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All about bail of Jurisprudence

Introduction: A bail hearing is a court proceeding that must be performed fairly and judicially, as well as in compliance with legislative and constitutional requirements. Bail is, at its core, a delicate balance between the accused's right to liberty and the interests of society as a whole. Bail refers to the release of a person from custody, whether on personal bond or with sureties. Bail in India is now a debatable topic. A number of reports have been published that discuss the state of India's criminal justice system.

The definition and meaning of bail: the term "bail" has not been defined in the CrPC, but the word "bail" has been used in the CrPC. A bailable offence is defined in Section 2(a)[i] of the Criminal Procedure Code as an offence that is shown as bailable in the first schedule, or that is made bailable in the first schedule, or that is made bailable by any other law currently in force. The term "bail" literally refers to a guarantee of a prisoner's attendance in order for him to be released. The word comes from the French word "bailer," which means "gift" in English. Bail refers to the release of a person from custody, whether on personal bond or with sureties.

According to the Supreme Court of India, bail is a mechanism for achieving a synthesis of two key conceptions of human values, namely the right of an accused individual to enjoy his own freedom and the public interest, subject to the surety's promise to present the accused in court for trial.

The Supreme Court explained in Moti Ram V. State of Madhya Pradesh[ii] that the term "bail" includes both personal bond and surety release. It should be underlined that, even under this broader definition, bail only relates to release based on monetary assurance, either one's own or third-party sureties.

The concept of bail dates back to 399 BC, when Plato attempted to create a bond for Socrates' release. The contemporary bail system arose from a set of laws enacted in England during the Middle Ages. During the Mughal era, the Indian judicial system was known to have a bail system that allowed an arrested individual to be released after providing a surety.

The employment of this procedure is documented in the 17th-century travelogue of Italian traveller Manucci, who was released on bail after being imprisoned for a bogus theft charge. The then-ruler of Punjab gave him bail, but the kotwal only let him go when he provided a surety. Under Mughal law, an interim release could be triggered by the fact that if justice is delayed in one's case, a compensatory claim against the judge for losses suffered by the aggrieved party could be filed.

During the British Raj in India, criminal courts used two well-known and well-defined types of bail to free people who had been detained. Zamanat and Muchalka were their names. Its most recent manifestation is an upgraded version of the bail rules in the Code of Criminal Procedure, 1973, which were enacted prior to the ratification of the constitution in 1950.

The most common objective of the institution of bail is to ensure the appearance of the individual accused of an offence at trial while maximising personal liberty in conformity with constitutional norms. The Criminal Procedure Code of 1973, as well as other legislation, must be amended to reflect these constitutional obligations while also ensuring that justice and crime-prevention measures are not compromised.

Bail provision in criminal procedure:
The term "bailable offence" is defined in the Code of Criminal Procedure, 1973, as an offence that is shown as bailable in the first schedule, or that is made bailable by any other law for the time being in force; and the term "non-bailable offence" is defined as any other offence other than a bailable offence.

The difference between bailable and non-bailable offences is determined by the gravity of the crime, the risk of the accused fleeing, evidence tampering, prior behaviour, the accused's health, age, and sex. Non bailable offences are those that are punishable by a sentence of at least three years in jail. A bail hearing is a court proceeding that must be performed fairly and judicially, as well as in compliance with legislative and constitutional requirements.

The golden thread in criminal law jurisprudence is the presumption of innocence and the prosecution's duty to show the guilt of the person accused of an offence. Every person accused of a crime has the right to be believed innocent unless they are proven guilty.

In India, depending on the stage of the criminal case, a person can ask for one of three types of bail:
  1.  Regular Bail: A person who has already been arrested and held in police custody may be granted regular bail. A bail application for regular bail can be filed by anyone.
  2. An interim bond is a bail that is granted for a set period of time.Before a hearing for normal bail or anticipatory bail, an accused is given interim bail.
  3. Individuals who believe they will be arrested by the police for a non-bailable offence can file an anticipatory bail application. It's similar to obtaining bail in advance under Section 438 of the Cr.pc. A bail under Section 438 is a bail before arrest, and a person cannot be arrested by the police if anticipatory bail has been granted by the court.

The petitioner was accused of murder in Brij Nandan Jaiswal v. Meena Jaiswal[iii]. The session court reissued his bail. However, under Section 437 of the Criminal Procedure Code, the High Court granted him bail. The complaint brought it into question. The Supreme Court upheld the complaint's right, declaring that "it is now recognised law that the complaint can always challenge the order granting bail if the order is not validly passed." It's not as if, after a court has granted bail, the only way to get it revoked is if it's been used inappropriately. The legality of the bail order might be challenged. Also, the court decided that the High Court granted bail automatically in this case, and hence it was overturned by the Supreme Court.

In the case of P. Chidambaram, the Supreme Court remarked, "It is not a general rule that bail should be rejected in all circumstances." The Delhi High Court was correct in rejecting bail due to the seriousness of the crime. We disagree, however, with the Delhi High Court's comments on the case's merits. " The goal of bail is to ensure that an accused person appears in court when necessary, but it is not always necessary to grant bail.

The basic rules for the grant or denial of bail can be summarised as follows:
  1. There are only two types of criminal offences: bailable and non-bailable.
  2. The accused has the right to demand and be granted bail in the case of bailable offences under Section 436 of the Criminal Procedure Code.
  3. In situations involving non-bailable offences, section 437 CrPC lays forth certain basic factors for the judge to consider when granting or denying bail. The nature of the crime, prior criminal history, and the likelihood of guilt are some of the criteria.
  4. In circumstances where there is a reasonable fear of arrest, Section 438 CrPC governs anticipatory bail. Even if the accused anticipates arrest, anticipatory bail cannot be granted in circumstances where only bailable offences are involved. The factors that go into granting anticipatory bail differ from those that go into granting bail under sections 437 or 439.

Perspective From The Constitution: Article 21 of our Constitution states, "No one shall be deprived of life or personal liberty except in accordance with the law." According to the Commission of Inquiry Act of 1952, any procedure for depriving a person of his life that is not fair, just, and reasonable would be void as a violation of Article 21.

In the case of State of Maharashtra vs. Sitaram Popat Vital [iv], the Supreme Court of India held that a few factors must be considered before granting bail:
  1. The nature of the accusation and the severity of the punishment in the event of conviction, as well as the nature of supporting evidence
  2. reasonable apprehension of a threat to the complaint.
  3. The court's prima facie approval in favour of the charge

For the court to efficiently rule on the bail application, various things must be investigated, such as:
  1. Whether or not there is a reasonable basis to believe that the applicant committed the offence charged against him.
  2. The charge's composition and gravity
  3. The severity of the penalty that may be imposed in the event of a conviction depends on the circumstances.
  4. If the applicant is freed on bail, the chance of him absconding
  5. The applicant's character, wealth, position, and status
  6. The risk of the offence being continued or repeated increases if the accused has previously committed the offence.
  7. The applicant's opportunity to present a merits-based defence

The case of Sanjay Chandra v C.B.I.[v], popularly known as the 2G Scam, involved appellants facing accusations under sections 420-B, 458,471, and 109 of the Indian Penal Code, as well as Section 13(1)(D) of the Prevention of Corruption Act 1988, who were denied bail by the special court, the C.B.I., as well as the High Court.

The S.C. ordered the appellants to be freed on bail, subject to specific restrictions, and held that the seriousness of the offence and the harshness of the punishment should be considered when deciding whether to grant bail. Bail should not be rejected just because the accused is disliked by the community. Article 21 prohibits the indefinite detention of pre-trial detainees in jail custody. Everyone who has been detained or arrested has the right to a quick trial. If the applicants are convicted, it appears that they will have to spend more time in jail than the period of custody.

Conclusions and recommendations are offered
Bail balances the interests claimed to be protected under criminal law jurisprudence. Courts must use vigilance to ensure that discretion does not work against them. Individual liberty and dignity are paramount, and courts must consider the values of equality, good conscience, and fairness while granting or refusing bail. Bail law needs to be overhauled with more powerful and effective improvements.

A system of checks and balances, in the shape of a competent authority, must be put in place to prevent judges from acting arbitrarily. Bail proceedings for those who are economically marginalised must be completed quickly and efficiently. The current bail system is heavily influenced by economic status and discriminates against the poor and uneducated. Suspected criminals, under-trial detainees, and convicted criminals have rights that are more or less outlined in India's criminal statutes, Constitution, Jail Manual, International Covenants, and Judicial Pronouncements. The actual issue, however, is that the state apparatus has failed to implement the plan.

  1. The Code of Criminal Procedure,1973sec. 2(a)
  2. 1978 AIR 1594, 1979 SCR (1) 335
  3. (1999) 9 SCC 104,
  4. (2004) 7 SCC 521
  5. (2012) 1 SCC 40

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