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Report No. 177

The following observations too are relevant:

The existing law on bail is inconsistent and unconvincing. The subject has received only an ad hoc treatment at the hands of the legislature. The nature and extent of the conditions which may be imposed by Courts on grant of bail have not been defined. Most agonizing is one's failure to trace out even a definition of "bail" in the whole set of provisions of law relating to bail. The practice of bail is highly characterized by the recurrence of extremism on the part of the law enforcement agencies as well as the advocates of liberty.

The reason on the side of enforcers is a need for stringent legal action, frequent bail-jumping and emergence of a clan of professional sureties. The opposite stance is supported by practice of prolonged investigations, delayed trials and torture. An unending debate, whether bail in bailable offences is a matter of right or a mere privilege conceded to an accused through the exercise of discretionary power, is continuing without a visible end in sight."

In this connection, it may be mentioned that the recommendations made by the Law Commission on the question of bail in its 41st Report on the Code of Criminal Procedure, are fully in accord with what we have recommended hereinabove.

The 78th Report of the Law Commission on Congestion of Undertrial Prisoners in Jails was concerned with the plight of large number of undertrial prisoners in Indian jails and recommended various measures to deal with the problem. The Commission recommended, inter alia, to expand the category of bailable offences, releasing on bond without sureties, obligation to appear and surrender, violation of which was to be an offence. It referred to position in England where a presumption is drawn in favour of the right to bail for all offences.

The 154th Report of the Law Commission on the Code of Criminal Procedure too dealt with this subject in chapters VI and VII. Chapter VI deals with pre-trial detention, anticipatory bail and sureties. The Report supports the insertion of section 436A and amendment of section 437, as proposed by the CrPC (Amendment) Bill, 1994 as also the insertion of section 441A and amendment of sub-section (3) of section 446 as proposed by the said Amendment Bill. (Chapter VII recommends insertion of section 437A, but that section is outside the purview of this study.)

Section 436A, amendments to section 437, section 441A and amendment to sub-section (3) of section 446, as proposed by the CrPC (Amendment) Bill, 1994 may now be referred to. They read as follows:

"436A. Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties:

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law:

Explanatio.- In computing the period of detention under this section for granting bail the period of detention passed due to delay in proceeding caused by the accused shall be excluded."

437. In section 437 of the principal Act,-

(i) in sub-section (1),-

(a) in clause (ii), for the words "a non-bailable and cognizable offence", the words "a cognizable offence punishable with imprisonment for three years or more but not less than seven years" shall be substituted;

(b) after the third proviso, the following proviso shall be inserted, namely:

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life or imprisonment for seven years or more be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor."

(ii) in sub-section (3), for the portion beginning with the words "the Court may impose", and ending with the words "the interests of justice", the following shall be substituted, namely:

"the Court shall impose the conditions,-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with 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, and may also impose, in the interests of justice, such other conditions as it considers necessary."

"441A. Every person standing surety to an accused person for his release-on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars."

"446. In section 446 of the principal Act, in sub-section (3), for the words "at its discretion", the words "after recording its reasons for doing so" shall be substituted."

The Parliamentary Committee, which examined this Bill, has not offered any comments on the above proposals.

We are in agreement with the aforementioned provisions in the Amendment Bill.

In the light of the above discussion, it may be stated as a general proposition that in offences punishable up to seven years imprisonment, with or without fine, the normal rule should be bail and the denial thereof an exception i.e., in any of the situations mentioned hereinbefore. In other serious offences, the matter has to be left to the discretion of the court to be exercised having regard to the totality of the circumstances and keeping in mind the necessity to maintain a balance between the interests of the society as a whole in proper maintenance of law and order and the constitutional, legal and human rights of the accused.

The relevant provisions in the CrPC may have to be amended accordingly. It may also be provided that in case of offences punishable with seven years or less, the police officer or the Court shall not insist on sureties unless there are special reasons for imposing that condition. The release should be on personal bon.- as a general rule.

In para 3.8 of the Consultation Paper, a proposal was put forward to the effect that no arrest shall be made and no person shall be detained merely for the purpose of questioning. It was pointed out that such arrest or detention amounts to unwarranted and unlawful interference of the personal liberty guaranteed by Article 21 of the Constitution.

There was no serious opposition to this proposal from any quarter. Indeed, this proposal follows from what we have stated hereinabove, namely, that arrest should not be made in a casual manner but only on the basis of some material on the basis of which, the police officer is reasonably satisfied that arrest of such person is necessary.

It cannot be that the police is permitted to detain anyone they like and question him with a view to find out whether he has committed any cognizable offence. Such an absolute power cannot be conceded under our constitutional system. If questioning any person suspected of committing a cognizable offence is found necessary for the purposes of investigation, he may be questioned by the police officer either at the residence of the person or at such other place as may be indicated by the person and agreed to by the police officer.

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