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Bail jurisprudence remains blurred legal arena

THE system of bail was prevalent in India in the form of muchalakai, i.e. a personal bond and zamanat in the Mughal period. The ancient Hindu jurisprudence provided for an expedient disposal of disputes, where laxity was not an affordable option.

Bail jurisprudence remains blurred legal arena

LONG ROAD TO FREEDOM: Deprivation of liberty should commence only after conviction.



Shruti Bedi
Legal Affairs Analyst

THE system of bail was prevalent in India in the form of muchalakai, i.e. a personal bond and zamanat in the Mughal period. The ancient Hindu jurisprudence provided for an expedient disposal of disputes, where laxity was not an affordable option. After Independence, the Indian justice system, guided by the Constitution, guaranteed the axiomatic right to life and liberty to its people. ‘Bail, and no jail’ was the tradition followed by the Indian judiciary, which protected personal liberty, at personal cost.  The power to release a person on bail, under the law, is exercised by either the police officer in charge of a police station or the magistrate/sessions court, and in the case of anticipatory bail, under Section 438 of the CrPC, by the sessions court. 

This article deals with bail granted by a court of law only. Bail is the process by which a person is released from custody, the ultimate objective being to remove the restrictive and punitive consequences of pre-trial detention of the accused. The principle underlying a person’s release on bail is that an accused is presumed to be innocent till his guilt is proved. Justice VR Krishna Iyer, in the Moti Ram case (1978), said, “There is no definition of bail in the CrPC, although offences are classified as bailable and non-bailable…We have to interdict judicial arbitrariness, deprivatory of liberty and ensure ‘fair procedure’ which has a creative connotation…”

As far as bailable offences are concerned, bail has to be granted by the police to the accused. In case of non-bailable offences, the general policy is to grant bail, rather than refuse it. The law presumes a person to be innocent till proved guilty and as a presumably innocent person, he is entitled to all access to freedom to defend his case. The grant of bail is a trust reposed, the breach of which will disentitle him to the prerogative.

The law of bail has to harmonise two conflicting demands — one, the necessity of society to be shielded against the dangerous propensities of an accused and secondly, the fundamental canon of criminal jurisprudence — the presumption of innocence. Clarifying the law, the Calcutta HC, in the case of Superintendent and Remembrancer of Legal Affairs (1973), observed “that in a barbaric society, you can hardly ask for bail; in a civilised society, you can hardly refuse it, are more than an epigram, subject only to the tests of considerations laid down from time to time by the imprimatur of judicial decisions...”

Questions, therefore, arise as to the circumstances of denial of bail. Is it to prevent flight from justice, tampering of evidence, protection of society from further crime or to inflict pre-trial punishment? Or is the seriousness of the allegation of the crime committed being offered as a justification for denial of bail? The legal framework within which the judges must operate is ambiguous. The large variance in the decisions remains unexplained. However, the object of bail is simply to ensure the appearance of the accused at the trial as it is neither punitive nor preventative except in cases of preventive detention. Deprivation of liberty is a punishment, and it should commence only after conviction. The seriousness of the crime committed, cannot therefore, be a valid reason for denial of bail in view of the fact that his guilt is yet to be established and he is yet to be convicted. 

Tampering with evidence and influencing the witness is another common reason for denying bail. In 2013, bail was denied to YS Jagan Mohan Reddy, son of a former Chief Minister of Andhra Pradesh, as the apex court felt that his release would hamper the investigation as he may influence the witnesses and tamper with the evidence. The court was of the view that economic offences involving huge loss of public funds needed to be viewed seriously. Recently, the Delhi High Court, in the case of a senior politician, observed that although there is no risk of flight or possibility of tampering of evidence, the influencing of witnesses by such a prominent member of the Bar cannot be ruled out. As opposed to this, the Supreme Court, in the case of Sanjay Chandra (2012), that related to similar economic offences, opined that “it would be quite contrary to the concept of personal liberty enshrined in the Constitution, that any person should be punished in respect of any matter, upon which he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances." 

The court noted that no material evidence had been placed on record to show the possibility of tampering with evidence/witnesses. Amongst other grounds, tampering of evidence and flight risk has acquired the status of authentic reasons offered by the courts for the refusal of bail. Further, the allegation of the accused's presumed non-cooperation becomes another ground for the refusal of anticipatory bail. This conclusion is drawn from the statements of the investigating agency opposing the bail, without any proof of any cogent material on record. Denial of bail in such circumstances transcends respect for the requirement that a man shall be considered innocent until he is found guilty. Moreover, imprisonment prior to conviction has a substantial punitive content.

The grant or denial of bail takes place in less than a few minutes in crowded courtrooms, where the judicial decision-making is overburdened with other imperatives. One of the reasons why two out of three prisoners in Indian jails are undertrials is the conflicting opinions given by the Supreme Court on whether reasons are to be provided by the lower courts for grant/refusal of bail. Granting of bail, once a routine matter, is now subjected to magnified judicial scrutiny coupled with the fear of justifying it with valid reasons. As a result, these tend to gather dust.

If public justice is to be promoted, mechanical detention should be demoted. Since the court’s jurisdiction is discretionary, it has to be exercised with caution by balancing the valuable right of liberty of an individual and the interest of society in general. 

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