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Report No. 177

Chapter X

Bail Reform

In para 3.7 of the Consultation Paper it was suggested that bail should be granted as a matter of course except in case of serious offences and except in certain specified circumstances. It was suggested that except in case of serious offences like murder, dacoity, robbery, rape and offences against the State, the bail provisions should be made liberal and that bail should be granted almost as a matter of course except where it is apprehended that the accused may disappear and evade arrest or where it is necessary to prevent him from committing further offences or to prevent him from tempering with witnesses or other evidence of crime.

Though the subject of bail does not strictly fall within the ambit of the law relating to arrest, its close connection with the law of arrest cannot be denied. We are concerned herein with the question of bail pending investigation. For ensuring proper protection of the constitutional and legal rights of the accused, it is necessary not only to clarify and circumscribe the power of the police to arrest without warrant, it is equally necessary to deal with the questio.- in what circumstances a person arrested by the police without warrant is entitled to bail.

The objective of the provisions relating to bail contained in Criminal Procedure Code is a recognition of the fact that pending investigation, as well as pending trial, the accused should not be kept in police custody or in jail unless it is necessary for the purpose of the case. In other words, unless it is apprehended that the accused, if granted bail, would make himself scarce and it would be difficult to apprehend him again or where it is necessary to keep him in the police custody for the purpose of investigation or where it is necessary to keep him under confinement with a view to prevent him from committing further offences, bail ought to be granted as a matter of course.

This rule is of course subject to the general exception that in the case of serious offences like murder, dacoity, robbery, rape, offences against the State and so on, the grant of bail should be scrutinized by the court as at present. We may elaborate.

The question of bail arises not only when the accused is in judicial custody but also when he is in police custody. When the accused is in police custody, bail should be a matter of course except where his continuing presence in police custody is necessary for the purpose of investigation. Even if the offence is a serious one, the accused must be sent to judicial custody and not be kept in police custody unless required for the purpose of investigation.

Similarly the apprehension that the accused, if enlarged on bail, may disappear and evade arrest or that it is necessary to keep him confined to prevent him from committing further offences or from tempering with witnesses and evidence or to ensure his own safety, can be grounds for keeping him in judicial custody but certainly not in police custody. We may repeat that police custody should be allowed and is justified only in cases where the presence of the accused in police custody is necessary for the purpose of investigation.

In all other cases he must be sent to judicial custody. Then again, bail should be a matter of course except in the situations mentioned above, namely, where he is likely to make himself scarce and it will be difficult to rearrest him or where it is necessary to prevent him from committing further offences or from tempering with witnesses or other evidence of crime or where it is necessary to keep him confined in the interest of his own safety.

In this connection, we may refer to certain observations in the preface to the publication of the Indian Law Institute, "Right to Bail". It is stated therein:

Bail is a very vital institution in criminal justice system. It carries a twin objective of enabling an accused to continue with his life activities and, at the same time, providing a mechanism to seek to ensure his presence on trial. It is not always just or advisable to confine the accused before conviction. Only the sovereign interest or threat to social order may necessitate such an action. Ordinarily, detaching an individual from society adds to the problems rather than solving them.

The option of jail is also a limited one. Generally the jails are overcrowded and mismanaged which is a burden very difficult to shoulder. The maintenance of the dependents of the jailed persons is another problem with multiple dimensions, including the possibility of their developing delinquent tendencies. Thus, jail does not always serve the social interest. The current problem of undertrials, too, is an outcome of a large number of indiscriminate arrests and the non-use of the option of bail in preference to jail."



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