Law Relating to Bail in India : A Human

Rights Perspective

ABSTRACT
THESIS SUBMITTED FOR THE DEGREE OF

Doctor of Philosophy
in
Law

Supervisor Submitted By
Prof. D. K. Mishra Shiva Pandey

FACULTY OF LAW
BANARAS HINDU UNIVERSITY
VARANASI- 221005
INDIA

Enrolment No. : 283533 Year 2021

 ABSTRACT

Law has strong and compelling interest in the effective prosecution of crime but
so is its interest in the protection of the individual from oppression and abuse by the
police and other enforcing authorities. There is thus an inherent tension between
societal interest in crime prevention, crime detection and crime suppression on the one
hand and protection of the personal liberty and human dignity of an arrested and
detained person on the other.

Curtailment of personal liberty is violation of human rights. Like Constitution of

any other country, Article 21 of our Constitution provides:-

“No person shall be deprived of his life or personal liberty except according
to procedure established by law.”

The significance and sweep of Article 21 makes the deprivation of liberty a matter of
grave concern permissible only when the law authorizing it, is reasonable, even handed
and geared to the community good. A social system which abides by the rule of law,
where it is imperative that the personal liberty of the individual be subjected to the least
regulation and reasonable restriction.

Sometimes personal liberty of individuals is curtailed and limited by authority

of law in order to keep peace in the society and to bring offenders to justice. This is
done when there is apprehension about person for committing an offence, he is arrested
by the concerned in order to ensure peace and justice in the society. One important
purpose of arrest is to secure the presence of the accused person at the time of his
enquiry or trial and to ensure that he is available to receive sentence on conviction. If
this purpose can be achieved without forcing detention on the accused during enquiry
or trial, it would be an ideal blending of the two apparently conflicting claims, namely,
freedom of the individual and the interests of the justice. The provisions relating to bail
aim at such blending.

Not only international human rights instruments but even indigenous criminal
jurisprudence developed by the Apex Court in the post Maneka period also recognizes
the grave consequences of pre-trial detention for the human rights of the accused and
forbids arbitrary or oppressive restriction on the personal liberty of the accused. It is a

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 Introduction

cardinal principal of criminal Jurisprudence that the liberty of the accused can be
deprived only in accordance with the procedure established by law. Further, the
procedure under which an accused person may be deprived of his liberty will have to
be just, fair and reasonable. Bail is a non-custodial measure by which the release of a
person from legal custody, is procured without jeopardizing the objects of arrests.

In the law of bails of this country the Code of Criminal Procedure, 1973
classifies the offences into two categories, viz. bailable offences and non-bailable
offences. By and large serious offences are considered as non-bailable and others as
bailable. According to the Code the accused has a right to be released on bail in all
bailable offences, but in the case non-bailable offences, his release is left to the
discretion of the authorities concerned. But the discretion is regulated by certain express
provisions of the Code and the guidelines laid down in the epoch making
pronouncements of the Apex Court and High Courts.

The law of bail has its roots in the valuable right of man to be at liberty which
is universally recognized across the world. In the ancient time criminal justice delivery
system was quick and the trial was concluded within short span of time. With the
passage of time, the trial of accused got delayed day by day. As per the prison statistics
2016 reported by National Crime Record Bureau, the number of undertrial prisoners
was 67% of the entire prison population and that the percentage was unacceptably
high.A total of 4,78,600 prisoners as on 31st december, 2019 ee confined in various jail
across the country. The number of Convicts, undertrial and detenue ere reported as
144125, 330487 and 3223 respectively accounting for 30.11% , 69.05% and 0.67%
respectively at the end of 2019.

It reflects that the provisions on bail are not well implemented. A major part of
the population in Indian prison is due to slow trials and bail not granted. So one pathetic
aspect of criminal justice administration in India has been an unduly large number of
under trial prisoners languishing in jails.

The under trials prisoners account for 69.05% of total prisoners, 30.11 % are
convicts. It usually means that the detention of criminal suspects is the rule rather than
exception.

The critical study of various bail provisions and the principles laid down by the
courts indicate that, the law governing bail in India is inadequate, uncertain and beyond

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 Introduction

the ground reality. The working of the system is also unsatisfactory. The arrangement
to free an accused is a mere facility that the system of criminal justice provides by way
of a bail, subject to such limitation as may be warranted by the exigencies of
administration of justice. The law and practice provide only a hazy picture in this
regard.

Against this background the present work makes an humble attempt to provide
a coherent picture of provisions of bail in non-bailable offences and presents a critical
review of them. It also seeks to point out the extent to which the provisions are in accord
with the constitutional values and the basic human rights of the accused and suggest
appropriate remedial measures for reform of the bail system in India.

The present work is being carried out keeping in view the following objectives:

 To understand the philosophy of the bail provision;

 To critically examine the various provision of the Code of Criminal Procedure

relating to the law of bail in term of human rights perspective; and

 To figure out the lacunas and loopholes of the existing regulatory framework
and to come out with possible reformative suggestions.

The present work is comprised of the doctrinal form of research. Materials have
collected from the primary and secondary sources. This includes the Acts, Legislation,
Bylaws, Ordinances and the various judgements pronounced by the courts and principle
of laws laid down while granting the bail. Journal publications, various websites and
online available materials have also been referred in this study.

Findings

In our socio-political order, liberty occupies a position of pride. Who might have
known, the importance of freedom more than the founding fathers of our Constitution,
whose independence was curtailed by the colonial rulers under oppressive rules. Article
21 of the Constitution provides that, except in accordance with the procedure provided
by statute, no person shall be deprived of his personal liberty. Therefore, it follows that
a person's personal freedom may be curbed by a mechanism defined by statute. The
liberty of a person is of great importance and is a fundamental right under the
Constitution of India. As a consequence of the Supreme Court's verdict in several cases

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 Introduction

the problem of bail has come to be intimately connected with some of the Constitutional
rights of the accused relating to procedure, legal aid and speedy trial. Therefore,
difficulties to enforce these rights into practice should be overcome by taking suitable
legal judicial, administrative and other measures. One approach to deal with the
problem to rationalize the law of bails and bring it into conformity with the cardinal
principles of human rights jurisprudence as contained in international human right
instruments and the epoch making judgments of the Apex Court in the area of human
rights of the accused. The bail legislation should address the two contradictory
conditions of society as a whole. Shielding the nation from the misadventures of the
individuals supposedly involved in the crime and the presumption that the accused is
innocent until he is found guilty. The following courts are meant to be governed by the
maxim 'Bail is the rule and jail is an exception,' but that exception is also subject to the
exception that the conditions on bail should be viewed not only for the benefit of the
accused, but also for the benefit of the prosecution as well as for the benefit of society
at large, which may also be affected directly or indirectly with the commission of
offence.

The bail system can not be fashioned into a panacea to ensure a responsive criminal
justice system in India in the light of increased crime rates, inadequate infrastructure,
lack of modernization of investigative machinery and numerous other challenges. It is
indeed a small step in the direction of re-calibrating the Cr.P.C bail provisions to make
them more relevant to the times and conditions that the Society faces today and is likely
to face in the near future.

Suggestions and Recommendations

(1) As the right to legal aid flows automatically from Articles 14,21 and 39A of the
Constitution of India, the State is under a Constitutional duty to provide legal aid
to assist the poor and needy. Authorities established under the Legal Services Act,
1987 have vital role to play in this regard. Intimation of arrests to the nearest legal
service authority must be made mandatory in order to enable the latter to provide
legal assistance to the indigent arrestees.

(2) Prison authorities must send periodical reports to the nearest Legal Services
Authority as regards the detention of the under-trial prisoners who could not

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 Introduction

secure bail so that Legal aid clinics or Legal Services Authority may come to the
rescue of such persons.

(3) There is a need for immediate attention to the proper operation of police power
and the implementation of police power monitoring devices, the provision of legal
aid facilities during preliminary measures, and the speedy trial of the accused.

(5) With respect to the granting of bail, the judges were given discretionary authority.
The Higher Court have wide discretionary power than that of the lower courts.
Justified guidelines for granting or denying bail must be in effect, so judges would
not be able to abuse their authority.

(6) There is a need for a serious review of laws relating to bail and anticipatory bail .
The test for both should be a uniform triple test viz. denial only upon
demonstrable showing of flight risk and/or noncooperation and/or tampering with
evidence, documentary or physical.

(8) The statutory requirement under Section 440 of the CrPC that the amount of bail
bond shall not be excessive should be observed strictly. However, there is no need
to impose ceiling on the amount of bail bond. because it might, in practice, favour
rich persons rather than poor persons.

(9) If the Court is satisfied on a consideration of the relevant factors that the accused
has his ties in the community and there is no substantial risk of non-appearance,
the accused may, as far as possible, be released on his personal bond.

(10) There should be modification in the language of Section 436 and Section 436A
since it is ambiguous and not clear. The language should be made clear to
communicate that the bail under this section should not be trumped by imposing
excessive or unfair sureties.

(11) A definition of "bail" should be inserted as Section 2(aa) in the Cr PC to make it

clear that references to "bail" include references to a person released on bond
without sureties, where such release is permitted by the Code.

(12) There is urgent need to insert in the IPC a provision creating a new offence
punishing failure, on the part of a person released on bail or bond without sureties,
to appear in compliance with the terms of the bond executed for the purpose.

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 Introduction

(13) Under-trial prisoners should be lodged in separate institutions away from the
convicted prisoners. It is not justified to keep them with the convicts till their
guilt is established. 437(6). Cr PC has been enacted in order to avoid hardship to
accused person in non-bailable cases where the proceedings are prolonged
unreasonably beyond a certain period (Sixty days). The cases triable by a court
of session are not within the purview of the provision contained in S.437(6).
However, such exclusion can not probably be justified on sound policy
considerations. If a mandatory bail provision contained in proviso (a) to S. 167(2)
is considered expedient for making the investigating process more expeditious
irrespective of the serious nature of the offence under investigation, similar
general provision regarding bail with a view to make the trial process more
expeditious should have no objection, especially when the proviso to S.437(6)
enables the court to refuse bail for special reasons to be recorded in writing.
Therefore, such exclusion should be removed by an amendment to this effect.

(14) In any exceptional case, if the accused are remanded to judicial custody under
Section 309(2) of CrPC, the maximum period of remand must be specified under
this Section, as specified under Section 167(2) of Cr PC.

(15) All forms of economic offences which include tax evasion, customs offences or
bank fraud should be dealt with strictly and provision for restricted bail in such
offences should be incorporated in the Criminal Procedure code or appropriate
special statutes for the purpose of granting or refusing bail.

(16) In the absence of a special order of a Magistrate, the non completion of the
investigation shall not be be deemed to be a sufficient cause for the detention of
an accused person. A remand to police custody may be granted when it is shown
in the application that there is good reason to believe that the person accused of
the offence can point out properly or otherwise assist the police in elucidating
the case.

To conclude with the present bail system is highly unsatisfactory. It is high time
remedial measures are taken at the government level to remove the anti-poor bias of the
provisions of the Code relating to bail and to update and revise them in the light of the
recent developments in the human rights jurisprudence.

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