Essay on Law Relating to Bail in India (1169 Words) !
The Law of bail is an integral component of the criminal law procedure and the right to bail is subject to statutory stipulation. The Code of Criminal Procedure, 1973 seeks to liberalise the bail provisions. The bailable and not bailable offences are precisely classified. Though bail can be granted in both categories of offences, the grant of bail in non-bailable offences is by way of concession to the accused which could be awarded by the court at its discretion in order to protect the “interests of Justice”.
Section 440(1) of the Code provides that the amount of bond for release of an accused person on bail shall be fixed with due regard to the circumstances of the case and shall not be excessive. Sub-Section (2) further empowers the High Court or the Court of Sessions to direct that the bail required by police officer or magistrate be reduced. Anticipatory bail may also be granted under such conditions as provided for in Section 438.
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Section 440(1) read with Section 441 empowers the trying magistrates to have the discretion whether the amount of bond or bail could be on the personal bond of the accused himself or with sureties. Section 441-A further provides that every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.
The process of granting or refusing bail entails a meticulous judicial exercise so as to serve the twin object of social defence and individual freedom. The judicial discretion in granting or refusing bail should therefore, be exercised with caution within the parameter of law and not caprice. The scope of judicial discretion is, however, limited when a person is accused of a bailable offence.
But when a person is accused of a non-bailable offence, his release on bail leaves wider scope for exercise of judicial discretion keeping in view the gravity of offence, the nature of evidence on which the prosecution case rests, and reasonable possibility of presence of accused or suspect during trial.
The mechanical approach of judges in the exercise of their discretion in bail proceedings has been vehemently criticised by the Supreme Court in Hussainara Khatoon v. State of Bihar wherein the Court, inter-alia, observed: “…The system of bail operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail”.
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While the Code of Criminal Procedure recognises the right of an accused person to be released on bail or the facility to the accused to remain on bail during trial, it casts a duty on the accused to attend the court regularly for speedy trial and not to tamper with prosecution witnesses.
Judicial discretion in granting bail under Section 439(1) should be guided by two paramount considerations, namely, likelihood of the accused fleeing from justice and his tampering with prosecution evidence. It is for this reason that Section 439(2) empowers the High Court or the Court of Session to direct any person, who had been admitted to bail by the Magistrate’s Court, to be committed to custody if it thinks it appropriate to do so.
Sometimes the prosecution agencies unnecessarily oppose the anticipatory bail application of the accused on the ground that his presence in custody is necessary for making a search and recovery of documents in his/her presence. The Supreme Court in Harsh Sawhney v. Union Territory, Chandigarh, rejected the plea of the prosecution on this ground and directed that appellant shall appear for interrogation by the police whenever reasonably required, subject to his/her right under Art. 20(3) of the Constitution.
The bail system as administered by courts of law however, reveals that the “non-poor” accused even in sensational criminal cases are able to take advantage of bail much beyond what they deserve.
ADVERTISEMENTS:
Looking at the long pendency of cases and the number of undertrial prisoners multiplying each day, it is advisable to liberalise the law relating to bail. Some useful suggestions in this regard may be as follows:—
(1) Where the Court is satisfied after taking into account the information placed before it, that the accused has root in the community and is not likely to abscond, it need not insist on monetary bond and may safely release the accused on a personal bond.
(2) The offences punishable for ten years imprisonment or below, be made bailable by the Court with stringent conditions. It will not only reduce the number of bail applications but also reduce the number of undertrial prisoners.
(3) The default clause provided under section 167 of Cr. P.C. making it mandatory to grant bail after the expiry of 60/90 days from the production of arrestee before the Magistrate, should be deleted and instead the provisions of Section 173(1) of Cr. P.C. which requires completion of the investigation expeditiously, should be scrupulously followed. This will eliminate the possibility of charge-sheet not being deliberately filed till 60/90 days in order to make the accused entitled to be released on bail.
(4) Bail should not be refused in cases where there is on record such material which shows that the accused himself received injuries and has a valid case for right of private defence.
(5) Bail should normally be granted in case where the arrestee had not used a weapon or participated actively in the case.
More recently, the Supreme Court which had twice sent back murder accused Pappu Yadav, (Now RJD’s Member Parliament from Madhepura Lok Sabha seat, Bihar) to jail, on 24th September 2004, asked him why the fresh bail given to him by the Patna High Court Judge R.S. Garg should not be cancelled.
The Bench of Justices N. Santosh Hegde, Justice, S.B. Sinha and Justice A.K. Mathur, had ordered lodging Pappu Yadav in the prison instead of Patna Medical College Hospital while taking serious note of the misuse of facilities by the accused on the pretext of ill-health.
Agitated over the release of an accused in a heinous crime of brutal murder which is punishable with life-term or death sentence, the Bench had taken note of ‘gravity of offence’ and also allegations of tampering with the witnesses by Pappu Yadav during the period he was in jail, the Court reiterating the law on grant or refusal of bail, cautioned the High Court of Patna to exercise its discretion in a judicious manner and not as a matter of course.
The Apex Court noted that though an accused has a right to make successive applications for grant of bail, the Court concerned has a duty to consider the reasons and grounds on which earlier bail applications were rejected. Finally disposing of the bail applications of Pappu Yadav in October, 2006, the Supreme Court directed that no Court should entertain his bail application any further and he has to remain in custody during the entire trial period.