Inconsistent Bail Jurisprudence of the Supreme Court

The doctrine of stare decisis (to stand by things decided) envisages that when the Supreme Court issues a ruling, it is meant to be a guiding precedent for all the other courts, including itself.

It is a well-settled principle that legal systems rely on a clear, consistent application of law, since certainty of outcome of litigation is a principal guiding factor. Under these circumstances, inconsistent orders of the Supreme Court create confusion for the appellate courts and the trial courts. It weakens the principles of predictability and destabilises the legal system since such inconsistency undermines the integrity of the entire justice delivery system. This article is based on the inconsistent orders on bail passed by the Supreme Court.

The doctrine of stare decisis (to stand by things decided) envisages that when the Supreme Court issues a ruling, it is meant to be a guiding precedent for all the other courts, including itself. If the Supreme Court makes conflicting decisions in a given set of facts and circumstances, the trial courts and the High Courts will struggle to determine which approach to follow. When there is a lack of uniformity in the decisions of the Supreme Court, other courts may hesitate to make rulings for fear that their decisions could later be overturned or contradicted. This leads to uncertainty for litigants, as they may not know what to expect in terms of legal outcomes, and eventually, they will be left to the mercy of their fortune. Such an approach also undermines public confidence in the legal system when people feel the law is unpredictable.

It is common knowledge that the principles of grant or refusal of anticipatory bail have been well settled by the Supreme Court since the time of Gurbaksh Singh Sibbia v. State of Punjab¹. The factors which have been held to be relevant, while considering an application for bail are the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the Informant or the witnesses; reasonable possibility of securing the presence of the accused at the time of trial; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public and similar other considerations. From the perusal of bail jurisprudence as laid down in the Criminal Procedure Code and interpreted by the Supreme Court from time to time through various decisions makes the position of law clear that the purpose of imposing conditions while granting bail is to facilitate the appearance of the accused before the investigating officer/court, completion of investigation/trial, and safety of the informant and the witnesses.

The inclusion of a condition for payment of money by the accused for bail tends to create an impression that bail could be secured by depositing money.² A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial, and hence it has been well settled by the Supreme Court in a catena of decisions that criminal proceedings are not for the realisation of disputed dues.³ Recovery of money is essentially within the realm of civil proceedings, and the process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail.⁴

The Supreme Court recently in Gajanan Dattatray Gore v. The State of Maharashtra⁵, clarified in the form of directions that no trial court or any of the High Courts shall pass any order of grant of regular bail or anticipatory bail on any undertaking that the accused might be ready to furnish for the purpose of obtaining appropriate reliefs. The Supreme Court in this judgment also directed the High Courts as well as trial courts to decide the plea for regular bail or anticipatory bail strictly on the merits of the case, and the Courts shall not exercise their discretion in this regard on any undertaking or any statement that the accused may be ready and willing to make. After laying down the aforesaid guidelines, the Supreme Court directed the registry to circulate one copy of the said order to all the High Courts at the earliest.

The underlying principle behind such a direction was that the bail shall be decided only on the merits of the case, and bail proceedings shall not be made a recovery proceeding. However, in practice, the Supreme Court often is reluctant to follow the aforesaid principles even while directing the High Courts and the trial courts to do so. While exercising jurisdiction under Article 136 of the Constitution of India, the Supreme Court often asks the accused person to deposit the money in order to secure bail or anticipatory bail, particularly in matters involving Sections 406 and 420 Penal Code (IPC), i.e. the offence of criminal breach of trust and cheating.

Recently, in a cheating case involving Sections 406 and 420 IPC, where the accused person, who was a chairperson of a company, who had already suffered incarceration for more than a year, was granted bail eventually by the Supreme Court on condition that he would deposit 25 per cent of the amounts involved in the matter, which was Rs 25 lakhs in the said matter.⁶

The Supreme Court in another matter involving Sections 406 and 420 IPC, which was filed by the mother-in-law of the accused person after the matrimonial relationship between the accused person and his wife turned sour, set aside the order granting anticipatory bail to the accused person, because the accused person did not return the disputed amount to the complainant.⁷ Going a step further, the Supreme Court observed that their regular bail application shall be considered after showing the proof of payment being made to the complainant. Notably, the anticipatory bail was cancelled a year after it was granted by the High Court, and there was no allegation that the accused persons were not cooperating in the investigation, or had in any manner misused the privilege of anticipatory bail. It is also noteworthy that both the offences of Sections 406 and 420 under the IPC are punishable with imprisonment up to seven years and less, and are triable by the Magistrate of the First Class.

Under such circumstances, such orders create confusion not only in the working of criminal courts but also for the investigative agency, which is supposed to record special reasons for the arrest in an offence punishable with imprisonment which may extend to seven years.

Whenever the High Court imposes an onerous condition, such as the deposit of money, the litigant has the remedy of moving the Supreme Court against such an imposition. However, when the Supreme Court itself does so, the litigant is left remediless.