The 268th Law Commission Report

Introduction:

The drawbacks of Criminal Jurisprudence in India are a matter of grave concern. The Laws of Crimes especially Bail Jurisprudence are colonial gifts and remain intact as their legacy. In relation to contemporary laws, the reforms under criminal laws have been very less. The government has worked tremendously in areas of health, sanitization, nutrition and education. These areas overshadowed the need for reforms in bail jurisprudence where the common man is hurt the most. The amendment in Bail laws is the need of the hour as it has become crucial for a dignified life and a matter touching daily lives.

The bail laws are discussed widely and various talks have been held between bar, bench and citizens but we see minimal concrete changes. Over these years, the most remarkable change is made by XXI Law Commission under its 268^th Report in 2017. The report acknowledged the insufficient and wasteful to examine and balance the representation of the truth.

Lord Denning gave stress on personal liberty and consider the writ of Habeas Corpus and application of Bail as a matter of Priority before any judge.[1]The Indian Supreme Court too agree with the ideas of Lord Denning. In February 2018, Justice Madan Lokur highlighted the presumption of innocence as an important Postulate in Bail Jurisprudence. Bail Is Rule and Jail is Exception was expressly stated. The jails, prisons or Correction Homes for reformation and a person may be kept out of it till he isn’t guilty or fears to abscond. The establishment of equilibrium between Constitutional rights of the accused and providing a fair trial.[2] The idea of the trail is to provide justice to the victim. The various factors surrounding the issue is socio-political conditions of the country, the socio-economic situation of accused and victim, need of society and above all facts and circumstances of the case.

Concept of Bail

The French word ‘BAILLIER’, which means controlling, guarding and delivering, is considered to be the root word for the concept of Bail. Bail in simple words can be understood as release on monetary assurance in form of personal bonds or surety[3]. The Bail should not be understood as a release from custody of law but mere transfer to the custody of surety who then will be bound to produce him before appropriate authority at specified place and time.[4] Bail is the judicial interim release of person suspected person in custody, on entering into recognization ( With or Without Surety) of acceptance to appear at given time and place for answering the charge before any competent authority by Law.[5] Bail may be applied by a person who is waiting for judgment in Criminal case and on the expectation that he will be declared innocent.

Historical Development of Bail

Bail has it’s European roots and brought to India by Britishers. The English Criminal Jurisprudence earlier didn’t have a concept of bail but delay in receiving justice and in light of rights of accused, the concept of Bail evolved. The delays range between days to years, so it became necessary to grant provisional release from Confinement. The Norman Period was the celebrated period for the evolution of full-fledged bail laws.

Sir James Stephen and writers like Glanville Williams acknowledge the bail rights as crucial right for any defendant. The right was recognized as early as in the year 1166 in Felony Case by the establishment of Jury Of Presentation. Later traces of bail laws can be witnessed in:

• Statute of Westminster I of 1275
• the Bail Statute of 1554
• Bail Act of 1976

Law of Bail in India

The British gifts to Indian colony in form of Criminal Laws include Bail laws too. The combined reading of Indian Penal Code and Code of Criminal Procedure lays down the Law of Bail in India. The offences are divided into Bailable and Non- Bailable. The word bail has been used 102 times throughout these Codes but word BAIL is not defined. The bailable offences are enshrined under Schedule to Code of Criminal Procedure and may be understood as offences other than serious and lethargic offences punishable with at least three years of imprisonment.

Chapter XXXIII Code of Criminal Procedure deals with laws of Bail. Under sec 436-450 deals with conditions, authorities, provisions related to bond and surety along with cases when bail could be cancelled.

Background of 268^TH Indian Law Commission Report

In the year 2015, the Department Of Legal Affairs under Ministry Of Law And Justice asked the Law Commission to examine the need of Specific Act for Bail. The Commission headed by Justice BS Chauhan during his meeting with Advisory Council for Justice Delivery and Law Reform reflected that there is no need of additional specific Act but amendment and better enforcement of existing Laws were strongly suggested. The commission formally commenced it’s working in the month of Mar 2016 and after consultation with many stakeholders including police officers from a number of States. After consulting police personnel in Nov 2016, the Judicial Officers were also consulted in the month of January 2017. Later the Director-General of Prosecution of all states were called for their opinion in the matter.

After a comprehensive study of Fifteen Months with various stakeholders, the Law Commission published its 268^th Report titled ‘Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail’ on 23 May 2017.

The Report consists of twelve chapters including Recommendations to various stakeholders. It included the draft of the Criminal Law Amendment Bill 2017 which was the nurturer of Criminal Law (Amendment) Act 2018.

Problems Discuss under the Report

Before studying the Law Commission Report, the problems prevailing related to bails and Anticipatory Bails need to be discussed. The legal doctrine for granting bail is based on triple test which says that when released on bail, the accuse will-

• Not flight risk
• Not influence witness or evidence
• Co-operation with authorities

• The Courts are advised to devise a uniform method to provide Bails in various cases. The uniform and exhaustive conditions may be used but in serious cases like Terrorism, Child molestation, Serial killings and otherwise, the Gravity Of Offence test may be brought in the picture.
• For Flight risk, the surrender of Passports and frequent reporting to concern authority have reduced risk to up to virtually vanish point.
• The principle of non-cooperation is based on absence and non-appearance when summoned. The answering to questions as per desired by the investigation agency. The fear of screening and tampering witness and evidence often considered major barricade to grant Bail.
• The principle Bail is Rule and Jail is exception is well recognized but in reality, robust biasness prevail lead to overcrowded jails and only rich can access right to bail.
• Though the High Courts through their rules have tried to regulate the conduct of police and in custody staff, the judges tend to grant such rights only to rich and powerful. The illiterate and indigent are usually sent to repeated remands. Even the prosecutions are bland and vague during the bail hearings. The prosecutors usually don’t fulfil their obligation to produce case diary and other material evidence for an arrest.

Under Special  Laws

• The high Investigating agencies like CBI and ED even don’t maintain any records resembling the Case Dairy. The pages are unnumbered and left loosed often passed in court which is accepted practice. They exceed their powers often and rely on coercive means while investigation.
• The grievous and heinous offences under White Collar Crime like Money laundering, Bank Fraud, etc., which has separate special laws for Bail as the nature of the crime there is a need of extra safeguards while the grant of bail. In such cases, arrest and bails must be done in strict compliance of the law.
• It is very unfortunate that most of the arrests in PMLA are done in breach of statutory provisions. The common practice of sharing and handing over all documents in sealed covers without sharing defeats his claim of proper defence.
• Other probabilities are Seal covers at times contain things which need not to be a part of the records. At the time of the hearing, the accused may have to answer the question for which he isn’t prepared for. Additionally Court may refuse any receiving of such seal covered documents.
• Bails in PMLA are granted in sec 45[6]. The section has been declared unconstitutional due to prevalent twin tests for special enactment. Still, the Courts grant bails on the basis of twin tests.
• Similar scenarios are seen in cases of sec 420 IPC, Section 120B IPC and Section 13(1)(d) of Prevention of Corruption Act, 1988 where mere Possession and Projection constitute a liability
• The hollow retrospective view where money trail indicate principle or proceeds of any tainted money incriminates the person. The idea of this hollow principle against the retroactive effect of criminal status is to uphold [7]

Position Of Undertrials And Default Bails

• The overcrowded jails and unawareness about the right to bail have lead to menace in jails. It is to be noted that at times bail security amount is too high to be payable. The jails are filled up with people of socio-economically backward class. The rich and powerful get bails easily.
• The Indian Constitution under art 20 and 21 allow rights to accused and undertrials. The default bail under sec 167 Code of Criminal Procedure provides for bail if the investigation does not conclude within the stipulated period of Sixty / Ninety Days respectively.
• The safeguard provided in case of bails under sec 436A where an undertrial is allowed to obtain bail when he completes one half of the maximum punishment prescribed for the offence. Usually, undertrials of an indigent, illiterate and disempowered class are forgotten, despised,  dispossessed and demonized which is a graver and barbaric unjust punishment

Relay Jurisprudence of Bail

• The new tactics to keep accused in custody have evolved. The investigating agencies come into play simultaneously.
• A single agency can keep the person to remand for 15 days then the accused need to be put before Court.
• Then another agency apply for remand and so on leading to virtually demolish right to bail

The abovementioned lack to address the basic flaw and ground-level operational realities and emphasized on matters limited to Court.

Recommendations

The Law Commission suggested following changed in Criminal Laws for Bail:

• Expansion in the definition of Bailable Offences under section 2(a) Code of Criminal Procedure read with Schedule I and provide a clear definition of word Bail.
• In relation to the vast power of police to arrest in sec 41, the personal liberty and societal interest must be duly considered. An arrest must be made with strict compliance with statutory provisions and duty to inform grounds of arrest and rights to Bail. Further such duties are cast over Magistrate to comply abovementioned. Departmental enquiring and Disciplinary actions over erring officers is proposed
• The Default Bail under sec 167 should be allowed[8]. The statutory remands under Sec 309 provide for double edge knife as it safeguards against illegal remands and additional power to grant bail.
• While granting bail, the personal monetary bonds or through surety should be treated as of last resort. Keeping financial conditions in mind, the Bond amount should not be excessive or unduly onerous. A surety maybe for some other territorial jurisdiction too. The Commission acknowledges the existence of class divide due to money which allowed them to access bail easily.
• The Schedule I to Code of Criminal Procedure must be amended in a manner that bailablity is directly dependent on the quantum of punishment and imprisonment
• Anticipatory Bail must be granted with caution and for limited period under section 438 and potential misuse must be kept on check.
• In cases of Economic Offences like tax evasion, custom offence and bank frauds, restricted bails are granted and strict compliance of provisions of CODE OF CRIMINAL PROCEDURE or appropriate law be taken up to grant or refuse bail.
• In cases of Special laws like terrorism Law, NDPS, etc, strict scrutiny and exceptional cases bail are suggested
• To defeat flight risk or absconding, Electronic tagging system must be adopted for grave and heinous criminals or prior convicts. Establishment of Crime and Criminal Tracking Network and Systems (CCTNS) was suggested. This will even solve the problem of overcrowding in Jails.
• The victim’s grave concern might be paid due consideration when he expresses unease about the release. In Grave and Heinous crimes, the prosecution must submit a Victim Impact Assessment Report. Such report must be submitted. The report must include physical, mental, the social impact of crime and impact of such release. Such checklists and assessment reports are prevalent in the UK and Courts pay due consideration while granting of bail. The cases of such kind include matrimonial disputes like Cruelty and Adultery under sec 498 A and 497 IPC
• Emphasis was paid to Risk Assessment Report over the pros and cons of granting the Bail.

Conclusion

The Law Commission has been remarkable in stating the bad shape and state of a system granting Bail. The views taken from various stakeholders and studying them made the report more comprehensive. The Draft 2017 which tends to change the lacunas in Criminal system can be seen successful as Criminal Amendment Act 2018. But it is to be noted that the report was all comprehensive but the actual execution is done very less. The overcrowded jails and pending bails which are even rejected on petty grounds, clearly show that Bail laws still have a long way to go. The duty imposed on solely Judiciary is not adequate to tackle the problem.

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References:

[1] Lord Denning, Freedom under the Law, p.3

[2] Kamlapati Trivedi vs State Of West Bengal 1979 AIR 777, 1979 SCR (2) 717

[3] Moti Ram v State of Madhya Pradesh 1978 AIR 1594, 1979 SCR (1) 335

[4] Halsbury’s Laws of England (1962)

[5] Law Commission’s 268th report (2017) (p. 22).

[6] Nikesh Tarachand Shah v UOI, 2017 SCC Online SC 1355 : 2018 (170) DRJ 109;

[7] Rao Shiv Bahadur and Anr v State of Vindhya Pradesh, AIR 1953 SC 394 pr 10 23

[8] The State vs Mehar Singh And Ors 1974 CriLJ 970