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An Explainer On The Bail Jurisprudence

The Jurisprudence of bail under Criminal Law has been expanding a vastly when we see that it has been recognized by courts as low as magistrate court and as high as the Supreme Court of India. It has its mentions in the criminal laws of general nature as well as special legislations. However, there is a stark difference between the theoretical application of bail and its practical and real application.

Bailable and Non-Bailable offences

Bailable offences are those offences under which the police cannot arrest the accused even for a second from the moment he produces the securities. The police has a duty to inform the accused of his right to get bail.

However, under non-bailable offences, the person or the group of persons is arrested and brought to magistrate within 24 hours of arrest and the police demands police custody of the accused for further investigation and collection evidence. After the duration of police custody is over, the accused is taken to judicial custody and sent to jail after the magistrate examines whether further custody is required.

In the lecture, an observation from Justice Sahay of Bombay High Court was mentioned where he noted that for bailable offences, a remand report must be considered for grating bail which must include the ingredients of the offence committed.

Transit Anticipatory Bail

The concept of transit anticipatory bail expands the scope and jurisprudence of bail. Though Section 438 does not mention about transit anticipatory bail, the courts have been vocal about it. In N.K. Nayar Ors. vs State of Maharashtra & Ors[1], the Bombay high court had focused on the inclusiveness of section 438 in cases where the case against accused is filed in some other case.

The transit anticipatory bail deals with cases where the case is filed in a state different from the place of the accused and he is seeking for an anticipatory bail in that state. Such a provision favors the accused otherwise another state's police gets the power to arrest him and then after arrest, he would have to apply for regular bail.

This is a pure question of jurisprudence of the criminal courts in India and this concept of anticipatory bail transcends the right of bail in such cases also.

Anticipatory Bail

After the 1973 amendment to section 438, the concept of anticipatory bail was introduced. The very objective of anticipatory bail is to prevent influential people from filing malicious cases against rivals and getting them detained in jail. Moreover, it strengthens the practice of article 21 of the Constitution as long as the accused has agreed to cooperate with the investigation, not likely to abscond and not likely to tamper the evidence and witnesses. After the amendment, exclusive power has been given to sessions court and the high court. However, it must be given with caution, provided a major part of the decision depends on the discretion of the magistrate.

Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab[2] is a landmark judgement and has laid down the scope of anticipatory bail. It observed that the section 438 must be kept under the umbrella of article 21 and it should not be limited or restricted by time. However, the court has the right to impose restrictions depending on the case and facts. It can also withdraw the grant of anticipatory bail if it is satisfied that the accused is not fulfilling the conditions imposed.

Misuse of Bail

The jurisprudence of bail has been extremely vulnerable to its misuse by the courts, accused and even prosecution. There have been many instances where the accused has dishonestly tried to seeking interim bail by abusing the inherent powers of the high courts under Section 482 of CrPC.

The courts must also be wary of the fact that where judicial instruments are misused and abused by dishonest litigants/persons, they must be dealt with harshly. The Hon'ble Supreme Court has consistently held that when it comes to criminal prosecutions, arrests, investigations, and other things, the High Courts should exercise their power under Section 482 CrPC with caution.[3]

It is without any doubt that India's bail jurisprudence has travelled a long and wide history and has come to a point where it requires much needed comprehensive revamp. In 2017, the 21st law commission of India had stated that the current bail system in India is 'inadequate' and 'inefficient' in achieving its goals.[4]

The fundamental principle of criminal jurisprudence is its presumption of innocence. However, such a principle seems to be blurring when we see the rate of arrest and their time period. It is also neglected in special cases where the accused is made responsible to prove his innocence and till then he shall be put in custody.

Some may even argue that special legislations have defeated the purpose behind bail. For an undertrial accused, when the time period for his custody crosses the duration of imprisonment, had he been convicted, it violates his right to life, personal liberty and disables him from proving his innocence.

Section 45 of the prevention of Money Laundering Act mentions twin tests of bail. One is that the case must be prima facie and another is the magistrate must be convinced that the accused shall not commit any future offences. These conditions lose their structure under the principle of presumption of innocence of the accused.

In the case of Sujeesh v. State of Kerala[5], the court observed that at this stage, granting bail to the petitioner could stymie the inquiry's progress, and the risk of the petitioner influencing witnesses and interfering with the investigation cannot be ruled out.

In the case of Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav and Anr[6], it was observed that the court that grants bail should use its power sparingly and not on a regular basis. A thorough assessment of the evidence and extensive documenting of the case's merits is not required at the stage of granting bail. However, in such judgments, the reasons for prima facie concluding why bail was granted must be stated, especially if the prisoner is charged with a serious crime.

Bail can only be revoked in the event of unforeseen circumstances. The main premise behind bail cancellation is that the bail order was legitimate when it was issued, and it is only cancelled if the accused commits the same crime, obstructs the investigation, tampers with evidence, flees to another country, or performs acts of violence. This provision of bail cancellation compensates the misuse that might happen under section 438 of CrPC.

The concepts that govern bail jurisprudence are numerous. However, if some provision could be made that allows an accused to have personal representation before the court in the event that his or her bail is denied, it would be a fantastic step forward in defending the accused's rights and liberty. Delays in granting bail to the accused, particularly if they are innocent, have an influence on the welfare and well-being of society as a whole.

  1. N.K. Nayar Ors. vs State of Maharashtra & Ors., 1985 CriLJ 1887.
  2. Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab, (1980) 2 SCC 655.
  3. State of Rajasthan v. Ravi Shankar Srivastava, (2011) 10 SCC 632.
  4. 268th Report, 21st Law Commission of India, 2017.
  5. Sujeesh v. State of Kerala, Crl. MC No. 633 of 2022.
  6. Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528).

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