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TMI Blog2016 (2) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... f bail jurisprudence. The expression interim bail is not defined in the Code. It is an innovation by legal neologism which has gained acceptance and recognition. The terms, interim bail / interim suspension of sentence, have been used and accepted as part of legal vocabulary and are well known expressions. The said terms are used in contradistinction and to distinguish release on regular bail during pendency of trial or appeal till final adjudication - Interim bail entailing temporary release can be granted under compelling circumstances and grounds, even when regular bail would not be justified. Intolerable grief and suffering in the given facts, may justify temporary release, even when regular bail is not warranted. Such situations are not difficult to recount, though making a catalogue would be an unnecessary exercise. The trial or the appellate Courts after conviction are entitled to grant interim bail to the accused/ convict when exceptional and extra-ordinary circumstances would justify this indulgence. The power is to be sparingly used, when intolerable grief and suffering in the given facts may justify temporary release - reference disposed off. - HON' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. Two important limitations and fetters imposed by Section 37 of the NDPS Act are; (i) there should be reasonable grounds for believing that the accused is not guilty of such offence, and (ii) the accused is not likely to commit any offence while on bail. The negative preconditions are authoritatively binding and would curtail the discretion to grant bail. 4. The Supreme Court in Narcotic Control Bureau vs. Kishan Lal Ors., (1991) 1 SCC 705, has accentuated on the importance of the non-obstante mandate of Section 37, notwithstanding anything contained in the Code of Criminal Procedure, 1973 ( Code for short). An accused facing prosecution under NDPS Act for the offences mentioned in clause (b) to sub-section 1 to Section 37 should be released on bail only when the conditions of Section 37 of the NDPS Act are strictly satisfied. NDPS Act, a special enactment incorporating stringent provisions for the control and punishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be read to ensure that there is no arbitrariness in the deprivation of liberty and the Courts must adhere to the mandate of fair procedure, which has a creative connotation. Bail jurisprudence countenances this dictum. Different meanings can be perceived for the term bail, but the exact connotation has to be deciphered and gathered from the context in which the word is used. The Courts while interpreting a statute, would be equally conscious that the Fundamental Rights guaranteed in the Constitution including Article 14 and Article 21, reinforce and protect the right to life and liberty. 8. In Mukesh Kishanpuria Vs. State of West Bental, (2010) 15 SCC 154, the Supreme Court pronounced that a detainee may apply for regular bail before the concerned Court and along with the said application may file an application for interim bail, pending disposal of the regular bail application. In this context, it was observed that the power to grant regular bail includes the power to grant interim bail, pending final disposal of the regular bail application. This power lies inherent with the Court particularly in view of Article 21 of the Constitution. 9. In Sunil Fulchand Shah Vs. Union of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leaves it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu. In this manner the Supreme Court balanced the two conflicting interests and recognized that in an extreme and deserving case, a detenu suffering preventive detention can be released on parole when compelling circumstances warrant and require temporary release. While at the first instance the bar under Section 12(6) would apply and the detenue must seek relief from the authorities. Albeit the High Court under Article 226 or the Supreme Court under the Articles 32/136/142 of the Constitution would have the power to check erroneous and arbitrary denial of parole by the administration in a given case. Such power is to be sparingly exercised and the court should leave it to the administration/jail authorities to prescribe conditions and terms. 10. The Supreme Court in Dadu @ Tulsidas vs. State of Maharashtra, (2000) 8 SCC 437, had interpreted Section 32A of the NDPS Act, as an issue and controversy had arisen whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. There are appropriate observations by a Division Bench of this Court in the order dated 19.12.2011 in WP(C) No.5128/2011 Rajesh Kumar vs. Govt. of NCT of Delhi and Anr.. This decision notices the legal effect and nuances of bail, parole and furlough. At the same time, in effect, we should accept that bail, suspension of sentence, parole or furlough involves release of the person from detention or custody. The Division Bench has observed that when an appeal of a convict is pending, it is always open for him to seek suspension of sentence or interim bail on the grounds provided for regular bail and the High Court can take those grounds into consideration. 12. In Som Mittal Vs. Government of Karnataka, (2008) 3 SCC 753, Markandey Katju, J., in his partly concurring as well as disagreeing judgment, has observed that the Courts do not have power to grant anticipatory bail under Section 438 of the Code in the State of Uttar Pradesh and this has resulted in filing of petitions under Section 482 of the Code in the High Court praying for stay of arrest. Thus, power to grant anticipatory bail is different and distinct from the power to grant regular bail under Section 439 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while determining the scope of Section 438, the Court should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned Counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision. 15. Alluding to Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly and Aother (1986) 3 SCC 156, the Supreme Court in Siddharam Satlingappa Mhetre (supra) observed that law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and just, and unless there is anything contrary to the statute, the Court must take cognizance of that fact and act accordingly. The opening preface of the judgment in Siddharam Satlingappa Mhetre (supra) records that the question raised involved issues of great public importance pertaining to personal liberty and society‟s interest. Interest of the society is of vital importance because every criminal offence is an offence against the State, yet an order granting or refusing bail must reflect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for, when the accused or convict is not entitled to or cannot be granted regular bail or suspension of sentence, or the application for grant of regular bail is pending consideration and is yet to be decided. Interim bail entailing temporary release can be granted under compelling circumstances and grounds, even when regular bail would not be justified. Intolerable grief and suffering in the given facts, may justify temporary release, even when regular bail is not warranted. Such situations are not difficult to recount, though making a catalogue would be an unnecessary exercise. 18. We have referred to the terms bail and interim bail and have set out the difference between the two, for this distinction is of significance and importance when we decide the question under reference. Thus, when the nomenclature bail and interim bail are not defined by statute or when such terms can connote and have different meanings, the bail and interim bail could have contrasting and dissimilar implications. 19. By its very nature, interim bail is a temporary liberation for a fixed period of time. It is a bail on pro-tem basis. [See Sunil Fulchand Shah (Supra) and Mukesh Kishan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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