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Bail under New Criminal Law and CrPC

27-Feb-2024

Why in News?

Recently, the bench of Justices B R Gavai and Sandeep Mehta held that it is a settled law that the judgment and order granting bail by a single judge cannot be reviewed by the single judge of same court passing such judgment and order.

The aforesaid observation was made in the matter of Himanshu Sharma v. Union of India.

What was the Background of Himanshu Sharma v. Union of India Case?

The appeals challenge the 12^th December 2023 orders by a single judge of the High Court of Madhya Pradesh Bench at Gwalior.
The judge cancelled bail granted to the appellants under Section 439(2) of the Code of Criminal Procedure, 1973 (CrPC).
The appellants were arrested for various offences under the Indian Penal Code, 1960 (IPC), and the Arms Act.
They were implicated solely on confessional statements made by co-accused.
The original bail was granted on 8^th September 2022, and 14^th September 2022, by a different single judge.
- The state sought bail cancellation, citing the appellants' potential involvement in serious crimes.
The appellant approached Supreme Court stating that the decision to cancel bail by assessing the case's merits was inappropriate and an act of judicial impropriety.

What were the Court’s Observations?

The court emphasized the well-established principle that the considerations for granting bail and its cancellation are distinct.
It asserted that bail can only be cancelled under specific circumstances, including misuse of liberty, flouting bail conditions, ignorance of statutory provisions, or through misrepresentation or fraud.
The court expressed concern over the jurisdictional impropriety of the bail cancellation application being heard by a different single judge.
It noted that the cancellation disregarded the progress of the trial and concluded that the orders cancelling bail were grossly illegal and quashed them.
- Consequently, the appeals were allowed.

What is the Concept of Bail in New Criminal Law and CrPC?

Concept:
- Bail, a legal provision within the CrPC and BNSS facilitates release from prison pending trial or appeal upon depositing security.
- Bailable offences guarantee the right to bail, as per Section 436 of the CrPC, while non-bailable offences grant discretion to courts or designated police officers, as outlined in Section 437.
- Justice V R Krishna Iyer in the case of State of Rajasthan v. Balchand (1977) held that the basic rule is bail, not jail. It referred to a concept which is ‘Bail is a Right and Jail is an exception”.
Power of High Court to Grant Bail:
- Provision
  - Under Section 439(1) of CrPC, a High Court or Court of Session holds the authority to grant bail.
  - Section 483 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) covers these special powers of High Court and Court of Session to grant bail.
- Granting Bail
  - A High Court or Court of Session may direct:
    - Release on bail of any person accused of an offence and in custody.
    - Imposition of conditions for certain specified offences under Section 437(3) of CrPC.
    - Modification or setting aside of conditions imposed by a Magistrate when releasing a person on bail.
- Cancellation of Bail
  - Section 439(2) empowers the High Court or Court of Sessions to order the arrest of individuals previously released on bail under Chapter XXXIII.
Anticipatory Bail:
- Provision
  - Section 438 of CrPC enables individuals fearing arrest for non-bailable offences to seek interim or anticipatory bail, that is pre-arrest bail.
  - Section 482 of BNSS covers this provision.
  - It states that where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail.
- Eligibility
  - Anyone anticipating charges, enmity, or wrongful arrest may apply.
  - In State of M.P v. Pradeep Sharma (2013), SC held that “When a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of CrPC, he is not entitled to the relief of anticipatory bail”.
- Factors
  - The nature and gravity of the accusation;
  - The antecedents of the applicant;
  - The possibility of the applicant to flee from justice; and
  - Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
Mandatory Bail:
- Magistrates shall grant bail if investigations extend beyond prescribed periods under Section 167 (2) of CrPC. The use of word ‘shall’ makes it mandatory to grant bail under this Section.
- It is also known as Default Bail.
- Accused are entitled to bail if investigations are not completed within specified durations.
- Section 187 of BNSS covers this provision.

Criminal Law

Refreshing Memory

27-Feb-2024

Source: Supreme Court

Why in News?

Recently, the bench of Justices MM Sundresh and S V N Bhatti held that the accused can cross-examine a police officer of case diary if the police officer has used that case diary to refresh his memory under Indian Evidence Act, 1872.

The aforesaid observation was made in the matter of Shailesh Kumar v. State of UP.

What was the Background of Shailesh Kumar v. State of UP Case?

The case revolves around the tragic death of Gajendra Singh on 21^st June 1992, after being attacked by the appellant over a financial dispute.
- Gajendra was assaulted with a knife by the appellant, resulting in fatal injuries to his chest and stomach.
The initial medical treatment and subsequent transfer to another hospital, along with the delay in filing the First Information Report (FIR), raised questions about the investigation's integrity.
Discrepancies in witness testimonies, manipulation of the case diary, and doubts regarding the motives behind the attack further complicated the trial.
- Despite reliance on evidence like the recovery of the vehicle and post-mortem reports, the defense highlighted significant flaws in the investigation and witness accounts, advocating for the appellant's acquittal.
The major contention regarding the case diary revolves around the absence of crucial details like time, date, and adequate particulars, indicating a deficient investigation.
The appellant argued that the courts overlooked the significance of Section 172 of the Code of Criminal Procedure, 1872 (CrPC), along with refreshing of memory Sections 145, 161, and 165 of the IEA, which emphasize the importance of maintaining accurate records and conducting thorough investigations.

What were the Court’s Observations?

The Supreme Court observed that when a police officer refers to a case diary to refresh memory, the accused is entitled to a right to peruse relevant portions under Section 145 or Section 161 of the IEA.
Section 172(3) of CrPC explicitly mentions Sections 145 and 161, extending their benefits to the accused.
Thus, the accused has the right to cross-examine the police officer regarding the case diary's contents used for memory refreshment.
- Section 161, while not limited to diary perusal, allows it.
Similarly, if the court uses the case diary to contradict the police officer, the accused may examine and cross-examine relevant statements.
- This right aligns Sections 145, 161 of the Evidence Act, and Section 172(3) of CrPC.
Court referred to Balakaram v. State of Uttarakhand (2017) where SC observed,
- In case the police officer uses the entries in the diaries to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, then the provisions of Sections 145 and 161, as the case may be, of the IEA would apply.
- It can, therefore, be seen that, the right of the accused to cross-examine the police officer with reference to the entries in the police diary is very much limited in extent and even that limited scope arises only when the Court uses the entries to contradict the police officer or when the police officer uses it for refreshing his memory.

What are Provisions Related to Refreshing Memory under Law?

Section 159 of IEA:
- A witness can refresh their memory during examination by referring to writings made by themselves or others at the time of the transaction or shortly afterward.
- If a witness read another person's writing within that timeframe and knew it to be correct, they can also refer to it.
- The witness can use a copy of the document to refresh memory if permitted by the Court, provided there is a valid reason for not producing the original.
- Additionally, an expert witness can refresh their memory using professional treatises.
- Section 162 of Bharatiya Skashya Adhiniyam, 2023 (BSA) covers this Section.
Section 160 of IEA:
- Section 160 specifies that a witness may also testify to facts mentioned in any such document as is mentioned in section 159, although he has no specific recollection of the facts themselves, if he is sure that the facts were correctly recorded in the document.
- For example, A book-keeper may testify to facts recorded by him in books regularly kept in the course of business, if he knows that the books were correctly kept, although he has forgotten the particular transactions entered.
- Section 163 of BSA covers this Section.
Section 161 of IEA:
- This section deals with the right of the adverse party to cross-examine a witness about the document used for refreshing memory.
- It allows the opposing party to question the witness about the contents of the document and to produce any other evidence to contradict the witness's testimony.
- Section 164 of BSA covers this Section.