pdc project
TRANSCRIPT
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ACKNOWLEDGEMENT
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a#(!* '*s3(!s&2#* )(' a## "h* '*%a&!&!$ *''('s a!6 &!a6*9a54.
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INDEX
Introduction………………………………………………………………………………..
….4
Meaning of
Bail……………………………………………………………………………….5
History of
Bail................................................................................................................
...........6
Eolution in
England.........................................................................................................
.......!
"urrent
Practice.........................................................................................................
...............#
Eolution in
$merica………………………….......................................................................%
"urrent
Practice…………………………………................................................................
...&'
(egal Position in
India…………………………………………............................................&'
)udicial
*rend……………………………………………………….....................................&5
"onclusion………………………………………………………………………………......
&!
Bi+liogra,hy………………………………………………………………………………...
&%
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INTRODUCTION
)ustice as -e kno- -as a right fundamental to all +ut it/s fallacy is
eident as money no- results in its fall. 0+1ectiely analy2ed the criminal
1uris,rudence ado,ted +y India is a mere re3ection of the ictorian legacy
left +ehind +y the Britishers. *he ,assage of time has only seen a fe-
amendments once in a -hile to satisfy ,ressure grou,s and ote +anks.
Pro+a+ly no thought has +een gien -hether these legislations -hich
hae eisted for almost seen decades hae taken into account the ,light
and the socioeconomic conditions of !78 of the ,o,ulation of this
country -hich lies in utter ,oerty. India +eing a ,oerty stricken
deelo,ing country needed anything +ut a +lind co,y of the legislations
,realent in deelo,ed -estern countries.
*he conce,t of +ail -hich is an integral ,art of the criminal 1uris,rudence
also su9ers from the a+oe stated dra-+acks. Bail is +roadly used to refer
to the release of a ,erson charged -ith an o9ence on his ,roiding a
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security that -ill ensure his ,resence +efore the court or any other
authority -heneer re:uired.
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$ reading of the a+oe de
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HISTORY OF BAIL
*he conce,t of +ail can traced +ack to '%% B" -hen Plato tried to create
a +ond for the release of Socrates. *he modern +ail system eoled from a
series of la-s originating in the middle ages in England.
Evol!"o# "# E#$l%#&
*here eisted a conce,t of circuit courts during the medieal times in
Britain. )udges used to ,eriodically go on circuit to arious ,arts of thecountry to decide cases. *he terms Sessions and Fuarter Sessions are
thus deried from the interals at -hich such courts -ere held. In the
mean-hile the under trials -ere ke,t in ,rison a-aiting their trials. *hese
,risoners -ere ke,t in ery unhygienic and inhumane conditions this -as
caused the s,read of a lot of diseases. *his agitated the under trials -ho
-ere hence se,arated from the accused. *his led to their release on their
securing a surety so that it -as ensured that the ,erson -ould a,,ear onthe a,,ointed date for hearing. If he did not a,,ear then his surety -as
held lia+le and -as made to face trial. Slo-ly the conce,t of monetary +ail
came into eistence and the said under trials -as asked to gie a
monetary +ond -hich -as lia+le to get forfeited on nona,,earance.
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In *he Magna "arta in &@&5 the $
Magistrate shall discharge ,risoners from their Im,risonment taking their
Aecogni2ance -ith one or more Surety or Sureties in any Sum according
to the Magistrate/s discretion unless it shall a,,ear that the Party is
committed for such Matter o9enses for -hich +y la- the Prisoner is not
+aila+le.> In &6#% came *he English Bill 0f Aights -hich ,roided
safeguards against 1udges setting +ail too high. It stated that >ecessie
+ail hath +een re:uired of ,ersons committed in criminal cases to elude
the +ene
C(()#! *(%+!"+)
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In &%!6 the Bail $ct &%!6 came into force. It sets out the current and the
+asic legal ,osition of +ail ,reailing in England. It lays out that there is a
general right to +ail ece,t as ,roided for under the ;irst Schedule of the
$ct. =hile there are di9erent grounds for refusing the right to +ailde,ending on the ty,e of o9ence for all im,rison a+le o9ences the t-o
+asic grounds are as set out +y the 0/"allaghan decision. But there is also
the additional ground that if the court is satissu+stantial grounds for +elieing> that the defendant if released on +ail
-ill commit an o9ence -hile on +ail +ail may +e refuse. nder section
5'C of the Bail $ct &%!6 the court -hich -ithholds +ail is re:uired to gie
reasons so that the defendant can consider making an a,,lication. In
,ractice ho-eer the reasons gien +y English courts on a ariety of
standard forms are fre:uently short and not e,licitly +ased u,on
,articular facts and factors. Stone/s )ustices/ Manual suggests that
magistrates announce any decision to refuse +ail merely +y relating the
grounds and statutory reasons in short form.
English administratie la- also re:uires that -here there is an eistingo+ligation to gie reasons for a decision the reasons gien +e clear and
ade:uate and deal -ith the su+stantial issues in the case.
*he English courts use tick +oes for recording the grounds and the
reasons for not granting +ail. *here is a use of a standard ,attern that
-hich lists out the arious reasons for not granting the +ail. *hese forms
ary in their ,recise con or >stereoty,ed> and therefore
inade:uate. *he :uality of the reasons gien directly re3ects the :uality of
the decisionmaking ,rocess.
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Evol!"o# "# A.)("+%
$ccording to the San ;rancisco e-s and the S; "hronicle the
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C(()#! *(%+!"+)
nder current la- a defendant has the right to +ail unless there is
suGcient reason not to grant it. *he main reasons for refusing +ail
according to the Bail $ct &%!6 are that there are su+stantial grounds for
+elieing that the defendant &C -ill a+scondJ @C -ill commit further
o9ences -hilst on +ailJ or 'C -ill interfere -ith -itnesses. "onditions may
+e a,,lied to the grant of +ail such as liing at a ,articular address or
rarely ,aying an amount into court or haing someone act as surety.
Aelease on +ail is sometimes referred to as ,olice +ail -here the release
-as +y the ,olice rather than +y a court. *he alternatie to +eing granted
+ail is +eing remanded into custody also called +eing held on remandC.
In $merica eery accused ,erson is entitled to a hearing at -hich
eidence releant to his indiidual case is considered to determine the
amount of +ail necessary. o ,recise rule can +e laid do-n that -ill
determine the amount of +ail re:uired in any ,articular instance. Bail is to
+e
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*he amount of a +ond should of course +e suGcient to assure the
attendance of the defendant u,on the court -hen it is re:uired. *he +ond
should +e
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*he gist of the ,ro+lem confronting a court in setting the amount of +ail is
to ,lace the amount high enough to reasona+ly assure the ,resence of
defendant -hen it is re:uired and at the same time to aoid a
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5C health of the accused
6C character and strength of the eidence
!C ,ro+a+ility of the accused a,,earing at trial
#C forfeiture of other +onds and
%C -hether the accused -as a fugitie from 1ustice -hen arrested.4
*hat the accused is under +ond for a,,earance at trial in other cases
should also +e considered. $ ma1or factor in determining the amount of
+ail in a current matter is the character and former criminal record of the
defendant. It has +een held ho-eer that the criminal actiities and
tendencies of a ,erson a,,lying for +ail on a charge of agrancy do not
1ustify the
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*he ,ro+a+ility of the esta+lishment of guilt at the trial or the eistence of
dou+t as to the guilt of the accused is a ,ro,er consideration in
determining the amount of +ail. Hence a court in determining the amount
of +ail may consider the character and strength of the eidence +y -hichthe crime charged is su,,orted.
$ court should gie some regard to the ,risoner/s ,ecuniary
circumstances since -hat is reasona+le +ail to a man of -ealth may +e
e:uialent to a denial of the right to +ail if eacted of a ,oor man charged
-ith a like o9ense. $n accused cannot +e denied release from detention
+ecause of indigence +ut is constitutionally entitled to +e released on his,ersonal recogni2ance -here other releant factors make it reasona+le to
+eliee that he -ill com,ly -ith the orders of the court.
Ho-eer +ail is not rendered ecessie +y the mere ina+ility of the
accused to ,rocure +ail in the amount re:uired. In other -ords the etent
of the ,ecuniary a+ility of the accused to furnish +ail in not controlling if it
-ere the *here is ,o-er in the court to release the defendant -ithout +ail or on his
o-n recognition.>
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T/) L)$%l *o0"!"o# "# I#&"%
*he "riminal Procedure "ode &%!' "r.P.". hereinafterC does not de. ;urther ss. 4'6 to 457 set out the
,roisions for the grant of +ail and +onds in criminal cases. *he amount of
security that is to +e ,aid +y the accused to secure his release has not+een mentioned in the "r.P.".. *hus it is the discretion of the court to ,ut
a monetary ca, on the +ond. nfortunately it has +een seen that courts
hae not +een sensitie to the economic ,light of the -eaker sections of
society. *he unreasona+le and eor+itant amounts demanded +y the
courts as +ail +onds clearly sho- their callous attitude to-ards the ,oor.
$ccording to the !#th re,ort of the (a- "ommission as on $,ril & &%!! of a total ,rison ,o,ulation of &6% as many as &7&7#' roughly 558C
-ere undertrials. ;or s,eci
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0ne of the reasons for this is as already mentioned a+oe is the large
scale ,oerty amongst the ma1ority of the ,o,ulation in our country.
;ragmentation of land holdings is a common ,henomenon in rural India. $
family consisting of around # out of &7 mem+ers de,ends on a small ,ieceof land for their su+sistence -hich also is a reason for disguised
unem,loyment. =hen one of the mem+ers of such a family gets charged
-ith an o9ence the only -ay they can secure his release and ,aying the
+ail is +y either selling o9 the land or giing it on mortgage. *his -ould
further ,ush them more into the 1a-s of ,oerty. *his is the ,recise reason
-hy most of the under trials languish in 1ail instead of +eing out on +ail.
Fo(.%! o Al"+%!"o#
$ ,erson may +e accused of a Baila+le or a on Baila+le o9ence. In case
of a +aila+le o9ence the accused has a right to secure his release +y
a,,lying for +ail under S. 4'6&C of "r P " -hile in case of non+aila+le
o9ence the accused may +e released +y the court on its discretion after
he a,,lied for +ail under S. 4'!&C of "r P ". In case of a +aila+le o9enceif the accused in indigent he may +e released my eecuting a ,ersonal
+ond -ithout sureties.
*he a,,lication for +ail is made to the court in -hich the accused is tried
that de,ends on the o9enceC. Ho-eer S. 4'% gies s,ecial ,o-ers to
H" and "ourt of Session to release a ,erson on +ail after im,osing certain
conditionsC and so an a,,lication may +e made to H" or "ourt of Session
as -ell if the ,erson is under arrest.
o eri
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UDICIAL TREND
$n oerie- of the follo-ing cases highlight the aderse condition of the
,oor -ith regard to the un1ust +ail system in India. In State of Aa1asthan
Balchand 5 the accused -as conicted +y the trial court. =hen he -ent
on a,,eal the High "ourt it ac:uitted him. *he State -ent on a,,eal to
the Hon/+le Su,reme "ourt under $rt. &'6 of the "onstitution through a
s,ecial leae ,etition. *he accused -as directed to surrender +y the court.
He then
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In Maneka Oandhi nion of India! )ustice Nrishna Iyer once again s,oke
against the unfair system of +ail that -as ,reailing in India. o de
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CONCLUSION
$ ,erusal of the a+oe cases highlights the strong anti,oor +ias of the
Indian criminal 1ustice system. Een though the courts in some cases hae
tried to interene and also hae laid do-n certain guidelines to +e
follo-ed +ut unfortunately nothing has +een done a+out it. *here is also a
strong need felt for a com,lete reie- of the +ail system kee,ing in mind
the socioeconomic condition of the ma1ority of our ,o,ulation. =hile
granting +ail the court must also look at the socioeconomic ,light of the
accused and must also hae a com,assionate attitude to-ards them. $,ro,er scrutiny may +e done to determine -hether the accused has his
roots in the community -hich -ould deter him from 3eeing from the court.
*he court can take into account the follo-ing facts concerning the
accused +efore granting him +ail
&C *he nature of the o9ence committed +y the accused.
@C *he length of his residence in the community.
'C His em,loyment status history and his
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%C $ny other factors indicating the ties of the accused to the communityor +arring on the risk of -illful failure to a,,ear.
It is thought that from the arious schemes the goernment o,erates for
rural em,loyment loans to farmers etc a ,ortion of the funds -hich it
transfers to the ,anchayat for deelo,mental -ork of the same should +e
set aside and ke,t to meet the +ail amount for undertrials +elonging to
the ,articular ,anchayat ? +lock. *he utili2ation of this fund -ould +e in
the hands of the elected leaders of the society -ith the re,resentatie of
district collector ? district magistrate +eing a ,art of the system. *his
-ould go a long -ay in securing freedom for scores of undertrials -ho
-ould then +e a+le to contri+ute to society there+y ,laying an im,ortant
role and forming ,art of the national mainstream. Such a scenario -ill
hae the e9ect of reducing the +urden of oercro-ding in 1ail.
*he setting u, of se,arate 1ails or at any rate isolating undertrials from
conicts -ould ,reent hardened criminals from eercising their
deleterious in3uence oer undertrials. Such segregation -ould also
change the attitude of 1ail authorities and society at large to-ards under
trials.
*he under trials -ho hae +een charged -ith ,etty crimes can further +e
,ut in reformatie homes instead and asked to do community serice till
the time they are released on +ail. Elementary education facilities must +e
granted to those under trials -ho are uneducated and illiterate. *hus I
feel that the +ene
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BIBLIOGRA*HY
I ,erused the follo-ing material for the making of this ,ro1ect
&.*he (a- of Pleadings in IndiaQ P.". Mogha ).M. Sriastaa O.". Mogha
Eastern Book "om,any (uckno-.
@. *et+ook on Pleadings Drafting and "oneyancing +y Dr. $.B.
Nafaltiya
'. Dr. .. Paran1a,e "ode of "riminal Procedure &st edn. @775
"entral (a- $gencyC.
4. D.D. Basu "ommentary on the "onstitution of India #th
edn.=adh-a ag,ur @77&C
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