Application for Bail

1. The accused, Dato Balwant Singh, is an 81 years-old old man with various sicknesses. Due to his old age and the sicknesses he suffered, he is very fragile and weak. The medical condition of the accused should bring this case within the proviso to s 388(1) of CPC, whereby: Saikia J in Khagendra Nath Bayan and Anor v State of Assam [1982] Cri LJ 2109 at 2112 stated that The proviso to s 437(1) (our section 388(1) speaks of any sick or infirm person. Infirm here, according to the Websters New Twentieth Century Dictionary, infirm means weak, not strong, not firm or sound physically; feeble. Infirmity is naturally concomitant with old age. When the Learned Magistrate used the expression too old, it could not, therefore, be said that the case did not fall under the proviso. The sickness envisaged is such as the result in infirmity of the person. The accused here has reached the age of 81, obviously fall in the category of infirm person. CLEMENT SKINNER JC mentioned in Leow Nyok Chin v Public Prosecutor [1999] 1 MLJ 437 : The accused is 58 years old, has a previous good record and is of good standing in society. There is no suggestion that if granted bail the accused will tamper with evidence or intimidate prosecution witnesses. Accordingly, these matters which form grounds (a), (b), (f) and (h) of her application weigh in her favour. One of the factors that should be taken into consideration when granting or refusing bail is whether such accused/ applicant would repeat the offence or abscond or tamper with the prosecution witnesses. In applying it to this case, there is no suggestion that Dato Balwant Singh who is already 81 years old and weak would repeat the offence or abscond or tamper with the prosecution witnesses. Therefore, the accused will not interfere with the administration of justice.
Submission: Hence, the court should look at the age and the physical condition of the accused, and take into consideration that the accused will not be harm to the administration of justice, subsequently allow the application of bail for the accused.

2. Besides, Dato Balwant Singh is afflicted by various kinds of sicknesses. This can be proven by the medical report obtained from a specialist in paediatrics who has served in the government as a consultant physician in several states in the country. The medical report of the accused revealed that he was exposed to various complications arising from his current medical disabilities. His various medical ailments weighed with his advanced age rendered him weak, feeble and physically unsound. In the circumstances, the accused was a sick and infirm person within the meaning of the proviso to s388 (1) CPC.

Section 388 of CPC: ... Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. In support of its argument the defence tendered a medical report on the accused. The material parts of the report read as follows: This is to state that I have been looking after Dato Balwant Singhs health since 1967. Though my speciality is paediatrics, I have served in the government as a consultant physician in several states in the country. I was consultant physician in Terengganu for about 4 months, state physician in Negeri Sembilan for one year and covered the duties of the state physician on and off in Kelantan and elsewhere. Dato Balwant Singh is over 80 years old. He is very fragile. He is afflicted by several serious diseases: 1. Atherosclerotic Heart Disease 2. High Blood Pressure 3. Severe and brittle Diabetes Mellitus 4. Diabetic neuropathy 5. Severe back bone disease 6. Piles Coming back to the current case, Dato Balwant Singhs health condition fits in the meaning of sick within the meaning of section 388(1) of the Criminal Procedure Code. He was therefore not affected by the restriction placed on the section and was entitled to be enlarged on bail at the discretion of court. State of Kerala v. M K Pyloth [1973] Cri LJ 869, it is stated that the seriousness of the offence cannot be the dominant consideration. It is submitted that the health condition of the accused shall also be considered on the issue of bail application. The medical report tendered by the defence shows that the accused who is aged 81 is in very poor health and needs to be monitored regularly. Though medical facilities are available in the prison it may be preferable for the accused to be in a place where he can have access to immediate medical treatment. It cannot be said that the accused would repeat the offence if released on bail.

Submission: The accusers bail application shall be granted due to the poor health conditions of the accused.

3. Furthermore, the accused, Dato Balwant Singh is an advocate and solicitor. It is generally and reasonably known to the people that an advocate and solicitor is a person of good character and reputation. He has a good social standing and status in the society. Through his years as advocate and solicitor, he has contributed much in administering justice and helped the judiciary and the society in his own ways. This should be taken into consideration that he will not interfere in the administration of justice. Major J in Rv Stewart [1946] 3 W.W.R. 160 has taken the good character of the accused into consideration when granting the bail by saying that:

The testimony shows the accused to be a farmer and a man of good reputation. He has carried on substantial farming operations and possesses, in addition to his farm, cattle and machinery of no small proportion. CLEMENT SKINNER JC mentioned in Leow Nyok Chin v Public Prosecutor [1999] 1 MLJ 437 Supra: First, the facts and personal circumstances relevant to her application for bail. The accused is 58 years old. She is accused of murdering her husband and voluntarily surrendering herself to the police on 23 July 1998. She is an ex civil servant, having served from 1 January 1963 until her retirement on 1 March 1994 as a school teacher. She married the deceased in 1966 and from the marriage there are four children. Her personal and married life has not been without its trials and tribulations. It is submitted on her behalf that she has had to suffer the ways of a philandering husband and bear the pain, anxiety and humiliation that brings. She has contributed financially to her husband's business and the childrens' education as a result of which his business expanded and the children received good education, including going overseas for the same. In a nutshell, the accused enjoys good standing in society and is a person of good character. GUNN CHIT TUAN J said in Che Su Binti Daud v Public Prosecutor [1978] 2 MLJ 162: I also enquired from the learned Deputy about the other matters which ought to be considered in deciding whether bail should be granted or refused. It was understandable that the learned Deputy was unable to say whether the accused/applicant would abscond when released on bail. But, in my opinion, I did not think that there would be any danger of this offence being repeated or that the accused would tamper with the prosecution's evidence if she was released. . Her trial is not to be heard yet for another three months and there again it was conceded by the prosecution that there was no guarantee that the case would definitely be proceeded with during June this year. I agreed with learned counsel for the accused/applicant that if she was released she would have the opportunity to prepare her defence. Having weighed all the above considerations and having given them their proper weight, I was of the view that the accused/applicant in this case should be released on bail. Gurcharan Singh and Others v. State AIR [1978] SC 179 ,Goswami J said at p. 187: We may repeat the two paramount considerations, viz likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice. It is essential that due and proper weight should be bestowed on these two factors apart from others. In applying it to the current case, the accuseds character, means and standing should be taken into consideration by the court as the accused is an experienced senior advocate and solicitor and has previous good record. He has worked and dedicated himself as an advocate and solicitor which earned him the title Dato and he is definitely a respectable figure in the society.

Through his years as advocate and solicitors, he has contributed much in administering justice and helped the judiciary and the society in his own ways.
Submission: The applicant submits that the bail should be granted as the accused is a person of good character.

4. The mere fact that the accused had been charged was insufficient to show the existence of reasonable grounds for believing that the accused was guilty of the offence under s388(1) CPC. The wording in the provision of S388(1) he shall not be released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life shall not be applied on the accused. S 388(1) of Criminal Procedure Code (CPC) stated that; When any person accused of any non-bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a Court, he may be released on bail by the officer in charge of the police district or by that Court, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life : Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. The general principle of this section is that bail may be granted at the discretion of the court in non-bailable offences; a bail shall not be granted if there appear reasonable grounds for believing that the accused is guilty of such offences. On the other hand, if there are no reasonable grounds for believing that the accused is guilty of such offences, bail can be granted at the discretion of the court. Merely charge the accused doesn't amount to reasonable ground that he has been guilty of an offence. State v Velappan Kochunny1 the court held that when an application for bail is made in the initial stage of the case, it is only require to produce prima facie evidence in support the charge, but the Magistrate cannot expect at that stage to have evidence establishing the guilt of the accused beyond reasonable doubt. Emperor v Muhammad Pannah2, the court commented that S388(1) only require for reasonable grounds not evidence. Niranjan Singh & Anor v Prabhakar Rajaram Kharote & Ors3 the court held that the detailed examination of the evidence should be avoided on bail application, it is because no party should have the impression that the case has been prejudiced.

1 2

[1952] Cri LJ 1087 36 Cri LJ 811 3 AIR [1980] SC 785

 By referring these 3 cases as mentioned, three cases merely require a reasonable ground to establish guilt on the initial stage of the case (application of bail). There was also a press statement made by the police which was produced in a newspaper report appearing in the Malay Mail stating that the accused was probably justified in firing the shot, and this must be read with the facts adduced by the prosecution to ascertain the existence of reasonable grounds. The finding of justification in this instance would have the clear effect of negating the existence of reasonable grounds as provided under the proviso of section 388(1) of the Criminal Procedure Code. The press statement must be accepted at this stage in the absence of any contradiction, verification or explanation thereto. This is supported by the fact that the accused fired a warning shot. The press statement thus creates a doubt in the prosecution statement that the accused did not act in self-defence. It is an established principle of criminal law that any doubt that may arise must be resolved in favour of the accused. Hence, the prosecution failed to show the existence of reasonable grounds under s. 388(1) CPC. Moreover, the police also did not consider it is necessary to arrest the accused after the incident.

Submission: the failure of the prosecution to show that there are reasonable grounds for believing that the accused committed the offence that he has charged with, as the general principle of S388(1) of CPC, if there are no reasonable grounds for believing that the accused is guilty of such offences, bail can be granted at the discretion of the court.