Published on: August 16,2021 12:15 IST
The Indian Constitution recognizes life and personal liberty as inalienable rights of all people. “No one shall be deprived of his life or personal liberty except in accordance with a procedure established by law,” says Article 21.
Article 21 of the Constitution is directly linked to the concept of bail. In the case of Gudikanti Narasimhulu Vs Public Prosecutor, High Court of Andhra Pradesh, the Supreme Court held that:
“Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.”
The Supreme Court in the above case has recognized that bail acts as a safeguard to the right to personal liberty enshrined in Article 21 of the Constitution.
The Code of Criminal Procedure, 1973 (hereinafter as CrP.C) contains no definition of the term “bail”. However, judicial interpretation is being used to provide some clarity on the meaning of bail.
According to the Hon’ble Madras High Court in the case of Natturasu Vs State, bail is the process of obtaining the release of an accused charged with a crime by ensuring his future attendance in the Court for trial and requiring him to remain within the Court’s jurisdiction. The provision for bail can be traced all the way back to Magna Carta which states that:
“No free man shall be seized, imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by lawful judgement of his equals or by the law of the land.”
The principle of “presumption of innocence until proven guilty,” which is a fundamental principle underlying criminal law and is enshrined in Article 11(1) of the Universal Declaration of Human Rights, has a direct correlation with the grant of bail.
The Indian Judiciary in various cases has frequently recognized the aforementioned principle as one of the three cardinal principles of criminal jurisprudence. Without a doubt, the aforementioned principle has become one of the most important determining factors in granting bail to an accused person.
To understand the concept of interim bail in a more detailed manner we need to understand the concept of Bail in the Indian Law.
Types of Bail
Bail is of three major types, namely:
- Regular Bail: Regular bail is Bail granted by a court by the court after a person has been arrested after commission of an offence. Any person who commits a cognizable and non-bailable offence will be taken into custody by the police. The accused must be sent to jail after the period of police custody, if any, has ended. Such an accused has the right to be released from custody under sections 437 and 439 of the CrP.C. As a result, we can say that regular bail is the release of an accused from custody in order to ensure his appearance in Court.
- Anticipatory Bail: Anticipatory bail is a bail that is granted to a person even before an arrest in the hopes that he will be arrested for a criminal offence in a few days. This bail is necessary nowadays, when powerful people involve their opponents in false and frivolous criminal cases in order to harm their reputations or to get them arrested for a period of time so that they can get their work done.
An application for anticipatory bail does not require the filing of a First Information Report (FIR) against a person. When a person anticipates the existence of reasonable grounds for his arrest, he can apply for anticipatory bail before filing a FIR.
Even after filing a FIR, a person has the right to apply for anticipatory bail, but only before being arrested. When someone is arrested, they must file an application for regular or interim bail, depending on the situation.
- Interim Bail: Interim Bail is a temporary bail granted by the Court during the pendency of any application or until your Anticipatory Bail or Regular Bail application is pending before the Court. It will be granted on certain conditions that are needed to be met. The interim bail can be extended, but if the period of interim bail expires and the accused person fails to pay the court for confirmation and/or continuation of the interim bail, the accused person’s freedom will be revoked, and he will be taken into custody or a warrant will be issued against him.
Essentials of Interim Bail
Interim Bail has the following essentials:
- It is granted for a short period of time.
- It is granted when an application of Anticipatory Bail or regular bail is pending in Court.
- Once the time period for Bail is over, the accused will be arrested without a warrant.
- There is no specific process of cancelling of Interim Bail.
Difference between Anticipatory Bail and Interim Bail
Section 438 empowers the High Court and Sessions Court to grant anticipatory bail, which is a direction to release someone on bail before they are arrested. The need for anticipatory bail arises because powerful people sometimes try to implicate their rivals in false cases in order to disgrace them or for other reasons by detaining them in jail for a few days.
Apart from false cases, where there are reasonable grounds to believe that a person accused of an offence will not abscond or otherwise misuse his liberty while on bail, it seems reasonable to require him to first submit to custody, remain in prison for a few days, and then apply for bail.
The term “anticipatory bail” is a misnomer because Section 438 only contemplates an order releasing the accused on bail in the event of his arrest, not anticipatory bail.
It is self-evident that there can be no discussion of bail unless a person is detained or held in custody. As a result, the order granting anticipatory bail only becomes effective upon arrest.
The statute lays out the factors that the High Court or Sessions Court should take into account when granting anticipatory bail:
- The nature and seriousness of the charge.
- The applicant’s background, including whether he has previously served time in prison after being convicted by a court of any cognizable offence.
- The possibility of the applicant eluding the law.
This type of bail is nothing like an anticipatory bail as this is granted when the application is pending for bail. Interim bail can only help accused persons who might be framed for the crime they are accused of and thus, want to get out of the jail or on bail as soon as possible.
Interim bail does not have a specific section but conditions that are specified apply in this case as well.
- In the case of Sukhwant Singh & Ors Vs State of Punjab that Interim bail is a tool/measure used to protect an accused’s reputation. The Supreme Court of India has also stated that:
“In the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application.”
- In Lal Kamlendra Pratap Singh Vs State of U.P. and Ors., the Hon’ble Supreme Court stated in discussing the scope of interim bail that he importance of interim bail cannot be overstated. Courts in India have consistently recognised that interim bail protects a person’s reputation until the main application of bail is adjudicated, which can be tarnished by the mere event of arrest and stigma associated with it, by stating that:
“In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person’s reputation….”
- Similarly, in cases where an anticipatory bail application was pending, the Hon’ble High Court of Delhi in the case of Parminder Singh and Ors. v. The State stated:
“where there is no likelihood of the accused fleeing from justice, or tampering with the evidence, or a clear case for custodial interrogation is not made out and the application for grant of anticipatory bail cannot be heard at an early date, then the interim protection should normally be provided to such accused persons. Otherwise, the very object and purpose for grant of anticipatory bail would get defeated.”
- It is well established that the Court’s discretion governs whether or not bail is granted. However, such discretion must be “judicial,” meaning that it must be based on sound legal principles. This was held in the case of Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. when the Supreme Court stated that “It must be governed by rules rather than humour; it must not be arbitrary, vague, or fanciful, but rather legal and consistent.” For the simple reason that the merits and severity of the case may not be fully appreciated by the Courts at the time of determining a prayer/request for interim bail, such judicious exercise is even more important.
- Because such power is often exercised during the interregnum and based on limited facts and circumstances brought to the Court’s attention, it is not uncommon for unscrupulous litigants/accused to abuse it. There are numerous examples of such misuse and abuse, ranging from violation and disregard of bail conditions to extreme elopement from the legal process. The Hon’ble Supreme Court recognised one such instance of interim bail abuse in Rukmani Mahato v. State of Jharkhand. In the case, the Hon’ble Apex Court condemned the practise of subordinate courts granting regular bail based on the superior court’s interim/pre-arrest bail. The Supreme Court ruled:
“..even if the superior court is to dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail granted by the subordinate court would continue to hold the field, rendering the ultimate rejection of the pre-arrest bail by the superior court meaningless.”
- Another example would be where an accused, after being arrested, is able to obtain interim bail for a limited period of time through his attorney. However, while attempting to avoid arrest, the accused blatantly disregards the bail conditions and even fails to appear in court after the duration of the bail has expired. Such instances are nothing more than a violation of the court’s process, and they must be dealt with harshly. The Hon’ble High Court of Rajasthan in the case of Phool Chand Vs State of Rajasthan, in dealing with a similar case of judicial abuse, held that in such a case, an evading accused cannot seek recourse to the inherent jurisdiction of the High Court(s) under Section 482 CrP.C, nor can the remedy under Section 438 CrP.C be used.
- At the same time, according to the Hon’ble Supreme Court, even the power under Section 439 CrP.C cannot help an erring accused unless he or she surrenders and is taken into custody. The Hon’ble High Court held, relying on the Supreme Court’s decisions in Niranjan Singh Vs Prabhakar Rajaram Kharota and Gurbaksh Singh Vs State of Punjab, that:
“…They cannot be granted bail under section 439 Cr. P.C. unless, as explained above, they surrender before the Court and submit to its directions. They cannot invoke the aid of section 438 Cr. P.C. either, because, as already stated, they were arrested by the police……The law is well settled, that anticipatory bail can be granted so long only as the applicant has not been arrested.”
- In addition, instances of dishonest accused attempting to abuse/misuse the inherent power of the High Courts by invoking the provisions of Section 482 CrP.C to seek interim bail/ protection are not uncommon. In this regard, the Hon’ble Apex Court has repeatedly stated in cases such as State of Punjab Vs Davinder Pal Singh Bhullar and Simrikhia Vs Dolley Mukherjee, that the power of the High Court(s) under Section 482 CrP.C cannot be used where there are specific provisions under law for the redressal of the aggrieved party’s grievance or where alternative remedy is available.
- In Savitri Goenka Vs Kusum Lata Damani, the Hon’ble Court strongly condemned the practise of converting Section 482 CrP.C applications to Sections 438 and 439 CrP.C applications. In fact, the Hon’ble Supreme Court has consistently held that when it comes to criminal prosecutions, arrests, investigations, and other matters, the High Courts should exercise their power under Section 482 CrP.C with caution.
To summarise, life and personal liberty are far too valuable a right to be taken lightly. The importance of such inalienable rights of individuals has been repeatedly emphasised by the Indian judicial and legal systems, including in cases of bail grant and refusal.
However, the courts must be wary of the fact that where judicial devices are misused and abused by dishonest litigants/persons, they must be dealt with harshly. Without a doubt, the law aids and assists the honest, but it cannot be used to aid or carry out a fraudulent scheme.
Interim bail, as the name implies, provides conditional protection during the interim and cannot be used to avoid the judicial process entirely. Any such violation of the law must be dealt with harshly by the courts.
- Lectures on Criminal Procedure by R.V Kelkar, Sixth edition by K.N. Chandrasekharan Pillai
- Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240 has held, ↑
- Natturasu v. State 1998 Cri Lj 1762 ↑
- Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233; Sunil Kumar Sharma v. State (CBI), (2007) 139 DLT 407 ↑
- Sukhwant Singh & Ors v. State of Punjab, (2009) 7 SCC 559 ↑
- Lal Kamlendra Pratap Singh v. State of U.P. and Ors., (2009)4 SCC 437 ↑
- Parminder Singh and Ors. v. The State, 95 (2002) DLT 410 ↑
- Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240 ↑
- Rukmani Mahato v. State of Jharkhand, (2017) 15 SCC 574. ↑
- Phool Chand v. State of Rajasthan, 1983 SCC OnLine Raj 124:1983 RLW 294 ↑
- Niranjan Singh v. Prabhakar Rajaram Kharota AIR 1980 SC 785 ↑
- Gurbaksh Singh v. State of Punjab AIR 1980 SC 1632 ↑
- State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 ↑
- Simrikhia v. Dolley Mukherjee, (1990) 2 SCC 437 ↑
- Savitri Goenka v. Kusum Lata Damani, (2007) 14 SCC 373 ↑