This article has been written by Srishti Singh, a 1st Year BA LLB student at the Army Institute of Law, Mohali.
Introduction
Bail and the laws governing bail play an important role in judicial proceedings. It is a method which allows an accused person to enjoy his liberty and avoid imprisonment upon the payment of a security which acts as a guarantee that the accused will be present on a day and place agreed. In Indian law, bail is dealt with in the Criminal Procedure Code, 1973.
The method of bail is what enables accused persons to avoid imprisonment and provides them with protection from the pressure of interrogation, fear of torture, inhumane treatment by police officials etc. which are unfortunately prevalent in law enforcement and investigation agencies. Moreover, bail reduces the burden on prisons and ensures speedy delivery of justice.
Bail and its Provisions under CrPC
Bail can be defined as, “the security offered by the person charged or suspected of the commission of an offence for his release from detention or to insulate him from incarceration,” according to Black’s Law Dictionary, 9th Edition.
There are mainly three types of bail offered in India, which are –
- Regular bail – It is granted to someone previously taken into police custody. It is dealt with in S. 437 and 439 of the CrPC.
- Interim bail – It is a bail which is granted for a fixed period of time. It is granted to an accused before a hearing for standard or anticipatory bail.
- Anticipatory bail – It is granted to a person who is expecting his arrest for a non-bailable offence. It is like obtaining advance bail under S.438 of the CrPC.
Sections 436 – 450 of the Criminal Procedure Code, 1973 deal with the processes related to the issuance of bail in India. It is via this code that great power has been vested in the courts to put a monetary cap on the bond to be paid.
Section 2(a) of the CrPC defines offences. According to it, there are two types of offences, namely –
- Bailable – These constitute offences shown as bailable in the First Schedule or made eligible to bailed under any other law.
- Non-bailable – These constitute any other offence, as specified in S.2(a) of the CrPC.
- 436 of the CrPC lays down several provisions for the grant of bail to an accused person of a bailable offence whether arrested or detained by the police without warrant of arrest or appeared or brought before the court of law. There are certain principles adopted with the CrPC for the same –
- Bail is a matter of right whenever the offence is bailable.
- Bail shall be a matter of discretion when the offence is non-bailable.
- Bail shall not be granted by the magistrate if the punishment for the offence is life imprisonment or death.
- The Sessions Courts and the High Courts have wider discretion in granting bail even if the offence committed is punishable with death or imprisonment for life.
- 437 of the CrPC discusses the exceptions of when a person can apply for bail when he has been accused of committing a non-bailable offence. In such cases, bail is not considered to be a right of the accused, rather bail is issued on the bench’s discretion.
Judicial Discretion
Judicial discretion can be defined as the ability of judges to make and interpret laws. It is the freedom exercised by the courts in interpreting various laws and deciding cases according to those interpretations. In a political sense, it is often regarded as judicial independence.
- 360 of the CrPC empowers judges with the authority to sentence convicts on probation. Bail is considered to be the protection of the accused and it seeks to serve as a guarantee that the accused will be appearing for the proceedings at a given time and at a particular court.
Bail and Judicial Discretion
Art. 21 which is deemed to be the heart and soul of the Indian Constitution recognizes the concept of speedy trial as a fundamental right. A trial, according to this provision, includes every stage of a criminal judicial proceeding ranging from the investigation process, to enquiry, trial, appeal, revision and retrial. If an accused experiences a delay in the administration of justice, then he has the right to apply for bail as per Indian criminal law.
There have been cases which haven’t been disposed of through trials for decades, and such cases cause great hassles to the parties involved in the trial. Sometimes accused persons stay under conviction for years before the trial is dismissed. Therefore, the factor of time plays an important role in the exercise of judicial discretion for the issuance of bail.
However, it is important to note that speedy justice does not mean application of hasty methods which will ultimately harm the process of administering justice. Speedy justice thus involves speedy decision-making process, speedy judgments and speedy statutory and other reasonings explaining how the bench arrived at the definite conclusion.
Important Judgments
- In Gudikanti Narasimhulu v. Public Prosecutor [1977 Latest Caselaw 228 SC], it was held that the grant of bail depends on the discretion of the bench hearing the plea. It was observed that as our penal code is not discreet and does not provide with an exhaustive set of circumstances for the issuance of bail, it has been largely left to the application of judicial minds.
- In Nathar Parida v. State of Orissa [1975 Cr. LJ 1212 (SC)], it was held that the magistrate can order for remand of the accused in such cases where he thinks that the facts placed before him are relevant grounds to allow detention of the accused in police custody.
- In Brijmani Devi v. Pappu Kumar [MANU/SCOR/55223/2021], it was observed that the court must exercise discretion in a judicious manner and in accordance with established principles of law having regard to the crime alleged to be committed by the accused as well as keeping in mind the purity of the trial, while considering a bail application.
- In Gokul Singh v. State of M.P. [1999 Cri. LJ 3455], it was held that the prosecution was not responsible for the delay caused in the trial and hence, the accused cannot be granted bail on grounds of such delay.
- In Makhijani Pushpak Harish v. The State of Gujarat [2023 LiveLaw (SC) 345], the Apex Court set aside an order for the pre-condition of furnishing bank guarantee which was imposed on the accused by the Trial Court and the High Court while issuing bail.
Conclusion
Bail is the payment of security for the temporary release of an accused which guarantees his appearance for the matter at a later time and at a specific place, generally a court. Judicial discretion has an important role to play when it comes to the issuance of bail in statutorily non-bailable offences.
The discretion of a judge is often uncertain in nature and cannot be known definitely, as it varies from person to person. This idea is encouraged by eminent scholars like Lord Camden and Roscoe Pound, who advocates for the individualization of justice. Though the Indian criminal justice system exercises judicial discretion while keeping in consideration all the laws and guidelines to be followed in the process, there are still some persistent flaws which are yet to be corrected.
There is a dire need to bring in reforms in relation to the provision of greater freedom to the accused granted bail, consideration of the socio-economic status of the majority population of our country and seclusion of under trials from hardened criminals turned convicts for prevention of influence by the latter on the trials of the former etc. All of these reforms can help address the problems faced in the Indian justice system and pave the way for a better interaction of bail and judicial discretion.
References
Aradhana Parmar, “A Critical Analysis of Judicial Discretion of Granting Bail in India”, Vol. 9 Issue 18 Journal of Advances and Scholarly Researches in Allied Education [JASRAE] 2015
Vishvam Duggal & Dr. Anil K Dixit, “BAIL: A MATTER OF RIGHT OR JUDICIAL DISCRETION IN CRIMINAL JUSTICE SYSTEM IN INDIA” , Vol. 6, Issue 3 Journal of Emerging Technologies and Innovative Research [JETIR] 2019
https://www.lawaudience.com/bail-and-judicial-discretion-need-for-legislative-regulations/
https://www.latestlaws.com/articles/bail-and-judicial-discretion-a-judicial-analysis
https://www.ejusticeindia.com/critical-analysis-on-the-concept-of-bail-and-judicial-discretion/