Bail: The rights of an accused

By Lipsa Nandini

In the Indian legal system, bail is the right of an accused person. Bail refers to the release of any person who is accused of a crime from jail or legal custody in accordance with the order or judgment of the appellate court. While in a civil case getting bail is one of the rights of the accused person, it is the choice of the judgment declaring authority in a criminal case. Bail is governed by the Code of Criminal Procedure, 1973. Though bail was established in the law books to ensure an accused is not forced to remain in a jail cell before trial. The term “bailable offence” is outlined in Section 2 (a) and should not be confused with “non-bailable offence,” which falls under sub-section (1). Section 436–450 governs provisions relating to bail found under The Act.

There are 3 types of bail in India:

Regular Bail

i: A regular bail is a conditional release from jail where a person is not convicted of the crime but is required to appear in court. This type of arrest arrangement comes under the jurisdiction of CrPC i.e. Code of Criminal Procedure and is used only to ensure the presence of a person at the trial. When a person is accused of a crime and taken into custody, he has the right to be let out on bail.

ii: This is an official document that confirms his pre-existing right to release. This can happen equally when the police have arrested someone and are holding them in custody or if they have started an investigation without a warrant.

Anticipatory Bail

i: Anticipatory bail is a type of bail given to a suspect before they are arrested and formally charged with a crime. This kind of bail is especially important during court cases where influential people and business rivals will often do anything in their power to attempt framing the defendant for committing wrongs that were never committed at all.

ii: This particular bail is an advanced strategy used under Section 438 of the Criminal Procedure Code. A person who has been granted anticipatory bail cannot be arrested by the police or any other law enforcement agency without first going through the judiciary system where they must first prove that the accused deserves to be arrested and charged before being put behind bars. Anticipatory bail is self-defining.

Interim Bail

i: This bail is granted as a temporary means and granted for a short period of time, either during the time of pendency of an application or when the application of anticipatory or regular bail is pending before the court.

ii: Interim bail is always conditional and can be extended. If it expires before the accused has been granted an anticipatory bail or regular bail and he fails to pay the amount required for continuing the bail, then he loses his right of freedom and will be taken under custody.

iii: This type of bail is always under certain conditions which if not complied with, can result in the accused having his or her rights removed due to the fact that they have failed to comply with the original requirements set forth.

Conditions influencing bail of an accused depending on type of offence

IN CASE OF BAILABLE OFFENCE:

• Under Section 436(1) of the Criminal Procedure Code, a person can be released on bail if he or she is accused of a bailable offense committed under the Indian Penal Code. If someone is arrested or taken into custody for a non-bailable offense and is prepared to provide bail as well, they may be released from custody​ provided that verifiable sureties are given that the charged individual will turn up to court when required and will not commit any further illegal activities during the time period of their pretrial release.
• When you have been arrested, you don’t necessarily have to be detained. It is common for the police officers who arrested you to grant bail if an amount of money is paid that represents the charges against you. However, if it seems that you are a flight risk and likely not to complete any trial procedures, sometimes defendants are denied bail and detained until their court proceedings. In this case, if the defendant has been arrested by the police officer, then bail can either be granted by the police officer or by the Court before which he has been brought/produced.
• It’s more common that bail is granted against providing a surety (a sort of pledge to the Court that the defendant will show up when necessary) from the defendant himself. However, if it’s believed that the defendant is innocent of the charges and cannot provide a surety at all, he may be released after accepting his affirmation in writing that he’ll appear for future hearings or trial.
• When a person is detained for 7 days, the court orders that bail be set. If the accused’s lawyer does not bring up bail within a week from the date of arrest, the person is treated like a flight risk and they are released into their own custody until trial date so long as they promise to show up to court hearings.
• There are a few reasons why it’s deemed necessary to give bail. One reason is that if you fail to do so within a given week of arrest, you may be deemed guilty in the eyes of the law and thus be unable to walk out at all unless you provide sureties for your release. This is what’s meant by ‘indignant’ under this section of the code.
• When granting bail to a person, it is crucial that the judge be convinced that the accused is probably not guilty of the alleged crime. At the same time, he must believe that further investigation into the allegations made against him is required in order to determine if he did commit a criminal offence and if his alleged offense was indeed a serious one or not.
• Sub-section (2)[4] of this section explains the conditions under which bail may be denied if you are accused in a crime that is determined to be of bailable nature. If you fail to meet the court’s stipulations listed in your bail bond, they may choose not to grant you bail should you be arrested or brought before them on any subsequent occasion related to the same case.

IN CASE OF NON-BAILABLE OFFENCE:

• The rights to liberty and life as contained in the Constitution of India – these two principles need to be analyzed together before bail can be granted in respect of a non-bailable criminal offence. It is important that the court strikes a balance between these two. The Hon’ble Supreme Court in the matter of Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) has observed that “Liberty is to be secured through a process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution.”[5]
• Section 437 [6] of the Code of Criminal Procedure, 1973 states that if a person is arrested without a warrant and brought before a court, any court other than the High Court or the Court of Sessions may grant bail.
• However, it may not grant bail if it has sufficient grounds to believe that the person is guilty of an offence punishable with death or life imprisonment. The Court may also remand a person in custody if that offense is considered grave and the individual is found to have been convicted of another grave crime or has been twice convicted of non-grave offenses.
• Further, the Court may also release a person from jail if they find that the evidence against them is not strong enough to move forward with a conviction, there are indications that the victim or accuser has lied or falsified information about the abuse, or if it seems that further investigation would be helpful.
• The reason that the examination of an accused person needs a witness is not a sufficient cause for refusing bail. At the same time for offences punishable with death or imprisonment for seven years or more, the Public Prosecutor will be given an opportunity to hear and oppose bail, before the same is granted.
• If an accused is suspected to have committed, abated, conspired or attempted to commit a crime that was intentional and will result in a sentence of imprisonment for seven years or more, that person should be released on bail.
• The conditions for bail are: Attendance as agreed upon in the bail bond; the undertaking of not committing any other crimes; and the undertaking of not influencing anyone directly or indirectly who might have knowledge about the facts of the case.

Conditions governing bail in anticipation of arrest and other conditions affecting anticipatory bail

Section 438 [7] of the Criminal Procedure Code lays down the procedures for getting bail in anticipation of arrest for a non-bailable offence. The provision was incorporated as per the recommendation of an earlier report of the 41st Law Commission [8] and subsequent judicial interpretations by High Courts across the country. There should be an element of suspicion or doubt, where the person seeking bail feels that his case or circumstances make him look guilty of a double homicide or that someone with a personal vendetta against him might frame him for the murders or some other serious crime in efforts to get him arrested. The person seeking bail needs to present before the court certain special facts that he/she believes might be understood well enough as convincing by the judge so as to consider them grounds enough for granting bail. Again, it is up to the judge to determine whether there are indeed sufficient reasons for granting such a request based on what is presented by the petitioner and other factors like severity of charges against the said party (i.e., if there’s reasonable doubt), etc. Anticipatory bail can be granted only by a High Court or a Court of Sessions.

Certain other conditions affecting anticipatory bail are:

• The person concerned will have to commit himself to respond promptly and fully to any requisitions of the police.
• He shall find out as much as possible about the facts of the case before he makes any kind of decision to take matters into his own hands.
• If he wants to leave the country then he must get permission from the court first.

A critical analysis of bail amendments in India

• Every rule has an exception and detention of undertrials should be a rare exception, not the norm. Indian law follows the principle that someone is innocent until proven guilty. Unfortunately, this is often not the case in reality. The judge weighs the nature of the crime before deciding whether to deny or grant bail. If the crime is serious enough, bail is often denied, even if it’s just a matter of procedure to verify if an accused has indeed committed a crime.
• Thus, it’s important that you remember to report any instances of abuse and file your first information report (FIR) if needed so authorities can help protect you if necessary. I know that the gravity of the offense should be taken into consideration when deciding whether to grant bail, but shouldn’t a person always be considered innocent until proven guilty.
• It is possible that it was just an honest mistake. If a judge is taking the time to carefully consider all of this, it makes sense that he would want to allow someone still presumed innocent to go free while further investigating the situation. That way people are certain to receive fair treatment in cases like these where many more details will undoubtedly emerge.
• Another important area that’s already been recommended by the Law Commission is revamping the system of arrest. The current system should be made more rational, fair, transparent, and humane to make a rehabilitative justice system for the future. Section 41 of the Criminal Procedure Code (CrPC)[9] should be amended in order to accomplish this goal. These efforts will go a long way toward preventing arbitrary arrests and result in fewer people seeking pre-arrest bail.
• There are many laws and in-laws which unintentionally shift the responsibility to the accused by unnecessarily affecting their presumption of innocence by nature of statute.
• For example, it can be difficult for those under investigation based on offenses such as offenses under: The Narcotic Drugs and Psychotropic Substances Act, 1985 [10], The Scheduled Caste and Scheduled Tribes (Prevention of atrocities Act), 1989[11], as these laws place unreasonable burden on an accused by nature of statute to perform unnecessary tasks in order to rebut suspicion. Similarly, Section 375 (Rape) [12] and Section 498A (Cruelty against a married woman) [13] of the IPC also lay the presumption of guilt.
• These sections were drafted to prevent people from committing atrocities against women and the traditionally oppressed classes, which is no doubt necessary to prevent crimes against them, but at the same time, the sections bypass the principle of innocence prior to being proved guilty. Thus, all statutes and laws should emphasize the principle of ‘innocence unless proven’ and should be amended accordingly.
• In the case State of Kerala v. Rajesh[14], a person had been arrested for alleged drug possession in Kerala and the judge upheld an appeal by the state government to deny bail to Rajesh on account of his crime. The majority opinion of 4 out of 5 judges ruled that it was not reasonable for him to assume that a special exemption from holding any type of employment would be granted especially in light of his already admitted addiction and his criminal career, which suggests that he was involved in illegal narcotics trafficking for a significant amount of time before being caught.
• In the larger context, we have to admit that this section goes against the principles of individual liberty and natural justice. The Supreme Court also did not want to examine it in depth.
• Under the current mechanism of bail, non-monetary bonds and sureties are required which pose great difficulties for poor people. Without sufficient funds, most poor people cannot secure pre-trial liberty. Keeping in mind the plight of impoverished inmates languishing in jail without bail, alternative methods to grant pre-trial release must be developed in addition to or as replacement for monetary bonds.
• Section 436A of the Cr.P.C. [15] is in dire need of reform. One of the reasons for this is that under-trials often suffer because it can take a very long time for their case to be processed due to various factors, including a lack of resources available such as lawyers and prosecutors who are burdened by the sheer number of cases on their plates at any given time on an average day.
• This can result in them being held behind bars for years while they await trial, which makes sense when we consider that under-trial prisoners could face up to half of the punishment provided by law and as many years as they would have served had they been actually convicted after serving out their sentence within the correctional facility where they were being held up until now. This goes against the principles of life and liberty guaranteed by the Constitution. The fact is that false convictions amount to a gross miscarriage of justice. This is a travesty that cannot ever be put right.
• Finally, we come to the most important issue of speedy justice. If justice is fast and verdict comes quickly, then many poor under-trial prisoners can be spared from languishing behind bars. In India, a massive number of citizens cannot afford to pay bail in order to secure their freedom and this high percentage has created quite a dilemma that may be solved with reforms in the Indian justice system.

Bail is an important part of the criminal system in order to ensure the constitutional right accorded to every citizen of our country that ensures that no one can be arrested before trial until we are proven guilty. But the way this process works has a lot of flaws and often bail is denied for no reason at all other than being a poor person who can’t afford to buy their own freedom. The recommendations from the law commission in their 268^th report[16] were important and should be implemented so that a fair system that helps every innocent citizen get out on bail exists as soon as possible. This would go a long way in ensuring that citizens of our country have every right available to them per their Constitution and other such legal systems. Bail means that a person incarcerated is released to their own, or family’s, custody until their trial date. The freedom to move about is not restricted and neither is the liberty of driving a vehicle or possessing firearms. The purpose of bail is to ensure that the accused keeps to the fundamental conditions stated in the bail order. The aim behind giving bail is not to punish a person who is charged with an offence, but to release him so that he can lead a normal life until his trial begins or finishes, depending on the nature of his offense. A bail system has thus been established. Security for the release of people awaiting trial, who are arrested and held in custody, is provided by a surety bail system. There are some factors taken into consideration while establishing bail, like income, criminal record and a history of drug usage etc., but ultimately it all comes down to what the judge decides to do yes or no. There is no universal approach for bail and there won’t ever be because each case has its own unique circumstances involved behind each individual’s reasons for wanting out on bail.

The writer is a third-year student, KIIT School of Law, KIIT Deemed University, Bhubaneswar, Odisha