UNDERSTANDING PRE-CONVICTION ARREST AND BAIL
Pre-conviction Arrest – A Non Violative Procedure under Art 21
Right to liberty and freedom is a fundamental right of every person, provided for in our constitution which can only be eclipsed by ‘procedure established by law’ under Art.21. Post Maneka Gandhi vs UOI1 even the scope of ‘procedure established by law’ has been increased from a mere requirement of a legislative procedure to mandating the said procedure to be a non arbitrary one. Arresting, that is physical restraint of a person, directly violates Art.21 where it’s yet executed under the non arbitrary procedure established by law.
Rationale behind Pre-Conviction Arrest
The provision to arrest a person under S.41 of Cr.P.C, at the investigation stage even when the person’s conviction is not certain, is a discretionary power provided to the police primarily for securing the presence of such accused during the trial at the cost of limiting his/her liberty (Judicial custody) and secondarily for investigation purposes (Police custody).
Bail – Provisions to Grant back Liberty – How?
Bail provisions are provided for granting back the liberty that was restricted, in exchange of a promise by the accused to make himself available for investigation and the trial while not taking any measures to hinder process of administration of justice. The said promise, both customarily and legislatively, is to be backed by sureties which work as reinforcement mechanism of the promise. The amount for surety shall be directly proportional to the magnitude of the punishment that would be served by the accused, if convicted. In the words of J. Krishna Iyer in the case Gudikanti Narasimhalu Vs Public Prosecutor2.
“Relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence.”
“When the crime charged is of the highest magnitude and the punishment of it assigned by law is extreme severity, the court may reasonably presume some evidence that no amount of bail would secure the presence of the convict at the stage of judgement, should he be enlarged”
That is, severe the sentence, higher the surety amount and weaker the chances of a Bail being granted. The promise on becoming binding through sureties, shall remove the requirement of arrest, letting the court liberate the accused.
JUDICIAL DISCRETION AND BAIL
Bail – Provisions to Grant back Liberty – How?
Liberty is a sacrosanct element of human rights therefore restricting the same shall be only on the ground of a higher good to the society. The extent or boundaries of Bail provisions is to be judiciously balanced at a point which reasonably restricts fleet from justice while minimising unnecessary punitive harshness. The judicial discretion that applied here shall not be impressionistic in nature but rather a decision well informed and guided by law and reason. J.Iyer quotes Benjamin Cardozo
‘The judge while using his judicial discretion shall not yield to spasmodic sentiment....but shall exercise it informed by tradition, and methodised analogy disciplined by a system’. (Paraphrased)
The case3 lays down reasonable grounds through which the application of bail in a particular circumstance is to be evaluated.
- Nature of the accusation and severity of punishment if convicted
- Strength of the evidence against him/her
- Antecedents of the accused – History and socio geographical position of the accused is a reasonable indicator of the circumstances and habits of the offender thus could have an influence on the discretion.
- Previous acquittal or bail granted, if any – the panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the courts verdict
- Period severed in prison before conviction in relation to the actual punishment for the said offence4.
Additionally Cr.P.C under Ss. 437 and 438 lay down general conditions that ought not to be violated, violation of which shall cancel the granted bail on immediate effect. Shushila Aggarwal vs state (NCT of Delhi) held apart from the conditions laid under S.437,438 additional conditions can be imposed depending the circumstances of the case. Therefore the Bail can be denied if and only if a reasonable cloud of suspicion could be raised by the prosecution about a foreseeable violation of any of the conditions of bail. In any other circumstance the right to liberty shall be upheld by granting Bail invariably. Or in simpler words
‘Bail is the rule and jail is the exception’- J.Krishna Iyer
1 1978 AIR 597
2 (1978 AIR 429)
3 Ibid
4 S.436A of Cr.P.C limits the period to one half of the sentence enables the prisoner to bail with or without sureties