Sie sind auf Seite 1von 54

Poor

&
Bail

?????
In 1996……

– when a Delhi Police team bundled him into a car in Kathmandu, Nepal, Mohammad Ali
Bhat was just 25.
– Bhat, who hailed from Kashmir, was working as a shawl trader in the Nepalese capital.
– From there, he was taken to Delhi, made an accused in the Lajpat Nagar blast case,
and later taken to Rajasthan and named as an accused in the Samlethi blast case.
– This ensured that he spent years in jails in Delhi and Rajasthan.
– On July 22, 2019 the Rajasthan High Court declared Bhat to be innocent
– Found "not guilty" at 48, Bhat has lost 23 prime years of his life to prison due to India's
lethargic justice delivery system.
In another case,

– a lower court in Delhi in 2010 concluded that Mohammad Maqbool Shah was
innocent.
– By then, he had languished in jail for 14 years.
– Like Bhat, Shah too was arrested in 1996 as an accused in the Lajpat Nagar blast
case.
– He was arrested as a teenager, spent 14 years in jail, and at the age of 29, was
told that he was actually innocent.
– When he returned home in Kashmir, he found out that his father and sister
were dead.
Cont…

– "If this justice was delivered at the right time, my career would not have been ruined.
My home is destroyed. My father and my sister are dead," he was quoted as saying
by NDTV.
– In 2017, police in Bijnor, Uttar Pradesh, found that for 10 years, they had imprisoned a
man for a murder he never committed.
– The murder was committed by his brother who was at large.
– The cops arrested Bala Singh, even though his mother, a daily-wage labourer, pleaded
that the police were mistaking Bala for her other son.
– When he was set free, he told reporters he had only one wish: the official who
arrested him should be punished.
What's common in the
stories…..
– of Bhat, Shah and Singh
– is that they were all arrested by police;
– accused of crime(s);
– and languished in jails for years before they were judged innocent.
– But are these exceptions?
– Statistics on Indian prisons reveal that 68 per cent of prisoners in India are those who
have not been convicted by any court for a crime.
– Many among them have to wait for years before the trial court even begins hearing
their cases.
Analysis of the latest reports of the National
Crime Records Bureau (NCRB)……

– shows that jails in India are mostly flooded with young men and women
– who are illiterate or semi-literate
– and come from socio-economically weaker sections of
society.
– More than 65 per cent of undertrial prisoners belong to the SC, ST
and OBC categories.
– Most of them are too poor to even afford the bail fee.
Cont…
– Terming such prisoners as
– "unfortunate forgotten specimens of humanity",
– the Supreme Court had said it was "high time" the government
and judiciary began to realise that
– "in the dark cells of our prisons there are large number of men and
women who are waiting patiently, impatiently perhaps, but in vain
for justice".
– The court said for these people law has become an "instrument
of injustice" and they are the helpless victims of the "callousness
of the legal and judicial system".
Meaning of Bail

– “procure the release of a person


– from legal custody,
– by undertaking that he/she shall appear
– at the time and place designated and
– submit him/herself to the jurisdiction and judgment of
the court.”
…….

– By reading the above definition of bail, it is evident that money and bail
are not connected.
– In India, a large number of the population does not have money to buy food
and clothing, yet they are expected to pay money even for the cases in which
they have the legal right to bail i.e., in the case of bailable offense. 
– As a result of not having enough money a person who is poor is
subjected to the atrocities of the authorities of the jail and he
has to remain behind the bars.
Cont…

– However, for economically weaker sections of the society,


– it is a source of antagonism and negativity due to its indifference to
their lack of resources
– and daily struggles to survive.
– According to the relative deprivation theory, which states
that social change is likely to happen when people feel
deprived, citizens are more likely to engage in deviant
behaviors (sociologist Samuel Stouffer)
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
41st Law commission Report

– 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
Legal Position

– The Criminal Procedure Code, 1973


– does not define bail or the amount of security that is necessary to be paid by
the accused for securing his release.

– Therefore, the amount to be paid for the bail is the matter of discretion

of the court.
– But it is usually seen that the courts ………Their economic plight is not taken
into consideration.
…….

– The only reason that one is denied justice and is kept behind prison is that he

is poor.
– The bail system in India is a property-oriented approach which gives only
one way out of this justice system – money.
– The bail system is very harsh on poor, as only a person with money and
property is capable of getting a bail,
– and when they are unable to pay for the bail, they have to remain in jail for a
greater period.
Cont…

– This results in these people incurring huge amounts of debts that they
take for their release.
– Even though they are innocent, they have to go through physical and
psychological deprivations of jail life,
– They are prevented from contributing to the preparation of their
defense and
– When they are under-trial, they tend to lose their job and thus are
unable to support their family.
– This is the very reason that a large number of populations in India find
this system of bail oppressive.
1977 AIR 2447

– Justice Krishna Iyer raised his voice against the unfair bail system in
India in the
– case of  State of Rajasthan v. Balchand 
– He said that the time has come to rethink the traditional  system of
pecuniary bail.
– It may well be that in most cases an undertaking would serve the
purpose.
…….

“Personal liberty is deprived when bail is refused, is too precious a


value of our constitutional system, that the crucial power to negate it
is a great trust exercisable not casually but judicially with lively
concern for the cost to the individual and the community”.

The constitutional emphasis was made clear in Balchand (1977):

“The basic rule may perhaps be tersely put as bail, not jail”.
1979 AIR 1369

– Further
– Hussainara Khatoon and others v. Home Sec, State of Bihar,
– the Court laid down the ratio
– that when the man is in jail for a period longer than the
sentence,
– he is liable for then he should be released.
Acc to constitution….

– Article 21 of the Constitution ………the right to life and liberty.


– Such right guarantees everyone in the territory of India, life with
all the freedom to enjoy one’s life and liberty.
– But, the refusal of the right to bail or demanding the amount that
a person is unable to pay is said to be an infringement of Article 21
of the Constitution.
Cont…

– (i) Bail is a fundamental right


– (ii) The norm is bail not jail
– (iii) Good reasons, with full explanation in writing must exist for
denying bail.
– By following these norms,
– it can be said that if a person is denied the right to bail due to any
reason, it is the infringement of his right to life and liberty.
…….

– A perusal of the above cases highlights the strong anti-


poor bias of the Indian criminal justice system.
– Courts in many cases have laid down guidelines to be
followed in deciding the amount of bail, but nothing has
been done about it.
– There is an urgent need to review the bail system in the
country so that even the economic condition of the
criminal is kept in mind and it is important for the court
to behave compassionately.
Considering factors…

1) The nature of the offense committed by the accused.

2) His financial condition and employment history.


3) His character, reputation and economic conditions.
4) Prior criminal records, if any.
5) The identity of those who vouch for his reliability.
6) Any other factors, taking into consideration the risk of the criminal’s failure
to appear.
Case Law

Moti Ram & Ors.


v.
State Of M.P
1978 AIR 1594
Facts…

– The petitioner, a poor mason from M.P.,


– pending his appeal in the Supreme Court,
– obtained an order for bail in his favour
– "to the satisfaction of the Chief Judicial Magistrate“
– Magistrate ordered that a surety in a sum of Rs. 10,000/ - be produced
–  The petitioner could not afford to procure that huge sum or manage a
surety of sufficient prosperity. 
Cont…

– The petitioner moved the Supreme Court


– again to modify the original order
– "to the extent that the petitioner be released on
furnishing surety to the tune of Rs. 2,000/- or on
executing a personal bond or pass any other order or
direction"
– deemed fit and proper.
Held that…

– Bearing in mind the need for liberal interpretation in


areas of social justice,
– individual freedom and indigent's rights, bail covers both
release on one's own bond,
– with or without sureties.
– When sureties should be demanded and what sum
should be insisted on are dependent on variables.
Cont.….

– Even so, poor men, young persons, infirm individuals and women
are weak categories,
– and Courts should be liberal in releasing them on their own
recognizance put whatever reasonable conditions they may.
– It shocks one's conscience to ask a mason like the petitioner to
furnish sureties for Rs. 10,000/-.
– The Magistrate must be given the benefit of doubt for not fully
appreciating that our Constitution, enacted by 'We, the People of
India', is meant for the butcher, the baker, the candlestick maker,
the bonded labour and pavement dweller.
Cont…
– Social Justice is the signature tune of our Constitution and the little
man in peril of losing his liberty is the consumer of social justice.
– And the grant of bail can be stultified or made impossibly
inconvenient and expensive if the Court is powerless to dispense
with surety or to receive an Indian bailor across the district
borders as good or the sum is so excessive that to procure a
wealthy surety may be both exasperating and expensive.
– The problem is plainly one of human rights, especially
freedom vis-a-vis, the lowly and necessitates the Supreme Court
to interdict judicial arbitrariness deprivatory of liberty and ensure
"fair procedure" .
Cont…

– Bail covers release on one’s own bond with or without sureties,


as the legal literature, Indian and Anglo-American on bail
jurisprudence lends countenance and the need for liberal
interpretation in areas of social justice, individual freedom and
indigent's rights justifies.
– When sureties should be demanded and what sum should be
insisted on are dependent on variables.
Cont…

a) 'Bail' in s.436 of the Criminal Procedure Code suggests 'with or


without sureties. And, 'bail bond` in s.436 covers own bond
b) 'Bail' in s.437 suggests release, the accent being on undertaking
to appear. When directed, not on the production of sureties.
But s. 137(2) distinguishes between bail and bond, without
sureties.
c) Section 445 suggests, especially read with the marginal note
that deposit of money will do duty for bond 'with or without
sureties'.
Cont…

– Superficially viewed, s. 441 ( 1 ) uses the words 'bail' and 'own


bond' as antithetical, if the reading is liberal.
– Incisively understood, Section 441(1) provides for both the bond
of the accused and the undertaking of the surety being
conditioned in the manner mentioned in the sub-section.
– To read "ail" as including only cases of release with sureties will
stultify the sub-section, for then, an accused released on his own
bond without bail, i.e. surety, cannot be conditioned to attend at
the appointed place.
Cont…

– Section 441 uses the word 'bail' to include 'own bond' loosely as
meaning one or the other or both.
– Moreover, an accused, in judicial custody, actual or potential,
may be released by the Court to further the ends of justice and
nothing in s 441 compels a contrary meaning.
– S.441 and use the word 'bail' generically because the expression is
intended to cover bond with or without sureties;
Cont…

– When the Court of appeal as per the import of s.389(1) may release
a convict on his own bond without sureties, surely, it cannot be
that an undertrial is worse off than a convict or that the power of
the Court to release increases when the guilt is established.
– It is not the Court's status but the applicant guilt status that is
germane.
– That a guilty man may claim judicial liberation pro tempore without
sureties while an undertrial cannot, is reduction ad absurdum.
Case….

Rudul Sah
v.
State of Bihar,
(1983) 4 SCC 141
Significance…

– …….is a landmark judgment in the jurisprudence of state liability.


– It is considered particularly important as it led to the emergence
of compensatory jurisprudence for the violation of fundamental
rights under the Constitution.
– It is noteworthy in this context that there is no express provision
for awarding compensation in the text of the Indian Constitution,
– and that this judgment was on the basis of the Court’s
interpretation of the extent of its remedial powers.
Cont..

– This was the first case since the inception of the Supreme Court
– that awarded monetary compensation to a person for the
violation of his fundamental rights guaranteed under the
Constitution.
– The grant of such monetary compensation was in addition,
– and not to the exclusion,
– to the right of the aggrieved person to bring an action for damages
in civil law or in tort.
Rudul Sah’s…..

– …………..case was a public interest litigation (PIL) case


– filed in the Supreme Court under Article 32 of the Indian
Constitution .
– The petition sought the release of Rudul Sah from illegal
detention,
– and also ancillary relief such as rehabilitation and
compensation
– Rudul Sah was arrested in 1953 on charges of murdering his wife.
He was acquitted by an Additional Sessions Judge, in 1968, who
directed his release from jail, pending further orders.
– Rudul Sah languished in jail for 14 years after his acquittal, until his
plight was highlighted in the media in 1982 and led to the filing of
the PIL on his behalf.
– Though the petitioner was acquitted by the Court of Sessions,
Muzaffarpur, Bihar, on June 3, 1968 he was released from the jail
on October 16, 1982, that is to say, more than 14 years after he
was acquitted.
Question….

– Why was the petitioner not released for over


5&1/2 years thereafter ?
– Whether SC can grant compensation for
deprivation of a fundamental rights?
Reason….

– the petitioner was not released from the jail upon his acquittal and
that he was reported to be insane.
– But it discloses no data on the basis of which he was adjudged
insane,
– whether it took 14 years to set right his mental imbalance.
– No medical opinion is produced in support of the diagnosis
– what kind of medical treatment was prescribed for and
administered to him and for how long
Observation..

– …….. if at all the petitioner was found insane at any point


of time,
– the insanity must have supervened as a consequence of
his unlawful detention in jail.
– A sense of helplessness and frustration can create
despondency and persistent despondency can lead to a
kind of mental imbalance.
Art.32…
– ………confers power on the Supreme Court to issue directions or
orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights
conferred by Part III.
– The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by Part III is
"guaranteed“
– this Court can pass an order for the payment of money if such an
order is in the nature of compensation consequential upon the
deprivation of a fundamental right. 
Finally…

– The petitioner was detained illegally in the prison for over


fourteen years after his acquittal in a full-dressed trial. He filed a
Habeas Corpus petition in this Court for his release from illegal
detention. He obtained that relief, our finding being that his
detention in the prison- after his acquittal was wholly unjustified.
– State must pay to the petitioner a further sum of Rs. 30,000
(Rupees thirty- thousand) in addition to the sum of Rs. 5,000
(Rupees five thousand) 
Concept of bail in India

– Sections 440 to 450 of Cr.P.C.


– ........ set out conditions for releasing someone who is otherwise
determined to be eligible for bail.
– The notion behind these provisions is that
– it requires the person accused of an offence to provide monetary
assurance that he will appear before the court as and when required
and observe other bail conditions,
– or forfeit the assurance amount.
Cont…

– Thus, before being released, a person who is granted bail would be required to
execute a bond agreeing to adhere to the conditions of bail.
– This bond is for a certain sum of money as set by the Court, if the person
defaults on a bail condition,
– the Court will forfeit the bond and require the person to pay the money as
penalty.
– On failure to do so, the penalty will be recovered in a similar manner as a fine
imposed by the Court.
– If the penalty amount cannot be recovered then the person shall be liable for a
civil imprisonment up to 6 months.
Cont…

– At this stage, it is required to be noted that failure to appear,


– without sufficient cause, before the court on the date designated as part
of the bail condition,
– is an offence under section 229A, IPC.
– In addition to the monetary requirement,
– it also requires that the person should also provide a surety to stand as an
assurance that the accused person will follow the conditions of the bail
otherwise the surety amount will be forfeited.
Criticism of the bail process

Prejudicial to the interest of destitute and indigent members of the society


– In report titled Processual Justice to the people by the experts on Legal Aid and headed by Justice
Krishna Iyer, he observed that the bail system causes discrimination against the poor since the
poor would not be able to furnish bail on account of their financial inability while the wealthier
persons, would be able to secure their freedom because they can afford to furnish bail.
– The report categorically stated that the evil of the bail system is that either the impoverished
have to fall back on touts and professional sureties for providing bail or suffer pre-trial detention.
Both these consequences are fraught with great hardship to the poor. On one hand they are
fleeced by touts and professional sureties and sometimes even have to incur debts to make
payments to them for securing their release; on the other hand they are deprived of their liberty
without trial and conviction; all this leads to grave consequences.
Cont…

Property based nature of bail system


– The Court commented on the property based nature of the bail system in the case
of Hussainara Khatoon  and stated that it is based upon the erroneous assumption that
the risk of monetary loss is the only deterrent against fleeing from justice. The Court
highlighted that even where an person accused of an offence is to be released on personal
bond, the law requires the person to be placed under financial obligation to appear in
court through the execution of a bond to that effect.
– Moreover, the courts mechanically insist that the accused person should produce sureties
who would furnish bail for him and, these sureties must again establish their solvency to
be able to pay the amount of bail in case such accused fails to appear to answer the
charge.
Alternatives to the money bail
system
Conditional release and leniency in conditions
– It is stated that a liberal policy of conditions for release without monetary sureties or
financial security and release on one’s own recognizance with punishment provided
for violation will go a long way to reform the bail system and help the weaker and
poorer sections of the community to get equal justice under the law.
– Conditional release may take the form of entrusting the person accused of an offence
to the care of their relatives or in supervision. The court or the authority granting bail
may have to use the discretion judiciously. When the accused person is unable to find
sureties, there will be no point in insisting on bail with sureties, as it will only compel
them to be in custody with the consequent handicaps in providing their defense.
Cont…

Expanding the ambit of Bailable offences


– Enlarging the category of bailable offences as classified in Cr.P.C., and insisting
on expeditious completion of pre-trial procedures that might lead to minimizing
the period of confinement. It has also noted that a person accused of an
offence would need access to a lawyer to make an application for bail.
– As per law, it is required to ensure that legal aid is provided but, in practice, this
occurs only after the charge-sheet is filed. Therefore, access to lawyers in the
crucial pre-charging stages is often limited for those who cannot afford a lawyer,
and who are likely therefore to also not be able to afford bail.
Cont…

Under trial Prisoners


– In the case of Supreme Court Legal Aid Committee Representing Undertrial Prisoners the Supreme
Court held that unduly long periods of under-trial incarceration violates Articles 14 and 21 of the
Constitution.
– An amendment was made in 2005, by which s. 436A was added to the Code. This section provides
that if the accused person has undergone detention for half the maximum period of imprisonment
specified for the offence that he has been charged with, such an accused shall be released by the
court on personal bond with or without sureties. Persons charged with offences punishable with
death do not get the benefit of this provision.
– The proviso to the section states that the court, upon hearing the public prosecutor, may order the
continued detention of the accused person for a term longer than half of the said period, or release
the person accused of an offence on bail instead of personal bond with or without sureties.
Cont…

– The court shall record reasons for this in writing. The second proviso to the
section states that no accused person shall be detained for a period longer than
the maximum period of imprisonment for the offence.
– For successful implementation of this provision, the Supreme Court of India laid
down guidelines in Bhim Singh v. Union of India. It directed the jurisdictional
Magistrate/Chief Judicial Magistrate/Sessions Judge to hold one sitting per
week in each jail/prison for two months from October 1, 2014 to identify under-
trials eligible for bail under sec. 436-A of Cr.P.C and to pass an appropriate order
with respect to sec. 436-A of Cr.P.C in the jail itself. It directed the Jail
Superintendent of each jail/prison to facilitate the process.
Cont…

– Moreover in the case of R.D. Upadhyay v. State of Andhra Pradesh the Supreme Court had
held that under-trials charged with attempt to murder should be released on bail if their
case has been pending for 2 years or more; and that persons charged with comparatively
minor offences like theft, cheating, etc., should be released if they have been in prison for
more than a year. The Court added two important instructions:
1) The trial courts were obligated to consider such persons for bail. The court clarified that it was not
necessary for under-trials to move an application for bail.
2) The Court directed that where an under-trial is not in a position to furnish sureties, the court should
examine whether the person can be released on furnishing a personal bond. In the current system
of money bail and release under sec. 436A Cr.P.C., after serving half of the maximum sentence, it
must be considered whether, given the duration of maximum imprisonment in many offences,
release after serving half the duration serves the cause of justice.
Conclusion

– Hence, there is a dire need to a reform the current bail process as it not only
prejudicial to the destitute as well as cause a problem on the state in form of
under trial prisoners, over congestion in jails and a new alternatives should be
suggested which can be used as a deterrent for assuring the compliance of the
bailed offender instead of the current money based system.