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Report No. 36

21. Indian law as to object of bail.-

As to the Indian law, some of the cases1 to which we have already referred while discussing how far conditional bail is permissible now, expressly or impliedly recognise, that while one object of bail is to secure attendance, other considerations cannot be ruled out.

1. Paras. 9-14, 16, 17 (foot-notes), supra.

22. This aspect of the matter, we find, was debated at length in the discussion1 that took place in 1923, particularly in the speeches of Dr. Gour and the Law Member Dr. Mian Sir Muhammad Shafi.

The two sides of the question were well represented in the debate in the speech of Dr. Gour and the reply of the Law Member, which we quote:-

"Dr. Gour-What does the existing provision, however, provide? It says: no Magistrate shall release a person on bail if there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused. The Magistrate is to prejudge the case and he is to say to the accused: I have reasonable grounds for believing that you have been guilty of this offence; therefore, whatever may be the reasons which would move me to release you on bail, you cannot be released on bail. That is the sole criterion from which Magistrates in India regard the question of bail.

Now, if we turn to the English law, we shall find a very different criterion there for releasing persons on bail, and, in inviting this House to adopt either the one or the other, I shall ask the House to remember what is the underlying principle for arresting a person and releasing him on bail. It requires no large legal training such as my Honourable friend, the last speaker, possesses, nor need one be an unpaid Magistrate to understand that.

When a man is arrested, the sole and single purpose of his arrest is that he should not run away, and, when he is released on bail, the sole criterion for releasing him on bail and fixing the quantity of bail is that he should not run away. (Mr. N.M. Samarath: "Nor commit suicide"?). Very few people do that; and even people under arrest sometimes commit suicide. That is, the sole criterion. Well, I submit, if the Magistrate is assured that the man is not likely to run away-(The Honourable Sir Malcolm Hailey: "How?") best security against his absconding, is there any reason why he should be detained in custody?"

1. Legislative Assembly Debates, Vol. III, No. 35, dated 12th February, 1923.

Section 497, 498 and 499 of the Codeof Criminal Procedure, 1898 - Grant of Bail with Conditions Back

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