(Published in Cr.
LJ 2017)
LAW COMMISSION REPORT ON BAIL REFORM
Kaiser Ansary, Advocate
It took 16 years for the legislature to amend S.41 of Cr.PC in the light of the
Supreme Court Judgment in the case of Joginderkumar (AIR 1994 SC 1349).
But the colonial mindset of detaining the ‘natives’ has continued to dog the
lower judiciary. A person’s liberty is often treated with shocking casualness.
Quite frequently, an accused although granted bail has to remain in jail, either
for want of a solvent surety or technical red-tapism…. for instance, the stringent
requirement of prescribed documents required to be produced by the surety.
Further, the Judicial Establishment is unduly obsessed with production of
‘Ration Card’ even though the Criminal Manual doesn’t make it obligatory.
Another impediment is the condition that the surety must ‘own’ an immovable
property in his exclusive name. In urban India, not many can afford to own an
immovable property. This argument that the surety is solvent only by “owning
an immovable property” is deeply flawed. Even though, rent receipt is
recognised as one of the valid documents for the surety by the Criminal Manual,
it is not accepted in mofussil courts. If Aadhar Card can be linked with all fiscal
purposes, why can’t it be good enough for bail, too ?
In America, the liberty of an accused is zealously protected by the Eighth
Amendment of the Constitution. It prohibits the Court from imposing
excessive bail. Indian law doesn’t have any such equivalent provision. The
quantum of bail has been left to the discretion of the Court. As a result, many
under-trial prisoners (UTP) continue to languish in jail.
A UN Report of 2005 has disclosed that in developing countries, the poor and
socially vulnerable people are often adversely affected due to the rigid laws of
bail.
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Article 9 of International Covenant on Civil & Political Rights, 1966 mandates
a general rule against the pre-trial detentions, unless extremely necessary.
India is a signatory to this Covenant, which inspired Justice Krishna Iyer to
deliver those landmark judgments on bail. But somehow, pre-trial detention has
remained endemic in our judicial system.
The US Supreme Court in the case of Anthony Salerno (1987) has held that
courts can detain an arrestee prior to trial only if the Government proves that the
accused is potentially dangerous to the society at large. Unfortunately, our
legal system has failed to keep pace with the international standards on bail.
Many democracies have introduced the system of central intelligence database
and electronic tagging. The emphasis is on meticulous investigation and speedy
trial, rather than pre-trial detention.
A survey of 2015 shows that the conviction rate in our country is abysmally
poor and hence, there is a general opinion in favour of pre-trial detentions. But,
this results into violation of human rights and personal dignity. I have seen
Magistrates who call for ‘Say of I.O.’ even in bailable offences, in total
disregard to the ratio laid down in Rasiklal Vs Kishor Wadhwani (AIR 2009 SC
1341). And if the I.O. is not immediately available for giving ‘Say’, the
Accused is denied of his liberty to be released on bail. It is this callous
indifference which needs to be addressed in terms of human rights violation.
Even the salutary guidelines laid down by the Supreme Court in Arnesh Kumr
case (2014 All SCR 2542), are not strictly implemented.
One of the reasons for such violations is that the bail has continued to remain in
the realm of ‘discretion’. For too long, even the judgments of Krishna Iyer, J.
have been covertly scoffed at in lower judiciary. Now, the Law Commission
wants the judicial system to return to those hallowed principles governing bail
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in its Report No.268. It has suggested extensive amendments in Cr.PC to make
the bail easier and free from excessive documentation. The term ‘Bail’ had not
been defined in Cr.PC and hence, the Commission has sought to insert S.2 (a) as
the defining section. Similarly, the term ‘Security’ would also be inserted as
S.2 (ua), meaning a monetary bond with or without sureties. The Commission
headed by Justice Chauhan has observed that the First Schedule of Cr.PC also
needs to be revised to ensure consistency. An instance has been cited that an
offence u/s 498-A IPC is punishable up to 3 years and is non-bailable, but an
offence u/s 497 IPC (adultery) is punishable up to 5 years and yet bailable !
The main focus of the Report is to amend relevant sections of Cr.PC relating to
bail by dispensing with the third-person surety, except in grave offences like
murder, dacoity and rape. S.41(D) is also proposed to be amended requiring
the police to inform the arrestee not only orally but also in writing, about the
charge under which he is being arrested. S.437 is to be amended with an
addition of Sub-Section 8, requiring the bail applications to be decided within
the period of one week. The amended provision of S.437(A) requiring an
acquitted person, to execute bail bonds with sureties to appear in the Court of
Appeal is also sought to be amended by deletion of the term ‘sureties’. S.439
is sought to be amended by insertion of Clause-A, requiring the Court to supply
the copy of the bail order to the accused. Insertion of Sub-Section 1 in S.439 is
to ensure that the conditions imposed in a bail should not be excessive (just like
the 8th Amendment of the US Constitution).
Some amendments are also proposed in S.438 CrPC. The salient feature is that
the anticipatory bail would be for a limited period. We are all aware of the
chaos that followed after the case of Salauddin Vs State of Mah. (AIR 1996 SC
1042). It was ultimately remedied in Siddharam Mhetre case (A 2011 SC 312).
While restricting the anticipatory bail order for a limited period, the Law
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Commission Report has not spelt out the procedure after expiry of such limited
period or filing of the charge-sheet. Whether accused would be required to
surrender and remain in custody till his regular bail application is decided or
otherwise, remains to be clarified.
While amending the law of bail, it is also necessary to reform the jail system.
Many amendments and changes are required to be introduced in Jail Manual
and Prison Act, 1894. The conditions in the prisons are abominable and
subhuman. The Supreme Court in ‘Re Inhuman conditions in 1382 Prisons’
(AIR 2016 SC 993) has observed that overcrowding in jails is violative of
Art.21. In the case of DK Basu Vs State of WB (2015 (8) SCC 744), the
Supreme Court has dealt with the issue of prison reforms and also ordered
installation of CCTV in all jails and police stations within a period of one year.
However, this order has also not been implemented till date.
The proposed amendments suggested by Law Commission are definitely
laudable, but they need to be debated before being legislated. A website may be
created for inviting suggestions, just like it was done by Maharashtra Govt.
before finalising the Rules under RERA.
25-5-2017
