BAIL OR JAIL?
M. KARUNANITHI, B.Sc., M.L., Advocate
Senior Panel Counsel, Union of India – High Court, Madurai Bench
Former Special Public Prosecutor ‘Q’ Branch CID,
Email – kanlaw1971@gmail.com
Introduction:-
Immediate after the arrest of an accused the next stage in the investigation is that accused must be produced before the learned Judicial Magistrate within 24 hours of arrest as mandated in Section 57 of Criminal Procedure Code, 1973, accused can be taken in either Judicial or police custody, in any event he can move for his release that is known as bail, whether bail is rule?, Is there any provision of law in Criminal Procedure Code, 1973 making the bail as mandatory is the core issue in this article.
Discussion:-
Bail meaning:-
As per Blank’s Law Dictionary – (1) To obtain the release of (oneself or another) by providing security for future appearance. (2) To release (a person) after receiving such security. (3) To place (personal property) in someone else’s charge or trust.
Article 21 of Constitution of India says that no one can be deprived of his own liberty except under procedure established by law.
Bail is rule and jail is exception as per the decided cases. It is pertinent to be pointed out here that at the time of granting bail / anticipatory bail some conditions have been imposed making the bail order unexecutable, hence this Article pointing out the conditions that can be imposed and the relevant laws and judgments in this regard.
No doubt gravity of the offence, age of the accused, the motive and antecedents of the accused and period of custody are relevant considerations for grant of bail. Now, I intend to discuss about mandatory provisions relating to bail.
Once we raise a question or discussion about bail is mandatory, then everyone will say that is bail under section 167(2) Criminal Procedure Code, on the failure of the investigating agency to file final report in terms of Section 173 (2) of Criminal Procedure Code, whether section 167(2) Criminal Procedure Code, is the only mandatory provision or any other equivalent provisions are contemplated is the core question here. It is needless to say that Section 167(2) Criminal Procedure Code, does not speak about grant of bail, it restricts the power of the learned Judicial Magistrate in extending the remand after 60/90 days as the case may be if no final report is received by the learned Judicial Magistrate. The issue under Section 167(2) Criminal Procedure Code has been decided by the Constitutional Bench of the Hon’ble Supreme Court in (1995 Crl.L.J. 477 SC) [Sanjay Duty Vs State through CBI Bombay case.
The following are the mandatory provisions in Criminal Procedure Code, 1973 regarding bail.
[a] Explanation appended to section 436 Cr.P.C
[b] Section 436(A) Cr.P.C
[c] Section 437(6) Cr.P.C,
Let us discuss the applicability of the said provisions and differentiate those from bail under section 167(2) of Cr.P.C.
(A) Bail under explanation to section 436
For easy reference explanation is given below
Explanation:-
Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the court to presume that he is an indigent person for the purposes of this proviso. This proviso has been inserted by Act 25 of 2005, with effect from 23.06.2006. Section 436 defines in what cases bail to be taken. It completely speaks about bailable offence. As per the amendment made in Act 25 of 2005, such officer or court things fit if the accused person is indigent person and is unable to furnish surety instead of taking bail he/she shall be released on his own bond.
As per the explanation extracted above if an accused in custody of the bailable offence and not able to furnish surety within a week from his arrest, he must be released on his own bond and no discretion is left open to the learned Judicial Magistrate. Here the date of arrest has to be taken to calculate one week to extend the benefit, in case of bail under Section 167(2) Cr.P.C period of 60/90 days can be calculated from the date of 1st remand and not from the date of arrest.
2) Section 436(A) Cr.P.C
S436A Maximum period for which an under trial prisoner can be detained:-
Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties;
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties; Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
For easy reference section 436(A) has been given above, as per the above mentioned provision except the punishment of death penalty cases in all other cases if an accused has been in custody upto one half of the maximum period of punishment, then he must be released on bail. This provision has been inserted by an amendment in the year 2005. As per the clear language coined in the above provision it is mandatory and also absolute.
Dataram Singh vs. the State of Uttar Pradesh on 6 February, 2018
4. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. to put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Re-Inhuman Conditions in 1382 Prisons. (2017) 10 SCC 658
3) Section 437(6)
437. When bail may be taken in case of non- bailable offence.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
It is to be noted that Section 437 [6] is also mandatory in nature, but it is not absolute. As per the clear language in section 437 [6] gives right to an accused to get bail when
[1] Trial has not been concluded within 6 months from the 1st date fixed for examination of witnesses.
[2] It is applicable to non bailable cases.
The period of 6 months has to be calculated from the 1st date fixed for examination of witnesses. It is pertinent to be pointed out here that the language extracted hereunder makes the provision mandatory.
“Such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate,…
No doubt Section 437 [6] of Cr.P.C. is mandatory but it is not absolute i.e., the bail can be rejected on exceptional circumstances, the language contained in section 437 [6] is as follows:
“Unless for reasons to be recorded in writing, the Magistrate otherwise directs”.
Since the learned Magistrate has been given power by the said provision to take decision otherwise, so this provision is not absolute as that of section 167 [2] Cr.P.C. the following two judgments are to the said aspect.
(1992 Crl.L.J.3712) Aslam Babulal Desai Vs State of Maharashtra
(2001 Crl.L.J.1797) Aktaraj Vs State of MP
Conclusion :-
As per the discussion made above it is crystal clear that pending investigation Section 167 [2] Cr.P.C., gives mandatory and absolute right to get bail when no final report is filed, explanation to section 436 is also mandatory during investigation after the final report section 436 A Cr.P.C. is mandatory and 437 [6] is mandatory but not absolute.