Bail jurisprudence in India

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A country’s criminal law system can be ideal when it strikes a balance between protecting the rights of individuals and rights of public at large. There are many practices intertwined in the practice of the criminal jurisprudence with the objective of maintaining law and order in the society. The provision of Bail is one such practice which has earned more criticism than appraisals in the recent past.

Recently,  The Supreme Court Bench consisting of Justices R. Banumathi, S. Bopanna and H. Roya has granted Mr. Chidambaram, an ex -Minister bail in the INX Media Case. The case revolves around the grant of the FIPB (Foreign Investment Promotion Board) clearance to the INX Media Group in 2007. Justice Bopanna remarked that “Bail is rule, refusal is exception.”

This is the rule which most of the courts follow in deciding whether to grant bail or not because when bail is refused, a man is deprived of his personal liberty, which is of too precious a value under our constitutional system, recognized by Articles 19, 21 and 22.

What is Bail?

According to Black’s Law Dictionary, Bail is defined as “Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.”

A precise definition of bail was provided by the Supreme Court in Sunil Tulchand Shah v. Union of India in which it was held that “Bail is a security obtained from a person arrested regarding an offence for the purpose of securing his presence during the course of trial.”

In the case of Superintendent and Remembrance of Legal Affairs vs. Amiya Kumar Roy Chowdary, the Court held that the law of bails, “has to be dovetail two conflicting demands, namely, on one hand, the requirements of society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz., the presumption of innocence of an accused till he is found guilty.”

Historical development

The concept and usage of bail can be dated back to 339 BC. The system of bail was introduced with the practice of a concept known as circuit courts in Britain during medieval times. In India, the provision of bail is governed by the Code of Criminal Procedure, 1973, specifically, Sections 436 to 450. 

It specifies the offences for which bail can and cannot be granted which depends on the intensity and severity of the offence. It is the discretion of the court to decide the bail amount on the basis of the offence and the economic status of the person. There are mainly three types of bail in India; Regular, Interim and Anticipatory Bail.

Grounds on which bail can denied

In many cases, the considerations and grounds for granting and refusal of bail have been interpreted by courts. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vetal has stated few factors to be taken into consideration, before granting bail, namely:

  1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
  2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
  3.  Prima facie satisfaction of the Court in support of the charge.

Courts must deny bail only under three conditions- One, the person charged with the crime is likely to flee. Two, the accused is likely to tamper with evidence or influence witnesses. Three, the person is likely to repeat the same crime if granted bail. These grounds should be considered by courts by evaluating the factors as provided in the S.P Vital case.

Problems with Indian Bail System

In the famous case of Narasimhulu v. Public Prosecutor, Justice Krishna Iyer remarked that “The subject of bail belongs to the blurred are of the criminal justice system and largely hinges on the hunch on the bench, otherwise called judicial discretion.”

It is imperative that discretion must be exercised with caution and care and must be applied by balancing the interests of both justice and personal liberty of individuals. It must not be arbitrary, vague and fanciful, but legal and regular.

The recent trend of arbitrariness in exercising discretion has been a serious roadblock in achieving the ends of justice. In cases involving high profile individuals, bail is granted without considering the enormity of the case.

These individuals walk free when the people affected by them reel in injustice. It has become a norm than an aberration in most jurisdictions including India that the powerful, rich and influential obtain bail promptly and with ease, whereas the mass/ common / the poor languishes in jails.

Another major problem in the bail system is the amount of bail bonds set by the court. The economic and financial situation of a person and must be considered before courts reach a decision regarding the amount of bail.

From the analysis of data and statistics in the Law Commission Report, it can be observed that a majority of under trial prisoners i.e, 70.6% are illiterate or semi illiterate which is an indicator of poor economic background.

They are trapped in the vicious cycle of poverty and illiteracy coupled with a continuous violation of their right to personal liberty and dignity. Accused person’s economic status appears to have become the decisive factor for granting pre-trial release.

Suggestions and conclusions

The provision of bail plays an important role in balancing the interests sought to be protected under the criminal law jurisprudence. Courts must take precaution in ensuring that discretion does not defeat its own purpose. Protection of liberty and dignity of individuals is of utmost importance and courts must either grant or refuse bail by keeping in mind the values of equality, good conscience and justice. The bail jurisprudence needs to be revamped with stronger and effective reforms.

A system of checks and balances, in the form of a competent authority, has to brought into force targeting at the arbitrary exercise of discretion by courts. Bail procedures for the economically marginalized section of the society must be carried without much delay and formalities which would otherwise result in a flagrant violation of their Fundamental rights.

Author: Tressa Maria Joseph from SLS, Hyderabad.

Editor: Tamanna Gupta from RGNUL, Patiala.