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Requirement Of Bail Act: Some Inherent Lacunae In Criminal Procedure Code

The great Lord Denning once said, whenever one of the King's Judges takes his seat, there is one application which by long tradition has priority over all others. Counsel has but to say & My Lord, I have an application for a writ of habeas corpus or an application of bail, but whatever form it takes, it is heard first.

The same level of sensitivity as that of Lord Denning was seen recently when in a case of Satender Kumar Antil vs CBI (2022), a division bench of Supreme Court speaking through Justices Sanjay Kishan Kaul & MM Sundresh observed that there should be a Bail Act in India on the line of enactment of United Kingdom to streamline the cases of bail.

The observation of the Supreme Court came at a time when NCRB data shows that the 2/3 of total prisoners in various jails of India are undertrial. Most of such inmates are poor and fail to hire the legal service. The concept of free legal service is effective more on papers than ground.

The famous legal doctrine, Bail is Rule and Jail is Exception, as laid down by Justice v Krishna Aiyer in the landmark case of State of Rajasthan vs Balchand (1977) and further reiterated in Moti Ram vs State of MP (1978) should be the guiding principle for courts while granting the bail to accused. The doctrine is based on the sound principle of law that every accused person is innocent unless proven guilty.

The objective of granting the bail is not to set the accused free, but to release him from custody to entrust him to his own bond and to the custody of his sureties so that he can be produced at appropriate time and place.

But unfortunately, this legal doctrine is neither followed in letter nor in spirit. The courts, and more specifically, the subordinate judiciary pass the order of bail mechanically. For the purpose of bail, the courts enjoy very wide discretion. In the entire Code of Criminal Procedure, the word 'Bail' is even not defined. You may have observed quite frequently that on the same facts, some of the accused are granted while some may not get the benefit of bail.

It is correct that this is for the court to apply its judicial mind based on facts of every case and there cannot be a straight-jacket formula for granting the bail but this also cannot be denied that judges are not immune to fallacy. In want of any specific legislation on the subject matter under discussion, there are possibilities that judges may inadvertently use the discretion provided to them to the disadvantage of an accused. It was therefore rightly recommended by the Apex Court to introduce a separate Bail Act.

Why is the Separate Bail Act needed?

By and large, the bail in Indian Criminal Jurisprudence is regulated by Code of Criminal Procedure 1973 (CrPC). The court itself observed in the above-mentioned case of Satender Kumar (supra), that the CrPC as it exists today is a continuation of pro-independence legislation with modifications.

Chapter XXXIII of CrPC deals with provisions of bail. These provisions have been amended from time to time by legislation keeping the intricacies involved in view. Section 436 talks about bail in bailable offences. Similarly, sections 437 and 439 are about the provision of bail in non-bailable offences by magistrate and Session/High Courts respectively. Section 438 is about anticipatory bail and the accused may approach the session court or High Court concurrently if he has apprehension of arrest.

Seeing the menace of a large number of undertrials languishing in jail, section 436A was inserted in the code (2006) that requires the release of undertrials on bail if he has undergone more than one half of maximum sentence provided for that particular offence. Besides chapter XXXIII, the High Courts use the inherent power under 482 CrPC prohibiting the state from any coercive action against the accused.

The effect of such stay is a kind of bail that is not provided in any legislation. Section 167(2) of CrPC also mandates default bail if the investigating agency fails to file the chargesheet against the accused in a prescribed period of 60 or 90 days as the case may be. Some of the major lacunae in CrPC that prompted the supreme court for their recommendation to union of India regarding separate bail Act are discussed below:
  1. The major faultline that exists in present code in respect to bail is its lack of uniformity. In a nation with 1.4 billion population, where people still repost their faith in judiciary, the differential outcome of bail application is not a good sign. It shakes the faith of the general public, though maybe, without any reasons. The general public does not understand the complex legality of a case but wants to see the justice being done equally.

    This is the responsibility of the state to ensure that the faith of the public remains intact with the judiciary. The supreme court in the case of Arnesh Kumar vs State of Bihar (2014) has categorically stated that the requirement of section 41 and 41A is mandatory. The top court has given direction for appropriate action against the police officers who breach the mandate of section 41 and 41A.

    But to the dismay of fair principles of law, the lower courts pass the order of detention mechanically as and when the accused is produced before it. Sending an accused to 14 days of judicial custody has become a norm. Nothing in CrPC or any other law for the time being in force prohibits the magistrate from releasing the accused on bail on the very first day of his production. But this is rarely seen in the normal course of action at magistrate level. The detention of any person even for one day without proper and justful procedure is an attack on his constitutionally guaranteed fundamental rights.
  2. Section 436 of CrPC (bail for bailable offence ) has failed to serve its purpose as it has unnecessarily given discretion to the magistrate for furnishing the surety. The requirement of surety in case of bailable offence is inherently a bad idea. The Supreme Court has also criticized this aspect of section 436 in which a magistrate denies the bail in bailable offence when a person fails to give appropriate surety (Moti Ram Vs State of MP).

    The explanation attached to section 436 which provides that if a person accused of bailable offence fails to give bail within seven days then his indigency shall be presumed, is unnecessary. There is no reason why a person should remain in jail just to get benefit of presumption of his indigency in case of bailable offence. In bailable offences, bail must be given mandatorily at the time of arrest of a person once his residential address is confirmed. It is also seen, many times, that lower courts impose conditions of bail in cases of bailable offences which is contrary to the provisions of law in CrPC.
  3. A very absurd provision given in CrPC is section 309. The Law Commission of India in its 268th report (2017) recommended the amendment of this section. The sub-clause 2 of section 309 CrPC has an apparent loophole as it suggests that when there is adjournment of case or the case is delayed, court may remand the accused in custody. It has not mentioned that the accused can be set free on bail, which necessarily leads to an assumption that remand to custody is only an exclusive outcome under section 309 of CrPC.
  4. Similarly, the provisions of default as provided under section 167(2) of the code are not free from infirmities. This provision mandates that if a police report under section 173 of code is not filed within the stipulated period of time by the investigation agencies, then the accused shall be enlarged at bail. But this benefit of bail due to inaction of the investigation agency can be taken only if the accused has filed an application under this section. It is pertinent to assert that when the default bail under this provision is termed as the indefensible right of accused, then why not it should be given by default without formalities of application.

    Why not a synchronized mechanism be set by court with jail authorities to ensure that if a police report is not filed within a given time, the accused shall be released from jail subject to bail bond, sureties or conditions imposed. As mentioned above, thousands of undertrial are languishing in jail due to lack of legal representation in court of law. It is bizarre to expect that such accused will rush to courts immediately as and when the time-limit for investigation is ended. The default bail has been restricted as a right of the privileged class only.
  5. One more factor, in which courts enjoy a huge discretion is imposition of bail conditions. The Law Commission in its report as mentioned hereinbefore, also talks about nuances of conditions imposed on bail. We have seen from the distribution of religious books to social works in different organizations as the bail conditions.

    The report recommended curtailing the power of authorities to impose the restrictions on the accused in the form of bail conditions that may affect his livelihood and day to day life. The bail conditions unnecessarily should not violate the rights of accused protected under the constitution of India. This area in jurisprudence of bail is gray and needs to be addressed by parliament.

    From the above discussion, it can be inferred easily that a lot of work is yet to be done by parliament towards the law of bail as it is directly related to life and liberty of a person. The Supreme Court has rightly invited the attention of the state towards the formulation of the Bail Act to ensure more fairness and to streamline the cases to bail with a fixed timeline. It is appropriate time for parliament to act on the suggestion of the top court and should come-up with an enactment concerning matters of bail.

Written By: Hari Mudgil - A Delhi Based Lawyer & Research Scholar

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