Bail Or Jail: Striking a balance

There has been justifiable shock over the ease with which the medical students who flung a pup from the terrace of a building, got bail in a jiffy. Outrageous as this may seem to a layman, the fact is that they were booked under bailable provisions of law, namely Section 11(1)(a) of the toothless Prevention of Cruelty to Animals Act and Sections 428 and 429 of the Indian Penal Code. Aside of the ‘bail is the norm and jail is the exception’ dictum, the police officer or the magistrate is bound by Section 496 of the Code of Criminal Procedure (CrPc) and has no discretion in releasing a person accused of a bailable offence, if he is capable and willing to furnish bail. The words ‘shall be released’, make bail an absolute right in such cases.

With saturated 24x7 coverage by a vibrant media and offences caught on camera, a ‘media trial’ of sorts seems inevitable. If there is to be real deterrence, then just like the yardstick of ‘rarest of rare’ cases for the death penalty, those accused of crimes that ‘shock the collective conscience of society’, should not be able to get bail as easily as buying medicines over the counter. If the word ‘shall’, is changed to ‘may’, it will unfetter the police and the judges, who will then have a say in enlarging a person on bail. Of course, judges who are expected to be made of ‘sterner stuff’ must not allow media coverage to influence their decision.

The objective of bail is to dovetail two conflicting requirements of criminal jurisprudence – not depriving an individual accused of committing a crime but who may be innocent, of his liberty, and shielding society from a person who may be guilty and poses a danger to others. In Joginder Kumar Vs State of UP, the Supreme Court delved into the fine balance that is required in the wake of “the expanding horizon of human rights and the increasing crime rate.”

Under Sec 437 (1) CrPc, if there are reasonable grounds to believe that a person is guilty of an offence punishable with death or imprisonment for life, bail can be denied. Ditto, under Clause (2) in cases of previous conviction for offences punishable with death or imprisonment for life or seven years, or two or more convictions of non-bailable or cognisable offences. The likelihood of the accused person tampering with evidence, threatening witnesses, fleeing from justice or committing more offences are the usual determining factors, with some leeway for leniency if the person is under 16 years of age, a woman, or is sick or infirm.

The Supreme Court in Arnesh Kumar Vs State of Bihar noted that as arrest “curtails freedom, brings humiliation and casts scars forever...the existence of the power to arrest is one thing, the justification for the exercise, is quite another.” Following the 177th Report of the Law Commission, Sec 41(1) (b) CrPc in its present form was enacted. A person accused of an offence punishable with imprisonment for upto or less than seven years, cannot be arrested unless the risk factors explained above exist.

The recommendations of the Third Report of the National Police Commission were considered by the Supreme Court, which, in the landmark D.K. Basu Vs State of West Bengal case, listed 11 Commandments on Arrest.

These include clear identification of the police officers, a memo with the time of arrest attested by a witness, information about the venue of custody given to the relative or friend of the arrestee, medical examination at the time of arrest and every 48 hours thereafter and the opportunity for the arrestee to meet his lawyer. Two decades on, these guidelines may sometimes be thrown out of the window. But there is an urgent need for society to also have its own set of safeguards against elements who have scant respect for the law. And life.