NAVIGATING BAIL LAWS IN INDIA: AN EXAMINATION OF RIGHTS, TYPES, AND CHALLENGES BY - AKSHAT AGARWAL
NAVIGATING BAIL LAWS IN INDIA: AN EXAMINATION OF RIGHTS, TYPES, AND CHALLENGES
AUTHORED
BY - AKSHAT AGARWAL
Introduction
“Bail and
Jail” both are two different sides of the same coin. A person who is not
guilty or against whom the authorities do not have enough substantial evidence or proof
to prove him guilty or is an innocent, gets a bail, and if a person
is found to be guilty
or against whom there
are any substantial evidence, he is considered to be guilty, and after being
convicted is sent to the jail.
“Bail,
procedure by which a judge or magistrate sets
at liberty one who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner's later appearance in court
for further proceedings.” Now, this definition of a bail comprises two main
parts. The first one is that a person is released from the custody if arrested
during the time of investigation or enquiry.
And the second part is that the person must pay a security in exchange
of a bail, so that it would function as a security that he would visit the court or the police station time
to time for any updates.
The main element
to grant a bail is that the person should have been arrested or should be in custody, it
may be a police custody or a judicial custody.
This
research paper would focus on what is the bail laws in India, what are its
significance, and what are its disadvantages or the challenges which should
overcome.
Significance of bail
Bail is the legal process that protects personal
freedom of an accused person while the process
is fair and just. Through
bail, accused persons
are freed until their guilt is proven
regarding a crime, which is consistent with the right of being
considered "innocent until proven guilty." Such detention
is a burden on overcrowded prisons and punishes
people too soon. It also
allows the person to lead normal lives,
continue working, and care for his or her family
while preparing to defend themselves without the disruption that
imprisonment creates.
Moreover,
the system of bail allows for efficiency in the judicial system because it
allows courts to specialize in more serious cases, where detention may be
necessary, while disallowing any forms of arbitrary detention and ensuring
that legal processes are not used to
oppress citizens. The system, with conditions on the bail order, which
is saying regular
court appearances or restrictions on contacting some of the witnesses,
balances a call for justice and the rights of an individual-not to forget that
the accused are called into account while liberty remains.
Indian historical context of bail
The Indian
bail laws when traced to its roots,
is based upon the legal
traditions framed during the British colonial period. The Indian legal systems, when under the
British, adopted some elements of
English law regarding the concept of bail. Bail was implemented with caution,
so that people accused of crimes should not suffer unnecessary detention during
trial by striking a fine balance between dispensing justice and protecting
individual liberties. It was on the principle of British law that one is
considered innocent until proven guilty.
Under British
rule, the older legal systems
of India - particularly Mauryan
and Gupta- had nothing like what we know today as bail. Justice, too,
was swift, with a punishment or
acquittal following close on accusations. It is only during the colonial period
that that the legal procedures were codified.
This results in a provision related to bail being included into Criminal Procedure Code, 1898. After independence, the Indian legal
system went on to add and amplify the above-mentioned
provisions of bail in CrPC, 1973, thereby making this an essential element
of India's criminal
justice system, which
safeguarded personal liberty
with an equilibrium to be drawn towards the state interest of
maintaining public order. And now
the Bhartiya Nagarik Suraksha Sanhita (BNSS) 2023, is the successor version of the CRPC, governing the criminal laws
which comprises the provisions related to bail.
Types of Bail
Bail in bailable and non-bailable offences
To
understand the concept of bail in bailable offences and non-bailable offences, at first, we
must see what we mean by bailable and non-bailable offence.
Section 2(c) of BNSS 2023 states, "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 in force; and "non-bailable offence" means any other offence.”
Now, this definition does not make it clear that what do we mean by bailable
offence and non-bailable offence. So, we can differentiate between both on
basis of severity of the offence committed and the nature of the offence.
Bailable offence is less serious in nature, like, for example, cases of
bribery, public nuisance, in some cases, defamation, Etc. Whereas the non-bailable offences can be
characterised as a more serious or a heinous offence, like rape, murder, etc.
To get a bail in bailable
offence is a right for the accused
person under the law. If the
person has committed bailable offence,
then the person
can apply for the bail to the person in charge at the police station and that
person in charge of the police station can grant a bail in exchange of the
accused person signature in a bail bond with an amount for forfeiture, and
release him on bail without permission from the court, but has to inform by
submitting the documents in the court. Whereas,
in a non-bailable offence, the accused person does not have
any right to be granted a bail. Granting a bail to a person who committed a
non-bailable offence lies under a total
discretion of the judge. The judge can grant the person, a bail, based on the seriousness of the offence
committed.
Interim bail
is a temporary form of bail given
for a brief period until the court decides on an application for a regular
bail. A temporary reprieve against
arrest or detention
grants the accused temporary relief until the
court grants or rejects the regular bail. Interim bail is granted in urgent situations wherein immediate arrest
can be insured, and the accused is then
spared custody of the law pending a more detailed hearing. Such bail can be
extended or revoked according to discretion granted by the court in question.
An
anticipatory bail refers to that bail which is granted to a person in
anticipation of the arrest of that person. If a person who commits an offence
and knows that he might be arrested, then the person applies
for this anticipatory bail in the sessions court or High Court
to attain a deal in advance to not be arrested in a non-bailable offence.
Granting an anticipatory bail is a total discretion of the judge on basis of
the seriousness of the offence. The primary purpose of the anticipatory bail is
that, to safeguard a person ‘s liberty, especially in cases where the arrest is
based on false charges, exaggerated charges or the charges are politically motivated
to detain that person unnecessarily.
Default
bail, also known as statutory bail, is a legal right of the accused to get bail
if the investigating authorities do not complete the investigation and file
chargesheet within a stipulated period. It is a provision against
prolonged detention without
a formal charge
being framed to ensure personal liberty.
To be
granted a default bail to a person, the offences are categorised into two
different segments.
If a person
has committed an offence which involves a punishment of 10 years or more,
including life imprisonment and death sentences, the investigating agencies
have 90 days to investigate and file a chargesheet for the same person has a right to apply
for the default
bail, if the investigating authority does not file a chargesheet till
the 90th day.
If a person
has committed an offence involving punishment less than 10 years, then the
investigating agencies have 60 days to investigate and file a chargesheet
against the person. If they are not able to do so, then the accused person has
a right to apply for the default bail and should be granted a bail.
As this bail
is a right to the accused person. If the investigating agencies are not able to
file the chargesheet under the prescribed timeline, then the person must be
granted a bail. But if the person does not apply for the default bail before
the investigating authority files, the chargesheet, once the chargesheet is
filed, the right of the default bail is extinguished, and then the accused
person can just apply for a bail but not a default bail.
Rights of an accused person related to bail.
A person
accused of an offence is also granted some rights related to bail.
At first the person has a right to get a bail in
bailable offence which is less serious in nature. Also in a non- bailable offence, although
the person does not have a right to get a bail but has a right to apply for a bail in front of the court. Then in an anticipatory bail, the person also has a right to get an anticipatory bail if his being arrested
on basis of exaggerated or false charges
on discretion of the court. Then a default
bail is also a right granted to a person.
If the investigating agencies
are not able to complete the investigation and file a chargesheet within a
specified timeline, then a person has a right to be freely heard for bail applications. If a person applies
for a bail, then the court must hear the bail application, although
they have the discretion to reject or approve the bail. The person has the
right to its personal liberty, so if bail is granted to that person, if is
innocent or has been arrested on basis of false charges, then the bail becomes
right for that person.
Factors affecting granting of a bail.
Bail in India is granted
upon various considerations and subject to certain conditions that the Indian
court observes before a decision
is rendered. The essential elements
in this case are as follows:
1. Bail is granted
to a person keeping in mind the seriousness and nature of the offence committed. The judge has the full discretion to grant bail or not based on the
severity or seriousness of the case. Less serious case has a right to be
granted bail, whereas a more serious case like murder or a case of terrorism
involves difficulty to be granted bail.
2. The
criminal history of the accused person also plays a crucial role in being
granted a bail. If a person
has been an accused
in some previous cases or might have a criminal background or criminal history,
then granting a bail is tough to that person.
3. The
risk of flying away or absconding, is a factor that makes the judge think twice before granting a bail. If a
person is likely to fly away or escape, after being granted a bail, then the
person is not granted a bail.
4. A condition is imposed by the judge, that
if a person has been granted bail, then the person should not tamper the evidence and must cooperate after being granted
the bail in the investigation to the investigation authorities.
5. The
person on bail also should not threaten or mislead the witnesses after being
released on bail, to protect themselves and should not also force someone to
change their statements for the trial procedure.
Challenges to the bail jurisprudence in India
The
jurisprudence of bail in India faces several challenges, reflecting the
complexity of balancing individual liberty
with the administration of justice. Here are some key challenges:
1. Lack
of uniformity and consistency in granting bail: as granting a bail is a
discretion of the judge, sometimes uniformity and consistency in granting the
bail is not maintained. Some judges focus more on the aspect of severity or
seriousness of the case, whereas
some of the judges look upon the other matters,
such as the criminal
background or the risk of absconding of the accused person.
2. Overcrowded prison:
there are many accused person
whose trial is going on, within which some are innocent with
false and exaggerated charges and some guilty accused. As some of the people bail applications are not accepted
after being innocent or not guilty, they must be
there in the jail, even sometimes more than they would have been in the jail
for the punishment of the offence, when they are under trial.
3. Economic
disparities under bail bonds: Some people, majorly belonging to the lower class
with low income or people below poverty line, even though being innocent or non-guilty, are arrested on basis of false charges,
but they are not able to
seek bail, because they are not able to pay some amount as the forfeiture amount for the bail bond. Here, comes the economic disparity between the rich class and the poor class. Sometimes the rich class, being guilty of committing the offence also gets a bail
because they have the power to pay the amount, and sometimes the poor class is not able to seek the
bail because of the economic status.
4. Lack
of awareness and legal representation: to apply for a bail, the person must have some knowledge about all the laws related
to male or should hire a person who is well acquainted with all
the laws. Here, in India there is a major obstacle, which is the lack of
awareness and legal representations, and there should be proper acknowledgement
which can teach people at least some basic laws related to bail. Because of
these the administrative investigating authorities try to fool all of them, for
granting them a bail.
5. Misuse
and use of anticipatory bail: Sometime people belonging to an elite class or from a political background after committing an offence misuses
the right of anticipatory bail to protect themselves from being arrested. This leads
to, increase in the level of terminal apps and decrease
in the fear of being arrested, in these people’s mind.
6.
Therefore, an urgent need for comprehensive bail legislation that will spell out a uniform and transparent process for granting or
refusing bail and codify and consolidate the current laws and practices on bail. It must also reflect the principles of liberty, dignity,
and presumption of innocence as laid down in the constitution and shall, therefore, balance with victim
rights and justice and public safety.
Implementing full bail provisions can also reduce
jail overcrowding, assure the
privilege of speedy trial, and promote the ultimate objective of just and human treatment of those accused.
Conclusion
Bail is one of the most significant concepts
within the criminal
justice system that protects an individual's rights and seeks the interest
of the state in the maintenance of law and order. Bail is assumed on the concept of
presumption of innocence whereby an accused person can prepare his defence while being prevented
from receiving punishment too early. Despite
such importance, Indian bail jurisprudence faces several challenges like
orders of bail where applicants are barred
from getting it due to economic inequalities and overcrowding prisons, all which leave jurisprudence
unequable on balance. This problem calls for some legal framework that must, in broad terms be more definite and explained in greater details
so that justice is fairly met
for all irrespective of status differences of social and economic status. More
importantly, comprehensive bail legislation will establish greater protection
for the rights of the suspect yet without compromising public safety and
justice to the victim. Codification will highlight
the judicial process
with clarity, reduce
instances of the undue use of anticipatory bail, and thereby get
rid of overcrowding in prisons. The ultimate way of balancing such conflicts would be by keeping the bail law in congruence
with the principles of liberty, dignity, and fairness embodied in the
Constitution for India to have a criminal justice system that is much more
just.
References
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gainst, socioeconomic%20factors%20influence%20bail%20decisions.>accessed 17 October 2024
·
‘Bail Jurisprudence in India’ (Bail Jurisprudence in India | Juneja Legal -
Trusted Law Firm in Ahmedabad, 29
April 2023) accessed
17 October 2024