‘SEPARATE ENACTMENT: A BAIL ACT’ TO STREAMLINE GRANT OF BAIL

“The Union of India may consider the introduction of a separate enactment in nature of a bail Act, so as to streamline the grant of bails”, observation made by the Hon’ble Supreme Court in the judgment in the case Satender Kumar Antil versus Central Bureau of Investigation.

Till now, no existing law specifically provides for any timeframe for the conclusion of the trial and if any timeframe has been provided in any statute then it is ‘directory’ not ‘mandatory’. The Supreme Court through its various judgements observed that speedy trial is inherent under Article 21 of the Constitution.

As per 2019 National Crime Records Bureau (NCRB) data on prisons released in August 2020 – seven in ten of the 478,600 people in prison in Indian jails are under trial prisoners. Almost every third prisoner (32 %) around the world is awaiting trial or the conclusion of trial. The reason could be either there is delay in investigation and/or delay in trial by prosecution. And it has been observed by the courts that the prosecution had time and again become victim to the ‘delay tactics’ of the complainant.

Certain scathing observations were made by the Hon’ble Supreme Court in respect to the state of affairs of undertrials prevalent in the Indian scenario wherein they observed that some of the undertrial prisoners have been in jail for as many as 5, 7 or 9 years and a few of them, even more than 10 years, without their trial having begun.

The situation where the alleged accused is denied a bare trial for so many years and are kept behind bars, not because they are guilty, but because either the courts are overburdened and have no time to try them or a situation where they are forced into long cellular servitude because the bail procedure is beyond their meager means and trials don’t commence and even if they do, they never conclude. This gives rise to the question, what is the meaning of bail? And does the non-grant of bail in the present criminal law delivery and justice system is affecting life and liberty protected under Article 21 of the Constitution?

Delay in Trial results in violation of Article 21 of the Constitution:

The refusal of bail even after delay in trial amounts to violation of Article 21 of the Constitution of India as a basic right guaranteed to citizens. When the under trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial. (Sanjay Chandra vs CBI)

It is observed that time and again, the Hon’ble Supreme and High Court while deciding bail applications have at the instance and usual assurance of State Counsels directed the trials to be completed in a particular time frame, however, such orders are generally not complied with. Which is a violation of Article 21 of the Constitution of India.

One is not denying that there is a requirement of shielding the society from the hazards of those committing crimes and with potential of being repetitive, if granted bail. But an undertrial may be warranted in prison on the following grounds: (a) in case of a very grave offence; (b) if the person arrested is likely to interfere with witnesses or impede the course of justice; (c) if the person arrested is likely to commit the same or any other offence; (d) if he may fail to appear for trial. One cannot ignore the absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty. Justice Dalveer Bhandari in S.S. Mhetre vs. State of Maharashtra (2010) observed, “Society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the state. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, the sanctity of individual liberty and the interest of the society”.

The recent directions by the Supreme Court (Satender Kumar Antil versus Central Bureau of Investigation) to ensure compliance of proper procedure for arrest and setting time limit for disposal of bail pleas are steps towards developing jurisprudence of bail, the need of the hour.

Khushbu Jain is a practicing advocate in the Supreme Court and founding partner of the law firm, Ark Legal. She can be contacted on Twitter: @advocatekhushbu.

The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. – Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)

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