Author: Prakshal Jain, III year of B.A.,LL.B.(Hons.) from Jagran Lakecity University, Bhopal
“A man of courage never need the weapon but he may need bail.” – Lewis Mumford.
The criminal justice system is indistinct without the bail granting system present in it. The bail is the release of an accused on providing assurance of his presence whenever required by the bail granting authorities. The Indian criminal trial system provide wide range of rights to an accused with respect to taking bail at various stages in the procedure. With complexity advent in the modern society, it has not left untouched the criminal justice system and has led to penetration of new trends and practices in dealing with offences and offenders. The criminal justice system is shaped by humans and is not an exception to the conventional rule of having flaws in it. Thisarticlelooks into the new practices and the loopholes that have widened the need for reforms in the bail granting system in India.
Bail in criminal law
Indian Penal Code, 1860 defines offence and provides for the punishment for different kind of offences. They are further bifurcated as bailable and non-bailable. Section 2(a) of the Indian Penal Code,1860 defines bailable and non bailable offences. The law dealing with the granting of bail has its genesis from the Code of Criminal Procedure, 1973. Section 436 deals with grant of bail in bailable offences in which the release on bail takes the shape of right i.e. granting bail is imperative in such cases, while section 437 of the code talks about granting bail in matter involving non- bailable offences, it is much more of privilege which is set up on the discretion of the court. The terms and conditions , the concept of anticipatory bail in section 438 , the duties and rights of sureties, the grounds and conditions for granting and cancelling bail are well defined and drafted under Part 33 of the Code of Criminal Procedure,1973. The default bail which is granted when the investigation takes more time than what is set up for it, mentioned in section 167(2) of the Code of Criminal Procedure, 1973. The concept of bail lingers its balance between the right of personal liberty under article 21 of the Indian Constitution and the societal interest of putting a person behind the bars infringing the laws of the land .
In the words of Krishna Iyer J. in his landmark judgement of Moti Ram case, “ the release on bail is crucial to the accused as the consequences of pre-trial detention are given. If the release on bail is denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life. The jailed accused loses his job and is prevented from contributing effectively for the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.” These are the factors which led to the emergence of concept of bail as has been explained in this case.
International Standards on Bail and India’s Position
Bail has been acknowledged in a number of international accords and instruments promoting human rights. Article9(3) of the International Covenant on Civil and Political Rights, 1966 (hereafter ICCPR) specifies that imprisonment in custody of persons awaiting trial is not the usual practice, and that release may be conditional on promises to present at the trial. Similarly, Article 10(2) (a) of the ICCPR alludes to the same concept, stating that an accused person should not be treated the same as a criminal. Above all, as an axiomatic tenet of law, Article 14(2) cardinally provides for the presumption of innocence until proven guilty.
Presumption of innocence
Article 11(1) of the Universal Declaration of Human Rights (UDHR), Article 6(2) of the European Convention on Human Rights (hereinafter ECHR), Article 48(1) of the Charter of Fundamental Rights of the European Union (hereinafter EU Charter), and Rule 111 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (hereinafter Nelson Mandela Rules) all support the presumption of innocence.
In the Rajesh Ranjan @Pappu Yadav v. CBI case , the Supreme Court of India put aside the principle of presumption of innocence of accused and put him in jail even though the trial was at the stage of completion and there was no chance of tampering of evidences and even though he was in jail for long seven years bit still was not granted bail. While later in the case of Sanjay Chandra v. CBI , the Supreme Court took a different approach and recognized the innocence of the accused upholding the article 21 of the constitution. Thus , there was a gradual evolution in accepting and interpreting this principle by the Indian Court ultimately upholding this enlightened principle in the recent judgements.
The UDHR in Article 2 states that every person is entitled to all the rights and freedom in the declaration without any discrimination. Thus the granting of bail without any discrimination between the citizens. The Supreme Court of India in the case of GudikantiNarasimhulu v. Public Prosecutor, High court of Andhra Pradesh observed that: Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognized under Article 21 of the Constitution of India that the curial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community.
The fundamental rights to liberty, security, and protection against arbitrary detention are echoed in Article9(1) of the UDHR45 and the ICCPR.The state is obligated under this fundamental right to defend and preserve citizens' liberty and security from arbitrary arrest and detention. To be valid and not arbitrary, the detention must follow the substantive requirements of national and international laws, as well as the principles and standards that protect fundamental rights. In GudikantiNarasimhulu v. Public Prosecutor, Justice V.R. Krishna Iyer of the High Court of Andhra Pradesh observed that rejecting bail violates Article 21's provision of "personal liberty." Recently many activists have been arbitrarily arrested by police in disguise of vague allegations made against them to suppress them from dissenting against government policies. The United Nation Working Group on Arbitrary Detention (UNWGAD) had criticized the arrest of SafooraZargar, an activist who severly criticized the government’s Citizenship Amendment Act,2019. Vague allegations were made against her and was constantly denied bail, even though she was pregnaant during the time of detention. Such kind of arrests raise questions of accountability of the authorities in matter of arrest.
The National Crime Record Bureau PrisonStatistic 2020 says , “A total of4,88,511prisoners were confined as on 31st December, 2020 in various jails across the country. The number of Convicts, Undertrial inmates and Detenues were reported as 1,12,589, 3,71,848 and 3,590 respectively accounting for 23.0%, 76.1% and 0.7% respectively at the end of 2020. Other prisoners accounted for 0.1% (484 prisoners) of total prisoners. (Prison Statistics Report 2020). Thus the report clearly shows that the major occupancy of jail is of persons having not been proved guilty yet.” Indian criminal justice systems presumes the accused to be innocent until proven guilty but such hefty occupancy of jail by undertrial prisoners and their constant denial of bail tells us a different story.
Modern trends in bail granting
The system of bail and bonds is present from the time when this criminal procedure of the land was codified and with the advancement in the society, it has undergone various changes in dealing with it. There are certain recent practices that have been highlighted below:
1. The malpractice of bench hunting or forum shopping has emerged in which the applicant moves his application for bail before another bench to get bail after his rejection of bail order by the prior bench and even though that prior bench is available to deal with the application. This is quite unfair practice as it gives the accused a chance to move to different benches of his choice until he gets order of his likeness. The Supreme Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khanruled that “judicial discipline requires that such matter must be placed before the same judge, if he is available for orders.” Even though the court has reprimanded this practice at various instances like of State of Maharashtra v. Buddhikota Subha Rao , Padam Chand Jain v.State of Rajasthan, etc. But the practice of bench hunting is evident in courts till date. This corrupt practice,mainly in lower courts, is poisoning the whole bail granting system.
2. It has become trend among the applicants to take the interim bail from higher court and move to the lower court for taking the regular bail on the pretext of interim bail granted by the lower court. The Supreme Court in the case of RukhmaniMahato v. State of Jharkhandgave direction to discontinue such substandard practices. It is necessary to discard such practice in the light of event as even though the superior court is to dismiss the anticipatory bail upon the fuller consideration of the matter, but the regular bail of lower court will continue to hold the ground and will make the superior court’s order of pre arrest bail meaningless.
3. Interference of one bench of the court in the functioning of a coordinate bench severely disrupts its autonomy and originality of its obiter dicta in its judgement. The Supreme Court in the case of Vikramjit Singh v. State of M.P.,held that such trend should be prohibited otherwise a party aggrieved by order of one bench will be tempted to open the case before other bench and will make subsequent number of attempts which will result in absolute tyranny and mockery of the order of the prior bench.
4. The superior court issuing direction or mandamus to the lower court in dealing the matter of bail granting i.e. to give direction whether to allow the bail application or to reject it ,if done so it will be clear usurp of the autonomy of the lower court in dealing with the case of bail . The Supreme Court took cognizance of this practice in the case of Madan Mohan v. State of Rajasthan, and strictly restricted to the following up of such kind of practices.
5. Recently, Mr.Y v. State of Rajasthan –In this case, the Supreme Court took cognizance of the trend of granting bail by the high courts in a cryptic manner without giving reasons for doing so. In this case the accused is habitual offender and is influential in his family, committed rape on his niece. Thus, not providing reasons while granting or refusing bail portrays the traits of arbitrariness in these courts. CJI Ramana observed, “There is a recent trend of passing such orders granting or refusing to grant bail, where the courts make a general observation that ‘the facts and the circumstances’ (of the case) have been considered. No specific reasons are indicated which precipitated the passing of the order by the court.” Such kind of decisions by lower court relieves them from the quintessential requisite of accountability which is highly undesirable in our democratic set up.
6. Trial court's unnecessary rejection of bail. In the recent years, it has been seen that there is an ceaseless trend among the trial courts to dismiss the bail application like other petitions without mentioning the judicial view. These courts dismiss the bail applications in the mechanical way by tagging them as matter involving serious offence, so bail is denied without looking into the matter with requisite judicial mindset. When the matter reaches to the High Courts, they use their liberal mindset in granting the bail looking into the matter with the required circumspection. Although, the Supreme Court and the High Court at various instances has instructed these courts in dealing the bail matters but these subordinate courts lay down the circumstances of the case in such manner that they justify themselves in denying the bail go the accused. As a repercussion to it , the accused having the constitutional right to bail but has to languish in jail for months unless the higher court approves the bail orders. This dereliction of duty by the lower courts increases the burden of bail petitions in the Supreme Court and the High Courts, which creates unnecessary work load on these higher courts.In dealing with the case of Satender Kumar Antil v. Central Bureau of Investigation &Anr. The Supreme Court bench of Sanjay Kishan Kaul J. and M.M. Sundresh J. observed that“The problem is with the mindset. We may lay down a law but the mindset has to change... our endeavour was to reduce the numbers of bail applications coming to this court. But the way our order is being interpreted, we will end up having more applications coming to this court.” The bench reprimanded the lower courts and urged them to change their mindset to restore the bail jurisprudence. Hence, the very fabric of bail granting system is torn at the very basic level which needs urgent attention by these lower courts.
7. The SC, after looking at the COVID situation and the high risk of prisoners of being infected in congested jails, directed to form High Powered Committee by every state for setting up the criterion to release the prisoners on bail. These committees in most of the states identified the criterion on the basis of seriousness of offence and gave less importance to the co-morbidities of the, thus giving less importance to right to health of prisoners. It was much more of decongestion of jails rather than ensuring right to health to these vulnerable prisoners. It is evident from the fact that P Varavara Rao, an 81 year old age prisoner having various comorbidities was denied bail on the ground that he was accused under Unlawful Activities (Prevention) Act, 1967. Lukewarm treatment by the Supreme Court and the Bombay High Court in granting him bail ignoring his serious health condition was unappreciable.
The difficulties in virtual hearing for granting bail in COVID times due to lack of verification of papers, broken video links during e-hearings, non-appearance of lawyers and withdrawal of cases. While ‘extremely urgent matters’ were heard via video link, there were no defined parameters as to what constituted an ‘urgent matter’ and no clarity about the courts’ functioning, especially district courts. Bail matters were not given priority in this unprecedented time where the life of prisoners were at stake which was gross violation to their right to life under Article 21.
8. In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan, the Supreme Court gave direction for the subsequent bail applications. The finding of the higher court need to be given serious consideration at the hands of the court entertaining the application. Due weightage to be given to the higher court or former one in rejecting the bail application. Ordinarily, the issues that have been portrayed and argued earlier should not be allowed to be taken again in subsequent bench as it would lead to speculation in the administration of justice . The exception to this is if there is material change in the fact situation or legislative changes which left the earlier finding obsolete.
9. There was a case in which accused filed petition under section 482 and sought the ground usually used to take the bail. Although the Supreme Court didn’t approved it but it deprecated the trend as such trend will help the accused to avoid surrendering before the court as required under section 439 of the Code of Criminal Procedure, 1973. Section 482 talks about the inherent power of the High Court to pass orders that are needed to prevent the abuse of process of the court and to secure the ends of justice. Thus accused taking it as ground to escape from the ordinary procedure of his arrest under bail provisions. Such practices harshly affects the system of bail that has been set up in the code.
10. The courts have shown sheer arbitrariness in various judgement and have imposed myriad of strange conditions having not much relevance with the bail and the offence of the accused. In the case of granting bail to Som Marandi, former BJP member of parliament, the Jharkhand High Court put on condition that the accused need to download AarogyaSetu app and to deposit Rs.35000 to the PM CARES fund which was quite unreasonable condition having no association with the offence committed and the bail. In the similar way, In July 2019, one Richa Bharti, who was arrested for writing an offensive post on social media against Muslims, was given bail by judicial magistrate Manish Kumar Singh in Jharkhand on the condition that she should distribute five copies of the Quran to different libraries. Subsequently, this condition was withdrawn. The appalling reasoning given while granting bail in Mohsin Sheikh murder case in 2014 by MridulaBhatkarJ. said , “The fault of the deceased was only that he belonged to another religion. I consider this factor in favor of the applicant/accused. Moreover, the applicants/accused do not have criminal record and it appears in the name of religion, they were provoked and have committed murder.” Such kind of judicial reasoning and conditions imposed arise a major question of the legitimate way of dealing with the cases in hand by the judiciary. This trend in providing strange and quite unreasonable judgement is a serious question on the judicial proficiency in dealing with the matters.
Reforms and Suggestions
The overhaul of the criminal laws and various loopholes in dealing with the bail provisions. For the same purpose, the government has started the amendment procedure and soon to introduce amendment bill based on a committee set up in 2020 headed by Vice Chancellor of National Law University, Delhi and four other members. This was based on 146th report of Parliamentary Standing Committee on Home Affairs. It is evident that the problem with bail jurisprudence in India lies not much with the absence of rules, or in ambiguity of rules. It happens because courts are ignorant about the text and purpose of the law made and the precedents set by the Supreme Court. It would be beneficial in for the judges to follow, if the benchmark is set up by forming an Explanatory Note or Statement of Objects and Reasons which will clarify the objective of the bail. In this perspective, examining the American criteria under the Release Reform Act, which requires "clear and compelling" proof that the accused has violated specified bail conditions, might be enlightening. Although limited to cases of bond revocation and not applicable to police arrests, the American standard and its application in case law provide an interesting alternative to the current level of proof.
As a result, judges must tie grounds like the nature of the offence or the severity of the accusations to their evaluation of the accused's potential for interfering with the legal process in articulating their bail orders, rather than acting on perceived public interest. Even if the legislation is not changed, the law should be read to force courts to periodically review whether the State's justifications for extended incarceration are valid, especially if the trial is lengthy. This will answer questions about their institutional authority to deny bail by assuming guilt based on a prediction of the accused's future actions while maintaining their discretion. The prosecution must also justify that the public interest outweighs the presumption of innocence and the right to civil liberties. After all, how can the Court infer that an accused will not continue to cooperate during the investigation and attend trial on a regular basis, and what proof can they present to counter this unfavorable presumption? Following that, if the accused is exonerated, the law should pay compensation for unjust incarceration, deprivation of liberty, reputational consequences, and related costs. This is especially important in cases of significant offences, where even an acquittal may not be enough to reverse the public shame and condemnation brought on by the charge's gravity. A similar policy, enacted in accordance with Article5(5) of the European Convention on Human Rights, has proven effective in deterring the State from evading its obligations and encouraging excessive detentions, as well as reinforcing the importance of preserving the presumption of innocence regardless of the seriousness of the allegations. After all, any restriction of liberty should be borne by the state before to official conviction, especially if the deprivation is justified on the basis of public interest or order.
The system of bail is very crucial in our criminal law and dealing it frivolously would mean than interfering with the human rights that are quintessential for the existence of a democratic society. The arbitrariness and various practices which cause the harassment of the accused for no reason takes away the very faith that has been bestowed on the judicial system by the people of this country. Thus, it is necessary that there should be adequate attention and action should be taken for putting a halt to what is not desirous and is anathematic to the principles enshrined in our Constitution.
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· Amit Anand Choudhary Change of mindset needed in lower judiciary to encourage bail, not jail for accused: SCTIMES OF INDIA(Dec 17, 2021, 02:14)https://m.timesofindia.com/india/change-of-mindset-needed-in-lower-judiciary-to-encourage-bail-not-jail-for-accused-sc/amp_articleshow/88328383.cms( visited on Apr 30, 2022)
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https://www.brainyquote.com/citation/quotes/lewis_mumford_382754 1978 AIR 1594 1979 SCR (1) 335 1978 SCC (4) 47 Rajesh Ranjan Yadav @Pappu Yadav v. CBI, (2007) 1 SCC 70. Sanjay Chandra v. CBI, (2012) 1 SCC 40 GudikantiNarasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240 (1987) 2 SCC 684:1987 SCC (Cri) 415: 1987 Cri Lj 1872 1989 Supp (2) SCC 605: 1990 SCC (Cri) 126: 1989 Cri Lj 2317 1991 Cri Lj736 (Raj) (2017) 15 SCC 574 1992 Supp (3) SCC 62  (2018) 12 SCC 62 CRIMINAL APPEAL No. 649 of 2022(ARISING OUT OF SLP (CRL.) No. 7893 of 2021) MISCELLANEOUS APPLICATION Diary Nos. 29164/2021 IN SLP Crl No. 5191/2021  (2005) 2 SCC 42