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 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:
- 1. The length of his residence in the community,
2 His employment status, history and his financial condition,
3. His family ties and relationships,
4 His reputation, character and monetary condition,
5.His prior criminal record including any record or prior release on recognizance or on bail,
6. The identity of responsible members of the community who would vouch
for his reliability. The nature of the offense charged and the apparent
probability of conviction and the likely sentence in so far as these
factors are relevant to the risk of non appearance, and
If the court is satisfied on a consideration of the relevant factors
that the accused has his ties in the community and there is no
substantial risk of non-appearance, the accused may, as far as
possible, be released on his personal bond.
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: -
- (a)In order to ensure that such person shall attend in
accordance with the conditions of the bond executed under this Chapter,
or
(b)In order to ensure that such person shall not commit an offence
similar to the offence of which he is accused or of the commission of
which he is suspected, or
(c)Otherwise in the interests of Justice.
It will be noticed that: -
- 1)The power to impose conditions has been given to the court and not to any police officer
2)The power to impose conditions can only be exercised -
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:
- (a)Where the person on bail, during the period of the bail,
commits the very same offence for which is being tried or has been
convicted, and thereby proves his utter unfitness to be on bail;
(b)If he hampers the investigation as will be the case if he, when on
bail; forcibly prevents the search of place under his control for the
corpus delicti or other incriminating things;
(c)If he tampers with the evidence, as by intimidating the prosecution
witness, interfering with scene of the offence in order to remove
traces or proofs of crime, etc.
(d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and
(e)If he commits acts of violence, in revenge, against the police and
the prosecution witnessed & those who have booked him or are trying
to book him.
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 in
prisons not because they were guilty but because they were too poor to
afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the
Apex Court once again upheld the under trials right to personal liberty
and ordered the release of the petitioners on their own bond and
without sureties as they had spent six years awaiting their trial, in
prison. The court deplored the delay in police investigation and the
mechanical operation of the remand process by the magistrates
insensitive to the personal liberty of the under trials, remanded by
them to prison. The Court deplored the delay in police investigation
and the mechanical operation of the remand process by the magistrates
insensitive to the personal liberty of under trials, and the magistrate
failure to monitor the detention of the under trials remanded by them
to prison.
The travails of illegal detainees languishing in
prisons, who were uniformed, or too poor to avail of, their right bail
under section 167 Cr.P.C. was further brought to light in letters
written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee
in Veena Sethi v. State of Bihar (1982) 2 SCC 583. The court recognized
the inequitable operation of the law and condemned it- "The rule of law
does not exist merely for those who have the means to fight for their
rights and very often for perpetuation of status quo... but it exist
also for the poor and the downtrodden... and it is solemn duty of the
court to protect and uphold the basic human rights of the weaker
section of the society. Thus having discussed various hardships of
pre-trial detention caused, due to unaffordability of bail and
unawareness of their right to bail, to under trials and as such
violation of their right to personal liberty and speedy trial under
Article 21 as well as the obligation of the court to ensure such right.
It becomes imperative to discuss the right to bail and its nexus to the
right of free legal aid to ensure the former under the Constitution- in
order to sensitize the rule of law of bail to the demands of the
majority of poor and to make human rights of the weaker sections a
reality.
RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID -:
ARTICLES 21 AND 22 READ WITH ARTICLE 39A
Article 21 of the
Constitution is said to enshrine the most important human rights in
criminal jurisprudence. The Supreme Court had for almost 27 years after
the enactment of the Constitution taken the view that this Article
merely embodied a facet of the Dicey on concept of the rule of law that
no one can deprived of his life and personal liberty by the executive
action unsupported by law. If there was a law which provided some sort
of procedure, it was enough to deprive a person of his life and
personal liberty.
In the Indian Constitution there is no
specifically enumerated constitutional right to legal aid for an
accused person. Article 22(1) does provide that no person who is
arrested shall be denied the right to consult and to be defended by
legal practitioner of his choice, but according to the interpretation
placed on this provision by the Supreme Court Janardhan Reddy v. State
of Hyderabad, AIR 1951 SC 227. in this provision does not carry with it
the right to be provided the services of legal practitioners at state
cost. Also Article 39-A introduced in 1976 enacts a mandate that the
state shall provide free legal service by suitable legislations or
schemes or any other way, to ensure that opportunities for justice are
not denied to any citizen by reason of economic or other disabilities -
this however remains a Directive Principle of State Policy which while
laying down an obligation on the State does not lay down an obligation
enforceable in Court of law and does not confer a constitutional right
on the accused to secure free legal assistance.
However the Supreme Court filled up this constitutional gap
through creative judicial interpretation of Article 21 following Maneka
Gandhi's case. The Supreme Court held in M.H. Hoskot v. State of
Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's case that a
procedure which does not make legal services available to an accused
person who is too poor to afford a lawyer and who would, therefore go
through the trial without legal assistance cannot be regarded as
reasonable, fair and just. It is essential ingredient of reasonable,
fair and just procedure guaranteed under Article 21 that a prisoner who
is to seek his liberation through the court process should have legal
services made available to him.
The right to free legal
assistance is an essential element of any reasonable, fair and just
procedure for a person accused of an offence and it must be held
implicit in the guarantee of Article 21.
Thus the Supreme Court spelt out the right to legal aid in
criminal proceeding within the language of Article 21 and held that
this is....
"a constitutional right of every accused person who
is unable to engage a lawyer and secure legal services on account of
reasons such as poverty, indigence or incommunicado situation and the
State is under a mandate to provide a lawyer to an accused person if
the circumstances of the case and the needs of justice so require,
provided of course the accused person does not object to the provision
of such lawyer."
Conclusion
It is indisputable that an
unnecessarily prolonged detention in prison of under trials before
being brought to trial is an affront to all civilized norms of human
liberty and any meaningful concept of individual liberty which forms
the bedrock of a civilized legal system must view with distress
patently long periods of imprisonment before persons awaiting trial can
receive the attention of the administration of justice. Thus the law of
bails must continue to allow for sufficient discretion, in all cases,
to prevent a miscarriage of justice and to give way to the humanization
of criminal justice system and to sensitize the same to the needs of
those who must otherwise be condemned to languish in prisons for no
more fault other than their inability to pay for legal counsel to
advise them on bail matters or to furnish the bail amount itself.
While
concluding, it seems desirable to draw attention to the absence of an
explicit provision in the Code of Criminal Procedure enabling the
release, in appropriate cases, of an under trial prisoner on his bond
without sureties and without any monetary obligation. There is urgent
need for a clear provision. Undeniably, the thousands of under trial
prisoners lodged in Indian prisons today include many who are unable to
secure their release before trial because of their inability to produce
sufficient financial guarantee for their appearance. Where that is the
only reason for their continued incarceration, there may be good ground
for complaining of invidious discrimination. The more so under a
constitutional system which promises social equality and social justice
to all of its citizens. The deprivation of liberty for the reason of
financial poverty only is an incongruous element in a society aspiring
to the achievement of these constitutional objectives. There are
sufficient guarantees for appearance in the host of considerations to
which reference has been made earlier and, it seems to me, our
law-makers would take an important step-in defence of individual
liberty if appropriate provision as made in the statute for
non-financial releases.
BY SUDERSHANI RAY
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