IN HUSSAINARA V. HOME SECRETARY, 1980 1 SCC 81, BHAGWATI, J. OBSERVED THAT ONE OF THE REASONS WHY OUR LEGAL AND JUDICIAL SYSTEM CONTINUALLY DENIES JUSTICE TO THE POOR BY KEEPING THEM FOR LONG YEARS IN PRE-TRIAL DETENTION IN OUR HIGHLY UNSATISFACTORY BAIL SYSTEM. IT SUFFERS FROM PROPERTY-ORIENTED APPROACH WHICH PROCEEDS ON THE ERRONEOUS ASSUMPTION THAT RISE OF MONETARY LOSS IS ONLY DETERRED AGAINST FLEEING FROM JUSTICE.
However, by Criminal Procedure (Amendment) Act, 2005 sub-section (1) Section 436 was amended to make a mandatory provision that if the arrested person is accused of a bailable offense is an indigent and cannot furnish surety, the courts shall release him on his execution of a bond without sureties. Legislature by Criminal Procedure (Amendment) Act, 2005 insertedSection 436A which lays down the maximum period for which an under trial prisoner can be detained.
Bail in case of Non-bailable offence
Provisions, as to bail in case of non-bailable offence, is laid down in Section 437 of the code. This section gives the Court or a police officer power to release an accused on bail in a non-bailable case, unless there appear reasonable grounds that the accused has been guilty of an offence punishable with death or with imprisonment for life. But (1) a person under the age of sixteen years (2) a woman; or (3) a sick or infirm person may be released on bail even if the offence charged is punishable with death or imprisonment for life. Where a person is charged with a non-bailable offence, but it appears in the course of the trial that he is not guilty of such offence, he can be immediately released on bail pending further inquiry.
The same may be done after the conclusion of a trial and before judgment is pronounced, if the person is believed not to be guilty of a nonbailable offence. As a safeguard, the section provides for review of the order by the Court which has released the person on bail. The power of the Magistrate under this section cannot be treated at par with the powers of the Sessions Court and the High Court under Section 439.
Grant of bail is the rule and its refusal is an exception. But while granting it the Court has to be satisfied that the order to be passed is in the interest of justice. (Mazahar Ali v. State, 1982 CrLJ 1223, 1225 (J&K)
Anticipatory Bail: Section 438
Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest under a non-bailable offence in India can apply for Anticipatory Bail under the provisions of section 438 of The Code of Criminal Procedure, 1973. It is basically bail before arrest, a person arrested cannot seek Anticipatory Bail, he would have to move for a regular bail. The words anticipatory bail is neither found in section 438 nor in its marginal note. In fact, anticipatory bail is a misnomer. When a court grants anticipatory bail, what it does is to make an order that in the event of arrest, the person shall be released on bail.
The legislature in its wisdom incorporated this provision for grant of bail to a person apprehending arrest is to prevent disgrace of being jailed or remaining in custody before he can be released on bail. The old code of criminal procedure did not have any provision for the same and the lawmakers realized that false and frivolous cases are filed against some people and such persons have to necessarily be arrested before they could seek bail. Thus a mechanism for preventing undue harassment and disgrace from arrest and detention was devised.
In the landmark Gurubaksh Singh Sibbia case, the apex court opined that “It is conceptualized on the idea of protecting personal liberty guaranteed under the Constitution of India”. This said, it is a discretionary power and is not a matter of right. The court would use the discretion according to the facts and circumstances of the case and under stipulated guidelines.
Cancellation of Bail
Rejection of Bail is different from the cancellation of bail. (Aslam Desai v. State of Maharashtra, 1992 AIR SCW 2621)
The Code of Criminal Procedure, 1973 contains two provisions for cancellation of Bail. The first one is laid down in Section 437(5) and the other in section 439(2). According to Section 437(5) “any court which has released a person on bail under sub-section (1) or sub-section (2) of Section 437, may if it considers it necessary so to direct such person to be arrested, and committed to custody”. Thus under this section a Magistrate does not have an authority to cancel bail granted by a police officer.
For cancellation of bail in such situation, power of the High Court or the Court of Session under Section 439(2) will have to be invoked. Section 439(2) lays down that a High Court or a Court of Session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody. Thus the power given to the High Court and court of Session is very wide.
441. Bond of accused and sureties.
(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.
(2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.
(3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge.
(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency of fitness.
Gurcharan Singh v. State AIR 1978
KRISHNA IYER. J. observed: “The best gurantee of presence in court is the reach of law, not the money tag.“