By Harpreet Kaur Advocate

INTRODUCTION

Meaning of the term Bail

Bail is the release of a person who is under arrest or who has already appeared in court, in exchange for a promise to appear in court whenever he will be asked to appear. A person who is in custody, because he or she has been charged with an offence or is involved in pending criminal proceedings, may apply to be released on Bail. Normally, in signing a bail agreement a person undertakes that he will be present every time the matter is in court until the proceedings are finished and will also comply with the conditions set out in the agreement as to conduct while on Bail and Concerned Authority may forfeit a specified sum of money if the person fails, without proper excuse, to comply with any term or condition of the agreement.

Bailable and Non-Bailable Offences

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an offence of relatively less severity and for which the accused has a right to be released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot demand to be released on bail as a matter of right. More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable Offence as follows:

Section 2 (a) of CrPC- “Bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force: and “non-bailable offence” means any other offence.

The first schedule of the CrPC is divided into two parts wherein the first part deals with the offences given under IPC and the second part deals with the offences under other laws. As per the last item of the First Schedule, an offence in order to be bailable would have to be an offence which is punishable with imprisonment for less than three years or with fine only.

In case of bailable offences, as per section 436 CrPC (criminal procedure code 1973) bail has to be granted to the accused as it is a matter of right for the accused to demand and be granted bail.

In case of non-bailable offences, as per section 437 CrPC and Section 439 CrPC, the grant or refusal of the bail is a matter of discretion of the court which means bail can be granted by the court. Only condition is that it cannot be demanded as a right by the accused.

Section 437 CrPC lays out certain basic criteria for the court while exercising its judicial discretion for grant or refusal of the bail in case of non-bailable offences, some of the criteria are the nature of offence, past criminal record, the probability of guilt, etc. and carves out exceptions for minors , women etc.

Section 438 CrPC also lays down the concept of Anticipatory Bail where the accused may seek bail if they apprehend arrest, so as to prevent even the otherwise brief incarceration. It must be noted that the grant or refusal of anticipatory bail is also a matter of discretion for the court.

There are catena of judgement which specifically states that “bail is a rule and jail is the exception”.

Procedure

In order to apply for a bail in the case of a bailable offence i.e. when a person has right to be released on bail, the person needs to fill a form of bail i.e. Form No. 45 which is given in the first schedule and apply for bail and the Court shall grant bail.

FACTORS TO BE CONSIDERED WHILE GRANTING REGULAR BAIL UNDER SECTION 439 CRPC

CASE TITLE: State Through C.B.I vs Amaramani Tripathi

CASE NO.: Appeal (crl.)  1248 of 2005 (Arising out of S.L.P. (CRL) NO. 3503 OF 2004)

DATE OF JUDGMENT: 26 September 2005

BENCH: Ashok Bhan, R.V. Raveendran

FACTS

Case of prosecution is that Amarmani Tripathi, a Minister in the U.P. Government, at the relevant time, was having an affair with deceased Madhumita Shukla, a young Poetess. This led to Madhumita’s pregnancy thrice. On the third occasion, inspite of pressure and persuasion by Amarmani, Madhumita refused to abort the pregnancy. Madhumani Tripathi, wife of Amarmani, was upset when she learnt about the illicit intimacy between Amarmani and the deceased. She informed one Rohit Chaturvedi (cousin of Amarmani) about her husband’s relationship with Madhumita and requested him to help her to teach a ‘lesson’ to Madhumita. Later on, Amarmani also felt that if Madhumita gave birth to the love-child, it could adversely affect his image as a politician and Minister and also cause problem in his family and hence, joined hands with them.

On 9th May, 2003 Madhumita Shukla was shot dead in her house located in Paper Mill Colony by two persons who were later on identified as Santosh Kumar Rai and Prakash Chandra Pandey. Investigation in the case revealed that Madhumita Shukla was killed pursuant to a conspiracy involving Amarmani Tripathi and his wife Smt. Madhumani Tripathi, Nidhi Shukla lodged a Report in regard to the blind murder of her sister Madhumita Shukla on 9.5.2003 in the Mahanagar Police Station, Lucknow. The post-mortem revealed a six month old foetus in her womb. D.N.A. test of the foetus established the paternity of Amarmani. The case was transferred to Crime Branch, CID on 17.5.2003.

However, when the first bail application filed by Amarmani Tripathi was rejected by the High Court by order dated 11.3.2004 on the ground that the co-accused (Madhumani Tripathi) had not surrendered, Madhumani surrendered on 25.3.2004.

Amarmani made a second bail application under Section 439 Cr.P.C. in Crl. Misc. Case No.1402(B)/2004. The High Court by order dated 29.4.2004 granted bail to Amarmani on the following reasoning:

1. The entire theory of Amarmani being part of the conspiracy to murder Madhumita was based on the confessional statement of the co- accused Rohit Chaturvedi and Rohit had subsequently retracted from the confession. Also, the admissibility of the confession against a co-accused is doubtful.
2.  In this case, if the said confessional statement of Rohit is excluded, there is no evidence, direct or otherwise to show that Amarmani was in any manner, party to the conspiracy to kill Madhumita.
3. The other material relied on by the prosecution against Amarmani are: (i) illicit relationship between Amarmani and the deceased; (ii) DNA test report showing that Amarmani was the father of the foetus in the womb of the deceased; (iii) pressure applied by Amarmani on the deceased to abort the pregnancy; (iv) undated letter of the deceased addressed to Amarmani finding fault with him for ignoring her. These material can only lead to an inference that the conduct of Amarmani was immoral and that there was an effort on his part to cover up such conduct and nothing more.
4. The criminal history of the accused Amarmani (20 criminal cases ending in acquittal and 4 cases pending including a case of kidnapping) cannot be a ground to refuse bail.
5. Charge-sheet had already been submitted. Madhumani was in jail and shall remain available for interrogation, if any, by CBI.
6. There was no chance of Amarmani either fleeing, or tampering with the witnesses. If it was found at any stage that he was not co-operating in the trial of the case or found to be tutoring/maneuvering any witness, CBI can move an application for cancellation of bail at that stage.

Amarmani’s wife Madhumani applied to the Sessions Judge, Lucknow for bail in Crl. Misc. Case N.960/2004. It was rejected by order dated 20.4.2004. Thereafter she approached the High Court for bail in Crl. Misc. Case No.1954(B) of 2004. The High Court granted bail to Madhumani by order dated 8.7.2004 on the following reasoning:

1. Madhumani is not the main accused, but only an alleged conspirator/abettor. Her husband, whom the Prosecution is considered to be the main conspirator had already been granted bail and grounds on which he was granted bail are also available for granting bail to her.
2. Madhumani is only a housewife without any criminal antecedents. She has not been named in the FIR or in the statements of Nidhi Shukla and Desraj (servant of the deceased) recorded under Section 161 Cr.P.C.
3. Her name came to be linked with the murder for the first time in the confessional statement of Rohit made on 17.11.2003. The admissibility of such confessional statement, particularly, against a co-accused is doubtful and that question has to be considered at the time of trial.
4. There is no allegation that Madhumani made any attempt to tamper with the evidence.
5. The prosecution case is based on two contradictory theories of conspiracy, one hatched by her husband, the other hatched by her, by joining hands with her husband.

Being aggrieved by the two orders of the Allahabad High Court granting bail to Amarmani and Madhumani, the State has approached this Court and disclosed the following position:

i) That the murder of pregnant Madhumita, a heinous crime, was committed in pursuance of a conspiracy hatched by accused 1 to 5.

ii) That Amarmani was interfering with the investigation, by trying to side-track it and mislead the Police into a false trail, planting false stories in the media, creating false evidence and threatening witnesses either directly or by using the police. He even managed to get the Police Officers (including an officer of the Rank of SSP) who were not toeing his line, transferred.

iii) That after release on bail in pursuance to the order of the High Court, Amarmani was attempting to threaten/coerce/buy over witnesses (Nidhi Shukla, sister, Shanti Kumari Shukla and Najib Khan).

iv) That Madhumani had already absconded earlier. Only the rejection of bail application of her husband on that ground made her to surrender. There is every likelihood of her again fleeing, if she continuous to be on bail. Further, if Amarmani alone is denied bail, the threatening of witnesses will be taken over by Madhumani.

ARGUMENTS

Shri Rakesh Dwivedi, learned Senior Counsel appearing for Amarmani submitted that this is a case of blind murder. There is no material showing any involvement of Amarmani in the murder or in any conspiracy. There was never any contact between Amarmani and the hired killers. He submitted that the retracted confessional statement of Rohit Chaturvedi which alone linked Amarmani’s name to the conspiracy is to be ignored, in view of the law laid down by this Court; and if it is so ignored, there is absolutely no material at all to show that Amarmani was involved in the conspiracy. The, material, including the statements of Nidhi, Shanti Kumari, Pappu Chaudhary relied upon by the prosecution and the post-mortem report showing the six month foetus and the DNA report showing Amarmani as the father, even if accepted could at best establish an illicit relationship between Amarmani and Madhumita and an attempt to abort the pregnancy and nothing more. He submitted that the conduct of Amarmani, even if it was morally incorrect, can in no way be considered as proof of an intention to kill Madhumita or proof of his being a party to any conspiracy to kill Madhumita. He also stated that any action taken by Amarmani to safeguard himself and his wife, cannot be branded as conspiracy.

Shri KTS Tulsi, learned Senior Counsel appearing for Madhumani similarly contended that if the confessional statement of Rohit is excluded, there is nothing to link Madhumani to the death of Madhumita. He pointed out that the entire material, even assuming to be true, only showed an illicit relationship between Amarmani and the deceased and expression of anger by Madhumani against such illicit relationship and nothing more. He submitted that the expression of righteous indignation by a wife and verbal abuse of the girl trying to wreck her marital life, is not evidence of participation in any conspiracy to kill the deceased.

They relied on Dolat Ram and others vs. State of Haryana 1995 (1) SCC 349, wherein the distinction between the factors relevant for rejecting bail in a non-bailable case and cancellation of bail already granted, was brought out:

“Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.”

OBSERVATIONS OF SUPREME COURT

Supreme Court observed that it is well settled that the following factors are to be considered in an application for bail:

• whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

• nature and gravity of the charge;

• severity of the punishment in the event of conviction;

• danger of accused absconding or fleeing if released on bail;

• character, behaviour, means, position and standing of the accused;

• likelihood of the offence being repeated;

• reasonable apprehension of the witnesses being threatened; and

• danger, of course, of justice being thwarted by grant of bail (Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179).

• While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, 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.

In Panchanan Mishra vs. Digambar Mishra, 2005 (3) SCC 143, this Court observed :

“The object underlying the cancellation of bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime….. It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.”

Therefore, the general rule that Supreme Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court.

DECISION

While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no pre-judging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. An examination of the material in this case, set out above, keeping in view the aforesaid principles, disclose prima facie, the existence of a conspiracy to which Amarmani and Madhumani were parties. The contentions of Respondents that the confessional statement of Rohit Chaturvedi is inadmissible in evidence and that should be excluded from consideration, for purpose of bail is untenable.

Therefore, the orders dated 29th April 2004 and 8th July, 2004 passed by the High Court were set aside. The bail bonds of the respondents in each of these cases were cancelled. Respondents were directed to surrender forthwith and in case they fail to do so, the State should take effective steps to take the respondents in custody.

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