By Dr Deepali Vashist, Assistant Professor at Vivekananda Institute of Professional Studies, GGSIPU, Delhi.
Bail is a fundamental aspect of any criminal justice system that guarantees the accused the right to a fair trial. The practice of granting bail grew out of the need to safeguard the fundamental right to liberty. No person shall be deprived of their personal liberty unless prescribed so by a reasonable, fair and just procedure.[i]
Bail is a mechanism that ensures liberty to the accused without giving any unjustified benefit to them. However, it has been observed that the practice of granting bail is quite unstable and vague. Including factors like bail bond amount, considerations for granting bail and conditions imposed in the bail bond. There are various judgements wherein the apex court has observed that each case needs to be examined for its facts and circumstance before granting bail.
The paramount consideration for granting or refusing bail is to strike a balance between individual rights and the interest of society.
Meaning & Statutory Provisions
The term ‘bail’ perse is not defined under the Code of Criminal Procedure (CrPC), 1973. However, its etymology can be traced back to the old French verb ‘baillier’, meaning ‘to deliver’. The Mughal history has vivid mentions of bail, often called Zamanat or Muchalka.
In the Indian legal system, provisions related to bail can be found in Chapter III CrPrc under Section 436 to 450.
In the context of bail, the term ‘offence’ has been categorised as bailable offences and non-bailable. As defined in Section 2(a),
“‘bailable offence’ means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; ‘non-bailable offence’ means any other offence.[ii]”
Bailable offences are presumably less heinous therefore the sentence for the same is less severe and the accused can claim release on bail as a matter of their right.
Therefore, in bailable offences, it is mandatory upon the court and police to release the accused at any time during their arrest or custody.
The term ‘non-bailable’ doesn’t imply that bail can’t be granted at all. It simply means that the accused can’t claim it as a matter of their right at the time of the arrest or custody. But they can approach the court when while they are under trial. In non-bailable offences, its the court’s discretion to grant bail to the accused. And the same must be decided judiciously and not whimsically.
Bail Provisions in CrPC: A Tell-All
Section 436 and Section 437 CrPC deal with bailable and non-bailable offences respectively. Section 438 CrPC deals with anticipatory bail which is applied in anticipation or apprehension of the arrest. The objective of this provision is to protect a person from wrong and illegal arrest.[iii]
Stages of Filing a Bail Application
Bail can be filed in a criminal proceeding at different stages –
a. First, it can be granted after the arrest;
b. second, it can be granted to a person who has been an undertrial prisoner for committing a non-bailable offence and;
c. third, a bail application can also be filed by a person, who was convicted by the trial court and preferred an appeal against conviction.
Clause (a) deals with the situation where a person has been arrested in connection with an offence that might be bailable or non-bailable. This kind of bail can be given by a court before which the accused has been produced for the first time after arrest to comply with Section 57.[iv]
Whereas clause (b) specifically deals with the trial stage of a criminal case, it means the bail application is lying before the trial court which has the power to try the case as per schedule I.
At this stage of the criminal proceeding, the matter of bail is listed in the trial court. So, the court that has taken-up the bail application has more clarity about the involvement of the accused in committing a crime. As the investigating authority has filed the police report under Section 173 of the code.[v]
If the trial court refuses the bail application it may be justified in doing so. But when the court refuses bail at this stage, it must also complete the trial expeditiously as specified in Section 437(6). According to the Section,
“ If, in any case, triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.”
The motive behind Section 437(6) is to safeguard the fundamental rights of the accused and to ensure a speedy trial. This implies the application of the principle of natural justice.
Similarly, in Common Cause v. Union of India[vi], the court held that if the court finds it is not proper to release the under-trial prisoner at this stage of the criminal proceeding, then the court should pass at least necessary orders for concluding trial as expeditiously as possible.
Section 436A deals with the ‘Maximum period for which an undertrial prisoner can be detained’. In this case, when the accused, during the investigation, inquiry or trial have already undergone detention for more than half of the term of conviction. He must be granted bail unless the offence doesn’t amount to the punishment of death. The said accused could be released by issuing a personal bond or sureties.
Clause (c) states when the question of bail arises after conviction and the decision of the trial court that is the conviction order has been challenged in appeal or revision as the case may be. The question of bail depends upon the quantum of the sentence. The quantum of sentence can be divided into three categories- short-term sentences (a person sentenced to imprisonment up to 3 years), mid-term sentences (more than 3 years and less than 7 years) and long-term sentences (more than 7 years).
In case of short-term sentences, the appellate court allows admission of appeal, it may release the convict on bail and order that the decision of the trial court that is the execution of conviction sentence is suspended.[vii] And if the court deems it fit to refuse bail, then it may record reasons in writing. In case of refusal, the court should reconsider granting bail if the accused has lapsed half sentence as an under-trial prisoner.
A Glance at Fundamentals of Granting Bail
Bail has a long history in the Indian criminal justice system. The right to be released on bail accrues after arrest or on well-founded apprehension of the arrest. One of the fundamental Principle of the Indian criminal justice system stipulates that punishment should begin only after conviction. Hence, the right to liberty cannot be taken away from a person unless it is under the law. The Apex Court in Maneka Gandhi v. Union of India[viii] observed that depriving someone of their liberty without due process must be considered as a punishment.
Another fundamental principle that goes without saying is the presumption of innocence, there are very few cases where this principle is reversed. Therefore, one of the important tenets of bail and criminal jurisprudence is that a person is believed to be innocent until proven guilty beyond a reasonable doubt.
It has been traced out that the concept of bail emerges to secure personal liberty protected under Article 21 of the constitution, of the person charged with some offence. Under the principle of equality, equal treatment must be meted out even to a foreigner when granting bail.
The philosophy for granting bail has been discussed in various pronouncement including Vaman Narain Ghiya v. State of Rajasthan[ix] in which the court has observed:
“law of bail like any other branch of law has its own philosophy and occupies an important place in the administration of justice.”[x]
Another fundamental principle that is often neglected despite being primary to the criminal justice system is that bail is a rule to the exception that is jail.
With time, recent practice has emerged concerning successive bail applications. Second bail application cannot be filed on the same facts and grounds. Section 362 CrPC states,
“Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”
This bar lies against the judgment and final order not against interlocutory order passed during the proceeding; bail is an interlocutory order. Hence, Section 362 does not have any application on bail.
However, it has been clearly specified that the doctrine of res-judicata is not applicable on bail but still courts are bound by the doctrine of judicial discipline.
In Kalyan Chandra Sarkar v. Rajesh Ranjan[xi] the apex court held that if there is a substantial change in the facts and circumstances of the case, then it gives ground for making another application for grant of bail. So, there should be no apprehension in entertaining a second application.
The court also said that there is no prohibition on filing a fresh bail application on the filing of charge-sheet provided that on the earlier occasions, the bail application is decided based on other material, might be based on the First Information Report.[xii] So the bail application submitted after the filing of the charge-sheet should be considered as a change of substantial nature.
In LT. Col. Prasad Shrikant Purohit v. State of Maharashtra[xiii] the court said that an accused person has a right to make successive applications for bail, the court entertaining such subsequent bail application must consider the reason and ground on which the earlier bail application was rejected. And, in the case where bail is granted, the court should record reasons which persuaded the court to take a view different from the one taken in the earlier application.
The jurisprudence of bail follows certain fundamental and principles. The impending philosophy behind the practice of granting bail is to ensure that the right to life and liberty is protected. Bail jurisprudence is based on various principles. But if there could be some provision that enables an accused of personal representation before the court in case of rejecting the bail would be a great initiative in protecting the freedom and liberty of the accused. Delays in granting bail for the accused especially if they are innocent, not only affect the interest of an individual but it has an impact on the welfare, well-being of the society at large.
Another grey area in the application of bail is that it is granted quite later in the case. This is to also do with the saturation of cases and the overburdening of the legal system.
If at the initial stage of the case the court finds no prima facie evidence against the accused even in a non-bailable offence, it should grant bail in the interest of justice. It is pertinent to mention here that justice delayed is justice denied. Thus keeping undertrials in jail for a period longer than required is a violation of their constitutional and human rights.[xiv]
[i] The Constitution of India, art. 21
[ii]The Code of Criminal Procedure,1973sec. 2(a)
[iii]Author’s own submission
[iv] The Code of Criminal Procedure, 1973 sec. 57 says that no police officer shall detain in custody a person arrested without a warrant for a longer period than under all circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the magistrate’s court.
[v]The Code of Criminal Procedure, 1973 sec. 173 says- Report of a police officer on completion of the investigation.
[vi] AIR 1996 SC 1619.
[vii]The Code of Criminal Procedure, 1973 sec. 389 of the CrPC provides for the suspension of sentence pending the appeal; release of appellant on bail
[viii]AIR 1978 SC 597
[ix]AIR 2009 SC 1362
[xi]AIR 2005 SC 921.
[xii]Supra note 6 at 161.
[xiii] (2018) 11 SCC 458
[xiv]Author’s own submission.