Bail is the Rule and Jail is the exception.
Sandeep .H. Parikh, Advocate
Arbitrator, Counsel, Mediator, Dispute Resolution, Certified Hatha Yoga Instructor
Although I as a Counsel have a predominant civil and commercial law practice, I do take up matters under criminal law pertaining to anticipatory bail, regular bail and writ petition for quashing of FIR. In the recent past, I appeared in anticipatory bail and regular bail applications before the Hon'ble Justice Manish Pitale and Hon'ble Justice Anil Kilor in the Hon'ble Bombay High Court. I found that in both anticipatory bail and regular bail applications, the learned judges applied a common test to ascertain whether bail should be granted or not. During the hearing, the learned judges read the contents of the First Information Report ("FIR") in detail and sought to ascertain the gravity of the offence and the description of the acts committed by the accused. The court gave weightage to delay between the occurrence of the event and the lodging of the information by the informant with the local police. The other determinative factor for grant of bail was whether the FIR contained any statements which attributed a specific role to the accused or only broad omnibus statements were made against the accused. The existence of delay coupled with mere broad, omnibus statements against the accused without attribution of any specific role against the accused in the commission of the offence are factors which enabled the accused to obtain bail from the Hon’ble High Court.
The brief facts in the matter of Sopan Devram Rawade vs State of Maharashtra in ANTICIPATORY BAIL APPLICATION NO. 2019 OF 2024 (Order dated 31.07.2024)were:
The accused had filed an application under Section 439 of the Code of Criminal Procedure. The applicants sought bail in Crime No.674 of 2023, registered with Saswad Police Station, Pune, for the offences punishable under Sections 302, 307, 326, 324, 323, 427, 143, 147, 148, 149, 504, 506 of the Indian Penal Code (for short, ‘IPC’), Section 4/25 of the Arms Act, Section 7 of the Criminal Law Amendment Act and Section 135 of the Maharashtra Police Act. The learned judge went through the charge sheet and the relevant material and found that the Applicants No. 1 and 3 were not named in the FIR but they were subsequently impleaded as assailants by way of supplementary statement. As a result, the learned judge found that it created doubts about the prosecution story against the applicant nos. 1 and 3. The learned judge also found that, as regards Applicant no. 2, general allegations were made. Considering these circumstances, the Applicants were granted bail but on the condition that they would remain outside the limits of the Taluka.
The brief facts in the matter of Vikas Ramdas Rawade vs State of Maharashtra in CRIMINAL BAIL APPLICATION NO.3050 OF 2024 (Order dated 04.10.2024) were:
The bail application was preferred by 20 Applicants. The Applicants apprehended arrest in FIR No.0029 of 2024 dated 30.01.2024 registered with Saswad Police Station, District - Pune Rural, for offences under Sections 120-B, 142, 147, 148, 149, 307, 323, 324, 326, 354, 504, 506 read with Section 34 of the Indian Penal Code, 1860; under Sections 4 and 25 of the Arms Act, 1959; as also under Section 135 of the Maharashtra Police Act, 1951. The learned judge found substance in the contention raised on behalf of the applicants that the present FIR was a counterblast in connection with earlier FIR dated 30.09.2023 registered at the very same police station, wherein the husband of the informant in the present FIR is a prime accused person. The learned judge also found that while specific allegations were made against two accused persons along with the use of weapons on their part for inflicting injuries on the victims, as against the applicants, general and omnibus statements were made without attributing any specific role or overt act on the part of the Applicants. Considering these circumstances, the Applicants were granted bail.
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Conclusion
It bears mention that in both the above referred matters, the Sessions Court had rejected the anticipatory bail and regular bail application, and it was only in appeal that the Applicants were granted bail by the Hon’ble Bombay High Court. Therefore, although the Hon’ble Bombay High Court does follow the rule “Bail and not Jail”, it does appear that the same is not being implemented by the Sessions Court. As a direct consequence, a large number of bail applications are filed on the criminal side which has resulted in dedicated courts exclusively hearing them there by causing a delay in hearing of matters filed on the original and appellate side.
And lastly, here are the citations of Supreme Court judgments on bail:
- Advocate Sandeep H. Parikh
Partner Karmabhih Legal Advisors, Attorneys
2moSir was not knowing that you take up criminal side matters too... But real good to see that..