Introduction
™
When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonable ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accessed person under a warrant or without a warrant or those relating to the release of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this article is related with the provisions related with the release of a person on a bail.
In words of Krishna Iyer J. .. the subject of bail:-
" ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process."
Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.
Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty".
In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail.
Why Bail?
Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail, such that an analysis of these fundamental objects and change therein may reveal a change. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings.
Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:-
Article 9- No one shall be subjected to arbitrary arrest, detention or exile.
Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention
MEANING OF BAIL
Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority.
"Bail has been defined in the law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation."
According to Black's Law Dictionary, what is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.".
MEANING OF BAIL IN INDIA
According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: " Bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond.
Indian Courts however ,have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused Occupational therapist jobs is charged with homicide.
It must be further noted that a person accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the person accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
Provisions under the Code of Criminal Procedure, 1973
The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436 provides that when person not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of person s accused of bailable of fences cases of persons though not accused of any offense but against whom security proceedings have been initiated under Chapter VIII of the Code and other cases of arrest and detention which are not in respect of any bailable offense.
This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his right to be released on bail.
Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the physical presence of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody.
The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.
Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable.
In Maneka Gandhi v. Union of India [1978] 2 SCR 621
The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.
It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action.
J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases.
In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47
Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.
Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:
Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it.
Section 436A . Maximum period for which an under trial prisoner can be detained -
The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opportunity to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice system and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to suggest that the Legislature and the Government have accepted the existence of the faulty system and their inability to do anything about it. For this purpose section 436 A was inserted.
According to S. 436-A, a person who has undergone detention for a period extending upto half of the maximum period of imprisonment imposed for a particular offense, shall be released on her/his personal bond with or without sureties. The procedure provided is that the Court has to hear the Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a period longer than the maximum period of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death.
Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions regarding the implementation of the provision. There is every chance that a prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not provide any guidelines. Will the undertrial prisoner continue to serve term till the maximum period of the
Granting of Bail with conditions
Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides:
When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary: -
It will be noticed that: -
i)Where the offence is punishable with the imprisonment which may extend to seven years or more or
ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or
iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii).
CANCELLATION OF BAIL
According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody.
The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail.
In Public Prosecutor v. George Williams1951 Mad 1042
The Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail:
RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY
The right to bail is concomitant of the accusatorial system, which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and the right to speedy reduce to vanishing point the classification of offences into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court.
The fact that under trials formed 80 percent of Bihar's prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the under trials exceeded the period of imprisonment prescribed for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360
Justice Bhagwati found that these unfortunate under trials languished