Jurisprudence of Bail

Introduction:

Bail portrays an important concept in criminal law of the country. It is concerned as a rule and jail as an omission in criminal law of India. The criminal law system of the country can become standard in order to maintain a balance between the rights of an individual and rights of the public which are equally in consideration. There are many practices associated with the criminal jurisprudence to sustain law and order of the society. Bail is one of such acts that has received an assessment in the past few years. It is granted to an accused after a bail bond is presented before the court of law.

The prime phenomenon of the Bail is to ensure that accused arrested for a criminal case is presented or appears before the court for serving the sentence if convicted.

The word ‘Bail’ is derived from an old French word ‘Bailer’ which means ‘to give’ or ‘to deliver’.

The case of an Ex-minister, Mr Chidambaram which revolves around the permit of the Foreign Investment Promotion Board i.e. FIPB, as clearance to INX Media Group, 2007 was granted by Bail by the Supreme Court of India having a bench of Justice H. Roya, S. Bopanna and R. Banumathi. [P. Chidambaram v. Directorate of Enforcement][1]

Bail is Rule, Refusal is an exception this was stated by Justice S. Bopanna.

When a court refuses to grant a Bail to a person, then it leads to violation of his/her personal liberty, that is also valued under Article 19, 21 and 22 of the Constitution of India.

Definition of Bail

Black’s Law Dictionary defines Bail as acquiring a discharge of a person from legal custody, by undertaking that the person shall appear at the time, place labelled to him or her and submit themselves to the court for the judgement or final decision.

Bail is precisely defined in the case of:

Sunil Fulchand Shah v. Union of India (1989)[2]

This case was dealt by Supreme Court of India where it was stated that Bail is a security for the appearance of the accused before the court of law during the course of the trial, it is obtained from the person arrested for committing an offence.

Another case where Bail was defined precisely: In Superintendent and Remembrance of Legal affairs v. Amiya Kumar Roy Chowdary[3]

In this case the court adhered that the laws related to Bails has to be harmonize two contrary demands, that are:

1. To provide a society with a shield from the perilous of being exposed to the blunder of a person alleged to have committed a crime.
2. To presume that the accused is innocent until proven guilty, that is the bottom-line percept of the criminal jurisprudence of India.

Background

In 399 BC, the concept and usage of Bail started. During medieval times, the British developed a concept of circuit courts from where the system of Bail was popularized. 

In India, section- 436 to 450 of the Code of Criminal Procedure 1973 deals with the provisions of Bail and Bail Bonds.

The court has a discretion power to decide whether to grant the Bail or to refuse the Bail, it depends on the magnitude and severity of an offence committed. The court decides the Bail amount on the basis of the economic status of a person and the nature of the offence.

Types of Bail

There are three types of Bail in India;

1. Regular Bail: A person can file an application for regular bail under section- 437 and 439 of Indian Penal Code. A regular bail is granted to a person who is arrested and is in police custody.
2. Interim Bail: it is granted to a person before hearing for the grant of Regular Bail or Anticipatory Bail. It is Bail granted for a short time period.
3. Anticipatory Bail: Section 438 of Indian Penal Code states Anticipatory Bail. It is granted to a person before an arrest then police cannot arrest a person if the court has granted Anticipatory Bail. If a person foresees that he/she might get arrested for a non-bailable offence, then they can apply in prior for Anticipatory Bail under section 438 of IPC.

Conditions for Bail in Bailable Offence

Any person who is accused of committing any bailable offence can be released on bail under section 436 of the Indian Penal Code. Bailable offence constitutes; stalking, threat of injury to a public servant, payment of bribe during the election, participation in riots, armed with deadly weapons, unlawful assembly etc. A person can be arrested for these offences and bail can be granted on the following conditions:

1. When there is a sufficient amount of evidence that such a person has not committed any offence
2. If the court wants to enquire further
3. When the person is not accused of any offence, punishable with imprisonment for life, death imprisonment or imprisonment up to 10 years. 

Conditions for Bail in Non Bailable Offence

Section- 437 of the Indian Penal Code, gave power to the courts to decide whether to grant bail or not for non-bailable offences. A person has no right to apply for bail in non-bailable offences. Non-bailable offences such as; Suicide, Cruelty by husband or relatives of Husband (Section 498A of IPC), Sedition, Murder (Section 302of IPC), counterfeit of Indian currency, wagging a war against a country, adulteration of drug, etc. The conditions under which the court can grant bail for the non-bailable offence:

1. Bail can be granted if an accused is a child or woman
2. In cases of absence of evidence
3. The accused person is physically sick
4. If the registration of FIR is impeded

Bail Can Be Denied on the Following Grounds

Whether to grant a Bail or to refuse it, depends upon the discretion of the court. There are certain conditions laid down for granting of bail by the courts that needs be taken into consideration before granting of Bail. The Supreme Court of India stated certain conditions for granting of Bail in the case:

In State of Maharashtra v. Sitaram Popat Vetal[4]

1. Prima Facie satisfaction of the court in support of the charge.
2. Reasonable apprehension of evidence or threaten to witness to tamper the evidence.
3. The severity of punishment, nature of the crime for acquisition and nature of evidence.

There are three conditions under which court can deny Bail:

1. When there are chances that a person who is accused of a crime can flee
2. When the accused person can tamper the evidence or can threaten the witness.
3. When a person can repeat the same crime after the bail is granted to him/her.

Bail System of India

Justice Krishnan Iyer stated in the famous case of Gudikanti Narasimhulu and Ors. v. public Prosecutor[5]

The subject of bail is blurred area of the criminal justice and hinges on the hunch of the bench, which is knowns as Judicial Discretion.

The decision should be fair enough to create a balance between providing justice and the personal liberty of an individual. It should not be vague, unfair and fanciful but legal and regular. It has become a norm that in India most of the wealthy and powerful people obtain bail easily, while poor or common people dwindle in jail. In case of a person with a high profile, bail is granted without considering the turpitude of crime. The Amount of Bail that is bail bonds are set by the courts in regard to the economic status of an individual.

According to the data analyzed by the Law Commission Report, that observed that majority of under-trail prisoners are illiterate, with a poor income source. They are trapped in this cycle and there right of liberty and dignity is violated.

In Klayan Chandar Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. [6]

In this case, the applications were filed by the accused of granting of Bail, he filed seven applications for it and all the application were rejected. At last, the eight application of the accused was approved by the High Court of Judicature at Patna. The accused had gone under incarnation for the period of 03 years and there was no chance of conducting a trial in the near future, and the appeal filed against the aid grant was approved by the Supreme Court stating that High Court cannot allow the grant on the sole ground that there is a delay in conducting a trial without taking into view the allegations made by the prosecution in regard to the prima facie, nature of offence and tampering of evidence and threaten to witness.

In Gurbaksh Singh v. Sibbia Etc. v. State of Punjab[7]

The High Court of Punjab, in this case, held that economic offences that shake the country’s economy such as Corruption, an accused cannot be granted an Anticipatory Bail for such an offence.

In State of Kerala v. Raneef[8]

The Hon’ble Supreme Court held that to keep a person in a prison for a very long time while the trail is delayed is violating his/her right of liberty and dignity, this is considered as a most important factor for granting Bail.

In P. Chidambaram v. Directorate Enforcement[9]

The case of an Ex-minister, Mr Chidambaram which revolves around the permit of the Foreign Investment Promotion Board i.e. FIPB, as clearance to INX Media Group, 2007 was granted by Bail by the Supreme Court of India having a bench of Justice H. Roya, S. Bopanna and R. Banumathi.

Bail is Rule, Refusal is an exception this was stated by Justice S. Bopanna.

Conclusion

The provisional release or discharge of an accused in criminal offences in which the court is yet to decide or give judgement denotes Bail. It is conditional liberty granted to an accused. The bail provisions are important to maintain a balance between justice and the personal liberty of an individual. The court while granting bail should keep in mind the values of equality, good conscience and justice.

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References:

[1](2019) 9 SCC 63

[2] AIR 1529, 1989 SCR (2) 867

[3] ILR (1974) 1 CAL 304

[4] 2004

[5] 1977 INSC 0342

[6] (2004) SCC (7) 528

[7] (1980) 2 SCC 565

[8] (2011) 1 SCC 784

[9] (2019) 9 SCC 63