Question Bank On Anticipatory Bail
1. Which provision of law deals with anticipatory bail? Section 482(1) of Bharatiya Nagarik Suraksha…
Can a summoning order be passed after the order of acquittal or imposing of sentence in the conviction?
if such a summoning order is passed, either after the order of acquittal or imposing of sentence in the conviction, the same may not be sustainable- Followed Sukhpal Singh Khaira vs. State of Punjab [2022] 10 S.C.R. 156:: 2022 INSC 1252 – Devendra Kumar Pal vs State Of UP 2024 INSC 679
Does the proviso to Section 132 grant complete immunity from prosecution to a person who has deposed as a witness (and made statements incriminating himself)?
The qualified privilege under the proviso to Section 132 of the Act does not grant complete immunity from prosecution to a person who has deposed as a witness (and made statements incriminating himself)- The only protection available is, a witness cannot be subjected to prosecution on the basis of his own statement. It nowhere provides that there is complete and unfettered immunity to a person even if there is other substantial evidence or material against him proving his prima facie involvement. If this complete immunity is read under the proviso to Section 132 of the Act, an influential person with the help of a dishonest Investigating Officer will provide a legal shield to him by examining him as a witness even though his complicity in the offence is writ large on the basis of the material available in the case. (Para 20-25) –Raghuveer Sharan vs District Sahakari Krishi Gramin Vikas Bank 2024 INSC 681.
Is a statement tendered by witness incriminating himself enough for the trial court to pass order under section 319 CrPC?
There cannot be an absolute embargo on the Trial Court to initiate process under Section 319 Cr.P.C., merely because a person, who though appears to be complicit has deposed as a witness. The finding to invoke Section 319 Cr.P.C., must be based on the evidence that has come up during the course of Trial. There must be additional, cogent material before the Trial Court apart from the statement of the witness- (Para 21-22) Raghuveer Sharan vs District Sahakari Krishi Gramin Vikas Bank 2024 INSC 681 [Question Framed by Law Student Kunal Raizada]
Is the fundamental right under Article 20(3) of the Constitution available to a person who is a witness and not an accused ?
Article 20(3) of the Constitution of India which confers a fundamental right that “no person accused of any offence shall be compelled to be a witness against himself”. Under the constitutional scheme, the right is available only to a person who is accused of an offence, the proviso to Section 132 of the Act, in extension, creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself- Section 132 of the Act is a necessary corollary to the principle enshrined under Article 20(3) of the Constitution of India which confers a fundamental right that “no person accused of any offence shall be compelled to be a witness against himself”-The purpose for granting such a statutory immunity was to enable the court to reach a just conclusion (and thus assisting the process of law). (Para 14-15)- Raghuveer Sharan vs District Sahakari Krishi Gramin Vikas Bank 2024 INSC 681
Is an application for anticipatory bail is maintainable at the instance of an accused while he is already in judicial custody in connection with his involvement in a different case?
Code Of Criminal Procedure, 1973; Section 438 – [BNSS,2023; Section 482]– An accused is entitled to seek anticipatory bail in connection with an offence so long as he is not arrested in relation to that offence. Once he is arrested, the only remedy available to him is to apply for regular bail either under Section 437 or Section 439 of the CrPC, as the case may be- There is no express or implied restriction in the CrPC or in any other statute that prohibits the Court of Session or the High Court from entertaining and deciding an anticipatory bail application in relation to an offence, while the applicant is in custody in relation to a different offence. No restriction can be read into Section 438 of the CrPC to preclude an accused from applying for anticipatory bail in relation to an offence while he is in custody in a different offence, as that would be against the purport of the provision and the intent of the legislature. (Para 60) [Dhanraj Aswani vs Amar S. Mulchandani 2024 INSC 669 – Anticipatory Bail ]
When can an arrest be effected without actual touch ?
Code Of Criminal Procedure, 1973; Section 46– Arrest involves actual touch or confinement of the body of the person sought to be arrested. However, arrest can also be effected without actual touch if the person sought to be arrested submits to the custody by words or action-The actual seizing or touching of the body of the person to be arrested is not necessary in a case where the arrester by word brings to the notice of the accused that he is under compulsion and thereafter the accused submits to that compulsion. This is in conformity with the modality of the arrest contemplated under Section 46 of the CrPC wherein also it is provided that the submission of a person to be arrested to the custody of the arrester by word or action can amount to an arrest. The essence is: There must be an actual seizing or touching, and in the absence of that, it must be brought to the notice of the person to be arrested that he is under compulsion, and as a result of such notice, the said person should submit to that compulsion, and then only the arrest is consummated. (Para 46-51) –Dhanraj Aswani vs Amar S. Mulchandani 2024 INSC 669 – Anticipatory Bail
Can the investigating agency seek remand of an accused already in custody for a previous offense ?
The investigating agency, if it deems necessary for the purpose of interrogation/investigation in an offence, can seek remand of the accused whilst he is in custody in connection with a previous offence so long as no order granting anticipatory bail has been passed in relation to the subsequent offence. However, if an order granting anticipatory bail in relation to the subsequent offence is obtained by the accused, it shall no longer be open to the investigating agency to seek remand of the accused in relation to the subsequent offence. Similarly, if an order of police remand is passed before the accused is able to obtain anticipatory bail, it would thereafter not be open to the accused to seek anticipatory bail and the only option available to him would be to seek regular bail. (Para 60 (iii)) –Dhanraj Aswani vs Amar S. Mulchandani 2024 INSC 669 [Question framed by Law Student Adnan Mohiuddin Siddqui ]
What are the pre-conditions for a person to apply for a pre-arrest bail?
Under Section 438 of the CrPC, the pre-condition for a person to apply for pre-arrest bail is a “reason to believe that he may be arrested on an accusation of having committed a non-bailable offence”. Therefore, the only pre-condition for exercising the said right is the apprehension of the accused that he is likely to be arrested. In view of the discussion in the preceding paragraphs, custody in one case does not have the effect of taking away the apprehension of arrest in a different case. (Para 60 (vi)) –Dhanraj Aswani vs Amar S. Mulchandani 2024 INSC 669 [Question framed by Law Student Adnan Mohiuddin Siddqui ]
What are ingredients of the offence of dowry death under Section 304B IPC?
Indian Penal Code, 1860; Section 304B – The ingredients of the offence : (a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (d) such cruelty or harassment must be in connection with the demand for dowry. [In this case, the Court noted that the fourth ingredient i.e. cruelty or harassment in connection with the demand for dowry is missing and therefore set aside conviction under Section 304B] – Referred to Rajinder Singh vs. State of Punjab (2015) 6 SCC 477. (Para 8,9) –Chabi Karmakar vs State Of West Bengal 2024 INSC 665
Can Courts permit compounding of non-compoundable offences-?
Constitution of India, 1950; Article 142 – Code Of Criminal Procedure, 1973; Section 320, 482- Courts cannot grant permission to compound the noncompoundable offences, on the basis of any sort of compromise between the parties, as it would be contrary to what has been provided by legislation, except the High Court under Section 482 of Cr.PC and the Apex Court in exercise of its powers under Article 142 of the Constitution of India. [In this case, the court invoked Article 142 as the appellants and complainant side are close relatives and after settling their disputes, both sides have agreed to maintain peace and harmony in the society.]. – Referred to Ramgopal & Anr. v. State of M.P (2022) 14 SCC 531 (Para 6-7) –Suraj Singh Gujar vs State Of Madhya Pradesh 2024 INSC 661
Can mere registration of FIR be interpreted to mean that it constitutes the initiation of proceedings?
Code Of Criminal Procedure,1973; Section 154-176 –Mere registration of FIR cannot be interpreted to mean that it constitutes the initiation of proceedings. A registration of FIR necessitates an investigation by a competent officer as per the detailed process outlined in Sections 155 to 176. It is only after a Final Report (or as referred in the common parlance, a Challan or a Chargesheet) is submitted as per the compliance of Section 173(2) of CrPC 1973, cognizance for the offence(s) concerned is taken. However, undoubtedly, the Court is not bound by the said report. The cardinal principle that investigation and taking of cognizance operate in parallel channels, without an intermingling, and in different areas – Referred to H.N. Rishbud v. State (Delhi Admn.) (1954) 2 SCC 934 , Abhinandan Jha v. Dinesh Mishra 1967 SCC OnLine SC 107 and State of Orissa v. Habibullah Khan 2003 SCC OnLine SC 1411. (Para 19) – Baccarose Perfumes And Beauty Products Pvt. Ltd. vs Central Bureau Of Investigation 2024 INSC 662
Can Section 311 CrPC be invoked to recall prosecution witnesses merely on the ground that the erstwhile lawyer engaged by the accused did not conduct proper cross-examination ?
Code Of Criminal Procedure,1973; Section 311 [BNSS,2023; Section 348] – Section 311 CrPC operates in two parts, the first part clothes the Court with a power to summon or examine any person in attendance or recall or re-examine any person already examined. The second part mandates that the Court shall summon and examine or recall and re-examine such person, if his evidence appears to be essential to the just decision of the case. Thus, first part of section gives a discretionary power to the Court to summon any person as a witness or to recall or re-examine the person already examined. Such a course of action is only permissible if the Court is satisfied that the prayer to recall and reexamine the witness is not made to fill in the lacuna and that the nonsummoning of the witnesses would cause a serious prejudice to the accused – Referred to Rajaram Prasad Yadav vs State of Bihar (2013) 4 SCC 461. (Para 7) [In this case, other than a vague aspersion that the erstwhile lawyer engaged by the petitioners did not conduct proper cross-examination of the witnesses, no such specific ground was alluded on behalf of the accused petitioners which could be considered to be a valid ground for the trial Court to invoke the power under Section 311 CrPC]- Neha Begum vs State Of Assam
Can constitutional Courts fix a time-bound schedule for conduct of cases before the Trial and other Courts ?
Criminal Trial -As a matter of rule, the Constitutional Courts should not fix a time-bound schedule for conduct of cases before the Trial and other Courts and the said approach can be adopted only in very exceptional cases. Notwithstanding the pronouncement of law by the Constitution Bench of this Court, we have noticed that several High Courts while rejecting the bail applications, are fixing time-bound schedule for the conduct of trials. It cannot be that the bail is denied on the ground that the trial will be disposed of in a time-bound schedule – Referred to High Court Bar Association, Allahabad v. State of U.P- Ram Bahadur Magar @ Sanki @ Rabin vs State Of West Bengal
Is mere presence of the accused as part of the unlawful assembly sufficient for conviction under Section 149 IPC [now Section 190 BNS] ?
Section 149 IPC does not create a separate offence but only declares vicarious liability of all members of the unlawful assembly for acts done in common object – Section 149 IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. By application of this principle, every member of an unlawful assembly is roped in to be held guilty of the offence committed by any member of that assembly in prosecution of the common object of that assembly. The factum of causing injury or not causing injury would not be relevant when an accused is roped in with the aid of Section 149 IPC. The question which is relevant and which is required to be answered by the court is whether the accused was a member of an unlawful assembly and not whether he actually took part in the crime or not -No overt act is required to be imputed to a particular person when the charge is under Section 149 IPC; the presence of the accused as part of the unlawful assembly is sufficient for conviction. (Para 30-32) Nitya Nand vs State Of U.P 2024 INSC 655
Can FIR be quashed after filing of chargesheet?
Code Of Criminal Procedure,1973; Section 482 -Whether quashing of the FIR can be refused for no other reason than that the investigating officer has filed the charge-sheet? High Court under Section 482, Cr. PC. retains the power to quash an FIR, even after charge-sheet under Section 173(2) thereof is filed, provided a satisfaction is reached, inter alia, that either the FIR and the charge-sheet read together, even accepted as true and correct without rebuttal, does not disclose commission of any offence or that continuation of proceedings arising out of such an FIR would in fact be an abuse of the process of law as well as of the Court given the peculiar circumstances of each particular case- Referred to Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 , Anand Kumar Mohatta vs State (Govt. of NCT of Delhi) Home Department (2019) 11 SCC 706 and Abhishek vs. State of Madhya Pradesh 2023 SCC OnLine SC 108. (Para 7-8) – Shaileshbhai Ranchhodbhai Patel vs State Of Gujarat CrA 1884/2013 – S 482 CrPC
Is an order dismissing an application seeking modification of charge ‘interlocutory order’? Is a revision petition maintainable?
Code Of Criminal Procedure, 1973; Section 216,397– The order dismissing application seeking modification of charge would be an interlocutory order and in view of the express bar contained in sub-section (2) of Section 397 Cr.P.C., the Revision Application itself is not maintainable. (Para 8)- K Ravi vs State Of Tamil Nadu 2024 INSC 642
Does Section 216 CrPC give any right to the accused to file a fresh application seeking his discharge after the charge is framed?
Code Of Criminal Procedure, 1973; Section 216,227- Section 216 is an enabling provision which enables the court to alter or add to any charge at any time before judgment is pronounced, and if any alteration or addition to a charge is made, the court has to follow the procedure as contained therein. Section 216 does not give any right to the accused to file a fresh application seeking his discharge after the charge is framed by the court, more particularly when his application seeking discharge under Section 227 has already been dismissed. Unfortunately, such applications are being filed in the trial courts sometimes in ignorance of law and sometimes deliberately to delay the proceedings. Once such applications though untenable are filed, the trial courts have no alternative but to decide them, and then again such orders would be challenged before the higher courts, and the whole criminal trial would get derailed- Such practice is highly deplorable, and if followed, should be dealt with sternly by the courts. (Para 11)- K Ravi vs State Of Tamil Nadu 2024 INSC 642
What is the scope of revisional jurisdiction under Section 397?
Code Of Criminal Procedure, 1973; Section 397-The Court exercising Revisional Jurisdiction under Section 397 should be extremely circumspect in interfering with the order framing the charge, and could not have interfered with the order passed by the Trial Court dismissing the application for modification of the charge under Section 216 Cr.P.C., which order otherwise would fall in the category of an interlocutory order – scope of interference and exercise of jurisdiction under Section 397 Cr.P.C. is extremely limited. Apart from the fact that subsection 2 of Section 397 prohibits the Court from exercising the powers of Revision, even the powers under sub-section 1 thereof should be exercised very sparingly and only where the decision under challenge is grossly erroneous, or there is non-compliance of the provisions of law, or the finding recorded by the trial court is based on no evidence, or material evidence is ignored or judicial discretion is exercised arbitrarily or perversely by framing the charge. (Para 10) – K Ravi vs State Of Tamil Nadu 2024 INSC 642
When can be a person convicted for attempt to murder under Section 307 IPC?
Indian Penal Code,1860; Section 307 – A conviction under Section 307 of the IPC may be justified only if the accused in question possessed intent coupled with some overt act in aid of its execution. Ascertaining the intention to kill or having the knowledge that death may be caused as a result of the overt act, is a question of fact and hinges on the unique circumstances that each case may present. (Para 17) Raju vs State of Uttarakhand 2024 INSC 633
What is the scope of discharge under Section 227 CrPC?
Code Of Criminal Procedure,1973; Section 227– The expression “not sufficient ground for proceeding against the accused” clearly shows that the Judge is not a mere post office to frame the charge at the behest of the prosecution. The Judge must exercise the judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. The principles governing the scope of Section 227, Cr.P.C. – Referred to Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4. (Para 20.2)- Karnataka Emta Coal Mines Limited vs Central Bureau Of Investigation 2024 INSC 623
What is the scope of quashing powers of High Court under Section 482 CrPC?
Code Of Criminal Procedure,1973; Section 482– Section 482 Cr.P.C recognizes the inherent powers of the High Court to quash initiation of prosecution against the accused to pass such orders as may be considered necessary to give effect to any order under the Cr.P.C or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a statutory power vested in the High Court to quash such criminal proceedings that would dislodge the charges levelled against the accused and based on the material produced, lead to a firm opinion that the assertions contained in the charges levelled by the prosecution deserve to be overruled. 18.8 While exercising the powers vested in the High Court under Section 482, Cr.P.C, whether at the stage of issuing process or at the stage of committal or even at the stage of framing of charges, which are all stages that are prior to commencement of the actual trial, the test to be applied is that the Court must be fully satisfied that the material produced by the accused would lead to a conclusion that their defence is based on sound, reasonable and indubitable facts. The material relied on by the accused should also be such that would persuade a reasonable person to dismiss the accusations levelled against them as false. (Para 18.7-18.8) Karnataka Emta Coal Mines Limited vs Central Bureau Of Investigation 2024 INSC 623
Code Of Criminal Procedure, 1973; Section 482– While exercising inherent jurisdiction under Section 482 of Criminal Procedure Code, 1973, the High Court is not supposed to hold a mini trial- Dharambeer Kumar Singh vs State Of Jharkhand 2024 INSC 583
Is a petition filed under Section 482, CrPC, for quashing an order summoning the accused maintainable?
Code Of Criminal Procedure, 1973; Section 482– A petition filed under Section 482, CrPC, for quashing an order summoning the accused is maintainable. There cannot be any doubt that once it is held that sine qua non for exercise of the power to issue summons is the subjective satisfaction “on the ground for proceeding further” while exercising the power to consider the legality of a summons issued by a Magistrate, certainly it is the duty of the Court to look into the question as to whether the learned Magistrate had applied his mind to form an opinion as to the existence of sufficient ground for proceeding further and in that regard to issue summons to face the trial for the offence concerned. (Para 22) – Delhi Race Club (1940) Ltd. vs State of Uttar Pradesh 2024 INSC 626
What is difference between the offences of criminal breach of trust and cheating? Can both the offences cannot co-exist simultaneously.
Indian Penal Code,1860; Section 406, 415, 420-The offences of criminal breach of trust (Section 406 IPC) and cheating (Section 420 IPC) have specific ingredients. In order to constitute a criminal breach of trust (Section 406 IPC): – 1) There must be entrustment with person for property or dominion over the property, and 2) The person entrusted: – a) dishonestly misappropriated or converted property to his own use, or b) dishonestly used or disposed of the property or willfully suffers any other person so to do in violation of: i. any direction of law prescribing the method in which the trust is discharged; or ii. legal contract touching the discharge of trust (see: S.W.P. Palanitkar (supra). Similarly, in respect of an offence under Section 420 IPC, the essential ingredients are: – 1) deception of any person, either by making a false or misleading representation or by other action or by omission; 2) fraudulently or dishonestly inducing any person to deliver any property, or 3) the consent that any persons shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit (see: Harmanpreet Singh Ahluwalia v. State of Punjab, (2009) 7 SCC 712 : (2009) Cr.L.J. 3462 (SC))-In both the aforesaid sections, mens rea i.e. intention to defraud or the dishonest intention must be present, and in the case of cheating it must be there from the very beginning or inception. (Para 25-26) – If it is a case of the complainant that offence of criminal breach of trust as defined under Section 405 of IPC, punishable under Section 406 of IPC, is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating as defined and explained in Section 415 of the IPC, punishable under Section 420 of the IPC. (Para 27)- The case of cheating and dishonest intention starts with the very inception of the transaction. But in the case of criminal breach of trust, a person who comes into possession of the movable property and receives it legally, but illegally retains it or converts it to his own use against the terms of the contract, then the question is, in a case like this, whether the retention is with dishonest intention or not, whether the retention involves criminal breach of trust or only a civil liability would depend upon the facts of each case. (Para 29) – The distinction between mere breach of contract and the offence of criminal breach of trust and cheating is a fine one. In case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a subsequent conduct, but for this, the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the ransaction i.e. the time when the offence is said to have been committed. Therefore, it is this intention, which is the gist of the offence. Whereas, for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence of breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership’ of it must be of some other person. The accused must hold that property on trust of such other person. Although the offence, i.e. the offence of breach of trust and cheating involve dishonest intention, yet they are mutually exclusive and different in basic concept. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making a false or misleading representation i.e., since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both the offences cannot co-exist simultaneously. (Para 30) Delhi Race Club (1940) Ltd. vs State of Uttar Pradesh 2024 INSC 626
Indian Penal Code,1860; Section 406- A person should have been entrusted with property, or entrusted with dominion over property; That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so; That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust- Referred to Prof. R.K. Vijayasarathy & Anr. v. Sudha Seetharam (2019) 16 SCC 739. (Para 13) Mulakala Malleshwara Rao vs State Of Telangana 2024 INSC 639
For failure to pay the consideration amount in case of sale of goods, Can there be prosecution on charge of criminal breach of trust?
Indian Penal Code,1860; Section 406 – In case of sale of goods, the property passes to the purchaser from the seller when the goods are delivered. Once the property in the goods passes to the purchaser, it cannot be said that the purchaser was entrusted with the property of the seller. Without entrustment of property, there cannot be any criminal breach of trust. Thus, prosecution of cases on charge of criminal breach of trust, for failure to pay the consideration amount in case of sale of goods is flawed to the core. There can be civil remedy for the non-payment of the consideration amount, but no criminal case will be maintainable for it. (Para 36) Delhi Race Club (1940) Ltd. vs State of Uttar Pradesh 2024 INSC 626
What is the scope of the Magistrate’s power under Section 204 CrPC?
Code Of Criminal Procedure, 1973; Section 204 -Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused. [Referred to Pepsi Foods Ltd. v. Special Judicial Magistrate : (1998) 5 SCC 749] (Para 13) – Delhi Race Club (1940) Ltd. vs State of Uttar Pradesh 2024 INSC 626
What was the purpose behind incorporating Section 438 in CrPC (anticipatory bail)?
The purpose behind incorporating Section 438 in CrPC was to recognise the importance of personal liberty and freedom in a free and democratic country. A careful reading of this section reveals that the legislature was keen to ensure respect for the personal liberty by pressing in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court. [See: Siddharam Satlingappa Mhetre v. State of Maharashtra and Others reported in (2011) 1 SCC 694] – Referred to Shajan Skaria vs State Of Kerala 2024 INSC 625
What is surety ?
The Oxford Dictionary defines ‘surety’ as “a person who takes responsibility for another’s obligation”. Advanced Law Lexicon by P. Ramanatha Aiyar, 3 rd Edition 2005 defines ‘surety’ to mean “the bail that undertakes for another man in a criminal case- Sureties are essential to ensure the presence of the accused, released on bail. At the same time, where the court is faced with the situation where the accused enlarged on bail is unable to find sureties, as ordered, in multiple cases, there is also a need to balance the requirement of furnishing the sureties with his or her fundamental rights under Article 21 of the Constitution of India. An order which would protect the person’s fundamental right under Article 21 and at the same time guarantee the presence, would be reasonable and proportionate. As to what such an order should be, will again depend on the facts and circumstances of each case- Whether it is to get individuals, to stand as a guarantor for a loan transaction or as a Surety in a criminal proceeding, the choice for a person is very limited. It will very often be a close relative or a longtime friend. In a criminal proceeding, the circle may get even more narrowed as the normal tendency is to not disclose about the said criminal proceeding to relatives and friends, to protect one’s reputation. These are hard realities of life in our country and as a court of law we cannot shut our eyes to them. A solution, however, has to be found strictly within the framework of the law- Girish Gandhi vs State Of Uttar Pradesh 2024 INSC 617
Can impossible conditions be imposed while granting anticipatory bai?
Code Of Criminal Procedure, 1973; Section 438 [Section 482 BNSS] – After forming an opinion, taking note of all relevant aspects, that bail is grantable, conditions shall not be put to make it impossible and impracticable for the grantee to comply with – The ultimate purpose of putting conditions while granting pre-arrest bail is to secure the presence of the accused and thus, eventually to ensure a fair trial and also for the smooth flow of the investigating process – Courts have to be very cautious in imposing conditions while granting bail upon finding pre-arrest bail to be grantable. [Putting conditions requiring a person to give an affidavit carrying a specific statement in the form of an undertaking that he would fulfil all physical as well as financial requirements of the other spouse so that she could lead a dignified life without interference of any of the family members of the appellant, can only be described as an absolutely improbable and impracticable condition]- We stress upon the need to put compliable conditions while granting bail, recognizing the human right to live with dignity and with a view to secure the presence of the accused as also unhindered course of investigation, ultimately to ensure a fair trial. In respect of matters relating to matrimonial cases, conditions shall be put in such a way to make the grantee of the bail as also the griever to regain the lost love and affection and to come back to peaceful domesticity. (Para 7-9) –Sudeep Chatterjee vs State of Bihar 2024 INSC 567