Question: What matters are considered for granting or refusing to grant bail in a non-bailable offence? Are there any standard principles or grant of bail is wholly at the discretion of the court?
Answer: The jurisdiction to grant bail has to be exercised on the basis of certain well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. However, it is true that a court exercises vast discretion in the matter of grant of bail in non-bailable offences. No doubt, there are several general principles that govern the grant of bail. These principles have been laid down by the Supreme Court in a large number of cases. Of course, in view of vast differences in the factual matrix of individual cases, even while applying these general principles, a court exercises vast subjective powers. It is generally experienced that in a given situation, two different judges may decide the question of grant of bail in different manner.
The matters that are considered for grant of bail in a non-bailable offence are generally as under:
- 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;
- Age, sex, and health condition of the accused;
- Danger of the accused absconding or fleeing, if released on bail, and whether his presence can be secured at the trial;
- Character, behaviour, means, position and standing of the accused;
- Likelihood of the offence being repeated;
- Threat of documentary or other evidence being destroyed or concealed or being tampered with;
- Reasonable apprehension of the witnesses being intimidated or threatened or being won over; and
- Danger of course of justice being thwarted by grant of bail.
It is worth noting that the above list is not an exhaustive list of the considerations for grant of bail or refusal thereof. This is only an illustrative list. The question whether to grant bail or not ultimately depends for its answer upon a variety of circumstances, the cumulative effect of which will lead to the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. Entire facts and circumstances of the case (and of the accused) may need to be considered.
It is pertinent to mention that a mere vague allegation that the accused may tamper with the evidence or threaten the witnesses may not be a ground to refuse bail. However, 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 or will abscond if granted bail, then bail may be refused.
So, ultimately, the grant or refusal of bail depends on a variety of factors. And, as mentioned in the beginning, a vast discretion exists with the court in such matters.
[Dr. Ashok Dhamija is the author of a comprehensive book on bail: Law of Bail, Bonds, Arrest and Custody (2009 Edition), by Dr. Ashok Dhamija, appx. 1625 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-440-0).]
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