Laws should be like clothes, they should be made to fit the people they are meant to serve. Indian Constitution expressly enunciates India to be a ‘socialist’ nation. Justice-social, economic , and political & Equality of status and opportunity are one its vital cornerstones. The bail jurisprudence of India, however has not lived up to this core postulate. It’s high time that bail reforms in India are undertaken as an urgent desideratum to make it more realistic, practical, reasonable and to synchronize it with the objectives of criminal justice system.
A rigorous analysis of the Government statistical data portrays a grim scenario that 67.6 percent of the prison population in India is under-trial as on 31st Dec,2013 (NCRB). This amply infers that the provisions of sections on bail are not wellimplemented. Prisons in India are overcrowded to occupancy of 120 percent. This prison overcrowding leads to inhumane conditions of prisoners in jail and its antithetical to the ‘United Nations Standard Minimum Rules for Treatment of Prisoners’(The Mandela Rules). A jail inmate had written about these inhumane conditions in jail to Justice V.R.Krishna Iyer (Sunil Batra v. Delhi Adminstration, 1978 4 SCC 409). A majority of under-trials around 70.6 percent are illiterate or semi-literate. This categorically underlines the low socio-economic strata to which these under- trials belong. Moreover, the percentage of bail being granted to under-trials in India is also far lower than ideal, a mere 28 percent of the accused persons have been granted bail. Research has shown that out of two thousand accused persons released on bail , less than one percent have failed to appear before courts till the conclusion of the trial. Thus, liberalisation of bail system based on practical approach instead of an over scrupulous and overcautious one is advisable especially when 21 percent of population is living below poverty line(Planning Com mission press note on poverty estimates,2011-12, GoI, July 22,2013). The powerful, rich and influential class obtain bail promptly within no time, while the poor, underprivileged, downtrodden mass languish in jail as under-trials for years due to denial of bail. Reforming the criminal justice system in toto is a long run exercise , the reforms related to bail jurisprudence can however be taken up on a priority basis, at least, after the settled ruling of Supreme Court that “the normal rule is bail and not jail”(State of Rajasthan v. Bal Chand, AIR 1977 SC 2447)
The word ‘bail’ is derived from the old French word ‘bailllier’ which means to give or deliver. It’s also related to Latin word ‘bajulare’ meaning ‘to bear a burden.’ Bail is of ancient origin and has deep roots in English and American law. In medieval England, the custom of bail grew out of the need to free untried prisoners from disease ridden jails while they were waiting for the delayed trials to be conducted by the travelling justice. The concept of bail can be traced back to 339 BC. The circuit courts in Britain during medieval times had a system of bail in vogue.
The term bail has not been explicitly defined in Code of Criminal Procedure, 1973. The Lexico dictionary of Oxford defines bail as “the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.” While Wharton’s Lexicon 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. The literal meaning of ‘bail’ is surety (Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023) . SC has further elaborated on bail in the same decision by stating that “Bail is well understood in criminal jurisprudence and chapter XXXIII of the Code of Criminal Procedure that contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a nonbailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive contract that could still be exercised through the conditions of the bond secured from him. ” Thus primary object of bail is to secure the presence of accused before the court during trial and before the law enforcement agencies for interrogation and investigation during the trial.
Sections 436 to 450 of the Code of Criminal Procedure,1973 contains primary provisions relating to granting of bail and bonds. Section 2(a) of Cr. P.C. classifies offences as ‘Bailable’ and ‘Non-bailable’ and reads as under- “bailable offence means an offence which is shown as bailable in the First schedule or which is made bailable by any other law for time being in force, and ‘nonbailable’ offence means any other offence. It entails release of person on one’s own bond, with or without sureties. Section 2(c) of Cr.P.C defines ‘Cognizable offence’ as an offence in which , a police officer may, in accordance with the first schedule of Cr.P.C. , or under any other law for time being in force , arrest without warrant. Section 2(x) of the same code defines ‘warrant case’ as a case relating to an offence punishable with death , imprisonment for life or imprisonment for a period exceeding two years. In bailable offences , bail is matter of right for the accused while in non-bailable offences, it often becomes a matter of judicial discretion. This discretion cannot be bereft of the significant element of rights and dignity of individual (‘Taking Rights Seriously’ by Ronald Dworkin). Its expected of a pragmatic minded judge to use his discretion judiciously and not capriciously while granting, refusing or cancelling a bail after extending due consideration to the interest of victim, accused and the society at large i.e. all parties concerned (Dipak Shubhashchandra v. CBI, AIR 2012 SC 949)
Justice Krishna Iyer in Narasimhulu v. Public Prosecutor had emphatically remarked about Indian bail jurisprudence that – “ The subject of bail belongs to the blurred are of the criminal justice system and largely hinges on the hunch of the bench , otherwise called judicial discretion.” This antiquated concept of bail has some inherent handicaps and it will be myopic to argue that only monetary loss can act as a sole deterrent against accused fleeing from justice. Some other crucial and relevant factors such as socio-economic condition of accused, length of his residence in the community, employment status, reputation, character, criminal antecedents, the identity of responsible members of his community related to him, nature of offence, probability of conviction, nature of accusations, frivolity of prosecution, behavior of accused, his means and stand ing in society, his deep family ties, roots in community, job security, membership of stable organisations and many other factors regretfully don’t often move the court conscience. This may be a peculiar consequence of our adversarial system, albeit, it dampens the spirit of ‘distributive justice’ envisaged in the Constitution. The Hon’ble Supreme Court in the matter of State of Maharashtra Vs. Sitaram Popat Vetal has stated few factors to be considered for granting bail such as the nature of accusations and severity of punishment in case of conviction and nature of supporting evidence, reasonable apprehension of tampering of the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge.
The fundamental contention of bail reforms in India is to convert the ‘court of law’ into ‘court of justice.’ This is a grave concern especially when NCRB data reveals that over half of the trials in the country end in acquittal of the accused. The overall conviction rate in India at the end of 2017 was 48.8 percent. The rate of conviction in countries like U.K., USA, France, Japan and Singapore is more than 90 percent. There is thus dire need to relax the conditions of bail, timely examination of witnesses, ensuring presence of accused through video conferencing, fixing deadlines for conclusion of trials,and releasing under trials based on good behaviors must come within ambit of bail reform umbrella.
In majority of the cases in trial courts, magistrates or judges insist on pre-trial release only against bail with sureties. The amounts of sureties fixed are often so unreasonable and arbitrary that bail grant does more harm than good to the economically poor accused and his basic fundamental right of liberty under article Article 21 is thus at stake. Art 21 read with Article 39A(equal justice & free legal aid) guarantees every citizen protection of life and liberty irrespective of his caste, colour, creed and economic status. The article reads as- “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Article imposes procedural limitations on law that affects personal liberty. It commences as soon as interference with personal liberty commences and ends only when that interference ceases. Thus, when bail is denied by court, its an infringement of his personal liberty. Moreover, denying bail only because the accused is unable to furnish the arbitrary surety amount is like adding insult to his injury. What if tomorrow the same accused is completely exonerated of charges at the conclusion of his trial? The matter of bail is not merely a procedural right but a substantive fundamental right under Article 21.
In Hussainara Khatoon v.Home Secretary, AIR 1979 SC 1360 , the apex court had set a precedent when it had stated that pre-trial release on personal bond (i.e. without surety) should be allowed where the person to be released on bail is ‘indigent’ and there is no substantial risk of his absconding. Supreme Court had also ordered release of under trial prisoners whose period of incarceration had exceeded maximum period of imprisonment for their offences. It had expressed disappointment over failure of magistrates to adhere to section 167(2) of Cr.P.C. which provides for release of under trial prisoners on expiry of 60-90 days respectively. Jutice P.N.Bhagwati had emphatically observed in Hussainara Khatoon case that “Though speedy trial is not specifically enumerated as fundamental right, its implicit in broad sweep and content of Article 21. Under-trial prisoners languish in jail because they were down-trodden and poor, and not because they were guilty.” Most of the trial courts however are still seen adamant over monetary surety for release of under-trials on bail irrespective of their socio-economic condition. It’s incumbent upon court to consider ‘failure of speedy trial’ as one of the important factors for granting bail post Hussainara Khatoon judgement.
The Apex Court in Moti Ram v. State of Madhya Pradesh, AIR 1978 SC 1549 had observed – “It shocks one’s conscience to ask a mason, like the petitioner to furnish sureties for Rs.10,000. The Magistrate must be given benefit of doubt for not fully appreciating that our Constitution by “We the People of India” is meant for the butcher, the baker and the candle stick maker… shall we add the bonded labour and the pavement-dweller.” In this case, the Chief Judicial Magistrate had directed a poor mason to furnish surety and bond of Rs.10000. He had even refused to allow his brother to become a surety as his property was in the adjoining village . Supreme Court had further ruled that accused cannot be asked to furnish surety from his own district where he’s being tried for the alleged offence.
The callousness of state executives towards the plight of indigent under trials is evident from the case of Rudul Shah v. State of Bihar AIR 1983 SC 1086. In spite of acquittal of all the charges by the competent criminal court on 3rd June,1968, he was released from Mu zaffarpur jail only after 14 years i.e. on 16th October,1982. The State Government of Bihar, later through its officers produced an affidavit in Supreme Court that he was reported to be insane on the day of release. The jail authorities, however did not disclose any data related to medical diagnosis or evidence on the basis of which he was adjudged as insane neither they put forth the specific measures undertaken by jail authorities to cure him of affliction during those fourteen years, and what is more important, whether it took fourteen years to set right his mental imbalance. Hon’ble Supreme Court of India had directed Government of Bihar to pay the petitioner a sum of rupees thirty thousand in addition to rupess five thousand already paid by it. This dynamic move of the apex court resulted in the emergence of ‘compensatory jurisprudence’ for violation of right to personal liberty.
Section 440 of Cr.P.C explicitly cites that the amount of every bond executed shall be fixed with due regard to circumstances of the case and it shall not be excessive. The High Court or Court of Session may direct that the bail required by a police officer or magistrate be reduced. In Shankara v. State of Delhi administration 1996 Cr.LJ 43 , the High court of Delhi placed an obligation upon the state to take into consideration all the factors related to the accused. The conditions of bail were made lenient in this case. Any accused charged with minor offences were to be released on ‘personal bonds’ and those charged with serious offences were to be released on personal bond along with one surety to the amount of rupees one thousand only.
The expert committee on legal aid headed by Justice Krishna Iyer, in 1973 had submitted a report titled ‘processual justice to the people’ . It provides an alternative to the money bail system. It had recommended for the release without monetary sureties and to release on one’s own recognizance with punishment provided for violation. In his considered view, Justice Iyer had believed this system is beneficial in reducing the plight of poorer and weaker sections of society. Even the English parliament had vouched that bail must be reasonable in the Bill of Rights in 1689. During the reign of Henry II, the English crown had promulgated ‘Assize of Clarendon’, a legal code comprised of 22 articles. One of which had promised speedy justice to all litigants. USA had even enacted a Speedy Trial Act in 1974.
It’s the test of judicial prudence to grant bail, to deny it or to cancel it. The judge is however expected to bear in mind that not only the accused related factors only matter, but other factors such as offence related factors, victim related factors, society related factors , state related factors, change in circumstances during the trial, investigation and postconviction factors too play a crucial role in influencing the outcomes of bail. Moreover, the cardinal principle of criminal justice system is ‘an accused is innocent until proven guilty’ and ‘let hundred guilty be acquitted, but one innocent should not be convicted.’
When the offence is not grave and accused is poor, there’s no point in incarcerating him and bail should be granted leniently depending upon merits of the case. With bail denial, it’s not only Article 14, 21, and 22 that are jeopardized, but it hampers the chances of accused to prepare his robust defence against the prosecution. This is peculiarly devastating when his defence is against the state which is his unequal adversary. It fetters not only his person but also his chances of proving his innocence. Moreover, burden of his incarceration unduly causes harassment of his family members, especially in those families where accused is the sole bread earner. If accusations are leveled only to cause harassment and humiliation to the under-trial, denial of bail in such cases mars the probability of ‘legislating morality’ which should be the end point of any criminal justice system. The court must clearly comprehend the exact role of the accused in the case. The genuineness of the case has to be concluded through pragmatic prism. The judge has to ensure that prima facie case is made out or not. Exhaustive analysis of evidence, facts, and documents is not required at the stage of bail. Each case should be considered on its own merit.
Section 439 of Cr.P.C. gives special powers to High Courts or Court of Sessions regarding bail. High Court has concurrent jurisdiction with that of subordinate magistrates trying the case and not merely a revisional jurisdiction in matters of bail. A High Court or Court of Session may direct that any condition imposed by a magistrate when releasing any person on bail be set aside or modified or direct the release of any person accused of an offence and in custody on bail.
While dealing with cases of indigent, financially weak, infirm individuals, or women, courts should be liberal in releasing them on their personal recognizance. Arresting an accused should be last and least preferable option and it should be restricted to only cases of grave concern. Moreover, detaining such large number of under trails in jails without them having proven guilty takes a heavy toll on the exchequer. Food, clothing, shelter, medical treatment, etc is provided to them out of funds of Government treasury. As per NCRB, the expenditure per inmate has increased by over 50 percent between 2010 and 2015. The average annual expenditure on a prison inmate has increased from Rs. 19,447 in 2010-11 to Rs.29,538 in 2014-15.
Amount of bail bond should be fixed depending upon financial viability of the accused, his probability of absconding, his solvency and not by merely adhering mechanically to the schedule. Enlarging category of bailable offences as classified under Cr. P.C. can also be a wise and welcome move. Providing free legal aid to the accused as envisaged in Art 39 –A before charge sheet is filed becomes vital for administration of justice. Inclusion of Section 436 A in Cr.P.C through Criminal Amendment Act of 2005 was laudable in terms of bail reforms. The section provides for releasing an accused on his personal bond (with or without sureties) one who has undergone up to one-half of the maximum period of imprisonment specified for his offence during the period of investigation, inquiry or trial. This provision is however not applicable for offences with a punishment of death sentence. The court will hear the public prosecutor before deciding upon the release of the accused and if satisfied by his arguments will order his continued detention or release on bail instead of personal bond with or without sureties.
The cherished objective of criminal justice system is that ‘every guilty person is punished and every innocent person is protected.’ The apex court has time and again criticized the impractical bail system by stating that ‘It’s a travesty of justice that many poor accused are forced into long cellular servitude for little offences because bail procedure is beyond their meager means. The deprivation of liberty for the reason of financial poverty only was held to be an incongruous element in a society aspiring for distributive social justice to all its citizens. Thus , the issue of bail reforms should be considered through multidimensional approach as law is a living and a dynamic concept that has to stand test of time. Rehabilitation and not retribution should be focus of the system, but its contours can be moulded by the legislature under the guidance and consultations of the judiciary. ‘Laws too gentle are seldom obeyed and too severe are seldom executed.’
