Right To BailIts Emerging Contours

John EED in “Essays on Freedom and Power” portrays a pertinent aspect on freedom/ liberty, which is extracted below:

“Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and essential requirement of a modern man.”

In this article, I intend to pen some of my views on the right to bail under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”). Being a complex subject, in the present article, I will be solely confining my thoughts to offences under the Indi- an Penal Code, 1860 and its purport considering the provisions of Section 439 of CrPC.

As a caveat, one must remember, that the right to bail could also be subject to restrictions if such conditions/ stipulations are laid down in a statute or where the offences are an “economic offence”. To illustrate, it would be relevant to note that Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides that a person shall not be released on bail unless amongst others the Court is satisfied that there are reasonable grounds for believing that the Accused is NOT guilty of such offence AND that he is not likely to commit any such offence while on bail. The Hon’ble Supreme

Court in the case of State of Kerala Vs Rajesh and Others (2020) 12 SCC 122 has held that in the event an accused fails to satisfy the conditions stipulated under Section 37 of the NDPS Act, the ban on bail operates.

1. Jurisprudential postulate of bail

The fundamental jurisprudential postulate in criminal jurisprudence to the grant of bail is based on the doctrine of presumption of innocence. The doctrine states that a person is presumed to be innocent until found guilty. Another facet of criminal jurisprudence is that grant of bail is the general rule, whilst putting a person in jail or prison is an exception, as it would be opposed to Article 21 of the Constitution of India. This has been repeatedly reiterated by the Hon’ble Supreme Court in various cases including in the celebrated judgment of Nikesh Tarachand Shah Vs Union of India (2018) 11 SCC 1.

In India, the Hon’ble Supreme Court in various judgments including as observed in Dataram Singh Vs State of UP and Others (2018) 3 SCC 22 has held a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. The reasons include maintaining the dignity of the accused person however the poor the person may be, the requirements of Article 21 of the Constitution of India. It would also be pertinent to note that the Hon’ble Supreme Court in the case of In Re Inhuman in 1382 Prisons (2017) 10 SCC 658 also took cognisance of certain serious problems regarding prisons in India which included overcrowding in prisons, unnatural death of prisoners, gross inadequacy of staff and the fact that available staff were untrained or inadequately trained.

1.1 Is the object of bail punitive or preventative?

The answer to this question has been answered by the Hon’ble Supreme Court in Sanjay Chandra Vs Central Bureau of Investigation (2012) 1 SCC 20. In this case, the Court held that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The Court held that object of bail is neither punitive nor preventative. It would be profitable to extract a few passages from the said judgment of the Hon’ble Supreme Court which would highlight certain important propositions of law regarding the grant of bail:

Section 439 confers power on the High Court or the Court of Sessions to grant an accused who is in custody to be released on bail. Typically, bail is granted on such conditions as deemed appropriate by the concerned Court taking into account the factors in each case.

“Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and the normal rule of the bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to a chaotic situation and would jeopardise the personal liberty of an individual.

This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also been observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.”

2. Section 439 – What it contemplates?

Section 439 confers power on the High Court or the Court of Sessions to grant an accused who is in custody to be released on bail. Typically, bail is granted on such conditions as deemed appropriate by the concerned Court taking into account the factors in each case. The conditions that typically form part of the order granting bail includes the following:

 That the concerned applicant/ Petitioner shall cooperate with the investigation and appear before the concerned Investigating Officer.

 That such person shall not commit a similar offence whilst being released on bail.

 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.

In the context of the conditions imposed whilst granting bail, the Supreme Court in Munish Bhasin (2009) 4 SCC 45 has held that the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing conditions which are not called for at all. Further, the conditions imposed should not be harsh, onerous, or excessive so as to frustrate the very objective of granting bail or virtually in essence tantamount to a refusal of bail.

As evident, the provisions of Section 439 would apply only where a person is in “custody”. In a scenario, where a person apprehends arrest, such person would need to file an application seeking anticipa- tory bail under Section 437 of the CrPC. The application seeking anticipatory bail would need to be filed either before the High Court or the Court of Sessions.

3. Satender Kumar Antil Vs Central Bureau of Investigation (2022)

10 Scc 51

The Hon’ble Supreme Court in the case of Satender Kumar Antil (2022) 10 SCC 51 has laid down key guidelines/ principles and directions in the context of arrest and bail. Interestingly, the failure to follow the directions/ principles as laid down in the judgment has recently costed a learned Judge of the Sessions Court in Lucknow, the need to undergo training for the upgradation of his skills. The said judgment of the Hon’ble Supreme Court is a treatise in itself. In the said case, the Hon’ble Supreme Court has requested the Union of India to consider the introduction of a separate enactment like in the United Kingdom to streamline the grant of bail. For instance, The Bail Act, 1976 of the United Kingdom takes into consideration various factors.

The said law in the United Kingdom is an attempt to have a comprehensive law dealing with bails by following a simple procedure. The Act takes into consideration the clogging of the prisons with the undertrial prisoners, cases involving the issuance of warrants, granting of bail both before and after conviction, the exercise of the power by the investigating agency and the court, violation of the bail conditions, execution of bond and sureties on the unassailable principle of presumption and right to get bail. Certain exceptions have been carved out as mentioned in Schedule I of the said Act dealing with different contingencies and factors including the nature and continuity of offence.

In summary, I would believe that judgment in the case of Satender Kumar Antil is a beacon that should ideally reduce the scope of litigation when it comes to matters concerning arrest and bail. I would hope that the directions in the said judgment are followed in its true spirit

Dolly Maria is founder of THE IGNIST, a training company born out of a noble cause and spirit. She holds a decade long experience being a passionate mentor and entrepreneur.

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