"Bail or jail at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system, and largely hinges on the hunch of the Bench, otherwise called judicial discretion."[1]

A bail is fundamental to a criminal justice system which guarantees the accused a right to fair trial by granting provisional release in an ongoing case. This system seeks equilibrium between 'Individual Rights' and 'Interest of the Society'. It ensures liberty of an accused without granting unjust benefit.

A bail application is examined on a case to case basis keeping in mind factors such as the enormity of charge, nature of accusation, severity of punishment, danger of evidence and witnesses being tampered, health, age and sex of the accused, etc. However, the discretion exercised by the court in practicing the grant of bail is vague, arbitrary and ambiguous.

The paper will critically analyse recent bail orders to determine judicial discretion in granting bail or imposing conditions under which a grant of bail can be exercised. In this context, an attempt has also been made to understand the jurisprudence and the impending philosophy behind granting bail to an accused in the Indian judicial system.

Introduction
"The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process." [2]- Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case (1977)

The term 'Bail' has not been defined in the Code of Criminal Procedure, 1973. However, the offences in the code have been classified as bailable and non-bailable in Section 2(a) Cr.P.C. as: "bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence. Section 436 and 437 of the Cr.P.C. deals with provisions to a bail in bailable and non-bailable offences respectively. Bail is a matter of right in the former while it is a matter of judicial discretion in the later.

The Black's Law Dictionary defines bail, "to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court."[3]

Bail, in law means, to acquire a release from the prison of an accused, who is either awaiting a trial or an appeal by depositing a bail bond to the court having jurisdiction, in order to secure their appearance at the time of the trial and to ensure that if found guilty, they are available to receive the sentence by the court. The bail bond to be furnished by the accused is not mentioned in the Cr.P.C. and thus lies at the behest of the court.

If the bail is denied to an under-trail , it would mean that though they are presumed to be innocent till the guilt is proved beyond reasonable doubt, they would be subjected to the psychological and physical deprivations of jail life.[4] An under-trail loses their job and is prevented from contributing effectively to the preparation of their defence. Equally important, the burden of their detention frequently falls heavily on the innocent members of the family.[5]

While a person who is a habitual offender, accused of a serious crime and is likely to abscond in order to avoid a trial, will become an obstruction to a fair trial and become a graver danger to the society if released on bail. In order to circumvent the above-mentioned purposes the discretion exercised by the legislature should be assiduous.

The nature of judicial discretion is based on range of circumstances such as enormity of the charge, nature of accusation, severity of punishment, possibility of absconding; threat to witness; health/age/ sex of accused, position/status of accused, probability of committing more offences, previous convictions and interest of society. This is not an exhaustive catalogue.[6] However, the judicial discretion in granting bail with respect to social connotations, changing nature of crimes cannot be used arbitrarily.[7] The discretion exercised by the courts have failed to meet the parameters guided by an elaborate procedure of law, creating a system which is unpredictable.

Bail over Jail
"…has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence i.e., the presumption of innocence of an accused till he is found guilty…"[8]

The power to arrest an person affects the liberty of a person and can bring humiliation, curtail freedom and cast scars forever.[9] It can act as an instrument to oppress and harass at the hands of the state.

The principle 'Bail is rule and jail is an exception' was laid down by the Supreme Court in the landmark judgement of State of Rajasthan v. Balchand[10]. The court held that detention of an individual infringed their right to life and liberty guaranteed under Article 21 of the Constitution.[11] The fundamental objective to arrest and detain an accused is to secure their appearance at the time of the trial. If the presence is otherwise ensured then it would be unjust to deprive the accused of their liberty which is a fundamental right under the Constitution. Article 22, further safeguards an accused from arbitrary and indefinite detention.

However, this right is subjected to an exception i.e. social security. Additionally, two salutary provisions under Cr.P.C. Section 167 (allows a person to be under police custody for a period of 15 days on the orders of the magistrate only if there are grounds to believe that investigation cannot be completed within 24 hours) and Section 437 (empowers the court and the officer-in charge of the police station who has either arrested the accused or investigated the case to consider the question of bail in a non-bailable offence) have been enacted to avoid hardships in case of non-bailable offences.

The policy of law is to grant bail rather than refuse it.[12] The Law Commission recommended introduction of provisions in 2005 to grant relief to thousands of prisoners who are awaiting trial to relieve them from overcrowded prisons.[13] Section 436A of the Cr.P.C. sets out that if a prisoner is released on a bail or undergoes detention for half-term of imprisonment then they shall be released.

It recommends that those detained for offences which might lead to seven years of imprisonment be released on completion of one-third period of the jail-term while those charged with offences leading to an extended term with half of that period. And those who have spent entire term under trial can also apply for remission. The commission further warns police officials against unnecessary arrests and magistrates against mechanical remand orders.

This complies with the Reformative theory of law; a balance between deterrent theory and punitive theory which as the name suggests focusses on reforming an accused by keeping them away from serious offenders of law and jail which is believed to be an institution of crime.[14]

The NCRB data, 2019 reveals that 69% of the country's prison population comprises of pre-trial prisoners.[15] S.D. Balsara in his paper 'Bail Not Jail- Empty The Prisons', presents several compelling reasons to avoid pre-trial detention. It includes: The presumption of innocence, The effect of detention on the prisoner's private life, Prospect of acquittal become more bleak, Higher ratio of pleas of guilty, Greater chances of imprisonment, Effect on morale of the accused; Detaining offenders, who on conviction, are not considered suitable for detention and Effect on prison population.[16]

There is an increasing need of granting anticipatory bail at a time when false cases are being filed in order to disgrace a person by detaining them in jail for a few days or when there is hardly any justification for a person to be held in custody. Recently, in Munawar v. State of Madhya Pradesh[17] , the stand-up comedian was arrested under various sections of the IPC including Section 295A (deliberate and malicious act intended to outrage religious feelings of any class) for allegedly hurting the religious sentiments by cracking jokes on Hindu gods and goddesses.

He was held in jail for over a month and was denied bail thrice by the sessions court and the High Court. Frooqi submitted to the Supreme Court that the impugned order by the HC "spells a death knell to the fundamental concomitant of bail jurisprudence which rests upon the principle that grant of bail is a rule whereas its rejection it's only by way of an exception"[18].

The comedian was granted bail on the grounds that the investigation authorities failed to follow the guidelines held in the Arnesh Kumar case[19], which held that arrests should be an exception in cases where offences are punishable with less than seven years of imprisonment. The Apex Court had imposed checks and balances on the powers of police officials before and after an arrest of an accused. It further directed the State Governments to instruct police officials to not arrest an accused without check-list and a preliminary-investigation, re- emphasizing the jurisprudence of bail in India balancing natural justice and personal liberty.

Judicial Discretion or Arbitrariness?
The recent judgements have exercised arbitrariness in exercising discretion which have become a roadblock to the judicial system. On a closer scrutiny, an observation can be made, in high profile cases, individuals are granted bail without considering the gravity of the case. While, investigating agencies fail to conduct a preliminary investigation causing illegal arrest of so called "ordinary individuals". In Govind Prasad case, the Apex Court rightly ruled that granting bail is a judicial and not a ministerial act. However, the courts now and again have failed to exercise lawful 'judicial discretion'.[20]

Swami Chinmayanand, former BJP leader and a self-styled godman had been acquitted by the special court in Lucknow in connection with a sexual harassment case in March 2021.[21] However, it seems that the court had already decided the verdict of the case while granting bail to the accused who was charged under Section 376-C of the IPC. Justice Rahul Chaturvedi in a twenty-five page bail order did not hesitate to make several unwarranted comments against the victim. The accused here had strong political links while the victim seemed powerless, who was victim-shamed about not speaking up about her painful experience. The court observed:

"A girl, whose virginity is at stake, not uttering a single word to her own parent or before the Court regarding the alleged incident, is an astonishing conduct which speak volumes about the ingeniousness of the prosecution story."[22]

It is not wrong on the part of the judge to grant the accused a bail when prosecution's case appears baseless, or if there is no possibility of the evidence or witnesses being tampered. However, the conclusion in the bail order that the case was made entirely out of greed and bad intention without any conclusive evidence is a disaster of jurisprudence. Similarly, supporters of the ruling party like Swami Assemanand and Sadhvi Pragya Thakur, who have been linked to terror attacks roam freely.

The high profile case of Republic TV owner and editor Arnab Goswami proves that the judicial system works with power and influence. Goswami's case was listed as urgent and was granted bail within six days by the Supreme Court with a bail condition of Rs 50,000 and no sureties, which is generally the rule.[23]

Unlike the treatment meted out to prominent and connected people, common citizens like academicians, 'inconvenient' journalists, student leaders and activists are treated at the hands of the judiciary with a stark difference.[24] GN Saibaba, a former professor at Delhi University with 90% physical disability charged with life imprisonment for alleged Maoists links have been rejected bail petition for 45 days on medical grounds by the Nagpur High Court.[25]

The accused has been suffering from multiple health problems. His treatment in custody is a clear case of disability-based discrimination. Failure to provide basic facilities such as western toilet or trained helpers have not only led to compromising one's personal dignity and liberty but has also deteriorated his medical condition.

The apex court in the Sunil Batra case[26] held that lives of prisoners cannot be reduced to mere animal existence. The United Nations High Commissioner for Human Rights commented saying, "We would like to remind India that any denial of reasonable accommodation for people with disabilities in detention is not only discriminatory but may well amount to ill-treatment or even torture."[27]

His imprisonment seems nothing more than an abduction by the government. Similarly, Stan Swamy, an 83- year old Activist charged for alleged role in 2018 Bhima Koregaon violence[28], suffering from Parkinson's and hearing disorder has been denied bail. The conditions of these prisoners have not led the court to grant bail even on humanitarian grounds. Let alone them being a threat to society if released on bail, it will provide them with adequate medical attention and right to live with dignity which the jail authorities fail to do so.

In a bail order of an accused Vikram Bagri, who was charged under Section 354 of the IPC, the Madhya Pradesh High Court stated, "The applicant, along with his wife, shall visit the house of the complainant with rakhi thread/band on August 3 at 11 am with a box of sweets and request the complainant to tie the rakhi band to him with the promise to protect her to the best of his ability for all times to come."[29] Previously FIRs have been lodged against the accused in offences including sexual harassment, assault of criminal force to woman with intent to outrage her modesty and criminal intimidation.

The list of offences prove that the man is a repeated offender and is a threat to the well-being of the society. Additionally, by passing such an order, the M.P. High Court has not only undermined the woman's modesty and independence, but also reaffirms a patriarchal notion where a woman needs to be protected by a man.

Even if an accused is successfully released on bail the police officials book them in another case. It has become a regular exercise by the state to curb the dissent of a citizen by using harsh penal provisions like sedition i.e., Section 124A of the IPC, 1860. Pinjra Tod founders and research scholars at JNU, Devangana Kalita and Natasha Narwal, who is expecting a child were granted bail in matters regarding protests against the Citizenship Amendment Act in North East Delhi.[30] Soon after the court's order, the Delhi Police issued an application to integrate the two in a separate case related to violence.

Despite, failure to show evidence that the activists were involved in hate speech or incited particular section of woman and the Supreme Court's dismissal of the Delhi Police's assertion that if released Kalita would tamper with evidence, she still remains in Tihar jail. The delay in the conclusion of trial violates the constitutional guarantee of a fair, just and reasonable procedure and in fact a fundamental right of speedy trial.[31]

During these unprecedented times the courts continue to function haphazardly. The Supreme Court granted bail to 14 convicts of post-Godhra massacre where 23 people were burned alive. The incident was described by the Gujarat High Court as: "We have seen senselessness of violence and loss of innocent human lives. We cannot imagine the pain suffered by the victims who perished in the raging fire.

We cannot judge the depth of sorrow and despair of their families."[32] By granting bail to the culprits who were involved in a pre-planned inhuman collective violent act of terrorism the apex court is setting a bad precedent that one can roam freely even after committing such a heinous crime. Unfortunately, the courts did not follow the same in case of activists like veteran poet Varavara Rao who was tested Covid positive.

Conclusion
The inevitable decisions mentioned in the paper highlight inconsistencies in grant of a bail order. It suggests that a bail cannot be granted arbitrarily based solely on judicial discretion. Judicial orders should not violate fundamental rights but situation in court rooms is questionable. A discretion guided by the law, exercised with caution and care, must be applied by balancing the interest of both personal liberty of Individuals and justice.

The judicial authorities need to interpret the bail orders in a systematic and effective manner without any interference from government authorities and affiliations. An accused should be granted a bail unless there are strong grounds that the release would deter the societal well-being.

The period between the arrest and the judgement poses a serious challenge in a criminal system, where an accused is presumed to be innocent until proven guilty. For the accused pre-trial detention means loss of job, disruption in social relationships, etc while on the other hand there is a risk of fleeing from justice, obstruction in the course of justice. A bail can only balance between 'freedom of person' and 'interest of social order' at the stage of arrest, investigation, trial and appeal in case of conviction. Thus, unnecessary pre-trial arrest should be minimised.

The routinisation of under-trial detention has become a tool for state authorities to hush the critics without proving allegations against them by keeping them in prisons for extended periods. This has led to a colossal waste of public funds to keep undertrial prisoners. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilt.[33] Unnecessary pre-trial detention imposes additional burden on the state, and can even have psychological impact on the detainee.

The bail system in the country runs on the assumption that risk of monetary loss is the only deterrent against fleeing from justice. This system of bail is very discriminatory where the poor are priced out of their liberty in the justice market.[34] Alternate factors such as family ties, job security, roots in the society, or membership in an organisation can act as determinative factors in grant of bail where a person is released on a personal bond instead of monetary obligation.

Enactment of a comprehensive code reflecting the basic concepts, philosophy and utility for grant and refusal of bail will ease rationalisation in judicial discretion. Extend and power of a court to grant and refuse bail should be clearly defined. A system of checks and balances of police authorities and judicial officials during preliminary investigation and trial of an accused should take place to avoid misuse of power, and if found misusing power they should be penalized for depriving someone's liberty without due process. A bail must be considered as a basic human need rather than just another procedure of the criminal code.

End-Notes:

1. Gudikanti Narsimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240.
2. Ibid.
3. Black's Law Dictionary 181 (3rd ed., 1933).
4. Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47.
5. Ibid.
6. Supra Note 1.
7. K.N. Joglekar v. Emperor, (1) AIR 1931 All. 504.
8. Sanjay Chandra v. CBI, (2012) 1 SCC 40.
9. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469.
10. State of Rajasthan v. Balchand, 1977 SCC (4) 308.
11. Ibid.
12. M. Hanumantha Reddy v. Government of Mysore, AIR 1953 Mys 132
13. Niranjan Sahoo and Vivek Jain, Justice System in Crisis: The Case of India's Undertrial Prisoners, ORF Issue Brief (Aug. 2015) https://www.orfonline.org/wp-content/uploads/2015/08/IssueBrief_103.pdf
14. S.G. Goudappanavar, Critical Analysis of Theories of Punishment, JSS Law College http://jsslawcollege.in/wp-content/uploads/2013/05/CRITICAL-ANALYSIS-OF-THEORIES-OF-PUNISHMENT1.pdf
15. Prison Statics India, National Crime Records Bureau (Ministry of Home Affairs) (2019). https://ncrb.gov.in/sites/default/files/PSI-2019-27-08-2020.pdf
16. S.D. Balsara, Bail Not Jail- Empty The Prisons, Journal of the Indian Law Institute, Vol. 22, No. 3 (July-September 1980), pp. 341-350 (10 pages).
17. Munawar v. State of Madhya Pradesh, 2021 SCC OnLine SC 60.
18. Ibid.
19. Supra Note 8.
20. Govind Prasad v. state of West Bengal, 1975 Cri. LJ 1249.
21. Swami Chinmayanand Alias Krishna v. State of Uttar Pradesh, 2020 SCC OnLine All 1217.
22. Ibid.
23. Arnab Goswami v. State of Maharashtra, (2021) 1 SCC 802.
24. Ismat Ara and Sukanya Shantha, A List of Activists, Scholars and scribes Whose Personal Liberty Remains at Judiciary's Mercy, The Wire (13 Nov. 2020) https://thewire.in/rights/jail-bail-hearings-court-delhi-riots-elgar-parishad
25. G.N. Saibaba v. State of Maharashtra, (2018) 12 SCC 505.
26. Sunil Batra v. Delhi Administration, (1978) 4 SCC 409.
27. UN experts urge India to release rights defender Dr. G.G. Saibaba on health grounds, United Nations Human Rights (Office of the High Commissioner), (28 June 2018). https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23284&LangID=E
28. Stan Swamy v. State of Maharashtra and Ors., 2018 SCC OnLine Bom 16849.
29. Vikram v. State of Madhya Pradesh, 2020 SCC OnLine MP 9491.
30. State of NCT Delhi v. Devangana Kalita, BA No.2038/2020, Delhi High Court
31. Om Prakash v. State of Rajasthan, 1996 Cri. LJ 819
32. Harishbhai Vallabhbhai Patel v. State of Gujarat, Cri. Misc. BA 17058 of 2012, Gujarat High Court.
33. Supra Note 6.
34. Sudesh Kumar Sharma, Dimensions of Judicial Discretion in Bail Matter, Journal of the Indian Law Institute , July-September 1980, Vol. 22, No. 3 (July-September 1980), pp. 351-370.