GOVERNMENT OF INDIA
LAW COMMISSION OF INDIA
Report No.268

Amendments to Criminal Procedure Code, 1973 –Provisions Relating to Bail

May 2017

CHAPTER – I

Introduction

 1.1 In the recent times, bail in India is a highly debated issue. There are number of reports that shed light on the state of the criminal justice system in India. The epigraphs below captures the state of affairs aptly:

…[i] if more than 50% of all detainees, and in some countries more than 70% are in pre-trial detention…, something is wrong. It usually means that criminal proceedings last far too long, that the detention of criminal suspects is the rule rather than the exception, and that release on bail is misunderstood by judges, prosecutors and the prison staff as an incentive for corruption… 1

Here the rod is, as it were, held ‘in terrorem’ over the evildoer, innocuous so long as he behaves well, but ready to descend at any moment if he breaks his promise of good behaviour, for if he does, his bail can be forfeited2.

 1.2 Historically, bail was a tool to ensure the appearance of the person accused of an offence at trial or to ensure the integrity of the process by preventing such a person from tampering with evidence or witness. Under the Criminal procedure Code of 1973 (hereinafter Cr.P.C.), the police, prosecutors magistrates and judges have been enjoined to exercise the best judgement and discretion within the confines of the law for ensuring the appearance of the person accused of an offence without jeopardizing the interests of the society.

1.3 In general parlance, bail refers to release from custody, whether it be on personal bond or with sureties. In Moti Ram v. State of Madhya Pradesh,3 the Supreme Court clarified that the definition of the term bail includes both release on personal bond as well as with sureties. It is to be noted that even under this expanded definition, ‘bail’ refers only to release on the basis of monetary assurance—either one’s own assurance (also called personal bond or recognizance) or third party’s sureties.

 1.4 Personal liberty and the rule of law find its rightful place in the Constitution in Article 22 which includes measures against arbitrary and indefinite detention. It further provides that no person shall be detained beyond the maximum period prescribed by any law made by the Parliament. Even with the adoption of an elaborate procedure by the judiciary to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system giving rise to the notion that the bail system is unpredictable.

 1.5 Based on the recommendations of the Law Commission in its 41st Report on the Code of Criminal Procedure4 – the law relating to bail got suitably modified, in tune with the constitutional objectives and sought to strike a fine equilibrium between the ‘Freedom of Person’ and ‘Interest of Social Order’. The provisions namely sections 436, 437 and 439 of Chapter XXXIII Cr.P.C. were streamlined in 1973. In last few decades, the societal contexts, its relations, changing pattern of crimes, arbitrariness in exercising judicial discretion while granting bail are compelling reasons to examine the issue of bail and to chart a roadmap for further reform.

1.6 Bail in its essence is a fine balance between the right to liberty of the person accused of an offence and the interests of society at large. Thus, the task ahead would not only include stricter bail legislations optimal for dealing with the growing rate of crime, but at the same time making them equitable. This will harmonise the bail legislations with the current socio-legal problems and ensure that under-trials and indigent persons have access to justice.

A. Context and Scope of Review

1.7 The Department of Legal Affairs, Ministry of Law and Justice, Government of India, vide its letter dated 11.09.2015 forwarded a note from the Minister of Law and Justice dated 01.09.2015, on the need for a Bail Act in India. The Department made a reference to the Law Commission “to examine the desirability of having a separate Bail Act, keeping in view the similar provisions in the United Kingdom and other countries.” Later however, the Law Commission vide letter dated 21.12.2016 was referred to achieve the objective by bringing necessary changes in the existing provisions of the Cr.P.C.

1.8 While the bail laws in India are refined in many ways through developments in law, a great deal remains to be accomplished. At the behest of the Ministry of Law and Justice, Government of India, this Law Commission of India has undertaken the task of reviewing the prevalent law and procedure on bail. Recognizing the fact that reforming the criminal justice system would be time-consuming, the Law Commission considers it appropriate to address issues relating to bail on a priority basis. The reason for prioritising this particular review was the recognition of the fact that there is a substantial public interest involved. More importantly, it has an impact on concept of rights in jurisprudence and the Indian constitution. In pursuance of the above mandate, the Commission entered into consultation with various stakeholders like Bureau of Police Research and Development (BPR&D), Judiciary, Indian Law Institute, academicians, lawyers and public prosecutors to have comprehensive view of this issue5.

B. Statistical data and analysis

1.9 The data collected regarding prison population in India represents a grim scenario. It indicates that 67 per cent of the prison population is awaiting trial in India. Inconsistency in bail system may be one of the reasons for the over-crowding of prisons across the country and giving rise to another set of challenges to the Prison Administration and ‘State’ thereto. Freedoms as guaranteed under Part III of the Constitution has a unique relation with the ideas and objectives enshrined in the Preamble of the Constitution of India i.e. Justice – economic, social and political. It remains one of the solemn duty of the republic and its realisation in its full sense is one of the cherished goal. It has become a norm than an aberration in most jurisdictions including India that the powerful, rich and influential obtain bail promptly and with ease, whereas the mass/ common / the poor languishes in jails.6 Thus, it is one of the malaise which is affecting the common citizens and family thereto, which not only deny the basic tenets of justice’ but even human dignity is at stake. A majority of under-trials (70.6 per cent) are illiterate or semi-literate.7 In the absence of data regarding economic status of prisoners, ‘literacy’ serves as a useful proxy to appreciate that, the majority of under-trials belong to the socio-economically marginalized groups.

1.10 Various reports from the Ministry of Home Affairs show that a total of 2,31,340 under-trial prisoners from various States and Union Territories were lodged in jails for committing crimes under Indian Penal Code (IPC), and 50,457 were under-trials under special laws, e.g. Customs Act of 1962, Narcotic Drugs and Psychotropic Substances Act of 1985, Excise Act of 1944, etc.8. A large number of 12,92,357 under-trials were released during 2015 out of which 11,57,581 were released on bail.9

1.11 The right of a fair trial requires moderation not only to the person accused of an offence, but also consideration of the public and society at large as represented by the State. It must also instill public confidence in the criminal justice system, including those close to the accused person, and those affected by the crime.10 Imprisonment rates widely varies around the world; for instance, the incarceration rate in US is 707 per 100,000 of the national population, while in India it is 33 per 100,000 of the national population. 11 Thus, even after adjusting for different factors and indices, it may be surmised that India has one of the lowest imprisonment rates.

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