PDC Project

8/18/2019 PDC Project

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ACKNOWLEDGEMENT

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INDEX

Introduction………………………………………………………………………………..

….4

Meaning of

Bail……………………………………………………………………………….5

History of

Bail................................................................................................................

...........6

Eolution in

England.........................................................................................................

.......!

"urrent

Practice.........................................................................................................

...............#

Eolution in

$merica………………………….......................................................................%

"urrent

Practice…………………………………................................................................

...&'

(egal Position in

India…………………………………………............................................&'

)udicial

*rend……………………………………………………….....................................&5

"onclusion………………………………………………………………………………......

&!

Bi+liogra,hy………………………………………………………………………………...

&%

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INTRODUCTION

)ustice as -e kno- -as a right fundamental to all +ut it/s fallacy is

eident as money no- results in its fall. 0+1ectiely analy2ed the criminal

1uris,rudence ado,ted +y India is a mere re3ection of the ictorian legacy

left +ehind +y the Britishers. *he ,assage of time has only seen a fe-

amendments once in a -hile to satisfy ,ressure grou,s and ote +anks.

Pro+a+ly no thought has +een gien -hether these legislations -hich

hae eisted for almost seen decades hae taken into account the ,light

and the socioeconomic conditions of !78 of the ,o,ulation of this

country -hich lies in utter ,oerty. India +eing a ,oerty stricken

deelo,ing country needed anything +ut a +lind co,y of the legislations

,realent in deelo,ed -estern countries.

*he conce,t of +ail -hich is an integral ,art of the criminal 1uris,rudence

also su9ers from the a+oe stated dra-+acks. Bail is +roadly used to refer

to the release of a ,erson charged -ith an o9ence on his ,roiding a

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security that -ill ensure his ,resence +efore the court or any other

authority -heneer re:uired.

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$ reading of the a+oe de


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HISTORY OF BAIL

*he conce,t of +ail can traced +ack to '%% B" -hen Plato tried to create

a +ond for the release of Socrates. *he modern +ail system eoled from a

series of la-s originating in the middle ages in England.

Evol!"o# "# E#$l%#&

*here eisted a conce,t of circuit courts during the medieal times in

Britain. )udges used to ,eriodically go on circuit to arious ,arts of thecountry to decide cases. *he terms Sessions and Fuarter Sessions are

thus deried from the interals at -hich such courts -ere held. In the

mean-hile the under trials -ere ke,t in ,rison a-aiting their trials. *hese

,risoners -ere ke,t in ery unhygienic and inhumane conditions this -as

caused the s,read of a lot of diseases. *his agitated the under trials -ho

-ere hence se,arated from the accused. *his led to their release on their

securing a surety so that it -as ensured that the ,erson -ould a,,ear onthe a,,ointed date for hearing. If he did not a,,ear then his surety -as

held lia+le and -as made to face trial. Slo-ly the conce,t of monetary +ail

came into eistence and the said under trials -as asked to gie a

monetary +ond -hich -as lia+le to get forfeited on nona,,earance.

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In *he Magna "arta in &@&5 the $

Magistrate shall discharge ,risoners from their Im,risonment taking their

Aecogni2ance -ith one or more Surety or Sureties in any Sum according

to the Magistrate/s discretion unless it shall a,,ear that the Party is

committed for such Matter o9enses for -hich +y la- the Prisoner is not

+aila+le.> In &6#% came *he English Bill 0f Aights -hich ,roided

safeguards against 1udges setting +ail too high. It stated that >ecessie

+ail hath +een re:uired of ,ersons committed in criminal cases to elude

the +ene

C(()#! *(%+!"+)

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In &%!6 the Bail $ct &%!6 came into force. It sets out the current and the

+asic legal ,osition of +ail ,reailing in England. It lays out that there is a

general right to +ail ece,t as ,roided for under the ;irst Schedule of the

$ct. =hile there are di9erent grounds for refusing the right to +ailde,ending on the ty,e of o9ence for all im,rison a+le o9ences the t-o

+asic grounds are as set out +y the 0/"allaghan decision. But there is also

the additional ground that if the court is satissu+stantial grounds for +elieing> that the defendant if released on +ail

-ill commit an o9ence -hile on +ail +ail may +e refuse. nder section

5'C of the Bail $ct &%!6 the court -hich -ithholds +ail is re:uired to gie

reasons so that the defendant can consider making an a,,lication. In

,ractice ho-eer the reasons gien +y English courts on a ariety of

standard forms are fre:uently short and not e,licitly +ased u,on

,articular facts and factors. Stone/s )ustices/ Manual suggests that

magistrates announce any decision to refuse +ail merely +y relating the

grounds and statutory reasons in short form.

English administratie la- also re:uires that -here there is an eistingo+ligation to gie reasons for a decision the reasons gien +e clear and

ade:uate and deal -ith the su+stantial issues in the case.

*he English courts use tick +oes for recording the grounds and the

reasons for not granting +ail. *here is a use of a standard ,attern that

-hich lists out the arious reasons for not granting the +ail. *hese forms

ary in their ,recise con or >stereoty,ed> and therefore

inade:uate. *he :uality of the reasons gien directly re3ects the :uality of

the decisionmaking ,rocess.

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Evol!"o# "# A.)("+%

$ccording to the San ;rancisco e-s and the S; "hronicle the


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C(()#! *(%+!"+)

nder current la- a defendant has the right to +ail unless there is

suGcient reason not to grant it. *he main reasons for refusing +ail

according to the Bail $ct &%!6 are that there are su+stantial grounds for

+elieing that the defendant &C -ill a+scondJ @C -ill commit further

o9ences -hilst on +ailJ or 'C -ill interfere -ith -itnesses. "onditions may

+e a,,lied to the grant of +ail such as liing at a ,articular address or

rarely ,aying an amount into court or haing someone act as surety.

Aelease on +ail is sometimes referred to as ,olice +ail -here the release

-as +y the ,olice rather than +y a court. *he alternatie to +eing granted

+ail is +eing remanded into custody also called +eing held on remandC.

In $merica eery accused ,erson is entitled to a hearing at -hich

eidence releant to his indiidual case is considered to determine the

amount of +ail necessary. o ,recise rule can +e laid do-n that -ill

determine the amount of +ail re:uired in any ,articular instance. Bail is to

+e


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*he amount of a +ond should of course +e suGcient to assure the

attendance of the defendant u,on the court -hen it is re:uired. *he +ond

should +e


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*he gist of the ,ro+lem confronting a court in setting the amount of +ail is

to ,lace the amount high enough to reasona+ly assure the ,resence of

defendant -hen it is re:uired and at the same time to aoid a


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5C health of the accused

6C character and strength of the eidence

!C ,ro+a+ility of the accused a,,earing at trial

#C forfeiture of other +onds and

%C -hether the accused -as a fugitie from 1ustice -hen arrested.4

*hat the accused is under +ond for a,,earance at trial in other cases

should also +e considered. $ ma1or factor in determining the amount of

+ail in a current matter is the character and former criminal record of the

defendant. It has +een held ho-eer that the criminal actiities and

tendencies of a ,erson a,,lying for +ail on a charge of agrancy do not

1ustify the


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*he ,ro+a+ility of the esta+lishment of guilt at the trial or the eistence of

dou+t as to the guilt of the accused is a ,ro,er consideration in

determining the amount of +ail. Hence a court in determining the amount

of +ail may consider the character and strength of the eidence +y -hichthe crime charged is su,,orted.

$ court should gie some regard to the ,risoner/s ,ecuniary

circumstances since -hat is reasona+le +ail to a man of -ealth may +e

e:uialent to a denial of the right to +ail if eacted of a ,oor man charged

-ith a like o9ense. $n accused cannot +e denied release from detention

+ecause of indigence +ut is constitutionally entitled to +e released on his,ersonal recogni2ance -here other releant factors make it reasona+le to

+eliee that he -ill com,ly -ith the orders of the court.

Ho-eer +ail is not rendered ecessie +y the mere ina+ility of the

accused to ,rocure +ail in the amount re:uired. In other -ords the etent

of the ,ecuniary a+ility of the accused to furnish +ail in not controlling if it

-ere the *here is ,o-er in the court to release the defendant -ithout +ail or on his

o-n recognition.>

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T/) L)$%l *o0"!"o# "# I#&"%

*he "riminal Procedure "ode &%!' "r.P.". hereinafterC does not de. ;urther ss. 4'6 to 457 set out the

,roisions for the grant of +ail and +onds in criminal cases. *he amount of

security that is to +e ,aid +y the accused to secure his release has not+een mentioned in the "r.P.".. *hus it is the discretion of the court to ,ut

a monetary ca, on the +ond. nfortunately it has +een seen that courts

hae not +een sensitie to the economic ,light of the -eaker sections of

society. *he unreasona+le and eor+itant amounts demanded +y the

courts as +ail +onds clearly sho- their callous attitude to-ards the ,oor.

$ccording to the !#th re,ort of the (a- "ommission as on $,ril & &%!! of a total ,rison ,o,ulation of &#4&6% as many as &7&7#' roughly 558C

-ere undertrials. ;or s,eci


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0ne of the reasons for this is as already mentioned a+oe is the large

scale ,oerty amongst the ma1ority of the ,o,ulation in our country.

;ragmentation of land holdings is a common ,henomenon in rural India. $

family consisting of around # out of &7 mem+ers de,ends on a small ,ieceof land for their su+sistence -hich also is a reason for disguised

unem,loyment. =hen one of the mem+ers of such a family gets charged

-ith an o9ence the only -ay they can secure his release and ,aying the

+ail is +y either selling o9 the land or giing it on mortgage. *his -ould

further ,ush them more into the 1a-s of ,oerty. *his is the ,recise reason

-hy most of the under trials languish in 1ail instead of +eing out on +ail.

Fo(.%! o Al"+%!"o#

$ ,erson may +e accused of a Baila+le or a on Baila+le o9ence. In case

of a +aila+le o9ence the accused has a right to secure his release +y

a,,lying for +ail under S. 4'6&C of "r P " -hile in case of non+aila+le

o9ence the accused may +e released +y the court on its discretion after

he a,,lied for +ail under S. 4'!&C of "r P ". In case of a +aila+le o9enceif the accused in indigent he may +e released my eecuting a ,ersonal

+ond -ithout sureties.

*he a,,lication for +ail is made to the court in -hich the accused is tried

that de,ends on the o9enceC. Ho-eer S. 4'% gies s,ecial ,o-ers to

H" and "ourt of Session to release a ,erson on +ail after im,osing certain

conditionsC and so an a,,lication may +e made to H" or "ourt of Session

as -ell if the ,erson is under arrest.

o eri


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UDICIAL TREND

$n oerie- of the follo-ing cases highlight the aderse condition of the

,oor -ith regard to the un1ust +ail system in India. In State of Aa1asthan

Balchand 5 the accused -as conicted +y the trial court. =hen he -ent

on a,,eal the High "ourt it ac:uitted him. *he State -ent on a,,eal to

the Hon/+le Su,reme "ourt under $rt. &'6 of the "onstitution through a

s,ecial leae ,etition. *he accused -as directed to surrender +y the court.

He then


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In Maneka Oandhi nion of India! )ustice Nrishna Iyer once again s,oke

against the unfair system of +ail that -as ,reailing in India. o de


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CONCLUSION

$ ,erusal of the a+oe cases highlights the strong anti,oor +ias of the

Indian criminal 1ustice system. Een though the courts in some cases hae

tried to interene and also hae laid do-n certain guidelines to +e

follo-ed +ut unfortunately nothing has +een done a+out it. *here is also a

strong need felt for a com,lete reie- of the +ail system kee,ing in mind

the socioeconomic condition of the ma1ority of our ,o,ulation. =hile

granting +ail the court must also look at the socioeconomic ,light of the

accused and must also hae a com,assionate attitude to-ards them. $,ro,er scrutiny may +e done to determine -hether the accused has his

roots in the community -hich -ould deter him from 3eeing from the court.

*he court can take into account the follo-ing facts concerning the

accused +efore granting him +ail

&C *he nature of the o9ence committed +y the accused.

@C *he length of his residence in the community.

'C His em,loyment status history and his


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%C $ny other factors indicating the ties of the accused to the communityor +arring on the risk of -illful failure to a,,ear.

It is thought that from the arious schemes the goernment o,erates for

rural em,loyment loans to farmers etc a ,ortion of the funds -hich it

transfers to the ,anchayat for deelo,mental -ork of the same should +e

set aside and ke,t to meet the +ail amount for undertrials +elonging to

the ,articular ,anchayat ? +lock. *he utili2ation of this fund -ould +e in

the hands of the elected leaders of the society -ith the re,resentatie of

district collector ? district magistrate +eing a ,art of the system. *his

-ould go a long -ay in securing freedom for scores of undertrials -ho

-ould then +e a+le to contri+ute to society there+y ,laying an im,ortant

role and forming ,art of the national mainstream. Such a scenario -ill

hae the e9ect of reducing the +urden of oercro-ding in 1ail.

*he setting u, of se,arate 1ails or at any rate isolating undertrials from

conicts -ould ,reent hardened criminals from eercising their

deleterious in3uence oer undertrials. Such segregation -ould also

change the attitude of 1ail authorities and society at large to-ards under

trials.

*he under trials -ho hae +een charged -ith ,etty crimes can further +e

,ut in reformatie homes instead and asked to do community serice till

the time they are released on +ail. Elementary education facilities must +e

granted to those under trials -ho are uneducated and illiterate. *hus I

feel that the +ene


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BIBLIOGRA*HY

I ,erused the follo-ing material for the making of this ,ro1ect

&.*he (a- of Pleadings in IndiaQ P.". Mogha ).M. Sriastaa O.". Mogha

Eastern Book "om,any (uckno-.

@. *et+ook on Pleadings Drafting and "oneyancing +y Dr. $.B.

Nafaltiya

'. Dr. .. Paran1a,e "ode of "riminal Procedure &st edn. @775

"entral (a- $gencyC.

4. D.D. Basu "ommentary on the "onstitution of India #th

edn.=adh-a ag,ur @77&C

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