Bail and Judicial Discretion: A Judicial Analysis

The Author, Richaa Mukhopadhyay, is a 3rd year, BA.LLB student of Amity University, Kolkata. She is currently interning with LatestLaws.com.

INTRODUCTION

The bail is the security given by the defendant, it acts like a surety or guarantee for the defendant to show up in the court at a later date when summoned. Sections 436 to 450 in the Criminal Procedure Code deal with the processes regarding bail in India and consists of the provisions for the grant of bail. Here, a great extent of discretionary power regarding the amount of security has been vested in the court; that means to put a monetary cap on the bond.

Section 2(a) of The Code of Criminal Procedure Code, 1973 (code); enshrines bailable offense as an offense which is shown as bailable in the First Schedule or which is made bailable by any other law which is in the force at the time. According to this, the offenses are as distinguished under the Penal Code; into bailable and non bailable which have been determined according to the nature of the crime.

The exceptions under Section 437 of the code, lays down when one can plead bail even if the offence committed is non-bailable in nature. In such case, receiving bail is not the right but the discretion of the bench and depends largely on whether they believe that the petitioner is fit for to receive bail. Such exceptional conditions are provided in this Section S. 437 (3).

In this article we will analyse the extent of such vested discretion in the judicial minds through case laws and legal provisions.

JUDICIAL ANALYSIS THROUGH PRECEDENTS

Under Article 21, the heart and soul of the Constitution of India, the concept of speedy trial is interpreted to be that of a fundamental right. Such trial includes stage of investigation, enquiry, trial, appeal, revision and retrial. The prolonged delay in disposal of trials and in criminal cases, confers a right upon the accused to apply for bail. The provision of appeal is a statutory right and as a result of this the trial once initiated continues over years and sometimes decades and where bail is not granted, the accused languishes in the jails for the same time. Here the cause of delay is an important factor and plays a role at the time of exercise of judicial discretion for grant of bail.

The decisions, thus, taken in this regard with the discretion of judicial minds cannot be an unwarranted or illegal decision. Speedy justice includes speedy judgments with statutory and other reasonings.

In the case of Gudikanti Narasimhulu v. Public Prosecutor it was emphasised that grant of bail in India depends on the hunch and discretion of the bench hearing the plea, at large. Our penal code is not discreet and does not provide with an exhaustive set of circumstances for its grant and it has been left largely to the application of judicial minds.

In the case of State of Rajasthan, Jaipur vs Balchand @ Baliay[1] the court held that the common rule is bail, not jail. Provided, where there are such circumstances that suggests fleeing from justice or thwarting the course of justice or creation of any other troubles in the shape of repeating offences or even intimidation of witnesses. Herein, Krishnaiyer, V.R. J. observed that in case of considering the question of bail, the gravity of the offence committed and the brutality of the crime plays an important role.

In the case of Akhtari Bi v. State of M.P.[2], the Apex Court once again reminded the executive appoint the need of a greater number of judges to cope with the overload and backlog of cases on the existing judicial system. In the instant case there was a time period of more than eighteen years from the date of incident and around fifteen years from the date of acquittal of the accused and its hearing and the huge time lag is no less than what can be called unfair, shocking and delay of justice.

In this case the bench further highlighted the importance for a greater number of courts and other mechanism to reduce pendency and backlog of cases, the Apex Court in this case further observed that:

“Speedy trial, early hearing and quick disposal are sine qua non of criminal jurisprudence. In some countries like England days are fixed statutorily for trial of cases. Keeping an accused in custody for a day more than it is necessary, is constitutionally impermissible and violative of human dignity, freedom of life and liberty. The overcrowded Court dockets, the phenomenal rise of public interest litigation, duty to ensure enforcement of fundamental rights undoubtedly keeps this Court under stress and strain. But that cannot be an excuse for keeping the sword of Damocles hanging on the accused for an indefinite period of time. It does not do any credit rather makes one sad. If the accused is not granted bail and serves out the sentence then the appeal is rendered academic for all practical purposes. And the right to establish innocence fades away in lack of enthusiasm and interest If he is granted bail then long delay may give rise to humane considerations. Time heals the gravest scar and mitigates deepest injury suffered physically, mentally and emotionally. Therefore, if the Courts have been rendered helpless and the exasperating delay is threatening to eat away the system then the Government may consider either to increase the strength to clear the backlog or devise some mechanism by which criminal appeals pending for more than reasonable time in higher Courts should stand disposed of.”

In the case of Gokul Singh v. State of M. P[3]; it was held that the prosecution was not responsible for the delay caused and hence the accused cannot be granted bail on the ground of such delay in trial.

The grant of bail is hence clearly matter of judicial discretion and questions involving one’s individual liberty and the larger societal and public interest must be considered, keeping in mind that the object is finally to ensure an expeditious trial.  The constitutional mandates provided to the citizens of India must be kept in supreme as held in the case of Om Prakash v. State of Rajasthan[4].

However, from the plethora of precedents we can conclude that the delay in trials are determined with regard to the circumstances of the case that includes the nature of the offence, the number of accused and the witnesses; it also involves the workings of the Courtin which the suit is instituted and the prevailing local conditions and so on and it alone cannot be the ground to grant bail.

In the case of Babu Singh v. State of U.P., [5] , the Supreme Court discussed the issues related to bail jurisdiction and observed that the doctrine of police power validates the punitive processes for the maintenance of public order, the security of the state, the national integrity and the interest of the public at large in a constitutional backdrop.

The arrest of an accused deprives him of his fundamental right to liberty and the right to bail ensures such right vested upon him by setting him free on securing his guarantee to be present on summons in the future and to duly undergo the punishment imposed if found guilty.

In the case of Hussainara Khatoon and others v. Home Sec, State of Bihar[6] , the Court observed that the ratio that when the man is in jail for a period longer than the sentence, he is actually liable for then he should be released.
CONCLUSION

“Discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable” - Lord Camden[7]

The Indian criminal justice system while working with such discretionary power in hand even after trying their best and keeping in consideration the law and certain guidelines to be followed for its exercise, still remains flawed from a larger perspective. There is also a need for a revolution in the prevalent bail system by keeping in mind the socio-economic condition of the majority of our population. The courts should always consider the socio-economic plight of the accused have a compassionate approach and ensure background checks to deter him from fleeing the justice system resulting in restoration of fundamental and other rights to the citizens.