BAIL: THE BULWARK AGAINST DETENTION
Author: Nomaan Quasim, II year of B.A.,LL.B.(Hons.) from Aligarh Muslim University, Aligarh (U.P.)
“The issue of bail is one of liberty, justice, public safety, and the burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process”. —Justice V.R. Krishna Iyer (GudikantiNarasimhulu case, 1977)
Before delving into the topic we have to understand the meaning of the term “BAIL”; The word bail is derived from the French verb “baillier” which means “to give or deliver something”. The word bail is not defined under the Criminal Procedure Code, nevertheless, it is the most important concept in the criminal justice system which supports the principle of human rights as well.
According to Black’s Law Dictionary, “To procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court”.
According to Wharton’s Lexicon and Stroud’s Judicial Dictionary The term, bail is defined as, “the setting free of the defendant by releasing him from the custody of the law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time.”
BAIL: BRIEF OUTLOOK
The provision of bail is mentioned under chapter XXXIII of the criminal procedure code, 1973. Sections 436 to 450 of CrPC deal with the provisions of bail and bonds in the criminal justice system. In a simple word, bail refers to a promise made by a person who has been arrested, to appear before a court of law at a specified location and time.
The actual meaning of the “bail” is a surety. Therefore, the term "bail" refers to a person being released from custody on a personal bond or with sureties. Bail is based on granting freedom in exchange for a financial guarantee, either from oneself or from outside sureties. In the Moti Ram Case, the Supreme Court reaffirmed this term. In simple words, we can say that bail is granted with the prerequisite of either personal, monetary or some third-party surety.
The cornerstone of bail law in post-independent India is Article 21 of the Constitution, which guarantees both, life and liberty, by stipulating that only a legal process that is "just, fair, and reasonable" may be used to restrict freedom. A person falsely accused of a non-bailable offence is not only entitled to a strong defence but also the granting of bail by the court depending on several factors, including the nature or seriousness of the alleged offence, the nature of the evidence adduced, any unusual circumstances surrounding the accused, any reasonable suspicion that the witnesses have been coerced, the larger interests of the public or the state, and similar others.
In the historic decision State of Rajasthan vs. Balchandalias Baliya, the Supreme Court of India established the legal principle that "bail is a rule, jail is an exception". Justice V. Krishna Aiyer established the legal theory in this case which is based on the fundamental rights which in their turn are protected by the Indian constitution.
In the case of Sanjay Chandra v CBI, the Supreme Court talks about the purpose or objective of the bail as follows;
“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 can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of the trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson”.
The provision of bail is broadly divided into two classes:
The terms bailable and non-bailable have been defined under section 2(a) of CrPC as follow: “bailable offence means an offence which is known as bailable in the first schedule or which is made bailable by any other law for the time being in force; and non-bailable offence means any other offence”.
The crimes which are injurious to society to a lesser level come under bailable cases and in these cases a person gets released easily from the police or judicial custody.
The second type is non-bailable cases which are mostly affixed with heinous crimes, i.e., crimes extremely detrimental to society and severe in nature. In this condition, the accused may get released on bail, but no bail may be granted where the accused appears on reasonable grounds to be guilty of an offence punishable either with death or with life imprisonment.
There is some exception to this case, this rule does not apply to
(1) a person who is under the age of 16; or
(2) a woman; or
(3) a sick or infirm person.
When a person is released on bail, the reason for granting bail and simultaneously the order of bail should always be in writing. However, a person released on bail may be taken back into custody by the order of the court under section 437 of the criminal procedure code, 1973.
Section 437 of the CrPC, talks about, when bail may be taken in case of non-bailable offence-(1) 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 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, but-
Such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of (a cognizable offence punishable with imprisonment for three years or more but not less than seven years):
In the case of Hidayat Husain Khan (Dr) v State of UP , short-term release during which adhering to good conduct shall not be the sole ground for enlarging a person on bail finally. It should be decided on merits alone.
In the case of Mool Chand v State, bail was refused by the Supreme Court to an unauthorized dealer illegally dealing in foreign exchange, commonly known as Hawala transaction and who had been instrumental in transferring huge sums to militants of Jammu & Kashmir for use in disruptive and terrorist activities, although there was very much the likelihood that completion of investigation may take a long time. Bail was refused to have regard to the seriousness of allegations against the accused.
TYPES OF BAIL
REGULAR BAIL- Regular bail is only granted to those who are already in police or judicial custody. A person can file a bail application for regular bail under section 437 and 439 of the CrPC.
ANTICIPATORY BAIL- Provision for anticipatory bail is mentioned in section 438 of the criminal procedure code, 1973. Anticipatory bail is granted to the accused before the arrest is made. It is also known as pre-arrest bail. In cases where an F.I.R. has been lodged against a person but the inquiry has not been initiated yet by the respected authorities, in the mentioned case prayer for anticipatory bail can be made. Moreover, while awarding the bail court has to consider the seriousness of the matter.
According to section 438(1), “where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely:
i) The nature and gravity of the accusation;
ii) The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
iii) The possibility of the applicant to flee from justice; and
iv) Where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail
INTERIM BAIL- Interim bail is awarded before the hearing of the application for regular or anticipatory bail for a short period.
In case of Siddharam v State, The court ruled that neither Sections 437 nor 439 CrPC expressly provide for interim bail. Of course, Section 437(2) makes a vague reference to such an authority. The Magistrate may even order notice to the prosecution in order to exercise the power therein, in which case the arrested suspect cannot avoid jail time. Thus, the interim bail regime becomes applicable even in situations arising after an arrest, leaving the interim bail clause in Section 438 CrPC alone. Without liberty, life withouthonour and dignity.
In the case of Kanhaiya Kumar vs State of NCT Delhi court held that, the appellant granted interim bail for the period of six months on executing a bail bond of rupees 10000. As a result that he will not actively or passively participate in anything or action that may be deemed anti-national, he was required to provide an undertaking. In addition, he will work to restrict campus anti-national activity in his capacity as president of the student union.
DEFAULT BAIL- This is the right to bail that develops when the police fail to wrap up their inquiry within the specified time in respect of a person in judicial custody. The right to default bail is not only mentioned in section 167(2) of CrPC but also is a part of the fundamental right under Article 21.
MANDATORY BAIL- According to Section 167 of the Criminal Procedure Code, the accused has the right to be released if the investigation is not finished in 60 or 90 days, depending on the seriousness of the alleged offence.
Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not than ten years.
Sixty days, where the investigation relates to any other offence, and on the expiry of said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to furnish bail.
In Chaganti Satyanarayana v. State of Andhra Prasad, (1986 3 SCC 141)it has been held by the Supreme Court that period of 90 days under section 167(2) of the Code shall be computed from the date of remand of the accused and not from the date of his arrest under section 57 of the Code.
In the State of MP v. Rustam,(1995 SCC Cri 830) the Supreme Court held that while computing period of 90 days, the day on which the accused was remanded to the judicial custody should be excluded, and the day on which challan is filed in the court, should be included.
In every civilized democratic country, liberty is considered to be the most precious human right of every person. The Law Commission of India in its 177th Report under the heading ‘Introduction to the doctrine of “arrest” has described as follows:
“Liberty is the most precious of all the human rights”. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The universal declaration of human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles designed to protect and promote the liberty of individual. So does the international covenant on civil and political rights, 1996. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his right to personal liberty except in accordance with the procedure prescribed by law. Even Article 20(1) & (2) and Article 22 are born out of a concern for human liberty. As it is often said, “one realizes the value of liberty only when he is deprived of it.” Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in the scientific and technological spheres.”
PROVISION OF BAIL FOR WOMEN
Teesta Setalvad, an activist was recently granted interim bail by the Supreme Court of India, which stated that the relief was provided because of the appellant’s exceptional circumstances, including the fact that she was a woman.
Section 437 of the criminal procedure code,1973 has some exceptions which provide for granting bail to such persons who are under the age of sixteen years or a woman or are sick or infirm.
According to section 160 of the CrPC, when a police officer needs any help from any person whom he thinks is acquainted with the investigation, has to appear before the officer. On the other hand, no woman shall be obliged to do so anywhere other than her residence. The Law Commission argued that the word "place" is confusing and that it would be preferable to change it to "dwelling place" in its 84th and 135th Reports from 1980 and 1989, respectively.
In 2009, a clause was inserted in the CrPC stating that, unless otherwise necessary, only a female police officer may touch a woman who is being arrested. A subsection was introduced to section 46 in 2005 through an amendment, making it illegal to arrest a woman from the period after sunset till sunrise.
Bail is the bulwark against the illegal detention of a person and protector of the personal liberty which already mentioned in article 21 of the constitution. The right of bail may not be denied to anyone. Whether a person detained under bailable or non-bailable offence he has right to bail but in non-bailable offences court inquire into matter seriously before granting bail.The concept of bail is considered one of the most delicate and essential principles of criminal jurisprudence. Present-day Bail has evolved largely from the Magna Carta, which talks about arrest which is to be made only on firm grounds of evidence.In the absence of any particular definition in any statute book, Bail has to be understood through judicial pronouncement. Bail may be described as setting free an accused from detention on account of some personal or third-party surety or account of some monetary payment.
 Report No.268 of the Law Commission of India, on bail reforms, titled “Amendments to Criminal Procedure Code, 1973
 Black’s Law Dictionary 177 (4th ed.)
 Law lexicon by RamanthIyer, (3rd ed).
 Stroud’s Judicial Dictionary 4th edn., 1971.
 (AIR 1977 2447)
 AIR 2012 SC 830
 Criminal procedure code, 1973
 1992 Cr LJ 3534 (All).
 AIR 1992 SC 1618
 CrPC, 1973