Indian Bail System

‘‘Helpless Prisoners’’

I Mallikarjuna Sharma

In the comment “Helpless Prisoners” [Frontier, January 22- 28, 2023 issue] it was mentioned that one "Jai Prakash, 47, a resident of Uttar Pradesh’s Chaundali district, reportedly had to spend over 22 years in judicial custody without a trial because there was none to furnish a surety bond of Rs 30,000. How many Jai Prakashs are languishing behind bars as under-trials and pre-trials is anybody’s guess".

 For one thing the Supreme Court (vide Bhagwati J's judgment in Hussainara Khatoon case, 12 February 1979, (AIR 1979 SC 1360, 1979 SCR (3) 169) had taken care of such situations and directed that such persons should be released on personal bond. Some excerpts:

"One reason why our legal and judicial system continually denies justice to the poor by keeping them for long years in pretrial detention is the highly unsatisfactory bail system, which suffers from a property oriented approach. It proceeds on the erroneous assumption that risk of monetary loss is the only deterrent against fleeing from justice. Even after its re-enactment, the Code of Criminal Procedure continues to adopt the same antiquated approach. Where an accused is to be released on his personal bond, it insists that the bond should contain a monetary obligation requiring the accused to pay a sum of money in case he fails to appear at the trial. Moreover, as if this were not sufficient deterrent to the poor, the courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay the amount of bail in case the accused fails to appear to answer the charge. [174 E-G]

This system of bails operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting them released on bail. The poor find it difficult to furnish bail even without sureties because very often the amount of the bail fixed by the Court is so unrealistically excessive that in a majority of cases the poor are unable to satisfy the police or the Magistrate about their solvency for the amount of the bail and where the bail is with sureties, as is usually the case, it becomes an almost impossible task for the poor to find persons sufficiently solvent to stand as sureties. The result is that either they are fleeced by the police and revenue officials or by touts and professional sureties and sometimes they have even to incur debts for securing their release or, being unable to obtain release, they have to remain in jail until such time as the court is able to take up their cases for trial, leading to grave consequences, namely, (1) though presumed innocent, they are subjected to psychological and physical deprivations of jail life, (2) they are prevented from contributing to the preparation of their defence and (3) they lose their job, if they have one, and are deprived of an opportunity to work to support themselves and their family members with the result that the burden of their detention almost invariably falls heavily on the innocent members of the family. [174 G-175 D]

The bail system, as it operates today, is thus a source of great hardship to the poor and if the civil effects of poverty are to be eliminated and a fair and just treatment assured to the poor in the administration of justice, it is imperative that the bail system should be thoroughly reformed so that it should be possible for the poor, as easily as the rich, to obtain pre-trial release without jeopardizing the interest of justice. [177 C-D]

Risk of monetary loss is not the only deterrent against fleeing from justice. There are also other factors which act as equal deterrents against fleeing. Therefore, the courts, even under the law as it stands today, must abandon the antiquated concept under which pre-trial release is ordered only against bail with sureties. If the court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. [177 E, G, H]

To determine whether the accused has his roots in the community which would deter him from fleeing, the court should take into account the following factors concerning the accused: (1) The length of his residence in the community, (2) his employment status, history and his financial condition, (3) his family ties and relationships, (4) his reputation, character and monetary conditions, (5) his prior criminal record including any record of prior release on recognizance or on bail, (6) the identity of responsible members of the community who would vouch for his reliability, (7) the nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non-appearance, and (8) any other factors indicating the ties of the accused to the community or bearing on the risk of willful failure to appear. [178 A-E]

If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. If facts are brought to the notice of the court showing that, having regard to the condition and back-ground of the accused, his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious, the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offence is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it fixes should not be based merely on the nature of the charge. The decision as regards the amount of the bond should be an individualised decision depending on the individual financial circumstances of the accused and the probability of his absconding. The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court–and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often result in denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond. [178 F-179D]".

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Vol 55, No. 35, Feb 26 - Mar 4, 2023