“Bail is the rule and Jail is an Exception.”[1]
-Justice Krishna Iyer in State of Rajasthan vs.Balchand.
Under the Code of Criminal Procedure Code , 1973 (“CrPC“)there are certain provisions enumerated that provide statutory rights to a detained person or person who is apprehending detention. Among such rights, one right is known as ‘Bail’. The term bail has originated from a French verb – ‘Bailor’ which means “to give” or “to deliver” . In general, Bail means release on one’s own bond- with or without sureties. The bail does not set an accused free rather it is a provisional release of a detained individual who is an accused of a crime and the judgment of his case is yet to come. A bail is always granted keeping in view the purpose behind the arrest which is to ensure the presence of an accused before court during trial without causing any trouble to the judicial proceedings. Hence, bail could be considered as a form of security deposited to appear before the court for release. ‘Innocent until proven guilty’ is the core principle of our justice delivery system and to strengthen this principle the rule of bail must be followed.
With regard to India, special criminal statutes contain separate provisions for the grant of bail. However, the rigors are quite tough in those provisions. Such special statutes inter alia, are Unlawful Activities Prevention Act, NDPS Act, PMLA Act, POCSO Act etc.
The Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: ” 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 enforce, and non-bailable offence means any other offence”. Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a monetary cap on the bond.
Article 141 provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The law declared has to be construed as a principle of law that emanates from a judgment, or an interpretation of law or judgment by the Supreme Court, upon which, the case is decided. Hence, the law declared is the principle culled out on reading of a judgment as a whole in the light of the questions raised, upon which the case is decided.[2]
The Supreme Court of India has been entrusted to interpret the laws enacted by the legislature. Through these interpretations, the apex court through numerous landmark judgments have construed the provisions relating to the bail in favour of the liberty clause provided in the part three of the Constitution of India. Effectively, these judicial pronouncements have made criminal justice system more efficient and liberty oriented.
In this essay, I will be dealing with some landmark judicial pronouncements which have contributed gigantically in the jurisprudence of bail in India.
The Supreme Court in Dataram Singh v State of Uttar Pradesh & Another[3] firmly and emphatically restored, to its rightful place, the liberal dictum of ‘bail, not jail’ adumbrated by Justice Iyer. Justice Madan B Lokur stated:
“Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.”
Clearly, the words of Justice Lokur strongly remind us of the precept laid down by Justice Iyer that bail and not jail should be the bellwether principle dealing with the law of bail in our country. The sanctity and relevance of bail to a civilized (and civil) society is indubitable. It is not a fashionable cause celebre to be picked up and loudly advocated by ‘woke’ groups or civil liberties organizations from time to time. Instead, the approach to bail is fundamental in deciphering whether a State and its people have progressed towards truly liberal values or have regressed into some kind of jurisprudential obscurantism.
Under the statutory scheme of Code of Criminal Procedure, 1973, Offences have been divided into two parts i.e. bailable and non bailable offences. This differentiation depends upon the seriousness of the offences which have been enumerated in the Inidan Penal Code, 1860 and other special criminal statutes.
In Rasiklal v. Kishore Kanchand Wadhwani[4], the Hon’ble Supreme held that the right to claim bail granted under section 436 of CrPC in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of section 436 are imperative and mandatory. This was a Defamation case, in which the bail was rejected by the High Court on the ground that the order granting bail was passed by the learned judicial magistrate first class, Indore without hearing the original complaint and was, therefore bad for the violation of the principle of Natural Justice. The supreme court held as under:
“ a bail granted to a person accused of bailable offence cannot be cancelled on the ground that the complainant was not heard. As mandated by Section 436 of the Code what is to be ascertained by the officer or the court is whether the offence alleged to have been committed is a bailable offence and whether he is ready to give bail as may be directed by the officer or the court. When a police officer releases a person accused of a bailable offence, he is not required to hear the complainant at all. Similarly, a court while exercising powers under Section 436 of the Code is not bound to issue notice to the complainant and hear him”
In Aasu vs. State of Rajasthan[5], the Hon’ble apex court considered the question as to the circumstances in which bail can be granted on the ground of delayed proceedings when a person is in custody. It also issued an direction to the effect that Bail applications shall be disposed of normally within one week.
The provision concerned with the grant of anticipatory bail in India finds its mention in Section 438 of the Criminal Procedure Code, 1973.
438. Direction for grant of bail to person apprehending arrest.1
(1) “When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of sucharrest, he shall be released on bail.”
This implies that anticipatory bail is a form of bail granted to a person apprehending arrest. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. It must be noted that the power to grant anticipatory bail is given concurrently to the Court of Session and the High Court. Thus, a person can approach either of the courts to get this relief. Further, when a competent court grants anticipatory bail, it makes an order that in the event of arrest, a person shall be released on bail. Thus, we can say that anticipatory bail is an order of the court to the investigation agency to release the accused on bail in the event of his arrest.
The confusion relating to the provision of anticipatory bail started and increased when different courts expressed different and contradictory views regarding its scope as to whether the same could be time bound or not.
A great deal of confusion with regard to the scope of anticipatory bail existed. The burning question was premised on the duration of an order granting anticipatory bail. One side contends that the anticipatory bail cannot be time bound while the other side argues the opposite .
A Constitution Bench of the Supreme Court decided a reference made in Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr.[6] , where two questions had been posed for consideration:
(1) Whether the protection granted to a person under Section 438 Cr.P.C. should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail?
(2) Whether the life of anticipatory bail should end at the time and stage when the accused is summoned by the court?
RATIO OF THE COURT: As regard to the first issue, the court held that the protection granted under section 438 cannot be limited to a fixed period of time and should be in favour of the accused without any restrictions on time. Normal conditions under Section 437(3) read with Section 438 (2) should be imposed. At the same time, it was also recognised that it is always open to the court to impose conditions owing to circumstances which are peculiar in nature. However, it must be noted that the need to impose restrictive conditions would have to be judged on a case to case basis, depending upon the materials produced by the state or the investigating agency.
The court while answering the second issue held that the life or duration of anticipatory bail order does not normally end at the time and stage when the accused is summoned by the court, or when the charges are framed, but can continue till the end of the trial. It further added that if there are any special or peculiar features necessitating the Court to limit the tenure of anticipatory bail, it is open to do so.
Thus, it is clear from above that there is nothing in section 438 Cr.P.C that indicates the grant of anticipatory bail should be time-bound. Further, it is discretionary power of the Court to decide on a case-to-case basis and impose a time limit while granting pre-arrest Bail.
The court finally settled the controversy by concluding that there is no limitation on the life of the anticipatory bail as long as the court does not put the same down while granting the said anticipatory bail. The court has to look at it from the facts of case to case, should have reasons to believe that there is an apprehension of an arrest of the concerned person and put the conditions, it deems fit to be applied to, while granting the said anticipatory bail.
There is no such limitation on the anticipatory bail as per the statute but the same entirely lies on the discretion of the court. If the court issuing the order of the anticipatory bail has any reason to believe the inclusion of such conditions is necessary, it may put them in while granting the said order of anticipatory bail. Thus, this means that any limitations or conditions which are not specifically mentioned in the statute are completely at the broad discretion of the court issuing the said order.
The proviso to Section 167(2) of the CrPC postulates: Provided that, (a) The Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;].
[Explanation I.—For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail.]
In Uday Mohanlal Acharya v. State of Maharashtra[7] it was categorically laid down, by the Supreme Court, that:
“On the expiry of he said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.”
This “indefeasible right” for default bail if the accused is under custody (police or judicial) and the investigation is not completed within 90 days or 60 days (as the case may be) was forcefully reiterated by the Supreme Court in Bikramjit Singh v State of Punjab[8] . In his judgment, Justice R. F. Nariman observed:
“Even if the application for consideration of an order of being released on bail is posted before the Court after some length of time, or even if the Magistrate refuses the application erroneously and the accused moves the higher forum for getting a formal order of being released on bail in enforcement of his indefeasible right, then filing of challan at that stage will not take away the right of the accused.”
“…….right of the accused on being released on bail cannot be frustrated on the off chance of the Magistrate not being available and the matter not being moved, or that the Magistrate erroneously refuses to pass an order and the matter is moved to the higher forum and a challan is filed in interregnum.”
Justice Nariman also reaffirmed the vision of bail as an aspect of Article 21 of the Constitution of India which prescribed that “No person shall be deprived of his life or personal liberty except according to procedure established by law …………….”
“The right to default bail, as has been correctly held by the judgments of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.”
Therefore, the apex court held that right to seek grant of bail under proviso of section 167 is an important facet of Article 21 i.e. Right to default bail under the first proviso to Section 167(2) CrPC not a mere statutory right but a fundamental right.
The SC, in this case, struck down the judgement passed by the HC on the grounds that the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding the pendency of the bail application; or subsequent filing of the charge sheet or a report seeking an extension of time by the prosecution before the Court; or filing of the charge sheet during the interregnum when the challenge to the rejection of the bail application is pending before a higher Court. It, however, mentioned that where the accused fails to apply for default bail and when the right accrues to him, subsequently a charge sheet, additional complaint or a report seeking an extension of time is preferred before the Magistrate, the right to default bail would be extinguished.
In their justified concern to ensure that an accused does not jump bail, Courts betimes tend to attach overly burdensome conditions to the bail order; thereby reducing the factum of enlargement of the accused on bail to a near impossibility.
This issue was examined in Anil Jindal v State of Haryana (Punjab & Haryana High Court) CRM-M-4525 of 2020 (O&M) with Justice Arun Monga stating:
“Judiciousness qua grant or refusal of bail must be exercised prudently. A conditions for grant of bail, incapable of compliance, renders the bail a complete fantasy………….. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint.”
Thereafter the apex court in Mithun Chaterjee vs State of Orissa[10] held that Clubbing near impossible conditions with the bail order would tantamount to denial of bail. It would be like paying lip service to the cause of bail while keeping the relief itself out of bounds for the applicant.
The Supreme Court in Aman Preet Singh vs CBI [11] held that, while accepting charge-sheet, the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. The bench comprising Justices Sanjay Kishan Kaul and M Sundresh also observed that, if an accused in a non-bailable offence has been enlarged and free for many years and has not even been arrested during investigation, it would be contrary to the governing principles for grant of bail to suddenly direct his arrest merely because charge sheet has been filed. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him, the court observed. The court by relying on the judgment of Delhi High Court in Court on its own Motion vs. Central Bureau of Investigation[12] held as under:
“Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) 8 of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this”
Much has been said and written on the subject of under trial prisoners confined within prison walls without bail, occasionally for years together. This has also featured in the pronouncements, directions and obiter dicta of the judiciary. This disturbing feature of our criminal justice and administration system cropped up, yet again, in Union of India v K. A. Najeeb[13] . Justice Surya Kant remarked as under:
“This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be release depending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.”
It can be gleaned from the above discussion that judicial pronouncements have played an important role in evolving the jurisprudence of bail in India. On multiple occasions Hon’ble Supreme Court through judicial construction has provided respite and has rightly upheld its duty in guarding the Constitution of India.
The Right to speedy trial in all criminal prosecution to seek quick justice is an inalienable fundamental right under Article 21 and it needs to be protected at all costs. An advanced jurisprudence of granting bail is indispensable and vital to a socially delicate judicial process.
The supreme has left no stone unturned while taking a liberal approach in developing the jurisprudence around bail.
However, there have been several instances wherein bail provisions of special statutes have been interpreted in such a way which has made bail quite impossible. The bail provision of UAPA act is such an instance. The Supreme Court should reconsider this issue and finally settle it by watering down the embargo and bringing it in terms with Part third of the Constitution. The recurring adage that process is itself a punishment can then only be eliminated by an active participation of the Hon’ble Supreme Court and by doing that the court will reclaim its lost glory of being a protector of citizen’s liberty!
[1] 1977 AIR 2447, 1978 SCR (1) 535
[2] CIVIL APPEAL NO. 5448 OF 2006, Supreme Court of India
[3] (2018) 3 SCC 22
[4] Air 2009 SC 1341
[5] (Criminal Appeal NO.511 of 2017 Dt.09-03-2017)
[6] (2020) SCC ONLINE SC 98
[7] (2001) 5 SCC 453
[8] (2020) 10 SCC 616
[9]S.L.P. (Criminal) No. 2333 of 2020)
[10] Special Leave to Appeal (Crl.) No(s).4705 of 2021
[11] Criminal Appeal No. 929 of 2021
[12] (2004) 72 DRJ 629
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