While bail, in a bailable offence, can be claimed as a matter of right, the grant of bail in a non-bailable offence is a matter of the discretion of the court. This article discusses bail or jail even as this debate goes on
A Bail is a security given by the accused that he will regularly appear before the court where a criminal case has been registered against him. It includes a bail bond which has to be furnished by the accused. A bail bond is a written undertaking on behalf of the accused and his surety for the regular personal appearance of the accused before the concerned court so that the trial may be conducted with full co-operation of the accused. If the accused fails to comply with the terms and conditions of the bail bond, especially conditions concerning the regular appearance of the accused, the court may subsequently refuse to release the accused on bail.
Sometimes, people with financial difficulties may be unable to furnish the required amount or may be unable to produce a surety. For them the bail procedure may be beyond their meager means. As a consequence of this, the accused may have to suffer long years in pre-trial detention. In such cases if the court is satisfied that there is no substantial risk of non-appearance, the accused maybe released on his personal bond and the amount of the bond is determined by the financial circumstances of the accused and the probability of his absconding.
Article 21 of the Indian constitution safeguards and protects the personal liberty of every person in this country. However, the same Article 21, which guarantees personal liberty to every person, also contemplates deprivation of personal liberty by procedure established by law. In light of this, if a person is detained in custody during the pendency of a trial, such detention cannot be questioned as being violative of Article 21 since the same is authorized by law.
The term “Bailable offence” has been defined in section 2 (a) of the Code of Criminal Procedure, 1973, as an offence which is shown as bailable in the First Schedule of the Code of Criminal Procedure or which is made bailable by any other law for the time being in force. The same section 2(a) also defines the term “non-bailable” offence as “any other offence”. The said First Schedule of the Cr.P.C. lists a number of offences, categorizing them either as bailable or non-bailable.
The grant of bail to a person accused of a bailable offence is governed by section 436 of the Code of Criminal Procedure, 1973. The right to claim bail under this section is an absolute right. In bailable offences, there is no question of any discretion in granting bail. Bail, in a bailable offence can be claimed as a matter of right, and the court is bound to release the accused on bail if he is willing to abide by the reasonable conditions which may be imposed on him.
However, in Rasiklal V. Kishore Khanchand Wadhwani, AIR 2009 SUPREME COURT 1241, the Hon’ble Supreme Court has held that even though in a bailable offence the accused can claim bail as a matter of right, but the accused will have to forfeit his right to be released on bail if his conduct subsequent to his release is found to be pre-judicial to fair trial. In the same judgment the Hon’ble court has further held that bail granted to an accused in a bailable offence can be cancelled if the accused misuses his liberty by indulging in similar criminal activities, interferes with the course of investigation, attempts to tamper with evidence of witnesses, threatens witnesses, or indulges in similar activities which will hamper smooth investigation.
Section 437 of the Code of Criminal Procedure, 1973, deals with non-bailable offences. Unlike in a bailable offence, where an accused is entitled to bail as amatter of right, in a non-bailable offence, the grant of bail is a matter for the discretion of the court. While deciding on whether or not to grant bail in a nonbailable offence there are no hard and fast rules. The matter always calls for judicious exercise of discretion by the court. Deprivation of freedom by refusing bail is not for punitive purposes but to protect the interests of the public and the society at large.
Some of the factors which the courts take into account to decide whether bail should be granted in a non bailable offence are the nature and seriousness of the offence, the severity of the punishment to which the accused may be liable if convicted, the character of the evidence, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witness being tampered with and to safeguard and protect the larger interests of the public and the state. It is also important to inquire into the background of the accused and antecedents of the man who is applying for bail to find out whether he has a bad record, particularly a record which might suggest that he is likely to commit another serious offence while on bail.
While on one hand, the liberty of an individual as granted by Article 21 of theIndian constitution is precious and has to be protected by the courts, on the other hand it is also important to ensure the safety and security of the public at large. Therefore, while deciding on whether a bail should be granted to an accused in a non-bailable offence, the valuable right of liberty of an individual and the interest of the society in general has to be balanced. It is possible that in a given situation the collective interest of the community and the society at large may outweigh the right of personal liberty of the individual concerned. In such a situation, the application for bail in a non-bailable offence is normally rejected.
While deciding on whether a bail is to be granted or rejected in a particular case, the courts do not undertake an elaborate examination of evidence and also avoid going into the detailed merits of the case. The Hon’ble Supreme Court, in a catena of judgments has held that where bail was being granted to an accused who is charged of having committed a serious offence, there is a need to indicate in the order reasons for prima facie concluding why bail was being granted. Any order where the court has not considered factors like nature of the accusation, severity of the punishment, nature of supporting evidence, reasonable apprehension of the accused tampering with the witness or apprehension of threat to the complainant, would suffer from non-application of mind and will be set aside.
In, Masroor V. State of U.P., (2009) 14 SCC 286, the Hon’ble Supreme Court set aside the order of the Hon’ble High Court on the ground that there was no consideration of any of the factors like nature of the offence, nature of evidence collected by the prosecution and the circumstances under which the offence was committed. The Apex court held inter-alia, as,
“Failure on the part of the learned Judge in not indicating any reason for grant of bail particularly when charges against the accused are serious, makes his order indefensible. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case is not to be undertaken but while granting bail, some reasons for prima facie concluding why bail was granted, has tobe indicated. Order must show consideration of factors like nature of offence, nature and character of evidence collected by prosecution and circumstances under which the offences were committed”.
Sometimes, certain people, with the intent of maligning the reputation of an innocent person may try to get him arrested by registering a false and frivolous complaint. In such a scenario, the Criminal Procedure Code provides a remedy by way of anticipatory bail.
The provisions concerning Anticipatory Bail are contained in Section 438 of the Criminal Procedure Code, 1973. Under the said section, whenever any person has a reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction granting him anticipaory bail. If such an application is successful, the person concerned shall be released on bail in the event of his arrest.
The Apex Court in Gurbaksh V. State, AIR 1980 SC 1632, has held that the use of the expression ‘reason to believe’ used in section 438(1), shows that the belief that the concerned person may be arrested must be founded on reasonable grounds. Mere fear is not enough. The apprehension for arrest must be genuine.
Anticipatory bail, to some extent, intrudes into the sphere of investigation of crime and the courts must be cautious and circumspect in exercising such a discretionary power. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, firstly, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused.
Some of the other factors which are relevant for deciding whether anticipatory bail should be granted or not are the nature, gravity and seriousness of accusation, the antecedents of the applicant as to whether he has previously undergone imprisonment on a conviction by a court, presence of any mala-fide intention to humiliate or malign the reputation of the applicant by having him so arrested and the possibility of the applicant, if granted anticipatory bail, fleeing to avoid the due process of law.
The Indian society is going through a phase of widespread corruption, 2G scam, gargantuan problem pertaining to black money, alleged scam relating to commonwealth games to name a few. Consequently, and even otherwise, the lawpertaining to bail assumes critical significance. In the teeth of existence of prima facie evidence of involvement of an accused in an offence, granting bail will not be in the larger public interest. If the accused belongs to a powerful section of the society, there is every likelihood of his/her attempting to take liberties with evidence. Prime witnesses may also not remain immune from influence and temptations. Investigation may be hampered in the process. In such cases the courts should adopt a strict approach while deciding a bail application. Besides, adopting a strict approach in deciding bail applications will also create fear in the minds of the people and this will go a long way in reducing the level of corruption in this country.
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