LAW RELATING TO BAIL FOR UNDER-TRIAL PRISONERS IN THE INDIAN LEGAL SYSTEM By - Harshit Dua & Shelly Dixit
LAW RELATING TO BAIL FOR
UNDER-TRIAL PRISONERS IN THE INDIAN LEGAL SYSTEM
Authored By - Harshit Dua &
Shelly Dixit
Amity Institute Of Advance Legal
Studies,
Amity University, Noida Up
ABSTRACT
In India, the bail provision for undertrial inmates is a critical
component of the system of justice
since it offers a legal framework for releasing accused persons from
imprisonment pending trial. The
purpose of this Research Paper is to offer a concise summary of the bail mechanism
in India, including
its scope and restrictions.
Bail
is granted under Indian law in two situations: first, when the accused is
charged with a ailable offence, and
Second, when the accused is charged
with a non-bailable offence
but the court believes there are
reasonable grounds to believe that the accused is not guilty of the offence charged and is not likely to
commit any offence while on bail the court may in that situation grant bail to accused in the case. In India, bail is
subject to several limitations, such as
the necessity that the accused be able to supply a bond, as well
as the imposing of restrictions such as the submission of the
accused's passport, limits on travel, and regular reporting to the police department. One of the biggest issues
related with the bail provision in India is jail congestion, which is frequently compounded by the enormous number of undertrial detainees who are unable to
gain bail in their case. The Supreme Court of India have taken a number of initiatives to solve this issue,
including the establishment of fast-track courts to accelerate proceedings and the
use of alternative dispute settlement procedures.
Overall,
the bail provision for undertrial detainees in India is crucial for
guaranteeing that the accused are not
arbitrarily detained pending trial. Nonetheless, continuing efforts are
required to overcome the
provision's problems and guarantee that it is administered in an equitable and efficient way.
WHAT IS BAIL?
The phrase "bail" is not defined in the statute according to
Black's Law Lexicon, bail is the procedure
of obtaining a person's release from legal custody by promising to appear at
the time and place specified and to
submit to the jurisdiction and judgement of the court. Bail is commonly used to denote judicial release
from custody, Cr.P.C. Chapter XXXIII deals with the provision as to bail and bonds.
THE OBJECT OF BAIL
The major reason for obtaining an assurance from the accused in the form
of bail & surety is to ensure
that he is accessible for the trial as and when called up by the court. If this
goal can be accomplished without
imprisoning the accused throughout the investigation or trial, it represents the perfect marriage
of two seemingly opposing interests, namely, individual freedom and the interests of justice. The
arrest serves an important role in ensuring the accused's attendance at the point of enquiry or trial, as well
as his availability to accept sentence
if convicted. It should also be noted that the fundamental principle of
jurisprudence is that one should be
assumed innocent unless and until guilt is proven beyond a reasonable doubt. Consequently, if someone is
imprisoned throughout the pre-trial or trial stages, it inevitably violates their constitutional and fundamental rights.
The accused loses his employment and is unable to contribute
effectively to his defence preparations. As important, the weight of his confinement usually falls severely on
unsuspecting family members. As a result,
the bail legislation strives to design and manage such a system in order to
release the greatest number of
accused individuals on bond without jeopardising the arrest and trial objectives.
MEANING OF UNDERTRIAL
An unconvicted prisoner is one who has been kept in jail during the
period of investigation, inquiry, or trial for the offence of which he or she
is accused. According to the
National Crime Records Bureau (NCRB'Prison)'s Statistics India 2015' report, which
was issued in
October
2016, 67% of persons in Indian jails are undertrials, amounting to nearly
200,000 under-trial prisoners.[1] According
to the Government of India's
National Crime Records
Bureau, hundreds of under-trials have been imprisoned for five years or more.
Undertrial refers to a scenario in
which an accused is facing a criminal trial but is not released on bail (in prison), and the law demands that such an accused be tried as soon as possible.
RIGHTS OF UNDERTRIAL PRISONERS
1. THE RIGHT TO INDIVIDUAL LIBERTY
The
fundamental rights guaranteed by Part III of the Indian Constitution are the
primary and principal rights
possessed by the Undertrials during the proceedings. The most significant of them is Article 14, which states that
"the state must not deny to any individual equality before the law or equal protection of the laws within in the territory
of India."
2. PERSONAL LIBERTY AND THE RIGHT TO LIFE
This right is guaranteed under Article 21 of the Indian Constitution,
which states that "no individual
may be deprived of his life or personal liberty unless in accordance with the method established by law."
3. THE FREEDOM TO RESIDE
WITH DIGNITY
In a unique twist on Article 21, the Supreme Court ruled that the
"right to life" does not just refer
to bodily existence, but also encompasses the right to live with human dignity.
4. THE RIGHT TO KNOW THE REASONS FOR ARREST
Article
22 (1) of the Constitution states that a person detained for an ordinary law
offence must be notified of the grounds
of arrest as quickly as possible. Section 50 of the Criminal Procedure Code, in addition to the
constitutional mandate, allows for the same.
5. THE RIGHT TO SEEK LEGAL ADVICE
It is one of the essential rights guaranteed by our country's
constitution. According to Article 22
(1) of the Constitution, no individual detained must be refused the right to
consult and be represented by a legal practitioner of his choice. The ability
of the accused to choose his own
counsel
is important to a fair trial. The right is recognised since, in most cases, an
accused individual lacks the legal
knowledge and professional expertise to defend oneself in a court of law where the prosecution is handled by a qualified
and experienced prosecutor. This includes the right to free legal help guaranteed by Article 39A of the Indian
Constitution.
6. THE RIGHT TO GET A MEDICAL
EXAMINATION
An undertrial also has the right to have a medical officer examine the
detained individual. Section 54 of The Code of Criminal Procedure, 1973 guarantees this privilege.
7. BAIL IS A LEGAL RIGHT
Another
important privilege of the under trial is the right to bail, which is outlined
in Section 436 of the 1973 Code of
Criminal Procedure. Bail is defined as "to set at liberty a person arrested or imprisoned, on
security being taken for his appearance on a certain day at a certain
place because the party arrested or imprisoned
is delivered into the hands of
those who laid themselves or became
bail for his due appearance when required, in order that he may be safely
protected from prison."
8. THE RIGHT TO A SPEEDY TRIAL
Justice is denied when it is delayed. This is especially true in a
criminal trial if the accused is not freed on bond and the trial is excessively prolonged. Yet, the legislation does not expressly grant the accused the right to
have his case determined quickly. According to
Section 437(6) of the Criminal Procedure Code, if the accused is
detained and the case is not concluded within 60 days of the first date set for hearing, he will be freed on bond. Nevertheless, this simply alleviates the
accused's burden and does not guarantee a swift trial; moreover, this regulation applies only in the case
of proceedings before
a Magistrate.
PERSON ARRESTED SHOULD BE INFORMED
OF THEIR ARREST GROUNDS AND THEIR
RIGHT TO BAIL. [CRPC SECTION 50, 1973]
The
arrested individual must be informed of the reason for his arrest as soon as possible by the police
officer. This is a valuable right of the detained individual, and the
Constitution recognises it as one of
the essential rights. A timely disclosure of the basis for arrest benefits the detained individual in a variety
of ways. It allows him to clear up any confusion,
misapprehension,
or misunderstanding in the arresting authority's mind. It also allows him to petition
for bail, a writ of habeas corpus,
or to undertake other expedited
defence preparations.
ARRESTED PERSON TO BE BROUGHT
BEFORE MAGISTRATE OR OFFICER- IN-CHARGE OF POLICE STATION [SECTION 56]
A
person apprehended without a warrant should be brought without undue delay
before a Magistrate with jurisdiction
over the matter or in front of the officer-in-charge of the police station,
subject to the provisions respecting bail.
PERSON ARRESTED MAY BE DETAINED FOR
NOT MORE THAN TWENTY- FOUR HOURS [SECTION 57 CRPC, 1973]
No
police officer shall detain in custody a person arrested without a warrant for
a period of time that is unreasonable
in all the circumstances of the case, and such time frame not, in the dearth of a special order of a magistrate
under section 167, exceed 24 hours, exclusive of the time required for the journey from the
place of arrest to the
Magistrate's Court.
EXCLUSIVE OF TIME NECESSARY FOR JOURNEY:- The
24-hour restriction for the detained prisoner
in police custody
for investigative reasons
does not include
the time required
to convey the accused to the Magistrate.
CIRCUMSTANCES WHEN RELEASE ON BAIL
IS REQUIRED (COMPULSIVE BAIL)
There are several
varieties of compulsive balls:
When the arrestee is not charged
with a non-bailable offence- Bail in the event of bailable offences is a right of the accused. If a
person suspected of a bailable offence is detained or held without a warrant and is willing to post bail, the officer
or court in charge of that person is compelled
to release him on bail. There is no discretion
in providing bail under Section
436
since the terms of the statute
are mandatory. The only thing
the court can do is order appropriate security.
BAIL IN BAILABLE OFFENCES-
WHEN
TO BE REFUSED
SECTION 436 (2) states that if
a person (who was granted bail under Section 436(1)) fails to adhere to the terms of the bail bond
regarding the location and time of attendance, the judge may refuse to release him on bail when he appears before
the court or is brought into custody
on a subsequent occasion in the same case. Such refusal shall be without
prejudice to the court's ability to
order any individual bound by such bond to pay the penalty imposed by section 446.
REMEDY IF BAIL IS REFUSED U/S 436(1): On
a refusal to grant bail under Section: 436(1),
the accused may move the High Court or the Court of Session under Sec. 439,
which provides for special powers to the High Court or the Court of
Session regarding bail. The amount of
bond must be reasonable: The entitlement to be released on bail under Section 436(1) cannot be invalidated by
setting an excessively high amount of bond or bail bond to be given in order to obtain the release. Section 440 (1)
expressly states that the amount of each such bond should
be established in accordance with the circumstances of the situation and
should not be exorbitant. In the case of Sandeep
Jain vs NCT Delhi,[2]
an order was issued forcing the
accused to pay a hefty sum of Rupees 2 Lakhs as security for bail and, failing that, to put him behind
jail, in a case where bail would typically be granted for the alleged offence. This was deemed not only severe, but
also improper. The rejection of a bail plea without a validly reasoned order has been ruled an inappropriate order. (Dhruv K Jaiswal vs. State of Bihar)[3] It was established in Rasiklal
vs. Kishore Khanchand
Wadhwant[4]
that the right to obtain bail is
provided under section 436 of CrPC,
1973 which deals with bail in cases of bailable offence which is an absolute
and unassailable right. There is no
discretion in providing bail in bailable offences since the wording
of Section 436 are mandatory.[5]
MAXIMUM TIME OF DETENTION FOR A PRISONER AWAITING TRIAL (UNDER-TRIAL PRISONER) [SECTION 436A CRPC,
1973]
A
new section, Section 436A, was enacted by a 2005 amendment, which provides that
where a person has been detained for a period up to one-half of the maximum
period of imprisonment specified for that offence
under that law during the period of investigation, inquiry, or trial under this code (not being an offence for
which the sanction of death has been specified as one
of the sanctions under that law), he
shall be released.
Provided,
however, that the Court may, after hearing the Public Prosecutor and recording
its reasons in writing, order the
continuing imprisonment of such accused person for a time longer than one-half of the aforementioned
term or discharge him on bail rather than a personal bond with or without sureties:
Moreover,
no such individual must be imprisoned for longer than the maximum time of imprisonment permitted for the alleged offence
under that legislation throughout the investigation, inquiry, or trial. This
particular clause was placed into the Code
of Criminal Procedure by Act 25 of
2005 to protect undertrial inmates from indiscriminate confinement that sometimes exceeds the statutory
period of imprisonment for the
offence committed by the undertrial.
According to the rule, if a person has been detained for almost one-half of the maximum length of imprisonment prescribed
for the crime for which he's being prosecuted,
the court may release him on a personal bond without or with sureties.
This confinement must occur during
the investigation, inquiry, or trial of the case, not during the execution of
the punishment after conviction. On
hearing the public prosecutor, the court may also impose imprisonment for more
than one-half of the stated duration or discharge him on bail instead of a personal bond if it thinks it
suitable. A person cannot be imprisoned for more than the maximum
time of imprisonment permitted for the offence
throughout the period of investigation, inquiry, or trial. This
doesn't apply to those accused with crimes punishable by death. When proceedings are prolonged at the request of the
accused under trial, the period of delay is not counted while
calculating the term of custody under this provision.[6]
DISCRETION IN ISSUING BAIL FOR NON-BAILABLE OFFENCES [SEC. 437 OF CRPC, 1973]
This section
addresses bail in non-bailable instances
as follows:
If any person accused or suspected of committing a non-bailable offence
may be released on bail if he is
arrested or held without warrants by an officer in charge of the police
station, or appears or is produced
before a court other than the High Court or the Court
of Session.
Nevertheless,
such person shall not be released on bail if there are reasonable reasons to believe that he has been convicted of a
serious offence with death or life imprisonment, or such offence is a cognizable offence and he has previously been
convicted of an offence, at once. It
is punishable by death or life imprisonment or imprisonment for seven years or
more, or having previously been
guilty on two or more instances
for a cognizable offence that entails imprisonment for three years more
than but not surpassing 7 years as a whole/in
aggregate.
Provided, however, that the above-mentioned individual may be released on bail if he or she is (a) under the age
of sixteen, (b) a woman, or (c) an ill or infirm person.
This
section solely addresses the Court of Magistrate; it clearly excludes the High
Court and the Court of Session. While
held for a non-bailable offence, a person cannot claim bail as a matter of right; he may only ask the Court
to grant bail. The Court's discretion to grant bail is not mandatory. After assessing the circumstances and type of the
offence, the likelihood of intimidating
witnesses, tampering with evidence, the accused's age and his subsequent circle of influence in influencing the enquiry, the
Court may either grant or reject bail. Non- compliance with bail conditions or failing
to attend in Court when summoned is an offence
under Section 229A IPC."7
BAIL CANCELLATION
The Court that releases an individual on bail may also terminate that
person's bail under subsection (5) of section
437 and, if necessary, order that person to be arrested and put to jail.
Furthermore, the High
Court or the Court of Session can direct that any
person granted bail, may be
detained again and committed to jail as specified in section 439(2).
SPECIAL
POWER OF HIGH COURT OR COURT OF SESSION REGARDING BAIL
Section
439 of the Criminal Procedure Code of 1973 gives the High Court and Court of Session specific authority over the grant
or termination of bail. This section provides that these courts mentioned have concurrent jurisdiction to deal with
the bail application and have broad
powers. It comes into play when bail cannot be granted by the magistrate or if
the bail that has been granted
requires cancellation or any modification of any condition imposed on bail, it is used when the magistrate is unable to grant bail. This
exceptional power, as specified in this section, must be
exercised with care and not on a regular basis by superior courts. The Criminal Law Amendment Act of
2018 added Subsection 1A and the Second Proviso
to Subsection (1), making the application of Section 439 CrPC, 1973 more
stringent in the case of rape offences.8
CIRCUMSTANCES
WHEN RELEASE ON BAIL IS REQUIRED (COMPULSIVE
BAIL)
Section
167 addresses the case that allows for further detention if the enquiry of
police is not concluded within 24
hours after arrest. Section 57 of the Code states that a person arrested without a warrant must be brought before a Magistrate within 24hrs after his
arrest and cannot be imprisoned for any longer
period without the Magistrate's permission.
The
objective of sections 57 and 167 is to allow the Magistrate to assess whether
the person apprehended should be held
or if additional custody will be a restriction on the individual's liberty.
8 BARE ACT,
THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974) , AMBITION PUBLICATIONS, NEW DELHI
COMPULSIVE BAIL OR DEFAULT
BAIL
If
the police enquiry is not concluded within 90 or 60 days, as the case may be,
the accused has an inalienable right
to be released, and he will be released on bond if he is willing to and does supply bail. The preceding clause
contains a special and unique provision of bail that is mandatory in nature, and it is referred to as "default
bail," "compulsive bail," or "statutory bail" since a statutory right of bail
arises in favour of the defendant due to the investigating agency's
failure to file chargesheet within the
statutory period of 90 or 60 days.
If
the accused does not use his right to be freed on bail and a chargesheet is
filed in the meantime, he cannot claim that he had an unassailable right to bail. It should also be emphasised that if the accused has been freed on bail, the simple submission of the chargesheet does not immediately revoke
his bail. Bail can only be cancelled in accordance with the terms of
Chapter XXXIII.
The
90 or 60-day term must be calculated from the date of imprisonment or remand,
not from the day of arrest. Both
the day of arrest and the day of imprisonment, if different, must be eliminated.9
SENTENCE SUSPENSION PENDING APPEAL: APPELLANT
RELEASED ON BAIL
According to Section 389 of the CrPC, 1973,
the Appellate Court has the authority to
postpone the sentence and release a guilty individual on bail or on his
own bond. In doing so, the appellate
court shall give the public prosecutor an opportunity to show cause in writing against the release. If the offence is
punishable by death, life imprisonment, or imprisonment for a term not exceeding ten years, the bail granted by the
appellate court may be cancelled at any
time. It should be emphasised that the High Court can use this power throughout
the pendency of an appeal before a
lower court under this provision. The trial court has the authority to release a convicted person on
bail to allow him to file an appeal in the following circumstances:
a)
where a person is convicted to imprisonment for a maximum of three years, or
b)
where the alleged crime for which the person is found
guilty is bailable and he is on bail.
9 BARE ACT, THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974),
AMBITION PUBLICATIONS, NEW DELHI
The
guilty individual will be freed on bail. The goal of giving the convicted
individual with the option of
suspending his or her sentence under Section 389 is to guarantee that he or she does not confront
the problem of excessive delay in his or her appeal
and so pay the extremely high price
of languishing in jail for several years.10
CONCLUSION
Finally, the bail provision for under trial detainees in India is a
critical component of the legal system.
It is an important precaution against arbitrary imprisonment of those who are
deemed innocent unless proven guilty.
While the provision
has been subjected
to various modifications over the years, there is
always room for growth in terms of ensuring that it is administered equally and unbiasedly across all segments of
society. Finally, the bail provision must
be recognised as a critical instrument for
sustaining the rule of law and defending people'
fundamental rights, and efforts must be made to enhance and streamline it in
order to better serve the interests
of justice.
10 BARE ACT,
THE CODE OF CRIMINAL PROCEDURE, 1973 (2 OF 1974), AMBITION PUBLICATIONS, NEW DELHI