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- -Justice as we know was a
right fundamental to all,
but it's fallacy is evident, as money now results in its fall - -
Objectively analyzed the criminal jurisprudence adopted by India
is a
mere reflection of the Victorian legacy left behind by the
Britishers.
The passage of time has only seen a few amendments once in a while
to
satisfy pressure groups and vote banks. Probably no thought has
been
given whether these legislations, which have existed for almost
seven
decades, have taken into account the plight and the socio-economic
conditions of 70% of the population of this country which lives in
utter
poverty. India being a poverty stricken developing country needed
anything but a blind copy of the legislations prevalent indeveloped
western countries.
The concept of bail, which is an integral part of the criminal
jurisprudence, also suffers from the above stated drawbacks. Bail
is
broadly used to refer to the release of a person charged with an
offence, on his providing a security that will ensure his presence
before the court or any other authority whenever required.
Meaning of Bail
Bail, in law, means procurement of release from prison of a person
awaiting trial or an appeal, by the deposit of security to ensure
his
submission at the required time to legal authority. The monetary
value
of the security, known also as the bail, or, more accurately, the
bail
bond, is set by the court having jurisdiction over the prisoner.
The
security may be cash, the papers giving title to property, or the
bond
of private persons of means or of a professional bondsman or
bonding
company. Failure of the person released on bail to surrender
himself at
the appointed time results in forfeiture of the security. The law
lexicon[1] defines bail as the security for the appearance of the
accused person on which he is released pending trial or
investigation.
Courts have greater discretion to grant or deny bail in the case
of
persons under criminal arrest, e.g., it is usually refused when
the
accused is charged with homicide.
What is contemplated by bail
is to "procure the release of a
person from
legal custody, by undertaking that he/she shall appear at the time
and
place designated and submit him/herself to the jurisdiction and
judgment
of the court." [2]
A reading of the above definition make it evident that money need
not be
a concomitant of the bail system. As already discussed above, the
majority of the population in rural India, lives in the thrall of
poverty and destitution, and don't even have the money to earn one
square meal a day. Yet, they are still expected to serve a surety
even
though they have been charged with a bailable offence where the
accused
is entitled to secure bail as a matter of right. As a result, a
poor man
languishes behind bars, subject to the atrocities of the jail
authorities rubbing shoulders with hardened criminals and
effectively
being treated as a convict.
History of Bail
The concept of bail can traced back to 399 BC, when Plato tried to
create a bond for the release of Socrates. The modern bail system
evolved from a series of laws originating in the middle ages in
England.
Evolution in England
There existed a concept of circuit courts during the medieval
times in
Britain. Judges used to periodically go ?on circuit? to various
parts of
the country to decide cases. The terms Sessions
and Quarter
Sessions
are thus derived from the intervals at which such courts were
held. In
the meanwhile, the undertrials were kept in prison awaiting their
trials. These prisoners were kept in very unhygienic and inhumane
conditions this was caused the spread of a lot of diseases. This
agitated the undertrials, who were hence separated from the
accused.
This led to their release on their securing a surety, so that it
was
ensured that the person would appear on the appointed date for
hearing.
If he did not appear then his surety was held liable and was made
to
face trial. Slowly the concept of monetary bail came into
existence and
the said undertrials was asked to give a monetary bond, which was
liable
to get forfeited on non-appearance.
In The Magna Carta, in 1215, the first step was taken in granting
rights
to citizens. It said that no man could be taken or imprisoned
without
being judged by his peers or the law of the land.
Then in 1275, the Statute of Westminster was enacted which divided
crimes as bailable and non bailable. It also determined which
judges and
officials could make decisions on bail.
In 1677, the Habeas Corpus Act
was added to the Right Of
Petition of
1628, which gave the right to the defendant the right to be told
of the charges against him, the right to know if the charges
against him were bailable or not. The Habeas Corpus Act, 1679 states, "A Magistrate
shall
discharge prisoners from their Imprisonment taking their
Recognizance,
with one or more Surety or Sureties, in any Sum according to the
Magistrate's discretion, unless it shall appear that the Party is
committed for such Matter offenses for which by law the Prisoner
is not bailable."
In 1689 came The English Bill Of Rights, which provided safeguards
against judges setting bail too high. It stated that "excessive
bail
hath been required of persons committed in criminal cases, to
elude the
benefit of the laws made for the liberty of the subjects.
Excessive bail
ought not to be required."
Current Practice
In 1976 the Bail Act 1976 came into force. It sets out the current
and
the basic legal position of bail prevailing in England. It lays
out that
there is a general right to bail, except as provided for under the
First
Schedule of the Act. While there are different grounds for
refusing the
right to bail depending on the type of offence, for all
imprison able
offences the two basic grounds are as set out by the O'Callaghan
decision. But there is also the additional ground that if the
court is
satisfied that there are "substantial grounds for believing" that
the
defendant if released on bail will commit an offence while on
bail, bail
may be refuse.
Under section 5(3) of the Bail Act 1976 the court which withholds
bail
is required to give reasons, so that the defendant can consider
making
an application.[3] In practice, however, the reasons given by
English
courts on a variety of standard forms are frequently short and not
explicitly based upon particular facts and factors. Stone's
Justices'
Manual suggests that magistrates announce any decision to refuse
bail
merely by relating the grounds and statutory reasons in short
form.[4]
English administrative law also requires that, where there is an
existing obligation to give reasons for a decision, the reasons
given be
clear and adequate, and deal with the substantial issues in the
case.[5]
The English courts use tick boxes for recording the grounds and
the
reasons for not granting bail. There is a use of a standard
pattern that
which lists out the various reasons for not granting the bail.
These
forms vary in their precise configuration, but in substance they
are all
the same as all of them set out the grounds for refusing bail in
one
column, and a number of possible reasons for the findings those
grounds
established in another column. The decision is recorded by ticking
the
relevant box in each column. But the decisions recorded on
standard
forms might be at risk of being characterised as "abstract" or
"stereotyped", and therefore inadequate. The quality of the
reasons
given directly reflects the quality of the decision-making
process.
Evolution in America
According to the San Francisco News and the SF Chronicle, the
first
modern Bail Bonds business in the United States, the system by
which a
person pays a percentage to a professional bondsman who puts up
the cash
as a guarantee that the person will appear in court, was
established by
Tom and Peter P. McDonough in San Francisco in 1898. Infact, this
was
the same year that the Bill of Rights was introduced in England,
and the
Congress passed the Judiciary Act. This specified which types of
crimes
were bailable and set bounds on a judge's discretion in setting
bail.
The Act states that all non-capital crimes are bailable and that
in
capital cases the decision to detain a suspect, prior to trial,
was to
be left to the judge. In 1791 The Bill Of Rights was incorporated
into
Constitution of the United States, through the 5th, 6th and 8th
Amendments, guaranteeing citizens the right to due process of law,
a
fair and speedy trial and protection against excessive bail. The
Eighth
Amendment to the Constitution of the United States provides that
"excessive bail shall not be required," but it does not provide
any
absolute right to bail.
Current Practice
Under current law, a defendant has the right to bail unless there
is
sufficient reason not to grant it. The main reasons for refusing
bail
according to the Bail Act 1976 are that there are substantial
grounds
for believing that the defendant (1) will abscond; (2) will commit
further offences whilst on bail; or (3) will interfere with
witnesses.
Conditions may be applied to the grant of bail, such as living at
a
particular address or, rarely, paying an amount into court or
having
someone act as surety. Release on bail is sometimes referred to as
police bail, where the release was by the police rather than by a
court.
The alternative to being granted bail is being remanded into
custody
(also called being held on remand).
In America, every accused person is entitled to a hearing at which
evidence relevant to his individual case is considered to
determine the
amount of bail necessary. No precise rule can be laid down that
will
determine the amount of bail required in any particular instance.
Bail
is to be fixed according to the circumstances of each case. The
matter
is generally one for the sound discretion of the trial court.
Although
the determination of the trial court is subject to the review in
the
appellate courts for abuse of discretion, ordinarily the appellate
courts will not interfere if the amount set by the trial court is
reasonable and not excessive.
The amount of a bond should, of course, be sufficient to assure
the
attendance of the defendant upon the court when it is required.
The bond
should be fixed in such amount that will exact vigilance on the
part of
the sureties to see that the defendant appears in court when
called.[6]
Both the Federal Constitution and state constitutions contain
provisions
against excessive bail. Bail set at an amount higher than
reasonably
calculated to insure that the accused will appear to stand trial
and
submit to sentence if convicted is excessive, and falls within the
proscription of the Federal Constitution if set by a federal
court, or
of the particular state's constitution if set by a state court.
But no
hard-and-fast rules for determining what is reasonable bail and
what is
excessive bail have been laid down. That the bail is reasonable
which,
in view of the nature of the offense, the penalty attached to the
offense, and the probability of guilt of defendant, seems no more
than
sufficient to secure attendance of the defendant.[7]
The amount of bail, in and of itself, is not finally determinative
of
excessiveness. What would be reasonable bail in the case of one
defendant may be excessive in the case of another.[8] As indicated
below, such matters as the past criminal record of the defendant,
and
the nature of the crime committed and the punishment therefore,
are
material factors in determining whether bail is excessive.
Where two or more cased are pending against a defendant, the fact
that
bail in one case, considered by itself, is reasonable, does not
prevent
the collective amount required in the several cases from being
excessive.
The gist of the problem confronting a court in setting the amount
of
bail is to place the amount high enough to reasonably assure the
presence of defendant when it is required, and at the same time to
avoid
a figure higher than that reasonably calculated to fulfill this
purpose,
and therefore excessive. The general rule in federal courts is to
try to
strike a balance between the need for a tie to the jurisdiction
and the
right to freedom from unnecessary restraint before conviction,
under the
circumstances surrounding each particular accused.[9] In other
words,
in determining the amount of bail, the good of the public as well
as the
rights of the accused should be kept in mind.
The Bail Reform Act of 1966 provides for the release of defendant
on his
personal recognizance or upon execution of an unsecured appearance
bond
in an amount specified by the judicial officer before whom he
appears,
unless the officer determines, in the exercise of his discretion,
that
such release will not reasonably assure the appearance of
defendant as
required, in which event specified conditions of release which
will
reasonably assure defendant's appearance for trial may be imposed.
The
Bail Reforms Act, 1966 was initiated by President Johnson who felt
that
under the Federal Rules, bail in an amount higher than reasonably
calculated to be necessary to assure the presence of the accused
is
excessive.
It has been stated that the factors to be taken into consideration
in
determining the amount of bail are:
(1) ability of the accused to
give
bail,
(2) nature of offense,
(3) penalty for the offense charged,
(4)
character and reputation of the accused,
(5) health of the
accused,
(6)
character and strength of the evidence,
(7) probability of the
accused
appearing at trial,
(8) forfeiture of other bonds, and
(9) whether
the
accused was a fugitive from justice when arrested. [10]
That the
accused
is under bond for appearance at trial in other cases should also
be
considered.
A major factor in determining the amount of bail in a current
matter is
the character and former criminal record of the defendant. It has
been
held, however, that the criminal activities and tendencies of a
person
applying for bail on a charge of vagrancy do not justify the
fixing of
bail at an excessive amount for the purpose of keeping him in
jail.
In determining the amount of bail, voluntary surrender may be
considered
as an indication that the defendant has no intention of absconding
from
justice. On the other hand, it is also proper, in setting a higher
bail
figure, to take into consideration the fact that at the time of
arrest
the accused was a fugitive from justice, or the fact that the
defendant
has previously absconded while under indictment.
Even where bail is a matter of right, the fact that a person has
previously forfeited bail is a factor to be considered in
determining
the amount of bail; in such a case bail may be set in such amount
as
will reasonably assure the presence of the defendant at court,
although
bail may not be refused altogether.[11] In setting the bail, the
court
may also consider the behavior or misbehavior of the defendant
during
parole from prison on a previous criminal conviction.
The probability of the establishment of guilt at the trial, or the
existence of doubt as to the guilt of the accused, is a proper
consideration in determining the amount of bail. Hence a court, in
determining the amount of bail, may consider the character and
strength
of the evidence by which the crime charged is supported.
A court should give some regard to the prisoner's pecuniary
circumstances, since what is reasonable bail to a man of wealth
may be
equivalent to a denial of the right to bail if exacted of a poor
man
charged with a like offense.[12] An accused cannot be denied
release
from detention because of indigence, but is constitutionally
entitled to
be released on his personal recognizance where other relevant
factors
make it reasonable to believe that he will comply with the orders
of the
court.[13]
However, bail is not rendered excessive by the mere inability of
the
accused to procure bail in the amount required. In other words,
the
extent of the pecuniary ability of the accused to furnish bail in
not
controlling, if it were, the fixing of any amount, no matter how
small,
where the accused had no means of his own and no friends who were
able
or willing to become sureties for him, would constitute a case of
excessive bail, and would entitle him to got at large on his own
recognizance. It is the incarceration of those individuals who
cannot
meet established money bail requirements, without meaningful
consideration of other possible alternatives, which infringes on
both
due process and equal protection requirements.
The current American position is stated as follows in a standard
treatise "There is power in the court to release the defendant
without
bail or on his own recognition."
The Legal Position in India
The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not
define bail, although the terms bailable
offence and non-bailable
offence have been defined in section 2(a) Cr.P.C. as follows: "
Bailable offence means an offence which is shown as bailable in
the
First Schedule or which is made bailable by any other law for the
time
being enforce, and non-bailable offence means any other offence".
Further, ss. 436 to 450 set out the provisions for the grant of
bail and
bonds in criminal cases. The amount of security that is to be paid
by
the accused to secure his release has not been mentioned in the
Cr.P.C..
Thus, it is the discretion of the court to put a monetary cap on
the
bond. Unfortunately, it has been seen that courts have not been
sensitive to the economic plight of the weaker sections of
society. The
unreasonable and exorbitant amounts demanded by the courts as bail
bonds
clearly show their callous attitude towards the poor.
According to the 78th report of the Law Commission as on April 1,
1977,
of a total prison population of 1,84,169, as many as 1,01,083
(roughly
55%) were under-trials. For specific jails, some other reports
show:
Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per
cent
under-trials; Assam, Tripura and Meghalaya-66 per cent
under-trials.
One of the reasons for this is, as already mentioned above, is the
large
scale poverty amongst the majority of the population in our
country.
Fragmentation of land holdings is a common phenomenon in rural
India. A
family consisting of around 8 ? 10 members depends on a small
piece of
land for their subsistence, which also is a reason for disguised
unemployment. When one of the members of such a family gets
charged with
an offence, the only way they can secure his release and paying
the bail
is by either selling off the land or giving it on mortgage. This
would
further push them more into the jaws of poverty. This is the
precise
reason why most of the undertrials languish in jail instead of
being out
on bail.
Judicial Trend
An overview of the following cases highlight the adverse condition
of
the poor with regard to the unjust bail system in India. In
State of Rajasthan v Balchand [14], the accused was convicted
by the
trial court. When he went on appeal the High Court, it acquitted
him.
The State went on appeal to the Hon'ble Supreme Court under Art.
136 of
the Constitution through a special leave petition. The accused was
directed to surrender by the court. He then filed for bail. It was
then
for the first time that Justice Krishna Iyer raised his voice
against this unfair system of bail administration. He said that
though while the system of pecuniary bail
has a tradition behind it, a time for rethinking has come. It may
well be that in most cases an undertaking would serve the purpose.
In Moti Ram and Ors. v State of M.P [15], the accused who was a
poor
mason was convicted. The apex court had passed a sketchy order,
referring it to the Chief Judicial Magistrate to enlarge him on
bail,
without making any specifications as to sureties, bonds etc. The
CJM
assumed full authority on the matter and fixed Rs. 10,000 as
surety and
bond and further refused to allow his brother to become a surety
as his
property was in the adjoining village. MR went on appeal once more
to
the apex court and Justice Krishna Iyer condemned the act of the
CJM, and said that the judges should be more inclined towards
bail and not
jail.
In Maneka Gandhi v Union of India
[16], Justice Krishna Iyer once again spoke against the
unfair system of bail that was prevailing in India.
No definition of bail has been given in the code, although the
offences
are classified as bailable and non-bailable. Further Justice P.N.Bhagwati also spoke about how unfair and discriminatory the
bail
system is when looked at from the economic criteria of a person this
discrimination arises even if the amount of bail fixed by the
magistrates isn't high for some, but a large majority of those who
are
brought before the courts in criminal cases are so poor that they
would
find it difficult to furnish bail even if it's a small amount.
Further in
Hussainara Khatoon and others v. Home Sec,State of
Bihar [17]
, the Court laid down the ratio that when the man is in jail for a
period longer than the sentence he is liable for then he should be
released.
Conclusion
A perusal of the above cases highlights the strong anti-poor bias
of the
Indian criminal justice system. Even though the courts in some
cases
have tried to intervene and also have laid down certain guidelines
to be
followed but unfortunately nothing has been done about it. There
is also
a strong need felt for a complete review of the bail system
keeping in
mind the socio-economic condition of the majority of our
population.
While granting bail the court must also look at the socio-economic
plight of the accused and must also have a compassionate attitude
towards them. A proper scrutiny may be done to determine whether
the
accused has his roots in the community which would deter him from
fleeing from the court. The court can take into account the
following
facts concerning the accused before granting him bail:
(1) The nature of the offence committed by the accused.
(2) The length of his residence in the community.
(3) His employment status history and his financial condition.
(4) His family ties and relationships.
(5) His reputation character and monetary conditions.
(6) His prior criminal records, including any record or prior
release on
recognizance or on bail.
(7) Identity of responsible members of the community who would
vouch for
his reliability.
(8) The nature of the offence charged and the apparent probability
of
conviction and the likely sentence in so far as these factors are
relevant to the risk of non-appearance.
(9) Any other factors indicating the ties of the accused to the
community or barring on the risk of willful failure to appear.
The Way Forward
It is thought that from the various schemes the government
operates for
rural employment, loans to farmers etc, a portion of the funds
which it
transfers to the panchayat for developmental work of the same
should be
set aside and kept to meet the bail amount for undertrials
belonging to
the particular panchayat / block. The utilization of this fund
would be
in the hands of the elected leaders of the society with the
representative of district collector / district magistrate being a
part
of the system. This would, go a long way in securing freedom for
scores
of undertrials who would then be able to contribute to society
thereby
playing an important role and forming part of the national
mainstream.
Such a scenario will have the effect of reducing the burden of
over-crowding in jail.
The setting up of separate jails, or at any rate isolating
undertrials
from convicts, would prevent hardened criminals from exercising
their
deleterious influence over undertrials. Such segregation would
also
change the attitude of jail authorities and society at large
towards under trials.
The under trials who have been charged with petty crimes can
further be
put in reformative homes instead and asked to do community service
till
the time they are released on bail. Elementary education facilities must be granted to those
under trials who
are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the
hands of
a few, but, should be available to the masses including those who
do not
have the financial capacity to afford it.
End Notes
1. Law lexicon by Ramanth Iyer, (3rd ed).
2. Black's Law Dictionary 177 (4th ed.)
3. Legislation has recently been enacted which, when brought into
force,
will require magistrates? courts and the Crown Court to give
reasons for
their decisions where they grant bail after hearing
representations from
the prosecutor in favour of withholding bail (Criminal Justice and
Police Act 2001, s 129). Such a requirement has the potential to
promote
thoughtful decision-making and the proper consideration of the
risks
that a defendant might pose if granted bail.
4. Stone's Justices? Manual 2000, para 1-432.
5. H W R Wade and C F Forsyth, Administrative Law (8th ed 2000) pp
918?919.
6. State v Chivers, 198 La 1098, 5So 2d 363.
7. Braden v Lady (Ky) 276 SW2d 664.
8. Stack v Boyle, 342 US 1, 96 L Ed 3, 72 S Ct 1; Bennett v United
States (CA5 Fla) 36 F2d 475.
9. Spector v United States (CA9 Cal) 193 F2d 1002; United States
ex rel.
Rubnistein v Mulcahy (CA2 NY) 155 F2d 1002.
10. Delaney v Shobe, 218 (inability to give bond in the amount set
is
not sufficient reason for holding the amount excessive).
11. In addition to a higher bail, the court may require additional
sureties after a prior forfeiture of bail. Wallace v State, 193
Tenn
182, 245 SW2d 192, 29 ALR2d 941.
12. McCoy v United States, 123 App DC 81, 357 F2d 272; Beddow v
State,
259 Ala 651, 68 So 2d 503; People ex rel. Sammons v Snow, 340 III
464,
173 NE 8, 72 ALR 798; Green v Peit, 222 Ind 467, 54 NE2d 281;
State v
Mastrial, 266 Minn 58, 122 NW2d 621, certden 375 US 942, 11 L Ed
2d 274,
84 S Ct 349; Royalty v State (Miss) 235 So 2d 718; Ex parte
Royalty v
State (Miss) 235 So 2d 718; Ex parte Malley, 50 Nev 248, 256 P
512, 53
ALR 395.
13. Bandy v United States (US) 7 L Ed 9, 82 S Ct 11 (per Douglas
J., as
individual justice).
14. AIR 1977 SC 2447
15. AIR 1978 SC 1594
16. AIR 1978 SC 571
17. AIR 1979 SC 1360
|
Indian
system of Bail - Anti Poor
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The
author can be reached at:
urvashisaikumar@legalservicesindia.com /
