Bail - A Lifeline For The Accused
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
BAIL: A LIFELINE FOR THE ACCUSED
Tushar Goenka, Indian Institute of Management, Rohtak
CHAPTER 1
DESIGN OF THE STUDY
1.1 ABSTRACT
"Bail means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond. ”1 Bail, in legal terms refers to the process of securing the release of an individual who is awaiting trial. Bail follows the idea that people are considered innocent until proven guilty. It allows individuals to stay free while waiting for their trial instead of being automatically kept in custody. “The Supreme Court views bail as a blend of two essential human principles: the individual's right to freedom and the consideration of public welfare. However, a crucial condition is that the accused must be present for the trial proceedings”. 2 The current bail system in India is criticized as harsh and inhumane.
The practice of placing individuals in police custody is considered outdated and extremely distressing. Minorities, in particular, often face the negative effects of these questionable legal practices. “Bail is the rule and the jail is exception”. 3 People are often arrested on various charges. The key question for the Indian criminal justice system is whether bail truly serves as a crucial support for those accused of crimes. While everyone is considered innocent until proven guilty, the burden of proving guilt falls on the accuser, not the one being accused. This means the prosecution must present strong evidence to prove the accused's guilt. The fundamental principle is that every person has the right to freedom unless they are proven to have committed a specific offense in a court of law.
1 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 2(a), No. 46, Acts of Parliament, 2023 (India).
2 Kamlapati v. State of West Bengal, AIR 1979 SC 777.
3 State of Rajasthan vs. Balchand, (1977) 4 SCC 308.
1.2 OBJECTIVES OF THE STUDY
1) To examine the criminal justice system, focusing on the legal aspects of bail.
2) To scrutinize the bail patterns and procedural aspects of bail within the legal framework
in India.
3) To investigate the potential of bail as a lifeline for individuals accused.
4) To evaluate the Functionality of the Bail System in India.
1.3 SIGNIFICANCE OF THE STUDY
This detailed study on India's bail system is very important as it explains the complex legal procedures involved in releasing accused individuals. It carefully looks at different types of offences, the various forms of bail, and who has the authority to make decisions about bail. This study is like a helpful guide for understanding how the legal system works in India. It also strongly emphasizes that getting bail is a basic right meant to protect people's lives and freedom, as stated in Article 21 of the constitution. The study talks a lot about how social and economic factors should be considered when deciding on bail and points out problems in the current system, suggesting that big changes are needed.
By discussing the inequalities in the current bail system, especially for people who don't have a lot of money, the study adds to the wider conversation about making sure everyone has the same access to fairness in the legal system. The findings, especially those talking about too many people in jails and the difficulties faced by poorer individuals, give useful information for people who make laws, lawyers, and researchers. This study is not just a guide to the legal details of bail in India; it's also a strong supporter of making the legal system fairer and more respectful of everyone's rights.
CHAPTER 2
BAIL: AN OVERVIEW
2.1 INTRODUCTION
“The order of a competent court or magistrate that a person accused of crime be discharged from actual custody upon the taking of bail”. 4 This is achieved by providing a security deposit to guarantee that the person will appear before the legal authorities when required. The court, having jurisdiction over the individual, determines the monetary value of this security, commonly known as bail or a bail bond. The security can take various forms, including cash, property titles, or bonds from financially capable individuals, professional bondsmen, or bonding companies. “Bail is allowed to prevent confinement of innocent persons which would otherwise result into a pre-trial punishment and to enable an accused person to prepare his defense to the charges against him, which is the common law principle, presumption of innocence.
”5 Bail is a mechanism through which a convicted individual can strategically leverage their freedom to avoid imprisonment. Essentially, the term "bail" signifies the release of a prisoner awaiting delivery. It involves a conditional release of liberty granted to an accused person who assures their availability during the initial stages or for legal proceedings.
2.2 CLASSIFICATION OF OFFENCES
I.
Bailable Offences – “It 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.”6 Once the accused has provided bail, no police officer or other authority has the authority to refuse the bail.” An individual accused of bailable offenses, who is arrested or detained by a police officer without a warrant, and is in police custody or presented before the court at any point in the legal process, has the entitlement to be granted bail.”7 II.
Non-Bailable Offences – “Any offences other than bailable offenses are known
as non-bailable offences.”8 In contrast to bailable offenses, nonbailable offenses are serious in nature. It is important to note that the grant of bail for a nonbailable offense depends on the Court's judicial discretion.”
2.3 BAIL IN NON-BAILABLE OFFENCES
“When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail”. 9 The court has the authority to exercise discretion in approving bail for non-bailable offences. In situations involving female or juvenile accused individuals, bail may be sanctioned even for non-bailable offenses. Additionally, the court may grant bail in non-bailable cases if there is insufficient evidence. Furthermore, delays in filing a First Information Report (FIR) by the complainant may be grounds for granting bail. In cases where the accused is seriously ill, bail can also be allowed for non-bailable offences.
“Section 480(1) of The Bharatiya Nagarik Suraksha Sanhita, 2023 applies only to Magistrates, and if an accused faces charges punishable by death or life imprisonment, the Magistrate has no choice but to deny bail. The nature and gravity of the offenses must be considered. The court emphasized two critical considerations for granting bail: the likelihood of the accused fleeing justice and tampering with evidence. ”10
2.4 TYPES OF BAIL
1. Regular bail: A person who is in the custody of the police can be given regular bail
Under Sections 480 and 483 of the Bharatiya Nagarik Suraksha Sanhita 2023. “When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of session, he may be released on bail.”11 “The High Court or Court of Sessions has the authority to grant bail to a person accused
8 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 2(c), No. 46, Acts of Parliament, 2023 (India).
9 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 480(1), No. 46, Acts of Parliament, 2023 (India).
10 Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118.
11 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 480, No. 46, Acts of Parliament, 2023 (India).
of an offense while awaiting trial or appeal.”12
2. Interim Bail - Interim bail is a temporary release ordered by the court during the
pendency of a case or until the court reviews an anticipatory or regular bail petition. The grant of interim bail is contingent upon the specific circumstances of the case.
3. Statutory Bail – “Magistrate has the authority to permit the detention of an accused
person, aside from police custody, for a maximum of 15 days. However, this period may extend to 90 days if the inquiry is linked to an offense punishable by death, life imprisonment, or imprisonment exceeding ten years. In cases unrelated to these severe offenses, the detention period is limited to 60 days. The accused is entitled to bail if the inquiry surpasses the specified durations. Nevertheless, the court retains the discretion to impose restrictions on bail as it deems necessary.”13
4. Anticipatory Bail - If an individual reasonably believes they might face arrest for
suspicion of committing a non-bailable offence, they can petition the High Court or the Court of Session. “An individual has the right to seek pre-arrest bail in anticipation of being accused of committing a non-bailable offense. Anticipatory bail provides protection against arrest before the person is taken into custody. The anticipatory bail is usually granted for a specific duration, and if the person anticipates arrest during that period, they can approach the court for protection.”14 “The grant of anticipatory bail is not time-bound. The court has the discretionary authority to determine, on a case-tocase basis, and can set a specific timeframe when granting anticipatory bail. Typically, the duration of an anticipatory bail order does not conclude when the court summons the accused or when charges are framed. Instead, it may extend until the completion of the trial.”15
12 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 483, No. 46, Acts of Parliament, 2023 (India).
13 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 187(2), No. 46, Acts of Parliament, 2023 (India).
14 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 482, No. 46, Acts of Parliament, 2023 (India).
15 Sushila Aggarwal v. State of NCT of Delhi, (2020) 5 SCC 1.
CHAPTER 3
BAIL: A MATTER OF RIGHT
3.1 WHO CAN GRANT A BAIL?
1. Police - If someone is arrested without a magistrate's order or a warrant, according to
Section 35 of the Bharatiya Nagarik Suraksha Sanhita, they should be released on bail. If the offense is bailable, the person has the right to bail. In situations where the police arrest someone for a non-cognizable offense due to refusal to provide their correct name or address, that person may be released on bail by signing a bond, with or without additional people vouching for them, before a magistrate if required.
2. Executive Magistrate – “Both judicial and executive magistrates have the authority to
arrest or instruct the arrest of an individual who has committed an offense in their presence.”16 They also possess the discretion to release the person on bail. “An executive magistrate can provide bail to an individual accused of a bailable offense, particularly when arrested with a warrant and if the offense was committed in a district other than where the arrest is made.”17
3. Sessions Judge or High Court - Section 483 of the Bharatiya Nagarik Suraksha
Sanhita grants the Sessions Judge the authority to consider a bail application from an accused individual under investigation. This is permissible only if the Sessions Judge had previously denied bail to the same accused during the investigation. The powers of the Sessions Judge and the High Court under Section 483 are concurrent. Both the Sessions Judge and the High Court, acting as courts of original jurisdiction, have the authority to grant bail to the accused. However, the Sessions Judge has the discretion to impose suitable conditions when granting bail.
4. Supreme Court - The Supreme Court, as per Article 134, is authorized to consider
appeals from judgments, final orders, or sentences in criminal cases decided by High Courts. The Supreme Court, under the same article, has the discretion to provide special
16 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 41(1), No. 46, Acts of Parliament, 2023 (India).
17 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 83, No. 46, Acts of Parliament, 2023 (India).
leave for appeals arising from judgments, decrees, determinations, or sentences issued by any court across India.
3.2 BAIL CANCELLATION
“A High Court or Court of Session may direct that any person who has been released on bail be arrested and committed to custody. ”18 If a person granted bail misuses their freedom by committing more crimes, interfering with the investigation, trying to manipulate evidence or intimidate witnesses, or doing things that complicate the investigative process, their bail can be revoked. Bail may also be revoked if the accused attempts to flee the country, hides, or becomes inaccessible to the investigating agency. Furthermore, actions that place the accused beyond the reach of their surety can also lead to the cancellation of bail. In legal terms, the grounds for revoking bail are rooted in the need to protect and maintain the fairness and honesty of the legal system.
prevent interference with the investigation, and ensure the accused's compliance with the conditions imposed upon their release. These provisions aim to balance the principle of individual liberty with the necessity to uphold the administration of justice and protect the interests of the public. “The object of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person will stand trial when called upon. Necessity demands that some un-convicted persons be held in custody pending trial to secure their attendance, but in such cases, “necessity” is the operative test. The facts and the circumstances of the case should be considered while deciding the bail plea.
The Bail should not be denied due to public emotions and pressure. The primary purpose of the bail after or before the conviction is to free the accused from the restriction put upon him by barring him beyond the walls of the prison and also to relieve the burden of the state which the state is spending on him for keeping him, maintaining him constructively while he is in prison and in the custody of the court and the purpose of Bail bond is to ensure the presence of the accused on the date of hearings”. 19
3.3 RIGHT TO BAIL
The right to bail is fundamental in a system where people are presumed innocent until proven
18 The Bharatiya Nagarik Suraksha Sanhita, 2023, § 483(3), No. 46, Acts of Parliament, 2023 (India).
19 Sanjay Chandra v. CBI, AIR 1976 SC 830.
guilty. This means that individuals can stay free until a trial determines whether they are guilty or not. “Many people held as undertrials in prison were in such a situation because they either didn't know they could apply for bail or couldn't afford to pay for it. It also pointed out the difficult situation of prisoners whose time in jail surpassed the punishment for their crimes, irrespective of whether their trials were finished or not. It is stressed that these individuals stayed in jail due to delays in the legal process, experiencing hardship with limited resources to deal with the system or take advantage of its provisions. If a person is deprived of his liberty under a procedure that is not “reasonable, fair or just,” such deprivation would be violative of his fundamental right under Article 21, and he would be entitled to enforce such fundamental right and secure his release.
By speedy trial, we mean reasonably expeditious trial, which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The court recognized a problem where people were unaware or financially unable to seek bail, and some were kept in jail for longer than necessary due to delays in the legal system, making it hard for them to navigate or benefit from legal provisions. ”20 In India, the right to bail, or being released without paying money, is given for offenses that are not severely punishable, like death or life imprisonment. However, this right is limited to women and children when it comes to serious offenses. The distinction between serious and less serious offenses becomes unclear due to challenges such as the police opposing bail, lack of legal help for the poor, and the right to a quick trial.
This often leads to prolonged incarceration for the economically disadvantaged during police investigations and court trials. “Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. The right to a speedy trial was incorporated into the fair procedure outlined in Article 21. The focus shifted towards addressing the challenges faced by the destitute in the bail process, resulting in the release of individuals whose imprisonment exceeded the prescribed duration for their offenses. The court placed an emphasis on the failure of magistrates to adhere to Section 167(2) of the Criminal Procedure Code, which entitles an undertrial to release from prison after 60 or 90 days, as applicable. ”21
20 Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1360.
21 Maneka Gandhi v. Union of India, AIR 1978 SC 597.
CHAPTER 4
FINDINGS AND SUGGESTIONS
4.2 FINDINGS
“A bail is nothing but a surety including a personal bond from the accused. It means the release of an accused person either by the orders of the Court or by the police or by the Investigating Agency. The principle is that bail is the rule and jail is the exception. Article 21 of the Indian Constitution addresses the profoundly sacred rights pertaining to the life and personal liberty of Indian citizens and other individuals. ”22 A change is necessary in the current bail system, taking into account the financial situation of most people. Courts should consider the accused person's financial background, be understanding, and check their history to ensure they don't avoid the legal process. This way, people's fundamental rights can be protected and restored.
The inconsistency in the bail system is a significant reason for the overcrowding of prisons nationwide, posing challenges for prison administration and the state. The wealthy and influential often secure bail quickly and effortlessly, while economically disadvantaged individuals end up remaining in jail. This flaw in the bail system forces many underprivileged individuals to rely on intermediaries or legal professionals to secure bail or pay for pre-trial release. There's a noticeable difference in opinions on bail between trial courts and higher courts, with trial courts sometimes being reluctant to grant bail. Consequently, accused individuals often have to appeal to higher courts, such as the High Court and the Supreme Court, to obtain bail.
4.1 CONCLUSION
Bail is a fundamental right designed to protect life and liberty, allowing the accused to be temporarily free while shielding them from baseless and dishonest allegations. Within criminal law, the notion of bail holds a noble significance. Even in cases of non-bailable offenses, the accused may be granted bail with specific conditions and restrictions. The essence of bail underscores that an accused individual should not be presumed guilty until their guilt is proven. It is crucial to emphasize that the idea of bail is rooted in the accusatorial system's presumption of "innocent until proven guilty." An individual's fundamental right to personal liberty under
22 Satender Kumar Antil v. Central Bureau of Investigation, AIR 2022 SC 233.
Article 21 of the Constitution cannot be compromised until they are convicted and proven guilty. Granting bail is a crucial aspect of the criminal justice system and is beneficial for the accused, administration, and the court. Providing bail aligns with the fundamental principles of the Indian constitution and upholds the rights of individuals involved in legal proceedings. In essence, the laws governing bail should maintain flexibility in all cases to prevent any miscarriage of justice. This approach aims to humanize the criminal justice system and address the needs of those who might otherwise be unjustly confined in prisons simply because they lack the financial means to seek legal advice on bail matters or to pay the bail amount.
Those who cannot afford legal advice to be informed about their right to bail, especially in nonbailable offenses, find themselves unable to pay the required amount. As a result, they end up getting extended periods of imprisonment, often surpassing the prescribed punishment for the charges against them. To ensure that even economically disadvantaged individuals, who make up the majority of the prison population, can enjoy the fundamental right to personal liberty under Article 21 of the Constitution, it is essential to establish the right to free legal aid as a constitutional entitlement.