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Judicial Discretion in Granting Bail for Non-Bailable Offenses

Publications, Research paper

ABSTRACT

The criminal justice system of India is vast and complex and within this system, the concept of bail has become elusive and ambiguous as the code doesn’t provide an exhaustive list of the conditions for granting and rejecting bail rather it depends upon the judicial discretion of the court. This paper examines how the judicial discretion of the court while granting bail for non-bailable offenses in the Indian criminal justice system impacts individual rights, societal rights, and fairness in the process. It explores how precedents of courts have established certain fundamental principles for granting bail in non-bailable offenses and it should not be arbitrary. It emphasizes that while granting regular and anticipatory bail in non-bailable offenses, the court should balance individual rights and societal interests. It discusses the importance of a speedy trial to protect the individual rights of the accused person. It further explores the unrestricted power of courts which leads to misuse of it while granting bail in non-bailable offenses. It also suggests some effective steps to be considered while granting or rejecting bail to establish an effective and fair justice system.

Keywords: Bail, Non-bailable offenses, Judicial Discretion, Arrest, Accused. 

INTRODUCTION 

The Criminal Justice system of our country is vested with a duty to ensure the prevention of crime and the proper application of law and its principles. “Bail is the rule, jail is an exception”. The Supreme Court established this legal principle based on the right to freedom under Article 19 and the right to life and personal liberty under Article 21 guaranteed by the constitution of India. Bail is a conditional release of a detained individual by signing a bond of particular security which can be forfeited on non-appearance. It ensures the appearance of the person accused to protect the integrity of the process without unreasonably and unjustifiably interfering with his liberty. Granting bail has a dual objective and it must be balanced between these two, firstly, innocent unless proven guilty, and secondly, shielding the society from the misadventures of the alleged person. Thus, the jurisprudence of bail must equilibrate the idea of both freedom of the accused person and the interest of social order. 

Bail is an undefined term under CrPC but ‘provisions as to Bail and Bonds’ is provided under Chapter XXXIII of CrPC which consists of Sections 436-450 of the code. Offenses have been classified as bailable and non-bailable offenses under Section 2(a) of the CrPC which defines firstly, bailable offenses that are less heinous with lesser punishment in which the accused ‘shall’ be released by bail by the Officer in charge of the Police Station/ Court under Section 436 of CrPC as it is the right of the person and secondly, non-bailable offenses are any offenses other than bailable offenses which is not mentioned under First Schedule of CrPC. In these offenses, bail ‘may be’ granted by the court as it is at the discretion of the court under Section 437 of CrPC. Considering the provisions of CrPC, bails can be classified into three types. Firstly, Regular Bail in which the accused in police custody can be released according to the procedure laid down in Sections 437 & 439 of CrPC. Secondly, an Anticipatory Bail is an application by a person under apprehension of arrest for a non-bailable offense under Section 438 of CrPC. Thirdly, Interim Bail provides temporary bail to the accused until his/her regular or anticipatory bail application is pending before the court. 

RESEARCH METHODOLOGY

This paper uses a qualitative assessment of research methods, comprising a descriptive and in-depth analysis of academic articles and case studies relating to the granting of bail. This work depends on both primary and auxiliary sources which include enactments, demonstrations, and decisions articulated by the courts. By assessing the established works of various scholars, this paper aims for an enhanced understanding of the issue. 

REVIEW OF LITERATURE

Samrat Bandopadhyay writes about how bail is a right in bailable offenses and in non-bailable offenses, it is at judicial discretion. Sessions Courts and high courts possess broad authority in bail decisions which signify judicial discretion in maintaining justice. In the article Misuse of Bail Provision in India, Prerna Sharma writes about how the bail law must balance societal safety with the presumption of innocence. It also highlights the misuse of bail provisions and proposes different ways to be incorporated into law to curb such abuses. In the case of Satendra Kumar Antil v. CBI, it issued directions to follow these two sections while granting bail. In this case, the court also emphasized Section 436A of CrPC which states that under-trial prisoners who have undergone detention for more than one-half of the maximum period shall be released by the court and there is no need for the accused to file a bail application. The court in this case directed that there must be a shift from monetary obligation, i.e., bail bond, to other factors while granting bail. Factors such as the accused’s background, status, position, employment status, monetary conditions, prior criminal record, and probability of conviction. It also emphasized that bail applications ought to be disposed of within two weeks. Thus, the Supreme Court shows a progressive approach in protecting the rights of the accused.

JUDICIAL DISCRETION

While granting any of these bails, the court must ensure ‘due caution’ so that it doesn’t restrain any person and doesn’t violate their life and liberty. In the case of Gudikanti Narasimhulu v. Public Prosecutor, Judge Krishna Iyer stated that in the criminal justice system, granting bail for non-bailable offenses lies in a grey area that often depends on the gut feeling of judges which is known as ‘judicial discretion’. However, it involves matters of freedom, fairness, and public safety which led to the importance of having a well-established principle regarding bail. As held in the case of Mansab Ali vs Irsan, bail jurisdiction is discretionary when deciding cases on non-bailable offenses under Sec 437 of CrPC, the court has to take great care and caution and has to ensure by balancing the rights of the individual and the interest of the society.

  1. ESSENTIAL CONDITION EVOLVED BY THE COURT FOR GRANTING BAIL UNDER SECTION 437 

Over time, this has led to the evolution of conditionalities for granting bail via judicial precedents to establish fundamental principles when determining whether to grant bail or not in non-bailable offenses. Firstly, the nature and gravity of the offenses; secondly, the severity of the punishment and conviction involved in the offense; thirdly, the danger of tampering with evidence; fourthly, after granting of the bail, what are the possibilities of absconding the process of trial and justice; fifthly, whether the accused person will possibly commit the same offense after granting bail; sixthly, whether the accused person in question is a child, infirm, or woman; seventhly, the health conditions of the accused; eighthly, whether the person will take a coercive approach to influence victims and witnesses during the trial process; lastly, character, behavior, means, status, and position of the accused person. These are essential considerations in the decision-making process of the court in granting bail for non-bailable offenses.

  1. GRANTING BAIL SHOULD BE CAUTIOUSLY AND NOT ARBITRARILY

While granting bail in non-bailable offenses, the court should consider the abovementioned circumstances and the decision of judges should be based on established rules and principles of law which should not be arbitrary and vague. Bail should not be rejected just because the accused wants to be released and has a strong probability of doing so. However, it may be rejected, if there is a risk that the accused would harm the legal process if released on bail. In the case of Govind Prasad v. The State of West Bengal, it held that granting bail is a judicial, not a ministerial function, and in the case of Chaturbhai Patel v. State of Gujarat, it was stated that the court will not be hustled into exercising these powers in cases where the offense is punishable with death or imprisonment for life.  Depending on the facts and circumstances of each case, the court has the discretion to grant bail. According to the Supreme Court in the case of Rao Harnarain Singh v. State, discretion must be exercised judicially, within the limitation set out in Section 437 of CrPC but the conduct of justice is of paramount importance, the court has the discretion to impose whatever limitations it considers appropriate. By doing so, the court has to ensure that there is no arbitrariness and deprivation of the life and liberty of the individual. 

  1. PERSONAL INTEREST VS SOCIETAL INTEREST 

The personal liberty of an individual must be controlled in the interest of society but society must never be overbearing to justify the total deprivation of individual liberty. The Supreme Court acknowledges that not granting bail particularly when the conviction is under Section 302 of IPC. While granting bail in non-bailable offenses, the court should be dealt with due careful consideration and while inclined towards liberty, it should be balanced with the societal interest. The system of bail extends its arms to financially well-settled people in purchasing liberty. In contrast, other people are forced to be in jail due to their monetary inability to afford liberty. The Supreme Court in the case of Sumit Mehta v. NCT of Delhi observed that conditions should be reasonable, effective, and acceptable based on the facts and circumstances of each case. In the case of Amarjit Singh v. State of NCT of Delhi, the session judge subjected a condition to deposit a sum of 15 lakh rupees in the form of a fixed deposit receipt while granting anticipatory bail. The Supreme Court found that said condition was unreasonable and onerous for granting bail. Thus, the court while exercising its discretion must consider both societal interests and personal liberty so it maintains a fine balance between each other.

  1. SPEEDY TRIAL

Article 21 confers that no person should be deprived of his life and liberty except by the procedure prescribed by the law, but it should be ‘reasonable, fair, and just’. There is a large number of under-trial prisoners in India as the accused who are poor are unable to provide the monetary obligation as surety for their bail bond. Their rights are being ignored due to slow investigation of cases and delays in trials. In the case of Hussainara Khatoon v. Home Secretary, it was stated that where procedural law doesn’t provide speedy trial and his pre-trial release on bail too, even if he is indigent and there is no risk of his absconding, then it impaired the fairness guaranteed under Article 21 of the constitution. Thus, in the case of Abdul Rehman Antulay v. R.S. Nayak, the Supreme Court set a nationwide norm for quick trials for all courts as it is in the best interests of everyone to ascertain the guilt or innocence of the accused person as quickly as possible and unnecessary delay may undermine the capacity of the accused to defend himself. But those under-trial individuals who are capable of violating the terms of bail should be sent to custody. By exercising judicial discretion in non-bailable offenses, the court shall take into account the overcrowding of prisons. Currently, in 2022, former CJI N.V. Ramana launched a software named ‘Fast and Secured Transmission of Electronic Records (FASTER)’ for faster and safer transfer of bail orders passed by the Supreme Court or any other court to Jail Officials to prevent any attempts of manipulation in orders which can hamper personal liberty of the accused person. 

  1. ANTICIPATORY BAIL

The session or high court must consider both the liberty of the person and the larger interest of state and society while granting anticipatory bail as the bail is obtained in advance, which is before the arrest, and after granting of this bail under Section 438 of CrPC, police cannot detain accused person. The court should consider the nature and seriousness of the crime as it is likely to induce the petitioner to avoid the course of justice. In the case of economic offenses such as smuggling, hoarding, and manipulating foreign exchange, it is not safe to exercise the power and grant bail as there is a risk of repetition of the same offense. The power to grant these bails is extraordinary and must be exercised only in exceptional cases as observed by Justice Bhagwati. However, suppose the petitioner can satisfy the court that the accusation against him is completely mala fide which is based on a dishonest motive to humiliate him. In that case, he may be entitled to anticipatory bail. But in the case of Bhagirathi Mahapatra v. State, it was held that just because it is alleged that the petitioner apprehends his arrest on a false accusation that will disgrace him, the court will not justify granting anticipatory bail. The court must satisfy itself with other two conditions while granting bail which was laid down in the case of Gurubaksh Singh v. State of Punjab, firstly, the accusation must be of non-bailable offenses stemming from the facts already in existence and secondly, there must be a reasonable apprehension that he would be arrested based on such an accusation. These two conditions must be fulfilled simultaneously for the court’s exercise of its discretion under Section 438. 

  1. MISUSE OF POWER

While exercising judicial discretion in granting bail in non-bailable offenses, in that discretion to get quick results, the technique has certain ineffective and corrupt aspects due to requests and pressure from powerful individuals or due to settlement of monetary gains between the parties. Many times due to ‘political mutualization’, the ruling party helps to facilitate bail of the accused person who is a member of the party or the alliance party for the mutual interest. In the recent case of granting bail by the Delhi High Court to Brij Bhushan Singh and Vinod Tomar in a sexual harassment case in the year 2023. In this case, the court exercising its discretion granted bail to them and stated that there was no means of threatening or influencing the witnesses and complainants. Here, the court completely ignored the background, status, and position of the accused which is an essential condition for granting bail as held in the case of C.B.I. v. Amaramani Tripathi. Singh and his entire family are involved in politics and are very influential. He was also charged in a TADA case for allegedly harboring the associates of Dawood Ibrahim. He had all the means and power to tamper with the evidence and witnesses and by ignoring this factor, the court has abused its power while granting bail. 

Due to the unrestricted power of the court, these are frequently abused and criticized. Higher courts often canceled bail given by subordinate courts as highlighted in the case of Balchand Jain v. State of M.P. that magistrates must carefully consider the legal provisions while granting bail. If they fail to do so, the bail order may be deemed illegal and can be quashed by the higher courts. It may lead to abuse of their powers in the name of securing justice. The inherent power conferred by high courts under Section 482 of CrPC cannot be exercised if there is a suitable alternative for resolving the dispute of the accused party and it cannot be interchangeably used to Sections 438 & 439 of CrPC applications. Thus, courts should exercise caution while granting bail.

SUGGESTIONS

Currently, judges have complete discretion in granting bail to the accused person. Due to the lack of a law on bail, there exists a lack of uniformity which needs to be changed. It is violative of Articles 14 & 15 of the constitution due to discretion in granting bail leading to differences in treatment of persons accused of the same offense. This leads to judicial confusion in the criminal procedure of law which reflects an unclear and inchoate legislative policy. To gain some credibility with fair equal rules and laws, some effective steps have to be taken.

  1. Enactment of a comprehensive bail code: The proposed code must reflect the basic nature and scope of bail, the rights available to an accused person, the power of judges and police officials, check and balance over those powers, and an exhaustive list for granting and rejecting bail. It is to streamline the grant of bail which aims to reduce the number of accused persons in jail. With various provisions, the state also has to perform effectively such as speedy trial, availability of legal aid, and proper functioning of the police power. 
  2. Check over the exercise of judicial discretion: The power of the court authorities in granting bail should be closely controlled and hold judicial personnel accountable for granting bail to the accused person without any proper justification. There also must be justified criteria for rejecting bail which is already granted by subordinate courts so that they will not be able to misuse their powers. It must adhere to the ‘principle of soundness’ which requires adequate reasons must be given by the court when granting or rejecting the bail.
  3. Fixing of amount for bail bond: As bail bonds depend on the discretion of the court which leads to inequality and creates differences in the same kind of offenses. Thus, the court while exercising its discretion must consider the ‘principle of proportionality’ that considers the gravity of the offense and status of the bail applicant while fixing the bail amount so that the personal liberty of the accused person is maintained and the accused person who is poor should not suffer due to heavy bail bonds amount. 
  4. Clarity and genuineness of the grounds: It is essential to ensure the clarity of the grounds proposed by the accused when seeking bail. However, after the completion of the police investigation, the accused secured bail on false grounds that should be penalized with his advocate who presented misleading information to the court for their bail application.
  5. Adopt a reformative approach: It upholds the idea of presumption of innocence and maintain liberty and safeguard their rights within the legal system. It also underscores the importance of rehabilitation and reintegration of the accused into society by providing support services like counseling, education, and vocational training. Adopting this approach aligns with the spirit of Article 21 of the Constitution which contributes to a fair and effective justice system. 

METHOD 

This paper has utilized a qualitative assessment methodology as it examines primary sources, i.e. Sections 437, 438, and 439, and examines constitutional provisions, particularly Articles 19 and 21. It analyses landmark judicial decisions, such as Gudikanti Narasimhulu v. Public Prosecutor, Mansab Ali vs Irsan, Satendra Kumar Antil v. CBI, and others that have shaped the principles for granting bail. It also reviews recent cases of Brij Bhushan Singh and Vinod Tomar to showcase contemporary issues and the potential for misuse of judicial discretion. 

Despite the thorough research, it underscores limitations that provide scope for further research that the inconsistency in judicial discretion makes it challenging to form uniform principles as different judges may interpret the same legal provisions differently and the paper relied heavily on secondary data sources, which may carry biases and limitations. 

CONCLUSION

Despite adherence to legal guidelines, the Indian criminal system has some flaws in granting bail with discretionary authority. Bail is governed by the idea of ‘innocent till proven guilty’ and this must be established beyond a reasonable doubt by the courts. It breaches the right to a fair trial when the accused person is denied bail, thus, the court should evaluate the facts and evidence of the case critically and rationally to make decisions that uphold the legitimacy of the judicial process. Within the framework, ‘judicial discipline’ should give paramount importance which respects the hierarchy of courts and emphasizes the importance of established legal procedures. By adhering to this hierarchy of the court, legal matters should be addressed first at lower courts before approaching higher courts. It also emphasizes the independence, responsibility, and autonomy of lower courts to administer justice and grant or reject bail fairly within their prescribed jurisdiction. However, the discretion of courts to grant bail in non-bailable offenses should be exercised justly and reasonably. It should consider the socio-economic status of the accused person to prevent individuals from evading the legal process. Escaping accountability for their actions impedes the functioning of society as a whole. As well said by Justice Dalveer Bhandari “Society has a vital interest in grant or refusal of bail because every criminal offense is an offense against the state. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society”.

BHAWANA KEDIA

2nd YEAR (IV SEMESTER)

OP. JINDAL GLOBAL UNIVERSITY