This article has been written by Ritu Janjani, a student, Dharmashastra National Law University, Jabalpur
This Article aims at analyzing how far are the Provisions as to Bail and Bail Bonds in consonance with the fundamental rights as enshrined in the Constitution of India. The Bail system as prevalent today has been amended by Parliament so that it does not seem to be Oppressive and Discriminatory for the Poor. Here it becomes important to find out how far have the amended provisions succeeded in their operation.
Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail. Law lexicon defines bail as a security for the appearance of the accused person on given which he is released pending trial or Investigation.
The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings.
Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:-
Article 9- No one shall be subjected to arbitrary arrest, detention or exile.
Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11(1) – Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
In the case of Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980), the Supreme Court observed that the bail system, as it operates today, is a source of great hardship to the poor and if one really wants to eliminate the evil effects of poverty and assure a fair and just treatment to poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich, to obtain pre-trial release without jeopardizing the interest of justice. Based on the recommendations of the Law Commission in its 41st Report on the Code of Criminal Procedure –The law was amended with the view to protect the rights of the accused and to maintain social order in parallel. The provisions namely sections 436, 437 and 439 of Chapter XXXIII Cr.P.C. were streamlined in 1973. In last few decades, the societal contexts, its relations, changing pattern of crimes, arbitrariness in exercising judicial discretion while granting bail are compelling reasons to examine the issue of bail for further reform.
In so far as the non-implementation of the liberalized provisions under section 436 or the bail provisions under section 436A is concerned, the primary reason is the lack of awareness amongst the under-trial prisoners. The law does not mandate the State Legal Services Authority, jail superintendent or the trial court to inform the accused about this law. Section 436A was introduced via an amendment in 2005, but it is yet to have the impact that it sought to achieve.
It is the duty a police officer who arrests without warrant any person other than a person accused of a non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf as required under section 50(2) of the Cr.P.C and not to detain him for more than 24 hrs except in the absence of a special order of a Magistrate under section 167 Cr.P.C, exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court. The Supreme court has also laid down the DK Basu Guidelines with regard to arrest of an individual keeping in mind his liberty at stake. The Magistrate can take the accused into custody on being satisfied on 3 grounds, namely, the officer is competent to arrest, the accusations for which the person is arrested are well founded and the provisions of the Special Acts with regard to arrest well serve the purpose of S.167(1).However, if the investigations are not complete within 24 hours and no judicial magistrate is available, the accused may be presented before an executive magistrate who may order for detention in custody for a term not exceeding 7 days.
Therefore, it is an absolute right of the accused to be released on bail once the period of 60 or 90 days as provided under s.167(2) Cr.P.C get over subjects to the requirement of section 437(5) Cr.P.C The Supreme court has in many cases held that the order of release on bail is not defeated by the discharge of surety, lapse of time, filing of chargesheet or by remand to custody. As the writ of Habeus corpus is not barred by the Principle of Res Judicata, a similar privilege is attached to the bail applications.
Power to cancel bail and refusal of a bail application are two different things. Regarding power to cancel bail has been given to the court and not the police officer. The bail once granted by the court or police officer can only be invoked on approaching the higher authorities i.e. the High Court and the Court of Session under S.439 Cr.P.C.Such again, is to allow the accused to have his freedom retained. Regarding, the later, as already discussed a renewed application, with further details can be presented at a later occasion.
In respect to S. 437 Cr.P.C of the Code, cases often arise when the court deems fit to grant bail while imposing certain conditions, however such conditions cannot be violative of the fundamental rights of the accused.
At last, law also aims to restrict the powers of the police and Magistrate by the means of S.440 Cr.P.C of the code and directs that the amount for bail bond shall be reasonable and not excessive as to impact the fundamental rights of the accused. In the case of Moti Ram v. State of M.P court held that “Social Justice is the signature tune of our Constitution and the littleman in peril of losing his liberty is the consumer of social justice. And the grant of bail can be stultified or made impossibly inconvenient and expensive if the Court is powerless to dispense with surety or to receive an Indian bailor across the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive. The problem is plainly one of human rights, especially freedom vis-a- vis, the lowly and necessitates the Supreme Court to interdict judicial arbitrariness deprivatory of liberty and ensure “fair procedure” which has a creative connotation after Maneka Gandhi”.
In the case of Sagayam @ Devasagayam vs State the Madras High court observed “A Magistrate or a Sessions Judge or any Court, demanding production of property documents or R.C. book or any other document to show proof of property either movable or immovable with respect to the bail bond or surety bond amount is against law. It is against Article 21 of Constitution of India. It is against the dictum of the Hon’ble Supreme Court judgment laid down in Maneka Gandhi vs. Union of India”.
It is important to note that the very concept of bail arises from a presumption, of the accusatorial system, of innocent till proven guilty.‟ As such an individual’s personal liberty which is a fundamental right under Article 21 of the Constitution, cannot be compromised until he/she is convicted and thus proven guilty. Thus he/she is allowed to furnish security (in the form of bail) to secure the accused‟s presence for trial while enabling him/her to retain his/her personal liberty.
R.V. Kelkar‟s Criminal Procedure 6th ed.
Ratanlal & Dhirajlal’s The Code of Criminal Procedure, (20e. 2016)
The Code of Criminal Procedure,1973, No. 2 of 1974, Acts of Parliament, 1974
Universal Declaration of Human Rights
Hussainara Khatoon (I) v. Home Secretary, State of Bihar, (1980) 1 SCC 81
Moti Ram v. State of M.P., AIR 1978 SC 1594 : 1978 Cri LJ 1703
Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66
Sagayam v. State, 2017 SCC OnLine Mad 1653