-Atharva Dandekar & Nazaqat Lal
Meaning
Bail is the release of a person (suspected, accused or convicted of an offence) from police custody or judicial custody upon certain conditions.
Section 2 (1) (b) of the Bhartiya Nagarik Suraksha Sanihita, 2023 (“BNSS”) defines bail as under.
(b) “bail” means release of a person accused of or suspected of commission of an offence from the custody of law upon certain conditions imposed by an officer or Court on execution by such person of a bond or a bail bond;
Objective and purpose
The issue of bail engages fundamental considerations of liberty, justice, public safety and burden on the public treasury.[1]
From the perspective of the accused, being enlarged on bail serves as a safeguard of liberty.
From the perspective of the victims and State, the paramount concern is that the trial or justice should not be compromised in any manner including the accused tampering with evidence, intimidating witnesses, absconding or being a threat to society at large.
Types of bail include regular bail, anticipatory bail, interim bail, medical bail, and default bail.
Factors and principles considered while hearing an application of bail
Some factors and principles include:
(a) prima facie case or reasonable ground to believe that the accused has committed the offence,
(b) the nature of accusations/role of the accused,
(c) the nature of evidence in support thereof,
(d) the maximum punishment the conviction will entail and the time already spent by the accused in incarceration,
(e) antecedents,
(f) danger of the accused absconding or fleeing, if released on bail, and
(g) reasonable apprehension of evidence tampering and witness intimidation.
In practice
While the aforementioned factors and principles guide judges, their application remains inherently subjective. One has to attend court to fully grasp the element of judicial subjectivity involved.
The assistance provided by the prosecution lawyers is often deficient. While it is difficult to say to what extent the outcomes would be different if the prosecution lawyers provided more valuable assistance, it is definitely something to think about. Factors favouring the grant of bail are vociferously put forth by the accused’s lawyer but factors that would result in denial of bail are not always canvassed with the same force.
Public perception
When the offence involved draws public attention and outcry, grant of bail is often frowned upon. It is seen as a license to the accused to freely roam about instead of languishing in jail. Grant of bail is often seen as a clean chit despite it usually being granted pre-trial. Bail is not acquittal or a finding on facts and evidence. Judges have to carefully balance the right to liberty of the accused with the rights of the victims, State and public at large.
Bail is always granted subject to certain conditions such as attending the concerned police station and trial court on a periodic basis, not entering the territorial limits within which the victim resides, etc. There is also a provision for cancellation for bail.[2] Grounds for cancellation of bail include violation of bail conditions, commission of any act that threatens fair trial and obtaining bail by fraud or suppression of material facts.
Conclusion
While bail jurisprudence has substantially developed, the element of judicial subjectivity remains significant.
[1] Deepak Yadav v State of Uttar Pradesh (2022) 8 SCC 559
[2] Section 484
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