Right To Bail In India

Black Codes Definition - Right To Bail In India

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Introduction

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Black Codes Definition

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other man believes you may be complicated in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they fancy you have stolen something. Whether you are arrested or detained, you do not have to write back any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed man is primarily to derive his appearance at the trial and to ensure that in case he is found guilty he is ready to receive the sentence. If his nearnessy at the trial could be cheap ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his freedom during the pendency of the criminal proceedings against him. The provisions about the issue of summons or those relating to the arrest of the accessed man under a warrant or without a warrant or those relating to the issue of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this narrative is related with the provisions related with the issue of a man on a bail.

In words of Krishna Iyer J. .. The field of bail:-

" ..... Belongs to the blurred area of criminal justice law and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, communal protection and burden of communal treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process."

Thus issue on bail is crucial to the accused as the consequences of pre-trial detention are given. If issue on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the cheap doubt he would be subjected to the psychological and bodily deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.

Therefore where there are no risks complicated in the issue of the arrested man it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a man alleged to have committed a crime; and on the other, the underlying canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty".

In order to sub serve the above said objective, the Legislature in its wisdom has given spoton directions for granting or granting bail.

Why Bail?

Before indeed determining the place of bail within human proprietary framework as conferred by the Constitution, it is prominent to explore the object and meaning of bail, such that an pathology of these underlying objects and convert therein may tell a change. The object detention of an accused man is primarily to derive her/his appearance at the time of trial and is ready to receive sentence, in case found guilty. If his/her nearnessy at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his freedom during pendency of criminal proceedings.

Thus it is prominent to note the relevant provisions enshrined in the Universal notification of Human Rights:-

Article 9- No one shall be subjected to arbitrary arrest, detention or exile.

Article 10- everyone is entitled in full equality to a fair and communal hearing by an independent and impartial tribunal, in the measurement of his proprietary and obligations and of any criminal fee against him.

Article 11(1)- everyone expensed with a penal offence has the right to be presumed innocent until proved guilty according to law in a communal trial at which he has had all the guarantees essential for his defense.

There are thus several reasons which have been enumerated as to why bail ought to be allowed to forestall pre-trial detention

Meaning Of Bail

Bail, in law, means procurement of issue from prison of a man awaiting trial or an appeal, by the deposit of protection to ensure his submission at the required time to legal authority.

"Bail has been defined in the law lexicon as protection for the appearance of the accused man on giving which he is released pending trial or investigation."

According to Black's Law Dictionary, what is contemplated by bail is to "procure the issue of a man from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.".

Meaning Of Bail In India

According to Criminal course Code, 1973 (Cr.P.C. Hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. As follows: " Bailable offense means an offense 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 offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The pathology of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be ordinarily stated that all serious offenses, i.e. Offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The number of protection that is to be paid by the accused to derive his issue 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.

Indian Courts however ,have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is commonly refused when the accused is expensed with homicide.

It must be further noted that a man accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the man accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
Provisions under the Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973, makes provisions for issue of accused persons on bail. Section 436 of the Code provides for issue on bail in cases of bailable offenses. Section 436 provides that when man not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of man s accused of bailable of fences cases of persons though not accused of any offense but against whom protection proceedings have been initiated under part Viii of the Code and other cases of arrest and detention which are not in respect of any bailable offense.

This section entitles a man other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a man without a warrant to warn him his right to be released on bail.

Section 436 (1) of the Code signifies that issue on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to comprise voluntary appearance of the man accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to advise that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the bodily nearnessy of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody.

The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high number of bond or bail-bond to be produce by the man seeking bail. Section 440(1) provides the number of every bond executed under this part shall be fixed with due regard to the circumstances of the case, and shall not be excessive. further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.

Sub-section (2) of S. 436 makes a provision to result that a man who absconds or has broken the health of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable.

In Maneka Gandhi v. Union of India [1978] 2 Scr 621

The number of the bond should be considered having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to derive his issue even by executing a personal bond, it would be very harsh and intensive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the number of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can come to be a source of great harassment to him and often resulting denial of bail and deprivation of freedom and should not, therefore, be insisted upon as a health of acceptance of the personal bond.

It also stated that there is a need to supply by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action.

J. Per Bhagwati & Koshal, Jj. further observed that it is now high time that the State Government realized its accountability to the population in the matter of administration of justice and set up more courts for the trial of cases.

In Moti Ram & Others. V. State of M.P [1978] 4 Scc 47

Urgent need for a clear and explicit provision in the Code of Criminal course enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.

Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into spoton monetary terms and even its basic premise that risk of financial loss is essential to forestall the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail task and D. C. Bail task shows that even without monetary bail it has been potential to derive the nearnessy of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that decree Whether the accused has his roots in the society which would deter him from fleeing, the Court should take into inventory the following factors about the accused:

1. The length of his residence in the community, 2 His employment status, history and his financial condition, 3. His house ties and relationships, 4 His reputation, character and monetary condition, 5.His prior criminal narrative including any narrative or prior issue on recognizance or on bail, 6. The identity of responsible members of the society who would vouch for his reliability. The nature of the offense expensed and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and If the court is satisfied on a notice of the relevant factors that the accused has his ties in the society and there is no colossal risk of non-appearance, the accused may, as far as possible, be released on his personal bond.

Of course, if facts are brought to the notice of the court which go to show that having regard to the health and background of the accused his previous narrative and the nature and circumstances of the offense, there may be a colossal risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not issue the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like house ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, issue on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is essential to caution the court that the number of the bond which it.
Section 436A . Maximum duration for which an under trial prisoner can be detained -

The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opening to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice law and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to advise that the Legislature and the Government have approved the existence of the faulty law and their inability to do anyone about it. For this purpose section 436 A was inserted.

According to S. 436-A, a man who has undergone detention for a duration extending upto half of the maximum duration of imprisonment imposed for a single offense, shall be released on her/his personal bond with or without sureties. The course in case,granted is that the Court has to hear the communal Prosecutor and give its decision with reasons in writing. The Court may issue the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a duration longer than the maximum duration of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death.

Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions about the implementation of the provision. There is every opening that a prisoner may be sent back to jail to serve a duration longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not supply any guidelines. Will the undertrial prisoner continue to serve term till the maximum duration of the

Granting of Bail with conditions

Section 437 of the Code provides for issue on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has enough discretion to deny or to grant bail. First schedule to the Code provides the list of bailable and non-bailable offenses. further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of inevitable conditions as essential in the circumstances. To meet this need sub-section (3) of S. 437 provides:

When a man accused or suspected of the commission of an offense punishable with imprisonment which may expand to seven years or more or of an offense under part Vi, part Xvi or part Xvii of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or endeavor to commit, any such offense, is released on bail under sub-section (1), the Court may inflict any health which the Court considers necessary: -

(a)In order to ensure that such man shall attend in accordance with the conditions of the bond executed under this Chapter, or (b)In order to ensure that such man shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c)Otherwise in the interests of Justice.

It will be noticed that: -

1)The power to inflict conditions has been given to the court and not to any police officer 2)The power to inflict conditions can only be exercised -

i)Where the offence is punishable with the imprisonment which may expand to seven years or more or

ii)Where the offence is one under part Vi (Offences against the State), part Xvi (offences against the human body), or part Xvii (offences against the property) of I.P.C, or

iii)Where the offence is one of the abetment of or conspiracy to or endeavor to commit any such offence as mentioned above in (i) and (ii).

Cancellation Of Bail

According to S. 437(5) any court which has released a man on bail under (1) or sub sec (2) of S. 437 may if considers it essential so to do, direct that such man be arrested and committed to custody.

The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail essential involves the tell of a decision already made and can large be permitted only if , by fancy of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to hold his free time during the trial. However, bail granted illegal or improperly by a wrong arbitrary rehearsal of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his free time court may not cancel the bail.

In communal Prosecutor v. George Williams1951 Mad 1042

The Madras High Court pointed out five cases where a man granted bail may have the bail cancelled and be recommitted to jail:

(a)Where the man on bail, during the duration of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the hunt of place under his operate for the corpus delicti or other incriminating things; (c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc. (d)If he runs away to a foreign country, or goes underground, or beyond the operate of his sureties; and (e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him.

Right To Bail And narrative 21'S Right To Personal Liberty

The right to bail is concomitant of the accusatorial system, which favours a bail law that ordinarily enables a man to stay out of jail until a trial has found him/her guilty. In India, bail or issue on personal recognizance is ready as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and the right to fast reduce to vanishing point the classification of offences into bailable and non-bailable and make the continued incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court.

The fact that under trials formed 80 percent of Bihar's prison population, their duration of imprisonment fluctuating from a dew months to ten years; some cases wherein the duration of imprisonment of the under trials exceeded the duration of imprisonment prescribed for the offences they were expensed with- these appalling outrages were brought before the consummate Court in Hussainara Khatoon v. State of Bihar Air 1979 Sc 1360

Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar Air 1980 Sc 846 the Apex Court once again upheld the under trials right to personal freedom and ordered the issue of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in police investigation and the mechanical carrying out of the remand process by the magistrates insensitive to the personal freedom of the under trials, remanded by them to prison. The Court deplored the delay in police investigation and the mechanical carrying out of the remand process by the magistrates insensitive to the personal freedom of under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison.

The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail under section 167 Cr.P.C. Was further brought to light in letters written to Justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar (1982) 2 Scc 583. The court recognized the inequitable carrying out of the law and condemned it- "The rule of law does not exist merely for those who have the means to fight for their proprietary and very often for perpetuation of status quo... But it exist also for the poor and the downtrodden... And it is solemn duty of the court to protect and uphold the basic human proprietary of the weaker section of the society. Thus having discussed discrete hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to under trials and as such violation of their right to personal freedom and fast trial under narrative 21 as well as the compulsion of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the previous under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human proprietary of the weaker sections a reality.

Right To Bail And Right To Free Legal Aid -:
Articles 21 And 22 Read With narrative 39A

Article 21 of the Constitution is said to enshrine the most prominent human proprietary in criminal jurisprudence. The consummate Court had for approximately 27 years after the enactment of the Constitution taken the view that this narrative merely embodied a facet of the Dicey on notion of the rule of law that no one can deprived of his life and personal freedom by the administrative activity unsupported by law. If there was a law which in case,granted some sort of procedure, it was enough to deprive a man of his life and personal liberty.

In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. narrative 22(1) does supply that no man who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice, but according to the interpretation settled on this provision by the consummate Court Janardhan Reddy v. State of Hyderabad, Air 1951 Sc 227. In this provision does not carry with it the right to be in case,granted the services of legal practitioners at state cost. Also narrative 39-A introduced in 1976 enacts a mandate that the state shall supply free legal service by suitable legislations or schemes or any other way, to ensure that opportunities for justice are not denied to any population by fancy of economic or other disabilities - this however remains a Directive Principle of State course which while laying down an compulsion on the State does not lay down an compulsion enforceable in Court of law and does not give a constitutional right on the accused to derive free legal assistance.
However the consummate Court filled up this constitutional gap straight through creative judicial interpretation of narrative 21 following Maneka Gandhi's case. The consummate Court held in M.H. Hoskot v. State of Maharashtra a Air 1978 Sc 1548nd Hussainara Khatoon's case that a course which does not make legal services ready to an accused man who is too poor to afford a lawyer and who would, therefore go straight through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just course guaranteed under narrative 21 that a prisoner who is to seek his liberation straight through the court process should have legal services made ready to him.

The right to free legal assistance is an essential element of any reasonable, fair and just course for a man accused of an offence and it must be held implicit in the warrant of narrative 21.
Thus the consummate Court spelt out the right to legal aid in criminal proceeding within the language of narrative 21 and held that this is....

"a constitutional right of every accused man who is unable to engage a lawyer and derive legal services on inventory of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to supply a lawyer to an accused man if the circumstances of the case and the needs of justice so require, in case,granted of course the accused man does not object to the provision of such lawyer."

Conclusion

It is indisputable that an unnecessarily continued detention in prison of under trials before being brought to trial is an affront to all civilized norms of human freedom and any meaningful notion of individual freedom which forms the bedrock of a civilized legal law must view with distress patently long periods of imprisonment before persons awaiting trial can receive the concentration of the administration of justice. Thus the law of bails must continue to allow for enough discretion, in all cases, to forestall a miscarriage of justice and to give way to the humanization of criminal justice law and to sensitize the same to the needs of those who must otherwise be condemned to languish in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail matters or to produce the bail number itself.

While concluding, it seems desirable to draw concentration to the absence of an explicit provision in the Code of Criminal course enabling the release, in approved cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today comprise many who are unable to derive their issue before trial because of their inability to produce enough financial warrant for their appearance. Where that is the only fancy for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional law which promises communal equality and communal justice to all of its citizens. The deprivation of freedom for the fancy of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are enough guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an prominent step-in defence of individual freedom if approved provision as made in the statute for non-financial releases.

By Sudershani Ray

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