulfillment.
To conclude, it is very subjective. Societal factors do vary and impact on bail pleas, for example, a defense of grave and sudden provocation. So do with economic status of the applicant and the opposite side.
Principle of Natural Justice is embodied u/a. 14 of the Constitution, thus, is indispensable in any circumstances and all laws must be in consonance with this. Each party’s right to appeal is undermined when there is no reasoned order to challenge the same before the appellate courts. This applies to every case where the establishment of proper and complete facts are important for assessment. It brings accountability, transparency and credibility to the judgment granting bail. Particularly in the offence of murder, where no monetary consideration can compensate for the human loss, upholding judicial faith by way of strict compliance of natural justice is paramount. If these fundamental principles are not followed, we will be sent back to the colonial era where arbitrary arrests and conviction was the norm. The audi alteram partem is subject to exceptions. Such exceptions may be provided by law or by such necessary implications where no other interpretation is possible. Currently under UAPA, the government has unfettered discretion to announce a group as banned entities and thus bypassing due process as part of law itself. Many HCs in murder suspects matters have noticed and diluted the same. For example, there cannot be a pre-FIR registration trial which is dealt in depth by the apex court in Anju Chaudhary case. If an accused person or suspect is heard before registration of FIR in India, it would be difficult to maintain law and order as police authorities may be prone to misuse the given unfettered power. The Hon’ble apex court in 2022 in Satender v. CBI held that ny non-compliance of Section 41 and 41A of Criminal Procedure Code at the time of arrestFor example, there cannot be a pre-FIR registration trial which is dealt in depth by the apex court in Anju Chaudhary case. If an accused person or suspect is heard before registration of FIR in India, it would be difficult to maintain law and order as police authorities may be prone to misuse the given unfettered power. The Hon’ble apex court in 2022 in Satender v. CBI held that ny non-compliance of Section 41 and 41A of Criminal Procedure Code at the time of arrest would entitle the accused for grant of bail. Section 41 of CrPC deals with conditions when there can be suspicion that a suspect can flee or when an arrest be made. Section 41A inserted by 2010 amendment states that the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Thus any non compliance be it arbitrary arrest, failed to observe spot panchnama, evidence planting calls for successful bail plea since the code is violated which is nothing but provisions of natural justice.
| Sr.No. | Case Name | Relevant Paragraph |
|---|---|---|
| 1. | Brijmani Devi v. Pappu
Kumar and anr., Supreme Court (2022) 4 SCC 497 Significance: The Apex Court clarified that though elaborate reasons are not required to be assigned while granting bail, a cryptic order devoid of any reasoning is a blatant violation of the principles of natural justice. |
The appellant/informant saw the respondent-accused killing her son in her house. Thereafter, she lodged the FIR against the respondent-accused under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act. 24. The Latin maxim “cessante ratione legis cessat ipsa lex” meaning “reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself”, is also apposite. 25.While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. 28. Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order dehors reasoning or bereft of the relevant reasons cannot result in grant of bail.It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum. |
| 2. | Manoj Kumar Khokhar v.
State of Rajasthan, (2022) 3 SCC 501 Supreme Court |
Summarising the above discussion, this Court holds:
|
| 3. | Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230 Suprem Court |
“38. … We disapprove of the observations [Vishanbhai Hirabhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2987] of the High Court in a succession of orders in the present case recording that the counsel for the parties “do not press for a further reasoned order”…..The consent of parties cannot obviate the duty of the High Court to indicate its reasons why it has either granted or refused bail.This is for the reason that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other. The rights of the victims and their families are at stake as well. These are not matters involving the private rights of two individual parties, as in a civil proceeding. The proper enforcement of criminal law is a matter of public interest. We must, therefore, disapprove of the manner in which a succession of orders in the present batch of cases has recorded that counsel for the “respective parties do not press for further reasoned order”. If this is a euphemism for not recording adequate reasons, this kind of a formula cannot shield the order from judicial scrutiny. |
| 4. | Anju Chaudhary v. State of
U.P., (2013) 6 SCC 384 Supreme Court |
The very purpose of fair and just investigation shall stand frustrated if pre-registration hearing is required to be granted to a suspect. It is not that the liberty of an individual is being taken away or is being adversely affected, except by the due process of law. Where the officer-in-charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law. There would be predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law. It cannot be said to be a violation of the principles of natural justice |
| 5. | Arnesh Kumar v. State of
Bihar, (2014) 8 SCC 273: Supreme Court |
The discretion of arrest to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. |
Severity factor ranks at top when considering the list of factors to keep in mind while granting bail. It cannot be the sole determining factor but cannot be negated. More heinous is the crime, more chances of rejection of bail. Rejection of bail application in grave murder matters serves the three fold purpose – punitive, deterrent and protective. The prosecution story which is a perfect fit for the death penalty and no remorse and no chance of reformation of accused persons then such will fall under this factor and bail in such a case is near to impossible. Modus Operandi and Motive are important parameters.
Indian courts are reluctant to grant bail when the offence of murder is clubbed with others like double murder or rape and murder or contract killings of important public figure. Many times, higher courts reject the bail plea with direction of monitoring/transferring of investigation to more competent and specialized teams like SIT, ATS, CBI, etc.
However, handpicking of cases/unfair listings is a bigger hurdle which only the rich can easily afford to bypass. On other hand, in only a few cases wherein the poor accused is falsely implicated or if the victim is of a particular society, there is huge public outcry from media that catches attention and subsequently prompt listing of bail plea.
Accused having criminal antecedents of murder or allied charges be it acquittal or pending, such accused are being denied bail if he can be a threat to society in a non-murder bail plea. Apart from granting or refusing, more stringent conditions are levied by the court.
Thus, I feel the Indian courts ask for some corroboration or leading evidence to meet the ingredients before rejecting the bail on the grounds of severity.
Below are few precedents on this subject which states pre-requisites of severity factor and how it is applied on case to case basis:
| S.No. | Case Name | Relevant Paragraph |
| Kiran v. State of Himachal Pradesh. 05.04.2023 Himachal Pradesh HC Cr. M.P.(M) No. 748 of 2023 | Allegation: Accused conspired to kill due to enmity with family and disposed of body in gunny bags. 11. Though, at this stage, this Court will not minutely scan the evidence collected by the investigating agency, however, in order to prima-facie assess the seriousness and gravity of accusations and to find out the existence of reasonable grounds to believe that petitioner has committed the offence as alleged, a cursory scan of the material becomes necessary. 12. Merely because the accusations are of serious nature and the offence, if proved, will attract severe punishment, cannot be the only ground to deny the bail. It has to be weighed and balanced with other factors, such as the allegations against the bail petitioner and also the available evidence to prove such allegations. 19. Thus, the evidence collected by the investigating agency to prove the above noted circumstances, cannot be said to suggest a strong inference against the petitioner. In absence of any eye witness to the incident and nonavailability of support in the form of scientific opinion, no such material is found to exist, which may lead a strong inference negating the possibility of any other hypothesis than the commission of alleged offence by the petitioner. 20. Analyzing the facts of the case at the touchstone of legal parameters, as enunciated from time to time and noticed above, this Court is of the view that petitioner is entitled to bail. | |
| Prabhakar Tewari v. State of UP., 24.01.2020 Supreme Court CRIMINAL APPEAL NO.153-154 OF 2020 | Allegation: Two accused killed deceased by gunshots out of enmity in pending property dispute. The accused has several criminal cases pending against him and has been named in the statement forming the basis of the FIR on the date of occurrence itself. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. | |
| Soh | Sohan Singh v. UT of J&K., 24.06.2021 J&K HC Bail App No.253/2020 | 10. Initially a case under Section 307, 323 RPC was registered. However, offence under Section 307 RPC was converted into one under Section 302 RPC after the deceased succumbed to injuries. After completion of investigation as well as further investigation of the case that was directed by the trial court in terms of its order dated 03.06.2013, charge sheet came to be filed against the petitioner and co-accused. Vide order dated 13.02.2014, petitioner as well as co-accused were charged. Petitioner has been charged with offence under Section 302 RPC whereas coaccused has been charged with offence under Section 302/109 RPC 23. It is true that some delay in completion of trial has taken place on account of restrictions in physical hearing of cases due to COVID-19 pandemic but that is an eventuality beyond the control of everybody. The same cannot be the sole ground for enlarging an accused on bail, particularly in a heinous offence like murder. Even otherwise, the Supreme Court in Kalyan Chandra Sarkar’s case (supra) has clearly laid down that in a case where gravity of offence alleged against an accused is severe, the bail cannot be granted only on the ground of long incarceration. |
| V Vi | Vijay Kumar v. Narendra and ors. Supreme Court (2002) 9 SCC 364 | Allegation: The prosecution case shortly stated was that the incident took place when the deceased accompanied by his two sons, the appellant, Vijay Kumar and Ajay Kumar went to inspect the agricultural operations on his land in village Suaheri. There the respondents and the accused Amit Mohan, who is absconding, killed Ram Charan Singh by firing from the pistols carried by them. 7. The main thrust of the arguments of Mr. R.B. Mehrotra, learned senior counsel appearing for the appellant, is that the High Court, on the facts and circumstances of the case and the findings recorded by learned trial court, committed error in granting bail to the appellants in the appeal pending in the court. He submitted that in view of the serious nature of the offence, the gravity of the accusations, the manner in which the crime was committed, the conduct of the accused persons in delaying the trial, the High Court should not have exercised its discretion to grant bail to them. Mr. R.B. Mehrotra, placed reliance on the decision of this Court in Ramji Prasad v. Rattan Kumar Jaiswal & Anr. , wherein this Court considering the power of suspension of sentence under Section 389(1) Cr. P.C observed: “Absolutely no reason is shown by the learned single judge for adopting this exceptional course in a case where an accused was found guilty by the trial court under Section 302 of the Indian Penal Code. The 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.” 9. The High Court has neither given any reason nor has indicated any exceptional circumstance for granting bail to the respondents. Our attention has not been drawn to any material, which would show that the learned single judge took into consideration the relevant factors while passing the bail order. We refrain ourselves from making any observation touching on merits of the case lest it may prejudice any of the parties. Suffice it to state that we do not consider this a fit case for grant of bail to the respondents during pendency of the appeal filed by them. |
Presumption of innocence principle is paramount to the Indian legal system. All the three pillars i.e., legislature, judiciary and executive have to follow this principle which has its roots in the Constitution.
Yet there is no visit to pre-trial rights of accused in consonance with this legal principle. Article 19, 20,21 with “reasonableness” character acts as a balancing tool for rights of accused and the victim. By imposing “reasonable” conditions from regular and common to harsh and stringent, formulating such on a case-to-case basis, also by preventive detentions during processions and festivals.
The prosecution must also carry the burden of demonstrating that the public interest outweighs the presumption of innocence and the right to civil freedoms. After all, if an accused cooperated during the investigation and routinely attended trial, how can the Court infer that he/she will not continue to do so, and what evidence can they present to counter this negative presumption?
Following that, if the accused is found not guilty, I feel the law should offer compensation for unjust incarceration, deprivation of liberty, reputational consequences, and related costs. This is especially important in circumstances of major offences, because even acquittal may not be enough to reverse the public stigma and shame produced by the severity of the indictment. The Supreme Court in Shakuntala Shukla v. State of Uttar Pradesh reiterated that once an accused is convicted by the trial court, the principle of presumption of innocence will not be applicable during the hearing of appeal and bail. This judgment is heavily criticized and praised by a group of scholars. Criticism is for its assumption of guilt. Question comes: can we draw an analogy where in a civil case appeal is part of a single civil suit, so, the criminal trial should be. If it’s affirmative, the presumption of innocence sustains throughout appellate courts and particularly bail. However, another set of scholars argue that district court is the baseline for any criminal trial, the evidence cannot be revisited at fullest extent and new evidence cannot be brought in the appellate courts and therefore, the continuance of presumption of innocence will only evade the purpose of the criminal jurisprudence itself.
The case of Pappu Yadav v. C.B.I., where he was a former Member of Parliament being charged with conspiracy to murder his political rival in broad daylight. The Courts, both at trial and appellate levels, rejected ten bail applications of the accused even though he had been in prison for over seven years and the trial was far from completion. Placing a premium on the interest of society, despite the extended detention and delay in proceedings, the Supreme Court imposed ‘reasonable restrictions’ on the right to liberty observing that it would “be wholly inappropriate to grant bail when not only the investigation is over but even the trial is partly over, and the allegations against the appellant are serious”. Furthermore, it practically side-stepped the presumption of innocence by rejecting the contention that extended incarceration impeded the defence of the accused, noting that “if this argument is to be accepted, then logically in every case bail has to be granted”.
When law is clear stating no conditions inconsistent to presumption of innocence can be imposed, the process of deciding bail application is itself in violation of such. The person’s conduct in society, character, behaviour, means, position, and standing are considered in granting of bail, but such attacks the resumption. Thus, I feel this presumption is not absolute, exceptions are bound to happen in such forms especially when dealing with alleged offences like murder. It is the judge’s initial estimate of the accused’s guilt at that point in the procedure. Such an inquiry is tainted with what I refer to as the likely guilt bias. Due to this bias, courts frequently examine bail factors as though the accused were guilty, as seen by the judicial anxiety to grant bail.
Since granting bail is discretionary, rise of bench-hunting was encountered and subsequently discouraged. Many HCs inquires into standing of accused whereas Many HCs do not, the Supreme Court not decided to give finality, thus, leaving societal interest in drowning boat. Recently in 2021, the Raj HC in Hemraj v. State of Raj granted bail to a murder accused after hearing his counsel’s arguments contending that no one can be arrested simply on the basis of assumption, presumption and perception. Another important criticism is the amount of consideration, the critiques say that only the rich can afford luxuries like bail and parole. This being the trend disrupts the wheel of justice and public faith is compromised. Be it in terms of speedy justice, for example, granting of bail by the Bombay High Court to Salman Khan in hit and run case barely three hours after he was sentenced to five years of rigorous imprisonment. For every person from access to fulfillment of bail conditions is subjective, so judges realized it and many times imposed heavy bail bonds.
Our Indian Legal System has a very good sense of law but lacks practicality. Taking away of passports, monetary sanctions, undertaking not to tamper evidence or threaten witnesses, sureties, etc are few ways. However, the accused person’s are either seen breaking the conditions or being stigmatized by harsh conditions in the society. For example, Vijay Palande fleeing away even though in the vicinity of police officials and on bail, continued with next criminal activities.
We have special laws in force to deal with special cases, however, should it be at the cost of the golden presumption principle, is always a matter for debate. Few provisions of UAPA, MCOCA, S. 304B i.e., dowry death and the twin test u/s.48 of PMLA are heavily criticized because of its reverse burden in bail cases. Since, murder is scheduled offence ‘A’, the twin test applies and it becomes difficult to establish a good case.,the question still persists whether stringent screening by judge and imposition of restrictions are reasonable and proportional. Thus, revisit is required to balance the public interest and rights of the accused.
The grant of bail, especially in the cases of murder requires the consideration of various factors which ultimately depend upon the specific facts and circumstances of the case before the Court. There is no straight jacket formula as to what the relevant factors could be. The courts are expected to apply judicious mind and not in a mechanical process.
The Hon’ble Apex court has time and again reiterated common factors like the involvement (role) of the accused, nature and gravity, severity of the punishment, and the character or standing of the accused in the society. Since, murder is a crime against the society wherein not only an individual is a victim but it is the society as a whole. Herein, the state is the protector of rights of the society and in failure to do so, is prosecuted. Thus, granting bail should be given a people-centered approach and it becomes imperative to balance the rights of the accused and the victim.
The factors vary case to case basis, if the murder case is clubbed with or chained with stringent laws like MCOCA, UAPA, TADA, POTA or POCSO then the governing factors changes and accordingly decided by the respective special court.
The role of each accused is imperative, the weapon used, no. of stabbings (if any) i.e., brutality, delay in lodging FIR, duration spent as under-trial vis-a-vis progress of trial (Protracted nature of trial), Parity, Past Antecedents, ill-health or age of accused/suspect are the common factors in murder cases which one should look upon.
Very recently in March 2023, the Kerala HC in George Kurian @ Pappan v. State of Kerala & Anr. drew the attention by expanding the existing factors of bail in murder cases. It held that the trio-consideration i.e., Chances of Absconding, Tampering and Interfering are not exhaustive.
The Single Judge Bench of Justice A. Badharudeen ascertained that there are several other factors which also govern the grant of bail, and enumerated the same as follows:
Another evolving consideration is “Settlement between the parties”. The matter is pending for final call before the Hon’ble Supreme Court. The High courts have taken divergent views and in some cases contradictions are seen within the rulings of the same HC.
On Feb 18, 2022, the Gujarat HC in Bharwad Santoshbhai Sondabhai v State of Gujarat granted bail to an accused who was in custody for 5 months for murder on the ground that the son of the deceased and the accused persons have entered into a settlement. The same is under challenge before the apex court on the ground that settlement in S. 302 IPC is unheard and if legislature had intended such it could have added the said offence under compoundable list. It is interesting to note that the same Guj HC in 2023 in Naransinh Amarsinh Bihola v. State of Gujarat, 2022 SCC OnLine Guj 2412 denied bail to murder accused who entered into settlement citing that it amounts to tempering with the evidence or witnesses.
It will be interesting to look for a final call from the supreme court.
Here is list of cases which deal extensively with grounds of bail in murder cases:
| S.No. | Case Name | Relevant Paragraph |
| Vinay Kumar vs Narendra And Ors. [2002] 9 SCC 364 | The principle is well-settled that in considering the prayer for bail in a case involving serious offence like murder, punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. | |
| Sumedh Singh Saini v. State of Punjab and ors. Supreme Court Date: Dec 3, 2020 Long Delay In Lodging FIR A Valid Consideration To Grant Anticipatory Bail : Supreme Court Significance: Murder case – Delay of 9 years – long delay – ABA granted. | 7. However, considering the fact that the impugned FIR has been lodged/filed by the brother of the deceased after a period of almost 29 years from the date of incident and after a period of 9 years from the date of decision of this Court in the case of Davinder Pal Singh Bhullar (supra) and nothing is on record that in between he had taken any steps to initiate criminal proceedings and/or lodged an FIR, we are of the opinion that at least a case is made out by the appellant for grant of anticipatory bail under Section 438, Cr.P.C. Many a time delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like 29 years as in the present case can certainly be a valid consideration for grant of anticipatory bail. | |
| Santosh Mane v. State of Maharashtra., ANTICIPATORY BAIL APPLICATION NO.2144 OF 2022 Bom HC Date: Sept 26, 2022. Significance: Even in cases of serious offences like murder, the court says it is not always necessary for custodial interrogation and can invoke anticipatory bail. (SUSPECT) Further – Limited Role – Ground of Parity – Incident took place before 3 years – ABA granted. | Merely because the offence involved is under Section 302 of IPC, it is not imperative for his custodial interrogation and an apprehension of the applicant that, ‘he has reason to believe that he may be arrested’, is suffcient to invoke the provision of Section 438 of Cr.P.C. and considering the fact that the incident had taken place some three years back and the material compiled in the charge-sheet against other accused refects a limited role to the applicant, at this stage, he deserves protection from arrest. | |
| Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 Significance: Procedure in deciding bail applications. | 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 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. | |
| Khongbantabam Hitler Singh v. The Officer-in-Charge, Imphal Police Station, Bail Appln.No. 30 of 2022. Manipur High Court Significance: Heinous – Accused Of Murdering Two Women, Unborn Child – Humane attitude required – Prolonged Detention (6 years) violating Article 21. | 29. Though the allegation against the petitioner is very serious in nature and he is alleged to have committed murder of two women and an unborn child in the womb, taking note of the fact that the petitioner is in jail since 2.6.2017 and also the trial of the case has not concluded yet for one reason or the other, in the interest of justice and in view of the undertaking given by the petitioner that he shall remain present in person before the trial Court on the date fixed for the examination of the last prosecution witness as well as till the stage of examination of him. 25. It is clear that grant or denial of bail is entirely the discretion of the Judge considering the bail application, but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by the Hon’ble Supreme Court as well as by the High Courts in the country. 26. To put it shortly, a humane attitude is required to be adopted by a Judge while dealing with the ball application. Even if the offence is a serious offence, requires a humane treatment by the Court, humane treatment to all including an accused is requirement of law. 27. The cardinal principles of law for granting bail will not be affected when enlarging the petitioner on bail, inasmuch as the investigation has already been completed. As stated, the case is pending for examination of further prosecution witnesses. Therefore, the question of influencing to the witnesses or hamper and tamper of the prosecution case by the petitioner after his release does not arise |
Bhartiya Nyaya Sanhita contains total 356 provisions.
Section 48: Abetment outside India for offence in India
A person abets an offence within the meaning of this Sanhita who, without and beyond India,
abets the commission of any act in India which would constitute an offence if committed in
India.
Section 69: Sexual intercourse by employing deceitful means, etc
Whoever, by deceitful means or making by promise to marry to a woman without any intention
of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting
to the offence of rape, shall be punished with imprisonment of either description for a term
which may extend to ten years and shall also be liable to fine.
“deceitful means” shall include the false promise of employment or promotion, inducement or
marring after suppressing identity.
Section 70(2): Gang Rape
Where a woman under eighteen years of age is raped by one or more persons constituting a
group or acting in furtherance of a common intention, each of those persons shall be deemed to
have committed the offence of rape and shall be punished with imprisonment for life, which shall
mean imprisonment for the remainder of that person’s natural life, and with fine, or with death
Section 93: Hiring, employing or engaging a child to commit an offence.
Whoever hires, employs or engages any person below the age of eighteen years to commit an
offence shall be punished with imprisonment of either description or fine provided for that
offence as if the offence has been committed by such person himself.
Section 101 (2): Punishment for murder.
When a group of five or more persons acting in concert commits murder on the ground of race,
caste or community, sex, place of birth, language, personal belief or any other ground each
member of such group shall be punished with death or with imprisonment for life or
imprisonment for a term which shall not be less than seven years, and shall also be liable to fine.
The offence of Mob Lynching, though not separately defined, is punishable under the same
provision as murder – Section 101. Section 101 of the proposed code provides punishment for
murder on the ground of race, caste or community, sex, place of birth, language, personal belief
or any other ground’.
Section104 (2): Causing death by negligence.
Whoever causes death of any person by doing any rash or negligent act not amounting to
culpable homicide and escapes from the scene of incident or fails to report the incident to a
Police officer or Magistrate soon after the incident, shall be punished with imprisonment of
either description of a term which may extend to ten years, and shall also be liable to fine.
Section 109: Organised crime.
Section 109(1) of BNS defines organised crime as ongoing illegal activities carried out by
individuals or groups in a coordinated manner to gain financial or material benefits using
violence, threats, intimidation, or other unlawful means.
According to Section 109(2), anyone who attempts to commit or commits an organized crime
resulting in death will be subject to the punishment of death penalty or life imprisonment, along
with a fine of no less than ₹10 lakh.
In cases where the act does not result in death, the individual or individuals involved shall be
liable for imprisonment for a minimum of five years, which may extend to life imprisonment, in
addition to a fine of not less than ₹5 lakh.
Sections 109(3) to 109(7) encompass provisions detailing the punishments applicable in cases of
aiding, abetting, membership, harboring an offender, or possession of property linked to
organized crime.
Section 110: Petty organised crime or organised crime in general.
Section 111: Offence if terrorist act
As per Section 111(1), a person is considered to have committed a terrorist act if they
intentionally engage in an action to threaten the unity, integrity and security of India:
As per Section 111(2), anyone who attempts to commit or commits a terrorist act resulting in
death will be subject to the punishment of death or life imprisonment without the benefit of
parole, along with a fine of no less than ₹10 lakh.
In cases where the act does not result in death, the individual or individuals involved shall be
liable for imprisonment for a minimum of five years, which may extend to life imprisonment, in
addition to a fine of not less than ₹5 lakh.
Sections 111(3) to 111(5) are provisions dealing with punishments applicable in cases of aiding,
abetting, membership or harboring an offender linked to a terrorist act.
Sections 109,110 and 111 are lengthy, therefore only the comments have been written for
said sections.
Section 115: Voluntarily causing grievous hurt.
(3) Whoever commits an offence under sub-section (1) and in the course of such commission
causes any hurt to a person which causes that person to be in permanent disability or in persistent
vegetative state, 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, which shall mean imprisonment
for the remainder of that person’s natural life.
(4) When grievous hurt of a person is caused by a group of five or more persons on the ground of
his, race, caste, sex, place of birth, language, personal belief or any other ground, each member
of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.
Section 150: Acts endangering sovereignty unity and integrity of India.
Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible
representation, or by electronic communication or by use of financial mean, or otherwise, excites
or attempts to excite, secession or armed rebellion or subversive activities, or encourages
feelings of separatist activities or endangers sovereignty or unity and integrity of India; or
indulges in or commits any such act shall be punished with imprisonment for life or with
imprisonment which may extend to seven years and shall also be liable to fine.
While Sedition was punishable with imprisonment for life or imprisonment for upto 3 years,
Section 150 of the proposed code punishes the offence with life imprisonment of imprisonment
for upto 7 years.
Section 195 (1) (d): Imputations, assertions prejudicial to national integration.
Whoever, by words either spoken or written or by signs or by visible representations or through
electronic communication or otherwise:
makes or publishes false or misleading information jeopardising the sovereignty unity and
integrity or security of India, shall be punished with imprisonment which may extend to three
years, or with fine, or with both.
Section 224: Attempt to commit suicide to compel or restraint exercise of lawful power.
Whoever attempts to commit suicide with the intent to compel or restrain any public servant
from discharging his official duty shall be punished with simple imprisonment for a term which
may extend to one year or with fine or with both or with community service.
Section 301 (2): Theft
Whoever commits theft shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both and in case of second or subsequent
conviction of any person under this section, he shall be punished with rigorous imprisonment for
a term which shall not be less than one year but which may extend to five years and with fine.
Section 302: Snatching
(1) Theft is “snatching” if, in order to commit theft, the offender suddenly or quickly or forcibly
seizes or secures or grabs or takes away from any person or from his possession any moveable
property.
(2) Whoever commits snatching, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine.
Section 303: Theft in a dwelling house, or means of transportation or place of worship, etc
Whoever commits theft-
(a) in any building, tent or vessel used as a human dwelling or used for the custody of property;
or
(b) of any means of transport used for the transport of goods or passengers; or
(c) of any article or goods from any means of transport used for the transport of goods or
passengers; or
(d) of idol or icon in any place of worship; or
(e) of any property of the Government or of a local authority, shall be punished with
imprisonment of either description for a term which may extend to seven years and shall also be
liable to fine.
Section 322: Mischief
(3) Whoever commits mischief and thereby causes loss or damage to any property including the
property of Government or Local Authority shall be punished with imprisonment of either
description for a term which may extend to one year, or with fine, or with both.
(5) Whoever commits mischief and thereby causes loss or damage to the amount of one lakh
rupees or upwards, shall be punished with imprisonment of either description for a term which
may extend to five years, or with fine, or with both.
Section 339: Making or possessing counterfeit seal, etc., with intent to commit forgery
punishable under section 336
(3) Whoever possesses any seal, plate or other instrument knowing the same to be counterfeit,
shall be punished with imprisonment of either description for a term which may extend to three
years, and shall also be liable to fine.
(4) Whoever fraudulently or dishonestly uses as genuine any seal, plate or other instrument
knowing or having reason to believe the same to be counterfeit, shall be punished in the same
manner as if he had made or counterfeited such seal, plate or other instrument.
The sections which have been newly incorporated are mentioned above and the provisions
which have been omitted are following. Also the comments have been added wherever
necessary. Comments are written in Italics.
Adultery:
Section 497 of IPC, which criminalized Adultery, was struck down by the Supreme Court for
being arbitrary and violating Articles 14 and 15 of the Constitution. Adultery is no longer an
offence under the proposed code.
Unnatural sexual offences:
Section 377 of the IPC, which criminalised “unnatural” carnal intercourse against the order of
nature with any man, woman or animal, was struck down by the Supreme Court in the case of
Navtej Singh Johar v. Union of India. The proposed code does not feature unnatural offences.
A new chapter dealing with offences against women and children has been added. Under the
IPC, these offences are part of the chapter dealing with offences against the human body.
Gang rape of victims under 18:
Under IPC, Section 376DA and 376DB provides punishment for gang raping a girl under 16
years of age and under 12 years of age respectively. However, under the proposed code, Section
70(2) provides that if a group of persons rapes any girl below 18 years of age, they could face
life imprisonment of even the death sentence.
Section 4(f) of the proposed code has introduced community service as a form of punishment for
petty offences.
AMENDMENT IN INDIAN BHARATIYA NAGARIK SURAKSHA SANHITA (BNSS) BILL,
2023
CrPC has been amended several times since its enactment in 1973. The latest amendment bill,
called the Bharatiya Nagarik Suraksha Sanhita, 2023, aims to introduce some significant changes
to the CrPC. Following are the key changes:
petition within 30 days to the Governor. If rejected, the person can petition the President
within 60 days. No appeal against the order of the President shall lie in any court.
AMENDMENTS IN INDIAN EVIDENCE ACT (BHARTIYA SAKSHYA BILL, 2023)
Bharatiya Sakshya Bill contains total of 170 sections.
Incorporation of New Section:
Section 61: Admissibility of electronic or digital record.
Nothing in the Adhiniyam shall apply to deny the admissibility of an electronic or digital record
in the evidence on the ground that it is an electronic or digital record and such record shall have
the same legal effect, validity and enforceability as paper records.
The bill makes electronic or digital records admissible as evidence, giving them the same legal
effect as paper documents.
The scope of secondary evidence is expanded to include copies made from the original by
mechanical processes, counterparts of documents, and oral accounts of document contents.
1. Right to a Legal Representative, Statutory Fee;
In the case of D.B.M. Patnaik v. State of Andhra Pradesh, AIR 1974 SC 2092, the SC declared that the offenders' basic constitutional rights are not completely violated by mere confinement of the offenders. Therefore, through the same rationale, prisoners must be granted the right to a legal representative and free legal aid according to Article 22, 39A of the Constitution of India.2. Right to access Bank A/C, properties;
Under para 654D in the case of Soma Saha Sen Vs State of West Bengal, 2017, the Calcutta High Court declared as follows;The content of this document do not necessarily reflect the views / position of RKS Associate, but remains a probable view. For any further queries or follow up please contact RKS Associate at [email protected]