definition of bail :
"Bail" remains an undefined term in the Cr.P.C. Nowhere else the term has been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints since the U.N. Declaration of Human Rights of 1948, to which Indian is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression `bail' denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb `bailer' which means to `give' or `to deliver', although another view is that its derivation is from the Latin term baiulare, meaning `to bear a burden'. Bail is a conditional liberty.
Strouds' Judicial Dictionary (Fourth Edition 1971) spells out certain other details. It states:
"When a man is taken or arrested for felony, suspicion of felony, indicated of felony, or any such case, so that he is restrained of his liberty - And being by law bailable, offence surety to those which have authority to bail him, which sureties are bound for him to the Kings use in a certain sums of money, or body for body, that he shall appear before the Justices of Goale delivery at the next sessions etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed, that is to say, set at liberty until the day appointed for his appearance."
Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.
OBJECT OF BAIL - In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon.
The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
From the earliest 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 un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test.
In this country, it would be quite contrary to the concept of personal liberty enshrined 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. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
Bail has to dovetail between two conflicting demands , at one side it requires the society being shielded from hazards of being exposed to the misadventures of the accused person and on the other , the fundamental canon of criminal jurisprudence viz . "a person is presumed to be innocent until proven guilty". Bail blends and balances the two apparently conflicting claims - freedom of individual and interest of justice. General rule is , grant of bail is the norm and the refusal is the exception.
While considering an application for bail, detailed discussion of the evidence and elaborate documentation of the merits is to be avoided. This requirement stems from the desirability that no party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required.
Where the offence is of serious nature the question of grant of bail has to be decided keeping in view the nature and seriousness of the offence, character of the evidence and amongst others the larger interest of the public. (relaince is placed upon judgement of Supreme Court of India in Vaman Narain Ghiya vs State Of Rajasthan on 12 December, 2008)
The concept of bail has a long history briefly set out in the publication on 'Programme in Criminal Justice Reform':
"The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners from disease-ridden jails while they were waiting for the delayed trials conducted by travelling justices. Prisoners were bailed, or 'delivered, to reputable third parties of their own choosing who accepted responsibility for assuring their appearance at trial. If the accused did not appeal, his bailor would stand trial in his place. Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial. From this grew the modern practice of posting a money bond through a commercial bondsman who receives a cash premium for his service, and usually demands some collateral as well. In the event of non- appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may produce the accused in court."
Supreme Court of India
Moti Ram & Ors vs State Of M.P on 24 August, 1978
The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job is he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.
THE MANHATTAN BAIL PROJECT :
The Manhattan Bail Project, conducted by the Vera Foundation and the Institute of Judicial Administration at New York University School of Law, found that about sixty- five percent of all felony defendants interviewed could be recommended for release without bail. Of 2,195 defendants released in this way less than one percent failed to appear when required. In short, risk of financial loss is all insubstantial deterrent to flight for a large number of defendants whose ties with the community are sufficient to bring them to court.
"The bail system, as we see it administered in the criminal courts to-day, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. 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 the bail 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 and it difficult to furnish bail even in a small amount."
(emphasis added) The vice of the system is brought out in the Report: "The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing bail or suffer pre-trial detention. Both these consequences are fraught with great hardship to the poor. In one case the poor accused is fleeced of his moneys by touts and professional sureties and sometimes has even to incur debts to make payment to them for securing his release.
How is that purpose met under the present system ? The defendant With means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price . languishes in jail weeks, months and perhaps even years before trial.
He does not stay in jail because he is guilty. He does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely to flee before trial.
He stays in jail for one reason only-because he is poor.
The Criminal Procedure Code, 1973 envisages two kinds of personal bonds –
a) A person furnishes his own bond with one or more sureties. It means that the third party (surety) will be held responsible for the obligations undertaken by the accused and that he'll have to pay the amount in case a breach of bail is committed by the accused.
b) Execution of bond without sureties. In this case, a judge may allow the release of an accused on bail by taking a bond that he/she shall appear on all future court dates. Here the accused doesn't have to post bail, but he will forfeit the amount in the bond if he fails to appear before the court.
section 436 to be read with form 45 of II schedule of the Cr.PC . Simple recognizance of principal and security with sureties . When an act provides for release on bail that means security with sureties and this is the meaning which has been attached to the word in law and in practice and procedure , its distinct from personal recognizance.
Prosecution laches and delay in trial - If state cannot provide for adequate machinery for dispensing justice quickly it cannot be heard to say that applicants should be kept in custody without trial for a long time.
It must be borne in mind that speedy trial is also a fundamental right under article 21 .
The right to a speedy trial is first mentioned in that landmark document of English law, the Magna Carta. Article 21 declares that “no person shall be deprived of his life or personal liberty except according to the procedure laid by law.” Justice Krishna Iyer while dealing with the bail petition in Babu Singh v. State of UP, remarked, "Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial' whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings." Right to speedy trial is a concept gaining recognition and importance day by day.
In India the Supreme Court in it’s landmark judgment in the case of Hussainara Khatoon v. Home Secretary State of Bihar [(1980) (1) scc 98] held speedy trial as part of Article 21 of the Constitution guaranteeing right to life and liberty. The Apex Court in the case also observed that if a person is deprived of his liberty under a procedure which is not ‘reasonable fair and just’, such deprivation would be violative of his Fundamental Right under Article 21 and he would be entitled to enforce such Fundamental Right and secure his release. The case pertained to state of undertrial prisoners in Bihar who were languishing in jail for several years.
Speedy trial is a fundamental right implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution and any accused who is denied this right of speedy trial is entitled to approach Supreme Court under Article 32 for the purpose of enforcing such right. and this Court in discharge of its constitutional obligation has the power to give necessary directions to the State Governments and other appropriate authorities for securing this right to the accused.
Even though both legislature and judiciary recognize this right, its not a practical reality . Its hardly available for the poor.
Supreme Court of India
Moti Ram & Ors vs State Of M.P on 24 August, 1978
(a heavy sum cannot be demanded in fixing the amount of bail , amount must always be reasonable not excessive)
This formulation turns the focus on an aspect of liberty bearing on bail jurisprudence. The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are presona grata, may well be the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners or our country with its vast diversity. In fact the grant of bail can be stultified or made impossibly inconvenient and expensive if the court is powerless to dispense with surety or to receive an Indian bailor across the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive.
When sureties should be demanded and what sum should be insisted on are dependent on variables.
Even so, poor men-Indians in monetary terms indigents young persons infirm individual and women are weak categories and courts should be liberal in releasing them on their own recognisances put whatever reasonable condition you may.
It Shocks one conscience to ask a mason like the petitioner to Furnish sureties for Rs. 100,000/- The magistrate must be given the benefit of doubt for not fully appreciating that our Constitution. enacted by 'We the People of India'' is meant for the butcher , the baker and the candle - stick maker - shall we add , the bonded labour and pavement dweller.
To add insult to injury, the magistrate has demanded sureties from his own district. (We assume the allegation in the petition). What is a Malayalee, Kannadiga, Tamilian or Andhra to do if arrested for alleged misappropriation or them or criminal trespass in Bastar , Port Blair ,Port Blair . Pahalgaam of Chandni Chowk? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a morcha . Judicial disruption of Indian unity is surest achieved buy such provincial allergies. What law prescribes sureties from outside or non- regional linguistic, some times legalistic. applications? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes, geographic , sometimes linguistic, some times legalistic. Art 14 protects all Indians qua Indians, within the territory of India.
(generally when sureties are insisted on ordinarily due weight should be given to te affidavits produced by the surety and an inquiry or insistence on a solvency certificate must be exception rather than the rule)
Guidelines to release a person on his personal bond :
Supreme Court of India
Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, ... on 12 February, 1979
The new insight into the subject of pretrial release which has been developed in socially advanced countries and particularly the United States should now inform the decisions of our Courts in regard to pretrial release. If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond.
To determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:
1. The length of his residence in the community.
2. his employment status, history and his financial condition,
3. his family ties and relationships,
4. his reputation, character and monetary condition,
5. his prior criminal record including any record or prior release on recognizance or on bail,
6. the identity of responsible members of the community who would vouch for his reliability.
7. the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance, and
8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.
If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond. Moreover, when the accused is released on his personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what we have said here in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. We have no doubt that if the system of bail, even under the existing law, is administered in the manner we have indicated in this judgment, it would go a long way towards relieving hardship of the poor and help them to secure pretrial release from incarceration. It is for this reason we have directed the undertrial prisoners whose names are given in the two issues of the Indian Express should be released forthwith on their personal bond. We should have ordinarily said that personal bond to be executed by them should be with monetary obligation, but we directed as an exceptional measure that there need be no monetary obligation in the personal bond because we found that all these persons have been in-jail without trial for several years, and in some cases for offences for which the punishment would in all probability be less than the period of their detention and moreover, the order we were making was merely an interim order. The peculiar facts and circumstances of the case dictated such an unusual course.
SECTION 436 - RIGHT TO BAIL IN BAILABLE OFFENCES
The question as to whether a person accused of bailable offence is entitled to grant of bail as a matter of right stands authoritatively concluded by the decision of the Supreme Court in the case of 'Rasiklal vs. Kishore Khanchand Wadhwani', 2009 (4) SCC 446, in which it has been clearly held that in bailable offence, the right of the accused to get bail is absolute and indefeasible right and the Courts have no discretion in granting bail, Their Lordships held as under :-
"....There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him. The position of persons accused of non-bailable offence is entirely different. The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative. The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 cannot be taken into custody unless they are unable or willing to offer bail or to execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by accused as of right and the officer or the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him."
The basic characteristic feature of a bailable offence is that bail is a matter of right. In fact, it is the duty of the learned Magistrate to inform the accused involved in a bailable offence that he is entitled to go on bail and elicit whether he is ready to offer bail. Law does not require him to move any application to seek bail. Even the complainant is not required to be heard before grant of bail. The Court has no jurisdiction when granting bail under Section 436 Cr.P.C., even to impose any condition except demanding of security. Observations of the Hon'ble Supreme Court in 'Vaman Narain Ghiya vs. State of Rajasthan', 2009 (2) SCC 281 are relevant to note :-
"17. Chapter XXXIII consists of Sections 436 to 450. Sections 436 and 437 provide for the granting of bail to accused persons before trial and conviction. For the purposes of bail, offences are classified into two categories, that is, (i) bailable, (ii) non- bailable. Section 436 provides for granting bail in bailable cases and Section 437 in non bailable cases. A person accused of a bailable offence is entitled to be released on bail pending his trial. In case of such offences, a police officer has no discretion to refuse bail if the accused is prepared to furnish surety. The Magistrate gets jurisdiction to grant bail during the course of investigation when the accused is produced before him. In bailable offence there is no question of discretion for granting bail. The only choice for the Court is as between taking a simple recognizance of the principal offender or demanding security with surety. Persons contemplated by this Section cannot be taken in custody unless they are unable or unwilling to offer bail or to execute personal bonds. The Court has no discretion, when granting bail under this section, even to impose any condition except the demanding of security with sureties."
The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative. The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 cannot be taken into custody unless they are unable or willing to offer bail or to execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by accused as of right and the officer or the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him.
Judicial trend for cancellation of bail bonds under 436 of Cr.PC:
Supreme Court of India
Rasiklal vs Kishore on 20 February, 2009
There is no express provision in the Code prohibiting the court from re-arresting an accused released on bail under Section 436 of the Code. However, the settled judicial trend is that the High Court can cancel the bail bond while exercising inherent powers under Section 482 of the Code. According to this Court a person accused of a bailable offence is entitled to be released on bail pending his trial, but he forfeits his right to be released on bail if his conduct subsequent to his release is found to be prejudicial to a fair trial. And this forfeiture can be made effective by invoking the inherent powers of the High Court under Section 482 of the Code. [See: Talab Haji Hussain vs. Madhukar Purushottam Mondkar and another (1958 SCR 1226)] reiterated by a Constitution Bench in Ratilal Bhanji Mithani v. Asstt. Collector of Customs and Anr. (1967 (3) SCR 926)].
It may be noticed that sub-Section (2) of Section 436 of the 1973 Code empowers any court to refuse bail without prejudice to action under Section 446 where a person fails to comply with the conditions of bail bond giving effect to the view expressed by this Court in the above mentioned case. However, it is well settled that bail granted to an accused with reference to bailable offence can be cancelled only if the accused :-
(1) misuses his liberty by indulging in similar criminal activity,
(2) interferes with the course of investigation,
(3) attempts to tamper with evidence of witnesses
(4) threatens witnesses or indulges in similar activities which would hamper smooth investigation,
(5) attempts to flee to another country,
(6) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,
7) attempts to place himself beyond the reach of his surety, etc.
These grounds are illustrative and not exhaustive.
However, a bail granted to a person accused of bailable offence cannot be cancelled on the ground that the complainant was not heard. As mandated by Section 436 of the Code what is to be ascertained by the officer or the court is whether the offence alleged to have been committed is a bailable offence and whether he is ready to give bail as may be directed by the officer or the court. When a police officer releases a person accused of a bailable offence, he is not required to hear the complainant at all. Similarly, a court while exercising powers under Section 436 of the Code is not bound to issue notice to the complainant and hear him.
In bailable offences , the bail application should be disposed on the same day. however , if a non bailable offence is add to the case in which the accused has been released on bail a fresh bail application will need to be filed before the proper forum. The accused will be be allowed to be free on the earlier bail bonds which was graned in bailable offence.
(in matters of bailable offences speaking orders are not expressly required)
GUIDELINES TO RELEASE UNDER TRIAL PRISONERS
Supreme Court of India
Supreme Court Legal Aid Committee ... vs Union Of India (Uoi) And Ors. on 7 October, 1994
(The Narcotics Drugs and Psychotropic Substances Act, 1985 (Act 61 of 1985) was the act in question before SC when it laid down these guidelines along with other provisions of Cr.PC)
main reason which motivated the Supreme Court Legal Aid Society to file this petition under Article 32 of the Constitution was the delay in the disposal of cases under the Act involving foreigners. The reliefs claimed included a direction to treat further detention of foreigners, who were languishing in jails as undertrials under the Act for a period exceeding two years, as void or in any case they be released on bail and it was further submitted by counsel that their cases be given priority over others. When the petition came up for admission it was pointed out to counsel that s