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Context
- Lamenting that jails across the country were flooded with undertrial prisoners, the apex court urged the Centre to introduce reforms in the bail laws.
- It stated that bail applications should be disposed of within two weeks while those for anticipatory bail be decided within six weeks
What is Bail?
- Bail is the conditional release of a defendant with the promise to appear in court when required.
- The term also means the security that is deposited in order to secure the release of the accused.
- In India’s legal world, the term offense has been categorized as bailable offenses and non-bailable under the Code of Criminal Procedure.
Why need Bail?
- Bail is a fundamental aspect of any criminal justice system.
- The practice of bail grew out of the need to safeguard the fundamental right to liberty.
- Liberty is the right of one whose guilt has not yet been proven.
Types of Bail in India
- Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
- Regular bail: Regular bail is generally granted to a person who has been arrested or is in police custody. A bail application can be filed for regular bail under sections 437 and 439 of CrPC.
- Interim bail: This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
- Anticipatory bail: Anticipatory bail is granted under section 438 of CrPC either by session court or High Court. An application for the grant of anticipatory bail can be filed by the person who discerns that he may be arrested by the police for a non-bailable offense.
Conditions for Grant of Bail in Bailable Offences
- Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offense under IPC can be granted bail if:
- There are sufficient reasons to believe that the accused has not committed the offence.
- There is sufficient reason to conduct a further inquiry in the matter.
- The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.
Conditions for Grant of Bail in Non-Bailable Offences
- Section 437 of Code of Criminal Procedure, 1973 lays down that the accused does not have the right to apply for bail in non-bailable offences.
- It is discretion of the court to grant bail in case of non-bailable offences if:
- The accused is a woman or a child, bail can be granted in a non-bailable offence.
- There is a lack of evidence then bail in non-Bailable offenses can be granted.
- There is a delay in lodging FIR by the complainant, bail may be granted.
- The accused is gravely sick.
What is the recent ruling about?
- The Supreme Court underlined that arrest is a draconian measure that needs to be used sparingly.
- The ruling is essentially a reiteration of several crucial principles of criminal procedure.
Why bail needs reform?
- Huge pendency of undertrials: Referring to the state of jails in the country, where over two-thirds lodged are undertrials,
- Indiscriminate arrests: Of this category of prisoners, majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less.
- Disadvantageous for some sections: They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them.
- Colonial legacy: Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.
Is there any bail law on bail?
- The CrPC does not define the word bail but only categories offenses under the Indian Penal Code as ‘bailable’ and ‘non-bailable’.
- The CrPC empowers magistrates to grant bail for bailable offenses as a matter of right.
- This would involve release on furnishing a bail bond, without or without security.
And what is UK law?
- The Bail Act of the United Kingdom, 1976, prescribes the procedure for granting bail.
- A key feature is that one of the aims of the legislation is “reducing the size of the inmate population”.
- The law also has provisions for ensuring legal aid for defendants.
- The Act recognises a “general right” to be granted bail.
What has the Supreme Court held on reforms?
The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary:
- Separate law on Bail: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
- Uniform exercise of discretionary powers: It also highlighted that magistrates do not necessarily
- Avoid indiscriminate arrests: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests.
Way forward
- Bail Law would certainly take care of not only the unwarranted arrests but also the clogging of bail applications before various courts.
- With restrictive bail conditions and a conservative view on bail, we may forget the meaning of personal liberty, which is the greatest of human freedoms enjoyed in India.
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Prakhar Chandrakar, AIR 102, UPSC 2021. Civilsdaily Mentorship Student
