What is Interim Bail?

Bail can be defined as the exercise through which a person who is accused and charged of an offence can be released on the condition that he will be present in the court for the future trials of his case and won’t leave the jurisdiction of the court. In the Black’s Law dictionary, bail is defined as the “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court”[1] In Indian Law,” Code of Criminal Procedure, 1973 (C.R.P.C),  contains many provisions dealing with the bail proceedings but there is no legal definition of bail given in the C.R.P.C, therefore, it is interpreted through various judgements of the courts. In the case of Natturasu v. State, bail was defined as the ‘‘process of procuring the release of an accused charged with certain offence by ensuring his future attendance in the Court for trial and compelling him to remain within the jurisdiction of the Court.’’[2]

Bail is considered to have a direct connection with Article 21 of the Constitution which talks about the fundamental right to life and personal liberty. Bail as a concept protects a person’s personal liberty by imposing a restriction on unlawful and unreasonable detention. There are 3 types of bail in India, Regular bail, anticipatory bail and Interim bail. Regular Bail is granted to a person who is accused of a non-bailable and non-cognisable offence and is already in the custody of the police. An application under S.437 and S.439 of CRPC can be filed for regular bail. Anticipatory Bail is granted when a person anticipates his arrest in a non-bailable offence and applies for bail under in advance S.438 Crpc. Last category of Bail in India is Interim Bail which is granted to the accused on a temprory basis prior to the hearing of anticipatory or regular bail. This article will talk about the following –

  • CONCEPT AND SCOPE OF INTERIM BAIL
  • LEGAL PROVISIONS RELATED TO INTERIM BAIL
  • MISUSE OF INTERIM BAIL
  • RIGHT TO INTERIM BAIL DURING COVID-19 PANDEMIC
  • GRANT OF INTERIM BAIL ON GROUNDS RELATED TO COVID- 19
  • CONCLUSION

CONCEPT AND SCOPE OF INTERIM BAIL

As mentioned above interim bail is granted for a short period of time in case of a pending hearing of anticipatory and regular bail in the court. S.438 talks about the court’s power to pass an interim order in case of pending hearing of anticipatory bail. Interim bail is not defined anywhere in the C.R.P.C but many times the courts through its judgements have tried to interpret the meaning and scope of interim bail. In the case of Sukhwant Singh & Ors v. State of Punjab, interim bail was defined as a tool for protection of the reputation of the accused.[3] In the case of Sukhwant Singh v State, the Supreme Court held that the power of the courts to grant interim bail is inherited in their power to grant bail. The concept of interim bail is important as an accused may face the danger of getting arrested even before the verdict regarding his bail is out. Therefore, Interim bail is granted when the court is satisfied that the reason for granting it is to protect the accused from getting unlawfully arrested or detained.  The case of Lal Kamlendra Pratap Singh v. State of U.P. and Ors dealt with the scope of interim bail in which the court stated that “In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person’s reputation….”[4] In another case the Hon’ble Delhi High Court [5]mentioned that interim bail should be allowed in the following cases-

  • When there is no possibility of the accused escaping from justice
  • When there is no possibility of the accused interfering with the evidence
  • When there is no reasonable ground for custodial interrogation, and
  • When the claim for anticipatory bail cannot be heard until a later date.

LEGAL PROVISIONS RELATED TO INTERIM BAIL

In CrPC Sections 436 to 450 CrPC deal with the provisions of bail. There aren’t any direct legal provisions regarding the grant of Interim bail in the CrPC. But S.438 Crpc allows the High Courts and Session’s Courts to pass an interim order in case of pending of the plea of anticipatory bail in the court. As per S.438 CrPC, the court has to consider the following in order to decide whether to reject the anticipatory bail application or to give an interim relief order –

  • The nature and gravity of the accusation
  • The background and criminal history of the accused which include previous imprisonment due to any cognizable offence.
  • Probability of the accused escaping from justice
  • If there is a possibility that the intention behind the allegations made against the accused is to injure and degrade the accused through his arrest[6]

According to S.438 (1A), if after examining the above mentioned conditions, if the court decides to give an interim order to the accuse then it has to serve a 7 day notice along with the copy of the order to Public Prosecutor so that the Prosecutor has sensible amount of time for being heard when the bail application is finally heard by the court.

This provision is necessary as the accused may face the danger of being arrested even before the court’s judgement regarding his bail is made. Although there is no mention of interim bail under S.437 and S.439 CrPC, the Supreme Court of India in the case of Sukhwant Singh v State , tried to fill the gaps present in S.437 and S.439 CrPC by ruling that the power to order interim bail is included in the court’s power to grant. Therefore, a court gets the inherent power to order an interim bail if the court hears a plea for regular bail and the final disposal of the bail application is still pending in the courts.

MISUSE OF INTERIM BAIL

As mentioned above, no express definition or legal provision is given w.r.t Interim bail in the CrPC and therefore everything is dependent on judicial interpretations in various judgements. This lack of express provisions often leads to people misusing the power of interim bail. It may include the accused escaping from justice, violating the bail conditions or tampering of evidence etc. The case of Rukmani Mahato v. State of Jharkhand [7]talks about the misuse of interim bail in which the Hon’ble Supreme Court asked the lower courts to not to grant regular bail to an accused who is already been granted with the interim bail by the higher courts with the matter still pending in the court.

The reasoning given by the court was that in case of the higher- level court rejecting the anticipatory bail application of the accused that rejection won’t hold any value as the regular bail granted by the subordinate court will still prevail. There have been situations where an accused has been able to receive interim bail after his arrest but receiving the bail, the accused has not complied with or disrespected the conditions mentioned in the bail and without any reasonable explanation failed to make his presence available in the court after the duration for interim bail has expired. In the case of Phool Chand v. State of Rajasthan, the High Court of Rajasthan dealt with a similar situation and held that in such a case the evading accused won’t be allowed to get the remedy of anticipatory bail u/s 438 CrPC and cannot take the alternative given u/s 482 CrPC which allows the High Courts to save their inherent powers. [8]

There have been cases where the accused have tried to misuse the powers of High Court u/s 482 CrPC to get the Interim bail but the Supreme Court has held that if specific provisions for the grievance and redressal of the parties or any remedy is available under the law, then the power u/s 482 CrPC cannot be used.[9] In the case of Savitri Goenka v. Kusum Lata Damani, the court held that the applications u/s 482 CrPC cannot be converted to applications u/s 437 and 439 CrPC[10]. The Supreme Court has stated many times that if a dishonest accused didn’t surrender in front of the court then he cannot be granted regular bail u/s 439 CrPC until his surrender and can’t even seek anticipatory bail u/s 438 CrPC as the accused was already arrested before and as per the law a person can apply for anticipatory bail only before his arrest.

RIGHT TO INTERIM BAIL DURING COVID-19 PANDEMIC

Due to the Covid 19 pandemic, there was a lot of discussion regarding the safety of the prisoners and reforms required to be made in the right of bail as overcrowding of prisoners is a serious threat in the ongoing pandemic. After a lot of discussions the Supreme Court of India on 23rd March 2020 issued an order in which it stated the rules and regulations regarding bail during Covid -19 pandemic. The Supreme Court ordered that a High Power Committee (HPC) should be established in every State and Union Territory (UT). The committee formed will discuss and have a complete control over the matters related to the grant of interim bail or parole for a specific duration in order to maintain proper social distancing and to avoid overcrowding of the prisoners. The committee consisted of the following-

  • State Legal Services Committee’s Chairman,
  • The Principal Secretary of the Prison/Home,
  • Prison’s Director-General[11]

The High Power Committee have complete authority to decide category of prisoners who should be released on parole or should be granted interim bail on the basis of the kind of offence committed, the period of sentence faced by the prisoner, the intensity of the sentence faced by a person with an ongoing trial or any other reasonable conditions. The Supreme asked the States and UTs to release the prisoners who have committed an offence with the punishment of imprisonment of 7 years or less (with or without fine) irrespective of the fact that whether they been convicted or are facing an ongoing trial. There’s no specific mention regarding the kind of offences for which the interim bail may be rejected or may not be considered. But there are certain cases interim bail was rejected even during the pandemic citing various reasons. Few of them are mentioned below –

  • Asaram who is a self-proclaimed godman and a convicted rapist was denied interim bail by the Rajasthan High Court on account of the severity of the offences and the committed by him and that he doesn’t fall under the category of under trial criminals who were asked to be released on interim bail by the state’s High Power Committee.[12]
  • Deepak Talwar who was an aviation consultant is of lobbying asked for interim bail in March 2020 citing medical reasons. Patiala House Court rejected the interim bail on account of presence of all the facilities required by the accused and his medical reports stating that he is healthy.[13]
  • Christian Michel James, age 59 years, who is an accused in the AgustaWestland scam case appealed in the Supreme Court that he should be granted interim bail citing that due to his age he is more vulnerable to getting infected by the coved- 19 virus. His appeal was rejected on account of the fact that his prison is not overcrowded and none of his jail inmates are found to be Covid positive. Moreover, as per the criteria set by the High Power Committee, the foreigners who are held up in the prison cannot be released.

GRANT OF INTERIM BAIL ON GROUNDS RELATED TO COVID- 19

There are many cases in which the interim bail was granted on grounds related to the Covid-19 Pandemic. A few of them are mentioned below –

  • Meenu Singh v State of NCT of Delhi [14]– In this case the petitioner was granted interim bail by the High Court of Delhi after she was tested Covid positive while in custody and also lost an eye after getting infected by the black fungus.
  • Natasha Narwal v. State of Delhi NCT – In this case the petitioner who was arrested in Feb 2020 under the UAPA Act was granted an interim bail for a period of 3- weeks on humanitarian grounds after her father passed away due Covid -19.[15]
  • Bhupinder Singh v. Unitech Limited –  Former MD of Unitech was granted interim bail for a period of 30 days after both his parents of age 81 and 78 respectively were tested Covid positive and hospitalised for treatment.[16]

CONCLUSION

The fundamental right of Life and Personal liberty granted by Article 21 of the constitution is a valuable right that is required to be dealt in a very judicial manner. Grant or refusal of bail is also a part of this fundamental right as unlawful arrest or detention can cause a huge harm to the reputation of a person. Interim bail is granted for a short period of time when the hearing of either regular or anticipatory bail is pending in the courts. There aren’t any specific provisions regarding the definition and scope of interim bail in the Code of Criminal Procedure but the courts through various judgements and interpretations have tried to define it under the Indian law. The basic need of grant of interim bail is that no one should suffer from the danger of arrest even before the judgement regarding their arrests is made. S.438 Crpc allows the High Courts and Session’s Courts to pass an interim order in case of pending of the plea of anticipatory bail in the court.

This power of the courts is often misused by the people by not complying with the bail conditions, failing to appear in the court etc. therefore, the courts have to be extremely cautious with such incidents of abuse and misuse of Interim Bail. The Covid-19 pandemic caused a lot of chaos and tested the readiness of the working of the courts. The order passed by the Supreme Court regarding Covid-19 pandemic has two different sides. If we consider the brighter side then the order will lead to decongestion of prisons as the prisons in India are already overcrowded and it can never fully stop the people and workers from visiting the prison. But the darker side is ambiguity regarding the list of offences or grounds of rejection or non consideration of interim bail. Therefore, it is required to clearer guidelines regarding the acceptance and rejection of interim bail during Covid-19 pandemic. Overall, Interim Bail is a medium to safeguard the freedom and reputation of an individual by prevention of any form of illegal arrest or detainment.


[1] Bail, Black’s Law Dictionary, 177 (4th Ed.).

[2] Natturasu v. State, 1998 Cri LJ 1762.

[3] Sukhwant Singh & Ors v. State of Punjab, (2009) 7 SCC 559

[4] Lal Kamlendra Pratap Singh v. State of U.P. and Ors., (2009)4 SCC 437

[5] Parminder Singh and Ors. v. The State, 95 (2002) DLT 410

[6] Section 438, Code of Criminal Procedure, 1973.

[7] Rukmani Mahato v. State of Jharkhand, (2017) 15 SCC 574.

[8] Phool Chand v. State of Rajasthan, 1983 SCC Online Raj 124.

[9] State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770

[10] Savitri Goenka v. Kusum Lata Damani, (2007) 14 SCC 373

[11] Mridul Tripathi, ,Right to Bail in the wake of corona virus ,  blog.ipleaders.in , https://blog.ipleaders.in/right-bail-wake-corona-virus/amp/#Right_to_Bail_in_the_wake_of_Coronavirus

[12] Madhuri Adnal, Rajasthan High Court rejects self-styled godman Asaram Bapu’s bail plea to pursue medical treatment, Oneindia.com, May 21, 2021,https://www.oneindia.com/india/rajasthan-high-court-rejects-self-styled-godman-asaram-bapu-s-bail-plea-to-pursue-medical-treatment-3262644.html

[13] Deepak Talwar’s Interim bail plea rejected , www.thehindu.com, MARCH 27, 2020 20:12 IST, https://www.thehindu.com/news/national/deepak-talwars-interim-bail-plea-rejected/article31185452.ece

[14] Meenu Singh v State of NCT of Delhi, BAIL APPLN.1660/2021

[15] Natasha Narwal v. State of Delhi NCT, 2021 SCC Online Del 1960

[16] Bhupinder Singh v. Unitech Limited, 2020 SCC Online SC 559


Author: Shambhavi Tripathi from Bennett University, Noida.


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