BAIL
What is bail?
What are the types of bail in India?
There exist three types of bail in India.
1. Regular Bail: When a person commits a cognizable non-bailable offense—an offense so serious that a police officer can detain him without a warrant or launch an inquiry without a court’s approval—the police may take him into custody, and when that time is up, he must be jailed. The accused has a right to be released from this type of confinement under Sections 437 and 439 of the Criminal Procedure Code. So, a regular bail is basically the release of an accused from custody to ensure his presence at the trial.
2. Interim Bail: This bail is provided as a temporary measure and is valid only while an application is ongoing or when the court considers an application for anticipatory or regular bail. The accused loses his right to be free and will be taken into custody if interim bail expires before he is given regular bail or anticipatory bail and he fails to pay the required amount to extend the bail. Interim bail is always conditional and can be prolonged.
3. Anticipatory bail: Anticipatory bail is self-defining. It is a type of bail that is given to someone who is in anticipation of getting arrested for a non-bailable offense by the police. This is an advanced bail mentioned under section 438 of the Criminal Procedure Code. An application for anticipatory bail can be heard both by the Court of Sessions and the High Courts.
- Time limit: The Supreme Court (SC) in the Sushila Aggarwal v. State of NCT of Delhi (2020) case delivered a significant verdict, ruling that no time limit can be set while granting anticipatory Bail and it can continue even until the end of the trial.
- 3.1 Transit Anticipatory Bail (TAB): TAB is sought when a case against a person has been or is likely to be filed in a state different from one in which he or she is likely to be arrested. The purpose of transit bail is to allow the person bail, so they can approach the appropriate court in the state in which the case has been filed for anticipatory bail. In the absence of transit anticipatory bail, the result would be that another state’s police could arrest a person from their home state without them having the opportunity to apply for anticipatory bail at all. TAB is not defined or mentioned under CrPC.
What are bailable and non-bailable offenses?
Bailable offenses: These are considered less serious, hence the punishment is less serious and the accused has a legal right to request release on bail. Generally, these forms of crimes are punishable by less than three years. In the case of bailable offenses, at the time of arrest or incarceration, the police are allowed to issue bail to the defendant.
Non-Bailable offenses: The term non-bailable doesn’t imply that bail can’t be granted at all. Simply put, it means that the accused is not permitted to demand it as a matter of right at the time of their arrest or custody. However, they are permitted to approach the court while they are being prosecuted. These offenses are serious in character as opposed to offenses that are bailable. The sentence in the case of non-bailable crimes is three years or more. The decision to grant bail to the accused in non-bailable charges is up to the court’s discretion. And the same needs to be decided carefully, not arbitrarily. Contrary to popular belief, the Police officer in charge can also give bail in non-bailable offenses.
What are parole and furlough?
Furlough and parole (covered under The Prisons Act of 1894) envisage a short-term temporary release from custody. While parole is granted to the prisoner to meet a specific exigency, furlough may be granted (after a stipulated number of years have been served) without any reason. The Prisons Act of each state government (Prison is a state subject) defines the rules under which parole is granted in that state.
- Parole: It is a System of releasing a prisoner with the suspension of the sentence. It is Conditional, usually subject to behavior, and requires periodic reporting to the authorities for a set period of time. Parole is not a right, and is given to a prisoner for a specific reason, such as a death in the family or a wedding of a blood relative. It may be denied to a prisoner even when he makes out a sufficient case, if the competent authority is satisfied that releasing the convict would not be in the interest of society. Prisoners convicted of multiple murders or under the anti-terror Unlawful Activities Prevention Act (UAPA) are not eligible for parole.
- Furlough: It is similar to parole, but with some significant differences. It is given in cases of long-term imprisonment. The period of furlough granted to a prisoner is treated as the remission of his sentence. Unlike parole, furlough is seen as a matter of right for a prisoner, to be granted periodically irrespective of any reason, and merely to enable the prisoner to retain family and social ties, and to counter the ill effects of prolonged time spent in prison.
What Protection does the Constitution provide against Indiscriminate Arrest?
Article 20: Article 20 provides Protection against indiscriminate arrest by stating that “No person shall be convicted of any offense except for violation of the law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.”
Article 21: Article 21 provides Protection of Life and Personal Liberty Detention of an individual.
Article 22: Article 22 provides Protection Against Arrest and Detention. The first part of Article 22 deals with ordinary law and includes:
- Right to be informed of the grounds of arrest.
- Right to consult and be defended by a legal practitioner.
- Right to be produced before a magistrate within 24 hours, excluding the journey time.
- Right to be released after 24 hours unless the magistrate authorizes further detention.
Why bail system needs reform?
Huge pendency of undertrials: Referring to the state of jails in the country, where over two-thirds lodged are undertrials,
Indiscriminate arrests: Of this category of prisoners, the majority may not even be required to be arrested despite registration of a cognizable offense, being charged with offenses punishable for seven years or less.
Disadvantageous for some sections: They are not only poor and illiterate but also would include women. Thus, there is a culture of offense being inherited by many of them.
Colonial legacy: Theoretically, the court also linked the idea of indiscriminate arrests to magistrates ignoring the rule of “bail, not jail” to a colonial mindset.
What has the Supreme Court held on bail reforms?
The court’s ruling is in the form of guidelines, and it also draws the line on certain procedural issues for the police and judiciary:
- A separate law on Bail: The court underlined that the CrPC, despite amendments since Independence, largely retains its original structure as drafted by a colonial power over its subjects.
- Uniform exercise of discretionary powers: Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused of the same offense shall never be treated differently by the same court different courts. Such an action would be a grave affront to Articles 14 and 15 of the Constitution of India.
- Avoid indiscriminate arrests: The SC also directed all state governments and Union Territories to facilitate standing orders to comply with the orders and avoid indiscriminate arrests. The court noted that the culture of too many arrests, especially for non-cognizable offenses, is unwarranted. It emphasized that even for cognizable offenses, an arrest is not mandatory and must be “necessitated”.
My opinion:
- Incorporating social workers and psychologists into the criminal justice system, raising police officers' understanding of the law, and increasing the number of officers and stations in relation to the volume of complaints in a given region.
- The victim's rights and wise policing must also be emphasized. Investigations of police officers' conviction rates and legal violations are necessary.
- In order to manage under-trial cases in the nation effectively, a separate bail statute should be developed, as the Supreme Court has emphasized.
- Increasing the diversity of the police force will help them maintain a balanced attitude and prevent arbitrary arrests based on a person's caste, class, or community.
