Bail Jurisprudence in India

Lessons From The Law 

Rayees Ahmed Wani
Author is Senior lecturer at KCEF Law College Pulwama

Criminal Justice system in any countryis generally gigantic and complex bestowed with multifarious goals, amongst which the safety and society of its citizens is primary. In Indian criminal justice system, apart from many agencies involved, Police and its role in preventing and deterring crime has always been a central point of discussion.Their role in the system become crucial by the fact that they form the link between the society members and the system whereby they not only conscientiously detect the crime and criminal but also ensures the fair application of law in doing so. A meticulous investigation has always been contended as a prerequisite for the fair trial in a due process model followed in India, wherein firstly, there is presumption of innocence (barring few) till the guilt is proved beyond reasonable doubt; secondly, the benefit of doubt is to be given to the accused. In the aforesaid model, unlike crime control approach, the detentions of the innocent are seen as double failure of the system.A wrongful detention on one hand violate the rights of the person so detained and also leads to breach of the security of the society and therefore the strict adherence to this model emphasizes the prevention of unjustified detentions more than guilty going unpunished. Pre-trial Detentions as an integral part of investigations has always been questioned and despite the fact that Cr PC in the year 2005 has been amended for the purpose of decreasing the number of pre-trial detentions, the frequency of arrest remains the same. Arrest and the associated stigma attached has been a point of concern amongst judiciary and is been highlighted by the apex court. Issuance of notice under sector 41A has been insisted by the judiciary for the offences punishable up to seven years rather than arresting a person.Further, in addition, for mitigating the instances of unnecessary continued detentions, bail provisions in the code have played a vital role. Since the grounds for releasing the person are not exhaustively mentioned in the code, it leads to non-uniform application of the laws. Though courts have on various occasions while interpreting bail provisions in light of article 14, 19 and 21 reiterated that granting bail is a rule and its rejection is an exception but irony is that the data of under trial prisoners have time and again provedotherwise.
Reforms of Bail Jurisprudence

The Law Commission made Recommendations to reform thirteen different areas of bail jurisprudence. Firstly, it discussed the process of arrest. In its first recommendation under this category, the Commission argues that in order to prevent arbitrary arrest, Section 41 of the CrPC should be amended. The Commission suggests that Section 41 should make it mandatory for theInvestigation Officer to record the reasons in the Case Diary and daily Diary Register, prior to making the arrest. The Section should be amended to also make it necessary for the Investigating Officer to obtain written approval by the Officer in Charge of the police station. These steps would go some way in checking the practice of arbitrary arrests. In the second recommendation, it recommends amending Section 50 of the CrPC. This section asks the arresting authority toinform the arrestee in writing about the offence committed and the grounds of arresting. However, the language in which the notice is given to the arrestee must not necessarily be easy for the arrestee to understand. Every arrestee cannot be acquainted with the language known to the officials of the arresting authority. There have been a number of bitter experiences where the arresting officials handed over notices to semi-literate arrestees, written in the Queen’s English or, more accurately, in Indian bureaucratic legalese. Hence, the Commissionrecommends the language of writing to be one that is conveniently understood by the arrestee. This is a commendable suggestion. Section 50 should necessarily beamended to make it mandatory for the arresting authority/officials to inform the arrestee in a written language that he/she best understands. The third category ofrecommendations is on default or statutory bail and remand. The Commissiondiscusses the underlying problems majorly in two Sections of the CrPC. It talksabout the intricacies and complexities of Section 167.

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