Bails and Anticipatory Bails: Part II

By Adv. Shriya Maini and Adv. Chethana Venkatraghavan

We take off from where we left in the last post on Bails and Anticipatory Bails. Now that we know about Bails, Anticipatory Bails and Interim Bails, let us examine the substantive provisions behind granting of bail.

What are the grounds on which bail is granted?

Bail is not granted to just anyone accused of a crime. While deciding bail applications, the Courts attempt to make an important determination between individual liberty of the accused in comparison to public safety, and hence, the Courts’ analysis of the same cannot be merely on subjective grounds.

While deciding the bail applications of the accused involved in the 2G Spectrum Scam case, Justice Shali, Former Judge of the Delhi High Court observed – “Bail is the rule and denial thereof is the exception. For the purpose of denial of the bail there must be extraordinary circumstances necessarily meaning bail ought not to be denied to an accused only on the ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused. There is a presumption of innocence in favour of the accused till he is found to be guilty.”

The Courts usually take into consideration the following grounds for granting bail and anticipatory bail (Please note, this is not an exhaustive list). Bail is granted on a case by case basis, analyzing an individual’s past conduct, his reputation in the society and other factors that are discussed in this section.

Gravity of the offence

The gravity or seriousness of the offence is directly linked to the chances of the accused succeeding in obtaining bail/anticipatory bail.

Explanation (“ɛ”) – In the event the accused is arrested or s/he suspects that s/he would be arrested on charges of a grave offence such as dowry death or sexual harassment/rape, under normal circumstances, it would be very difficult for the person to obtain bail/anticipatory bail.

Severity of punishment

The severity of the punishment can be inferred from the number of months or years of imprisonment prescribed in the IPC for that offence. The more severe the punishment, the more difficult it is for the accused to obtain bail/anticipatory bail.

ɛ – The punishment for murder is more severe than the punishment for petty theft. In case of petty theft of say, a mobile phone, if the mobile has been recovered already, the accused most likely to obtain bail/ anticipatory bail as opposed to a person accused of murder.

Past conduct
Prior to granting bail/anticipatory bail, the Courts usually direct the Investigating Officer to verify the antecedents of the accused. If the accused is a first time offender, it is marginally easier for her/him to obtain bail/ anticipatory bail with respect to that offence.

Whether the co-accused have been granted bail with respect to the same offence

This is an important condition with respect to bail, which is often overlooked while learning the theoretical aspects of criminal law. Lawyers use this in practice, and it is essential to highlight whether the co-accused have been granted bail or not.

ɛ – Of the five people who are involved in an armed robbery, if four of the co-accused have been granted bail/ anticipatory bail, the fifth accused would, under normal circumstances, be granted bail unless the FIR has certain glaring accusations made specifically against the fifth acused. However, if the fifth accused has a past criminal record of carrying out armed robberies, it would be marginally difficult for him to obtain bail since the Courts would consider his past antecedents while deciding his bail application.

Women, sick/ infirm and children (below the age of 16 years) 

Under Section 437, CrPC, women, sick/infirm nd children below the age of 16 years would be granted bail in almost all circumstances, unless there are extraordinary circumstances hinting against this.

ɛ – While deciding the famous DMK Minister Karunanidhi’s daughter Kanimozhi’s bail application with respect to the 2G Spectrum Scam case, Kanimozhi’s lawyers argued that Indian law (Section 437 of the Criminal Procedure Code) allows bail for those ‘under the age of 16, or (if the prisoner) is a woman, or is sick, or infirm’. In fact, the court gave Kanimozhi the benefit of being a woman and mother and Justice Shali remarked that she deserves bail, being a woman and a mother in consonance with Section 437.

When the Police Investigation is complete and the chargesheet has been filed in the matter. 

Note – Once the police completes the investigation, the Investigating Officer (IO) submits a chargesheet in Court. A time of 90 days is granted to the IO to submit the chargesheet.

Once the investigation is complete and the chargesheet has been filed by the IO in Court, it shows that the custody of the accused is not required any longer for the purposes of investigation. Hence, no fruitful purpose would be served by sending the accused to jail and thus, s/he can be granted bail on this ground alone.

ɛ – For example, in the case of former TERI chief RK Pachauri (the accused in a sexual harassment case), he was granted bail and allowed to travel abroad by the Learned Metropolitan Magistrate, Saket Courts (New Delhi) since the investigation was complete and the chargesheet had already been filed by the IO. Consequently, the accused was admitted to bail. The Court held – “The accused R K Pachauri is admitted to bail on furnishing a personal bond in the sum of Rs 50,000 with one surety of a like amount to the satisfaction of this court.”

While talking about bails and juvenilles it is important to note that children below the age of 18 years are governed by the Juvenile Justice Act, 20oo. This Act establishes Juvenile Justice Boards (JJB) that are analogus to the Magistrate Courts for adults. JJB tries the juvenille/ child offender.

An interesting point –  CrPC mandates that children below the age of 16 years would be granted bail under Section 437 (like women and infirm persons). However, under the JJ Act, a juvenile is defined under Section 2(12) as someone who has not yet completed 18 years of age. Hence, even if a person is 17 years old, the accused would appear before the JJ Board, though technically, on a mere reading of the CrPC, he would come under the jurisdiction of the Magistrate’s Court. 

In the event a Juvenile moves a bail application before the Magistrate due to error or administrative over-sight as to his correct age, the Magistrate usually directs the IO to verify the age of the accused/juvenile offender and accordingly transfers the matter to JJB, should the juvenile be below 18 years of age. 

How does the IO verify the age of the accused?

The IO will either obtain a copy of the birth certificate of the juvenile offender and present the same with the original before the Hon’ble Court. The other option for the IO is to verify from the school record (including his last school leaving certificate) of the juvenile/ accused as to his correct age. 

However, an anticipatory bail application for the juvenile offender must be preferred before the Sessions Court and not the JJB. This is because the JJB’s powers are analogus to that of a Magistrate’s Court and an anticipatory bail application would have to consequently only be moved in the Sessions Court. 

What is the difference between quashing of an FIR and obtaining anticipatory bail? 
If the FIR lodged against the accused is completely frivalous and outrightly untrue, the accused can move an application before the concerned High Court (note – only the High Court and the Supreme Court have the power to quash an FIR) for getting the FIR quashed under Section 482 of the CrPC. However, in an application for Anticipatory Bail, the accused tells the court that though the investigation is at an initial stage, the prospective accused need not be arrested as s/he is willing to cooperate with the investigation.

A good lawyer would not move an application for quashing of the FIR without filing an application for anticipatory bail since quashing of an FIR is not equal to being granted interim protection or anticipatory bail. This means that the police has complete powers to arrest the accused unless the court directs them not to do so, and the Court would only direct the police not to arrest the accused when an anticipatory bail or interim protection has been granted. This has nothing to do with the accused moving an application for quashing of the FIR.

How does one identify the right fora to move a bail application?

Procedural law with respect to identifying the right forum is a little tricky to comprehend, as the law works a differently in practice. For example, while both the HC and Sessions Court have concurrent jurisdiction to hear anticipatory bail applications, the HC in practice would usually dismiss the annticipatory bail application if the accused has not approached the Sessions Court first.
(for details on the exact fora, read this)

Are there some basic conditions based on which anticipatory bail/bail is granted?

Yes, there are some conditions that are common to all bail and anticipatory bail applications being allowed, and only if the accused respects and follows these conditions will anticipatory bail/ bail be granted or interim bail be continued. The Courts can impose a plethora of different conditions prior to granting bail/ anticipatory bail since it is granted on a case to case basis.

  • The most important and fundamental condition with respect to bails is that the accused (or a person apprehending arrest, in the case of anticipatory bails) will join the investigation as and when the IO requires his assistance. The accused will be asked to assist the IO by disclosing all possible and true known facts to the incident and fully cooperate with the investigation.
  • A condition stating that the accused, if granted anticipatory bail/ bail would not flee from the wings of justice.
  • A warning that the accused  would not compel the prosecution witnesses to falsely testify or affect their testimony in any manner.
  • A condition stating that the accused cannot leave India

ɛ – The accused will be asked to surrender his or her passport and the Court would order the accused to not leave the country without the Court’s permission

In the famous Salman Khan alleged hit and run case, Salman Khan applied for bail from the Bombay High Court and obtained the same, after a bond of Rs. 30,000/- had been paid. One of the conditions for granting the bail was that Salman Khan had to surrender his passport and could only travel abroad with the Court’s permission.

In the above mentioned R.K.Pachauri case, the learned Metropolitan Magistrate permitted the accused to leave the country for a conference and directed him to furnish 2 local sureties of Rs. 2,00,000/- each and to inform the Indian embassies in both the countries about his arrival. The Court also directed the accused to file a copy of his travel tickets along with photocopies of all pages of his passport, all valid visas and itinerary. Finally, the Court directed the accused to intimate the court and the IO upon his return.

  • A condition that the accused would not change his/ her place of residence since it would be difficult for the IO to keep track of the accused.

The accused may be granted bail on certain other conditions including that: 

  • The accused may be electronically tagged and the accused may not be permitted to enter a specific geographic area.
  • The accused would be asked to not contact specific persons.

ɛ – For example, prior to the prosecution evidence being closed in a sexual harassment/ rape matter, the accused can be granted Anticipatory bail with the condition that he is not allowed to contact specific persons, including the prosecutrix and other prosecution witnesses. In rape/ sexual harassment matters, especially Protection of Children from Sexual Offences, 2012 (POSCO), the accused is usually not granted bail unless the prosecution evidence is complete, post which, he may be granted bail with the condition that he is explicitly prohibited from contacting the prosecutrix in any manner.

Another interesting condition imposed while granting bail is a curfew on the accused’s movement by placing an embargo on him or her to stay inside his/her house for a few hours each day.

ɛ – Such a curfew condition is usually seen in cases of physical violence or sexual assault involving family members where the living condition of both the prosecutrix and the accused are such that they may have to face each other every day, much against their wishes.

The authors of this post don’t believe in information overload, and as a matter of fact, being rather lazy students ourselves, we are strictly against it. Therefore, this post ends here and we will wait for you to absorb this information.

About the Authors:

Advocate Shriya Maini is a young, bright, scholarly, advocate turned entrepreneur, currently practicing at the Supreme Court of India, the Delhi High Court and the District Courts at New Delhi.  She specializes in dispute resolution and as an unabashed feminist, particularly enjoys criminal litigation. She is a graduate of Gujarat National Law University, India who then pursued the Bachelor of Civil Laws Programme on a full scholarship (Dr. Mrs Ambruti Salve Scholarship) sponsored by Dr. Harish Salve, Senior Advocate, from the University of Oxford, specializing in International Crime. As a recipient of the Oxford Global Justice Award 2015 for Public International Law, she assisted the President of the International Residual Mechanism for the Criminal Tribunals (MICT) at The Hague, Netherlands. She is now back in the Courts of New Delhi, India to pursue her passion in litigation. Additionally, she has recently been appointed as a Visiting Professor for International Criminal Law at National Law University, Delhi, India.

Ms Chethana Venkataraghavan graduated from GNLU in 2017. She is currently working as an Associate at Cyril Amarchand Mangaldas, Mumbai. She was part of the team that won Surana and Surana Corporate Law Moot Court Competition, 2013 and the Philip. C. Jessup International Moot Court Competition, India Rounds, 2016. She was adjudged the Best Speaker at the Finals of the Manfred Lachs Space Law Moot Court Competition, Asia Pacific Rounds, 2014. She is passionate about blogging and was involved in an initiative – Exam of Smile – aimed at reducing levels of stress and depression among law students across the country.