BAIL OR JAIL? – THE BLURRED AREA OF CRIMINAL JUSTICE SYSTEM

“Bail” remains an undefined term in the CrPC. Nowhere else the term has been statutorily defined. Conceptually, it continues to be understood as a right for the assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which Indian is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression `bail’ denotes a security for the appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb `bailer’ which means to `give’ or `to deliver’, although another view is that its derivation is from the Latin term ‘baiulare’, meaning `to bear a burden’. Bail is conditional liberty. Stroud’s Judicial Dictionary (Fourth Edition, 1971) spells out certain other details. It states:

“… when a man is taken or arrested for felony, suspicion of felony, indicated of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King’s use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed- that is to say, set at liberty until the day appointed for his appearance.”

Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.[1]

The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners from disease ridden jails while they were waiting for the delayed trials conducted by travelling justices. Prisoners were bailed, or delivered, to reputable third parties of their own choosing who accepted responsibility for assuring their appearance at trial. If the accused did not appear, his bailor would stand trial in his place.[2]

‘Bail or jail’- belongs to the blurred area of the criminal justice system 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, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.[3]

Sec. 437(1) & (2) and Sec. 439(1) of the Code deals with grant of bail. The Magistrate is conferred with the power to enlarge the accused on bail under Sec. 437(1) & (2), CrPC. The High Court and Court of Sessions exercise concurrent bail jurisdiction under Sec. 439(1), CrPC. The relevant provisions reads as follow:

Section 437 – When bail may be taken in case of non-bailable offence-

(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct “that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that the shall comply with such directions as may be given by the Court.

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.

Section 439 – Special powers of High Court or Court of Session regarding bail-

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

One of the important facets of criminal jurisprudence is grant of bail is the general rule and putting a person in jail or in prison or in a correction home (whichever expression one may wish to use) is an exception. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Bail should not be withheld as a pre-trial punishment.[4] There cannot be an inexorable formula in the matter of grating bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.[5] Having said that the Apex Court has illustratively observed the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail.[6]

When a person applies for regular bail then the court concerned ordinarily lists that application after a few days so that it can look into the case diary which has to be obtained from the police authorities and in the meantime the applicant has to go to jail. Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society. The reputation of a person is his valuable asset and is a facet of his right under Article 21 of the Constitution.[7] Therefore, the Apex Court has observed that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is at the discretion of the court concerned to grant interim bail or not but the power is certainly there.[8]

The accused person has the right to prefer successive bail applications; however, there must be a fresh ground or change in circumstances for seeking relief. Further, the Court entertaining successive bail application has a duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases, the court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier applications. Ignoring earlier orders of the co-ordinate bench of the same court or an appellate court is violative of the principle of binding nature of the judgments rendered in a lis between the same parties and in effect amounts to overruling the earlier judgment.[9] Further, the Supreme Court in Shahzad Hasan Khan v. Ishtiq Hasan Khan[10] has observed that the subsequent application for bail in the same jurisdiction, must be placed before the same judge (so long as he is available) before whom the earlier application has come up, with whatever result.

The power to enlarge the accused on bail is vested with different courts in the hierarchy. As a rule of the norm and general practice, it is followed that the sub-ordinate should be approached first unless special reason demands an exception. This is because the expression of opinion by the superior court is likely to prejudice, if not frequently, in cases few and far between, the trial in the lower court.[11] Moreover, if the choice was made by the party to move first the High Court and the High Court dismissed the application, then the decorum and the hierarchy of the courts require that if the Sessions Court is moved with a similar application on the facts, the said application be dismissed.[12] Another reason that would add support to this view is that when the applicant approaches the High Court after an unsuccessful attempt before the lower court, the superior court will have an advantage of apprising itself with the grounds as considerations which prevailed with the Court of Session in taking the view which it did and do real justice.[13]

To conclude: ‘Bail is the rule, jail is an exception’

[1] Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281.

[2] Vera Institute of Justice Ten Year Report 20 (1961-71) quoted by V.R. Krishna Iyer J in Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47.

[3] Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240.

[4] Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22.

[5] Gurcharan Singh v. State (Delhi Admin.), (1978) 1 SCC 118.

[6] Prahlad Singh Bhato v. NCT Delhi, (2001) 4 SCC 280.

[7] Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14.

[8] Sukhwant Singh v. State of Punjab, (2009) 7 SCC 559.

[9] Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42.

[10] (1987) 2 SCC 684.

[11] Hajialisher v. State of Rajasthan, 1976 Cri LJ 1658 (Raj).