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Bail is the system in which; when a person is set loose from the restraint of police/judicial custody when the judgement is yet to be passed in exchange of collateral or fine, also known as bail bond, on the condition that the accused will respond to the call of summoning. The legal doctrine “Bail is a rule, Jail is an exception” given by Justice V. Krishna had been used for reference in several retrospective cases to grant bail to ensure the upholding of the fundamental right of life and personal liberty (Article 21). Bail is based on the rehabilitative theory granted after taking note on gravity of the offence, to make a person change for better and emend his/her illegal or unethical ways .In India, due to slow pace of disposal of cases and the continuous piling up of cases have directly resulted in overcrowding of the prisons which is the cause of worry due to the spread of COVID-19 pandemic. According to the National Crime Record Bureau (NCRB) report of 2019, total number of prisoners were 4,78,600 which is bitterly about 118.5% of the occupancy level based on official capacity. India is the country with highest number of under trial prisoners in the world, with about 7 out of 10 still facing the trial, this long road of getting justice come with the expense of money, time and mental pressure, this is where relief of bail comes in. Bail can be majorly classified into 3 types-
- Regular Bail (Section 439 of CrPC) – Bail granted to a person under police custody before the judgement is passed, fulfilling the right of the accused.
- Interim Bail (Section 438 of CrPC) – Bail granted to a person for short period of time before judgement when regular or anticipatory bail is yet to be approved
- Anticipatory Bail (Section 438 of CrPC) – Bail granted to a person under anticipation of getting arrested. This bail can even be approved even before the filing of FIR, and is mostly filed by significant figures in society to deal against the people who try to tarnish their reputation.
The power to grant and cancel bail is vested upon judiciary; the High Court by the virtue of the power vested under section 439 of CrPC which deals with inherent power and Article 226 of the Indian Constitution which deals with extraordinary powers with respect to writs.
Classification of Offences
- Cognizable Offence – These are the offenses which are regarded as more severe in nature. In these cases a police officer can arrest a person without warrant and can investigate the same without judicial authority.
- Non Cognizable Offence – These are the offenses which are regarded as less severe in nature. In these cases a police officer cannot arrest a person without warrant and cannot investigate the same without judicial authority.
- Bailable Offence – These offences are not of serious nature and the bail can be granted to the accused, where investigating officer is required to inform him how to claim the bail. Bail is claimed as a matter of right.
- Non-Bailable Offence – These offences are of serious nature and getting bail can be a hefty process implied with some conditions in general. Bail is claimed as a matter of discretion.
Jurisdiction of High Court under Article 226
After filing of a complaint or on the apprehension of FIR, a person can apply for bail in High Court under Section 482 CrPC or under Article 226 of the Constitution. In the judgement, the court in the matter of State of Telangana Vs Habib Abdullah Jeelani& Ors, the High Court observed that when extraordinary powers are used to grant bail, it is to be exercised cautiously and in appropriate cases during extreme circumstances to prevent the abuse of process of law under Article 226 and Section 439.Further, it was observed in the case of State of Haryana Vs BhajanLal, Article 226 grants extraordinary power to High Court which can be used so that the justice prevails. Bail may be granted in following circumstances –
- When allegation in FIR does not prima facie constitute an offence, this was thoroughly mentioned by Apex Court in Arnab Manoranjan Goswami Vs The State Of Maharashtra when High Court failed to prima facie observe the accusations resulting in cancellation of bail plea of appellant, this was substandard behavior as expected on the part of the Maharashtra High court.
- When there is absence of cognizable offense and the facts given points out that the offense committed was bailable.
- When the case is falsely charged out against the accused or the issue for which complaint filed is too trivial for court proceedings.
- When the intention for filing the case had mala-fide intention behind it, to seek of revenge or to purport accused to acquire material and monetary profit.
- When the accused surrenders before the trial Magistrate, he may be admitted to bail on predetermined terms and conditions.
The High Court under Article 226 performs judicial restraint, by self restraining; it has enough power to make an apt decision even by instigating or quashing an investigation as the situation demands. The court must also exercise its power while keeping in mind the cognizance of the fact that the jurisdiction of Article 226 is still not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC.
Granting of Bail
According to the data released by National Judicial Data Grid (NJDG) the number of bail application pending before the High Courts are as high as 91,568 with pending criminal matters ( Writ Petitions, Case/Petitions, Appeals, Revisions and Applications) soaring as high as 12,66,133. Even in courts at subordinate level these figures have reached the toll of 1,96,861 and the cases keeps on mounting each and every single day. To tackle this humongous obstacle and bridge the gap of pending cases, the Apex Court initiated a new scheme Fast and Secure Transmission of Electronic Records (FASTER) for faster, digital and secure transmission of bail on real time basis.
For granting of bail under Article 226 of the Constitution, the High Court must be fairly acquainted with basic facts of each and every case, in addition to keeping in mind the position and the constitutionally granted liberty of an accused. Furthermore, making sure that witness(es) and evidence(s) are authentic and not meddles with in any way, High Court could even facilitate proper investigation and fulfill the right to life and personal liberty under Article 21.
Furthermore, the court should keep in mind the harm caused by an offense or the harm which would have been caused in case of its successful execution. The degree of punishment which could be sentenced by the court in the case of conviction will influence the decision to permit the appeal of accused for bail. There must be no apprehension of any interference with witness(es) or evidence(s). The court should also consider if the person granted bail would be duly present before the court of law without fleeing or escaping the call of summon, the significant interests of the public or the State and other similar considerations, the prima facie evaluation of facts giving focus to the veracity of the facts which will prevent the injustice to the parties involved.
Bail plays an essential role in preventing erroneous implementation of criminal law and safeguarding people from being falsely accused. Not just upper courts but even the courts at subordinate level should be instrumental in providing proper liberty to the people without fail, it was stated in the light of Article 14 and Article 21 by Justice D.Y. Chandrachud that ‘deprivation of liberty even for a single day is one too many’.
Accordingly, enforcement of Article 21 and Article 14 in court of law will automatically invoke the applicability of Article 32, also defined as heart and soul of constitution by Dr B.R. Ambedkar, which deals with proper proceedings for upholding the six fundamental rights granted to us by the constitution. This right was neglected in the case of Father Stan Swamy, a tribal activist arrested under the draconian law of UAPA, where his appeal for bail was repeatedly rejected until he took his last breath in the judicial custody. The death of Father Stan Swamy compelled us to think about various loopholes that need to be fixed to prevent any other person who is not declared convict, be deprived of her/his rights. The legal doctrine of “innocent until proven guilty” should supervene not the other way around.
It is not entirely possible to lay clear and stiff guidelines for the use of power under Article 226 even after passing to numerous case judgements. The Indian judiciary needs to be more efficient and considerate towards granting the bail such that no injustice prevails in the society. The default rule is ‘bail, not jail’.
This article is authored by Sarthak Pant student at Institute of Law, Nirma University
- Arnab Manoranjan Goswami Vs The State Of Maharastra& Ors.
- State of Haryana Vs Bhajan Lal
- State of Telangana Vs Habib Abdullah Jeelani & Ors
What are the different types of bail?
There are three types of bail- Regular Bail, Interim Bail, Anticipatory Bail.
How are the courts upholding the fundamental right under Article 21?
The legal doctrine “Bail is a rule, Jail is an exception” given by Justice V. Krishnahad been used for reference in several retrospective cases to grant bail to ensure the upholding of the fundamental right of life and personal liberty (Article 21).
What are the powers of High Court under Article 226 with respect to bail?
The High Court under Article 226 performs judicial restraint, by self-restraining; it has enough power to make an apt decision even by instigating or quashing an investigation as the situation demands. The court must also exercise its power while keeping in mind the cognizance of the fact that the jurisdiction of Article 226 is still not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC.
Why is the concept of bail in criminal law so important?
Bail is instrumental in providing proper liberty to the people without fail, it was stated in the light of Article 14 and Article 21 by Justice D.Y. Chandrachud that ‘deprivation of liberty even for a single day is one too many’.