Bail under New Criminal Law and CrPC
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Bail under New Criminal Law and CrPC

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 27-Feb-2024

Source: Supreme Court

Why in News?

Recently, the bench of Justices B R Gavai and Sandeep Mehta held that it is a settled law that the judgment and order granting bail by a single judge cannot be reviewed by the single judge of same court passing such judgment and order.

  • The aforesaid observation was made in the matter of Himanshu Sharma v. Union of India.

What was the Background of Himanshu Sharma v. Union of India Case?

  • The appeals challenge the 12th December 2023 orders by a single judge of the High Court of Madhya Pradesh Bench at Gwalior.
  • The judge cancelled bail granted to the appellants under Section 439(2) of the Code of Criminal Procedure, 1973 (CrPC).
  • The appellants were arrested for various offences under the Indian Penal Code, 1960 (IPC), and the Arms Act.
  • They were implicated solely on confessional statements made by co-accused.
  • The original bail was granted on 8th September 2022, and 14th September 2022, by a different single judge.
    • The state sought bail cancellation, citing the appellants' potential involvement in serious crimes.
  • The appellant approached Supreme Court stating that the decision to cancel bail by assessing the case's merits was inappropriate and an act of judicial impropriety.

What were the Court’s Observations?

  • The court emphasized the well-established principle that the considerations for granting bail and its cancellation are distinct.
  • It asserted that bail can only be cancelled under specific circumstances, including misuse of liberty, flouting bail conditions, ignorance of statutory provisions, or through misrepresentation or fraud.
  • The court expressed concern over the jurisdictional impropriety of the bail cancellation application being heard by a different single judge.
  • It noted that the cancellation disregarded the progress of the trial and concluded that the orders cancelling bail were grossly illegal and quashed them.
    • Consequently, the appeals were allowed.

What is the Concept of Bail in New Criminal Law and CrPC?

  • Concept:
    • Bail, a legal provision within the CrPC and BNSS facilitates release from prison pending trial or appeal upon depositing security.
    • Bailable offences guarantee the right to bail, as per Section 436 of the CrPC, while non-bailable offences grant discretion to courts or designated police officers, as outlined in Section 437.
    • Justice V R Krishna Iyer in the case of State of Rajasthan v. Balchand (1977) held that the basic rule is bail, not jail. It referred to a concept which is ‘Bail is a Right and Jail is an exception”.
  • Power of High Court to Grant Bail:
    • Provision
      • Under Section 439(1) of CrPC, a High Court or Court of Session holds the authority to grant bail.
      • Section 483 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) covers these special powers of High Court and Court of Session to grant bail.
    • Granting Bail
      • A High Court or Court of Session may direct:
        • Release on bail of any person accused of an offence and in custody.
        • Imposition of conditions for certain specified offences under Section 437(3) of CrPC.
        • Modification or setting aside of conditions imposed by a Magistrate when releasing a person on bail.
    • Cancellation of Bail
      • Section 439(2) empowers the High Court or Court of Sessions to order the arrest of individuals previously released on bail under Chapter XXXIII.
  • Anticipatory Bail:
    • Provision
      • Section 438 of CrPC enables individuals fearing arrest for non-bailable offences to seek interim or anticipatory bail, that is pre-arrest bail.
      • Section 482 of BNSS covers this provision.
      • It states that where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail.
    • Eligibility
      • Anyone anticipating charges, enmity, or wrongful arrest may apply.
      • In State of M.P v. Pradeep Sharma (2013), SC held that “When a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of CrPC, he is not entitled to the relief of anticipatory bail”.
    • Factors
      • The nature and gravity of the accusation;
      • The antecedents of the applicant;
      • The possibility of the applicant to flee from justice; and
      • Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
  • Mandatory Bail:
    • Magistrates shall grant bail if investigations extend beyond prescribed periods under Section 167 (2) of CrPC. The use of word ‘shall’ makes it mandatory to grant bail under this Section.
    • It is also known as Default Bail.
    • Accused are entitled to bail if investigations are not completed within specified durations.
    • Section 187 of BNSS covers this provision.