Abstract
It has been observed that in recent years, the High courts of India have been approving or refusing bail orders in a cryptic and arbitrary manner in an increasing number of cases. This phenomenon can have deleterious ramifications for society and has the potential to ultimately erode trust in a just, fair, and reasonable judicial system. The judges of the High Courts have developed a propensity to particularly make generic statements about how “the facts and the circumstances have been considered” in such rulings which allowed the grant or rejection of the bail. Such bail orders lack the record of reasoning that vindicated the decision by the court. If bail orders are granted without proper reasoning and duly considering substantial factors pivotal to the matter, they will most likely be contested which adds to the load of the already burdened judiciary. Also, such casual orders undermine the victim’s rights and pave way for threats and intimidation. In order to make the judges more accountable for their decisions and curb the trend of arbitrariness in bail orders, the Supreme court established certain parameters in its rulings that should be taken into account when deciding bail orders, but unfortunately, the High Courts have not complied with these directives and have continued to grant bail orders arbitrarily. This article seeks to dig deeper into this problematic trend and explore the legal provisions which deal with various aspects of the grant of bail orders such as the judicial discretion exercised by the courts, discuss numerous cases in which the Supreme Court has interfered in the arbitrary bail decisions by the High courts, and highlight the importance of recording of reasons in bail decisions.
“Reasoning is the lifeblood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system”
CJI N.V Ramana (2021-2022)
Introduction
In a shocking observation, the Supreme Court of India delivered three verdicts in a single month overturning bail judgments issued by the High Courts and illuminating the lower courts’ arbitrary practice of granting bail orders. While reviewing the bail order issued to the main culprit Ashish Mishra in the horrific Lakhimpur violence case,[1] the Supreme court expressed its disappointment by commenting that the Allahabad High Court issued the said order with a “tearing hurry.”[2] The High Court had taken into account several irrelevant considerations, whilst simultaneously ignoring judicial precedents and established parameters for the grant of bail. In the second case of sexual harassment, even though there was a strong prima facie case against the respondent, the Rajasthan High Court issued a “cryptic” bail order in his favor, ignoring the horrible act of rape and sexual abuse he committed against his little niece. The contested ruling omitted to mention that the accused “uncle” had approximately twenty cases filed against him and was a habitual offender. Further, in a recent observation by the Supreme court in the case Aminuddin v State of Uttar Pradesh & Anr the Court noted that the bail order was reasoned on “just one sentence.”[3]
“The relied upon order had been suffering from failure on the part of the High Court to notice the relevant considerations and the impugned order equally suffers from the shortcoming that the relevant features of the case have not at all been considered by the High Court.”
Unreasoned bail orders refer to instances in which a judge sets bail without providing a clear explanation, reasoning, or logical justification for the decision. Such orders can have detrimental societal repercussions.[4] Issuance of orders of such mystified nature makes it difficult for the defendant or their lawyer to understand why they are being held on bail or for the appellant to follow judicial proceedings successfully if the accused is released without giving due consideration to substantial factors which then results in the obstruction of the course of proceedings by the accused. Such orders lacking due consideration of material factors, evidence, and proper reasoning give way to bail abuses and “recidivism.”[5] Unreasoned bail orders can also make it difficult to challenge the bail decision in court, as it is not clear what factors the judge considered when making their decision. Critics argue that unreasoned bail orders can also lead to arbitrary decisions resulting from the judge’s prejudice or carelessness. Moreover, the victim’s rights are impacted the most by arbitrary and unjustified bail orders. As per a study conducted by Kumaravelu Chockalingam,[6] the impact on the victims when bail is abused is as follows: uncertainty about whether justice will be served to victims; living in fear of retaliation; worrying about potential tampering with evidence; being unable to live in normal place of residence; and losing faith in the judicial system and the criminal justice delivery system. It also came to light that the accused repeatedly intimidated the victims and their families after being released on interim bail in an effort to discourage them from proceeding with the lawsuit.[7]
(I) Judicial Discretion In Bail Orders
Bailable and non-bailable offences are all into two categories. In the former,[8] the accused may request bail as a matter of right, and the gravity of the offence is lower; in the latter,[9] the judge may grant bail at his or her discretion and the gravity of the offence is higher. In the cases of non-bailable offences, the grant of bail is optional and subject to the judge’s discretion. The Supreme Court ruled in Govind Prasad v. the State Of West Bengal[10] that issuing bail is a judicial, not a governmental, function. The authority cannot be used arbitrarily. If discretion is exercised to effect an arrest, there shall be procedural compliance.[11] It was stated in Rao Harnarain Singh Sheoji Singh vs The State[12] that this discretion must be exercised judicially, subject to the limitations set forth in Section 437(1) of the Cr.PC[13] and keeping in mind the seriousness of the charge, the nature of the accusation, the severity of the punishment upon conviction, the likelihood that the accused will flee if released on bail, the risk that witnesses will be tampered with, the accused’s health, age, and sex, among other factors.[14]
According to Section 437(3), the court may impose restrictions ‘in the interests of justice’ to guarantee the accused’s attendance at the trial, to ensure that the accused does not commit a similar violation, and to prevent the accused from tampering with evidence.[15]
(II) A Worrisome Trend of Issuing Casual and Cryptic Bail Orders
The judges of the High courts have recently developed a propensity to make generic statements while deciding a bail order that how “the facts and circumstances of the case have been considered” and that no specific reasons are recorded that could have vindicated the issuance of the bail order by the court.[16] In the recent matter Brijmani Devi v. Pappu Kumar,[17] the appellant was the mother of the deceased. Her son was murdered by the accused respondent and accordingly, a remand to judicial custody order was issued against the accused.[18]
The High Court granted him bail in its ruling because the accused was successful in hiding his criminal antecedents. In the appeal filed by the aggrieved, the Supreme Court noted that the High Court had erroneously granted the accused a cryptic bail order and had neglected to thoroughly evaluate the essential elements, including the accused’s past and any relevant criminal history, which included pending criminal proceedings, threatening the appellant, shooting the victim twice and eloping from custody. Therefore, by granting bail to such a person, the High Court acted irresponsibly.
In another case, Manoj Kumar Khokhar vs The State Of Rajasthan,[19] the appellant’s father was attacked by the respondent accused with the intent to kill him. The appellant filed a police report stating that the respondent and the deceased had a history of animosity toward each other. The respondent was arrested and later released on bail by the High Court. The appellant appealed this decision to the Supreme Court, which duly considered the respondent’s political influence in the village and the serious nature of the allegations against him, including the possibility of witness intimidation by the accused. The court referred to the Gudikanti Narasimhulu & Ors. vs. Public Prosecutor,[20] wherein Justice Krishna Iyer laid down some key factors that should be considered while granting bail :
- The nature of the charge, evidence, and punishment to which the accused may be liable if convicted are pertinent and vital factors to decide the application of bail.
- It should be well thought out whether the proceedings could be disrupted by the accused.
In the event that bail is granted in a dubious manner, it can be challenged in a court of law. After an accused has been granted bail, High Court has the power to get the bail revoked based on section 439(2) of the CrPC[21] if new circumstances have emerged after the bail was granted.[22] However, if no new evidence of such has surfaced since bail was granted, the order granting bail can still be appealed on the grounds that it is perverse or unconstitutional or has been arrived at by omitting material factors that create a primafacie case against the accused.[23]
(III) Interference by Supreme Court In Arbitrary Bail Decisions By High Court
The Supreme Court has the power to review bail orders of lower courts under Article 136,[24] but this remedy is discretionary in nature and limited to rare cases of gross miscarriage of justice or substantial legal matters with conflicting precedents.[25] A constitution bench highlighted the practice that the Supreme Court should not typically become involved in decisions regarding bail orders and judgments pertaining to granting or rejecting release since the High Court should be the final arbiter in these cases.[26] But subsequently, while maintaining adherence to the same approach, the Supreme Court noted that the High Court must exercise its discretion in conformity with the basic principles pertaining to bail orders which have been established in a significant number of decisions by the former.[27]
The apex court has the authority to reverse a bail decision if it was granted disregarding the requisite criteria that should have been taken into account when deciding on the application for bail or if the application for bail was based on irrelevant grounds.[28] Before overturning such bail applications, it is necessary that the apex court, in an appeal, analyse whether the ruling granting bail suffers from a lack of application of mind or is not supported by a prima facie assessment of the available evidence.[29] In a recent case, Supreme Court held that simply noting “having perused the record” and “on the facts and circumstances of the case” does not subserve the purpose of a reasoned judicial order.[30]
In Kalyan Chandra Sarkar v. Rajesh Ranjan,[31] the Supreme Court emphasized the significance of reasoning when granting bail, stating that discretion should be used wisely and not mechanically. While a detailed investigation and documentation of the case’s merit are not mandatory, the reasons for granting bail should be clearly stated, especially in cases of serious crimes, to ensure that the decision was appropriate.
Overturning an arbitrary bail order is not the same as a revocation of a bail order owing to the accused’s wrongdoing or modification in circumstances that require such revocation. This important distinction was demystified in the Bhoopendra Singh vs. State of Rajasthan & Anr.[32]
“The legitimacy of a bail order is determined by whether discretion was used arbitrarily or incorrectly while granting bail. On the other hand, where aggravating circumstances exist or a person on bail is breaching or has the potential to break the terms of their release, a request to revoke bail is usually taken into consideration.”
In the State through C.B.I vs. Amaramani Tripathi,[33]the Court, while overturning the bail order granted by the High Court, observed that the latter had granted bail to the accused without inquiring into his antecedents, particularly when had a bad record. Crucial evidence of attempts in obstructing the investigation process, intimidating witnesses, and tampering with the evidence in order to hinder the whole procedure was carelessly disregarded by the High Court while issuing the bail order. It is part of criminological history that a thoughtless bail order has enabled the receiver of bail, to exploit the opportunity to inflict damage to the victim, evidence, and witnesses. Therefore, conducting an in-depth investigation and recording of reasoning is not an exercise in irrelevance.[34] It was held in The State through the Delhi Administration vs. Sanjay Gandhi[35] that,
“providing by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary in order to succeed in an application for cancellation of bail.”
In a recent case, Jaibunisha vs Meherban,[36] the SC bench highlighted the importance of reasoning while issuing bail orders:
Satisfies the requirement of fairness in the justice delivery system: The need that the reasons be recorded is intended to uphold the larger concept of justice, which states that justice must not only be carried out but also seem to be carried out. The reasons vindicating the decision must be persuasive, understandable, and concise. It is incorrect to confuse a façade of reasoning or “rubberstamp reasons” with a reliable decision-making procedure. The recording of reasons also functions as a legitimate check on the potential abuse of judicial, quasi-judicial, or even administrative power. This practice is indispensable as a component of decision-making in compliance with the principles of natural justice.
Judicial Accountability and Transparency: A reasoned order demonstrates that the decision-maker used their discretion appropriately and disregarded unimportant factors while giving weight to substantial and material factors. These days, the views of judicial or even quasi-judicial authorities might differ greatly. All of these choices serve one common purpose: they all show, through reason, that the relevant elements have been fairly and objectively evaluated. This is crucial for maintaining the litigants’ confidence in the administration of justice.
Conclusion
It has been accepted norm since the very beginning of the legal system that the courts must record the justifications for the findings reached in a decision. An indispensable right of a litigant is the right to be made aware of the rationale behind the judge’s rulings. The superior courts have always viewed an order adversely and as being incapable of withstanding the test of an order made judicially if the same merely uses the wording or language of a provision in a silent, unjustified, or cryptic manner, without considering the pertinent facts, of the evidence at hand, and the law drew thereto.[37] Objectivity has always trumped subjectivity in our system of law and it has long been believed by the judiciary that subjectivity chosen by the judge in lieu of objectivity in a judgment undermines the quality of the decision, and such judgments fail to uphold the fair play theory as held in the matter of Andhra Bank v. Official Liquidator.[38] Our court system is devoted to the core tenet of “transparent justice”, which means that the judge’s considerations for denying or granting bail must be reflected in the order that is made.
Rights of the victims
The fundamental principles of justice for victims of crime were propounded by the General Assembly of the United Nations.[39] Accordingly, it is the responsibility of the State to bring the accused to law. The order in the Ashish Mishra case put emphasis on victims’ rights to be heard at all stages of criminal proceedings and particularly in bail matters. The High Court’s failure to recognise this right has been noted as “disappointing” by the Supreme Court. The cause of victimology as a component of criminal law has progressed as a result of the Court’s recognition of victim rights as “substantive, enforceable and another facet of human rights.” So, the victim’s right cannot be described or understood in a limited manner like a brutum fulmen.[40]
Recording of reasons would leave no room for biases or negligence on the part of the judge while deciding the legal issues and promote transparency in the judicial system. If bail orders are granted without proper consideration of substantial and material factors, they will most likely be contested through the appellate jurisdiction which adds to the already burdened judiciary. As a preventive measure, the Supreme court has established certain parameters in its rulings that should be taken into account when deciding bail orders but unfortunately, the High Courts have not complied with these directives and have continued to grant bail orders arbitrarily. One possible explanation for this phenomenon can be the lack of an adequate number of judges on the subordinate level which creates a very pressured and mentally taxing situation for the judges and they start dealing with the cases with carelessness and without recording reasons in their judgments, in the aspiration to clear out the judicial backlogs pending for years.[41] According to the 230th Law Commission Report,[42] we now have 10–11 judges for every million people. The High Courts are particularly overwhelmed with cases. At least five times as many judges are needed in India’s judiciary as there now are. Since judicial accountability would complement broader judicial reforms, increasing the judiciary’s manpower is therefore urgently needed.
The legislative effort to reform the bail mechanism has been sluggish in India. The Law Commission of India did not take cognizance of the need to reform the bail system until 2017 when it published the 268th Law Commission Report.[43] With the focus that is currently being placed on this area, it is imperative that the instances in which bail orders are issued in an unreasoned manner are brought to the fore. This is a concerning matter and shall be addressed urgently by rigorous monitoring of the operations of the High Courts and by taking robust measures to ensure accountability while issuing the bail orders which records the reasons properly while taking the public’s and the affected individuals’ interests into account, within the bounds of propriety.
This article is a part of DNLU-SLJ (Online) series.
[1] Jagjeet Singh v. Ashish Mishra (2022) SCC OnLine SC 453
[2] Ms. Y vs State of Rajasthan and anr , (2022) Livelaw (SC ) 384 (India).
[3] Aminuddin v State of Uttar Pradesh & Anr (2020) 2 SCC 118
[4]Faizan Mustafa, Discretion in granting bail can’t be used arbitrarily, Tribune India (Aug. 12 2020) < https://www.tribuneindia.com/news/comment/discretion-in-granting-bail-cant-be-used-arbitrarily-125345> accessed on 19th November 2022.
[5] According to A Study on Bail and the Extent of Its Abuse Including Recidivism (TISS 26 December 2017), “The habit of relapsing into crimes by the criminals is known as Recidivism. A recidivist is a person who relapses into crime again and again.”
[6] Kumaravelu Chockalingam, Measures for Crime Victims in the Indian Criminal Justice System, Resource Material Series No.81, The 144th International Senior Seminar Visiting Experts’ Papers.
[7] Victims in 18% of cases of bond abuse were unable to do daily activities for longer than two weeks. The majority of cases (78%) had an emotional impact. No matter the kind of victimisation, one-fifth of the victims felt unhappy and/or frustrated as a result of their victimisation. Victims generally felt less secure than non-victims. For instance, fewer victims of violent crime (37%) than non-victims (46%), reported feeling extremely comfortable travelling alone after dark.
[8] Code of Criminal Procedure, 1973 (2 of 1974) s. 436.
[9] Code of Criminal Procedure, 1973 (2 of 1974) s. 437 & s 439.
[10] Govind Prasad vs The State Of West Bengal, (1975) CriLJ 1249 (India).
[11] Arnesh Kumar ( Supra note 8).
[12] Rao Harnarain Singh Sheoji Singh vs The State, (1958) CriLJ 563 (India).
[13] The Code of Criminal Procedure, 1973 (2 of 1974) s. 437(1).
[14] Faizan Mustafa, Strange And Arbitrary Bail Orders: Are Indian Judges Going Too Far? The Wire (April 28th, 2020) < https://thewire.in/law/judges-bail-orders> accessed on 21st October 2022.
[15] The Code of Criminal Procedure, 1973 (2 of 1974) s437. A person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence or abatement of, or conspiracy or attempt to commit any such offence, the Court can impose conditions on his bail.
[16] Sunil Baghel, Why Arbitrary Bail Orders Are Worrisome, Times Of India, (Apr 29, 2022) available at< https://timesofindia.indiatimes.com/india/why-sc-wants-a-stop-to-cryptic-arbitrary-bail orders/articleshow/91154734.cms> accessed on 9th Oct 2022.
[17] Brijmani Devi v. Pappu Kumar , (2022) 4 SCC 497 (India).
[18] The Indian Penal Code, 1860 (45 of 1860) s. 307. The police are bound by law to register and investigate an offence cognizable in nature. The offence of attempt to murder is a non-bailable crime which means that in a complaint filed under Section 307, the judge is empowered to refuse bail and remand a person to judicial or police custody.
[19] Manoj Kumar Khokhar vs The State Of Rajasthan, (2022) SCC OnLine SC 30 (India).
[20] Gudikanti Narasimhulu & Ors. vs. Public Prosecutor, (1978) 1 SCC 240 (India).
[21] The Code Of Criminal Procedure, 1973 (2 of 1974) s. 439(2)
[22] Gurcharan Singh vs. State (Delhi Admn.) , (1978) CriLJ 129 (India).
[23] Jaibunisha V. Meharban & Anr., (2022) SCC OnLine SC 58 (India).
[24] The Constitution of India, 1950 art 136.
[25] Gobarbhai Naranbhai Singala vs. State of Gujarat & Ors., (2008) 3 SCC 775 (India)
[26] Bihar Legal Support Society V. Chief Justice Of India. (1986) 4 SCC 767 (India).
[27] Prasanta Kumar Sarkar v. Ashish Chatterjee, (2010) 14 SCC 496 (India).
[28] Panchanan Mishra vs. Digambar Mishra, (2005) 3 SCC 143 (India).
[29] Neeru Yadav vs State of UP , (2015) 15 SCC 422 (India).
[30] Supra note 2.
[31] Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 (India).
[32] Bhoopendra Singh vs. State of Rajasthan & Anr, (2021) SCC Online SC 1020 (India).
[33] State through C.B.I vs. Amaramani Tripathi, (2005) 8 SCC 21 (India).
[34] Supra note 24.
[35] The State through the Delhi Administration vs. Sanjay Gandhi , AIR (1978) SC 961 (India).
[36] Jaibunisha vs Meherban, (2022) SCC OnLine SC 58 (India).
[37] Sudesh Kumar Sharma, Dimensions Of Judicial Discretion In Bail Matters, Vol. 22, No. 3 (1980) available at <https://www.jstor.org/stable/43950699 > accessed on 8th Oct, 2021.
[38] Andhra Bank v. Official Liquidator, 2005 (3) SCJ 762
[39] UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (29 November 1985).
[40] Jagjeet Singh v. Ashish Mishra (2022) SCC OnLine SC 453
[41]Pendency and Vacancies in Judiciary, PRS Legislative Research, (Oct 2021) available at <https://prsindia.org/policy/vital-stats/pendency-and-vacancies-in-the-judiciary>
[42] Law Commission of India, Report on Reforms in Judiciary- Some Suggestions ( Law Com No 230, 2009).
[43] Law Commission of India, Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail (Law Com No 268, 2017).
Student at National Law Institute University, Bhopal