Bail has been defined as ‘the procurement of the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.’ according to the Black’s Law Dictionary (BLD).
In the opinion of Bharat Vasani, Senior Advisor for Corporate laws at the Mumbai office of Cyril Amarchand Mangaldas, in his collaborative article entitled: Bail or Jail – The Supreme Court clarifies the law and lays down the guidelines, has observed that:
“The Supreme Court of India has in its recent landmark judgment in Satender Kumar Antil laid down guidelines on the grant of bail to an accused and while doing so, it has reiterated aspects of personal liberty and constitutional guarantees available to an accused under criminal jurisprudence. The Court observed that while its discussion and findings are meant to operate as guidelines, each case pertaining to a bail application is to be decided on its own merits.”
The judgment being discussed was Satender Kumar Antil v. Central Bureau of Investigation & Anr., Miscellaneous Supreme Court Application No. 1849 of 2021 in Special Leave Petition (Crl) No. 5191 of 2021 dated July 11, 2022.
The specific provisions pertaining to the grant of bail under the Code of Criminal Procedure, 1973, have been delineated under Section 436 and Section 437 of the Code.
“S. 436. In what cases bail to be taken.
(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail…”
“437. When bail may be taken in case of non-bailable offence.
(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but -
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognisable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of [a cognisable offence punishable with imprisonment for three years or more but not less than seven years…”
Now, with respect to Interim Bail, the Bench of Justices Sanjiv Khanna and Dipankar Datta in the Special Leave Petition (Criminal) No. 5154 of 2024, Arvind Kejriwal v. Directorate of Enforcement, have observed:
13. Athar Pervez v. State [2016 SCC Online Del 6662], a judgment of the Delhi High Court authored by one of us (Sanjiv Khanna), on the power to grant interim bail in cases registered under the NDPS Act…observes:
“20. The expression “interim” bail is not defined in the Code. It is an innovation by legal neologism which has gained acceptance and recognition. The terms, “interim” bail/“interim” suspension of sentence, have been used and accepted as part of legal vocabulary and are well known expressions. The said terms are used in contradistinction and to distinguish release on regular bail during pendency of trial or appeal till final adjudication. Applications for “interim” suspension or bail are primarily moved and prayed for, when the accused or convict is not entitled to or cannot be granted regular bail or suspension of sentence, or the application for grant of regular bail is pending consideration and is yet to be decided. “Interim” bail entailing temporary release can be granted under compelling circumstances and grounds, even when regular bail would not be justified. Intolerable grief and suffering in the given facts, may justify temporary release, even when regular bail is not warranted. Such situations are not difficult to recount, though making a catalogue would be an unnecessary exercise.” (2024 LiveLaw (SC) 363).
The hon’ble Supreme Court of India while pronouncing the Order in Arvind Kejriwal v. Directorate of Enforcement, SLP(Crl) 5154/2024, made the following observations in favour of the grant of interim bail:
“10. In Mukesh Kishanpuria v. State of West Bengal (2010), this Court has held that the power to grant regular bail includes the power to grant interim bail, particularly in view of Article 21 of the Constitution of India.”
“11. Sunil Fulchand Shah v. Union of India and Others (2000) observes that parole by way of temporary release can be granted by Government or its functionaries in case of detenus under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Further, the High Courts and this Court can direct temporary release of a detenu for specified reasons when the request is unjustifiably rejected by the authorities. However, the power of temporary release of a detenu suffering preventive detention is exercised only in extreme and deserving cases.”
“12. In Dadu @ Tulsidas v. State of Maharashtra (2000), notwithstanding Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 19857 , which prohibits the appellate court from suspending sentence awarded to the convict, this restriction, it is observed, does not affect the power and authority of the court to grant parole or furlough, even where a person has been convicted and sentenced and his appeal has been dismissed.” (2024 LiveLaw (SC) 363).
The writer is a Doctoral Researcher working under the Alliance of European Universities and has presented his research works at various Academic Conferences
