The Scope & Power Of Courts To Grant Bail Without Definite Reasons (By- Dev Kumar)
The Scope & Power Of Courts To Grant
Bail Without Definite Reasons
Authored
By- Dev Kumar
Abstract
Courts, in
recent times, have started a trend of granting bail in matters of utmost
importance without regarding the sincerity of the provisions in respect to bail.
This is in regard to the recent statement by the Supreme Court wherein they
said that granting bail without giving specific and appropriate reasons for the
same has become a trend when granting bail, including the accused's prima facie
participation, the type and seriousness of the crime, the harshness of the
sentence, and the accused's character, position, and standing however, in the
case of Ms. Y v. State of Rajasthan[1],
where the accused raped the victim on 2 occasions, Bail was still granted bail
under Section 439 of Criminal Procedure Code[2](Hereon
referred to as CrPC). The paper will test and discuss the scope of Section
493, the restrictions on bail and the power of the courts to grant bail without
giving adequate reasons thereby violating the provisions under the Code of
Criminal Procedure.
Introduction
Bail is the
process of obtaining a person's release from prison while awaiting trial or an
appeal by depositing a bond to secure his timely surrender to legal authorities.Bail
is most commonly utilised in criminal court, although it can also be used in
civil courts. It’s a fundamental right mentioned under Article 21 of the
Constitution[3]
and it ensures that the accused gets a fair trial. The necessity to protect the
fundamental right to liberty led to the practise of providing bail. No one's
personal liberty may be taken away unless a reasonable, fair, and just method
is followed.A matter which was used to be and has to be dealt with seriousness
and precision, is now being taken quite lightly by the courts. The goal of bails
in criminal situations is to prevent punishing an innocent person (who may be
convicted at trial) and to allow him to prepare his defence without hindrance.Its
primary purpose is to guarantee the freedom of someone who has been arrested
and charged with a criminal offence before trial, however it can also be used
to gain release until an appeal of a conviction in specific situation however,
in serious matters where the courts shouldn’t grant bail, they have done so, thereby,
hampering its solemnity.
Law Of Bail In India
Bail is a
system that secures the accused's liberty without providing them with any
unwarranted advantage. However, it has been noted that the procedure of issuing
bail is insecure and ambiguous. Bail bond amount, grounds for granting bail,
and bail bond restrictions are all aspects to consider. In a number of
decisions, the Supreme Court has said that each case must be evaluated for its
facts and circumstances before bail is granted. The Code of Criminal procedure
though doesn’t define Bail, gives the course of action in respect to the
aforementioned and it has classified the offences into 2 categories – Bailable
and Non-Bailable.
Bailable
offences are apparently less serious, hence the penalty for them is less harsh,
and the accused has the right to seek release on bail. Certain types of crimes
are often penalised for fewer than three years. In the case of bailable
offences, your prospects of receiving bail are much greater. After such
criteria have been completed, bail can be given as a matter of law under
Section 436[4]
of the Criminal Procedure Code.The word "non-bailable" does not
indicate that no bail is available. It simply implies that the accused cannot
assert it as a matter of right during their arrest or detention. They can,
however, approach the court while they are being tried. These offences, in
contrast to bailable offences, are grave in character.
Bail are of 3
types – Regular Bail, Interim Bail and Anticipatory Bail. A person who has been
arrested and is being held by the police might ask for regular/daily bail.
Sections 437[5]
and 439 of the Code of Criminal Procedure provide provisions for bail.Interim
bail is granted by a court order releasing an accused for a
limited period
of time. Interim bails are being misused in many situations, hence the courts
have reduced the number of interim bails awarded.Anticipatory bail is set
before a person is arrested. A pre-arrest bail is another name for it. It's
referred to as ‘grant apprehending arrest' in Section 438[6]
of the Code of Criminal Procedure. When there were a number of fake charges
filed against businesspeople in the early 1990s, anticipatory bail became more
popular. The Law Commission has proposed introducing a clause forbidding
pre-arrest arrest to safeguard the public's interests. It was included to the
Code because it concerns a man's personal liberty.
Courts On Bail
Bail is a
highly debated issue in India. Because the penalties of pre-trial imprisonment
are determined by state authorities, the accused's release on bond is critical.
If the accused is denied bail, he would be exposed to the psychological and
physical deprivations of jail life, despite the fact that he is deemed innocent
until his guilt is proven beyond a reasonable doubt in court. As a result, the
imprisoned defendant loses his work and is unable to contribute effectively to
his defence preparation. Equally significant, his arrest usually places a heavy
strain on his family's innocent members.
In Sanjay
Chandra v. CBI[7],
The Supreme Court ruled that the court has entire power in granting or
rejecting bail petitions because the situations and circumstances should be
thoroughly examined before granting or rejecting bail. In my opinion, this is
absolutely valid however the courts also need to take into the consideration
the seriousness of the crime and need to give appropriate reasons as to why
Bail is being granted. It has become a recent trend that the courts have been
granting bail pleas without specific and appropriate reasons for the same. In
recent judgement by CJI NV Ramana and Justice Kirshna Murari, it was held that
High Court has not taken into account any relevant factors which should’ve been
considering while granting bail. The accused was charged of violently raping
the prosecutrix on two occasions after summoning her to his room. She argued in
her appeal to the Supreme Court that the High Court erred in providing bail to
the accused in a mechanical and unjustified manner.The court stated that some
essential considerations are always taken into account when granting bail,
including the accused's prima facie participation, the type and seriousness of
the crime, the harshness of the sentence, and the accused's character,
position, and standing however, in the case of Ms. Y v. State of Rajasthan,
any of the factors essential to grant weren’t considered.
Another
instance of this is the judgement by the Andhra Pradesh High Court wherein they
granted conditional Bail for a Non-Bailable offence. The petitioners were
charged with violating Sections 324[8]
(voluntarily
causing bodily harm with dangerous weapons), 307[9](attempt
to murder), and 506[10]
(criminal intimidation) of the Indian Penal Code, as well as Section 34[11]
(acts done by multiple individuals in furtherance of a common intention), all
of which are serious and heinous crimes and non-bailable offences. The general
reason granted by the court in this particular case was that there had been
quite some progress in the investigation and hence, Bail was granted on the
condition that the petitioner execute a surety bond and report to the
appropriate Station House Officer every day until the investigation was
concluded and a charge sheet was filed in the matter. Bearing in mind the
earnestness of the offence, the aforementioned was clearly not an appropriate
reason for granting bail.
C.M.
Sivasankaran v. State[12] is another
case where this contention was repeated. The offences under the POCSO Act[13]
are all non-bailable however, the Madras High court had a different opinion. In
multiple child sexual assault incidents, Siva Sankar baba has been charged
under the POCSO legislation. The accused was granted bail by the Supreme Court
on the condition that he not return to the institution where the sexual
harassment charges were lodged. The judge had also warned that if the accused
sought to sway the victims, his bail would be revoked.
Justice G
Jayachandran ordered the accused to produce his passport and cooperate with the
inquiry while granting conditional bail. Various restrictions were set upon the
accused however no proper reasoning was given as to why the bail is being
granted for such a heinous crime, especially when it’s the accused’s eighth
offence.
Conclusion
The Judgement
by the Andhra Pradesh High court, the cases of Ms. Y v. State of Rajasthanand
C.M. Sivasankaran v. State are all recent examples of the trend of the
courts granting bail without giving appropriate and specific reasons for the
same. The Supreme Court in the Sanjay Chandra case has correctly stated that
they have the power in granting or rejecting bail however, it also has a
condition wherein they need to thoroughly examine the seriousness of the crime
and provide a valid explanation for the same however lately, they have turned a
blind eye to this condition. For all offences with emphasis on Non-Bailable,
proper reasoning should be given as to why the accused is being granted bail
after properly analysing the details of the matter considering the nature of
Non-Bailable offences is consequential. In the Sivasankaran case, the order of
Justice Jayachandran for granting bail to the accused even though it was his
eighth offence and a case under the POCSO act which undertakes offences grave
in nature, might have been valid
however, in my opinion they aren’t considering no proper reasoning were
provided. The courts should take into account the importance of the concept of
Bail and grant the aforementioned only after rigorously analysing the facts,
arguments and proof and also, provide apt and definite reasons for the same.