HISTORICAL BACKGROUND OF THE CONCEPT OF BAIL

Bail in law means procurement of release from the prison of a person awaiting trial or an appeal,
by the deposit of security to ensure his submission at the required time to legal authority. The
monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set
by the court having the jurisdiction over the prisoner. The security may be in cash, the papers
giving title to property, or the bond of private persons of means or of professional bondsman or
bonding company. Failure of the person released on bail to surrender himself at the appointed
time results in forfeiture of the security. The law lexicon 1 defines bail as the security for the
appearance of the accused person on which he is released pending trial or investigation.

What is contemplated by bail is to "procure the release of a person from legal custody, by
undertaking that he/she shall appear at the time and place designated and submit him/herself to
the jurisdiction and judgment of the court."2

The concept of bail can trace back to 399 BC, when Plato tried to create a bond for the release of
Socrates. The modern bail system evolved from a series of laws originating in the middle ages in
England. There existed a concept of circuit courts during the medieval times in Britain. Judges
used to periodically go? On circuit? To various parts of the country to decide cases. The terms
Sessions and Quarter Sessions are thus derived from the intervals at which such courts were held.
In the meanwhile, the under trials were kept in prison awaiting their trials. These prisoners were
kept in very unhygienic and inhumane conditions this was caused the spread of a lot of diseases.
This agitated the under trials, who were hence separated from the accused. This led to their
release on their securing a surety, so that it was ensured that the person would appear on the
appointed date for hearing. If he did not appear then his surety was held liable and was made to
face trial. Slowly the concept of monetary bail came into existence and the said under trials was
asked to give a monetary bond, which was liable to get forfeited on non-appearance.

1
Law lexicon by Ramanth Iyer, (3rd ed).
2
Black's Law Dictionary 177 (4th ed.)
According to the San Francisco News and the SF Chronicle, the first modern Bail Bonds
business in the United States, the system by which a person pays a percentage to a professional
bondsman who puts up the cash as a guarantee that the person will appear in court, was
established by Tom and Peter P. McDonough in San Francisco in 1898. In fact, this was the same
year that the Bill of Rights was introduced in England, and the Congress passed the Judiciary
Act. This specified which types of crimes were bail able and set bounds on a judge's discretion in
setting bail. The Act states that all non-capital crimes are bail able and that in capital cases the
decision to detain a suspect, prior to trial, was to be left to the judge. In 1791 The Bill Of Rights
was incorporated into Constitution of the United States, through the 5th, 6th and 8th
Amendments, guaranteeing citizens the right to due process of law, a fair and speedy trial and
protection against excessive bail. The Eighth Amendment to the Constitution of the United States
provides that "excessive bail shall not be required," but it does not provide any absolute right to
bail.

It was been stated that the factors to be taken into consideration in determining the amount of
bail are:

(1) Ability of the accused to give bail

(2) Nature of offense

(3) Penalty for the offense charged

(4) Character and reputation of the accused

(5) Health of the accused

(6) Character and strength of the evidence

(7) Probability of the accused appearing at trial

(8) Forfeiture of other bonds

(9) Whether the accused was a fugitive from justice when arrested.3

3
Delaney v Shobe, 218 (inability to give bond in the amount set is not sufficient reason for holding the amount
excessive).
The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the
terms bail able offence and non-bail able offence have been defined in section 2(a) Cr.P.C. as
follows: " Boilable offence means an offence which is shown as bail able in the First Schedule or
which is made bail able by any other law for the time being enforce, and non-bail able offence
means any other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and
bonds in criminal cases. The amount of security that is to be paid by the accused to secure his
release has not been mentioned in the Cr.P.C... Thus, it is the discretion of the court to put a
monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to
the economic plight of the weaker sections of society. The unreasonable and exorbitant amounts
demanded by the courts as bail bonds clearly show their callous attitude towards the poor.
According to the 78th report of the Law Commission as on April 1, 1977, of a total prison
population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific jails,
some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per cent
under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials. One of the reasons for this
is, as already mentioned above, is the large scale poverty amongst the majority of the population
in our country. Fragmentation of land holdings is a common phenomenon in rural India. A
family consisting of around 8? 10 members depend on a small piece of land for their subsistence,
which also is a reason for disguised unemployment. When one of the members of such a family
gets charged with an offence, the only way they can secure his release and paying the bail is by
either selling off the land or giving it on mortgage. This would further push them more into the
jaws of poverty. This is the precise reason why most of the under trials languish in jail instead of
being out on bail.

In State of Rajasthan v Balchand, the accused was convicted by the trial court. When he went on
appeal the High Court, it acquitted him. The State went on appeal to the Humble Supreme Court
under Art. 136 of the Constitution through a special leave petition. The accused was directed to
surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna
Iyer raised his voice against this unfair system of bail administration. He said that though while
the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well
be that in most cases an undertaking would serve the purpose.4

4
State of Rajasthan v Balchand AIR 1977 SC 2447
In Moti Ram and Ors vs. State of M.P, the accused who was a poor mason was convicted. The
apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge him
on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full
authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his
brother to become a surety as his property was in the adjoining village. MR went on appeal once
more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the
judges should be more inclined towards bail and not jail.5

In Maneka Gandhi v Union of India, Justice Krishna Iyer once again spoke against the unfair
system of bail that was prevailing in India. No definition of bail has been given in the code,
although the offences are classified as bail able and non-bail able. Further Justice P.N.Bhagwati
also spoke about how unfair and discriminatory the bail system is when looked at from the
economic criteria of a person this discrimination arises even if the amount of bail fixed by the
magistrates isn't high for some, but a large majority of those who are brought before the courts in
criminal cases are so poor that they would find it difficult to furnish bail even if it's a small
amount.6

5
Moti Ram and Ors. v State of M.P AIR 1978 SC 1594
6
Maneka Gandhi v Union of India AIR 1978 SC 571
 HISTORICAL BACKGROUND FOR THE CONCEPT OF JAIL

The Prison is an age old institution. The word "Prison" connotes "to seize" and "cage". The
oxford English dictionary defines "Prison is a place, properly arranged and equipped for the
reception of persons who by legal process, are committed to it for safe custody while in trial or
for punishment".7 The Prison administration of a country is a function of several variables
pertaining to socio-economic conditions and practical considerations. The socio-economic
conditions vary from one country to another and have immense influence on the plans,
programmers and policies of a country’s prison administration. The purposes of a country’s
prison administration are determined from its financial capabilities and by social and moral
consciousness of the community concerned. 8 Originally, Prison was conceived as a place of
detention to keep offenders pending trials and ultimate punishment. In course of time what was
thought of as transit point become a terminus, and imprisonment was regarded as an end in itself.

The principles and purposes of prison administration have evolved as a process from the ancient
to the present days in India, Europe and America. In India, this process of development can be
broadly divided into three phases, viz, Ancient-Medieval period, 2. British Period. 3. Post-
Independence period.9

In ancient India, at the time of the Artha Sastra, justice was administered in accordance with
legal rules, which fell under one or the other of the following four heads (a) Sacred law
(Dharma) (b) Secular law ('Vyavahara), (c) Custom (Charitra) and (d) Royal Commands
(.Rajasasan). Out of all these four divisions of law, custom (Charitra) was the most popular one
and Manu alonwith all other law givers of that time accepted it as the essential principle in the
administration ofjustice; that disputes should be decided in accordance with the customs of the
countries and districts (.Janapada), of castes (Jati) and guilds (Sreni) and of families (Kula).

7
C.S. Malliah, "Development of Prison Administration in India", Social Defence, Vol. XVII, No. 67, National Institute
of Social Defence, Ministry of Social Welfare, Government of India, New Delhi, Jan, 1982, p. 35.
8
Jaytilak Guha Roy Prisons and Society-A study of the Indian Jail System, Gian Publishing House-4.C. Ansari Road,
New Delhi, 1989, p. 2.
9
Jaytilak Guha Roy, op. cit., p. 3.
During Rig Vedic period there was no prison, but the house of the accused served the purpose for
jail and he was practically imprisoned in his own house till he managed to compensate the
plaintiff.10 Another interesting feature of the administration of legal justice in ancient India was
that the offenders in most cases were allowed to pay fines to escape punishments. Hein Tsang
said that in India the usually inflicted punishments were lifelong imprisonment especially in the
case of rebels, mutilation of nose, ears, hands, feet and banishment take place and ransom or the
money equivalent was frequently paid to escape punishment. Even in the case of murder, the
offender could avoid capital punishment. Punishment by imprisonment was very uncommon and
in the ancient works this type of punishment was rather rarely mentioned. It simply implies that
the principal purpose of prison administration in ancient India was the detention of offenders,
awaiting trial or execution of sentence. With the time passing the history of the jail system got
developing and thus from the ancient period till medieval period the system changed many times
from the time of the great Asoka to the mughal rulers the system of the prison got changed every
time and according to the situations and from the Mughals to the Marathas when the English first
came to India and thus the system of prison and jail also got changed.

Persons of lower castes and especially adulterous women of both higher and lower castes were
compelled to do hard labor of building fortresses. Political prisoners were generally treated well,
though strictly watched. They were given all sorts of comforts but were barred from
communicating with others. The main features of the prison system as it prevailed in the pre
British period were as follows:

(a) There were no prisons in the modem sense

(b) There was no description of the internal administration of prisons

(c) No separate prison service was existing and courts were not the feeding centers for prisons

(d) There were no rules for maintenance of prisons.11

10
Indra J. Singh, Indian Prison-A sociological Enquiry, concept, New Delhi,
11
C.S. Malliah op. cit., p. 36.
The year 1897 ushered in a new era in the history of prison reform in India. This year
Reformative Schools Act was passed and courts were directed to send youthful offenders below
15 years, to Reformative Schools instead of prisons. Despite this setting up of commissions up to
1888 and 89, the Indian prison system lacked substantial reformative aspects in prison work. It
failed to recognize the prisoner as an individual and conceived him rather as unit in the jail
administrative machinery. It lost sight of the effect as to the humanitarian and civilized
influences in the mind of individual prisoner and failed to focus the attention on his material
well-being and all necessary elements of a human being to live i.e. diet, health and labor. Thus, it
was mainly the idea of deterrence which influenced the prison policy till the year 1919.12

The post Independence period saw a major change in the Indian prison system. The Government
took special and keen interest in it. And as a result, in 1951, invited an expert form United
Nations under the technical assistance program me, to study the prison administration in the
country and to suggest progressive programmers. The one member committee comprising Dr.
Walter C. Reckless as the U.N. Expert, went round the country and submitted his report on
prison administration in India and suggested a six month training programme for jail officers.
After an intensive study asto the jail administration in India he made a number of
recommendations which included the setting up of central Bureau of Correctional Services in
Delhi and the revision of jail manuals which were substantially different from the
recommendations of the Indian Jails Committee of 1919.

Five Year Plan and a provision of Rs 100 crores for the upliftment of the same. It thought that
prison administration could not be streamlined unless the Central Government and the State
Governments channelise more resources for developing every aspect of the existing system. As a
result, the Ministry of Home Affairs initiated efforts for the improvement and modernisation
ofjail administration by making a grant of Rs. 2 crores in the budget of 1977-78
respectively.13Besides, this process followed up some more developments like the
recommendations of the chief Secretaries to reduce the over-crowding in jails, setting up of new
codes and amendments of laws relating to the transfer of prisoners, creation of separate faculties
for the care, treatment and rehabilitation of women offenders, segregation of juveniles etc.
Further more to help the state governments in their efforts to undertake jails reforms, the Central
12
.C.S. Malliah op. tit., p. 38.
13
.A. Mohanty and N. Hazary, op. cit., p. 28.
Government formulated a scheme in 1977 to give financial assistance for prison reforms. Several
reports and articles appeared in the press as to the conditions in jails, particularly in Tihar jail,
Delhi and in most of the jails in U.P and Bihar, where a number of undertrial prisoners were
confined without trial for over 10 years. The Government of India, therefore appointed a
committee on jail reforms, chaired by Mr. Justice A.N.Mullah (Retd.) in April, 1980. Which also
included the I.G. Prisons of Karnataka. The committee submitted its first report on Tihar Central
Jail, Delhi in December, 1980 and the final report in March, 1983. The report can be summed up
as follows

(a) Directive principles of national policy in prison should be formulated and embodied in part
IV of the Indian Constitution.

(b) The subject of prisons and allied institutions should be included in the concurrent list of
seventh schedule of the constitution of India.

(c) Provision of a uniform framework for correctional administration by a consolidated, new and
uniform comprehensive legislation to be enacted by parliament for the entire country.

(d) Revision of Jail Manuals should be given top priority.

(e) Suitable amendment of Indian penal code.14

The open camps, like Sanganer open prison in Rajasthan, near Jaipur, where prisoners are
allowed to stay with their families can best serve as half-way-house before their return to society.
Open camps provides opportunity for greater community contact to the prisoners, it helps them
in their rehabilitation after the completion of their sentence. Therefore to ensure scientific and
humanitarian administration of prisons in accordance to the modern philosophy of reformation
and rehabilitation, it is imperative that the necessary facilities, structures personnel, legislation
and processes, be ensured.15

14
Report of the All India jail committee on jail Reforms, 1980-83 (Chairman A.N.Mullah) Vol.II, Government of India
press, Minto Road, New Delhi,
15
"Developments in the Prison System", Social Defence, Vol. xxx, No. 104, National Institute of Social Defence,
Ministry of Social Welfare, Government of India, New Delhi, April, 1991, p. 48.