This article is written by Rangita Chowdhury, from Symbiosis Law School, Noida. The author talks about the basics of bail in the Indian legal system and suggestions for improving the same.
Black’s Dictionary defines bail as “Procuring 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”.
Bail is the conditional release of a person accused of a crime, for an amount, pledged for the appearance of the accused when the same is due in court. The person paying the money acts as the surety. Getting bail is one of the rights of the accused in a civil case while it is the discretion of the bail granting authority in a criminal case.
To know more about concept of bail bond and role of bail bond agents in brief, please refer to the video below:
Bail can be traced back as early as 399 BC when Plato first tried to create a bond to free Socrates. In medieval times, the circuit courts in Britain created a system of bail. The concept of modern bail chiefly originated from all the medieval laws governing it.
Kautilya’s Arthashastra also mentioned that avoiding pre-trial detention was ideal therefore the concept of bail was somehow prevalent in ancient India too. During the 17th century that was the Mughal period, bail was practised in the form of ‘Muchalaka’ and ‘Zamanat’.
Currently, bail is governed by the Code of Criminal Procedure, 1973 (hereafter referred to as the ‘Act’). Bail is not explicitly defined in the Act but the terms bailable offence and non-bailable offences are defined under Section 2(a). Section 436–450 governs the provisions relating to bail under the Act.
Types of bail in India
There are three types of bail in India-
When a person commits a cognizable non-bailable offence (offences which are so grave that a police officer can arrest the accused without a warrant or start the investigation without the permission of a court), the police can take him under custody and after the custody period expires he must be sent to jail. Section 437 and 439 of the Cr.P.C gives the accused the right to be released from such custody. So, a regular bail is basically the release of an accused from custody to ensure his presence at the trial.
This bail is granted as a temporary means and granted for a short period of time, either during the time of pendency of an application or when the application of anticipatory or regular bail is pending before the court. Interim bail is always conditional and can be extended, but if it expires before the accused has been granted an anticipatory bail or regular bail and he fails to pay the amount required for continuing the bail, then he loses his right of freedom and will be taken under custody.
Anticipatory bail is self-defining. It is a type of bail which is given to someone who is in anticipation of getting arrested for a non-bailable offence by the police. This is a very essential bail in recent times because business rivals and other influential people often try to frame their opponents in false cases. This is an advanced bail mentioned under Section 438 of the Act. A person who has been granted an anticipatory bail cannot be arrested by the police.
Conditions under which bail can be granted in India
CHAPTER XXXIII (S.436-450) of the Code of Criminal procedure deals with bails and bonds. There are certain conditions under which bail can be granted and we shall discuss the as follows:
Conditions governing bail in a bailable offence
Section 436(1) of Cr.P.C. lays down the conditions under which bail can be granted for bailable offences committed under the Indian Penal Code (1862). Whenever a person is arrested or detained by police for any non-bailable offence is produced before the court and he is prepared to give bail, he may be released on bail.
In this case, bail can either be granted by the police officer who has made the arrest or by the Court before which the person has been produced. Here bail will ordinarily be granted against furnishing of surety by the arrested person. However, if the arresting officer or the court is satisfied that the person is indignant and cannot furnish surety, he may be discharged on bail on the execution of a bond without sureties for his appearance.
Whether a person is indignant or not is also explained under this section. If within a period of one week of arrest, the person fails to give bail, he will be considered as an indignant person and will be eligible to be discharged on the execution of a bond without sureties.
At the time of granting bail to any person, the bail granting authority must be satisfied that:
- the accused appears to be innocent, i.e. he has most probably not committed the offence.
- that further enquiry for the offence is required to be conducted to find out whether he has committed the offence.
- the offence is not a major one, i.e. it is not an offence punishable with death, life imprisonment or imprisonment up to 10 years.
Sub-section (2) of this section lays down the conditions under which bail may be refused even if the offence is of bailable nature. If a person fails to comply with the conditions of appearance as laid down in the bail-bond, he may, in any subsequent occasion in the same case, if arrested or brought before the court, be refused bail.
In India, court cases are long-drawn and may continue for years. For various reasons, the trying court may take a long time to give its verdict. Section 436A was inserted in CrPC to ensure that an accused person is not detained for an inordinate length of time. Any person, if accused of any offence, other than an offence where the prescribed punishment is death, will be released in bail-bond, during the period of investigation, if he has already been detained for more than half the length of maximum punishment prescribed for that offence. However, the section also gives the court the discretion to extend the period of imprisonment beyond this period, if so satisfied, but in no circumstances, up to the maximum length of punishment prescribed for the offence.
Conditions governing bail in a non-bailable offence
Right to liberty as enshrined in the Constitution– these two principles are required to be analyzed in conjugation, in deciding whether an accused can be granted bail in respect of a non-bailable offence. The Court has to strike a balance between the two. The Hon’ble Supreme Court in the matter of Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) has observed that “Liberty is to be secured through a process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.”
Section 437 of the Code of Criminal Procedure,1973 states that bail can also be granted for committing non-bailable offences. However, here the discretion is that of the Court and the accused cannot claim it as a matter of right. Under this section, if a person is arrested without a warrant and produced before a court, any court other than the High Court or the Court of Sessions may grant him bail. However, the Court may not grant bail if it has sufficient grounds to believe that the person is guilty of an offence punishable with death or life imprisonment. The Court may also refuse bail if the offence is cognizable and the person has been previously convicted of an offence punishable with death or imprisonment for seven years or more or convicted in two or more than two occasions against an offence punishable with imprisonment for three or more years.
Further, the Court may also grant bail if the accused is a woman or a child, evidence of the crime is not strong enough and further enquiry is warranted, FIR has not been lodged promptly and the accused is seriously indisposed or infirm.
The mere reason that the examination of the accused needs the witness, will not be sufficient cause for refusing bail. At the same time for offences punishable with death or imprisonment for seven years or more, the Public Prosecutor will be given an opportunity of hearing and opposing bail, before the same is granted.
If the accused is suspected to have committed, abated, conspired or attempted to commit a crime punishable with imprisonment with seven or more years, he shall be released on bail on the imposition of the following conditions:
- attendance as laid down in the bail bond;
- The undertaking of not committing any similar offence; and
- The undertaking of not making any direct or indirect inducement, threat or promise to any person acquainted with the facts of the case.
Conditions governing bail in anticipation of arrest:
Section 438 of the CrPC lays down the procedures for getting bail in anticipation of arrest for a non-bailable offence. The provision was incorporated as per the recommendation of the report of the 41st Law Commission. There should be an element of apprehension, i.e. the person seeking bail feels that he will be framed or arrested in a false case or someone having enmity with him will try to get him arrested on the pretext on a fabricated charge. The applicant has to present before the Court certain special facts or circumstances which makes him believe would result in his arrest. This is however left to the satisfaction of the court, whether such facts would be considered good enough for granting bail.
Anticipatory bail can be granted only a High Court or a Court of Sessions.
Other conditions affecting grant of anticipatory bail
- The person concerned will have to make himself available for interrogation by the police.
- He shall not make any direct or indirect inducement, threat or promise to any person acquainted with the facts of the case.
- He will not leave the country without the prior permission of the court.
Bail reforms in India – a critical analysis
- Detention of undertrials should be an exception and not a rule in law. The Indian Legal system relies on the presumption of innocence unless otherwise proven guilty. In practice, this is not really true. The nature of the offence often weighs heavily on the mind of the judge or magistrate who grants or refuses bail. If the offence is grave enough, bail is often not granted and the cardinal principle that the offence is yet to be proved is often ignored. Thus, the importance of FIR is paramount in the Indian Legal system. I, therefore, feel that this excessive reliance on the gravity of the offence as stated in the FIR has to be carefully examined. Grant of bail should not depend on the sections in which a person is charged, i.e. on the nature and gravity of the offence (which is yet to be proved), but it should be evidence-based and the careful understanding of the judge as to the probability of the accused committing the offence. If required thorough, but quick enquiry may be conducted to find out whether bail may be granted or not. Another important area, already recommended by the Law Commission is revamping the system of the arrest. The system should be made more rational, fair and transparent. For this, Section 41 of Cr.P.C. should be amended. This would go a long way in preventing arbitrary arrests and result in fewer people seeking bail before the police and the court. Most importantly, it would help the bail granting authority take a rational decision based on the merit of the case.
- There are various statutes and sections in-laws which lay emphasis on the presumption of guilt which is contrary to principles of natural justice. For example, It is very hard to get bail for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, The Scheduled Caste and Scheduled Tribes (Prevention of atrocities Act), 1989, as these laws lay emphasis on the presumption of guilt. Similarly, Section 375 (Rape) and Section 498A (Cruelty against a married woman) of IPC also lay presumption on guilt. These sections were drafted to prevent people from committing atrocities against women and the traditionally oppressed classes, which is no doubt necessary to prevent crimes against them, but at the same time, the sections bypass the principle of innocence prior to being proved guilty. Thus, all statutes and laws should emphasize the principle of ‘innocence unless proved guilty and should be amended to the extent required.
One classic example in this regard is the judgement delivered by a Supreme Court Bench in the case State of Kerala v. Rajesh (2020). Here the decision of Kerala High Court, granting bail to the accused under the Narcotics, Drugs & Psychotropic Substances Act, 1985 was turned down, upholding the appeal of the State Government, as the apex court thought that Section 37 of the Act, which puts the onus of proving innocence on the accused, was overlooked by the High Court. In the larger context, we have to admit that this section goes against the principles of liberty and natural justice of our constitution and the Supreme Court too, preferred not to examine it.
- The bail system relies on sureties and bonds which often act as a deterrent for the poor. Repeated bail petitions get rejected as the poor do not have the monetary means. Thus, there is a common notion that bail is not for the poor. Therefore granting of bail should not be only on monetary considerations. Other means should be devised.
- Section 436A of the Cr.P.C. perhaps needs further reforms. In the Indian system of jurisprudence, under-trial prisoners suffer a lot. The prosecution, which is burdened with cases, often make inordinate delay in completing enquiry and filing charge sheets. This can result in the accused languishing in custody for years. This can continue up to half the period of maximum punishment prescribed for the offence and even up to the maximum length of punishment prescribed for the offence. This goes against the principle of life and liberty guaranteed by the Constitution and even worse, valuable years of his life get wasted if the accused is found not to be guilty of the offence at the end of the trial. This is a gross crime against humanity which can never be rectified.
- Finally, we come to the most important issue of speedy justice. If justice is fast and verdict comes quickly, then many poor under-trial prisoners, who often do not get bail for economic reasons or reasons of caste, creed or backwardness, are spared from languishing behind the bars. Thus, reforms in the Indian Judiciary should primarily focus on this issue and it will naturally address the problems of bail in India, along with many other problems.
Bail is an important check and balance to ensure that no innocent person is punished until proven guilty. But the complicated system of bail in the country’s criminal law system often fails to appreciate it. Grant or refusal of bail depends on factors that are remotely connected with the merit of the case. The recommendations of the Law Commission in its 268th report on bail reforms are important and they should be implemented so that a fair and transparent system of bail evolves in our criminal law system. This would go a long way in upholding the rights of life and liberty enshrined in the Indian Constitution.
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