tips: November 2012

What is bail?
Bails means the security taken from a person to appear on a fixed date before a Court. According to Concise Oxford Dictionary, bail is define as security for the appearance of prisoner on giving which the accused is released pending trail.

Bail has not been defined under the Code of Criminal Procedure, 1973.
Section 439(1) Cr.P.C. empowers High Court or Court of Session special powers regarding bail, which is read as
'A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.'

The powers of the High Court or Court of Session are considerably wider than the powers of the Magistrate in section 437 of the Cr.P.C.
Under section 439, no distinction has been made between the various kinds of offences for the purpose of granting of bail, and bail can be given even if the offence is most serious in character. The discretion to grant bail given to the High Court and the Court of Session under section 439 is not fettered in terms by the restrictions mentioned in section 437, but, on principle, these restriction should equally govern the exercise of the discretion by them under section 439.

Though there is no specific provision for appeal against the orders refusing to grant bail under section 436(1), the High Court or Court of Session can be moved under section 439(1) for bail. It may be noted that the lower court should be moved first in the matter of bail, because any expression of opinion by the superior court is likely to prejudice the trail in the lower court. Therefore, only in exceptional or special circumstances an application for bail may be directly made to the High Court. It is well established that no person accused of an offence can move the court for bail under section 439, Cr.P.C. unless he is in custody.

Disclaimer: All the contents are for general use and information. Consult your lawyer before acting.

What is judicial review?

Black's Law Dictionary defines judicial review as "a court's power to review the actions of other branches of government, especially the court's power to invalidate legislative and executive actions as being unconstitutional".

In India, this power is exercised by the Supreme Court and High Courts through writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus and also through the exercise of power under Articles 136 and 227 of the Constitution.

The Supreme Court, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Article 139 for enforcement of rights other than Fundamental Rights, while High Courts, may issue writs under Article 226.

Jurisdiction vested in the Supreme Court under Article 136 is a special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed, or made by any court or tribunal in the territory of India.

Jurisdiction vested in the High Court under Article 227 is a revisional jurisdiction.

What is Writ?

A Writ is essentially a legal, written document issued by a court ordering someone to take the specified action or prohibiting a specified action.
According to Britannica Online Encyclopedia, writs began to be used in judicial matters by the Norman Kings, who developed set formulas for them. The most important were original writs, for beginning actions; in many instances they served much the same purpose as the modern summons. They were issued to the defendant, requiring that he make amends or else appear in court.

Writ of Certiorari (sersh-oh-rar-ee).

A writ of Certiorari (Latin: "to be informed") is an order from an appellate court to a lower court to send the records for a specified case under review.
According to NOLO's Plain English Law Dictionary, in cases in which there is no appeal as a matter of right, certiorari is a writ (order) by the appeals court to a lower court to send all the documents in a case so that the appeals court can review the decision.

Certiorari may be defined as a judicial order operating in personam and made in the original legal proceedings, directed by the Supreme Court or High Court to any constitutional, statutory or non-statutory body or person, requiring the records of any action to be certified by the court and dealt with according to law.

Grounds for the issue of writ of Certiorari.

Defect of jurisdiction, for example the authority has no jurisdiction at all to take action or the authority has jurisdiction but it exceeds its permitted limits.
Non observance of the rules of Natural Justice. The question whether or not any rule of natural justice has been contravened in any particular case should be decided not under any preconceived notions, but in the light of the relevant statutory provisions, the constitution of the tribunal and circumstances of each case. The authority competent to decide must 'act in good faith and fairly listen to both sides', and 'deal with the question referred to it without bias, and give to each of the parties the opportunity of adequately presenting the case made'.
Errors of law apparent on the face of the record. This means error of law, which apparent from the record, and which does not require to be established by evidence.

Certiorari cannot be issued to disturb a finding of fact unless it is based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice.

The U.S. Supreme Court's Certiorari process is covered in Rules 10-16, Rules of the U.S. Supreme Court.

Writ of Prohibition.

Writ of prohibition may be defined as a judicial order issued by the Supreme Court or a High Court to any constitutional, statutory or non-statutory agency to prevent these agencies from continuing their proceedings in excess or abuse of their jurisdiction or in violation of the principles of natural justice or in contravention of the law.

Prohibition and Certiorari are seems to be common but there is one fundamental difference between the two. Prohibition is issued at a stage when the proceedings are in progress to forbid the authority from continuing the proceedings. Certiorari is issued at a stage when the proceedings have terminated and the authority has given a final decision to quash the decision.

Grounds for the issue of Prohibition.

Lack of jurisdiction or excess of jurisdiction.
Violation of principles of natural justice.
Infringement of fundamental rights.
Contravention of the law

Prohibition is a writ of right, an alternative remedy does not bar the issue of this writ. It can be issued even when the agency has reached a decision, to stop the authority from enforcing its decision.

Writ of Mandamus.

Mandamus is a judicial remedy issued in the form of an order from the Supreme Court or a High Court to any constitutional, statutory or a non-statutory agency to do or to forbear from doing some specific act which that agency is obliged to do or refrain from doing under the law and which is in the nature of a public duty or a statutory duty.

Mandamus can be issued on the same grounds on which certiorari and prohibition can be issued

Writ of Quo Warranto.

The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires 'by what authority' the person supports his or her claim. Quo warranto will also be issued when a person validly occupies the office but acquires a disqualification later on.

Writ of Habeas Corpus.

A writ of habeas corpus is a legal document ordering anyone who is officially holding the petitioner to bring him into court to determine whether the detention is unlawful. It may be defined as a judicial order issued by the Supreme Court or a High Court by which a person who is confined by any public or private agency may secure his release.
Evan a postcard by a pro bono publico is sufficient to galvanise the court into examining the legality of detention.

Conclusion

Under judicial review, the courts do not exercise their ordinary appellate powers. Judicial review is a protection and not an instrument for undue interference in executive functions. Any administrative action can only be set aside when it is arbitrary, irrational, unreasonable or perverse.

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