Courtesy: Mayank Pratap Singh
The Prevention of Corruption Act, 1988 was enacted to combat corruption in public life with a firm hand. The Act, as amended by the Prevention of Corruption (Amendment) Act, 2018, criminalises various acts including the demand and acceptance of illegal gratification by a public servant, criminal misconduct involving disproportionate assets, and the giving of undue advantage to public servants by private parties, among others. Offences under Chapter III of the Act, which include Sections 7, 7A, 8, 9, 10, 11, 12, 13, 14, and 15, are cognizable and non-bailable. Cases under the Act are tried exclusively by Special Judges designated under Section 3 of the Act. The Allahabad High Court is vested with jurisdiction to grant bail to persons accused of offences under the Act, and a substantial body of precedent has developed on the principles and factors that govern the exercise of that jurisdiction.
Section 20 of the P.C. Act further creates a statutory presumption against the accused. Where it is proved in a trial under Section 7 or Section 11 that a public servant accepted or attempted to obtain an undue advantage, the court shall presume, unless the contrary is proved, that the said undue advantage was accepted as a motive or reward for improper performance of a public duty. This presumption operates at the stage of trial and is a relevant consideration at the bail stage insofar as it bears upon the prima facie case against the accused.
Before which court should a bail application be filed?
An accused arrested in connection with an offence under the Prevention of Corruption Act, 1988 may apply for bail before the Special Judge designated under Section 3 of the Act. Where the Special Judge refuses bail, the accused is entitled to approach the Allahabad High Court by filing a Bail Application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (which corresponds to Section 439 of the Code of Criminal Procedure, 1973). The High Court exercises concurrent jurisdiction with the Sessions Court in matters of bail, and an application may be preferred before the High Court even without a prior application having been made before the Special Judge, though as a matter of practice, it is common practice to first exhaust the remedy before the Special Judge.
What factors does the Allahabad High Court consider while deciding a bail application under the Prevention of Corruption Act?
The Allahabad High Court has identified the following as the principal factors that are weighed while considering a bail application:
- Whether a prima facie case has been made out against the accused on the basis of the material collected during investigation.
- The nature and gravity of the offence alleged, including whether the case involves a trap, disproportionate assets, or criminal misconduct of a more complex nature.
- The degree of involvement attributed to the accused and the role alleged against him in the commission of the offence.
- Whether the demand of illegal gratification, if alleged, is prima facie substantiated by credible material.
- The criminal antecedents of the accused, if any.
- Whether the pre-trap proceedings, including the shadow witness’s account and verification, are based on cogent and reliable material.
- The bail granted, if any, to co-accused persons in the same case, since parity is a recognised consideration in bail jurisprudence.
- The likelihood of the accused tampering with evidence or influencing witnesses, and whether such apprehension is supported by material.
- The period of incarceration already undergone by the accused, since prolonged custody without trial constitutes an infringement of the right to personal liberty guaranteed under Article 21 of the Constitution of India.
- The possibility of the trial being completed in the near future, keeping in mind the pendency of the case and the number of witnesses to be examined.
- The societal impact of the offence and the broader public interest in the matter.
It is well settled that no single factor is determinative and that each bail application must be considered on its own facts and circumstances. The Allahabad High Court does not follow a one-size-fits-all approach, and the cumulative weight of the factors enumerated above, read against the specific material available in the case, governs the judicial verdict.
What is the governing principle on bail in serious criminal matters?
The fundamental principle that bail is the rule and jail is the exception governs the consideration of all bail applications, including those arising under the Prevention of Corruption Act, 1988. The Supreme Court, in Arvind Kejriwal v. Central Bureau of Investigation, reiterated that personal liberty is sacrosanct and that courts at all levels must remain alert to the need to protect that liberty. The Court observed that the process leading to and including trial must not be permitted to become the punishment itself. An accused person is presumed innocent until proven guilty by a competent court following due process, and this presumption of innocence is the constitutional foundation upon which bail jurisprudence rests.
The Allahabad High Court has consistently applied these principles in Prevention of Corruption Act matters, and has granted bail in cases where the period of incarceration is disproportionate to the likely punishment, where the trial is unlikely to conclude in the foreseeable future, where the role attributed to the accused is peripheral, or where the material collected during investigation does not disclose a strong prima facie case. At the same time, the Court has declined bail where the allegations are grave, the accused holds a position of significant public trust, or where there is cogent material to suggest a risk of tampering with evidence or influencing witnesses.
What avenues are available to a person aggrieved by the refusal of bail?
If the High Court also declines bail, the accused is not without remedy. The accused may approach the Supreme Court by way of a Special Leave Petition under Article 136 of the Constitution of India, challenging the order refusing bail.
Alternatively, since the progress is continuously made in the case, if new grounds emerge, a second or subsequent bail application may be preferred before the Hon’ble Allahabad High Court pressing such new grounds. Moreover, a second bail application can also be preferred if the pre-trial incarceration continues for a long period of time albeit without much progress in the trial.
Relevant changes in circumstances may include completion of the chargesheet and filing of the same before the court, a significant period of additional incarceration having elapsed, developments in the investigation affecting the strength of the case against the accused, or the grant of bail to co-accused persons in the same matter.
It is also open to the accused to apply for bail on the ground that the sanction for prosecution granted under Section 19 of the Act is defective or has been granted by an authority not competent to do so. The Allahabad High Court has held that the absence of a valid sanction vitiates the proceedings and may, depending on the stage of the case, be agitated as a ground in the bail application before the court. The law regarding sanction is settled that the accused cannot be summoned to face trial without a valid sanction.