Report No. 154
Bail, Anticipatory Bail and Sureties
1. The Law relating to bail is contained in sections 436 to 450 of Chapter XXXIII of the Code of Criminal Procedure, 1973.
2. The law of bails, which constitutes an important branch of the procedural law dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and on the other, the fundamental principle of criminal jurisprudence, namely, the presumption of innocence of an accused till he is found guilty.1
1. Supdt. & Remembrancer of Legal Affairs v. Kumar Roy Chowdhury, (1974) 78 CWN 320 (325).
3. With a view to fulfilling the above objectives, the legislature has provided directions for granting or refusing bail. Where law allows discretion in the grant of bail, it is to be exercised according to the guidelines provided therein; further the courts have evolved certain norms for the proper exercise of such discretion.
4. Though the Code of Criminal Procedure has not defined bail, the terms "bailable offence" and "non-bailable offence" have been defined1 Bail in essence means security for the appearance of the accused person on giving winch he is released pending investigation or trial. The Supreme Court in Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47 has held that bail covers both release on one's own bond, with or without securities.
1. Section 2(a).
5. The Code has tlassified all offences into "bailable" and "non-bailable" offences. Under section 2(a) "bailable offence" means an offence which is listed 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. The Code has not provided any criteria to determine whether any particular offence is bailable or non-bailable.
It depends on whether it has been shown as bailable or non-bailable in the First Schedule. An examination of the provisions of the Schedule would reveal that the basis of the classification is based on divergent considerations. However, the gravity of the offences, namely, offences punishable with imprisonment for three years or more have been treated as non-bailable offences. But this is not a hard and fast rule. There are exceptions to the same.
6. A person accused of a bailable offence is entitled to be released on bail as a matter of right if he is arrested or detained without warrant. But if the offence is non-bailable, depending upon the facts and circumstances of the case, the court may grant bail on its discretion. The scope of discretion varies in inverse proportion to the gravity of the crime. The courts have formulated the following guidelines for grant of bail in non-bailable offences:
(i) the enormity of the charge;
(ii) the nature of the accusation;
(iii) the severity of the punishment which the conviction will entail;
(iv) the nature of the evidence in support of the accusation;
(v) the danger of the accused person absconding if he is released on bail;
(vi) the danger of witnesses being tampered with;
(vii) the protracted nature of the trial;
(viii) opportunity to the applicant for preparation of his defence and access to his counsel;
(ix) the health, age and sex of the accused;
(x) the nature and gravity of the circumstances in which the offence is committed;
(xi) the position and status of the accused with reference to the victim and the witnesses; and
(xii) the probability of accused committing more offences it released on bail, etc.
7. These considerations are by no means exhaustive. Factors such as previous convictions, criminal records of the accused and the possibility of the accused committing offences if enlarged on bail are also taken into account while deciding the question of bail.1
1. See Rao Harnarain Singh v. State, AIR 1958 123; State v. Captain Jagjit Singh, AIR 1962 SC 253; Gurucharan Singh v. State (Del. Admn.), (1978) 1 SCC 118; Gudikanth Narsimhulu v. Public Procedure, (1978) 1 SCC 240; Bagirati Singh v. Judeja, AIR 1984 SC; Johny Wilson v. State of Rajasthan, 1986 Cr LJ 1235 (Raj.)
8.1. Does the bail system discriminate against the poor?
8.2. On this question, the Report of the Legal Aid Committee appointed by the Government of Gujarat, in 1971 has commented on the bail system thus1:
"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 thought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount.
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; in the other he is deprived of his liberty without trial and conviction and this leads to grave consequences, namely:
(1) though presumed innocent he is subjected to the psychological and physical deprivations of free life;
(2) he loses his job, if he has one, and is deprived of an opportunity to work to support himself and his family with the result that burden of his detention falls heavily on the innocent members of the family,
(3) he is prevented from contributing to the preparation of his defence; and (4) the public exchequer has to bear the cost of maintaining him in the jail."
1. Report of the Legal Aid Committee (1971), quoted in Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47.
8.3. Subsequently, a Central Committee on Legal Aid reported in similar veins:1
"[W]e think that a liberal police of conditional release without monetary sureties or financial security and release on one's own recognizance with punishment provided for violation will go a long way to reform the bail system and help the weaker and poorer sections of the community to get equal justice under law. Conditional release may take the form of entrusting the accused to the care of his relatives or releasing him on supervision. The court or the authority granting bail may have to use the discretion judiciously. When the accused is too poor to find sureties, there will be no point in insisting on his furnishing bail with sureties, as it will only compel him to be in custody with the consequent handicaps in making his defence."
1. Report of the Expert Committee on Legal Aid: Processual Justice to the People (1973), quoted in Moti Ram case, ibid.
8.4. In order to eliminate the discrimination against the poor and the indigent accused in the grant of bail for bailable offences, Clause 40 of the Criminal Procedure Amendment Bill, 1994 seeks to amend section 436 of the Code to make a mandatory provision that if the arrested persons accused of a bailable offence is. an indigent and cannot furnish security, the court shall release him on his execution of a bond without sureties. The amendment is as follows:
In section 436, in sub-section (1) -
(a) in the first proviso, for the words "may, instead of taking bail," the words "may, and shall, if such person is indigent and is unable to furnish security", shall be substituted:
(b) after the first proviso the following Explanation shall be inserted:
Explanation.-Where a person is unable to give bail within a week of the date of his arrest, it shall be sufficient ground for the officer or the court to presume that he is an indigent person for the purposes of the proviso.
8.5. The Commission recommends the amendments referred to above as they are consistent with the Supreme Court's pronouncements and juristic opinion that poor accused committing bailable offences should not be denied bail on the basis of indigency.