CHAPTER - I

BAIL IS FUNDAMENTAL AND CONSTITUTIONAL RIGHT

A CRITICAL EXAMINATION OF THE DEPRIVATION OF LIBERTY OF A

CITIZEN BY REFUSING A BAIL AND THE TORTUROUS EXPLOITATIVE
MODE OF THAT DEPRIVATION BY THE CRIMINAL JUSTICE SYSTEM.

INTRODUCTION:

On account of refusal of bail and consequent Police Custody Remand; the

torture in police interrogation cells follows in India. At least one thousand accused
men are killed in police custody and accused women are raped in police custody.
Every year over one thousand innocent persons die in police custody and magisterial
custody due to cruel and inhuman interrogation methods adopted to elicit admission
of crime. Asian Centre for Human Rights in its report, Torture in India 2011,
released recently stated that a total of 14,231 persons i.e. more than four persons per
day died in police and judicial custody in India from 2001 to 2010. This includes
1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-2002
to 2009-2010 as per the cases submitted to the National Human Rights Commission
(NHRC). In Indias prisons Lock up deaths are regular features in Indias police
stations. In May 2013 in State of Uttar Pradesh an under trial, by name Balvir whose
rectum was filled with petrol by injecting the fluid through a syringe by the sub
inspector of Awagarh police station died in a hospital in Lucknow. Such bizarre
tortures take place on routine basis. Faiz Usmani, a suspect of 13/7 serial blast in
Mumbai who was arrested on 16 July 2011 died during interrogation by Mumbai
Police in police interrogation cell. Director General Police ordered enquiry through
CID. In another recent case minority community person Khalid Mujahid, an accused
in serial blasts that had rocked Lucknow and Faizabad courts,

In November 2007, died on May 18 2013 after he fell sick and fainted near Barabanki
border while being escorted to Lucknow jail after a court hearing. Uttar Pradesh
Government suspended 9 police personnel including Sub Inspector Ram Avadh. In
Aurangabad (Maharashtra) terror suspect Mirza Rizwan Baig committed suicide due
to pressure of interrogation and fear of torture. Torture and deaths are routine in
Indias police stations.

Under-trials are vulnerable to attacks at the hands of hardened convicts

serving longer terms in the prison, Iniatullas case. Mercy of repeat under-trials and
hardened criminal who have been convicted and are serving terms. Delhi bus gang
rape. Accused Ram Singh was found hanged in Tihar jail in March 2013.

The Tihar jail authorities say he hanged himself, while the relatives of
deceased say he was murdered.

Most gruesome murder in police custody was done by Maharashtra police of a

young software engineer Khwaja Yunus born at Parbhani. The main accused in
custodial murder API Sachin Waze has been suspended and booked for murder. Waze
put up a story that Yunus escaped from police van when he was being taken to
Aurangabad for investigation. Then CID found that the story of escape was fake and
Yunus was killed and his body was burnt in Asangaon forest in Raigad district.
Surprisingly there are encounter specialists in Mumbai Police who kill gangsters in
encounters.

Feeble Indian Response to UN Convention against Torture

India signed the UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984) after a gap of 13 years on 14 October
1997, but has not ratified the treaty yet. The Government in India has no political will
to ratify the UNCAT treaty since the political bosses feel that torture in police custody
by police is a tool to take revenge of political opponents. Bill to ratify UN CAT 1984
(United Nations Convention against torture) was drafted in a lackadaisical manner
and it is under consideration of the government at present. Torture was to silence
people and make sure that they did not raise their voice against injustice and remain
docile, observed the jury at a public hearing on all forms of custodial injustice in
custodial institutions in Madurai Tamil Nadu,
 Criminal Procedure Code 1973 which is procedural manual for trying criminal
cases in India is archaic, outdated manual if we compare the bail laws bad bail
procedure in Australia, United Kingdom or United States of America. Ample
literature is available on the internet web sites .Indian criminal procedure has totally
wiped out presumption of innocence from the bail procedure. The presumption of
guilt is the main plank of Indias Criminal Procedure law, Indian law on bail is
Section 167 of Criminal procedure Code. This code, as has been said above, presumes
all people arrested by police as hardened criminals. There is provision of up to 14
days of police custody. Most often the accused person does not survive the beating
and other third degree methods of eliciting admission from the accused and many die
during interrogation. If the accused dies in custody a false scene of suicide is
immediately created. Every day there is at least one news item in the newspaper about
some police station where the relatives of the dead are not taking the dead body and
are squatting before the police station.

Almost three decades after the Supreme Court declared the right to speedy
trial as a fundamental right, is implicit in the wide area and the content of Article 21
of the Constitution, the situation with regard to pending cases has in fact failed instead
of the sign of improvement. It does not mean that the Indian courts are not making the
necessary efforts to improve the situation. But, in spite of the best efforts on the part
of the justice system, there is no increase in the number of open cases or the number
of years for which a thing is, is still on; on the other hand, there has been a continuing
trend toward the further drop/fall over the years.

The main culprit is the quantity, i.e., the grossly insufficient number of judges
at all levels to match the ever-growing number of cases which keep coming before the
courts for their disposal year after year while the existing ones never appear to be
getting reduced, notwithstanding the fact that the annual disposal rate of cases by
courts has improved over the years as comparable to the annual number of fresh cases
coming to courts.

The blame lies mostly on the executive, the Governments at the Central and
State levels, for not setting up sufficient number of courts citing the reason of lack of
funds mainly. That nothing can be farther from truth would need just one small
example to illustrate. The Government can spare a whopping amount of about Rs.
2,45,000 crore (more than US$ 58.0 billion) on oil subsidies every year, including
explicit and implicit subsidies to the consumers, even if we forget substantial amounts
spent on other subsidies, such as fertilizer subsidy, food subsidy, etc., or on other
avoidable expenditures; but the Government is not able to find a meager amount of
Rs. 1426 crore only (only about US$ 0.3 billion) per year which is what is required to
approximately double the strength of judiciary in India! Even this amount of Rs. 1426
crore per annum, calculated reportedly using the number of additional judges required
as per the estimate of the Chief Justice of India, is necessary only if the salaries of
judges are increased substantially, otherwise at current costs at the time of writing
these words, this amount was calculated only at Rs. 180 crore. To say that the
Government lacks financial resources for such a paltry amount for such an important
task is nothing but in insult to India, one of the largest economies in the world. And,
yet, the Government dithers on setting up new courts. Such being the situation, what
is wrong of one draws the irresistible conclusion that the Government is simply not
interested to have an efficient judiciary, for reasons all too well known?

The unfortunate part of the story, with great respect, is that the Supreme Court
of India, which is otherwise quite eloquent in the field of what is commonly called
judicial activism to ameliorate the miserable conditions of a billion-plus India, and
rightly so, has not done sufficient to compel the Government to improve the judiciary
infrastructure by issuing an appropriate Mandamus and then following it up for strict
compliance thereof, insptie of the fact that many opportunities came before the
Supreme Court when it could and should have done so starting with the Husainara
Khatoon case6 about three decades ago wherein the Supreme Court came quite close
to issuing such directions to improve the judicial infrastructure, but unfortunately, it
failed to live up to the expectations which it had raised itself by elevating the right to
speedy trial to the pedestal of a fundamental right.

Right of Speedy Trial:

What is the worth of a fundamental right if it cannot be implemented for not

one or two but for tens of millions of people? And, not for a few days, but for years
together? How does it make a difference whether it is a fundamental right or a normal
statutory right or no right at all, if it is only for academic purposes and not for
practical use by an individual? Yes, we are discussing the right to speedy trial. And,
while the failure of the criminal justice system in India to effectively implement the
said fundamental right to speedy trial affects not only those persons who continue to
languish in jail for years despite presumed to be innocent by the system itself until
completion of the trial, but also those who were comparatively fortunate at least in
getting bail even though they also have to face the anxiety of waiting for completion
of trial for years together, it is definitely the ones who are not able to get bail for long
durations who suffer the most. Let it be misunderstood that speedy trials help only the
accused persons, whether on bail or otherwise, it should be clarified that the society,
in fact, is the biggest beneficiary of speedy trials.

Just to give an illustration, in one of several such cases noticed by the author
in his earlier avatar, one particular accused person after his first offence of murder,
came out on bail and committed 3-4 other serious offences, again got arrested and got
bail, and committed another 3- 4serious offences, and in this way, he committed
something like 18 serious offences before ultimately he was convicted in his first
murder case after a prolonged trial after which he was finally sent to jail thereby
putting an end to the series of serious offences being committed by him! The moral of
the story is, if only the trial in his first murder case could have been expeditiously
completed and he had been sent to jail at an early date, the society would definitely
have been saved from his subsequent 17 serious offences. Another big advantage to
the society from speedy trials is the much improved conviction rate. With trials
getting delayed for several years or decades, some witnesses might have died in the
meanwhile, some might have become missing or shifted out to unknown places, some
witnesses might have forgotten the intricate details of the case, some of them might
have lost interest and motivation in the case, some of them might have been won over
by accused over the period of time, some documents might have become missing or
might have been stolen or might have been eaten away by insects or might have been
defaced being no more worthy of use for evidence purposes; and like.

Normally the end result of all these developments due to delayed trial is
nothing but an acquittal even in a case where conviction should otherwise have been
the only possible outcome due to strong evidence. A speedy trial also helps the courts.
A delayed trial is like a vicious circle. Delay in trial gives rise to numerous
miscellaneous applications revision petitions, appeals, SLPs, etc., for the purposes of
Bails, cancellation of Bail, modification of conditions of bail, discharge applications
return of property, etc.

For example, if a trial is delayed by say 10 years and the accused is not bailed
out, one may see a series of several bail applications, revision applications, and a few
odd SLPs, only for seeking bail. A speedy trial can obviate the need for many of such
miscellaneous matters, thereby drastically reducing the number of matters filed in the
courts and saving precious time of the courts for more constructive purposes, which
could indirectly result into further speedier trials. Thus while a delayed trial is a
vicious circle, a speedy trial is like a virtuous circle.

Another big advantage of speedy trials, for the judiciary, is the improvement
in its image. Whether we like it or not, the fact remains that the biggest factor,
contributing to whatever negative image the judiciary in India has, is the delayed
process of law. If a majority of the consumers of the justice system in India are
dissatisfied with the delivery of justice, despite good work done by judiciary, then the
biggest reason for it is the delayed proceedings in courts.

A fast trial can definitely help to improve this situation. Right to speedy trial is
the fundamental right and if the process is delayed than it would be considered as the
denial to justice and accused person shall be admitted to be released again on bail.
But, for the question of interpretation, who shall be held responsible for the cause of
the delay whether the public prosecutor or the accused, it is to be left to the judiciary
to decide as it is in the exercise of judicial discretion for granting of the security or
bail. Irrefragably, the delay in the process is an important factor to be noted at the
time of the examination of the application for bail and no court can such a myopic
(narrow-minded) view in this respect, but at the same time it cannot be
ignored/enlarged to make sure the role of the accused, in causing the delay. The old
principle is that he who has the sole discretion, must not take the advantage to give a
decent burial to the concession of the Bail, to the accused who has made a deliberate
attempt to cause delay with ultimate intentions of taking the advantage of such a
delay. In one case, in the direction have been issued by the Court for the removal of
case within a specified time, but later a counter criminal case was clubbed together at
the instance of the accused while almost all the witnesses were examined. It was
noted that the prosecution was not responsible for the delay caused by the process of
the above mentioned case and the defendant was not entitled to be release or enlarged
on bail on the ground of the delay in the process/trial.

An accelerated criminal proceedings is a fundamental right of the accused,

especially if he is in the prison. No accused can be kept in prison for an uncertain
time, as under-process caught, especially if no fault is present. In criminal
proceedings where the accused is in prison, it is the duty of the officer-in-charge to
end the case as soon as possible, and take the statements of the witnesses for the
prosecution without any delay, instead of prolonging it day after day, and that all
efforts are to be made by the police to the safety of the witnesses on the date fixed for
recording their statements.9 Article 21 of the Indian Constitution recognizes the right
of every citizen for a speedy trial regardless of the innocence or guilt of the accused.
Lengthy process is the most traumatic, to an innocent person. The objective of the
new Cr.P.C is the fast investigation and prosecution of criminal offenses. Indefinite
detention of the accused, even serious criminal offenses, is against the legislative
intent and the object of the Code of Criminal Procedure.

Procedural constraints in the Code are designed to protect the rights of the
accused. Section 309, of CR. P. C. has a mandate, to the trial Court that, the
procedure for each case or study/trial or legal proceedings shall be conclude as soon
as possible, in particular, where the examination of the witnesses has once begun, it
will continue from day to day until all Witnesses have been examined in the presence,
unless the Court finds the postponement of the same on the following day , the
necessary for reasons to be recorded. Section 437 (6) of CR. P. C. has a mandate rule
that, the judges in every case has to consider that where the accused person has not
been brought before them or where there has been not recorded the evidence within
60 days form his arrest or detain in such case the accused shall be released on bail if
the trial against an accused person of a non-bailable offense is not within a period of
sixty days after the receipt of the first taking of evidence on the other hand, In the case
of the Section 167 (2) CR P. C. , WHICH IS PART OF THE INVESTIGATION, it is
also has a mandate rule that, the Magistrate may release the accused on bail if the
investigation is not concluded within the period of sixty days of ninety days, as the
case may be.

Right of Bail:
 Bail is the matter of judicial discretion. Taking into account that whether to
grant bail or not, is the conflicting statements concerning the accused individual
freedom/liberty and the greater social interest must be taken into account. Under
Article 21 of the Indian Constitution recognizes the fast/speedy trial as a right of
every citizen of our country. The new criminal procedure effective negotiation, If
there delay in the conclusion or the investigation it means that it is breach of the
Constitution guarantees a fair, just and equitable procedure is actually a fundamental
right and the fast/speedy trial.

Article 21 of the Indian Constitution say criminal prosecution shall be put to

end as quick as it can be by way of speedy/fast trial. This includes all of the phase,
that is, the Investigation, Enquiry, Trial, Appeal, Review, Revision and retrial, in case
of delay it must be determined all the facts, shall be taking into account, all the
circumstances including in the offense, inter alia, the work load of the Court of Justice
also depends upon the local situations, etc.

But only delay in proceeding alone by itself can-not the ground to be

immediately release on bail. All other related conditions must be taken into account.
Article 21, of the Indian Constitution is related with deprivation of individual liberty,
its significance is of serious concern, and it is only permitted in conditions or
authorizes where the Act is reasonable and the objectives is for the good of the
Community. Article 19. Says Reasonableness assumes that deprivation from
freedom/liberty by refusing or not granting bail shall not be for punitive purpose but
for the bi-focal interest of justice to the individual involved and society affected. If
ever the time is to come where the prisoners after a period of time has to wait forever
at the kindness/mercy of the state, while waiting for a gold key to open the doors of
the prisons, the courts may be sown the revolution. More than likely wearing or
complications can be avoided. Something must be done urgently.

Meaning of Bail:

Literal meaning of bail means: Security, Bond, Payment and Financial Guarantee

Bail, although being a legal term it is used by both people of the society 1) law
men and 2) lay men, however, this has not been statutorily clear. Conceptually, that it
is still interpreted as the assertion, assumption, and denunciation as restrictions put by
the state on freedom of individuals. The main purpose is for the presence of the
accused arrested and is available for punishment if held convicted. If the accused
assures that he will be present at each and every trial for his case then it is quite
possible that he would be released on bail and allowed him his right of liberty during
the trial.

Bail is one of the ways/method by which an accused person can be set to enjoy
his liberty/freedom in order to avoid a prison sentence. The term bail literally means
appearance of the prisoner to release/safety. With this idea, the word bail has been
taken from an old French verb bailer, which means to give or to deliver. Although
another view is that it is a Latin term "bajulare" which means "to bear a burden".
Stroud judicial dictionary spells the valley containing the details on each other as
follows: if the man be arrested, or indicted that felony, suspicion of felony, or other
event, it means he is restricted or stop from his liberty or freedom. The law provides
a bailable, which offers or asks surety to those who have the authority to grant bail to
him, sureties shall be bound by the accused to the kings a certain sum of money, or
organize a body for body, that he will appear before the king or court as the case may
be at the next trial or session to meet the goal of justice. The bonds in the sureties, as
referred to in the above. Bail is a conditional release on liberty/freedom to an accused
who ensures that the accused who or on behalf of whom undertake, is present on the
trial.

According to Blackstone:

"The arrest of a person is only to compel the appearance of the person arrested
before the court, where the sheriff detains his person or takes sufficient security for
his appearance such thing is called bail because the defendant is bailed, I bailed upon
their giving security for his appearance, and then they think that is still the friendly,
instead of objective was arrested.

Bail, in the same way should be considered as a mechanism through which the
State will assess the Community function in order to ensure the prisoner, and, at the
same time, it includes participation of the Community in the judiciary.