BAIL- A Release?

Abstract

Bail serves a critical role in the criminal justice system, facilitating a balance between ensuring that defendants appear for court proceedings and safeguarding their rights. This article delves into the legal and practical dimensions of bail, tracing its historical development and current practices across various jurisdictions. Through a review of recent case law, statutory changes, and empirical research, the article assesses the effectiveness and fairness of existing bail systems. Additionally, it highlights ongoing debates and proposes potential reforms to address disparities and improve the equity of bail processes. By offering a nuanced perspective on the complexities of bail, this article contributes to the dialogue on enhancing justice and efficiency within the pretrial phase of criminal proceedings.

Introduction
“Granting bail with very stringent conditions is not bail at all’’’[1]

BAIL-is really a release?

In today’s times, the concept of liberty become more known to people and the criticism of denying regular bail pleas is also a STAIN on the Indian Judicial System.

Meaning and definition

The literal meaning of the word bail is surety.[2]

The word is taken from the French word ‘BAILLER’ which means ‘to give or deliver’ but as gradually time grew the meaning of the word acquired a different impression in legal

language. Now it is expressed as ‘setting someone free from legal custody for a specific period.’

Definitions–

Wharton’s Lexicon Dictionary and Stroud’s Judicial Dictionary define- bail as the ‘setting free of the accused by discharging him from the custody and entrusting him to the custody of securities who are obliged to produce him on trial at a particular date and time.’[3]

Black’s Law Dictionary defines bail as the procurement of release of a person from legal custody by undertaking that the he/she will appear at a specified date and time.’[4]

Historical Background

The concept of Bail has incorporated a long-lasting history. It would seem that, historically the institution of bail rose first in England.

When the judiciary was in its earliest stages-detainment of the accused was for the purpose of the preliminary inquiry and lasted till the SHERIFF concluded his ‘TOWN’ & in heinous crimes, it lasts till the arrival of JUSTICE-which could be delayed for years and these delays were subjected to various reasons resulting in the harsh consequences.

Thus, it was a matter of extreme significance to be allowed to obtain Ad-hoc release from legal custody.[5]

Evolve through time-:

-The concept of bail can be taken back to [399]BC, when a philosopher PLATO tries to execute a bail bond for the release of SOCRATES.[6]

-In [150]BC -In Ancient India- KAUTILYA’s ARTHSASHTRA also talked about avoiding pre-trial detention which depicts that bail was prevalent even in Ancient India.[7]

-During the Mughal reign in India bail was practised as ‘Muchalakaa’ & ‘Zammanat.’[8]

-The concept of bailemerged over time under Britishers rule-

1861Cr.P.C.->1882Cr.P.C.->1898Cr.P.C.

-After Independence-

The Cr.P.C. was passed in the year 1973 now which is completely replaced by the Bharatiya Nagarik Suraksha Sanhita of 2023.

Types Of BAIL–

1. Bail in bailable Offence-

Section 478 of BNSS provides for the provisions of bail for bailable offences.

 As per the said section, bail is the Right of a Person who has been accused of the commission of offences which are bailable in nature.

2. Bail in non-bailable Offences-

 As per section 480 of BNSS, when an accused is suspected of committing an offence of non-bailable nature, is arrested or detained or produced before a court other than the High Court or Court of Session, he may be released on bail.

But such were subjected to bail only after fulfilling the conditions enshrined under the same section.

3. Anticipatory bail-

Section 482 of BNSS deals with the provision of Anticipatory bail. This kind of bail nevertheless a bail in the event of an arrest when a person has an apprehension that he may be arrested for an allegation(s) then a person applies to the Court of Session or High Court for the direction that in the event of arrest he/she shall be released on bail.

Anticipatory bail can only be applied in non-bailable Offences.

Bar to grant anticipatory bail- in the case of Shajan Skaria v State of Kerla[9], SC observed that the restrictions on anticipatory bail under section 18 of SC/ST (Prevention of Atrocities) Act 1989, is not applicable until prima facie case under the act is made out against the accused.

4. Default bail

Section 187(2) of BNSS laid down the provisions in respect of Bail on Default.

Cancellation of bail –

In the case of Ram Govind Upadhya v Surender Singh[10], SC held that the power of the court under section 437(5) of Cr.P.C. to cancel the Bail can be invoked either by the state itself or by the aggrieved party.

Baila under several laws

Bail under Bhartiya Nagarik Suraksha Sanhita, 2023

Several remarkable changes were introduced under new criminal law. As per section 479 of BNSS 2023, one-time offender can be eligible for bail once they served half of their jail terms except in cases where punishment is death or life imprisonment.

Recently [In Re: Inhuman Conditions in 1382 Prisons] Central Govt. notified that the application of Section 479 of BNSS is Retrospective.

Proviso 3 to Section 437 of Cr.P.C. talks about the release of the accused on regular bail by stating that “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 he shall comply with such directions as may be given by the Court.[1][11]

Proviso 3 of Section 482 of BNSS talks about When bail may be taken in case of non-bailable offence as “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 he shall comply with such directions as may be given by the Court.“[2][12]

Bail under the Prevention of Money Laundering Act, 2002

One of the most controversial laws in respect of getting Bail, if an accused is detained under PMLA, 2002 the bail becomes next to impossible thing for an accused. Because there are very stringent conditions to fulfil to get bail under PMLA, 2002.

Section 45 is one of the most opposed provisions of the PMLA, 2002. Recent examples we have noticed in cases of Delhi CM Arvind Kejriwal and Deputy CM of Delhi Manish Sisodia and many more because they are accused of Delhi Liquor Scam and booked under PMLA, 2002.

In the case of Nikesh Tarachand Shah v. Union of India[13], the SC struck down Section 45(1) of PMLA, 2002 because it violates Articles 14 & 21 of the Indian Constitution. But later in 2018, the Govt. of India made several changes in the said clause.

In the case of P. Chidambaram v. E.D.[14], 2019 SC laid down that salient points to be taken into account while granting or rejecting an Anticipatory Bail.

ISSUES

Getting bail in India is a very hardest thing for an accused of a non-bailable offence. The prison statistics of India report of 2021, reveal that a staggering 76% of the prisoners are undertrial who have yet to be convicted/acquitted of allegations against them.[15]

Addressing the issues of detention of the accused is crucial for society as well as The Indian Judiciary, it not only negatively impacts individual liberties but also fosters prison overcrowding and a strain on the Indian Judiciary.

Following are some issues in the process of bail in India-:

1. Disparities in Bail decisions.
2. Over-reliance on detainment.
3. Socio-economic influence.
4. Political influence.
5. Misuse of Bail provisions.
6. Social stigma and physiological impact. 

MEASURES

There is the utmost requirement to reform the Bail Laws and provisions which directly influence the principle of natural justice and liberty.

By analyzing data, we found that there are various potential areas of improvement such as ensuring timely hearings (curbing the process of Tarikh pe Tarikh), and make a robust Bail process.

There are various statutes and provision of laws which lay more emphasis on the presumption of guilt which is contrary to the principle of natural justice and liberty.

Following are some Measure to make improvements in the bail process-:

1. Differentiation based on offence types.
2. Strengthening pre-bail trial.
3. Enhanced monitoring and support channel.
4. Streamlining the bail process.
5. Ensures Judicial accountability.
6. Promote public awareness and free legal aid.
7. Preventing abuses of bail.
8. Adequate Judicial Officers.

Case Laws

1. Vaman Narain Ghiya v. State of Rajasthan[18]– In this case, SC highlighted that the bail process begins from the tussle between police power to limit the personal liberty of an accused and a presumption of innocence in favour of the accused.

 An accused should not be detained in custody with the objective of punishing him only on suspicion of guilt.

2. Amiya Kumar Sen v. State of West Bengal, 1979[19] – In this case, SC observed that the High Court and Session Court both have the power to allow Anticipatory bail but if the session court rejects the plea for anticipatory bail the same can’t be filed in the High Court, but there is an option to appeal to the High court for anticipatory bail and the discretion vested in the power of court whether to grant or reject the anticipatory bail.

3. Shushila Aggarwal v. State of NCT Delhi, AIR 2020[20]– In this case, SC stated that the anticipatory bail is not limited to a fixed duration but the court issuing the bail has the discretion to put conditions regarding territory and jurisdiction. It was also noted that bail doesn’t become invalid itself when the trial begins but stays valid until the proceedings are completed.

4. Ranjit Singh v. State of MP[21]– In this case, SC highlighted that there is a difference between the concept of setting aside an unjustified, illegal or perverse order and cancellation of bail on the grounds that the accused has misconducted or new adverse fact having surfaced after the grant of bail, consequently which later turned into cancellation of bail.

5. Gurbaksh Singh Sibba v. State of Punjab[22]– SC held that an individual must have an appropriate reason to plea for anticipatory bail rather than merely for relief.

6. Arnesh Kumar v. State of Bihar, 2014[23]– In this case, SC directed all the state govt. to instruct police not to automatically arrest an individual just for filling a case under section-498-A of IPC.

CONCLUSION

The evolution of bail law underscores its critical role in ensuring justice within the legal system. From its historical roots to its modern application, the concept of bail has undergone significant transformation, reflecting societal values and legal principles over time. The examination of bail across various legal frameworks and case law reveals a complex interplay between individual rights and public safety. As the legal landscape continues to evolve, it is imperative for policymakers and legal practitioners to balance these interests carefully, ensuring that bail practices remain fair, equitable, and effective. The ongoing scrutiny and reform of bail laws are essential to upholding the principles of justice and maintaining public trust in the legal system.

Reference(s):

[1] Says SC of India, published in Times of India, 23^rd August, 2024

[2] (1978) 4  SCC  47

[3] www. merriam-webster.com

[4] Black’s Law Disctionary 177 (4^th Edition)

[5]  Stephen History of the Criminal Law in England, Vol. 1, p. 233.

[6] iPleaders Blog

[7] byjus.com

[8] Akhbarnama by Abul Fazal

[9] ILR 2022 4 Ker. 620

[10] 2002 Cr.L.J. 1849(S.C.)

[11] Cr.P.C, 1973

[12] BNSS, 2023

[13] AIR 2017 SUPREME COURT 5500

[14] Air 2020 SUPREME COURT 1699

[15] database.dakshindia.org

[16] database.dakshindia.org

[17] database.dakshindia.org

[18] AIR 2017 SC 5500

[19] 1979 Cr.L.J 288

[20] AIR 2020 831

[21] 2013 AIR SCW 5728, 2013

[22] AIR 1980 1632

[23] Air 2014 SC 2756