Right to Bail

 – The Preamble of Universal Declaration of Human Rights stipulate:

“Whereas, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,…”

Briefly some of the main human rights incorporated in the Declaration are”

Right to life, liberty and security of person,

Right to be not be held in slavery or servitude,

Right against subjection to torture or to cruel, inhuman or degrading treatment or punishment,

Right of equality before law,

Right against arbitrary arrest, detention or exile,

Right to have equality to a fair and public hearing in civil or criminal matters,

Right to be presumed innocent until proved guilty according to law,

Right to be not held guilty under expost facto penal law,….

It is manifest that the above Declaration is solid political statement on human rights. The concept of human rights widely represents an attempt to protect the individual from oppression & injustice. The Declaration has exercised tremendous influence and has provided basis for several international conventions on human rights and inspired constitution of many nations. Indian Constitution too has been greatly influenced by the Declaration. It is to be noted that many of the rights incorporated in the Declaration are enshrined in the Preamble, Part III i.e. Fundamental Rights & Part IV i.e. Directive Principles of State Policy.

In all its manifestations & connotations human liberty is a priceless treasure for a human being. Honorable Supreme Court states that “liberty is founded on the bedrock of the constitutional right and accentuated further on the human rights principle. It is in fact grammar of life. It is most prized thing. The sanctity of liberty is the fulcrum of any civilized society. It is cardinal value on which the civilization rests. It cannot be allowed to be paralyzed and immobilized. Deprivation of liberty of person has enormous impact on his mind as well as body. A democratic body polity which is wedded to the rule of law, anxiously guards’ liberty.”

 

Right to life & personal liberty:

The personal liberty is sought to be ensured by Our Constitution by means of a twofold guarantee:

• Article 21, Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to the procedure established by law.
• Article 22, Protection against arbitrary arrest and detention: (a)No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. (b) No such person shall be denied the right to consult, and to be defended by, a legal practitioner of his choice. (c) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

In order to understand the development & interpretation of concept of Right to life & personal liberty in Indian Jurisprudence, it is important to refer the view taken by Honourable Supreme Court in the case of A.K. Gopalan v. State of Madras 1950. Here in this case, the majority view was that by adopting the expression “procedure established by law’, Article 21 of the Constitution had embodied the English concept of personal liberty in preference to that of American “Due Process”. But according to the minority view, the result of such interpretation was to throw the most important fundamental right to life and personal liberty at the mercy of legislative majorities. In AK Gopalan case it was held that there is no safeguard for personal liberty under our Constitution besides Article 21, such as natural law or common law. In the result, when personal liberty is taken away by a competent legislation, the person affected can have no remedy.

However, with the development of constitutional law over the years, the minority view taken in AK Gopalan case became the majority view in Maneka Gandhi v. Union of India 1978. By majority, the Apex Court in Maneka Gandhi case held:

• that Articles 21 & 19 were not mutually exclusive, they had to be read together and so the procedure affecting any of the rights had to be reasonable;
• that the procedure established by law in Article 21 must conform to Article 14 as well,
• that the word procedure in Article 21 in itself meant right and just and fair procedure and not arbitrary, fanciful or oppressive and any procedure which was not right, just and fair was no procedure at all, and failed to meet the standard of Article 21. The court stated that ‘the procedure’ in Article 21 must not be arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. Once the test of reasonableness is imported to determine the validity of law depriving a person of his liberty, it follows that such law shall be invalid it is violates the Principles of Natural Justice. The court held that the Right to life means something more than survival or animal existence and would include Right to life with human dignity.

Since the judicial exposition in Maneka Gandhi case, Article 21 has emerged as the Indian version of American concept of due process of law and has become source of many substantive rights and procedural safeguards to people. Maneka case, has positively impacted administration of criminal justice in the country. It has given new dimensions to criminal jurisprudence in the country. It evolved many substantive rights like right to speedy and fair trial, right to legal aid, right against solitary confinement, right against bar felters and handcuffing, right against custodial violence, right to hearing, right of appeal from judgment of conviction.

Administration of criminal justice ensues protecting the rights enshrined in the Constitution of the country. The prison conditions in the country are in bad shape, police brutality and custodial deaths are very common. People languish in jails for years for want of bail. The poor prisoners have no surety to pay for their bail bond, hence they stay in prisons for longer period than they are supposed to stay. The outcome of Maneka case has given more compassion to administration of justice in the country. It has given humanistic approach in criminal justice system. The prisons in the country are overcrowded with under trials. The under trials in most prisons comprise more than fifty percent of the prison population, in some prisons the percentage is even more than seventy percent. The most dreadful aspect of criminal justice system in the country is long incarceration of prisoners in jail pre trial. The pertinent question that crops up why prisoners languish in jails for so long, is there no law to help them. It is in this background it is important to understand the legal provisions as to bail.  

Meaning of bail and legal provisions in Cr.PC.:

Bail is usually referred to the release of a person charged with an offence, on his providing a security that will ensure his presence at the time and place designated and submit himself to the jurisdiction and judgment of the court. The provisions of bail isenumerated in Code of Criminal Procedure. Although the Code does not define bail, it categorizes offences into two categories bailable offences non-bailable offences. In case of bailable offences, the grant of bail becomes right of the accused and is just a matter of procedure.

Section 2(a) of Cr. PC. states bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being in force and non-bailable offence means any other offence.

Section 167 Procedure when investigation cannot be completed in twenty four hours.-………………Provided that,-

• the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding, –
• ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
• sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapet:]……….

It is crystal clear in the said section that if the accused who is arrested and is taken into judicial custody be released on statutory bail if the police fails to complete investigation and submits the charge sheet within ninety days in case of offences charged is punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; or within sixty days in case of any other offence.

The provisions as to bail and bailbonds are found in Chapter XXXIII of Cr. PC. corresponding sections 436 to 450.

Section 436 of the code deals with bail in case of bailable offences.

Section 436A Maximum period for which an under trial prisoner can be detained was inserted in the Code by amendment in 2005. It states that where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one half of the maximum period of imprisonment specified for that offence under that law, shall be released by the court on his personal bond with or without sureties.

Section 437 of the Code stipulate when bail may be taken in case of non-bailable offence.

The provision as to anticipatory bail lies in Section 438 of the Code; where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that the court may, after taking into consideration, inter alia, the following factors, namely –

• the nature and gravity of the accusation;
• the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
• the possibility of the applicant to flee from justice; and
• where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested’

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Section 439 of the Code gives special powers to High Court & Session Court regarding bail.

Section 440 of the Code stipulate about the amount of Bond and reduction thereof.-(1) 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.

• The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced.

The order for bail must be speaking order even if it is rejection. That the Competent Courts allowing bail either regular or anticipatory under the Code passes discretionary order as to value of surety required to execute bail bond from case to case basis. The Code does not mention the amount of security that is required to be executed by the accused to secure his release. It is the discretion of the courts to order the value of the bail bond to be executed. Ironically courts in India are not sensitive to the social & monetary status of the accused. Whenever any person arrested by police approaches the court to release him on bail, it is bounden duty of court to decide his bail application at the earliest by a reasoned order. But in most cases, the bail applications are disposed in mechanical manner not being sensitive to the right of the accused. The Courts in most cases demand high value of bail bonds to be executed to secure release as a result of which most prisoners are unable to furnish such high value bail bonds and languish in jails for years.

 

Judicial Exposition:

In State of Rajasthan v. Balchand 1977, speaking for the Bench, Justice V R Krishna Iyer said, “while the system of pecuniary bail has a tradition behind it, the time has come for rethinking on the subject. It may well be that in most cases not monetary suretyship but undertaking by relations of the petitioner or organization to which he belongs may be better and more socially relevant.”

As also pointed out in Moti Ram &Ors v. State of MP 1978, the Apex Court observed, “..in the other he is deprived of his liberty without trial and conviction and this leads to grave consequences, namely (1) though presumed innocent he is subjected to the psychological and physical deprivations of jail life; (2) he loses his job, if he has one and is deprived of an opportunity to work to support himself and his family with the result that burden of his detention falls heavily on the innocent members of the family, (3) he is prevented from contribution to the preparation of his defense; and (4) the public exchequer has to bear the cost of maintaining him in jail

 

In Abdul RehmanAntulayv. RS Nayak, the Apex Courtwhile holding that speedy trial at all stages is part of right under Article 21, it was held that if there is violation of right to speedy trial, instead of quashing the proceeding, a higher court can direct conclusion of proceedings in a fixed time.

In Prahlad Singh Bhati v. NCT Delhi 2001, the Apex Court thus opined:

“(a) While granting bail the court has to keep inmind not only the nature of the accusations, butthe severity of the punishment, if the accusation entails aconviction and the nature of evidence insupport of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should alsoweigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always beconsidered and it is only the element ofgenuineness that shall have to be considered in thematter of grant of bail, and in the event of therebeing some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

In Bhim Singh v. Union of India, the Apex Court observed that Central Government must take steps in consultation with the State Governments in fast tracking all types of criminal cases so that criminal justice is delivered timely & expeditiously. In the same case in a further order it was noticed that more than 50% of the prisoners in various jails are under trial prisoners. In spite of incorporation of Section 436A in Cr.PC. under trial prisoners continue to remain in prisons in violation of the mandate of the said section. Accordingly, this court directed jurisdictional Magistrate/Chief Judicial Magistrate/Session judge to hold one sitting in a week in each jail/prison for 2 months for effective implementation of Section 436A. It was noted that 67% of the prisoners in the jails were under trials prisoners.

In HussainaraKhatoon v. State of Bihar 1979, the Apex court said “It is an

essential ingredient of reasonable, fair and just procedure to a prisoner who is to    seek his liberation through the court’s process that he should have legal services available to him. The Court also held that detention in jail of the under trial prisoners for periods longer than the maximum term for which they would have been sentenced, if convicted, is totally unjustified and in violation of the fundamental right to personal liberty under Article 21.”

The Apex Court very recently in Hussain v. Union of India 2017 has issued following directives, “27. To sum up:

(i) The High Courts may issue directions to subordinate courts that –

(a) Bail applications be disposed of normally within one week;

(b) Magisterial trials, where accused are in custody, be normally concluded within six months and sessions trials where accused are in custody be normally concluded within two years;

(c) Efforts be made to dispose of all cases which are five years old by the end of the year;

(d)   As a supplement to Section 436A, but consistent with the spirit thereof, if an under trial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such under trial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;

(e) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports. (emphasis added)

(ii) The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where accused are in custody for more than five years are concluded at the earliest;

(iii) The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts; ..”

(iv) The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time;

(v) The High Courts may take such stringent measures as may be found necessary in the light of judgment of this Court in Ex. Captain Harish Uppal.”

Bail and not jail is the norm but reality seems opposite

A very terrible aspect of the system of criminal justice is long pre-trial incarceration of the accused persons. The poor prisoners have to stay in jail

awaiting trial because there is no one to post bail for them. It is big shame for the law which keeps people in jail for years on end without trial.

Any procedure which keeps large number of people behind bars without trial cann’t be said to be just and fair and is violative of Article 21.

Bail not jail is dominant principle of criminal law practiced by any mature democracy and in India often in its breach.  There are times when despite long pretrial jail, the case may end with an acquittal, which makes a mockery of justice. The need for arrest is to secure presence of the accused for investigation, prevent further crimes and escape, make the community safer if the accused is prone to violence and witness tampering, when these factors are absent bail should be automatic. Bail cannot be denied to teach a lesson to accused where offence is yet to be proved. Legally, bail is right. Liberty is guaranteed as a fundamental right. Under the right to life, liberty cannot be denied without adequate reasons. Except when justified in heinous crimes such as rape, murder, dacoity, etc.

Amendment is required in Cr. PC. to bring in some checks on indiscriminate and liberal arrests without warrant by police. Every offence classified as non-bailable does not justify an arrest. The object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and found guilty.

Major development of criminal justice would be reform the bail system.

In Moti Ram &Ors v. State of MP 1978, the Bench said, “An after word We leave it to Parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community, membership of stable organizations, should prevail for bail bonds to ensure that the bailee does not flee justice. The best guarantee of presence in court is the reach of the law, not the money tag. A parting thought. If the indigents are not to be betrayed by the law including bail law re-writing of may processual laws is in urgent desideratum; and the judiciary will do well to remember that the geo-legal frontiers of the Central Codes cannot be disfigured by cartographic dissection in the name of language of province.”

There is immediate need of bail reforms in the country. The practice of furnishing sureties of monetary value at the discretion of the courts must be done away with, and the accused must be released only on furnishing personal bonds. Bail applications must be disposed expeditiously and bail must be given as a right and should only be denied in heinous crimes like rape, murder, terrorist activities, dacoity, etc.

There is immediate need of Bail Act which clearly stipulates the procedure as to bail and makes it very simple for common man and aligns itself to Right to life and personal liberty rather be reformative and not punitive in nature. The courts while displaying bail applications must show compassion. If law is the means and justice is an end, so bail provisions in Cr.PC. must culminate into liberal approach to grant bail on personal bond/undertaking. The legislature is requested to add time factor in disposal of bail applications by courts in India. Timely disposal of bail applications in sine qua non for delivery of justice.

The norm of the day should be reformative approach rather than punitive.

Source: The Constitution of India: DD Basu

The Constitution of India: Bare Act

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