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Recently when Teesta Seetalvad, a social activist for some and an accused of forgery for others, was granted an interim bail by the Supreme Court, in a rather hastily manner, the limelight again came on the bail and bond system of Indian judiciary. How is the bail granted? Who grants the bail? To whom the bail can be granted? Is the criteria uniform for everyone? And what is the overall status of bail demand in India? The writer tries to explain.
WHO-WHOM-HOW
Usually, it is the Sessions Court or High Court that grants a bail under section 436 (bailable offence), section 437 (non bailable offence) and section 438 (anticipatory bail), under CrPC, 1973. It was said in the Himanshu Chandravan Desai vs Gujarat that the final decision of granting or cancelling bail should be of the High Court. But the Supreme Court still remains an active participant in granting and cancelling bails. Earlier Supreme Court had explained its position in the State of Maharashtra vs Captain BudhikotaSubha Rao, 1989 case, where it said, “It is true that Supreme Court does not interfere with an order granting bail but judicial discipline will be sacrificed at the altar of judicial discretion if jurisdiction under article 136 is refused to be exercised”. Article 136 vests the Supreme Court with a special power to grant special leave to appeal against ‘any’ judgement or order. In a country like India, which follows an ‘integrated judicial system’, such large extent of power given to Supreme Court is not surprising at all.
Now, to whom the bail can be granted is a question that often leads to intense legal battles inside the courtroom. Chapter 33 of CrPC includes certain provisions under which an accused can file a bail plea for a bailable or non bailable offence under certain conditions. However, certain exceptions are also present under which the bail plea can be rejected. In the absence of legal clarity and uniformity, these conditions and exceptions have no real value, and the bail provisions have completely become a discretionary power of courts.
For instance, take the case of Deepak Shrikant Aggarwal vs State of Maharashtra, where the Bombay High Court refused to give bail to the accused, even when he had spent 6 years in custody for an offence which attracts the maximum punishment of 7 years. This was despite the fact that section 436A of CrPC asks to release a person ‘who has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence’. It was only when the matter went to the Supreme Court that the relief was granted.
Even in the case of Ms Teesta Seetalvad, the difference of opinion between the Supreme Court and High Court over this discretionary power was clearly visible. The High Court, on the charge that Ms Seetalvad had been booked under section 120B (criminal conspiracy), which is a non bailable offence, refused to grant her bail. But, the Supreme Court, in an extraordinary move, immediately provided her interim relief. In recent times, this discretionary power has come under the scrutiny of public.
Now, when we move to the next question, how is a bail granted, it appears to be a rather simpler process. If the Court grants bail, a bond is furnished and the person is released. But when we look at the Indian prisons it appears that it is where the real problem lies. Nearly 3 of the 4 prisoners are undertrials and one of the major reasons of them languishing in jails is that they don’t have enough money to get a bail bond. And this bail bond is not always in lakh of rupees. It was a mere ₹5000 each for Bhawan Singh, Jai Singh and Sukhsen Gond who remained in prison for 9 years, despite getting a bail. One can only wonder at the working style of our legal system where the likes of Teesta are granted bail within hours, but lakh of others keep pondering in jails due to lack of money.
Decades ago, Justice Krishna Iyer had raised his voice against this unfair system of bail administration. He said that though ‘while the pecuniary bail has a tradition behind it, a time for rethinking has come’.
It is the right time for the judiciary to rebuild the bail and bond system of India on at least two fronts. By creating an objective and uniform criterion while granting a bail and reconsidering the stringent criteria while furnishing a bond, peoples trust in the judicial system can be maintained. Otherwise, the tryst with judicial activism may not auger well due to the lack of people’s belief in the judicial process.
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