The Supreme Court, on July 11, 2022, recommended that the Union government introduce a separate law on bail to streamline the bail process. "The Union of India may consider the introduction of a separate enactment in nature of a bail Act so as to streamline the grant of bails," observed a bench comprising Justices Sanjay Kishan Kaul and MM Sundaresh, while delivering its verdict in Satendar Kumar Antil versus Central Bureau of Investigation.

The bench also highlighted the dire situation of jails and spoke of overcrowding of undertrial prisoners, indiscriminate arrests, etc.

According to National Crime Records Bureau's Prison Statistics Report 2020, 76% of all prison inmates in the country are undertrials and of these, 68% were either illiterate or school dropouts. The remaining 23% were convicts and 0.7% were detenues. Overcrowding in prisons also violates the 'United Nations Standard Minimum Rules for Treatment of Prisoners' (The Mandela Rules) as it leads to inhumane conditions of prison inmates.

Over 4.1 crore cases are pending in various courts in the country, including 70,239 pending cases in the Supreme Court and 56.7 lakh cases in high courts, according to a Lok Sabha response given by Union Minister of Law & Justice Kiren Rijiju.

The Supreme Court suggested framing the law on the lines of the United Kingdom's law on bail. The Bail Act of the United Kingdom, 1976, recognises bail as a "general right". According to the SC, UK's law focuses on reducing overcrowding of undertrial inmates in prisons. Under the law, for rejecting bail, the prosecution must show substantial grounds for believing that the defendant, if released on bail, would fail to surrender to custody or commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice.

Current Laws on Bail in India

The Code of Criminal Procedure, 1973, under Section 2(a), classifies offences under the Indian Penal Code (IPC) as 'bailable' and 'non-bailable' and Sections 438-450 deal with granting bail and bail bonds. Lastly, Sections 436 to 450 in the CrPC outline the list of procedures for granting bail and bonds in criminal proceedings.

Under this, the CrPC empowers magistrates to grant bail for bailable offences on presenting a bail bond, which is a document wherein a suspect is asked to furnish cash as security and property documents as sureties to ensure that they would attend the trial proceedings in court and not abscond. If the person released on bail fails to appear at the appointed time, it results in forfeiture of the security.

For a bailable offence like defamation the bond can be around Rs 20,000. Economic offences could go up to Rs 3-4 lakh. The gravity of the offence determines the bail bond amount depending on the degree of harm to others, criminal record, threat to the community, and the suspect's relationship with the community.

Bailable offences are considered to not be very serious in nature, such as rash driving, public servant disobeying direction under law, sale of obscene books, misconduct in public by drunken person, etc.

Whereas, in case of non-bailable offences, like murder, dowry death, kidnapping etc, bail is not considered a right but an exception and only courts can grant it. The magistrate can only grant bail in non-bailable offences under certain circumstances, such as ​​nature and seriousness of the offence, the character of the evidence, a reasonable possibility of the accused person's presence not being secured at the trial, reasonable apprehension of witness tampering, the larger interests of the public or the State, etc.

There are three types of bails in India:

Regular Bail: Under Section 437, 439 of the CrPC, in a bailable offence, a regular bail is granted to a person and they are asked to attend trial proceedings in the future.

Interim Bail: This is a temporary bail provided by court while an application for Anticipatory Bail or Regular Bail is pending before court.

Anticipatory Bail: This is a bail procured in advance, before an arrest takes place under Section 438 of CrPC. While the term 'anticipatory bail' is not defined in the CrPC, the Supreme Court, in case Balchand Jain v/s State of MP, mentioned anticipatory bail as "bail in anticipation of arrest."

Current Inadequacies in Bail System

Sarim Naved, a Supreme Court lawyer, told FactChecker that the court, during the July 11 verdict, stressed on several cardinal principles of criminal procedure and the need for legal reforms to streamline the law & order processes. "The ruling suggests that bail should not be ordinarily denied unless it is a serious case. The direction focuses on building a jurisprudence about bail being the norm and jail the exception," said Naved.

There exists a lack of uniformity in magistrates' decisions owing to the lack of a law on bail. Currently, judges have complete discretion in granting bail to a person. "The discretion ought to be circumscribed by written rules and laws made by Parliament, which currently don't exist. The new recommendations simply mean that while issuing bail a person's liberty should not be at the whims of any police officer or judge," said Naved.

Even the amount of the bail bond is left to the judge's discretion and since some people can't afford the amount, the judge is hesitant in granting them bail out of the fear of absconding. "The chances of bail depend on the bench that is hearing the case. One judge might be more inclined towards bail, another one, not so much. Some might take a harsh approach regarding criminal law. Ultimately, it's a matter of discretion," said the Supreme court lawyer. He added that different treatment of persons accused with the same offence can be a grave affront to Articles 14 and 15 of the Constitution.

Moreover, when a trial is delayed, and the likelihood of the trial ending soon is less, constitutional courts have the power to grant bail. However, the procedures and considerations on this aren't explained in the law, Naved explained.

Unreasonable bail bonds and conditions is another loophole. In the 1979 Hussairana Khatoon case, Justice PN Bhagwati highlighted that the poor were unable to furnish bail bonds. The CrPC was then amended in 2005 to include granting bail on the personal bond to a person who is poor or indigent without sureties and the addition of provision 436A, which further extended the scope of the right of bail application where the accused is incarcerated for the certain period prescribed in the provision. However, the amendment only focuses on bail as a right.

Cases Studies

In the Pappu Yadav vs the CBI case, the petitioner was in detention for more than five years because of delay in trial. Besides, the appellant's bail application was rejected 10 times citing seriousness of the offence. Previously, in Natabar Parida Bisnu Charan v. State of Orissa, the court held that even when the offence committed by the accused is of severe nature, it does not take away his right to be released on bail.

In the 2012 criminal conspiracy case of Sanjay Chandra, the Delhi High Court allowed pre-trial detention when the investigation was complete. The accused was under six months of detention without any charges framed against him under the IPC because there was no substantial evidence which was placed before the court indicating tampering with the evidence.

In the 1978 Moti Ram case, the accused, a mason, was asked to furnish a bail bond of Rs 10,000. He could not afford the amount and so the magistrate denied his bail application and further refused to accept the surety of the accused's brother because he and his assets were in another district. Later, after the intervention of the Supreme Court the amount was reduced to Rs 1,000.

Another example is the 2020 case where the Gwalior Bench of the Madhya Pradesh High Court granted bail to the accused on the condition that they will install a non-Chinese LED TV at the District Hospital, register as a "voluntary COVID-19 warrior" and donate money for COVID-19 relief.