Indian System of Bail – Anti Poor

When objectively analyzed, the criminal jurisprudence adopted by India is merely a reflection of the Victorian legacy left behind by the British. We know that justice was a right that was fundamental to everyone, but its fallacy is obvious because money now causes its fall.Only a few amendments have been made over time to please pressure groups and vote banks.It’s likely that no thought was given to whether these laws, which have been in place for almost seven decades, have taken into account the plight and socioeconomic circumstances of 70% of this country’s people who live in absolute poverty.As a developing nation plagued by poverty, India required nothing less than a blind copy of Western developed-country legislation.

The aforementioned flaws also affect the bail concept, which is an essential component of criminal law.In general, the term “bail” refers to the release of a person who has been charged with a crime in exchange for the provision of a security that guarantees his presence in court or any other authority whenever necessary.

Meaning of Bail

The legal term “bail” refers to the method of getting a human unharness from jail whereas they’re awaiting a shot or charm by depositing security to ensure that they’re going to meet up with the suitable authority at the suitable time.The court that has jurisdiction over the unfortunate determines the security’s price, that is additionally stated as bail or, a lot of accurately, the bond.Cash, title papers to property, a personal person’s bond, or the bond of an expert bondsman or bonding company will all function security.The security is confiscate if the person free on bail fails to surrender at the appointed time.The term “bail” is found within the law lexicon  as “security for the looks of the suspect person on that he’s free unfinished trial or investigation.”

When an individual is underneath criminal arrest, the courts have a lot of leeway in granting or denying bail; for example, bail is usually denied once the suspect is charged with putting to death.

“Procure the discharge of an individual from legal custody, by enterprise that he or she shall seem at the time and place selected and submit himself or herself to the jurisdiction and judgment of the court,” is what bail is meant to accomplish. it’s clear from reading the definition on top of that money needn’t accompany the bail system.In rural Republic of India, the bulk of the population lives within the grip of economic condition and poorness, and that they do not even have enough cash to shop for one meal per day.Even though they need been charged with a bailable offense, within which the suspect is entitled to bail, they’re still needed to supply a surety.As a result, a poor person languishes in jail, subject to the atrocities of the jail workers, enclosed by seasoned criminals, and treated sort of a unfortunate.

History of Bail

The concept of bail can be traced back to 399 BC, when Plato attempted to make a bond for Socrates’ release.A set of laws that were passed in England during the middle ages led to the development of the current bail system.

Evolution in England

During the medieval period, Britain had a concept of circuit courts.Judges used to go on occasion?on the road?to various regions of the nation to resolve cases.Thus, the intervals at which these courts met are the source of the terms “Sessions” and “Quarter Sessions.”The people who were being tried were kept in prison while they waited for their trials.The inhumane conditions in which these prisoners were held contributed to the spread of numerous diseases.The undertrials became agitated as a result, and they were kept apart from the accused.Their release was contingent on securing a surety, which ensured that they would appear at the scheduled hearing date.His surety was held liable and ordered to stand trial if he did not show up.The idea of monetary bail slowly emerged, and the accused were required to post a monetary bond, which could be forfeited if they did not appear.

The first step in granting citizens rights was taken in 1215 with The Magna Carta.It stated that no man could be kidnapped or imprisoned without being judged by his peers or the law.

The Statute of Westminster, which distinguished between bailable and non-bailable offenses, was then enacted in 1275.Additionally, it determined which officials and judges could decide on bail.

The Right of Petition of 1628 was supplemented in 1677 by the Habeas Corpus Act, which granted the defendant the right to be informed of the charges against him and the ability to determine whether or not those charges were bailable.”A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate’s discretion, unless it shall appear that the Party is committed for such Matter offenses for which by law the Prisoner is not bailable,” reads the Habeas Corpus Act of 1679. “A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance,” according to the law.

The English Bill of Rights, which prevented judges from setting bail too high, was published in 1689.”To elude the benefit of the laws made for the liberty of the subjects, excessive bail hath been required of persons committed in criminal cases.”It should not be necessary to post excessive bail.

Current Practice

The Bail Act of 1976 came into effect in 1976.It outlines the fundamental legal situation surrounding bail in England at the present time.Except as expressly stated in the Act’s First Schedule, there is a general right to bail.According to the O’Callaghan decision, the two primary grounds for refusing the right to bail for all imprisonable offenses are different depending on the type of offense.However, there is also the additional ground that the court may refuse bail if it is satisfied that there are “substantial grounds for believing” that the defendant will commit an offense if released on bail.

In accordance with section 5(3) of the Bail Act of 1976, the court that withholds bail is obligated to provide reasons to the defendant so that the defendant can consider applying for bail.[3] However, in practice, the reasons provided by English courts on a variety of standard forms are frequently brief and do not explicitly reference specific facts and factors.English administrative law also requires that, where there is an existing obligation to give reasons for a decision, the reasons given be clear, adequate, and deal with the substantial issues in the case.[5] The English courts use tick boxes to record the grounds and reasons for not granting bail. Stone’s Justices’ Manual suggests that magistrates announce any decision to refuse bail simply by relating the grounds and statutory reasons in short form.[4]A standard procedure is followed in which the various reasons for not granting bail are listed.The specific arrangement of these forms varies, but in essence, they are all the same in that they list the reasons for refusing bail in one column and a number of possible reasons for finding those reasons in another.By selecting the relevant box in each column, the decision is recorded.However, the decisions that are recorded on standard forms might be interpreted as “abstract” or “stereotyped,” rendering them insufficient.The quality of the decision-making process is directly reflected in the quality of the reasons provided.

Evolution in the United States

According to the San Francisco News and the SF Chronicle, Tom and Peter P. McDonough founded the first modern Bail Bonds business in San Francisco in 1898. In this system, a person pays a percentage to a professional bondsman who puts up the cash as a guarantee that the person will appear in court.In point of fact, the Judiciary Act and the Bill of Rights were both enacted by Congress in the same year in England.This limited a judge’s ability to set bail and specified the kinds of crimes that could be bailable.The Act says that bail is possible for all non-capital crimes and that the judge should decide whether to hold a suspect before trial in capital cases.Through the 5th, 6th, and 8th Amendments in 1791, the Bill of Rights, which guaranteed citizens the right to a fair and speedy trial, the right to due process of law, and protection from bail that was too high, was incorporated into the Constitution of the United States.”Excessive bail shall not be required,” according to the United States Constitution’s Eighth Amendment, does not guarantee a right to bail.

Current Practice

According to the law, a defendant is entitled to bail unless there is a good reason not to.According to the Bail Act of 1976, substantial grounds for believing that the defendant (1) will abscond are the primary grounds for refusing bail.2) will commit additional crimes while being held on bail;or (3) will impede witness interaction.The grant of bail may be subject to certain conditions, such as living at a specific address or, in rare cases, paying a fee to the court or appointing a surety.When the release was granted by the police rather than the court, it is sometimes referred to as “police bail.”

Being remanded into custody, also known as being held on remand, is an alternative to bail.

Every accused person in the United States has the right to a hearing at which the bail amount is decided based on evidence relevant to his particular case.It is impossible to establish a precise rule for determining the required bail amount in any given case.Each case’s specifics will determine the amount of bail.The trial court typically has sound discretion in the matter.Although the appellate courts may review the trial court’s decision for abuse of discretion, they typically will not intervene if the amount set by the trial court is reasonable and not excessive.

Naturally, a bond should be large enough to ensure that the defendant will appear in court when required.The amount of the bond ought to be set at a level that will require the sureties to be vigilant to ensure that the defendant appears in court when called[6]. Excessive bail is against the law in both the federal and state constitutions.If a federal court sets bail, it violates the Federal Constitution, and if a state court sets bail, it violates the state’s constitution. If a federal court sets bail, it violates the state constitution. If a state court sets bail, it violates the Federal Constitution.However, there are currently no established guidelines for distinguishing between excessive bail and reasonable bail.That the bail is reasonable, which, given the nature of the crime, the punishment, and the likelihood of the defendant’s guilt, does not seem to be more than enough to ensure the defendant’s attendance.[7] The amount of bail is not the final indicator of excessiveness.A defendant’s past criminal record, the nature of the crime committed, and the consequent punishment are significant factors in determining whether bail is excessive.[8] As will be discussed below, what would be reasonable bail for one defendant may be excessive for another.

The fact that bail in one case, taken on its own, is considered to be reasonable does not prevent the total amount required in the multiple cases from being excessive. This is the case even when a defendant faces two or more cases.

When a court decides the amount of bail, the main challenge is balancing the need for a bail amount that is both high enough to reasonably guarantee the defendant’s presence when it is required and low enough to avoid being excessive.In federal courts, the general rule is to try to find a balance between the need for a connection to the jurisdiction and the right to be free from unnecessary restraint before conviction, depending on the circumstances of each individual accused.[9] In other words, the public good and the rights of the accused should be taken into consideration when determining the amount of bail.

Unless the judicial officer determines, in the exercise of his discretion, that such release will not reasonably assure the appearance of defendant as required, in which case specified conditions of release that will reasonably assure the appearance of defendant for trial may be imposed, the Bail Reform Act of 1966 provides for the release of the defendant on his personal recognizance or upon execution of an unsecured appearance bond in an amount specified by the judicial officer before whom he appears.President Johnson initiated the Bail Reforms Act of 1966 because he believed that the Federal Rules required bail to be excessively high in order to ensure the accused’s presence.

The following factors must be taken into consideration when determining the bail amount:

(1) the accused’s capacity to post bail, (2) the nature of the offense, (3) the penalty for the offense, (4) the accused’s character and reputation, (5) their health, (6) the accused’s character and the strength of the evidence, (7) the accused’s likelihood of appearing at trial, (8) forfeiture of other bonds, and (9) whether the accused was a fugitive from justice when they were arrested.10] It should also be taken into account that the accused is being held on bond so that he or she can appear at other trials.

The character of the defendant as well as his or her prior criminal history play a significant role in determining the bail amount in a current case.However, it has been determined that a person applying for bail on a charge of vagrancy’s criminal activities and tendencies do not justify an excessive bail amount to keep him in jail.

Voluntary surrender may be taken into account as evidence that the defendant has no intention of fleeing from justice when determining the bail amount.On the other hand, it is proper to take into account the fact that the accused was a fugitive from justice at the time of the arrest or that the accused has previously fled while under indictment when setting a higher bail amount.

The fact that a person has previously forfeited bail is a factor to be considered when determining the amount of bail, even when bail is a matter of right.The court may also take into account the defendant’s behavior or misbehavior while on parole from prison for a previous criminal conviction when setting bail in such a case.[11] Bail may not be completely denied, but it may be set at a level that will reasonably ensure the defendant’s attendance at court.

When determining the amount of bail, it is appropriate to take into consideration the likelihood that the accused will be found guilty at trial or that there will be some doubt about their guilt.As a result, a court may take into account the quality and weight of the evidence supporting the charge when determining the bail amount.

An accused cannot be denied release from detention because of indigence, but is constitutionally entitled to be released on his personal recognizance where other relevant factors make it reasonable to believe that he will comply with the orders of the court[12]. However, bail is not rendered excessive by the mere inability of the accused to procure bail in the amount required. A court should give some consideration to the prisoner’s pecuniary circumstances because what is reasonable bail to a man of wealth may be equivalent to a deTo put it another way, if the accused had no means of his own and no friends who were willing or able to become sureties for him, the amount of money he had to pay for bail would be considered excessive and he would be allowed to escape on his own recognizance. If this were the case, the accused would not be able to control the setting of any amount, no matter how small.Due process and equal protection requirements are violated when individuals who cannot meet established money bail requirements are incarcerated without meaningful consideration of other possible alternatives.

According to a standard treatise, “There is power in the court to release the defendant without bail or on his own recognition,” this is the current position in the United States.

The Law in India

The 1973 Criminal Procedure Code (Cr.The terms “bailable offense” and “non-bailable offense” are defined in section 2(a) of the Criminal Code, but the P.C. (which follows) does not provide a definition of bail.As follows, P.C.:An offense that is listed as bailable in the First Schedule or that is made bailable by any other law that is currently in effect is considered a “bailable offence,” while any other offense is considered a “non-bailable offence.”Moreover, ss.The guidelines for granting bail and bonds in criminal cases are outlined in sections 436 to 450.The Cr does not specify the amount of the accused’s security deposit to secure his release.P.C. As a result, the court may limit the bond’s value at its discretion.Sadly, it has been discovered that courts have not been sensitive to the economic hardships of the less fortunate.The courts’ callous attitude toward the poor is evident in the unreasonable and exorbitant bail bond payments.

On April 1, 1977, the 78th report of the Law Commission stated that, out of a total population of 1,84,169 inmates, as many as 1,01,083 (or roughly 55 percent) were still awaiting trial.Other reports demonstrate the following for specific jails:Eighty percent of inmates in the Secunderabad Central Jail are still awaiting trial;Surat: 78% of undertrials;66% of under-trials occurred in Meghalaya, Tripura, and Assam.

As previously stated, widespread poverty affecting the majority of our nation’s population is one factor in this.In rural India, fragmentation of land holdings is common.A family of about eight people?The fact that 10 members rely on a small piece of land for their sustenance also contributes to the covert unemployment.When a member of such a family is accused of a crime, the only way for them to get him out of jail and pay his bail is to sell the land or put it on a mortgage.They would be further pushed into poverty as a result of this.The majority of those awaiting trial are held in jail rather than being released on bail for precisely this reason.

Judicial Trend

An overview of the following cases demonstrates the poor’s predicament as a result of India’s unfair bail system.In State of Rajasthan v. Balchand [14], the trial court found the accused guilty.He was cleared when he appealed to the High Court.Under Article, the State filed an appeal with the Honourable Supreme Court.136 of the Constitution via a petition for special leave.The court ordered the accused to surrender.He then requested bail.Justice Krishna Iyer first voiced his opposition to this unfair bail administration system at that time.He stated that, despite the fact that the system of pecuniary bail has a long history, the time has come to reconsider it.It’s possible that most of the time, a project would be sufficient.

In Moti Ram & Co.The accused, who was a poor mason, was found guilty in State of M.P. [15].The Supreme Court had issued a vague order directing the Chief Judicial Magistrate to extend his bail without specifying any sureties, bonds, or other requirements.The CJM set Rs in accordance with his complete authority.10,000 as bond and surety, and he also refused to let his brother become a surety because his property was in the village across the street.MR appealed once more to the supreme court, where Justice Krishna Iyer criticized the CJM’s behavior and suggested that judges should favor bail rather than jail.

In Maneka Gandhi v. Union of India [16], Justice Krishna Iyer once more criticized India’s erroneous bail system.Despite the fact that the offenses are categorized as either bailable or non-bailable, the code does not provide a definition of bail.In addition, Justice P.N. Bhagwati discussed how the bail system is unfair and discriminatory when viewed from a person’s economic criteria. This discrimination occurs even if the amount of bail set by magistrates isn’t high for some people; however, the vast majority of people who are brought before the courts in criminal cases are so poor that it would be difficult for them to provide bail, even if it was only a small amount.

In addition, the court ruled in Hussainara Khatoon and Others v. Home Sec, State of Bihar [17] that a person should be released from jail if his or her time in prison exceeds the sentence for which he or she is responsible.


The aforementioned cases demonstrate that the Indian criminal justice system has a strong bias against the poor.Even though the courts have attempted to intervene in some cases and established guidelines to be followed, nothing has been done about it.A comprehensive review of the bail system is also strongly deemed necessary in light of the majority of our population’s socioeconomic circumstances.In addition to considering the accused’s socioeconomic situation when granting bail, the court must show compassion for them.It is possible to conduct a thorough investigation to ascertain whether the accused has community ties that would prevent him from fleeing the court.Before granting the accused bail, the court may consider the following information:

(1) The nature of the offense that the accused has committed.

(2) How long he stayed in the community.

(3) His employment status and financial situation in the past.

(4) His relationships and ties to his family.

(5) His character, reputation, and financial circumstances.

(6) Any records or prior releases on recognizance or bail, as well as his prior criminal records.

(7) The names of responsible community members who can attest to his dependability.

(8) Insofar as they are relevant to the risk of not making an appearance, the nature of the offense that is being charged, the apparent likelihood of conviction, and the probable sentence.

(9) Anything else that might indicate the accused’s ties to the community or make it less likely that they willfully fail to appear.

The Way Forward

It is believed that a portion of the funds transferred to a panchayat for developmental work should be set aside to pay the bail amount for undertrials in that panchayat or block from the government’s various programs for rural employment, loans to farmers, and so on.The elected leaders of the society would decide how to spend this fund, with the representative of the district collector or district magistrate a part of the system.This would make a significant contribution to securing the freedom of numerous inmates, who would then be able to play an important role in society and become a part of the national mainstream.The impact of such a scenario will be to lessen the burden of jail overcrowding.

Hardened criminals would be prevented from exerting their negative influence over undertrials by establishing separate jails or, at the very least, isolating convicts from undertrials.This kind of segregation would also alter society as a whole and the authorities in jail’s attitude toward people on trial.

People who are currently undergoing trials and have been accused of minor offenses may instead be placed in rehabilitation facilities and required to perform community service until they are granted bail.Those undergoing trials who lack education or literacy must be provided with elementary education facilities.Therefore, I believe that the benefit of bail should not only be available to a select few, but also to the general public, including those who are unable to pay for it.

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Article by Roli Nayan

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