Report No. 154
9. The purpose of pre-trial detention is not punishment. A survey of decided cases reveals that the law favours release of accused on bail, which is the rule, and refusal is the exception1.
1. See Rao Harnarain Singh v. State, AIR 1958 123; State v. Captain Jagjit Singh, AIR 1962 SC 253; Gurcharan Singh v. State (Del. Admn.), (1978) 1 SCC 118; Gudikanth Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240; Bhagirati Singh v. Judeja, AIR 1984 SC 372; Johny Wilson v. State of Rajasthan, 1986 Cr LJ 1235 (Raj).
9.1. The plight of under-trial prisoners was vividly brought out in Hussainara Khatoon 111 v. Home Secretary, (1980) 1 SCC 81: (1980) 1 SCC 91: 1980 SCC 93: (1980) 1 SCC 98: (1980) 1 SC 98: (1980) 1 SCC 108: (1980) 1 SCC 115. The case disclosed a dismal state of affairs in the State of Bihar in regard to administration of criminal justice. Hordes of men and women under-trial were languishing in Bihar jails for periods ranging from three to ten years without the commencement of trials.
They were in jails for much longer periods than they would have been had they been found guilty and sentenced after trial. They were in jails not because they were found guilty but were too poor to afford bail and the trials did not commence. In this context the following observations of P.N. Bhagwati, J., (as he then was) are apposite:1
"One reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is our highly unsatisfactory bail system. It suffers from property oriented approach which seems to proceed on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice.
The Code of Criminal Procedure, even after its re-enactment, continues to adopt the same antiquated approach as the earlier Code enacted towards the end of the last century and where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case, he fairs to appear at the trial.
Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail.
The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the court is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the magistrate about their solvency for the amount of the bail and where the bail is with sureties as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties.
That result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable lo obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences.
It is high time that our Parliament realises that risk of monetary loss is not the only deterrent against fleeing from justice, but there are also other factors which act as equal deterrents against fleeing Parliament would do well to consider whether considerations such as family ties, roots in the community, job security, membership of stable organisations etc., should be the determinative factors in grant of bail and the accused should in appropriate cases be released on his personal bond without monetary obligation.
Of course, it may be necessary in such a case to provide by an amendment of the penal law that if the accused wilfully fails to appear in compliance with the promise contained in his personal bond, he shall be liable to penal action. But even under the law as it stands today the courts must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties."
1. Ibid., at 84, 85, 87.
9.2. R.S. Pathak, J. (as he then was) opined that there should be a clear provision in the Code of Criminal Procedure which enables the release, in appropriate cases, of an under-trial prisoner on his bond without sureties and without any monetary obligation.
9.3. The first Hussainaras decision was followed by orders passed by the Supreme Court1. from time to time furnishing guidelines for release of under-trials languishing in jails for want of expeditious disposal of pending cases.
In Hussainara Khatoon [V11]2 a criminal miscellaneous petition was filed seeking general orders on the basis of guidelines already issued by the court, namely for undertaking an inquiry for setting up of additional courts in every state, providing investigating agencies with more experts, simplifying the procedure for sanction of prosecution, strict compliance with section 167 of the Code, circulation of guidelines to the courts in states and revision of categories of under-trials in Bihar jails. The Supreme Court, while refraining from issuing general orders, observed:
"The enforcement of the guidelines by the subordinate courts functioning in different states should now be the responsibility of the different High Courts. General orders for release of under-trials without reference to specific fact situations in different cases may prove to be hazardous.
While, there can be no doubt that under-trial prisoners should not languish in jail on account of refusal to enlarge them on bail for want of their capacity to furnish bail with monetary obligations, these are matters which have to be dealt with on case- to-case basis keeping in mind the guidelines laid down by this court General orders in regard to judge strength of subordinate judiciary in each State must be attended to, and its functioning overseen, by the High Court of the State Withdrawal of cases from time to time may not always be an appropriate and acceptable remedy, but what is required is to evolve a mechanism which would enable early disposal of cases."3
1. Hussainara Khatoon [II v. Home Secretary, (1980) 1 SCC 81: (1980) 1 SCC 91: 1980 SCC 93: (1980) 1 SCC 98: (1980) 1 SC 98: (1980) 1 SCC 108: (1980) 1 SCC 115.
2. Hussainara Khatoon [VII) v. Home Secretary, (1995) 5 SCC 326.
3. Ibid., at 328.
9.4. In a public interest litigation case on the under-trials in Tihar Jail, Delhi, National Capital Territory, the Supreme Court in R.D. LIpadhyay v. State of Andhra Pradesh, 1996 Cr 189 (SC). issued specific directions for expediting the trial of under-trials accused of serious offences as murder, attempt to murder etc. under I.P.C., Arms Act, Customs Act. Narcotic Drugs and Psychotropic Substances Act., Official Secrets Act, Extradition Act, Terrorist and Disruptive Activities Act and Dowry Prohibition Act.
The Court also issued directions for release on bail without the necessity of application for bail in cases where under-trials are charged with attempt to murder under I.P.C. and cases have been pending for more than two years. In cases where under-trials are charged with the offences of kidnapping, theft, cheating, counterfeiting, rioting, hurt, grievous hurt or under the Arms Act, Customs Act if they have been in detention for more than one year, they should be released on bail without an application of bail.
9.5. To prevent the under-trial prisoners from languishing in jails for periods longer than the period of maximum period of imprisonment for the alleged offence, clause 41 of the Code of Criminal Procedure (Amendment) Bill proposes to insert it new section 436A on the following lines:
"Section 436A.-Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any have (not being on offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, extend the period of detention of such person for a longer period longer than one-half of the said period, or release him on bail instead of the personal bond with or without sureties.
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law;
Explanation.- In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded."
10. Section 436A be inserted in the Code as a protection for under-trial prisoners accused of non-capital offences and release on bail as contained in clause 41 of the Code of Criminal Procedure (Amendment) Bill except the words "instead of the personal bond with or without sureties" occurring in proviso to clause 41 of the Bill be omitted.
10.1. Section 437 deals with grant of bail in respect of non-bailable and cognizable offences. Clause 42 of the Criminal Procedure Code (Amendment) Bill seeks to amend section 437 to provide that if a person commits a cognizable offence and he has previously been convicted on two or more occasions of a cognizable offence punishable with imprisonment not less than three years, he shall not be released except in the circumstances specified in the provision.
10.2. It is further provided in the Bill that if an accused appears before the Court while in judicial custody and prays for bail, or a prayer for bail is made on his behalf, the Court shall grant bail only after giving an opportunity of hearing to the prosecution, if the alleged offence committed by the accused is punishable with death, imprisonment for life or imprisonment for not less than seven years.
10.3. Under the present sub-section (3) of section 437 of the Code, the court has the discretion to impose certain conditions for the grant of bail. Where conditions are thus imposed, the bond executed under section 441(2) shall incorporate those conditions.
11. In order to make the provision under section 437 more stringent and ensure that the accused released on bail does not interfere or intimidate the witnesses, section 437 be amended as provided under clause 42 of the Code of Criminal Procedure (Amendment) Bill, 1994:
"In section 437 of the principal Act,
(i) in sub-section (1),
(a) in clause (ii) for the word "a non-bailable and cognizable offence", the words "a cognizable offence punishable with imprisonment for not less than three years" shall be substituted;
(b) after the third proviso, the following proviso shall as inserted, namely,
"Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor,"
(ii) in sub-section (3) for the portion beginning with the words, the "Court may impose" and ending with the words "the interests of justice", the following shall be substituted, namely:
"the Court shall impose the conditions,-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence and may also impose, in the interests of justice, such other conditions as it considers necessary."
We recommended the adoption of the aforesaid amendments to section 437.
12. The directions issued by the Supreme Court in Common Cause v. Union of India, namely : 1996 (4) SCALE 129.
"1(a) Where the offences under I.P.C. or any other law for the time being in force for which the accused are charged before any criminal court are punishable with imprisonment not exceeding three years with or without fine and if trials for such offences are pending for one year or more and the concerned accused have not been released on bail but are in jail for a period of six months or more, the concerned criminal court shall release the accused on bail or on personal bond to be executed by the accused and subject to such conditions, if any, as may be found necessary, in the light of section 437 of the Criminal Procedure Code [Cr. P.C.].
1(b) Where the offences under I.P.C. or any other law for the time being in force for which the accused are charged before any criminal Court are punishable with imprisonment not exceeding five years, with or without fine, and if the trials for such offences are pending for two years or more and the concerned accused have not been released on bail but are in jail for a period of six months or more, the concerned criminal court shall release the accused on bail or on personal bond to be executed by the accused and subject to the imposing of suitable conditions, if any in the light of section 437, Cr. P.C.
1(c) Where the offences under I.P.C. or any other law for the time being in force for which the accused are charged before any criminal court are punishable with seven years or less, with or without fine, and if the trials for such offences are pending for two years or more and the concerned accused have not been released on bail but are in jail for a period of one year or more, the concerned criminal court shall release the accused on bail or on personal bond to be executed by the accused and subject to imposing of suitable conditions, if any in the light of section 437, Cr. P.C."
are salutary in liberalising the grant of bail in respect of under-trial prisoners where trials are pending and not concluded.
However the aforesaid directions should not be applicable in subsequent offences committed by the same offenders or against whom more than one case is pending or when a person has been convicted for more than one case.