38. Interim bail

In a recent decision of the Supreme Court dated 23.3.09 in Criminal Appeal No. 538 of 2009, Lal Kamlendra Pratap Singh v. State of U.P., which has been directed to be circulated in the High Court and in subordinate Courts in U.P. it has been observed that in appropriate cases the Court concerned may consider releasing an accused on interim bail, pending consideration of his regular bail, and that arrest was not a must in each case when an FIR of a cognizable offence was lodged.

The Full Bench of the Allahabad High Court in Amarawati v. State of U.P., 2005 Cri.L.J. 755 has been specifically approved in this decision. In this regard the Full Bench has held in Amarawati :
i) Even if a cognizable offence is disclosed in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr LJ 1981, before deciding whether to make an arrest or not.
ii) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437, CrPC ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439, CrPC it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.

In the light of the aforesaid observations of the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. and the observations of the Full Bench of this Court in Amarawati, a division bench of Allahabad High Court (Hon .Amar Saran and Hon. R.N. Misra , J.J.) on 30/03/2009 in criminal Writ Petition NO. 4983 of 2009 Pradeep Tyagi Vs. State of U.P. and others directed that :

”if an application is moved before the competent Magistrate within 3 weeks, a date may be fixed for appearance of the petitioner in about a week thereafter. The petitioner may not be arrested without permission of the Magistrate between the date of moving of the application for surrender and the date fixed for his appearance in the Court. The concerned Court may direct the Public Prosecutor to obtain instructions from the investigating officer by the date fixed and thereafter dispose of the bail application at the earliest in accordance with the decision in Amarawati's case. It will also be open for the Court concerned to release the petitioner on interim bail in an appropriate case on such terms and conditions that the concerned Court deems fit and proper till the next date of hearing of the bail application, if the hearing of the case is adjourned or the Court for any reason is not in a position to finally dispose of the bail application on that day, or some further instructions are needed.

It is made clear that the order granting interim bail pending hearing of a regular bail application may be passed in appropriate cases, but it ought not to be passed where:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims and society at large and for protecting witnesses.
(ii)The case involves an offence under the U.P. Gangsters Act and in similar statutory provisions
(iii) The accused is likely to abscond and evade the processes of law.
(iv) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(v) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
(vi) The offence is in the nature of a scam, or there is an apprehension that there may be interference with the investigation or for any other reason the Magistrate / Competent Court feels that it is not a fit case for releasing the appellant on interim bail pending the hearing of the regular bail.
(vii) An order of interim bail can also not be passed by a Magistrate who is not empowered to grant regular bail in offences punishable with death or imprisonment for life or under the other circumstances enumerated in section 437 Cr.P.C.
(viii) If the Public Prosecutor/ investigating officer can satisfy the Magistrate/ Court concerned that there is a bona fide need for custodial interrogation of the accused regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime, or for obtaining information leading to discovery of material facts, it may constitute a valid ground for not granting interim bail, and the Court in such circumstances may pass orders for custodial interrogation, or any other appropriate order.

These directions are necessary as the need to grant plenary powers to the police to investigate and unravel the circumstances of a crime are as important as the need to protect a respectable person from being unnecessarily sent to jail or for restraining the police from taking persons in custody for minor isolated offences where it may strictly not be necessary for the police to arrest an accused at the stage of investigation.
It is expected that in all cases where the Magistrate is not restrained from granting bail under section 437 Cr.P.C, where an accused moves an application for consideration of his prayer for bail through his counsel, even without orders of the High Court, the Magistrate may fix a convenient date for the appearance of the accused, and direct the Public Prosecutor to seek instructions from the investigating officer in the meanwhile. Between the date of moving of the surrender application and the date fixed for appearance of the accused by the Magistrate, the accused may not be arrested without permission of the Court concerned. In case the Magistrate is not in a position to finally dispose of the bail on the date fixed, he may consider releasing the appellant on interim bail till the date of final hearing of the bail application in the light of the observations hereinabove. This direction is needed to prevent all accused persons whose cases do not fall within the interdict of section 437 Cr.P.C. rushing to this Court seeking protection, and for this Court having to pass orders in each individual case, creating a huge back log of criminal writ petitions, which then engage the attention of a number of benches, and come in the way of disposal of the large number of pending division bench murder and other appeals.
With these observations the petition is disposed of.
Copy of this order may be circulated to all District Judges for communication to all subordinate Courts, so that the directions given by the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P., the Full Bench in Amarawati and hereinabove may be followed by all subordinate Courts in letter and spirit.”