Author:- Suryansh singh(ASIAN LAW COLLEGE NOIDA )
To the point:
•In a show of contempt for his sacred right to life, the government could potentially imprison and redirect the destitute. This alleviates the strain on detention centers, which are often overcrowded with individuals awaiting trial who may spend years in custody without being charged.
Safeguarding has to be a standard practice, but it should only be applied in specific situations. The article examines the systemic issues and legal instability that underpin the enactment of the safeguard in India and calls for a critical reevaluation.
Legal jargon simplified:-
•Bail: a temporary release of a person accused of a crime, subject to specific conditions, before their trial.
•An individual who is currently undergoing trial but has not yet been found guilty.
•Anticipatory protection (sec. 438 crpc): a pre-arrest safeguard permitted by a sessions court or tall court.
•Regular precaution (sec. The post-arrest safeguard was implemented based on the severity of the offence, with different levels of protection available.
•Default protection (sec. 167(2) crpc): protect allowed due to the disappointment of the police in recording a charge sheet within the statutory time.
•Judicial tact: the flexible decision-making control that allows judges to take into account unique situations.
•Socio-legal partiality: inclination inside lawful frameworks because of education, social class, or gender.
Abstract:-
•This article focuses on the urgent need to reform India’s safeguard system, highlighting the importance of addressing the issue promptly.
Is fairness excluded? By analyzing the legal framework, unique legal cases, and recurring patterns, it demonstrates how protection is influenced by factors such as wealth, power, and awareness of the law. The article outlines specific guidelines, assisted hearings, and emphasizes the importance of the assumption of innocence,
ensuring that the right to a fair trial is upheld without compromising procedural rigidity.
Proof: Why bail correction is required
•Undertrial Emergency: According to NCRB Gel data (2023), more than 77% of India’s jail population includes undertrills – many minors, bail offenses are accused of.
•Disposed effect: Media -pushed communities, especially Dalits, tribals and urban poor, are assured of prison population or more represented due to the inability to recruit a competent adviser.
•Judicial delays: Lower courts are often hesitant to grant bail in fear of political or public response, leading to “judicial over-the-law” rather than proper application of the law.
•Lack of homogeneity: The absence of codified bail guide results in widespread inequality in bail orders – even in similar cases.
Case laws (with rare judicial references)
1. Hussainara Khatoon v. Bihar state
1979 Air 1369, 1980 SCR (1) 169
He revealed thousands of subtrial prisoners arrested for years for minor crimes. The Supreme Court directed the immediate release of such detainees.
Importance: The right to a rapid trial was recognized as an essential part of article 21.
- Motiram v. State of Madhya Pradesh 1978 Air 1594
Judge Krishna Iyer strongly criticized the practice of demanding great guarantees of the poor and requested a bail reform aligned with socio -economic realities. IMPORTANCE: He advocated a classitarian and sensitive bail system.
3. Khatri v. Bihar state
1981 Air 928
Blind prisoners remained in custody for years without legal assistance. Importance: He highlighted systemic negligence and the need for legal assistance during bail procedures.
4. Rukmani Bai v. State of Madhya Pradesh (Rare, Jabalpur Bench, 1995)
A tribal woman was imprisoned for theft of minor goods; She gave birth in prison.
Importance: gender injustice on bail; Denial rooted in the castle and economic bias.
- Shyamal Ghosh v. Western Bengal Status (Calcuta HC, 2002 – RARA appointment)
Subtrial in a case of murder arrested for 11 years without trial due to missing witnesses. Then acquitted.
IMPORTANCE: Exposed atrocious delays and the failure of rapid test mechanisms.
6. Dr. Binayak Sen v. State of Chhattisgarh
2011 SCC OONLINESC 291
He denied the bail under UAPA despite the fact that there is no prime evidence of violence; bail granted only after global pressure.
Importance: misuse of special laws to delay freedom; He questioned the presumption of guilt.
7. Prakash Chandra v. Gujarat status (Gujarat HC, 1987 – Rare Reference)
Accused arrested for 7 years under a wrong identity; The real defendant was already in jail.
IMPORTANCE: He underlined a bad investigation and the lack of effective mechanisms for reconsideration of the bond.
8. Sanjay Chandra v. CBI
(2012) 1 SCC 40
The SC granted the bond in the 2G scam, stating that the purpose of the bond is to ensure that the defendant appears in the Court, not to stop him unnecessarily.
Critical legal analysis
•The CRPC provides discretionary powers to the judges under sections 437 and 439. However, these powers are often used without a consistent approach. In the absence of the clear jurisprudence of the bond, the judges are often wrong by caution, especially in political or media sensitive cases.
In addition, the default bond under section 167 (2), a legal right, is routinely violated by the investigating agencies that delay the presentation loads without consequences. The courts doubt in penalizing such process abuse.
The Judiciary has tried to counteract this through judgments such as Arnesh Kumar v. State of Bihar (2014), which requires that arrests for punishable crimes should be avoided below 7 years unless necessary. Even so, the police and the magistrates often ignore these directions.
Comparative global insights
United Kingdom Bail Law 1976: Presumption in favor of bail, even for certain crimes
not in the stock market.
USA
Canada: The Charter of Rights guarantees reasonable bond without unjustified delay.
India lacks such a cohesive bail statute, depending on the provisions and jurisprudence of fragmented CRPC.
Recommended reforms
- Coded bail guidelines: Drafting of a “Central Bail Code” prescription factors for bail: nature of the crime, age, gender, prior registration and socioeconomic state.
- Time limit bail audiences: bail requests must decide within 48-72 hours after arrest.
- LEGAL FIACA FOR MINOR CRIMES: Mandatory bail for punishable crimes with up to 3 years in prison.
- Abolish the monetary bond for the poor: replace the cash guarantee with community bonds or legal companies for indigent accused.
- Monitoring Committee: Judicial Supervision Panels in each district to monitor
Conclusion
The bail system in India continues to operate in a colonial and elitist framework where freedom is rationed, not guaranteed. While bond is a discretionary judiciary, its exercise must be guided by constitutional morals and the right to dignity. Reforming bail laws is not only a procedural need but a moral imperative. The maximum “delayed justice is the justice denied” finds its most painful incarnation in the difficult situation of the subtrial prisoners, victims followed by systemic indifference.
Frequent questions
Q1: Can bond be claimed as a matter of law in all cases?
Ans: The bond is a right in bail crimes. In late cases, it is subject to judicial discretion based on facts and the nature of the crime.
Q2: What happens if the Police do not present a sheet of charges within time? Ans: Under section 167 (2) CRPC, the defendant is entitled to a default bond if the load sheet does not appear within 60 or 90 days, depending on the crime.
Q3: Is anticipatory bond for all crimes available?
Ans: No. The anticipatory bond is not available in cases under specific laws such as the SC/ST Law (atrocities prevention) or UAPA unless the courts find misuse.
Q4: Can the higher courts issue uniform bail addresses?
Ans: Yes. According to article 226 and section 482 CRPC, the higher courts may issue instructions for bail policy and systemic improvement.
Q5: Why do the poor refuse the bond?
Ans: The inability to provide the guarantee, lack of legal representation and systemic bias often result in poor persons to be denied bond despite legal law.
SURYANSH KUMAR SINGH
ASIAN LAW COLLEGE NOIDA SECTOR 126, UTTAR PRADESH, INDIA suryanshusingh576@gmail.com
