Report No. 268
C. Non-bailable Offence
5.9 Bail is not a matter of right for a person accused of a non-bailable offence. Section 437 of the Cr.PC enlists the powers of the magistrate to grant bail in non-bailable matters subject to restrictions. It provides that Magistrates have the discretion to release such persons on bail, subject to certain restrictions. However, in certain cases, where the nature and the gravity of the crime is significant, pre-trial detention does not offend principles of natural justice which are so rooted in the traditions and the conscience of the people as to be ranked as fundamental to the jurisprudence of law.122
5.10 The case of Rao Harnarain Singh Sheoji Singh v. The State123 provides an early commentary on the standards to be used for determining grant or denial of bail. The court observes that subject to the restrictions in s. 437 (1) of Cr.P.C., the Magistrate's discretion must be exercised judicially. The Court listed the following as non-exhaustive but relevant factors in making bail decisions
(1) the enormity of the charge;
(2) the nature of the accusation;
(3) the severity of the punishment which the conviction will entail;
(4) the nature of the evidence in support of the accusation;
(5) the danger of the applicant absconding if he is released on bail;
(6) the danger of witnesses being tampered with;
(7) the protracted nature of the trial;
(8) opportunity to the applicant for preparation of his defence and access to his counsel and;
(9) the health, age and sex of the person accused of an offence.
5.11 The exercise of power by the court in the matter of granting or refusing bail is a judicial act and not a ministerial one124. In Gudikanti Narasimhulu 125, the Supreme Court has held that public justice is central to the whole bail law and a developed jurisprudence on bail is integral to a socially constituted judicial process wherein sound judicial discretion guided by laws plays a special role. Such judicial discretion must be governed by law and not by caprice and it cannot be arbitrary, vague and fanciful.
5.12 In State v. Captain Jagjit Singh,126 the Supreme Court enumerated relevant factors that belies the decision on bail such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the person accused of an offence, a reasonable possibility of the presence of the accused person not being secured at the trial, reasonable apprehension of witnesses tampering, the larger interests of the public or the State etc., which arise when a court decides on bail for a non-bailable offence."
Further, in Gurcharan Singh v. State (Delhi Administration)127, the Supreme Court reiterated the observations in Jagjit Singh's case (supra) and held that the overriding considerations in granting bail which are common both in the case of sections 437(1) and 439(1) Cr.P.C. are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused person with reference to the victim and the witnesses; the likelihood of the person accused of an offence fleeing from justice; the likelihood of repetition of the offence; the likelihood of jeopardizing one's own life; the likelihood of tampering with witnesses; the history of the case as well as of its investigation etc. which cannot be exhaustively set out.
5.13 In Rajesh Ranjan @ Pappu Yadav v. Central Bureau of Investigation,128 it was held by the Supreme Court that the grant of bail depends upon factual matrix of the case and no straight-jacket formula can be laid down for grant of bail. However, it was in the case of State of Rajasthan v. Balchand,129 that the Supreme Court in its aphoristic opinion declared, that the rule is "Bail not jail".
It further stated that denial of bail is therefore an exception, to be exercised only when there are circumstances indicating absconding from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail. Whereas, in Gudikanti Narasimhulu case (supra) the court deemed it necessary to consider the likelihood of the applicant tampering with prosecution witnesses or otherwise polluting the process of justice must be considered.
It is traditional and rational to enquire into the antecedents and criminal records of a man who is seeking bail, particularly any record that suggests that he is likely to commit serious offences while on bail. In State of U.P. v. Amarmani Tripathi 130 it was held by the Supreme Court that a vague allegation that person accused of an offence may tamper with evidence or witnesses, may not be a ground to refuse bail, if the accused person is of such character that the mere presence at large would intimidate the witnesses or if there is evidence to show that the liberty would be used to subvert the justice or tamper with the evidence then bail will be refused.
Further, in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav,131 the Supreme Court restated the relevant factors to be considered in exercise of discretion in a bail decision. It cautioned courts to exercise such discretion in a judicious manner and not as a matter of course.
5.14 Although the Supreme Court in Pappu Yadav's case (supra) made it mandatory to justify its decision for granting bail, however, it placed no such requirement for the denial of bail. The Commission believes that the justification must be made mandatory even when bail is denied, as it leads to loss of liberty. In the exercise of the discretion in granting bail the Magistrate can call upon the prosecution to satisfy that there is a genuine case against the person accused of an offence and eventually produce prima facie evidence in support of such charge.
It refers to the strength of the case against the defendant rather than the ultimate guilt or innocence.132 In the Code the fourth proviso to s. 437 allows the Public Prosecutor to be consulted when the offence punishable with seven years or more. At such stage, the prosecution has no obligation to lead the evidence to establish the guilt of the person accused of an offence beyond all reasonable doubt.133 Section 437 (1) (ii) of the Cr.PC provides that no accused person who is suspected to have committed a cognizable and non-bailable offence shall be released on bail if such a person has been convicted of offences punishable with death or offences punishable with imprisonment for life or offences punishable with imprisonment for seven years or more or has two prior convictions of three or more, but less than seven years.
It has come to notice of the Law Commission that an inadvertent error has crept in clause (ii) of sub-section (1) of section 437 of Cr.P.C, where it is stated that, "...a cognizable offense punishable with imprisonment for three years or more but not less than seven years." (emphasis added), the use of word "not" is not in consonance with the scheme of the provsion. Thus, a corresponding amendment is recommended in s. 437 of Cr.P.C. to delete the word "not".
5.15 However, second proviso to s. 437 (1) Cr.P.C states that if the court is satisfied that it is just and proper to grant bail in such cases, then bail may be granted for any other special reason. Ordinarily, when an person accused of an offence punishable with life imprisonment or death is brought before a court, bail must be denied. Only when the Magistrate may entertain a belief on reasonable grounds that the accused person is not guilty of such offence, bail can be granted-if it is a case of 'exceptional circumstances'.
Arrest often is effected on the basis of convincing and cogent material, which would have led to the accusation of a strong and serious charge. Therefore, when an accused is charged with crimes that carry severe punishments, the practice must be to detain the person accused of an offence in the absence of "exceptional reasons". It may even be stated that the accused person must show why their detention would be inappropriate in 'exceptional circumstances' (exceptional circumstances may be described as unique combination of circumstances that are out of the ordinary).134
In the case of Babu Singh v. State of U.P.135the Supreme Court held that 'personal liberty', deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exercisable. Personal liberty of an accused or convict is fundamental, suffering lawful eclipse, only in terms of 'procedure established by law' is acceptable. The doctrine of Police Power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity and the interest of the public generally.
5.16 Law also empowers courts to impose "any other condition that is reasonably necessary" to ensure appearance and protect the community.136 It is reasonable for the courts to impose the least restrictive condition, or combination thereof that will reasonably assure the appearance of the person as required as well as the safety of any other person and the community at large.137 According to s. 437 (3) of Cr.PC, when an person is suspected of commission of an offence under Chapter VI, XVI or XVII of IPC punishable with seven years or more, the Court has the duty to impose conditions upon such person accused of an offence as follows:
- that such a person shall attend in accordance with the conditions of the bond executed under Chapter XXXIII of Cr.P.C.
- that such person shall not commit any offence similar to the offence of which he is accused or suspected of the commission.
- that such a person shall not directly or indirectly make any inducement, threat or promise to any person acquainted of 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.
5.17 In addition to the conditions above, the court may impose any other conditions it deems necessary in the 'interest of justice'. In some cases defendants may be detained because of the risk or danger to the community upon showing that they are likely to engage in physical violence or in acts that are detrimental to the interests of the society. However, to authorize the detention, the court must find that no conditions will reasonably ensure the safety of any other person or the community and this must be supported by clear and convincing evidence.
5.18 Release conditions must be relevant to the purpose of ensuring appearance and safety.138 In the United States the conditions that courts have imposed include drug testing, house arrest, submission to warrantless searches139, telephone monitoring, residence in a halfway home, electronic bracelet monitoring, freezing of defendant's assets140, limiting access to internet and computers141 and submission to random unannounced visits by pre-trial services officers.
However, the courts are prohibited from imposing a financial condition that results in the pretrial detention of the person.142 Bail may not be set at a figure that the defendant can readily post, but courts cannot intentionally detain the defendant by setting unaffordable standards of bail. It may set bail at a level it deems reasonably necessary to secure the appearance. Further, if the defendant cannot afford that amount, the defendant is detained not because he or she "cannot raise the money, but because without the money, the risk of flight is too great."143
5.19 The present practice on bail in India show that pre-trial detention does not diminish the importance of the defendant's liberty and interest prior to the trial. The proper inquiry, is whether these practices constitute punishment.144 The primary object of bail is to attain the appearance of the person accused of an offence for the trial, however, many courts reserve the right to adjust or deny bail if it appears that the accused person may threaten the public safety or interests or the integrity of the judicial process. Therefore if the court denies bail altogether, this detention would be civil and not criminal, as it is prospective and preventive.145