LAW RELATED TO BAIL AND PERSONAL LIBERTY IN INDIA: A

SOCIO-LEGAL STUDY IN JAMMU & KASHMIR WITH SPECIAL

REFERNCE TO THE OFFENCES UNDER SPECIAL LAWS.

INTRODUCTION:

“The concept of bail is an important concept which is considered as one of

the freedom to an individual that serves and provides justice, public safety.

The prolonged incarceration of an individual is an unnecessary burden

upon the public treasury and a blot on the reputation of an individual who

has been arrested and detained for a long period of time without giving due

importance to the rights of a suspect/accused. The concept of bail is an

integral part criminal justice system in India and the world which provides

safeguard to the rights of an individual”.

Right to life and personal liberty as provided and envisaged in the

Constitution of India has to be preserved and protected by the state and other

organisations as established by the law. Bail is an important mechanism used

to ensure that the liberty of an accused facing a trial or charges cannot be

curtailed unless convicted by the Court of law.

The concept of bail is a basic part of the Indian Criminal Jurisprudence and it

is considered as a well established and a recognised principle among all the

judicial systems of the world.

The bail has been defined as the surety as well as guarantee for securing the

appearance of the suspect/accused person so that he be released during the

pendency of investigation and trial. The purpose of bail is to “secure the

presence as well as release of a person from legal custody who has been

detained for allegations regarding commission of an offence which are yet to

be proved after facing trials. While enlarging any suspect/accused on bail a

responsibility has been imposed upon him/her that he/she shall appear at the

place and at a specific time and date as designated by the authority so

enlarging him/her on bail. It is binding upon him/herself to submit to the

jurisdiction and judgment of the court”.

The Code of Criminal Procedure, 1973 has not defined the term bail,

although the offences have been differentiated as bailable and non-bailable

offences which are defined under section 2(a) of the code.

A bail is nothing but a surety inclusive of a personal bond from the accused.

It means that the accused person be released from custody either by the

orders of the Police or the Investigating Agency or by the orders of Court.

These are set or restrictions which are imposed upon a person/accused at pre-

trial stage while enabling any interference in the judicial process. Thus, it is a

provisional/restricted release of suspect/accused on the solemn undertaking

that the suspect/accused will cooperate both with the investigation.

It is a well recognized principle which has been reiterated by the Courts that

the Bail is the rule and jail is an exception.

The purpose behind bail is that a person is not guilty until proven so beyond

reasonable doubt. The right not to be detained and denied bail without a just

and reasonable cause is a most important element of a progressive criminal

justice system. It entrenches the effect of the presumption of innocence at the

pre-trial stage of the criminal trial process and safeguards the liberty of

accused persons. This right has two aspects: a person charged with an offence

has the indefeasible right not to be denied bail in absence of a reasonable

cause and the right to reasonable bail. In the first facet, a provision may not

deny bail without “just cause” there is just cause to deny bail only if the

denial occurs in a narrow set of circumstances, and the denial is necessary to

promote the proper functioning of the bail system and is not undertaken for

any purpose extraneous to that system. The second aspect, the right to

reasonable bail, relates to the terms of bail, including the quantum of any
monetary component and other restrictions that are imposed on the accused

for the release period. It protects accused persons from conditions and forms

of release that are unreasonable.

Laws which impose harsh conditions for grant of bail, may be essential in

public interest; so far, if trials are not concluded in time, the injustice

wrecked on the individual is immeasurable. Incarceration has further

deleterious effects where the accused belongs to the weakest economic strata;

immediate loss of living, and in several cases, scattering of families as well as

loss of family bonds and alienation from society. The Courts, therefore, have

to be susceptible to these aspects as and when the accused/suspect got

acquittal from the charges, the loss incurred upon the accused would be

irreparable), and ensure that trials-especially in cases, where special laws

enact stringent provisions, are taken up and concluded speedily.

Release/Bail of accused pending appeal: Release/bail of a person while a

case is before an appellate Court as an appeal, the same differs from pre-trial

release or bail which is granted during the trial because the guilt of the

accused has been established. For the reason, a person who has been

sentenced and has filed an appeal shall be detained in a custody unless and

until the judge finds that the evidence against the accused is clear ;
The person is possible neither to flee nor present a danger to other persons or

society and

 Appeal raises extensive questions of fact or law which is likely to result

in reversal or an order of new trial.

Bail In Special Acts:

In an offences which are punishable under Special Acts like Narcotic Drugs

and Psychotropic Substances Act, 1985 (NDPS Act, 1985), Protection of

Children from Sexual Offences Act, 2012 (POCSO, 2012), The Unlawful

Activities Prevention Act, 1967 (UAPA, 1967), provisions of the Code of

Criminal Procedure, 1973 applies. However, these acts contain stringent

provisions for bail like NDPS(S. 37), UAPA (S. 43 D (5)), POCSO , PMLA

(S.45) and in that case the Courts before whom bail applications are pending

take stringent views and assumes the criminal intent of accused/suspect.

ANTICIPATORY BAIL UNDER SPECIAL ACTS:

Most of the times it has been seen that for seeking pre-arrest bail

(anticipatory bail) in the offences under special acts, provisions of the Code

i.e. section 438 has to be relied upon. The NDPS Act, POCSO Act, UAPA

Act are classic examples. Despite the fact that there is no exclusion of
anticipatory bail in special acts except SC&ST Act, the Courts in India are

reluctant to grant anticipatory/pre-arrest bail for offences under special acts.

JUSTIFICATION:

The Constitution of India is called as the mother of all laws and the framers

of Indian Constitution gave more importance to the Life and liberty of an

Individual and made it as a Fundamental Right of an individual. However,

the Indian legislators and courts are still following the Codes enacted by the

Britishers. The Code of Criminal Procedure has contained only few

provisions regarding the grant of bail to an accused persons and the scope of

those provisions are limited to some extent and the bail application are

regarded in a negative sense and the courts in India decides the bail

applications contrary to legal principles. Moreso, the possibility of conviction

in most of the cases are also abysmally low in criminal cases in India and an

ultimate acquittal with continued custody would be a case of grave injustice.

As per the Criminal Courts in general with the trial courts in particular are the

guardian angels of liberty which has to be preserved, protected and enforced

by the Criminal Courts and other agencies like Police/Investigating agencies.

There is a responsibility upon the Criminal Courts to uphold the

constitutional thrust by acting like a high priest. Most of prisoners in India

are incarcerated due to slow process of investigation and incompletion of

trials in time bound manner.

A code is required to cast a duty upon the Investigating agencies and the

Courts to complete the investigation and trial within a prescribed time and

failing which would enable the release of an accused.

There are some prisoners who despite of enlarging on bail could not fulfil the

conditions which have been imposed by the Courts and those persons still

remained incarcerated.

Incarceration has been considered as the uppermost form of taking away of

liberty of a human being. In order to maintain balance and to deal with this

extreme measure in the interest of public safety and human rights the bail

serve an important device to ensure that the criminal trial is not vitiated.

Therefore, a separate enactment or law for regulating bails is needed to be

introduced so as to streamline the grant of bails especially in offences

punishable under special acts.

RESEARCH PROBLEM:

In view of the above stated reasons, the researcher thought it pertinent to

conduct a study on the topic, “Law Related to Bail and Personal Liberty in

India: A Socio-Legal Study in Jammu & Kashmir with Special

Reference to the offences Punishable Under Special Laws.

OBJECTIVES:

1. To study and analyse the existing laws on bail.

2. To understand the concept of bail in cases/offences punishable under

Special Acts.

3. To demonstrate the need for codification of bail law in India.

4. To examine and analyse the attitude of Judicial Officers, Investigating

Agencies, Prison Authorities, members of legal fraternity.

5. To interpret Judicial approach in relation to rights of accused persons.

HYPOTHESIS:

The researcher while conducting research/study will keep in view the

following hypothesis:

1. The Legislative provisions regarding bail are sufficient.

 2. Persons accused of offences punishable under Special Acts have

the same rights to be released on Bail.

3. Provisions and guidelines regarding bail in India are more tilted

towards accused persons.

4. The concept of bail is a rule and jail is an exception is followed

by the Courts in India.

5. The Judicial approach in relation to the personal liberty of an

individual is positive.

METHODOLOGY:

The research/study is non-doctrinal in nature and would be based on

analytical and empirical method. The methodology followed in the present

study would be empirical, comparative and analytical.

Research Design:

The present study tries to explore and understand the various problems

faced by the accused persons while seeking bail using empirical study

method and the need for reformation or evolution of concept of bail.

Data Collection:
 The data for conducting the study comprises of both primary and

secondary sources and the researcher will rely on both primary as well as

secondary sources. Primary information will be collected in the field through

interview schedules, personal interviews and field observations. The

interview schedule will consist of structured close as well as open ended

questions to get a better response from the respondents. The date will also be

collected from the Judicial Officers, Accused persons, Practicing Advocates,

General Public, Officers of prison authorities, Police Officers, Investigating

Officers of various Police Stations, Jail Inmates/prisoners etc.

The secondary data will include Constitutional and Statutory provisions

regarding bail, Interview schedule/questionnaire methods, Law Commission

reports, Constitutional Assembly Debates, Case Laws, Research Articles

published in various Journals, Online websites, newspapers, magazines and

relevant material available through other sources.

The researcher will take on a mixed method of research by amalgamating the

quantitative and the qualitative data. Nevertheless, for understanding the legal

framework analysis, doctrinal methodology will also be adopted. Further the

comparison of the data collected by both these methods will indicate the

presence of any convergence, diversity or some amalgamation.

SAMPLING UNIT:

For sampling, stratified and purposive sampling method shall be used. A total

number of 650 repondents will be chosen from the Province of Jammu which

will comprise of Judicial Officers, Police Officers, Practicing Advocates,

Defense Lawyers, Public Prosecutors, Academicians, Officers of Prison

authorities, General Public, Accused persons, Jail inmates/prisoners.

CHAPTERISATION:

Chapter 1: Introduction to the concept of personal liberty and bail.

Chapter 2: Historical, International and Indian Perspective of bail.

Chapter 3: Legislative provisions regarding rights of accused facing trial

and the provisions of bail in offences punishable under Special Acts in Indian

Criminal Justice System.

Chapter 4: Judicial Approach towards life and liberty of an accused facing

trial.

Chapter 5: Research Methodology and Data Interpretation.

Chapter 6: Concluding Observations.

PLAN OF PROPOSED WORK:

FIRST YEAR:

In the first year, the researcher would primary focus on the existing literature

in the field of bail laws in India. The researcher will simultaneously work on

his literature review, analysing books, journals,s articles, law commission

reports etc.

Designing of questionnaire in terms of objectives and the relevance of the

study will also be undertaken after reviewing the literature.

Rough draft of first two chapters of the proposed work shall be prepared.

SECOND YEAR: Researcher will be focusing on collecting empirical data

within the Province of Jammu via Interview schedule/questionnaire.

Researcher will also analyse the information collected in tabulated form.

Researcher will also make a paper presentation and publish the paper related

to the topic of the study. Data shall be collected and rough draft for 3 rd, 4th

and 5th chapters shall be prepared.

THIRD YEAR: In the last year, the researcher will focus on the completion

of data analysis and write a final report on the thesis.

REVIEW OF LITERATURE:
1. Manoj Kumar Sinha, Anurag Deep BAIL LAW AND PRACTICE IN

INDIA (2019), The Indian Law Institute New Delhi: This book covers

the wide spectrum of bail jurisprudence in India. This book further

concerns about the statutory provisions as well as the constitutional

principles that dealt with the bail under CrPc 1973. The provisions of

bail under special legislations have also been analysed in this book. The

book also examines provisions from foreign jurisdictions wherever

desirable.

2. 268TH Law Commission Report: In the year 2015, the Department of

Legal Affairs under the Ministry of Law and Justice asked the Law

Commission to examine the need of Specific Act of Bail. The report

mainly focuses on the problems prevailing related to bails and

Anticipatory bails. Further the report advised the Courts to adopt and

devise a uniform method to provide Bails in various cases. The report

further included the draft of the Criminal Law Amendment Bill 2017

which was the nurturer of Criminal Law.

3. ACCUSED AND UNCOVICTED, A Brief on Bail Practices, New

York Senate Research Service 1978; The paper work traces and

discusses the presumption and pre-trial of an accused of an offence in

the United States of America. The paper further studies that how the

presumption as well as pre-trial agencies are established just to get the

accused bailed out so that he can face trial.

4. TAKING BAIL SERIOUSLY- THE STATE OF BAIL

JURISPRUDENCE IN INDIA (2020) LexisNexis; The author of this

book focused on different areas related to bail law in India. This book

also highlighted significant areas of concern on the procedure and

nature of bail jurisprudence in India. The book focuses on stringent

provisions as envisaged under special legislations in contrast to an

earlier jurisprudence which was subjugated by more liberal notions that

tilted in favour of granting bail rather its denial.. The study further

highlights on the fact that no judge made precedent/law or guideline

can bind a judge in actuality while adjudicating a bail

matter/proceeding and the author also criticise the rampant judicial

prudence that operates in case of anticipatory or regular bail.

5. AMNESTY INTERNATIONAL REPORT ON HUMAN RIGHTS

2017: The report demonstrated the failure of institutional mechanisms

designed to protect under-trial prisoners and supervise jails in India. It

found that despite the average occupancy rate in Indian prisons

reaching 114%, very few prisons have identified under-trial prisoners

who are eligible to be released on their personal bond i.e. under trial

prisoners who have spent more than half of the maximum period of

imprisonment prescribed for the offence of which tey have been

accused. It also presented data on the shortage of Police escorts to

produce under-trial prisoners in Court and the failure of legal aid

lawyers to visit prisons regularly, which effectively prolongs their

period of detention.

6. PROTECTION OF PERSONAL LIBERTY AND LAW OF BAIL, s.s

Upadhyay, ; This study mainly focused on the protection of personal

liberty of an individual who is accused of an offence. The author in his

work further made an effort to discuss the provisions, guidelines and

the precedents as setup by the Judicial Courts in India regarding

protection of personal liberty and bail to an individual. The study

 further highlights the importance of liberty and the duties of Courts to

protect the rights of an accused.

7. E K Naroola, Udhyan Mukerji, LAW OF BAIL, OakBridge; The

authors in their work have discussed the historical evolution of law of

bail in India, its origin and its jurisprudential development. The concept

and provisions relating to post-conviction bail have been examined in

detail in this book. Further the authors have delved upon the need for

such specific provisions relating to bail in offences punishable under

special acts like NDPS, UAPA, PMLA, POCSO.

8. LAW OF BAIL, PRACTICE AND PROCEDURE, Second Edition,

LexisNexis, Asim Pandya; The author in his book explains the

fundamental concepts pertaining to bail as well as the intricate issues

connected with the administration of bail jurisprudence. The author

further discussed the issues relating to bail that frequently arise in

Courts in India.