Professional Documents
Culture Documents
Bail and Poor
Bail and Poor
&
Bail
?????
In 1996……
– when a Delhi Police team bundled him into a car in Kathmandu, Nepal, Mohammad Ali
Bhat was just 25.
– Bhat, who hailed from Kashmir, was working as a shawl trader in the Nepalese capital.
– From there, he was taken to Delhi, made an accused in the Lajpat Nagar blast case,
and later taken to Rajasthan and named as an accused in the Samlethi blast case.
– This ensured that he spent years in jails in Delhi and Rajasthan.
– On July 22, 2019 the Rajasthan High Court declared Bhat to be innocent
– Found "not guilty" at 48, Bhat has lost 23 prime years of his life to prison due to India's
lethargic justice delivery system.
In another case,
– a lower court in Delhi in 2010 concluded that Mohammad Maqbool Shah was
innocent.
– By then, he had languished in jail for 14 years.
– Like Bhat, Shah too was arrested in 1996 as an accused in the Lajpat Nagar blast
case.
– He was arrested as a teenager, spent 14 years in jail, and at the age of 29, was
told that he was actually innocent.
– When he returned home in Kashmir, he found out that his father and sister
were dead.
Cont…
– "If this justice was delivered at the right time, my career would not have been ruined.
My home is destroyed. My father and my sister are dead," he was quoted as saying
by NDTV.
– In 2017, police in Bijnor, Uttar Pradesh, found that for 10 years, they had imprisoned a
man for a murder he never committed.
– The murder was committed by his brother who was at large.
– The cops arrested Bala Singh, even though his mother, a daily-wage labourer, pleaded
that the police were mistaking Bala for her other son.
– When he was set free, he told reporters he had only one wish: the official who
arrested him should be punished.
What's common in the stories…..
– shows that jails in India are mostly flooded with young men and women
– who are illiterate or semi-literate
– and come from socio-economically weaker sections of
society.
– More than 65 per cent of undertrial prisoners belong to the SC, ST and
OBC categories.
– Most of them are too poor to even afford the bail fee.
Cont…
– Terming such prisoners as
– "unfortunate forgotten specimens of humanity",
– the Supreme Court had said it was "high time" the government
and judiciary began to realise that
– "in the dark cells of our prisons there are large number of men and
women who are waiting patiently, impatiently perhaps, but in vain
for justice".
– The court said for these people law has become an "instrument of
injustice" and they are the helpless victims of the "callousness of
the legal and judicial system".
Meaning of Bail
– By reading the above definition of bail, it is evident that money and bail
are not connected.
– In India, a large number of the population does not have money to buy food
and clothing, yet they are expected to pay money even for the cases in which
they have the legal right to bail i.e., in the case of bailable offense.
– As a result of not having enough money a person who is poor is
subjected to the atrocities of the authorities of the jail and he
has to remain behind the bars.
Cont…
– Therefore, the amount to be paid for the bail is the matter of discretion
of the court.
– But it is usually seen that the courts ………Their economic plight is not taken into
consideration.
…….
– The only reason that one is denied justice and is kept behind prison is that he
is poor.
– The bail system in India is a property-oriented approach which gives only one
way out of this justice system – money.
– The bail system is very harsh on poor, as only a person with money and
property is capable of getting a bail,
– and when they are unable to pay for the bail, they have to remain in jail for a
greater period.
Cont…
– This results in these people incurring huge amounts of debts that
they take for their release.
– Even though they are innocent, they have to go through physical
and psychological deprivations of jail life,
– They are prevented from contributing to the preparation of their
defense and
– When they are under-trial, they tend to lose their job and thus are
unable to support their family.
– This is the very reason that a large number of populations in India
find this system of bail oppressive.
1977 AIR 2447
– Justice Krishna Iyer raised his voice against the unfair bail system in
India in the
– case of State of Rajasthan v. Balchand
– He said that the time has come to rethink the traditional system of
pecuniary bail.
– It may well be that in most cases an undertaking would serve the
purpose.
…….
“The basic rule may perhaps be tersely put as bail, not jail”.
1979 AIR 1369
– Further
– Hussainara Khatoon and others v. Home Sec, State of Bihar,
– the Court laid down the ratio
– that when the man is in jail for a period longer than the sentence,
– he is liable for then he should be released.
Acc to constitution….
– Section 441 uses the word 'bail' to include 'own bond' loosely as
meaning one or the other or both.
– Moreover, an accused, in judicial custody, actual or potential, may
be released by the Court to further the ends of justice and nothing
in s 441 compels a contrary meaning.
– S.441 and use the word 'bail' generically because the expression is
intended to cover bond with or without sureties;
Cont…
– When the Court of appeal as per the import of s.389(1) may release
a convict on his own bond without sureties, surely, it cannot be
that an undertrial is worse off than a convict or that the power of
the Court to release increases when the guilt is established.
– It is not the Court's status but the applicant guilt status that is
germane.
– That a guilty man may claim judicial liberation pro tempore without
sureties while an undertrial cannot, is reduction ad absurdum.
Case….
Rudul Sah
v.
State of Bihar,
(1983) 4 SCC 141
Significance…
– This was the first case since the inception of the Supreme Court
– that awarded monetary compensation to a person for the
violation of his fundamental rights guaranteed under the
Constitution.
– The grant of such monetary compensation was in addition,
– and not to the exclusion,
– to the right of the aggrieved person to bring an action for damages
in civil law or in tort.
Rudul Sah’s…..
– the petitioner was not released from the jail upon his acquittal and
that he was reported to be insane.
– But it discloses no data on the basis of which he was adjudged
insane,
– whether it took 14 years to set right his mental imbalance.
– No medical opinion is produced in support of the diagnosis
– what kind of medical treatment was prescribed for and
administered to him and for how long
Observation..
– Thus, before being released, a person who is granted bail would be required to
execute a bond agreeing to adhere to the conditions of bail.
– This bond is for a certain sum of money as set by the Court, if the person
defaults on a bail condition,
– the Court will forfeit the bond and require the person to pay the money as
penalty.
– On failure to do so, the penalty will be recovered in a similar manner as a fine
imposed by the Court.
– If the penalty amount cannot be recovered then the person shall be liable for a
civil imprisonment up to 6 months.
Cont…
– The court shall record reasons for this in writing. The second proviso to the
section states that no accused person shall be detained for a period longer than
the maximum period of imprisonment for the offence.
– For successful implementation of this provision, the Supreme Court of India laid
down guidelines in Bhim Singh v. Union of India. It directed the jurisdictional
Magistrate/Chief Judicial Magistrate/Sessions Judge to hold one sitting per
week in each jail/prison for two months from October 1, 2014 to identify under-
trials eligible for bail under sec. 436-A of Cr.P.C and to pass an appropriate order
with respect to sec. 436-A of Cr.P.C in the jail itself. It directed the Jail
Superintendent of each jail/prison to facilitate the process.
Cont…
– Moreover in the case of R.D. Upadhyay v. State of Andhra Pradesh the Supreme Court had
held that under-trials charged with attempt to murder should be released on bail if their
case has been pending for 2 years or more; and that persons charged with comparatively
minor offences like theft, cheating, etc., should be released if they have been in prison for
more than a year. The Court added two important instructions:
1) The trial courts were obligated to consider such persons for bail. The court clarified that it was not
necessary for under-trials to move an application for bail.
2) The Court directed that where an under-trial is not in a position to furnish sureties, the court should
examine whether the person can be released on furnishing a personal bond. In the current system
of money bail and release under sec. 436A Cr.P.C., after serving half of the maximum sentence, it
must be considered whether, given the duration of maximum imprisonment in many offences,
release after serving half the duration serves the cause of justice.
Conclusion
– Hence, there is a dire need to a reform the current bail process as it not only
prejudicial to the destitute as well as cause a problem on the state in form of
under trial prisoners, over congestion in jails and a new alternatives should be
suggested which can be used as a deterrent for assuring the compliance of the
bailed offender instead of the current money based system.