BAIL IN SECTION- 307, IPC

What is a Bailable and a Non- Bailable offences?

                               

Section 2 of the Code of Criminal Procedure, 1973 defines bailable and non bailable offences. Bailable offence is an offence which is shown as bailable in the First Schedule and it is right of the accused to be released on bail on giving required security.

              

An offence which is not a bailable offence is a non-bailable offence. In a non- bailable offence, the accused does not have a right to be released on bail. In these offences, the discretion is with the Court. The Court may release the person and may impose conditions on him.

What is a Bail?

Bail implies an order of release of an individual from jail and frames a vital piece of our criminal justice system which assumes each man innocent until (conclusively) proven guilty. Bail is conceded during the pendency of the trial of an appeal. Before bail is granted to the accused, a surety gives a guarantee to the Court that the accused will appear in the Court as and when required. In addition, a whole of cash is to be deposited to guarantee his appearance under the steady gaze of the Court, which generally stands relinquish.

Section-307 of the Indian Penal Code, 1860 speaks about:

Attempt to murder- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to 1 [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts 2[When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death.]

Illustrations:

a)      A shoots at Z with intention to kill him, under such circum­stances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section.

b)      A, with the intention of causing the death of a child of tender years, exposes it in a desert place. A has committed the offence defined by this section, though the death of the child does not ensue.

c)      A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of 3[the first paragraph of] this section.

d)     A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s keeping; A has not yet committed the offence defined in this section. A, places the food on Z’s table or delivers it to Z’s servant to place it on Z’s table. A has committed the offence defined in this section.

In Section 307, the word ‘intention means:

(i)                 intention to cause death;

(ii)               intention to cause such bodily injury, which the offender knows is likely to cause death;

(iii)             intention to cause such real bodily damage, which injury is adequate in the standard course of nature to cause death.

In this way, the intention to cause death is the embodiment of the offense of attempt to murder. Intention is a man's state of mind/ perspective; direct evidence subsequently with the exception of through his own admission can't be had; and separated from admission they can be demonstrated just by circumstantial evidence.

Along these lines, intention is something which can be assembled from circumstances like the idea of the weapon utilized, the words used by the accused at the ideal opportunity for the demonstration, the intention of the accused, the parts of the body where the wounds are caused, the nature of injuries and the seriousness and perseverance of the blows given and so forth.

The essentials for criminal attempt are:

I)                   A presence of an aim with respect to the accused to submit a specific offense;

II)                Some steps taken towards it after finish of readiness;

III)             The progression must be obviously however not really adjusted to the reason outlined;

IV)             It must come dangerously close to progress;

V)                It must miss the mark concerning the completion of a definitive plan.

Bale under section- 307, elaborated through landmark cases:

Mohammed Arif Din Mohd, Shaikh vs. State of Maharashtra, 25^th February, 1999

Heard learned Counsel for the parties. This is an application for bail in a case under section 307, IPC On 4-7-1997, sometimes between 7 to 7.30 p.m. Rajiv Roy, son of late Gulshan Roy, a Film Producer Director and Distributor by profession received a telephone call from Dubai and the caller gave him a telephone number of Dubai and asked him to contact Abu Salem. Rajiv Roy telephoned Dubai and the person from the other end said^^vki jktho xSx ds vkWQhl esa cksy jgs gks D;k** and disconnected the telephone. Ten days later, Rajiv Roy received another telephone call from Dubai and asked his operator to talk to the caller. The operator tape recorded the conversation which pertained to a demand of Rs. 20 crores and a threat that he and his family members would be killed if they failed to fulfil it, Thereafter, one day, the said person rang from Dubai and threatened Rajiv Roy's wife and told her that her husband had not telephoned Abu Salem, even after he had been asked to do so. Since Rajiv Roy was very afraid, he contacted police officials of Crime Branch, C.I.D. Mumbai, to provide him with armed protection. On 21-7-1997, the said person again telephoned him from Dubai. His operator Dilip lifted the receiver. The caller threatened Dilip to ask Rajiv Roy to ring up Dubai on the number given by him. He also threatened Roy's wife. It is said that police constable Mohan Singh had been assigned the duty of protecting Rajiv Roy from 12-7-1997 onwards. On 31-7-1997, about 10 a.m. he reported for duty at Roy's residence. At about 12.45 noon, Roy left his residence for his office in his car accompanied by Mohan Singh. At about 4.40 p.m. in the office of Rajiv Roy at Tardeo, Mumbai, the applicant came near the reception counter followed by his associates. He whipped out a pistol and said that since Rajiv Roy had taken a confrontation with Abu Salem, he would be finished. At that time, Constable Mohan Singh stood up with his loaded carbine. Other five accused who had come with the applicant whipped out fire arms and pointed them at the office staff. Mohan Singh sensing danger, pointed out his carbine gun towards the applicant and others and shouted ^^idMks xksyh ekjrh gS D;k!** and thereafter, the applicant and his associates started running towards the stair case followed by Mohan Singh. When Mohan Singh was chasing them at Tardeo Road, the applicant and his associates started firing at him. Mohan Singh in his self-defence started firing with the result that the applicant received bullet injuries on left arm. Immediately, the applicant was apprehended with his pistol. The associates of the applicant however, managed to escape away. On making enquiries, from the applicant, it transpired that he and his associates were working with the gang of the notorious gangster Abu Salem.

Mahavir vs. State of Haryana and Others, 11^th December, 2012                

After obtaining opinion of Board of Doctors, Section 307 IPC was added. Thereafter, respondent Nos.2 to 5 applied for anticipatory bail before Additional Sessions Judge, Palwal which was allowed.

Learned counsel for the petitioner has filed the present petition for cancellation of bail on the ground that concession of anticipatory bail was granted to the accused, whereas, as per opinion, the offence under Section 307 IPC was added. The accused-respondents were roaming freely in the village and are threatening the petitioner and his family members to face dire consequences. The petitioner is under threat and fear and is not in a position to move freely in the village.

Heard arguments of learned counsel for the parties and have also perused the order of granting bail to the accused respondents.

It has come in the order itself that nature of injury on the person of petitioner was dangerous to life as opined by the doctor. The injury was on the head of the complainant and because of that section 307 IPC was added. The bail was granted by the lower court only on the ground that no illicit arms were recovered from the accused and section 25 of the Arms Act was also deleted. There is a reference of injury to the accused party but nothing has been mentioned as to how the opinion given by the Doctor to the injury attributed to the petitioner. Simply it has been mentioned that being a cross case, it is not possible to determine as to which of the parties was aggressor. Nothing has been said regarding injury and opinion of the doctor as to how section 307 IPC was added. Without discussing anything about nature of injury and the allegations of offence under Section 307 IPC, anticipatory bail has been granted to the accused. The injuries caused to the petitioner as well as other party has been discussed and only by taking note of the injuries caused to the accused party, the bail has been granted.

Yogesh vs. Registrar, 14^th November, 2008

After considering the evidence on record, the Inquiry Officer, a Judge of the City Civil Court, Ahmedabad submitted report dated 22.1.2001 (Annexure-G pages 151 to 219). The findings of the Inquiry Officer were as under :-

Except charge no.

4 and 6 no other charges are proved against the delinquent.

So far as charge no.4 is concerned, there is no direct evidence to show that corrupt practice was done by the delinquent Mr Vyas. But he has gone beyond his power in enlarging the accused on bail in case of Section 307 I.P. Code etc. Thus we can say that there is possibility of the delinquent for making corrupt practice and we can also say that the delinquent is found guilty of aforesaid acts of misconduct.

In the above background, we are of the view that the petitioner's granting bail for offences punishable under Section 307 IPC in the years 1993 and 1994 cannot be construed as acting in a manner to unduly favour a party or passing orders with corrupt motive. Granting bail in the cases under consideration in 1993- 1994 cannot warrant the penal order of compulsory retirement which has resulted into denial of pensionary benefits for the services rendered since 1981. We are informed that the officer compulsorily retired by way of punishment is not entitled to any pensionary benefits, unless the Government decides in its discretion to grant compassionate pension which is very rarely granted and that too of a very small amount. The impugned order of compulsory retirement, therefore, deserves to be set aside as shockingly disproportionate.

K. Ram Reddy vs. State of A.P. and Anr, 24^th November, 1997

My enquiries revealed that, keeping in mind the above procedure and the method in making over the bail applications to the Additional Sessions Courts, some of the Advocates have resorted to certain types of malpractices to get their bail applications made over to any of the Additional District Courts of their choice.

The Modus Operandi is - the Advocate files a bail application falsely mentioning that the offence alleged against the accused is one under Section 307 I.P.C. After it was made over to any of the Additional District Courts, the figures '307' are altered to 302 in the bail application/s wherever the figures '307' occur. In case of offence u/s. 376 IPC, they file bail applications initially mentioning that the offence committed in one u/s. 354 IPC. After it was made over to any of the Addl. District Courts, the figures '354' are altered to '376' in the application/s.

Contempt of Court

Contempt of court is any action that is performed by any person in defiance of the authority of a court of law, an action that disrespects the court, or one that hinders the court from delivering justice. Usually, an offence of the contempt of court is between the court of law and the offender but if a third party is also found to be in contravention of the values the court then such a third party can also be held guilty for contempt of court. Judges, magistrates, law officers or any person who is authorised to act judicially can also be held liable for contempt of court in the same manner as any other individual. However, if a judge, magistrate or any person who has been authorised to act in a judicial capacity makes a remark or observation on the subordinate court in case of a revision or appeal before it, then such a judge, magistrate or the person authorised to act in judicial capacity cannot be held to be in contempt of subordinate court with regard to the judgement or order passed by the subordinate court.

There are usually four conditions that establish that a person has acted in contempt of the court:

1.    The court had made a legal and valid order,

2.    The person in contempt was in the knowledge of this order,

3.    The person in contempt was in the position to comply with the order, and

4.    The person in content deliberately and willfully disobeyed the order of the court.

The reason why contempt of court is a criminal and civil offence is so that the supremacy and dignity of law and the body that delivers justice and equity can be upheld. If people were to be allowed to indiscriminately disregard and disrespect the law then the trust of the society upon the law and the legal system would be broken, bringing about the downfall of the nation’s legal structure. This cannot be allowed to happen in any case and therefore the offence of contempt of court finds a place in civil and criminal law. It should be noted that the contempt of court as an offence does not seek to protect the person or judge that delivers justice but the institution of the court of law as a whole.

In order to uphold the machinery of delivery of justice, a court cannot impose a sentence of contempt of court until and unless it is completely satisfied that the alleged act of contempt of court interferes substantially or tents to interfere substantially in the process of delivery of justice.

Contempt of Court in India

There are two categories of contempt of court in India: Criminal Contempt of court and Civil Contempt of court.

•    Criminal contempt of court

The Contempt of Courts Act, 1971 defines criminal contempt under section 2(c). It says that any publication through any platform like written or spoken words, signs, visual representation or any other form, that fulfils any of the below-mentioned criteria is a contempt of court:

i.    A publication that lowers the standards or tends to lower the authority of the court;

ii.    A publication that scandalises or tends to scandalise the authority of the court;

iii.    A publication that interferes or prejudices or tends to interfere or prejudice the course of the court’s judicial proceedings;

iv.    A publication that interferes or obstructs or tends to interfere or obstruct the delivery of justice by the court.

•    Civil contempt of court

Civil contempt of court is defined in section 2(b) of the Contempt of Courts Act, 1971. As per this definition, civil contempt is any willful and voluntary disobedience of any order, decree, judgment, writ, direction or any other process of the court. It also includes the willful and deliberate breach of any undertaking that may be given to the court by the person in contempt.

Period of Limitation

The period of limitation within which a contempt of court proceeding of either criminal or civil nature can be filed is specified in Section 20 of the Contempt of Courts Act, 1971. Accordingly, a court has to initiate contempt of court proceeding within a time period of one year from the date when the alleged act of contempt was performed. After the expiry of this one year time period, the court can no longer take action against the accused.

Penalty for Contempt of Court

The punishment of contempt of court as provided for in Section 12 of the Contempt of Courts Act, 1971. The offence of contempt of court carries with the penalty of a prison term of a maximum period of six months, or a fine up to rupees two thousand, or both. However, this section also has a provision that if the accused makes a proper, bona fide apology to the court, then the aforementioned penalty can be remitted or the accused can be discharged from imprisonment. The detention for contempt of court in civil cases is carried out in a civil prison.

If the accused party is not an individual person but a company or a corporate entity, then the company along with all the people who were in charge of and responsible for the conduct of a business of the company shall be held liable for contempt of court. However, if such a person in charge or person responsible for the conduct of a business of the company successfully proves that the contempt was committed without his knowledge or that he had performed all the due diligence in order to prevent the commission of contempt of court, such a person shall not be held liable.

The High Court and the Supreme Court too have special provisions to deal with contempt of court under section 14 of the Contempt of Courts Act, 1971. As per this provision, if either the High Court or the Supreme Court is of the opinion that someone has acted in contempt of its court proceedings, then the court can on the same day, before the rising of the court, and if not on the same day then as soon as it can, inform such person in contempt, in writing that he or she is going to be charged with contempt of court. In such a case, the court shall also allow such a person in contempt with an opportunity to defend him or herself. After the court has taken in evidence and after hearing the defence of the person in contempt, shall come to the decision whether contempt has actually been committed or not. The person who has been charged with contempt of court can apply before the relevant court to transfer the hearing of the contempt case before another judge. The court will consider this application and if it believes that transferring the case would be in line with the proper administration of justice and also a practical step, then it shall place the matter before the Chief Justice of India, along with the statement of facts of the case. The Chief Justice will then consider and pass the relevant direction as it thinks fit. If the case is transferred and tried before a judge or judges in whose court the contempt did not occur, then the judge or judges in whose court the contempt was actually committed need not appear as witnesses to the case and the statement of facts that was put before the Chief Justice of India will be treated as evidence for this case.

While the contempt of court case is pending in the court, the person who has been charged with contempt can be directed to be put under custody if it is deemed necessary. The option of release on bail is available for contempt of court, however, the court can also release the accused upon execution of a bond without sureties.

Procedure of Criminal Contempt of Court

Apart from the powers entrusted upon the High Court and the Supreme Court to try contempt of court cases in section 14, the Contempt of Courts Act, 1971 also has specific provision for trying contempt of court cases of criminal nature under section 15 of the same Act. Action against criminal contempt of court of a High Court or the Supreme Court can be taken by any of the following bodies:

•    The High Court or the Supreme Court itself;

•    The Advocate- General;

•    Any person who has received consent from the Advocate- General to take such action;

•    In a case when the High Court of the Union Territory of Delhi, any Law Officer that the Central Government has specified by way of a notification in the Official Gazette, or any person who has been so authorised by way of a written consent from such a Law Officer.

If the act of criminal contempt of court has been committed in a court lower than the High Court, then the High Court can take action if such subordinate court makes a reference before it through a motion initiated by the Advocate- General. And if such a subordinate court is located in a Union Territory of India, then a Law Officer who has been notified by the Central Government by way of a notification in the Official Gazette can refer such a matter.

All such motions or references of criminal contempt of court have to necessarily specify what act of contempt the accused is being charged off. Moreover, it is worth noting that an ‘Advocate- General’ in case of the Supreme Court means either the Solicitor- General or the Attorney- General. And in case of the High Court, an ‘Advocate- General’ is the Advocate- General is the Advocate- General of the state in which the High Court is situated.

The notice of criminal contempt of court (as provided for in section 15) has to be delivered in writing and in person to the accused charged with the offence. If the notice is not delivered as such, the court has to record its reasons for the same. If the contempt of court proceedings are initiated upon a motion by the authority mentioned above, then this notice is served to the accused along with a copy of the motion and, if there be any, copies of the affidavits on which the motion is based. If the contempt of court case is based on a reference to the higher court by a subordinate court, then the copy of the reference is also served to the accused along with the notice. Furthermore, if the court is of the opinion that the accused may abscond or fail to present him or her before the court for proceedings, it can make orders to attach the property of the accused of the value as the court may deem necessary. Attachment of the property of the accused is carried out as per the procedure laid down in the Code of Civil Procedure, 1908, specific to the procedure for attachment of property when the decree is money decree. If the accused person whose property has been attached show is successfully able to convince the court that he or she did not abscond and or did not take any action that would amount to him or her being prevented from serving the contempt notice, the court can issue another order to release the attached property.

A person who has been charged under section 15 for contempt of court has the right to file an affidavit in order to defend them. The court will then decide upon the matter either on the basis of the affidavits filed and can also take in additional evidence. Furthermore, the bench that decides upon such criminal contempt cases should consist of two or more judges, except for when the deciding being is of the Court of the Judicial Commissioner.

Appeal

A person accused of contempt of court has the right to appeal the decision of the High Court. If the decision has been passed by a single judge bench, then the appeal will lie with a bench of two or more judges. If the decision has been passed by division bench or the Judicial Commissioner, then the appeal shall lie with the Supreme Court. If the appeal has to be filed with the High Court, then the period of limitation is of 30 days but if the appeal has to be filed before the Supreme Court then the limitation period is increased to 60 days.

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