The Right to Bail under Indian Criminal Law

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THE RIGHT TO BAIL UNDER INDIAN CRIMINAL LAWS

In words of Krishna Iyer J. on the subject of bail:-

“..... Belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process1."

The release on bail is crucial to the accused as the consequences of pre-trial detention are extremely harsh and unforgiving. If right of bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt yet he would be subjected to the psychological and physical deprivation of jail life. Anyone who has been to jail loses his job and becomes a social outcast.

Bail pending trial is a compulsory measure adopted by the Criminal Procedure Code (hereinafter referred as code), 1973. It is one of the cherished rights, claims or privileges of the accused person. The object of arrest and detention of the accused person is primarily to secure his appearance at the time of his trial and to ensure that in case he is found guilty he is available to receive the sentence. The laws of bail has to dovetail two conflicting demands, namely on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of accused person; and on other hand, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. The, Bail provisions blends the two conflicting claims- of individual freedom and interests of justice.

1

Gudikanti Narasimhulu v. Public Prosecutor, AIR 1978 SC 430.

Electronic copy available at: http://ssrn.com/abstract=1437977

The provisions of the bail restore the liberty of the accused person without jeopardizing the objective of the arrest. Therefore, the general rule is “bail not jail”2. The basic rule is to release him on bail unless there are circumstances suggesting the possibility of his fleeing from justice or thwarting the court of justice3.

Bail has not been defined under the Criminal Procedure Code, 1973. It has been defined in the Law Lexicon as ‘security for the appearance of the accused person, on giving, he is released pending trial or investigation4’. The Code has classified all offences into two categories:-



Bailable Offences- An offence which is given as bailable in the First Schedule or which is made bailable by any other law for the time being in force5.



Non-bailable Offence- Any other offence falls under this category6

BAILABLE OFFENCES

Where there are no reasonable grounds to believe that the accused is involved in the commission of the non- bailable offence, the accused shall be released on bail under section 436 (1).This is an imperative or mandatory provision. Under it, the Magistrate is bound to release the person on bail. The power to grant bail vests in the Court before whom an accused appears and is brought however, the same does not depend upon his competence to try the case but on the punishment prescribed for the offence7.

2

The same position of law has been upheld by the Supreme Court in a number of judgments, such as State of

Madhya Pradesh v. Kajad, (2001)7 SCC 673; Intelligence Officer, Narcotics Beureu v. Sambhu Sonkar and Anr., (2001)1 SCR 821
3

State of Rajasthan v. Balchand, AIR 1977 SC 2447

4

Black’s Law Dictionary, 4th Edn., page 177

5

Section 2 (a) and Section 436, Criminal Procedure Code, 1973

6

Section 437 , Criminal Procedure Code, 1973

7

Aftab Ahmad v. State, 1990 CrLJ 1636 (All).

Electronic copy available at: http://ssrn.com/abstract=1437977

It has been held in plethora of cases...
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