Report No. 268
Chapter - X
Monetary Bail, Indigents and Under-trails
10.1 One of the most frequently voiced criticism on the system of bail is that it is based on money as surety even after various reforms in criminal law is that it discriminates against the poor. The financially well-established can easily afford to purchase their freedom, while the victims of the financial bail system- the poor, are jailed because they cannot raise the money.240 In effect, the ability to pay often becomes the sole factor deciding who goes free and who languishes in jail241. The inherent unfairness of this practice raises question whether such practice is indeed pragmatic.
10.2 The judgment of the Supreme Court in Rudal Shah v. State of Bihar242, is an eye opener on being the worst example of apathy of the State executives towards the plight of indigent persons. In spite acquittal of all charges by the competent criminal court on 3.6.1968, he was released from jail only after 14 years, i.e., on 16.10.1982.
10.3 The Supreme Court in Moti Ram v. State of M.P.243, has observed that the primary method through which bail conditions are imposed, including the condition to appear before the court, is by placing the person accused of an offence under financial obligations and monetary risk regardless of the economic condition of the accused person. This model is prevalent in many parts of the world. The problem arises when more than 21 per cent244 of the population is living below poverty line. This affects the indigent population and their access to justice. Sections 440 to 450 Cr.P.C. set out conditions for releasing someone who is otherwise determined to be eligible for bail. The notion behind these provisions is that it requires the person accused of an offence to provide monetary assurance that he will appear before the court as and when required and observe other bail conditions, or forfeit the assurance amount.
Thus, before being released, a person who is granted bail would be required to execute a bond agreeing to adhere to the conditions of bail.245 This bond is for a certain sum of money as set by the Court, if the person defaults on a bail condition, the Court will forfeit the bond and require the person to pay the money as penalty.246 On failure to do so, the penalty will be recovered in a similar manner as a fine imposed by the Court. If the penalty amount cannot be recovered then the person shall be liable for a civil imprisonment upto 6 months.247 At this stage, it is required to be noted that failure to appear, without sufficient cause, before the court on the date designated as part of the bail condition, is an offence under section 229A, IPC.
10.4 In addition to the requirement of the execution of a bond by the person accused of an offence, the Court may require such accused to provide one or more sureties to stand guarantee that the person will abide by the bail conditions. If the person accused of an offence fails to do so, the surety amount will be forfeited. Section 440 of Cr.P.C provides that the bail amount should be fixed "with due regard to the circumstances of the case and shall not be excessive."248 The High Court or the Court of Session may reduce the amount fixed by the police or the Magistrate.249
In the case of Shankara v. State (Delhi Administration),250 the High Court of Delhi placed an obligation upon the State to take into consideration all the factors pertaining to the person accused of an offence. The judgment made the conditions attached to the bail lenient in this case. Any accused charged with minor offences were asked to be released on personal bonds and those charged with major offences were to be released on personal bond along with one surety to the amount of rupees one thousand only.
10.5 In this regard, the 'Report of the Legal Aid Committee' chaired by Justice P.N. Bhagwati appointed by the Government of Gujarat in 1971251, and the report 'Processual Justice to the People' by the Expert Committee on Legal Aid252 headed by Justice Krishna Iyer in 1973 are worth being noted. Justice Bhagwati observed in his report that the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their financial inability while the wealthier persons, would be able to secure their freedom because they can afford to furnish bail253.
The report categorically stated that the evil of the bail system is that either the impoverished have 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. On one hand they are fleeced by touts and professional sureties and sometimes even have to incur debts to make payments to them for securing their release; on the other hand they are deprived of their liberty without trial and conviction; all this leads to grave consequences.
10.6 The Expert Committee on legal aid headed by Justice Krishna Iyer, in 1973 in its Report titled 'Processual Justice To The People',254 provides alternatives to the money bail system. It is stated that a liberal policy of conditions for 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 the law. Conditional release may take the form of entrusting the person accused of an offence to the care of their relatives or in supervision. The court or the authority granting bail may have to use the discretion judiciously. When the accused person is unable to find sureties, there will be no point in insisting on bail with sureties, as it will only compel them to be in custody with the consequent handicaps in providing their defence.255
10.7 The Expert Committee Report also made recommendations, such as enlarging the category of bailable offences as classified in Cr.P.C., and insisting on expeditious completion of pre-trial procedures that might lead to minimizing the period of confinement. It has also noted that a person accused of an offence would need access to a lawyer to make an application for bail.256As per law, it is required to ensure that legal aid is provided but, in practice, this occurs only after the charge-sheet is filed. Therefore, access to lawyers in the crucial pre-charging stages is often limited for those who cannot afford a lawyer, and who are likely therefore to also not be able to afford bail.
10.8 The Supreme Court has taken note of the concerns highlighted above. In Hussainara Khatoon,257 the Court commented on the property based nature of the bail system and stated that it is based upon the erroneous assumption that the risk of monetary loss is the only deterrent against fleeing from justice. The Court highlighted that even where an person accused of an offence is to be released on personal bond, the law requires the person to be placed under financial obligation to appear in court through the execution of a bond to that effect.258 Moreover, the courts mechanically insist that the accused person should produce sureties who would furnish bail for him and, these sureties must again establish their solvency to be able to pay the amount of bail in case such accused fails to appear to answer the charge.
The issue of bail for people who do not have access to sureties locally, was at the centre of the controversy in Moti Ram259. Here, the Magistrate had refused to consider the surety given by the cousin of the accused person on the ground that he was not from the same geographical location as the accused. The Supreme Court reversed the order and held that courts cannot reject a surety merely because the surety or the surety's estates are situated in a different district or state. The requirement of local sureties is difficult to attain for out of state under-trial prisoners.
10.9 The Court should impose reasonable conditions for bail as the order must be judicious. The Court should not insist for local sureties because if the accused person is not in a position to meet such requirement even if the order has been passed it may not be possible for the accused person to ensure compliance of such conditions. The court may modify its order to enable him to give surety who need not be a local person. By no means, the order should be so onerous that the purpose of granting the bail would stand defeated as it would not be possible for the person accused of an offence to fulfil those conditions260.
10.10 With regards to under-trial prisoners, in the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners ,261 the Supreme Court held that unduly long periods of under-trial incarceration violates Articles 14 and 21 of the Constitution. For this reason, the Court directed that if the accused person has served half the maximum sentence specified for the offence for which he has been charged, he should be released on bail, subject to fulfilling the conditions of bail imposed on him.
10.11 This standard was incorporated in the Cr.P.C., through an amendment in 2005, by which s. 436A was added to the Code. This section provides that if the accused person has undergone detention for half the maximum period of imprisonment specified for the offence that he has been charged with, such an accused shall be released by the court on personal bond with or without sureties. Persons charged with offences punishable with death do not get the benefit of this provision. The proviso to the section states that the court, upon hearing the public prosecutor, may order the continued detention of the accused person for a term longer than half of the said period, or release the person accused of an offence on bail instead of personal bond with or without sureties.
The court shall record reasons for this in writing. The second proviso to the section states that no accused person shall be detained for a period longer than the maximum period of imprisonment for the offence. For effective implementation of this provision, the Supreme Court of India laid down guidelines in Bhim Singh v. Union of India.262 It directed the jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge to hold one sitting per week in each jail/prison for two months from October 1, 2014 to identify under-trials eligible for bail under s. 436-A of Cr.P.C and to pass an appropriate order with respect to s. 436-A of Cr.P.C in the jail itself. It directed the Jail Superintendent of each jail/prison to facilitate the process.
10.12 In this context it is pertinent to note that in an earlier case, R. D. Upadhyay v. State of Andhra Pradesh,263 the Supreme Court had held that under-trials charged with attempt to murder should be released on bail if their case has been pending for 2 years or more; and that persons charged with comparatively minor offences like theft, cheating, etc., should be released if they have been in prison for more than a year. The Court added two important instructions:
(1) the trial courts were obligated to consider such persons for bail. The court clarified that it was not necessary for under-trials to move an application for bail.
(2) The Court directed that where an under-trial is not in a position to furnish sureties, the court should examine whether the person can be released on furnishing a personal bond. In the current system of money bail and release under s. 436A Cr.P.C., after serving half of the maximum sentence, it must be considered whether, given the duration of maximum imprisonment in many offences, release after serving half the duration serves the cause of justice.
10.13 In order to ensure the compliance of this provision, it is necessary to make some statutory authority responsible for its compliance. Under the Legal Services Authority Act, 1987, the Secretary to District Legal Services Authority are judicial officers, thus, they must be made responsible for making these provisions effective and ensure that benefits reach to the under trials. The said Secretary is also competent to approach the jail authorities and seek information regarding the detention served by any particular under trial prisoner. Thus, the Commission recommends that the Secretary may be made responsible as a Nodal Officer seeking enforcement of the provisions of this section.
10.14 In Criminal Appeal No .509 of 2017, in Hussain and Anr v. Union of India, the Supreme Court has directed the High Courts to issue directions to the subordinate courts inter alia that bail applications be disposed of within one week. The Court further held that as a supplement to s. 436A of Cr.P.C., consistent with the spirit thereof, if an under trial has completed a period of custody in excess of sentence likely to be awarded if the conviction is to be recorded, such an under-trial must be released on personal bond.