This article has been written by Kumari Shalini, a student studying B.A. LL. B from Lloyd Law College, Gr. Noida. The author is a 3rd -year law student.
Introduction
In the very famous case of Narasimhulu v. Public Prosecutor, Justice Krishna Iyer said-
“The subject of bail belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety, and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”
It is essential that discretion be used with caution and attention, and that it be utilized by weighing the needs of justice and individual freedom. It must be lawful and consistent rather than arbitrary, obscure, or mythical. Justice’s goals have been seriously hampered by the recent tendency of arbitrariness in the use of discretion. Bail is frequently granted in high-profile instances without taking the seriousness of the charges into account. The Criminal Procedure Code of 1973, also known as the “code,” made bail pending trial a requirement. One of the accused’s most prized rights, claims, or privileges is this one. The purpose of the accused person’s arrest and custody is largely to guarantee his appearance at the trial and to make sure that, should he be found guilty, he would be present to accept the penalty.
What is bail?
The Criminal Procedure Code of 1973 has not defined the term bail. It has been given in the Law Lexicon defined as it’s the security for the accused person when given, he is released from the conviction or from the trial. Provisions related to bail can be found under sections 436 to 450 in Chapter III of CrPC. The code has also classified the offense into two parts- Bailable offense and non-Bailable offense. A bailable offense (it is not so grave in nature) means an offense that is shown as bailable in the first schedule and a non-bailable (these offenses are graver in nature) offense means any other offense given in the schedule.
Bailable offense– The accused will be freed on bail under section 436 (1) if there are no reasonable suspicions that they are connected to the commission of the non-bailable offense. This is a requirement that must be followed. The Magistrate is required by it to grant the person bail. The Court that an accused person stands before has the authority to issue bail; however, this authority is not based on the Court’s ability to try the case, but rather on the punishment that is appropriate for the offense. The court cannot impose any conditions when enlarging an accused on bail in a case where a bailable offense is alleged, it has been held in numerous cases involving non-bailable offenses that when a person is charged with committing a bailable offense, he gets an absolute right to be enlarged on bail as soon as he demonstrates his willingness to give bail. A “final order” is not one that denies bail. This allows bail to be denied at one point but granted at a later point in the same proceedings. Bail can also be revoked, changed, or terminated at any point.
Other bail provisions:
- Right to be released on bail if investigations are not finished in the allotted amount of time- If the accused has been detained for 60 or 90 days and no formal charges have been filed against them, the court is required by law and procedure to ask the detainee if he wants to be released on bail. If the detainee can provide bail, he must be released on bail right away.
- When the trial is not concluded within 60 days- If the trial of the person accused of any non-bailable offense is not finished within 60 days of the first date set for taking evidence in the case, in any case, triable by a magistrate, that person shall, if he is in custody for the entirety of the said period, be released on bail to the satisfaction of the magistrate, unless the magistrate directs otherwise for reasons to be recorded in writing.
Non-bailable offense- In circumstances of non-bailable offenses, release on bail is allowed under Section 437 of the Code. Bail is not a matter of right in these situations. Any officer or court that releases a person on bail for an offense that is not subject to bail must document its reasoning in writing. The court has the authority to grant or deny bail. The list of crimes that are and are not subject to bail is provided in the First Schedule to the Code. Under S. 437, additional cases frequently come up where the court finds the case to be appropriate for the granting of bail but feels that the installation of specific restrictions is essential given the circumstances.
The recent amendment in the process of bail for the accused was section 436A of CrPC- which gave the maximum period for which an under-trial prisoner can be detained. The new rule in order to address the issues of “undertrials” who were incarcerated and waiting forever for their trial to begin, Section 436A was enacted. As a result, they will now have the possibility to be released from custody. This offers a temporary solution for giving justice and relief to convicts awaiting trial. Section 436 A of the Code has been added for this reason. In accordance with the section, a person who has been detained for a duration equal to or greater than half of the maximum term of imprisonment imposed for a specific offense may be released on a personal bond with or without sureties.
Right to bail and right to free legal aid
According to criminal law, Article 21 of the Constitution enshrined the most significant human rights. The Supreme Court has maintained, for nearly 27 years after the Constitution was passed, that this Article only embodies one aspect of Dicey’s idea of the rule of law, which states that no one may be deprived of his or her life or personal freedom by an executive action that is not authorized by law. A person’s life and personal freedom may be taken away if there was a law that set down a procedure. Additionally, Article 39-A, passed in 1976, mandates that the state offer free legal services to ensure that no citizen’s access to justice is limited because of their financial situation or another disability. This provision is still a Directive Principle of State Policy, not a legal obligation that can be enforced in court or a constitutional guarantee that the accused will receive free legal representation.
In M.H. Hoskot v. State of Maharashtra and Hussainara Khatoon’s case, the Supreme Court ruled that a procedure that denies legal services to an accused person who is too poor to afford a lawyer and would, as a result, proceed through the trial alone cannot be regarded as reasonable, fair, and just. An essential component of the reasonable, fair, and just procedure established by Article 21 is the provision of legal assistance to a prisoner who wishes to pursue his release through the judicial system.
CONCLUSION
The law of bail should strike a compromise between two competing social demands, protecting society from the mishaps of those allegedly involved in the crime and maintaining the accused’s innocence until proven guilty. The rule that is intended to serve as a guide for the lower courts is Jail is the exception, not the rule, and the provisions of bail should not be interpreted solely in favor of the accused. They should also be interpreted favorably for the prosecution and for society as a whole, which may also be impacted directly or indirectly by the commission of an offense against society.
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