BAIL JURISPRUDENCE: A PRAXIS OF DISCRETION OR PERQUISITE OF CIRCUMSTANCES

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“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 - Because he is poor,”

Such solemn and wise words are of Former US President Lyndon B. Johnson at the time of signing the Bail Reform Act 1966^[1].

The Cambridge dictionary defines ‘bail’ as,

“an amount of money that a person, who has been accused of a crime, pays to a law court so that they can be released until their trial. The payment is a way of making certain that the person will return to court for trial.”^[2]

The term 'bail' has not been defined under the Indian Penal Code, however, its origin can be recalled to the era of the Roman Empire.^[3] The concept of bail can be traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. Even in the Salisbury Cathedral’s Magna Carta and the Statute of Westminster, matured and established procedure for bail can be observed. It can also be seen in medieval England, where the custom grew out of the need to free untied prisoners from disease ridden jails while they were waiting for their delayed trials to be conducted.^[4]

By this definition of bail, very simple meaning of bail was intended, but over the years this meaning has evolved to become more complicated instead of getting simpler. The only objective behind introducing this system was to suffice and espouse the doctrine of “innocent until proven guilty”.

With the emergence of English Common Law, the bail system evolved with values of personal freedom and security of the politico-legal system. As far as the Indian scenario of bail jurisprudence is concerned, it is governed by the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC). The CrPC does not hold any definition for bail. It only distinguishes between bailable offence and non-bailable offences. Section 436, Section 437 and Section 439 govern provisions relating to bail in the CrPC.

As there is no distinct legislation illuminating the ground for bail, it is often required to rely upon the precedents set by various High Courts and the Supreme Court. The Supreme Court, over the years, has delivered important judgments relating to bail in non-bailable offences. These judgments often guide lower courts while deciding bail applications. Some of them have regarded bail as a right to an accused, upholding fundamental rights given under Article 22 against illegal detention and reiterated the dictum, ‘bail no jail’,^{[5] [6]}while others limit those fundamental rights so as to protect the interest of the society, and give incarcerations a punitive aspect.^[7]

Various decisions of the Supreme Court associated with bail jurisprudence have led to a lot of interests, culminating in heated debates. Nevertheless, to understand the true implications of all these decisions and how they determine the pre-established notion over bail jurisprudence in India, it is necessary to explore the doctrine of presumption of innocence.

The principle of presumption of innocence represents far more than a value of evidence. It embodies freedom from arbitrary detention and serves as a bulwark against punishment before conviction^.[8] In theory, pre-trial detention is permissible only for preventing the accused from absconding, committing further offences and tampering with evidence or influencing the witnesses. It is not to be served as a punitive or preventive punishment^{. [9]}

This article argues about how these parameters have been used inconsistently and nebulously over the years by the Indian Courts and point out the ramifications of such decisions on the right to be presumed innocent until proven guilty. In addition to these parameters, courts have always relied upon the gravity of the offence, which has become a decisive factor and a reason for denial for most of the bail petitions.

 

In a nutshell, Bail applications often get considered based on three factors,

      I.          Gravity of offence,

    II.          Possibility of accused tampering with evidence and pressurizing witnesses, and

  III.          Possibility of accused fleeing from justice i.e. absconding after bail.

However, these are not hard and fast conditions to be considered while granting bail applications but these conditions prevail under the very saying, ‘discretion of the court’ that is presiding over the matter.

The Gravity of Offence: A Subjective Test

In Anil Kumar Tulsiyani v state of U.P. and Anr.^[10], the Supreme Court held that gravity of offence should be the main consideration while deciding a bail plea of an accused in a non-bailable offence. The instant case was a challenge to an order of bail granted by the Allahabad High Court. The High Court granted bail to the accused charged with section 302 read with 201 of the Indian Penal Code, based on the lack of fingerprints on the weapon used by an accused and no criminal history. It was also argued that there had been no misuse of liberty during the period as well as no allegations of the prosecution witnesses being influenced or any apprehension of the accused absconding or thwarting justice. Though these considerations actually served the purpose the bail jurisprudence actually intended to, the Supreme Court cancelled the bail granted by the High Court on the grounds that the High Court did not take cognizance of the gravity of offence alleged. If the mere purpose of bail is to assure an accused’s presence at the time of trial, then is it really necessary to dwindle over the gravity of the offence, which does not have any parameters to measure as to which offence is severe and which is not.

 

The Supreme Court’s next judgment came to contradict its own previous decision. In Prabhakar Tewari v State of U.P. and Anr^[11], the Supreme Court held that the gravity of offence cannot be the ground for denial of bail. The facts of the cases are as such - An appeal was made against the Allahabad High Court’s decision of granting bail to an accused charged under section 302 read with section 34 of IPC. The accused had several cases pending against him and had been named in the statement forming the basis of the FIR. The two-judge bench of the Supreme Court favoured the decision given by the Allahabad High Court and ruled that factors like gravity and seriousness of offence alleged against an accused by themselves cannot be the basis for refusal of prayers for bail.

 

The same ruling can be traced in Sanjay Chandra v CBI ^[8] where the Supreme Court set aside an order of Delhi High Court which rejected a previous appeal made by an applicant by stating that the “allegations were itself sufficient to deny bail.” The accused had been alleged of an economic offence which had incurred a loss of Rs 30,000 crore. But the Supreme Court reversed the High Court’s order by taking cognizance of the completion of the investigation and  prospective delay in the trial, stating that the right to bail is not to be denied merely because the sentiments of the community are against the accused.

 

There appears to be a conflict of opinions in these judgments. This inconsistency often leads to judicial perplexity as to which one is to be relied upon. All of these judgments had been given by division benches of the Supreme Court which makes it more difficult to determine which one has binding nature. Most of these decisions have been pronounced at the discretion of the judge presiding over the matter. The Supreme Court in Union of India v Kuldeep Singh^[9] has quoted Lord Camden’s word,

"The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable.”

The possible remedy

A possible remedy to this situation would be a legislative one. It needs to reconsider the existing bail provisions that are mostly based on subjective opinions and discretion. The bail jurisprudence needs to be amended by including objective considerations such as criminal antecedents and the accused’s status in society. It would subside the repugnancy in the present provisions.

In, this regard, the American version of Bail Reforms can be considered a knight in shining armour. The Bail Reforms Act, 1966 ^[10] made substantial changes in federal pretrial release and detention practices. The Act obligated to have clear and convincing evidence that the accused had violated stipulated bail conditions. This obligation made substantial changes in the United States’ pre-trial detention figures. Though the United States has the highest incarceration rate in the world, only 20% of its prisoners are under-trial, contrary to Indian figures which are as high as 67% for under-trial, and 46% for convictions after-trial. If India really wants to deter crime, the increase in the conviction rate is necessary and not the proliferation of pre-trial detentions. It is worth noting that 53% of India’s under-trial population consists of Muslims, Dalits and Adivasis, 29% are not formally literate and 46% have not completed secondary education which makes them more vulnerable to present bail provisions^.[12]

Nevertheless, our system needs to follow the notion of presumption of innocence in a concrete form, rather than focusing on the verbal aspect. To serve that end, bail reforms, through legislation have become the need of the hour.

  By

Harshal Kshirsagar & Shubhangi Zite

III B.A. LL.B

ILS Law College

REFERENCES

^[1]Hussainara Khatoon & Ors v. Home Secretary, State of Bihar, AIR 1979, 1369 ( SC, 1979 )

^[2]Definition of Bail, Cambridge Dictionary, available at https://dictionary.cambridge.org/dictionary/english/bail

^[3]Bail Bonds 101, Available at https://app.leg.wa.gov/committeeschedules/Home/Document/168850#:~:text=The%20Romans%20were%20the%20first,was%20not%20bearing%20a%20weapon.

^[4]Mohd. Kumail Haider, ‘The Basic Rule of Bail and Safoora Zargar’s Case: Stretching Law and Facts Thin’, The Leaflet, available at https://www.theleaflet.in/the-basic-rule-of-bail-and-safoora-zargars-case-stretching-law-and-facts-thin/#

^[5] Hussainara Khatoon & Ors v. Home Secretary, State of Bihar, AIR 1979, 1369 ( SC, 1979 )

^[6] Dataram Singh v. The state of Uttar Pradesh, ( SC, 2018 )

^[7] Rajesh Ranjan Yadav and Pappu Yadav v. CBI, ( SC, 2007 )

^[8] Gurbaksh Singh Sibbia v. State of Punjab, AIR, 1980,1632 ( SC, 1980 )

^[9] Nagendra Nath Chakravarti v. King-Emperor, AIR, 1924, Cal 476

^[10] Anil Kumar Tulsiyani v. State of U.P. & Anr, (SC, 2006)

^[11] Prabhakar Tewari v. The State of Uttar Pradesh, (SC, 2020)

^[12] Amnesty International, Justice Under Trial: A study of Pre- Trial detention in India, available at https://amnesty.org.in/justice-trial-study-pre-trial-detention-india/