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Case 1: Amarjeet Sharma v. Serious Fraud Investigation Office, 2022 SCC OnLine Del 3633 (Decided on 03-11-2022)

The right to bail is a fundamental principle in the criminal justice system that allows individuals who have been arrested and charged with a crime to be released from custody while they await trial. In the United States, this right is guaranteed by the Eighth Amendment to the United States Constitution, which prohibits the government from imposing excessive bail amounts on individuals. The same principle under the Indian law is traceable to Article 21 of the Constitution of India.

The system of taking money bail to release an accused arose in the Anglo Saxon era.  Prior to Anglo-Saxon legal systems, crimes were essentially treated as a private affair, and the victims were free to settle their scores by hounding the offenders in feuds. The Anglo-Saxon legal process developed to provide an alternative to blood feuds to avenge wrongs, which often led to wars. Anglo Saxon legal process allowed criminal cases to be ‘settled’ through a system of “bots,” or payments designed to compensate grievances. (See Talha Abdul Rahman, Bail Laws & Poverty (Chapter) in , Taking Bail Seriously (Lexis Nexis: 2019))

The idea underpinning criminal jurisprudence is that an accused is deemed innocent until proved otherwise. Since guilt has still not been fixed, there is no reason for incarceration other than to secure his/her presence in the trial or to prevent him from committing further crimes. The ‘remedy’ of bail, thus; tries to balance the trinity of  objectives of ensuring liberty and freedom of an accused, the interest of the justice system from the vantage-point of the victim and the interest of the rule of law in reducing pre-trial detention

Law must evolve to solve emerging problems, and therefore lawmakers and judges who lay down the law have a far more important role in understanding the nature of global problems of a justice delivery system, and the law must evolve to deal with them.

The right to bail is an important safeguard against arbitrary detention and excessive punishment. It allows individuals who have been accused of a crime to continue to live their lives and maintain their livelihoods while they await trial. It also helps to prevent overcrowding in prisons and detention facilities, as it allows many individuals to be released while their cases are pending.

Recently, a question arose before the  Delhi High Court regarding the entitlement of default bail. The Delhi High Court held that the right to default bail is extinguished when a charge sheet is filed within the prescribed time (S.1 67 CrPC). The Court denied bail to individuals accused of fraud and misappropriating public funds totaling Rs. 5,435 crores. The Ministry of Corporate Affairs had assigned the investigation into the affairs of Bhushan Power and Steel and its 10 group companies to the Serious Fraud Investigation Office in 2016. The applicants argued that their custody was illegal because there was no judicial order of remand and that they were governed by the CrPC's Section 167, which requires the Magistrate to pass a reasoned order for each remand, which was absent in this case. However, the Court found that the applicants' right to a speedy trial was not infringed by the denial of bail and there were no reasonable grounds to believe that the applicants were not guilty of the offenses they were accused of.

The court observed that “the provisions in the Criminal Procedure Code (CrPC) did not entitle the accused to bail for any reason other than those specified in the section. The court also stated that an endorsement on the production warrant by the competent court after the filing of the complaint or chargesheet was sufficient compliance with Section 167 of the CrPC. If the accused had any grievances about any illegality or irregularity in the passing of the order of remand, they could raise those grievances in accordance with the law, but it would not entitle them to release on bail under Section 167 of the CrPC. The court further stated that the 15-day time limit and the requirement of a reasoned order under Section 167 only applied during the pendency of the investigation. On the merits of the case, the court noted that the applicants had been taken into custody on March 21, 2022, and the investigation into the other accused individuals was not yet complete. The prosecuting agency had expressed concerns about the applicants' close association with various individuals and their potential influence over most of the witnesses who worked under them. The court therefore found that the applicants were not entitled to bail on the grounds of a breach of the 15-day time limit, the lack of a reasoned order, or on the merits of the case.”

Case 2: Umar Khalid v. State of National Capital Territory of Delhi, 2022 SCC OnLine Del 3423 (Decided on 18.10.2022)

In an appeal filed under the National Investigation Agency Act, 2008 and the Unlawful Activities Prevention Act, 1967, a division bench of the Delhi High Court observed that the allegations against Umar Khalid were "prima facie true" and therefore the provisions in Section 43D(5) of the Unlawful Activities Prevention Act applied to the consideration of granting him bail. As a result, his application for regular bail was rejected. The First Information Report in this case, which was filed by the Crime Branch on March 6, 2020, alleged that the riots that took place in Delhi in 2020 were the result of a preplanned conspiracy involving Umar Khalid and his associates from various organizations. It was alleged that Umar Khalid made provocative speeches at various locations and called on people to block the streets during the visit of US President Donald Trump in order to bring attention to the alleged discrimination against minorities in India.

Umar Khalid was accused of being part of a premeditated conspiracy to cause disruptive roadblocks and preplanned protests in Delhi that escalated to confrontational roadblocks and incitement to violence, leading to riots. Witnesses described his role in open discussions on violence, riots, finance, and weapons, and the manner in which the attacks were carried out and the resulting deaths indicated that the acts were pre-planned and constituted terrorist acts. Umar Khalid was also in constant contact with other co-accused individuals and was a member of a WhatsApp group for Muslim students at Jawaharlal Nehru University and participated in various meetings at Jantar Mantar and Shaheen Bagh. The court determined that the allegations against Umar Khalid were "prima facie true" and rejected his application for regular bail.

The right to bail is an important principle that helps to ensure that individuals who have been accused of a crime are treated fairly and with dignity while they await trial. It helps to protect against abuses of power and ensures that individuals have the opportunity to defend themselves against the charges they face. It must be remembered that idea of pre-trial custody during bail is not to punish in anticipation of the guilt. Therefore, the phrases like “prima facie true” even pending adjudication of guilt do not accord with the rule of law.  While "prima facie true" means that a claim appears to be true based on the available evidence, but it is not necessarily considered proven until all of the evidence has been considered and evaluated, for the purposes of grant of bail in any civilized nation, the yardstick has to be much lower. It cannot be lost sight of the fact that courts are protectors of liberty, and are the only institution standing between tyranny and liberty.

Case 3: Vijay Agrawal through Parokar v. Directorate of Enforcement, Crl.M.(Bail) 713/2022

The right to health of prisoners is an important aspect of the overall right to health, which is recognized as a fundamental human right under international law. The right to health of prisoners encompasses the right to access to necessary and appropriate health care services, as well as the right to be protected from any form of ill-treatment or abuse related to health care. A person does not cease to be a human only because he is incarcerated.

Prisoners are often a vulnerable population, as they may be at higher risk for certain health conditions due to factors such as overcrowding, poor hygiene, and a lack of access to preventive health care. As such, it is important that prisoners are able to access necessary health care services in a timely and appropriate manner. This includes access to preventive care, such as vaccinations and screenings, as well as access to treatment for acute and chronic health conditions, especially having regard to the age of the prisoner. Every person does continue to have the right to be free from physical and mental abuse, as well as the right to be treated with dignity and respect while receiving health care.

The Delhi High Court in this case has noted that prisoners with serious health issues should be given the opportunity to receive necessary medical treatment. The court stated that the discretion to grant interim bail on medical grounds should not only be exercised in cases where a person is on the verge of death or may not survive.

The court granted interim bail on medical grounds to Vijay Agrawal, who is accused of money laundering and has been in judicial custody since March 21. Agrawal's counsel argued that his condition had worsened while in jail due to a lack of proper treatment, and the court was informed that Agrawal had been diagnosed with PIVD and Lumbar Canal Stenosis. The counsel for the Enforcement Directorate, however, argued that Agrawal's previous bail plea had been denied on September 9 by a coordinate bench.

"Howsoever serious the offence may be, the health condition of a human being is paramount. The custody during the period of investigation cannot be termed to be punitive in nature. The health concern of a person in custody has to be taken care of by the State and keenly watched by the judiciary. Every person has a right to get himself adequately and effectively medically treated. Article 21 of the Constitution not only gives a fundamental right to live but the right to live with dignity. Right to live a healthy life is also one of the facets of fundamental rights granted by the Constitution of this Country. The consistent view has been taken that if sufficient treatment is available in the jail then preferably the same should be provided to the prisoners. This Court firmly believes that a person in custody suffering from serious ailment should be given an opportunity to have the adequate and effective medical treatment. The discretion for granting the interim bail on medical ground may not be exercised only at a stage when the person is breathing last or is on the position that he may not survive." the court observed.

This is a laudable order that ensures that prisoners have access to necessary and appropriate health care services and are protected from ill-treatment or abuse is essential for promoting the well-being and dignity of this vulnerable population.

Case 4: Ajay Kumar v. State (NCT of Delhi), 2022 SCC OnLine Del 3705 (Decided on 20-10-2022)

In the present case, the minor's father claimed that his daughter was 17 years old when she married the accused on June 30, 2021. He also stated that the accused took his daughter to Punjab and married her against her will. As a result, the minor's father filed an FIR accusing the accused of taking his daughter against her will.

The Delhi High Court Court opined that “the intention of POCSO was to protect children under the age of 18 years from sexual exploitation. It was never meant to criminalize consensual romantic relationships between young adults. However, this must be seen from the facts and circumstances of each case as there might be cases where the survivor of sexual offences may be under pressure or trauma, be forced to settle”.

The order underpins a key concern that POCSO criminalizes romantic relationship between the teenagers. Criminalizing romantic relationships refers to the act of making it a crime for individuals to engage in romantic relationships or to express their affection for one another in certain ways. This can take many different forms and may be motivated by various factors, including cultural or religious beliefs, social norms, or moral values.  In some cases, criminalizing romantic relationships may be motivated by discrimination or prejudice, such as laws that criminalize same-sex relationships or relationships between people of different races or religions. The High Court’s order recognizes that these types of laws can have serious negative consequences for the individuals affected by them, including discrimination, stigma, and criminalization.

It is also important to recognize that individuals have the right to freedom of expression and association, which includes the right to form and maintain romantic relationships. Hence, the Court observed that the girl willingly married the accused without being forced or influenced. In fact, the girl herself approached the accused and asked him to marry her. Additionally, the victim's statements indicated that their relationship was consensual and that any sexual activity between them was also consensual. Thus, the Court granted bail to the accused. 

References:

https://www.scconline.com/blog/post/2022/11/05/delhi-high-court-right-of-default-bail-is-extinguished-the-moment-charge-sheet-is-filed-within-the-period-prescribed/

https://www.scconline.com/blog/post/2022/10/18/delhi-high-court-umar-khalid-bail-uapa-terrorism-riots-chakka-jam-caa-nrc-donald-trump-conspiracy-ntational-investigation-agency-act-legal-research-legal-news-updates/

https://www.scconline.com/blog/post/2022/11/15/pocso-meant-to-protect-and-not-criminalize-consensual-relationships-between-young-adults-delhi-court-grants-bail/

https://www.livelaw.in/amp/news-updates/interim-bail-medical-ground-prisoner-medical-examination-delhi-high-court-217104