ABSTRACT
This paper delves into an extensive analysis of bail jurisprudence in India, examining the basic aspects of bail, major changes took place in the new law, recent trends and challenges. The research also criticizes the arbitrary and discretionary power of court while giving decisions. The paper explores the recent development in bail system including the liberal approach exerted by the judiciary in recent times by providing remarkable precedent containing guidelines for the whole criminal justice system. Through its findings and recommendations, this paper aims to inspire a more empathetic and inclusive approach to bail, one that is not arbitrary, restores hope by providing justice timely.
KEYWORDS
Bail, Undertrial Prisoners, The Bharatiya Nagarik Suraksha Sanhita, The Code of Criminal Procedure, Constitution of India, Arrest, Trial
INTRODUCTION
Bail – is a crucial aspect of criminal justice system which extracts its roots from Art. 21 of the Constitution of India (hereinafter as COI) which enshrines the right to life and liberty. This personal freedom is subject to the restrictions entrenched by the procedure established by law which is required to be just, fair and reasonable. It is a tool by which freedom of an accused can be ensured while preventing any undue favour. It also upholds the principal of presumption of innocence wherein the person is presumed to be innocent until proven guilty. Granting of bail to an accused protects him from unnecessary detention till the guilt has been proven beyond reasonable doubt in the trial. The COI also inculcates the right to speedy trial yet delay is persistent in our judicial system. This delay affects the justice delivery and entitle an accused to bail. But this does not happen all the time majorly undertrial prisoners suffer due to the delay. The jails are filled with undertrial prisoners. A data published by National Crime Record Bureau (NCRB) in 2022 shows that number of undertrial inmates as reported were 75.8% of the total prisoners and this seeks a surge by 1.7% since 2021. Out of 4 prisoners 3 are undertrial in India. The major reason behind this large number of data can be the inefficiency of bail laws in the country. The Supreme Court in Satender Kumar Antil v CBI elucidated the need for the separate bail law for the country. The new regime of criminal laws is passed with a view to fix the gaps and provide speedy justice. This study discusses the key aspects of bail, the additions made in the new law, the trends followed by the judiciary in granting bail, challenges pertaining in this field and how to overcome those challenges.
Meaning of the term Bail
The term Bail came from old French word Baillie, meaning giving or delivering. The word is also related to a Latin word Bajulare which means to bear a burden. Wharton’s Lexicon and Shoud’s Judicial Dictionary defines bail as “the setting free of the defendant by releasing him from the custody of 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”. A definition of same notion has been inculcated in the Bharatiya Nagarik Suraksha Sanhita,2023 (hereinafter as BNSS) which exhaustively defines bail “as release of person accused or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or court on execution by such person of a bond or a bail bond”. The old Code that is to say the Criminal Procedure Code, 1973 (hereinafter as the CrPC) did not explicitly define bail rather it used to define the nature of the offences as ‘bailable offence’ and ‘non-bailable offence’, its meaning and scope has been derived by the courts in various judicial precedents.
Meaning of Bail Jurisprudence
Bail jurisprudence means a set of rules or body of legal principles or precedents which deals with the release of an accused during an investigation or trial. Formerly, the CrPC used to be the governing legislation for bail procedure in India. Now the BNSS has taken the rein to regulate the bail jurisprudence and the criminal justice system of the nation.
RESEARCH METHODOLGY
This study employs a qualitative research approach, utilizing a doctrinal legal research methodology. The research involves a comprehensive review of relevant statutes, case laws and academic literature to analyse the concept of bail in India. The study relies on primary sources including the Constitution of India, the Bharatiya Nagarik Suraksha Sanhita, the Code of Criminal Procedure and judgements of the Supreme Court, to understand the legal framework governing bail. Secondary sources such as academic articles, books, and commentaries are also used to gain insights into the theoretical and practical aspects of bail. The research adopts an analytical and interpretive approach by applying legal principles and concepts to examine the jurisprudence on bail and identifying emerging trends and issues.
REVIEW OF LITERATURE
Janak Raj Jai in his book “Bail Law and Procedures” discussed elaborately that it is a well settled law, that granting of bail is a rule and denial of the bail is an exception. Unfortunately, the letter and spirit of the law is not adhered to by most of the Courts in our country. Personal liberty of a citizen and right to life under Article 21 of the COI is the most invaluable fundamental right which cannot be jeopardized by any agency or institution whatsoever.
P. Ramanatha Aiyar in his book Code of Criminal Procedure revised by Justice J.K. Mathur extensively comprehends the provisions of bail its scope in Indian arena. He further gave tests on which a judge my rely while granting bail to an accused they are firstly the characteristics of the accusations, secondly the nature of evidence to bolster accusations, thirdly the gravity of punishment, fourthly the characteristics of sureties, and lastly the demeanour of the accused.
P.V. Ramakrishna, described that the right to liberty is one of the fundamental rights guaranteed by the civilized countries in their constitution. The first chapter of the book deals with the concept of ‘bail’ wherein the author has beautifully explored the fundamental rights enshrined in the COI and depicts as to how the constitution is the guiding light of the ‘bail’ laws. This book deals with the law of bail, bonds, arrest and custody at length.
Nishanth Dixit & Jyoti in their research paper broadly the analyse the aspects of bail jurisprudence in India and how the discretionary power of court provides a judge the flexibility in determining a sentence and bring forth the suitable reasons to grant bail.
Visham Duggal & Anil K. Dixit in their article highlighted the dire need of changes in the present bail system. They further accentuate the dreadful and shabby environment of prisons and reasons of custodial deaths.
TYPES OF BAIL
- Interim Bail
Interim means ‘for interval’ here the court grants bail for a predetermined period of time. this could last for fifteen days or for a month. Once the period of interim bail ends the accused is put in the prison.
- Regular Bail
This refers to bail in non-bailable matters. Section 480 if BNSS deals with the concept of bail in non-bailable offences. It states that if a person is accused of committing a non-bailable offence, he can be released on bail by the discretion of court other than the High Court or Court of Session but the person shall not be released on bail when-
- There is good reason that he has committed an offence punishable with death or life imprisonment
- Such person had been previously convicted of offences punishable with death, life imprisonment or imprisonment for 7 years or more, or he had been convicted on 3 or more occasions of cognizable offence punishable with imprisonment for 3 years or more but less than 7 years.
- Mandatory Bail
This is another name for default bail. Provision under which default bail is covered is Section 187 sub section 2 of BNSS. Where it is stated that if the chargesheet has not been filed by the Investigating Officer within the prescribed time limit the accused is entitle to be released on bail.
- Anticipatory Bail
Anticipatory Bail is a form of protection against future arrest. This means that an individual can seek or request to get bail if he has an apprehension of being arrested in commission of a non-bailable offence. Section 482 of BNSS provides provisions for Anticipatory Bail previously under the Code Section 438 used to be the governing provision for Anticipatory Bail.
BAIL: AS A MATTER OF RIGHT
In the case of State v Biswanath Rao the Supreme Court held that bail is a matter of right of the accused and not the discretion of the court. In the Bharatiya Nagarik Suraksha Sanhita,2023 when a person is accused of a bailable offence bail is a right of the accused and not the favour granted by the court. When bail given to an accused, he is required to furnish a security as condition of bail but it should not be oppressive and resulting in denial of bail to the accused. The Law Commission also has recommended certain wider principles which were used in the Code and now in the BNSS as well, they are as follows:
- Bail is a matter of right in bailable offence.
- In non-bailable offence bail is matter of discretion.
- Bail should not be granted by the Magistrate if the offence is punishable by death or life imprisonment.
- The Court of Sessions and the High Court have a broader discretion in granting bail in offences with punishment of death or life.
BAIL: AS A DISCRETION OF COURT
In non-bailable offences it is a notion that bail cannot be granted which is untrue. Generally, bail is not refused by the court where it is prima facie clear that the evidence did not lead to a concrete finding showcasing the guilt of the person alleged to commit the offence he is been tried of. While exercising its discretion the court need not to be arbitrary and capricious, bail should be granted according to-
- Seriousness of the crime
- Conduct of the accused person
- Overall impact of crime on society at large
CHANGING REGIME WITH NEW CRIMINAL LAWS
With the implementation of new laws, the colonial and imperial remnants, which were slow and always poses a question on working of Indian Justice System, ends. The new laws are in consonance with the Indian framework and therefore will ensure transparency and will allow the judiciary to work in its full potential. The BNSS is more or less same with regard to the Bail provision as the Code, but the major changes are if a person is an accused of more than one or multiple offences then he shall not be released on bail. Where a person is detained on completion of ½ or 1/3rd of period mentioned, the Jail Superintendent shall make an application to the court for releasing of such person on bail. Another important aspect that has been added to the new law is that a person accused of an offence against section 65 (persons committing an offence of rape on woman under 16 years of age) and section 70 (2) (gangrape on woman under 18 years of age) of the BNSS, he shall not be entitle to apply for anticipatory bail. These major changes envisaged the basic principle provided in the Constitution and endeavours to make a remarkable change in the Criminal Justice system.
RECENT DEVELOPMENTS IN BAIL JURISPRUDENCE AND CHALLENGES BESET
The term “bail is rule and jail is exception” by J. Krishna Iyer seems to be washed away in the past few decades. The number of undertrial prisoners in jails is increasing relentlessly. But the Higher Judiciary is working persistently in order to establish the paramount idea of personal liberty.
In the case of Dataram Singh, the court restored the principal of ‘bail, not jail’. The Court further stated that the basic facet of criminal jurisprudence is granting of bail. But unfortunately, these basics have been lost and resulting in more and more incarceration for longer periods.
In Uday Mohanlal Acharya v State of Maharashtra, the SC laid down that after the expiration of period of 90 days, an indisputable right accrues in the favour of the accused to be released on default bail.
The same view has been reiterated by the hon’ble SC in Bikramjit Singh v State of Punjab.
In M. Ravindran v The Intelligence Officer DRI, the court linked the provision of Sec. 167(2) of the Code and Art. 21 of the COI. Where the court asserts that the Art. 21 promises protection of life and liberty against unlawful and arbitrary detention and it should be given that interpretation which would help in serving the purpose.
The case of Gurbaksh Singh Sibbia is a landmark judgement of the Supreme Court in Anticipatory Bail, wherein the court while putting forth its view regarding the duration of Anticipatory Bail stated that the scope of Section 438 should not be unnecessarily restrained by imposing irrelevant conditions.
In Supreme Court Legal Aid Committee v Union of India, where the SC Legal Aid Committee was representing Undertrial Prisoners, it was observed that the undertrial cannot be held in prisons for indefinite period of time. The most prominent view was that if the court thinks that the trial cannot be disposed off timely then the accused should not be suffered into the prison and should be released on bail.
The two most important case laws which in history of bail laws that are passed by the SC is Arnesh Kumar v State of Bihar and Satender Kumar Antil v CBI. Both the cases pave a way towards the reforms in the bail system. In the former case the court expound the guidelines on which the police have to obliged while and after arresting an accused. In the latter case the court upheld the guidelines given in Arnesh Kumar and further classified the offences with an intention to reduce the unnecessary number of bail applications before the court and to make drastic improvement in the condition of undertrial prisoners.
All these precedents indicate towards the umpteen efforts of the judiciary to resolve the plight of undertrial prisoners and upheld the constitutional principal embarked under Article 21.
CHALLENGES
- Arbitrary Discretion of the judges and magistrates often leads to biased decisions, perpetuating systematic injustices.
- The prolonged detention of undertrial prisoners, waiting for their trial violates their fundamental right to liberty and boosts the culture of incarceration.
- The inadequate provision of legal aid to marginalized communities results in unequal justice.
- The misconduct by the police is the major cause of surge in custodial deaths.
- Slow pace of criminal trials and bail proceeding perpetuates lengthy detention and undermines the presumption of innocence.
- The socio-economic inequalities persisting in the Indian society affects the justice delivery system. Rich gets justice easily due to money power and poor had to suffer melancholy.
SUGGESTIONS
After comprehensively determining all the aspects it is clear that there is a need of separate Bail Legislation which thoroughly deals with all the aspect of bail and provides a framework for speedy disposal of bail applications. Another aspect is enhancement in the legal aid to ensure equal access to justice and fair bail representation for marginalized groups of the society. The perspective of Human rights is to be inculcated. Also, a digital portal could be setup for remote bail hearings which will ensure time management and speedy disposal of bail application and shifting the burden of judiciary.
CONCLUSION
In conclusion, the paper has provided a comprehensive analysis of bail jurisprudence in India, highlighting the basic aspects, challenges and recent trends pertaining in the field. The discussion has underscored the need for fair, efficient and humane bail system that balance the interests of justice, public safety, and individual liberty. The suggestions proposed in this paper aims to address the issues prolonged in the bail system and how judiciary is burning the midnight oil to overcome the challenges and issues. Ultimately, a reformed bail system can contribute to a fairer and more compassionate criminal justice system in India.
SUBMITTED BY :
SALONI SHARMA
B.A.LL.B (Hons.) 5th year
LAW COLLEGE DEHRADUN