Updated: Apr 1, 2021
(This article is written by Ms. Farhat Naim. She is a student of the Delhi Metropolitan Education)
“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”.
– Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)
The concept of bail is a well recognized principle among all judicial system. Bail, in legal terms, means procurement of release from prison of a person who is either awaiting trial or an appeal by depositing an amount of security to ensure his submission when the legal authority requires him. As defined by Ramnath Iyer in his law lexicon 1 that bail bond is a security that the accused person has to pay on which he’s released pending trial or investigation.
The term bail is not define any section of Criminal Procedure Code of 1973 although the term bailable and non bailable offence happen define in section 2A of CrPC as follows-
" bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and" non- bailable offence" means any other offence;
While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.
When a person is accused of charge/s of crime/s then he has a right to apply for the bail for which he can approach to the Session Court or the High Court. There is no limitation about the hierarchy of the court that the applicant first has to appear in session court only. They can approach High Court for the bail High Court usually does not entertain the direct application and ask the applicant to exhaust is right in Session Court first.
The Hon'ble Supreme Court in a case Rasiklal v. Kishore Khanchand Wadhwani 2 held that:
“As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him”.
As the language of the judgment suggests that the police officer is bound to release him on bail if he is prepared to give the bail, bail is a right of the person not a favor in case of bailable offences. In such offences there is no question of any discretion of the court in granting bail. Bail can be claimed as of right and there is a statutory duty imposed upon the Police Officer as well as the Court to release a person on bail if he is prepared to give bail. It is only where the accused is unable to furnish bail then he should be kept in detention which makes the amount of bail as the only condition for release of the accused.
In 2011, The Hon'ble Apex Court in Sanjay Chandra v. CBI 3also opined that: “The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required”.
Principle of Innocence
Every accused is considered to be innocent until he is charged with the crime and decree is passed for him being guilty by the court. The term ‘innocent until proven guilty’ was coined by British Barrister Sir William Garrow. The presumption of innocence is crucial and is described as a ‘golden thread’ in speech of Viscount Sankey, J. in case of Woolmington v. DPP 4Though, the presumption of innocence is not a fundamental right but it’s the cardinal principal in whole criminal jurisprudence5. The person who is being detained has the right to be communicated the ground on which the order of detention has been made on him.
Communication here means imparting to detinue sufficient knowledge of all the grounds of detention which are in nature for him to be arrested. The ground are the reason that make detaining authority satisfied to pass such orders. The constitutional right of the detinue is infringed where any of the grounds supplied earlier is revoked by detaining authorities subsequently. No part of such ground can be held back normal can new ground be added thereto.
Right to be informed of Grounds of Arrest
Article 22 of Constitution of India (Protection against arrest and detention in certain ca2ses)
The person who is being detained has the right to be communicated the ground on which the order of detention has been made on him. Communication here means imparting to detinue sufficient knowledge of all the grounds of detention which are in nature for him to be arrested. The grounds are the reason that makes detaining authority satisfied to pass such orders. The Constitutional right of the detinue is infringed where any of the grounds supplied earlier is revoked by detaining authorities subsequently. No part of such ground can be held back normal can new ground be added thereto.
Right to Representation
Article 22(5) of the Constitution of India provides the right to be represented through which the detinue should be afforded the earliest opportunity of making a representation against the order of detention.
Section 438 of Code of Criminal Procedure defines anticipatory bail but this section does not contain any guideline for passing an order of anticipatory bail. The term anticipatory bail is really ‘a misnomer which is what the section can template is not anticipatory bail’ but may be an order releasing an accused on bail in the event of his arrest.
It is a manifestation of the law that there can be no question of bail unless a person is under detention or custody, therefore, the question of being released when no detention has taken place is misleading the order passed under this section will only be effective after the accused has been arrested. If no arrest has taken place then it cannot be called a bail.
The objective that is achieved by section 438 of Code of Criminal Procedure is that the moment the person is arrested has already obtained an order from the session judge of the High Court so he will be immediately released without undergoing any period in jail that could happen if he has not applied for or the anticipatory bail to get bail. Offence is to be non-bailable offence and the only authorities which are empowered to grant bail under this section of Code of Criminal Procedure are the Court of Session and the High Court.
Right to bail to juvenile is granted under the Juvenile Justice (Care and Protection of Children) Act of 2015(continued to be called Act of 2015 for further reading of the Note). Section 12 of the act of 2015 is ‘Bail to a person who is apparently a child alleged to be in conflict with law’. But the act only speaks for the situation where the accused has been arrested, i.e. post-bail but no provision for pre-bail or the anticipatory bail defined under Section 438 of Code of Criminal Procedure is provided. Section 12 of the Act of 2015 is silent about the right of juvenile to get a bail before the arrest is made.
The question that arise here is-
Does the Act of 2015 takes away the power and jurisdiction of High court And the Sessions Court under Section 438 of Code of Criminal Procedure? Juvenile Justice system is made to protect the interests of the juvenile. Even when a juvenile in conflict with law is apprehended or arrested by the police 5 according to clause 10 of the Act of 2015, the mandate of the Act is that such juvenile shall be placed under the charge of the special juvenile police unit or the designated Police Officer. Chapter IV of the Act 2015 therefore comes into play when the juvenile is arrested and the procedure of keeping the juvenile in a specially protected environment is mandated.
Section 12(1) of the Act of 2015 begins with “notwithstanding anything contained in Code of Criminal Procedure ”, this non-obstante clause has overriding effect against the Code of Criminal Procedure as the language of the clause suggests. Under Section 438 of Code of Criminal Procedure, the accused can apply for anticipatory bail if he anticipates it but a juvenile is denied of the same right. Section 438 of Code of Criminal Procedure is read as Direction for grant of bail to person apprehending arrest. (1)When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
The term ‘any person’ is not defined in this act but in Indian Penal Code ‘Person’ is explained which do not exclude juvenile from its meaning. If it is interpreted taling Section 12 of the Act of 2015 that the juveniles do not have any right under Section 438 Code of Criminal Procedure and to move any application or to invoke the jurisdiction of the Court under Sessions Court or The High Court then it will amount to taking that the intention of legislature under the Act of 2015 appears to protect the juvenile but not to treat him at par with the other persons and does not come in any conflict to suppress the right of juvenile that is guaranteed to him under the provisions of Section 438 Code of Criminal Procedure.
Section 12 of the Act of 2000 was considered and predominantly but it was after the case of Sandeep Singh Tomar 6 that the Act of 2000 do not give any power to Board which is equivalent to Section 438 of Cr.P.C., and thus the Board has no jurisdiction to decide the application u/s 438 of Cr.P.C.
Taking the conflict of jurisdiction between Section 12(1) of Act of 2015 and Section 438 of Code of Criminal Procedure the Hon’ble Apex Court held in the case of Sudhir Sharma S/o v. State of Chhattisgarh that the terminology used in Section 12(1) indicates that it does not relate to concept of anticipatory bail. However, the said provision excludes the operation of the Code of Criminal Procedure, but that exclusion pertains only to a juvenile who is either arrested or detained or appears or is brought before a Board but not to a juvenile apprehending arrest.7 Thus, after this case I was made clear by Hon'ble Shri Justice Goutam Bhaduri that right to anticipatory bail under Section 438 of Code of Criminal Procedure is also available to a juvenile, taking a further step towards providing bail as a right and jail to be an exception.
1)Law Lexicon by Ramnath Iyer (3rd Ed.).
2)AIR 2009 1341.
3) (2012) 1 SCC 40.
4) (1935)UKHL 1.
5)Ranjit Singh v. State of Maharashtra.
6)Section 10 of Act of 2015
7)2014 (IV) MPJR 49