Everything about Bail in Bangladesh
Capital punishment, in the form of a death sentence, is applied to serious crimes. Additionally, one of the harshest penalties is life in prison. These penalties and sentencing guidelines are applied in rare circumstances. As an example, consider the numerous cases in Bangladesh where the punishment is either life in prison or the death penalty: murder under Section 302 of the Penal Code, 1860; dacoity with murder under Section 396 of the Penal Code, 1860; murder for dowry under Section 11(Ka) of the Nari O Shishu Nirjatan Daman Ain, 2000; causing murder through acid under Section 4 of Acid Oporadh Daman Ain, 2002; and several other laws. Unfortunately, there are a lot of offenses committed in our nation.
A person’s life is taken away by a death sentence, and a life sentence restricts freedom through the legal system even though the prisoner is at fault.
Nonetheless, it is the harshest punishment that ought to be applied in exceptional circumstances involving horrible crimes1 and the accusation is proven true beyond a reasonable doubt. Even though Bangladesh is a signatory to the Rome Statute, the alarmingly high rates of these crimes in our nation may still serve as justification for keeping the death penalty in place.
The harshest penalties available under the law are a life sentence and the death penalty. Furthermore, it is standard procedure in our nation for an individual who has been found guilty of a capital crime to not be eligible for bail, even if the sentence is not to be carried out while an appeal is pending and the death penalty is referenced. The question of whether there is a legal barrier to granting bail to a death-sentence convict under Bangladeshi law is moot.
Definition of bail
Nothing in any Bangladeshi statute defines bail. The Law Lexicon, the dictionary, and the Code do not define bail; instead, they define it as security for the appearance of the prisoner upon payment, after which the accused is freed pending trial or investigation. The definition of “bail” according to a dictionary is the act of releasing an individual who has been detained or arrested in exchange for security for a court appearance.3.
The old French verb “Baillier,” which meaning “to give or deliver,” is the source of the English word “bail.” The Latin word “Bajulare,” which means “to bear a burden,” is also connected to the word. “Bail” mentioned in Wharton’s Law Lexicon is “to set at liberty a person arrested or imprisoned on security being taken for his appearance on a day and at a place certain, which security is bail.”
In Blackstone’s5, it has been observed that “the intent of the arrest being only to compel an appearance in Court at the return of the writ, that purpose is equally answered whether the sheriff detains his person or takes sufficient security for his appearance called bail (from the French word Bailler, to deliver) because the defendant is bailed or delivered to his sureties upon their giving security for his appearance.”
Bail using as a noun refers to an amount of money that a person who has been accused of a crime pays to a law court so that they can be released until their trial. The payment is a way of making certain that the person will return to court for trial.
Bail is therefore a privilege granted by the Court to any accused and not a right. Same view was expressed by Thomas M. Cooley in his Treaties on the Constitutional Limitations 1868 where he wrote “but in the case of felonies, the privilege of giving bail before trial was not a matter of right; and in this country, although the practice is much more merciful than it was formerly in England, there are some cases where it is deemed almost a matter of course, and in others where it is discretionary with the magistrate to allow it or not, and where it will sometimes be refused if the proof of guilt is strong or the presumption great.
Capital offences are not generally regarded as bailable; at least after indictment, or when the party is charged upon the finding of a coroner’s jury; and this upon the supposition that one who may be subjected to the terrible punishment that would follow a conviction would not for any mere pecuniary considerations remain to abide the judgment.
Object of bail
The object of bail is to secure the attendance of the accused in the Court on future date and at the time of trial. Bail connotes the process of procuring the release of an accused charged with an offence by ensuring his future attendance in Court. An order of bail gives back the accused freedom of movement on condition that he would appear in Court to take his trial.
The object of the bail is to secure the attendance of the accused at the time of the trial and that the proper test to be applied for the solution of the question whether bail should be granted or not is whether it is probable that the party will appear to take his trial.10 The requirement for bail is merely to secure the attendance of the prisoner for trial that it is the duty of the Court to admit the accused to bail, wherever practical, unless there are strong grounds for supposing that such person would not appear to take the trial.
The provision for bail in a criminal case beginning from the initiation of proceeding upon the conclusion of the trial has been made in Chapter XXXIX of the Code of Criminal Procedure. It is well settled that the basic conception of the word ‘bail’ is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever obligated to carry out. At common law, an accused person is said to be admitted to bail when he is freed from the custody of the court officers and placed in the care of individuals known as his sureties. These sureties are required to produce the accused person to answer to the charges against him at a designated time and are subject to forfeiting the amount specified when bail is granted if they fail to do so.
Even though bail is a privilege and a significant right, no condition may be placed before or after (to be completed or carried out) bail unless permitted by law. Bail privileges are unrestricted. There may only be instructions for attendance at a specific time and location because the main goal of bail is to guarantee the accused’s appearance on a given day and at a specific location. It is illegal to grant bail contingent on the fulfillment of the requirements outlined in the bail bond. “On our discussion made above, we are of the view that the Tribunal has no power to impose conditions when it grants bail to an accused person, and even the Tribunal is not competent to accept any of the conditions contrary to provision of law which an accused person may like to submit himself in his prayer for bail,” the High Court Division held in Md. Rafiqul Islam v. The State (2013).
It is our conclusion that any conditions imposed on the bail must be reasonable and able to be met by the applicant for bail as well as his surety without compromising any civil rights of parties. If bail is granted contingent on the suit being withdrawn, the intent behind the grant may be undermined. The contested order in this case, which sought to withdraw the lawsuit in order to obtain bail, is not justified by the law or by the reasonableness standard.
The Supreme Court of India recently reviewed the goals, rationale, and guiding principles of granting bail in the following manner:
“The presumption of innocence is a fundamental tenet of criminal jurisprudence, which states that an individual is presumed innocent until proven guilty. Nonetheless, there are situations in our criminal code where an accused party has been given the burden of proof in reverse for certain offenses; however, this is a separate issue and does not change the basic premise for other offenses. The fact that granting bail is the norm rather than the exception—that is, that someone can be placed in jail, prison, or a correctional facility—is another significant aspect of our criminal jurisprudence. Unfortunately, it seems that some of these fundamental ideas have been forgotten, which has led to an increase in the number of people serving longer sentences in prison. Neither our society nor our criminal jurisprudence benefit from this.
Undoubtedly, the decision to grant or refuse bail is solely within the judge’s discretion when evaluating a case; however, this discretion has been limited by numerous rulings from this Court and all other High Courts across the nation. However, there are times when it becomes necessary to consider whether it is appropriate to deny bail to an accused person given the circumstances and facts of the case.
While being so self-reflective, one of the things that must be taken into account is whether the accused was detained during an investigation when they might have had the best chance to tamper with the evidence or influence witnesses. After a charge sheet is filed, there should be a compelling argument made for the accused person to be placed in judicial custody if the investigating officer determines that an arrest is not required during the course of the investigation.
In a similar vein, it is critical to determine whether the accused was satisfactorily cooperating with the investigation and was not fleeing or failing to appear as required by Crl. Appeal No. 227/2018 (@ S.L.P. (Crl.) No. 151 of 2018) Page 2 of 9. A judge would undoubtedly need to take this into account in a suitable case if the accused is not hiding from the investigating officer or is hiding because of a sincere and articulated fear of being victimized. The accused’s general conduct and the nature of any prior offenses, if any, must also be taken into account by the judge, in addition to whether this is the accused’s first offense. An important consideration is the impoverishment or presumed indigence of the accused, a fact that even Parliament has acknowledged with the addition of an Explanation to Section 436 of the 1973 Code of Criminal Procedure. By adding Section 436A to the 1973 Code of Criminal Procedure, Parliament has demonstrated that it is taking an equally lenient stance toward imprisonment.
In other words, when considering an application to remand a suspect or an accused individual to police custody or judicial custody, a judge must act with compassion. This is due to a number of factors, including the need to uphold an accused person’s dignity regardless of their financial situation, the requirements of Article 21 of the Constitution, and the extreme overcrowding in prisons that results in social unrest and other issues, as this Court noted in Re-Inhuman Conditions in 1382 Prisons. 1 (2017) 10 SCC 658. Crl. Appeal No. 227/2018 (@ S.L.P. (Crl.) No. 151 of 2018). 3rd page out of 96.
The case of Nikesh Tarachand Shah v Union of India provides a clear and comprehensive explanation of the historical background of the bail provision, dating back to the Magna Carta era. The Gurbaksh Singh Sibbia v. State of Punjab case was cited in that ruling, wherein it was noted that the precedent from Nagendra v. King-Emperor stated that bail could not be denied as a form of punishment. Additionally, reference was made to the ruling in Emperor v. Hutchinson, which noted that bail is typically granted and refused cases are the exception. As a result, the bail provision is ancient, and its liberal interpretation dates back to the colonial era, nearly a century.
We do not, however, intend to imply that bail should always be granted. The court hearing the case has complete discretion over whether to grant or refuse bail; however, this discretion is unrestricted and must be used wisely, humanely, and compassionately. Furthermore, the terms of the bail award shouldn’t be so onerous that they become unachievable, rendering the bail award fictitious.”
Therefore, granting bail has the effect of releasing the prisoner from custody or jail but rather entrusting him to the care of the law and his sureties, who are obligated to produce him upon the court’s request.16 The ultimate goal is to grant him/her the sacred privilege of liberty through the judicial system and within the bounds of the law. Bail is a type of temporary relief granted while a trial, appeal, or proceeding is pending. The individual granted bail is required to appear in court and accept the outcome of the case. It eventually enables him or her to become a law-abiding accused in due course and not be considered an absconder in the eyes of the law.
What’s Bailable and What’s Not
As previously mentioned, the Code does not define “bail,” but it does classify offenses as “Bailable” or “Non-Bailable.” According to Section 4(b), a “Bailable Offense” is defined as any offense that is listed as such in the “second schedule”17 or that is designated as such by any other law currently in effect. A “Non-Bailable Offence” is defined as any other offense.
As a matter of right, the accused in a bailable offense is entitled to bail.18 When an offence is not subject to bail, the accused is not entitled to request bail. The Court retains complete discretion in determining the appropriate bail amount based on the facts and circumstances of each case. The High Court Division cannot intervene because the offence listed in the FIR is not bailable; even magistrates, lower courts, and tribunal judges are qualified to grant additional bail to those accused of non-bailable offenses in meritorious cases.
In a welfare state, the law pertaining to bails—which is a significant area of procedural law—cannot be considered static. It must balance two opposing demands: the first is the need for society to be protected from the risks of learning about the misadventures of someone who is accused of committing a crime; the second is the core principle of criminal justice, which is the accused’s presumption of innocence until proven guilty.20 Due to the restricted nature of bail, the amount set for each defendant must be determined using criteria that are pertinent to ensuring their appearance in court.
Bail privilege
Bail is a conditional release granted while the case is pending. It’s awarded subject to sureties and a bond. The beneficiary of the bail privilege is not permitted to continue receiving it in the absence of a bail bond. Additionally, the individual is not permitted to abuse the right to bail or refuse to appear in court when the court requests or orders it. If the court is satisfied with the bond that the individual has executed, either on their own behalf or through another party, they will be granted bail and may also receive a specific sum of money.22 The person for whose appearance the bond has been executed will be released as soon as it is executed; if the person is in custody, the court admitting them to bail will issue a release order to the jail’s officer, who will then release the person upon receiving it.23
In the event of misuse, the bail may also be revoked. It is a well-established legal principle that granting bail in a case where the accused is not eligible for bail implies that the accused will not abuse the privilege or break the law while he is free on bond. If an individual freed on bail engages in violent acts of retaliation against the complainant, prosecution witnesses, or law enforcement, their bail may be revoked. However, there must be substantial evidence supporting the claim of bail privilege abuse before canceling bail on these grounds.
Bail as an essential legal right
The argument that bail is a fundamental right of the respondent was made by learned Senior Advocate Rafique-ul Huq in the case of Government of Bangladesh and Others v. Sheikh Hasina and Others. However, the Court responded negatively, noting that it could not find a right comparable to the right to bail anywhere in Part III of the Constitution.
Only Article 32 protects the right to life and personal liberty, saying that no one may be deprived of either without legal justification. If someone commits a crime and the victim files a complaint with a court, the offender’s freedom may be revoked legal justification because the offender violated others’ rights and abused their right to personal liberty. If the offender is imprisoned to ensure that he appears in court to answer to the charge and receive any necessary punishment, this restriction on his freedom will be legal and will not violate Article 32 of the Constitution.
According to Sir John Salmond, who defined “right” after Jhering, “right” is a “legally recognized and protected interest.” A legal right is any interest that the law recognizes or upholds, regardless of the type or degree of that recognition or upholding.
A legal right is “nothing but a permission to exercise certain natural powers and upon certain conditions to obtain protection, restitution, or compensation by the aid of the public force,” according to Justice Holmes of the Supreme Court of the United States of America.
“Holmes’ definition narrows down rights to being considered as ‘liberties’ but there are certain other interests which law enables us to enjoy which are on the face of them unlawful but are nevertheless allowable in certain circumstances,” writes A.K. Brohi in his Fundamental Law of Pakistan. Usually, these are referred to as privileges.”Bail is therefore a privilege granted by the Court to any accused and not a right. The provision of bail is provided in the Code of Criminal Procedure in Sections 496, 497, 498 and 426 thereof and in bailable offences court will grant bail as a matter of course but in non-bailable offences bail is never a right and it is sometime granted in appropriate cases as a privilege.
This Court dealt upon the bail matter in the case of Anti-Corruption Commission vs. Barrister Mir Mohammad Helal Uddin and another and Barrister Nazmul Huda and another,27 and Criminal Appeal No. 65 of 2007 and no further discussion is called for here.”
Bail is not the release from the charge of the case. Bail is more like surrendering thyself before the Court and coming under the process of law with a legal promise (oath, in good way) not to misuse the privilege of bail. Bail as opposite to ‘staying behind the bar’ is something which goes with personal liberty and freedom. Liberty, thus freedom is our fundamental right as guaranteed under Article 32 of the Constitution of the People’s Republic of Bangladesh.
Bail gives the accused to continue with his/her normal life and livelihood until he/she is proved guilty beyond all reasonable doubts. It also gives a good escape to the State as well for not putting an accused behind the bar until the charge against him/her is proved beyond doubt through the microscopic process of trial and delineate examination of witnesses and evidences on record. If an accused needs to stay in jail till the end of trail (which requires a quite time indeed) but later is proved not guilty after trial, it brings total disaster in his/her life, and this kind of loss is literally irreparable. For that reason, during continuation of trial until the accused is proved guilty beyond reasonable doubt, bail is considered positively.
The significance and sweep of Article 2128 make the deprivation of liberty a matter of grave concern and permissible only when the law authorizing it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests of justice to the individual involved and society affected.29
It is well known that while considering the application for bail and in order to ascertain as to whether a prima facie case for bail has been made out or not, the court may take into consideration the nature of accusation, the nature of evidence in support of the same, the severity of punishment to be awarded the conduct and character of the accused. But at the stage of granting an application for bail merits of the case need not be discussed which might adversely affect the case and prejudice the accused.
Bail in an ongoing legal case involving a death penalty-related offense
A few judicial discretion and bail guidelines
As was previously mentioned, the fundamental concepts pertaining to bail are provided by Sections 496 through 498 of the Code. What situations are covered by section 496 when bail is required. Section 496 addresses offenses subject to bail. Naturally, the accused has the unalienable right to bail in the event of a bailable offense, provided that suitable sureties are provided.33 Regarding bail in non-bailable offenses, see Section 497.34 The Court may order admission to bail or a reduction in bail under Section 498. Depending on the kind or severity of the offense, the principles are roughly the same.
However, the impression that crimes covered by bail are of a simpler kind, carrying a lighter sentence and having less of an impact on the community, comes from the Code’s second schedule, which lists some offenses as qualifying for bail. However, there are distinctions when it comes to serious offenses. For example, rape or murder cannot be equated with simple dacoity, extortion, or severe harm. One accidental death during a sudden illness cannot be equated with brutal or serial killings. However, no statute specifically outlines the bail guidelines that the court will adhere to in these circumstances.
That is up to the court’s discretion. It is for the best; otherwise, restricting the court’s ability to use its discretion on a case-by-case basis would be too unfair. However, the judiciary has established a number of guiding principles in its own unique manner, contributing to the development of a significant area of criminal jurisprudence.
However, the question of what the judge’s discretion is in relation to bail is one that is frequently posed. Benjamin Cardozo put it elegantly: “The Judge is not entirely free, even in his state of freedom. He’s not supposed to invent just for fun. He is not a vagrant knight out to fulfill his own ideal of virtue or beauty. His source of inspiration should be devoted principles. He is not to submit to erratic and uncontrolled kindness or spasmodic feelings. He must use discretion that is based on custom, methodized through analogy, disciplined by structure, and yielded to the fundamental need for order in social interactions. Remaining discretion is a field sufficiently broad in conscience. As a result, even though the court has broad authority, it would exercise self-control based on the facts and circumstances of each case.
According to the Supreme Court, “it seems better to me that the Criminal Procedure Code’s Section 497 lays out the law’s policy regarding bail for those accused of crimes for which there is no possibility of bond, and that the same policy should be kept in mind when considering the question of bail under Section 498, Criminal Procedure Code.” After all, the authority granted by Section 498 of the Code cannot be interpreted as entirely arbitrary, and the court must use its discretion when granting bail.37 In no way does Section 498 of the Code of Criminal Procedure broaden the range of individuals to whom bail may be granted under Chapter XXXIX; rather, it is a subsidiary or ancillary provision to Sections 496 and 497.38 This inevitably implies that before the High Court or the Court of Sessions can grant any sort of relief to these individuals, they must first be placed under custody.39 When determining bail under section 498 of the Code, consideration should be given to the Policy of Law regarding bail to individuals accused of non-bailable offenses as outlined in section 497.
When an offence is not subject to bail, the accused is not entitled to bail and the court cannot arbitrarily increase their bond. In these situations, the Court may exercise its discretionary authority with due application of the judicial mind; however, this power should not be used arbitrarily as this could undermine the goals of justice. However, without a judge’s approval, the police are legally permitted to detain anyone who seems to have participated in the commission of the crime and to look into the matter. The police officer conducting the investigation pursuant to section 156(3) is not the magistrate’s delegate, nor is it the magistrate’s or the court’s. Unless it is evident that the case is absurd, the High Court Division lacks the inherent authority to obstruct the use of that authority.Forty
Both identifiable and non-identifiable offenses
Police are able to make an arrest without a warrant in cases of cognizable offenses, but not in cases of non-cognizable offenses.42 But following an arrest, the accused is brought before the court by the police. Upon being produced or making an appearance before the court, the accused may ask for bail.43 In addition, an accused person may request bail by willingly turning themselves in to the court. There are two different ways that this type of surrender can occur: (i) before the trial court or the cognizance court, depending on the case’s status; and (ii) before higher courts, which is also referred to as anticipatory bail. Sections 496 through 498 serve as guidelines for bail in these situations.
Certain authorities have addressed the laws and principles governing the granting of bail under sections 496, 497, and 498 of the Code. In the case of Crown v. Khushi Muhammad,44 it was decided that an individual who has had a report filed at the police station but who has not been arrested, placed under custody, or subjected to any other type of restraint cannot be granted bail. Their Lordships of the Pakistan Supreme Court expanded the application of the Rule established in Crown v. Khushi Muhammad to include the granting of Anticipatory Bail to an individual whose arrest by police is imminent on a criminal charge.
The Pakistan Supreme Court heard arguments regarding the scope of granting bail under sections 496, 497, and 498 of the Code in Muhammad Ayub v. Muhammad Yaqub and State45. “Under section 496 and 497, Criminal Procedure Code, the Court can bail out a person only, if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the police, or by some other arresting authority,” reads the statement made by the Pakistan Supreme Court, which is incorrectly quoted. To put it another way, these sections are applicable when there has been a real arrest that brings the court into question or when the court is directly involved in the proceedings where bail is being sought. But even in cases where the Court is not immediately involved in the proceedings in question and where no arrests have been made yet but anticipatory bail is requested—for example, when the case is still in the police investigation stage or is pending in a subordinate court—Section 498 would be called in aid before the Court of Session and the High Court.
The High Court would thus be the only body with the authority to grant such anticipatory bail, with the Court of Session and other courts falling outside of its purview.
Section 498 is used in cases of regular bail as well as anticipatory bail, including cases involving the death penalty. The judge must keep in mind that the investigation should never be impeded when deciding whether to grant bail because doing so could thwart the administration of justice. That is not acceptable. Additionally, the judge needs to keep in mind that the applicant is being granted a temporary reprieve in a case that appears to have been started more for side purposes than to secure justice. However, in the end, he must appear before the relevant Magistrate’s Court. For this reason, anticipatory bail may be granted in appropriate cases, but only for a very brief amount of time—between two and four weeks, at most—and not for a longer amount of time. It is also important to keep in mind that the earlier he appears before the magistrate, the better. The magistrate would take the appropriate action after hearing from both parties. Any party may always seek justice in a higher forum if they feel wronged. However, the length of such a bail shouldn’t be extended as this could obstruct the investigation.
Our Appellate Division recently held that “No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail.” The division went into great detail about the development of principles in granting anticipatory bail. Since it is impossible to foresee every scenario that may arise in the future that would warrant the granting or rejection of anticipatory bail, no attempt should be made to establish strict and appropriate guidelines in this regard. A few guidelines for anticipatory bail awards can be summed up as follows:
(i) The FIR lodged against the accused needs to be thoroughly and carefully examined;
(ii) The gravity of the allegation and the exact role of the accused must be properly comprehended;
(iii) The danger of the accused absconding if anticipatory bail is granted;
(iv) The character, behavior, means, position and standing of the accused;
(v) Whether accusation has been made only with the object of injuring or humiliating the applicant by arresting him. Because it is to be remembered that a worst agony, humiliation and disgrace is attached to arrest. Arrest leads to many consequences not only for the accused but for his entire family and at the same time for the entire community;
(vi) A balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and thorough investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(vii) The anticipatory bail being an extra ordinary privilege, should be granted only in exceptional cases. Such extraordinary judicial discretion conferred upon the Higher Court has to be properly exercised after proper application of mind to decide whether it is a fit case for granting anticipatory bail not according to whim, caprice or fancy;
(viii) A condition must be imposed that the applicant shall not make any inducement or threat to the witnesses for tampering the evidence of the occurrence;
(ix) The apprehension that the accused is in a position to influence, induce or coerce witnesses to desist from furnishing relevant information to the investigating agency cannot be considered to be imaginary and the court ought to have considered that aspect seriously before granting anticipatory bail;
(x) In the cases involve grave offence like murder, dacoity, robbery, rape etc. where it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims the accused should never be enlarged on anticipatory bail. Such discretion should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise;
(xi) It is to be borne in mind about the legislative intention for the purpose of granting anticipatory bail because legislature has omitted the provision of Section 497A from the Code; (xii) It would be improper exercise of such extraordinary judicial discretion if an accused is enlarged on anticipatory for a indefinite period which may cause interruption on the way of holding thorough and smooth investigation of the offence committed;
(xiii) The Court must be extremely cautious since such bail to some extent intrudes in the sphere of investigation of crime;
(xiv) While enlarging an accused on anticipatory bail, the Court must direct the applicant to co- operate with the investigating officer in every steps of holding proper investigation if the same is needed;
(xv) The anticipatory bail granted by the Court should ordinary be continued not more than 8(eight) weeks and shall not continue after submission of charge sheet, and the same must be in connection with non-bailable offence;
(xvi) The Court granting anticipatory bail will be at liberty to cancel the bail if a case for cancellation of bail is otherwise made out by the State or complainant.”4849
In expressing the ratio decidendi in State v Zakaria Pintu, 31 BLD (AD) 20, 62 DLR (AD) 420 the Appellate Division kept no room for deviation from the following essentialities:
i) Assumption of jurisdiction to consider anticipatory bail is an extra-ordinary one.
ii) Discretion of the High Court Division in granting bail, very wide though, must be encompassed by judicial circumspection based on established legal principles, without resorting to arbitrary consideration.
iii) The Judges concerned must go through the FIR meticulously and it must be reflected in their order that they have thoroughly scanned the facts and the allegations scripted in the FIR.
iv) Sometimes it is imperative on the part of the Court to refuse pre-arrest-bail when allegations against the petitioners are of serious nature, because the Court must always nurture in their introspection that justice must eventually be done by ensuring punishment for the offenders, as otherwise the fabrics of the civilized society will crumble.
v) The Judges must not be oblivious of the interest of the victims and the society as a whole, for justice connotes even handedness.
vi) Anticipatory bail application must be considered in the backdrop of the possibility that investigation process, in consequence of enlarging the accused on bail, may be impeded.
vii) Prevailing situation should not be ignored.
In State v Abdul Wahab Shah Chowdhury,50 ATM Afzal C.J., making it abundantly clear that pre-arrest bail is an extraordinary remedy, an exception to the general law of bail, can be granted only in extra-ordinary and exceptional circumstances upon proper and intelligible exercise of discretion.51 Therefore, there are not many differences in principles applying for grating anticipatory bail or regular bail in cases attracting death penalty or not. Discretion of the court is important which the court exercises judiciously and reasonably. It develops the jurisprudence in the relevant pasture.
Opposition
It is argued by the opponents that if a death penalized convict would escape away in such a manner that he/she cannot be found later by the law enforcing agencies, and then it would create tyranny and spread danger in the society. This argument seems worrying but should have no force in the eye of law. Because, when a convict person gets bail, he furnishes bail bond through the lawyer and tadbirkar, it makes him connected with the process of law and Court on regular basis. More so, we should not think our State and the law enforcing agency so weak and incapable that they would fail to find out a fugitive, or prevent that person from escaping the eyes of law.
Bail as an important right
Bail is an important right of an individual. If there is ground to enlarge the convict-appellant on bail, the person should be enlarged on bail. One should not deprive of it only because he/she is convicted with death penalty or life imprisonment. In appeal, a convict may get released from sentence. If so, neither the State nor the Court can repay his life which he/she had spent behind the bar. Each and every case should be adjudged minutely respecting the particularity of each situation. At least, the Judges should have time and patience for that as people expect. It is justice system which is necessary to be kind and considerate towards people. People have no alternative to Court. Therefore, no principle and practice should grow up or develop blindly which in anyway prejudices the right of the innocent. ‘Let the heaven fall, justice be done’ is to beremembered always. Hope our judiciary will consider this issue. It is a need of time now. Since there is no legal bar to grant bail, therefore it is highly expected that our Courts will exercise their jurisdiction under Section 426 of the Code to grant bail to the convict-appellant sentenced with death penalty or life imprisonment in appropriate case considering the entire facts and circumstances.
This question of taking a step ahead and managing time in serving justice has nicely been asked itself by the Supreme Court of India saying that “we have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?”.
Most tragic part would arise when after long continuation of appeal, if the person wound be found ‘not guilty’. By then golden time of his/her life has been gone which is totally un- returnable. Humans cannot go back to past. No system could ever do that yet. On the other hand, if he would be found guilty, it will nothing better than taking his life away in accordance with law or keeping him in jail for lifetime. If no misuse is found against him, or his behavior could
be observed under regular legal surveillance, the convict should get a chance to enjoy the limited liberty under bail.
It was held that the appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice.
The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years.110
It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person: “We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?” What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing.
Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal to be such a person who had already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.
It is absolutely undeniable that bail in murder case or any such case attracting death penalty or life imprisonment is not easy as it can be considered in all other cases; because, murder case or such type of heinous crimes have serious social impact. With these kinds of serious nature crimes, not only does the victim and his or her family suffer, but the whole society is made to feel uneasy. It calls into question the social security and legal systems as a whole. However, it is also devastating when an innocent person is punished or faces legal injustice. Between these two opposing viewpoints, bail under the custody of the law serves as a useful transition.
It is helpful to note that the court’s role is magnified and its burden is heavy when citizens are afraid to live peaceful lives and when crimes of this nature impede the development of an orderly society. A thorough examination of the criminal history was necessary. It goes without saying that setting conditions comes after the decision to grant bail to an accused person. The issue of imposing conditions should come after determining whether or not the accused is worthy of an extended bail. We do not dispute for a second that the length of custody is an important consideration, but we also need to consider the totality of the situation and the criminal history. They must be measured against the weight of the general outcry and desire. It is important to consider societal concerns when weighing individual liberties. With regard to the aforementioned criterion, we are inclined to believe that the social concern in the particular case should take precedence over removing the accused’s restriction on their freedom.
It should be kept in mind that a court may take into account a variety of factors when deciding whether to grant bail. To put it all together, though, the goal that a court must consider when considering a bail request is that there should never be a barrier to the fair trial’s advancement.
In conclusion, it can be said that since there is no legal prohibition against granting bail to defendants who have been found guilty and are facing the death penalty, and because bail is a discretionary measure governed by the law and the values established by the judiciary over time, our higher Court may give this matter some thought and consider expanding the boundaries of our criminal jurisprudence. There won’t be anyone to act if the Court doesn’t open its doors. No one can do what the Court can. Our modest attempt with this article is to kindly ask our higher Court to give this matter some serious consideration.
