Report No. 268
Chapter - I
1.1 In the recent times, bail in India is a highly debated issue. There are number of reports that shed light on the state of the criminal justice system in India. The epigraphs below captures the state of affairs aptly:
[i]f more than 50% of all detainees, and in some countries more than 70% are in pre-trial detention, something is wrong. It usually means that criminal proceedings last far too long, that the detention of criminal suspects is the rule rather than the exception, and that release on bail is misunderstood by judges, prosecutors and the prison staff as an incentive for corruption 1 Here the rod is, as it were, held 'in terrorem' over the evildoer, innocuous so long as he behaves well, but ready to descend at any moment if he breaks his promise of good behaviour, for if he does, his bail can be forfeited2.
1.2 Historically, bail was a tool to ensure the appearance of the person accused of an offence at trial or to ensure the integrity of the process by preventing such a person from tampering with evidence or witness. Under the Criminal procedure Code of 1973 (hereinafter Cr.P.C.), the police, prosecutors magistrates and judges have been enjoined to exercise the best judgement and discretion within the confines of the law for ensuring the appearance of the person accused of an offence without jeopardizing the interests of the society.
1.3 In general parlance, bail refers to release from custody, whether it be on personal bond or with sureties. In Moti Ram v. State of Madhya Pradesh,3 the Supreme Court clarified that the definition of the term bail includes both release on personal bond as well as with sureties. It is to be noted that even under this expanded definition, 'bail' refers only to release on the basis of monetary assurance-either one's own assurance (also called personal bond or recognizance) or third party's sureties.
1.4 Personal liberty and the rule of law find its rightful place in the Constitution in Article 22 which includes measures against arbitrary and indefinite detention. It further provides that no person shall be detained beyond the maximum period prescribed by any law made by the Parliament. Even with the adoption of an elaborate procedure by the judiciary to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system giving rise to the notion that the bail system is unpredictable.
1.5 Based on the recommendations of the Law Commission in its 41st Report on the Code of Criminal Procedure4 - the law relating to bail got suitably modified, in tune with the constitutional objectives and sought to strike a fine equilibrium between the 'Freedom of Person' and 'Interest of Social Order'. The provisions namely sections 436, 437 and 439 of Chapter XXXIII Cr.P.C. were streamlined in 1973. In last few decades, the societal contexts, its relations, changing pattern of crimes, arbitrariness in exercising judicial discretion while granting bail are compelling reasons to examine the issue of bail and to chart a roadmap for further reform.
1.6 Bail in its essence is a fine balance between the right to liberty of the person accused of an offence and the interests of society at large. Thus, the task ahead would not only include stricter bail legislations optimal for dealing with the growing rate of crime, but at the same time making them equitable. This will harmonise the bail legislations with the current socio-legal problems and ensure that under-trials and indigent persons have access to justice.