Liberty is the most essential requirement of the modern man. Civilised
countries have recognised that liberty is the most precious of all the human
rights. The American Declaration of Independence,1776, French Declaration of the
rights of men and the citizen,1789, Universal Declaration of human rights & the
International Covenant of civil & political rights,1996 all speak with one voice
- liberty is the natural & inalienable right of every human being. Similarly,
Article 21 of the Indian Constitution proclaims that no one shall be deprived of
his liberty except in accordance with procedure established by law.
But, more than 2/3rd of the inmates of the prisons constitute undertrial
prisoners included mothers of young children. There is a grave danger of their
being inherited not only with poverty but with crime as well.
In the Recent landmark case, Satil Kumar Antil Case
, the Hon'ble SC has
described the trial courts as 'The Guardian Angels of Liberty' in the criminal
cases. Liberty has to be preserved, protected & enforced by the criminal courts.
But in practically, Trial courts dismiss bail applications on vague grounds. The
result, public losing confidence in the criminal justice system & overcrowding
in the prison which acts as an extra burden on the state.
From the earlist times, it was appreciated that detention in custody pending
completion of trial could be a cause of great hardship. From time to time,
necessity demands that some unconvicted persons should be held in custody
pending trial to secure their attendence at the trial but in such case,
'necessity' is the operative test.
Now, it would be quite contrary to the concept of personal liberty provided in
the constitution that any person should be punished in respect of any matter,
upon which, he has not been convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he will tamper with the
witnesses if left at liberty, save in the most extraordinary circumstances.
The term "bail" has not been defined in the code. It's a solemn undertaking by
the suspect that he would cooperate both with the investigation & the trial. The
object of Bail is to secure the attendence of the accused at the trial. The
proper test to be applied in the solution of the question whether bail should be
granted or refused is whether it's probable that the party will appear to take
Arrest is not mandatory as can be seen from the mandate of provision of CrPC.
The power being discretionary must be exercised judiciously with extremely care
& caution. The court should properly balance both personal liberty & societal
interest before issuing warrants. The court shall try to maintain proper balance
between individual liberty & the interest of the public and the state while
Major Problems In The Bail System
Our legal & judicial system continually denies justice to the poor by keeping
them for long years in pre-trial detention in our highly unsatisfactory bail
system. It insists that the bond should contain a monetary obligation requiring
the accused to pay a sum of money in case he fails to appear at the trial.
Moreover, if this were not sufficient deterrent to the poor, the courts
mechanically & as a matter of course insist that the accused should produce
sureties who will stand bail for him. And these sureties must again establish
their solvency to be able to pay up the amount of the bail in case the accused
fail to appear to answer the charge.
This system of bails operates very harshly against the poor. The result is that
either they are fleeced by the police, incur debts for securing their release
or, being unable to obtain release, they have to remain in jail until such time
as the court is able to take up his trial, leading to grave consequences,
- Though presumed innocent, they are subjected to psychological & physical
deprivation of jail life,
- They are prevented from contributions to the preparation of their
- They lose their job, if they have one & are deprived of an opportunity
to work to support themselves.
Moreover, the bail system causes discrimination against the poor since the poor
would not be able to furnish bail on account of their poverty while the
wealthier persons otherwise similarly situate would be able to secure their
freedom because they can afford to furnish bail. This discrimination arises even
if the amount of bail is fixed by the magistrate is not high for 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 in a small account.
No doubt the magistrate has broad discreation in fixing the amount of bail, but
in practice it seems that the amount of bail depends almost always on the
seriousness of the offence. The courts by ignoring the differential capacity of
the rich & the poor', the rich is charged with the same offence in the same
circumstances is able to secure his release while the poor is unable to do so on
account of his liberty.
Another infirmity of legal & judicial system, which is responsible for this
gross denial of justice to the undertrial prisoner & that is notorious delay in
disposal of cases. Speedy trial is not specifically enumerated as a fundamental
right, but it's implicit in the article 21 of the Indian constitution [Maneka
Gandhi vs. UOI,
Article 21 confers a fundamental rights on every person not to be deprived of
his life & personal liberty except in accordance with the procedure established
by law & that's not enough to constitute the compliance with the requirement of
that article, a procedure should be prescribed by law, but that the procedure
should be reasonable, fair & just.
Bail Is The Rule
Bail is the rule & jail is an exception has been well recognised through the
repetitive pronouncements of the Supreme court. Its on the touchstone of the
article 21 of the Indian constitution. The issue of bail is one of liberty,
justice, public safety & burden of the public treasury, all of which insist that
a developed jurisprudence of bail is integral to a socially sensitised judicial
process. After all, personal liberty of an accused or convict is fundamental,
suffering lawful eclipse only in terms of "procedure established by law.
Innocence of a person accused of an offence is presumed through a legal fiction,
placing the onus on the prosecution to prove the guilt before the court. The
effect of the presumption of innocence at the pre-trial stage of the criminal
trial process & safeguard the liberty of accused persons.
Provisions for under Trial Prisoners:
Arrest is not mandatory as can be seen from the mandate of provision of CrPC. If
the officer is satisfied with imprisonment for a term which may be less than 7
yrs or, which may extent to 7 yrs, with or without fine, an arrest could only
follow when he is satisfied that there is a reason to believe , that the said
person has committed an offence & there is a necessity for an arrest.
Such necessity is drawn to prevent the committing of any further offence, for a
proper investigation & to prevent him/her from either disappearing or tampering
with the evidence. He/she can also be arrested to prevent such person from
making any inducement, threat or promise to any person according to facts, so as
to dissuade him from disclosing said facts either to the court or to the police
One more ground on which an arrest may be necessary is when his/her presence is
required after arrest for production before the court & the same cannot be
assured. The consequence of non-compliance of the provisions shall certainly
injure to the benefit of the person suspected of the offence. It would entitle
the accused to a grant of bail.
By amendment in the year of 1978, provision inserted, which prescribed the
maximum period of time to complete the investigation. The object behind it,
which is to ensure an expeditious investigation & a fair trial.
By 2005 amendment in the CrPC, inserted the provision, which is draws the
maximum period for which an undertrial prisoner can be detained. When a person
has undergone detention for a period extending to one half of the maximum period
of imprisonment for that offence, he shall be released by the court on his
personal bond with or without sureties.
Its high time our parliament realise that the risk of monetary loss is not the
only deterrent against fleeing from justice, but there are also other factors
which acts as equal deterrent against fleeing. It may be necessary in such a
case to provide by an amendment of the penal law that if the accused willfully
fails to appear in compliance with the promise contained in his personal bond,
he shall be liable to penal action. Recently the supreme court directs the govt
to enact separate bail legislation.
An accused person who enjoys freedom is in a much better position to look after
his case & to properly defend himself than if he were in custody. As a
presumably innocent person he is therefore entitled to freedom & every
opportunities to look after his own case. A presumably innocent person must have
his freedom to enable him to establish his innocence. For the liberty of the
accused & fair justice, all the state govt & UTs are directed to facilitate
standing orders for the compliance of provisions.