The concept of bail is
fundamental to criminal jurisprudence in India and is recognized worldwide.
Bail allows a person to secure their release from detention by paying a certain
amount as a bail bond, with or without sureties1. It serves as a legal tool to
protect an individual’s personal liberty, as guaranteed under Article 21 of the
Constitution. However, bail jurisprudence must strike a delicate balance
between the accused’s right to liberty and societal interests.
The
fundamental right to personal liberty enshrined in Article 21 of the Indian
Constitution is often put to the test when it comes to the grant of bail.
Recently, divergent views from Supreme Court justices have highlighted the
complexity of bail jurisprudence in India. While Justice Bela Trivedi expressed
the view that the Supreme Court should refrain from interfering in bail
matters, Chief Justice D. Y. Chandrachud emphasized the reluctance of trial
courts in granting bail, leading to a surge of bail applications in higher
courts.
Conflicting
Views on Bail: Justice Trivedi's concern regarding the
Supreme Court becoming a "bail court" highlights the burden on the
apex court due to the high volume of bail applications. Her perspective
underscores the importance of the High Courts as the primary forums for bail
adjudication. In contrast, Chief Justice Chandrachud's observations shed light
on a critical issue at the trial court level – the hesitation to grant bail,
especially in cases involving heinous crimes. This reluctance, often driven by
public pressure and a fear of backlash, can result in prolonged detention of
undertrial prisoners, even when there's no substantial risk of flight or
tampering with evidence.
He emphasized the need to address the “sense of fear” among judges in district
courts, which impacts personal liberty and court functionality.
Objective of Bail: Bail
does not fully set the accused free; rather, it transfers custody from jail to
the surety (guarantor). Its purpose is to ensure the accused’s attendance
during trial and at the time of judgment. The court must navigate this delicate
balance, ensuring that granting bail does not lead to the accused absconding or
causing harm to society. Punishment begins after conviction, and bail serves as
a shield for an individual’s personal liberty.
Statutory Bail Provisions in Indian Penal Code 1860: The Criminal Procedure Code (CrPC) distinguishes between bailable and non-bailable offenses. Bailable offenses grant the accused an automatic right to bail, while non-bailable offenses leave it to the court’s discretion. Section 438 of the CrPC provides anticipatory bail, allowing bail before arrest. Special laws, such as the Official Secrets Act, also incorporate bail mechanisms. Courts have consistently emphasized that bail is the rule, and jail is the exception.
Bailable and Non-Bailable
Offences:
1. Bailable Offences: Bailable
offences are those where the accused has an automatic right to bail. Upon
arrest, the accused can seek release by providing the necessary security or
bail bond. Some common bailable offences include:
- a) Simple Hurt (Section 337 IPC)
- b)
Bribery (Section 171E IPC)
- c)
Public Nuisance (Section 290 IPC)
- d)
Death by Rash or Negligent Act (Section
304A IPC).
2. Non-Bailable Offences: For
non-bailable offences, the court exercises discretion in granting bail. The
accused must apply for bail, and the court considers various factors before
deciding. Section 436(1) of the CrPC outlines the conditions under which bail
can be granted for non-bailable offences committed under the Indian Penal Code
(1862). Examples of non-bailable offences include serious crimes like murder,
rape, and terrorism.
· Anticipatory
Bail: Section 438 of the CrPC provides for anticipatory
bail, allowing an accused to seek bail even before arrest. The concept of
anticipatory bail is based on the legal principle of “presumption of
innocence”—every accused is considered innocent until proven guilty.
Reasons for granting anticipatory bail: To prevent influential individuals from implicating rivals in false cases.
- When there are reasonable grounds to believe that the accused won’t abscond or misuse their liberty while on bail.
- The Universal Declaration of Human Rights also recognizes this principle under Article 11.
- Anticipatory bail is not an absolute right; it depends on the facts and circumstances of each case.
Bail Provisions in
Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023:
The BNSS, enacted in
2023, introduced significant changes to bail provisions compared to the
Criminal Procedure Code (Cr.P.C.). Here are some key points:
1. Definition
of Bail:
o The
BNSS defines “bail” as the release of a person accused of or suspected of
committing an offense from custody upon certain conditions imposed by an
officer or court, usually through the execution of a bond or bail bond.
o It
also introduces the terms “bail bond” (an undertaking for release with surety)
and “bond” (a personal bond or an undertaking for release without surety).
2. Kinds
of Bail:
o The
BNSS expands eligibility for bail, especially for first-time offenders.
o It
reduces detention time for first-time offenders who haven’t been convicted
before.
o Previously,
under the Cr.P.C., Section 436A allowed under-trial prisoners to get bail if
they had been in jail for half of the maximum punishment for their crime
(except for crimes punishable by death). The BNSS continues this provision but
with additional changes.
3. Bail
in Acquittal Cases:
o The
BNSS simplifies bail provisions throughout the code.
o First-time
offenders are provided early release on bail.
o In
plea bargaining, first-time offenders may receive relaxed punishment
(one-fourth and one-sixth of the original punishment).
Landmark Judgments on
Bail
While the BNSS is
relatively new, there are no specific landmark judgments directly related to it
yet. However, we can draw from previous judgments under the Cr.P.C. and other
legal principles. Here are some notable cases that have shaped Indian jurisprudence
regarding bail:
1. Maneka
Gandhi v. Union of India (1978):
o The
Supreme Court held that the right to personal liberty (Article 21 of the
Constitution) includes the right to bail.
o This
judgment emphasized that bail should not be withheld arbitrarily and that the
accused’s liberty should not be unduly curtailed.
2. Arnesh
Kumar v. State of Bihar (2014):
o The
Supreme Court emphasized that arrest should not be the norm, especially in
non-serious offenses.
o It
laid down guidelines to prevent the misuse of arrest powers by police officers.
3. Sanjay
Chandra v. CBI (2012):
o The
Supreme Court held that economic offenses should not be treated as a basis for
denying bail automatically.
o It
emphasized that bail should be granted unless there are compelling reasons to
the contrary.
4. Gurbaksh
Singh Sibbia v. State of Punjab (1980):
o The
Supreme Court clarified that anticipatory bail is a right, not a mere
privilege.
o It
established the principles governing anticipatory bail.
5. Zahira
Habibullah Sheikh v. State of Gujarat (2004):
o The
Supreme Court held that bail should be granted when there is no prima facie
evidence against the accused.
o It
emphasized the importance of balancing the rights of the accused and the
interests of justice.
Understanding
Bail and its Significance: Bail is the conditional
release of an accused person while their case is pending trial. Its purpose is
to uphold the presumption of innocence, ensure personal liberty, and allow the
accused to prepare their defense. The denial of bail can have severe consequences,
such as loss of employment, disruption of family life, and psychological
distress.
Given the significant backlog of cases and the high percentage of undertrial
prisoners, here are ten suggestions to enhance bail jurisprudence:
Recommendations
for Reform:
1. Clear Guidelines for Trial
Courts: The Supreme Court should issue comprehensive
guidelines for trial courts on the principles of bail jurisprudence. These
guidelines should emphasize the presumption of innocence, the need to consider
individual circumstances, and the importance of avoiding excessive reliance on
the gravity of the offense.
2. Training and Sensitization: Judges at the trial court level should receive specialized training on
bail law and its practical application. This training should focus on
dispelling misconceptions, addressing biases, and fostering a nuanced
understanding of the factors influencing bail decisions.
3.
Timely Disposal of Bail
Applications: Trial courts should prioritize the
expeditious disposal of bail applications. Delays in deciding bail matters can
have a devastating impact on the accused and their families.
4.
Robust Appeals Mechanism: The appellate process for bail should be streamlined and accessible to
all. This would enable aggrieved parties to seek redress from higher courts promptly.
5.
Data Collection and
Analysis: Systematic collection and analysis of data on
bail decisions across different courts can provide valuable insights into
patterns and trends. This information can help identify areas for improvement
and inform policy decisions.
6.
Public Awareness Campaigns: Public awareness campaigns should be launched to educate the public
about the principles of bail and the importance of upholding the presumption of
innocence. Such campaigns can help counter the public pressure that often
influences bail decisions.
7.
Bail Review Boards: The establishment of independent Bail Review Boards at the district
level could provide an additional layer of scrutiny and ensure that bail
decisions are made fairly and in accordance with the law.
8.
Bail Information Systems: Implementing a centralized bail information system would facilitate the
tracking of bail applications and decisions across different courts. This would
promote transparency and accountability in the bail process.
9.
Alternative to Bail: Exploring alternatives to traditional monetary bail, such as
conditional release programs and electronic monitoring, can help address the
issue of undertrial detention without compromising public safety.
10.
Continuous Judicial
Education: Judges should be encouraged to participate in
continuous judicial education programs that focus on evolving legal principles
and best practices in bail jurisprudence.
Conclusion
The
differing viewpoints of Justice Trivedi and Chief Justice Chandrachud highlight
the multifaceted challenges surrounding bail in India. Addressing these
challenges requires a multi-pronged approach that involves reforms at the trial
court level, clear guidelines from the Supreme Court, and public awareness
initiatives. By upholding the principles of bail jurisprudence and ensuring
fair and expeditious bail decisions, India can strengthen its commitment to
protecting personal liberty and ensuring justice for all.
Disclaimer: This article provides a simplified overview of the above-mentioned
issue. It is advisable to consult a legal professional for detailed
interpretation and application of these provisions to specific cases.
If you are
in Punjab and need assistance, you can reach out to Umakant Tripathi and
Associates LLP at the following numbers:
- +91-7589056455
- +91-9519556455
We are
conveniently located in Pathankot, Punjab, and can provide expert legal advice
and representation to help you navigate the legal complexities.
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