Bail:
FIR against appellant (accused) u/ss. 419, 420, 406 and 506 IPC and complaint u/s. 138 of Negotiable Instruments Act – During investigation, appellant not arrested – While rejecting his petition for quashing the FIR, High Court granted two months time to appear before trial judge – Once again High Court granted him further two months time to appear before trial Judge – Thereafter, on appellant’s appearing before trial judge, taken into judicial custody – Bail applications rejected by trial court as well as High Court – On appeal, held: An important facet of criminal jurisprudence is that grant of bail is the general rule and putting the person in jail is an exception – Grant or denial of bail is entirely the discretion of the judge – Exercise of such discretion though unfettered, must be exercised judicially in a humane manner and compassionately – If the Investigating Officer does not find it necessary to arrest an accused person during investigation, a strong case should be made out for placing that person in judicial custody – Conduct/participation of accused in the investigation; fact as to whether accused is first-time offender; nature of offences; general conduct of accused; indigent status of accused are to be taken into consideration while granting bail – In the present case, accused was not arrested during the investigation – Facts indicate that there was no apprehension that the accused would abscond or hamper with trial – Courts below were required to judiciously exercise discretion and grant bail to the accused – Code of Criminal Procedure, 1973 – s. 436 Explanation; s.436 A – Penal Code, 1860 – ss.419, 420, 406 and 506 – Negotiable Instruments Act, 1881 – s.138.
Allowing the appeal, the Court
HELD : 1. An important facet of criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to criminal jurisprudence or to the society. [Para 2] [885-F-G]
2. The grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 Cr.P.C. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in Cr.P.C. [Paras 3-4] [885-H; 886-A-E]
3. A humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems. It should not be understood to mean that bail should be granted in every case. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. [Paras 3 and 7] [886-AB; 887-C] Re-Inhuman Conditions in 1382 Prisons (2017) 10 SCC
658 – referred to.
4. In the present case, during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge-sheet was filed against him, he was not arrested for a considerable period of time. When he approached the High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity. [Para 17] [889-C-E]
Nikesh Tarachand Shah v. Union of India (2017) 13 SCALE 609 ; Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : [1980] 3 SCR 383 ; Nagendra v. King-Emperor AIR 1924 Cal 476 ; Emperor v.
Hutchinson AIR 1931 All 356 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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