Introduction
In a study conducted by the Centre for science and environment in 2011, it was found
that Delhi has one of the noisiest roads in the world which has gone up to 106 decibels, whereas the acceptable range is 55 decibels for residential areas. On 23.08.21, there was considerable noise around a bail, order passed by Guwahati High court under section 439 Cr.P.C. The court granted bail to a rape accused while stating of him being a “future asset to the state”, this article will take you through the provisions of bail and judicial pronouncements for you to make a sound judgment and not being caught up by the noise all around.
Meaning of Bail
The word bail is taken from the French verb bailer which means to give or to deliver.
“Bail” has been defined in the dictionary
1- as security for the appearance of the accused on giving which s/he is released pending trial or investigation.
2-There is no definition of bail in Indian law, however, the terms “bailable offence” and “non-bailable” have been defined in the law.
3-Generally stated all serious offences i.e punishable with imprisonment for three or more e.g., murder, rape, kidnapping, robbery etc., have been considered as “non-bailable offences. However, there are exceptions.
Provision of Bail in Law
Section 437 Cr.P.C – This section deals with, power to magistrate’s court to grant bail in cases of non-bailable offences.
Section 439 Cr.P.C -This section deals with special powers to the sessions court and High Court in regards to grant bail.
Judicial Precedents
1. Gurcharan Singh v State (Delhi Admn.)
This case clarified the power of the court to grant bail under sec 437 and 439. The Court
observed that subsection (1) of sec 437 prohibits the court from granting bail in offenses that are punishable with death and imprisonment for life if there appear reasonable grounds for believingthat the accused has committed the offense. Subsection (2) of section 437 rules that bail be granted in cases where offences committed are not punishable with death. On the other hand, the Court clarified that there is no bar to grant bail as imposed in 437(1) under section 439(1) but cautioned that irrelevant factors cannot be considered while granting bail. The factors that can be considered for granting bail are :
nature and gravity of the offense;
the position and status of the accused;
the likelihood of the accused fleeing from justice;
the likelihood of repeating the offense;
history of the case and the investigation;
the likelihood of tampering of the witnesses by the accused.
With a caveat that “a list of factors cannot be exhaustively set out and will depend on facts and circumstances of every individual case”.
2. Sanjay Chandra v Central Bureau of Investigation
In this case, the court observed that the object of bail to secure the appearance of the accused person at their trial by a reasonable amount of bail. The aim of bail is neither punitive nor
preventive. The right to bail cannot be denied merely because the sentiments of the community
are against the accused. Denying bail is a depreciation of liberty, which is cherished in our
constitution.
3. State of Rajasthan v Balachander
It was held that bail is the rule and jail is an exception unless there are chances of the accused fleeing from justice.
4. Vaman Narain Ghiya v State of Rajasthan
Bail is understood as a right for the assertion of freedom against the state imposing restrains. India is a signatory to the UN declaration of Human Rights of 1948; the concept of bail has found a place within the scope of human rights.
5. Rao Harnarain Singh v. State
It should be noted that at the outset that the object of detention pending criminal proceedings, is not punishment and the law favours allowance of bail, which is the rule, and refusal is the exception.
While considering the question in cases of “non-bailable offences “, there cannot be very
rigid rules; however, the courts keep in consideration below mentioned factors for their
guidance:
interests of society;
the probability of accused committing more offences if released on bail;
the health, age and sex of the accused;
the position and status of the accused with reference to the victim and the witness;
the nature of the trial;
the severity of the punishment.
The law of bails, “has to dovetail two conflicting demands, namely, on the hand, the
requirements of the society for being shielded from the hazards of being exposed to the
misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence, viz., the presumption of innocence of accused till s/he is found guilty.
The Guwahati High Court Bail Order
The case revolved around a student at IIT Guwahati, who is accused of raping a junior by
drugging her on the pretext of calling her to discuss her responsibilities in a finance and
economic club. The investigation of the said crime is completed and the accused was under
incarceration for a period of 120 days. The Court after considering all the factors granted bail to the accused and noted that “there is clear prima facie case against the accused and since the investigation of the case is completed and ‘both the victim and the accused are state’s future asset who are young in the age group of 19 to 21 years, further detention of the accused may not be necessary”. The Court also noted that while considering the list of witnesses, there is no possibility of the accused tampering with evidence or influencing the witnesses directly or indirectly. The Court released the accused on bail on imposing certain conditions.
Conclusion
Bail can be granted or rejected on the grounds laid down by law. The law hasn't left the discretion to the judges to decide the matter of Bail on any other grounds. No matter how intelligent, handsome or future asset the judge might consider the accused, they can't grant bail on that ground. Unless they use the law to justify their personal bias.
Whether justified or unjustified is your call to make.
Sources:
1 Law Lexicon
2 Govind Prasad v. State of W.B.,1975 Cri LJ 1249, 1255 (Cal.)
3 S. 2 (a) Code of Criminal Procedure 1973
4 (1978) 1 SCC 118
5 (2012) 1 SCC 40
6 A.I.R. 1960 Raj. 101
7 (2009) 2 SCC 281
8 1958 Cri LJ 563
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