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The true object behind granting of bail is to secure appearance of accused during trial

Citation : Gaurav @ Gaura vs State of U.P., Criminal Misc. Bail Application No. - 13747 Of 2021

Date of Judgment/Order : 5.1.2022

Court/Tribunal : Allahabad High Court

Corum : Hon'ble Krishan Pahal,J.

Background

Bail application under Section 439 of Code of Criminal Procedure was filed by the applicant seeking enlargement on bail in Case Crime No. 0583 of 2020, under Section 8/21 N.D.P.S. Act, 1985 at Police Station Khatauli, District Muzaffar Nagar.

The Learned Additional Advocate General opposed the application on the ground that applicant has criminal history of 48 cases and most of them have been lodged before filing of the said complaint against the police officials. He further submits that criminal antecedent of the accused is to be seen while granting the bail. Their relevance cannot be totally ignored.

The applicant submits that applicant has already been acquitted in five criminal cases whereas the prosecution in 17 has already came to an end. It is also submitted that the applicant has already been granted bail by this Court as well as by the lower Court in 21 criminal cases after considering the merits of the case. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. The applicant is languishing in jail since 29.12.2020. He undertakes that he will not misuse the liberty, if granted, therefore, he may be released on bail. 

Judgment

While granting the bail application, the High Court went into an excellent and detailed explanation behind the law and rational of granting or refusing bail.

The court observed that the object of grant of bail to an accused of an offence is neither punitive nor preventive in nature. The true object behind granting of bail is to secure appearance of accused during trial. The courts owe more than verbal respect to the principle that punishment begins after convictions and that every man is deemed to be innocent until duly tried and found guilty. From the earlier times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as mark of disapproval of former conduct whether the accused has been convicted for it or not.

It has been opined by the Apex Court in AIR 2012 SC 830 Sanjay Chandra vs. Central Bureau of Investigation that if bail to an accused under Section 437 or 439 Cr.P.C. is refused by the Court and he is detained in jail for an indefinite period of time and his trial is likely to take considerable time, the same would be violative of his fundamental right as to 'Personal liberty' guaranteed by Article 21 of the Constitution of India. It has also been opined that seriousness of the offence should not be treated as the only ground for refusal of bail.

Interpreting the provisions of bail contained u/s 437 & 439 Cr.P.C., the Supreme Court has laid down following considerations for grant or refusal of bail to an accused in a non-bailable offence:-
  1. Prima facie satisfaction of the court in support of the accusations.
  2. Nature of accusation.
  3. Evidence in support of accusations.
  4. Gravity of the offence.
  5. Punishment provided for the offence.
  6. Danger of the accused absconding or fleeing if released on bail.
  7. Character/criminal history of the accused.
  8. Behavior of the accused.
  9. Means, position and standing of the accused in the Society.
  10. Likelihood of the offence being repeated.
  11. Reasonable apprehension of the witnesses being tampered with.
  12. Danger, of course, of justice being thwarted by grant of bail.
  13. Balance between the rights of the accused and the larger interest of the Society/State.
  14. Any other factor relevant and peculiar to the accused.
  15. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, but if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.
(See: Mayakala Dharamaraja vs. State of Telangana, (2020) 2 SCC 743 and Lachman Dass vs. Resham Chand Kaler, AIR 2018 SC 599.)

According to Halsbury’s Laws of England - “ the effect of granting bail is not to set the defendant (accused) free, but to release him from custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place.”

According to Law Commission’s 268th report (2017), ‘Bail’ essentially means the judicial interim release of a person suspected of a crime held in custody, on entering into a recognizance, with or without sureties, that the suspect would appear to answer the charges at a later date; and includes grant of bail to a person accused of an offence by any competent authority under law.

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