Supreme Court Quarterly Digest (Few Landmark Judgments) 2022

1. Bail – Post- Conviction bail- All persons who have completed 10 years of sentence and appeal is not in proximity of hearing with no extenuating circumstances should be enlarged on bail. Sonadhar v. Sate of Chhattishgarh

2. Code of Criminal Procedure, 1973; Section 309 – Bail- While it is expected of the court to comply with section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. (Para 41). Code of Criminal Procedure, 1973; Section 87-88 – Courts will have to adopt the procedure in issuing summons first, thereafter a bailable warrant, and then a non-bailable warrant as a matter of course without due application of mind against the tenor of the provision. (Para 31-32). Code of Criminal Procedure, 1973; Section 41, 41 A – The courts will have to satisfy themselves on the compliance of Section 41 and 41 A of the Code. Any non-compliance would entitle the accused for grant of bail – The investigating agencies and their officers are duty bound to comply with the mandate of Section 41 and 41 A of the Code and the directions issued in Arnesh Kumar v. State of Biha, (2014) 8 SCC 273 – Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by the appropriate action –  State Governments and the Union Territories to facilitate standing orders for the procedure to be followed under section 41 and 41 A of the Code. (Para 73 (b-d)). Code of Criminal Procedure, 1973; Sections 437, 439 Bail- Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application. (Para 73 (k)). Code of Criminal Procedure, 1973; Sections 440, 436A- Undertrials – The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release- While insisting upon sureties the mandate of Section 440 of the Code has to be Kept in mind – An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district Judiciary level and the High Court. (Para 73 (h-j)). Criminal Trial – Presumption of Innocence – Onus on the prosecution to prove the guilt before the Court – The agency to satisfy the Court that the arrest made was warranted and enlargement on bail is to be denied – Presumption of innocence, being a facet of Article 21, shall inure to the benefit of the accused. (Para 13-18). Words and Phrases – Bail – A bail is nothing but a surety inclusive of a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. It is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial – Bail is the rule and jail is the exception. (Para 8-12). Words and Phrases – Trial – An extended meaning has to be given to this word for the purpose of enlargement on bail to include, the stage of investigation and thereafter – Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter what matters substantially is the proceedings before the Court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors – An appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence. (Para 7) Satendra Kumar Antil v. Central Bureau of Investigation.

3. Code of Criminal Procedure, 1973; Section 438 – Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 – Appeal against High Court order that granted anticipatory nail on the ground that no recovery was effected from the accused and that they have been implicated only on the basis of the disclosure statement of the main accused – Allowed – The respondents may be able to take advantage of the decision in Tofan Singh vs. State of Tamil Nadu (2021) 4 SC 1, perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. To grant anticipatory bail in a case of this nature is not really warranted. State of Haryana v. Samarth Kumar.

4. Code of Criminal Procedure, 1973; Section 439 – Bail – Cancellation of Bail – Cancellation of bail cannot be limited to the occurrence of supervening circumstances – Illustrative circumstances where the bail can be cancelled :- a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record. b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim. c) Where the past criminal record and conduct of the accused is completely ignored while granting bail. d) Where bail has been granted on untenable grounds. e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice. f) Where the grant of bail was appropriate in the first place given the very serious nature of the charges against which disentitles him for bail and thus cannot be justified. g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case. (Para 30-34). Code of Criminal Procedure, 1973; Section 439 – Bail – Principles governing grant of bail – There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations. (Para 19-29) Deepak Yadav v. State of U.P.

5. Code of Criminal Procedure, 1973; Section 439 – Bail – The offer of payment of ad interim compensation to the victim cannot be a ground to release the accused on bail. (Para 7) State of Jharkhand v. Salauddin Khan.

6. Code of Criminal Procedure, 1973; Section 439(2) – Bail Conditions – The bail conditions imposed by the court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed. (Para 29) Mohammed Zubair v. State of NCT of Delhi.

7. Code of Criminal Procedure, 1973; Sections 438, 439- Bail applications must be decided as expeditiously as possible and not to be posted in due course of time. Tulsi Ram Sahu v. State of Chhattisgarh.

8. Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 – At the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail. (Para 15). Narcotic Drugs and Psychotropic Substances Act, 1985; Section 37 – Bail – The admissions made by the accused while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside – Confessional statement recorded under Section 67 of the NDPS Act inadmissible in the trial of an offence under the NDPS Act. (Para 16) Narcotics Control Bureau v. Mohit Aggarwal.

9. Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 – Narcotic Drugs and Psychotropic Substances Act, 1986; Section 37 – If detenue was ordered to be released on bail despite the rigours of Section 37 of the NDPS Act, 1985, then the same is suggestive that the Court concerned might not have found any prima facie case against him. (Para 23) Sushanta Kumar Banik v. State of Tripura.

10. Penal Code 1860; Section 376(2)(n) – Offence of committing repeated rape on same woman – The complainant has willingly been staying with the appellant and had the relationship – Now if the relationship is not working out, the same cannot be a ground for lodging an FIR for the offence under Section 376(2)(n) IPC – Observations while granting anticipatory bail to accused. Ansaar Mohammad v. State of Rajasthan.