‘Amendments to Criminal Procedure Code, 1973 – Provisions relating to Bail’ titled 268th report by the Law Commission headed by Justice BS Chouhan called the existing system of bail in India is Inadequate and Inefficient.
Law Commission of India in its 268th report related to bail system, made significant recommendations to change the bail provisions or relaxation in the bail provisions keeping in mind that the poor people do not get bail, and even when bail is granted, it is difficult for them to get sureties, it appears as if bail provisions are made only for the rich of the society and not for the poor. Generally when people who are not able to hire a lawyer or don’t have enough money to consult a lawyer suffer the most because of lack of knowledge of law.
The commission suggested various changes which includes
• Information regarding free legal aid
• Section 436A of Cr.P.C. where the under trial accused is involved in an offence the imprisonment up to seven years, he should be released on bail on spending one-third period of the maximum punishment prescribed for that offence.
• Bail application may normally be decided by the subordinate court within one week.
• the Court may not have a liberal approach in grant of bail in economic offences.
• In s. 438 of Cr.P.C. after examining large number of cases, recommended that anticipatory bail must be for a period prescribed by the Court granting such bail or till the charge-sheet is filed, whichever is earlier.
The Criminal Procedure Code, 1973 or Cr.P.C. talks in about the bail process in Indian legal system but nowhere defines the term ‘bail’.
Current Provisions related to Bail under Cr.P.C
• Section 2(a) Cr.P.C. states that bailable offence means “an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense.”
• Section 2(a) Cr.P.C. talks about schedule which refers to all the offenses under the Indian Penal Code categorizing them into bailable or non bailable offences.
• Offences punishable with imprisonment for three years or more have seen considered as non bailable offences, all other offenses are bailable offences.
• Sections 436 to 450 are the provisions for the grant of bail and bonds in criminal cases and also deals with amount of security that is to be paid by the accused to secure his release. However, still a lot of discretionary power has been vested into the court to put a monetary cap on the bond.
Bail as a Right and as Discretion
Generally, Bail in bailable offence is considered as the right of the accused. The accused need not apply for bail in bailable offence; the court is bound to give bail.
In case of non bailable offences, it is the discretion of the court. The accused has to apply for bail, it depends totally on the court whether to grant the bail or not.
So, that means that now there is a ray of hope that not only the rich but also the poor of the society will be benefitted by the law in terms of bail. Too much power vested in the courts regarding the monetary value of the bonds will be controlled. The courts monopoly with this regard will come to an end.