RECENT SUPREME COURT DECISION ON BAILS

(LOGIC AND CONCEPT OF BAILS)

MALKEET SINGH BALIANWALI,

Advocate,
Punjab & Haryana High Court,
Chandigarh
# 396 (FF), Phase-XI, Sector-65,
Mohali (Pb.-India) 160 062
Mail: lawyercontact@gmail.com
ISSUE:
A recent, 3 judge judgment of the Supreme Court in a CRIMINAL APPEAL
NO. 462 OF 2018, decided on 27th March, 2018, is enough to create ripples in the
application of Criminal Laws. The judges held that grant of Anticipatory Bail does not
guarantee Regular Bail to the Accused. My following article is deals with this aspect.

CRIMINAL AND PENAL LAW:

Criminal Law is considered as the oldest branch of Laws that might have
originated in the times when man had become aware about his possessions. He had to
guard his possessions against outsiders and for which the war was the only rule that
knows only one principle “kill or get killed.” At that time it was crude Criminal law
but specifically called Penal Law. There was no procedure, invaders were either killed
or captured to be used as slaves. That capture of invaders can be considered as crude
concept of arrest but having an element of imprisonment till life or till the captured
person escapes.
The law in true form started evolving with emergence of Civilization. The
oldest code is found from 24th century BCE from Sumerian area called “Code of
Urukagina” that passing through various stages through Edicts of Ashoka and Manu
Smriti in India and reached to the modern Criminal law.
Richard R. Cherry is of the opinion that Criminal and Penal law are not
identical1. According to him “All Criminal Law is Penal in its nature, i. e. it effects its
ends by means of punishment, but all Penal Law is not Criminal.” While referring to
Sir Henry Maine, R.R. Cherry opined, “the notion of an offence against the State is
of entirely modern growth; and the theory that punishment is imposed for the sake of
reforming the criminal and deterring others from following Ids example is even still
more modern.2”

BAIL:
Since arrest is one of the major event in a penal law that is happening now
around the world. However, with the development and recognition of Human Rights
in a Civilized Society, the right to Life and Liberty is being considered as the
Fundamental Law. Similarly, innocence of an accused is presumed till he is held
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guilty. Presumption and Fundamental Rights are two distinct concepts, even though
presumption of innocence has an element of freedom of life and liberty but that is
purely dependent upon the particular statute. However, the concept of bail should not
be considered as a reason to maintain a balance between the two.
Timothy R. Schnacke, et al3 in their research report have stated that “The
Anglo-Saxon legal process was created to provide an alternative to blood feuds to
avenge wrongs, which often led to wars. As Anglo-Saxon law developed, wrongs once
settled by feuds (or by outlawry or “hue and cry,” both processes allowing the public
to hunt down and deliver summary justice to offenders) were settled through a system
of “bots,” or payments designed to compensate grievances. Essentially, crimes were
private affairs (unlike our current system of prosecuting in the name of the state) and
suits brought by persons against other persons typically sought remuneration as the
criminal penalty. In a relatively small number of cases, persons who were considered
to be a danger to society (“false accusers,” “persons of evil repute,” and “habitual
criminals,”) along with persons caught in the act of a crime or the process of
escaping, were either mutilated or summarily executed. All others were presumably
considered to be “safe,” so the issue of a defendant’s potential danger to the
community if released was not a primary concern.”
They further observed, “Nevertheless, the Anglo-Saxons were concerned that
the accused might flee to avoid paying the bot, or penalty, to the injured (as well as a
“wite,” or payment to the king). Prisons were “costly and troublesome,” so an
arrestee was usually “replevied (replegiatus) or mainprised (manucaptus),” that is,
“he was set free so soon as some sureties (plegii) undertook (manuceperunt) or
became bound for his appearance in court.” Thus, a system was created in which the
defendant was required to find a surety who would provide a pledge to guarantee
both the appearance of the accused in court and payment of the bot upon conviction.
The amount or substantive worth of that pledge, called “bail” (akin to a modern
money bail bond), was identical to the amount or substantive worth of the penalty.”4
Thus bail is said to be originated, as applicable in India, during medieval
Anglo-Saxon law as a deposit of some security or surety just to secure that the
accused will be available to meet the penalty.
With the changing times, Penal law as well as categories of crimes was also
getting updated. Later on, even the crime against the state was also added and it lost
the original concept of mere private injury to an extent to give it broader area to
prevail.
Concept of Right to Life and Liberty as a fundamental right is also a modern
concept. Thus Penal Law has/had to address the changing circumstances. Still even in
the modern times, the accused is required to stand by trial and in case he is held
guilty, he should be available to serve the penalty. As such, the basic concept of arrest
and the bail with security or surety remained the same.
Even under the Criminal Procedure Code of India, 1973, the concept of bail is
very much clear from the language of Section 437 that reads as below:
“When any person accused of, or suspected of, the commission of any
non- bailable offence is arrested or detained without warrant by an
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officer in charge of a police station or appears or is brought before a

Court other than the High Court or Court of Session, he may be
released on bail.”
However, certain exceptions have been carved out. Further Sub-Section 3 of
Section 437 Cr. P.C. makes further clear as under:
“(3) When a person accused or suspected of the commission of an
offence punishable with imprisonment which may extend to seven years
or more or of an offence under Chapter VI, Chapter XVI or Chapter
XVII of the Indian Penal Code or abetment of, or conspiracy or
attempt to commit, any such offence, is released on bail under sub-
section (1), the Court may impose any condition which the Court
considers necessary-
(a) in order to ensure that such person shall attend in accordance with
the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence
similar to the offence of which he is accused or of the commission of
which he is suspected, or
(c) otherwise in the interests of justice.”
As such, even today, the concept of bail, with certain modifications, depends
upon the basic feature that the accused will not abscond, will be available to suffer
punishment, will not influence trial and will not commit the similar offence while on
bail.
Thus, the principal aim of bail is removal of restrictive and punitive
consequences of pre-trial detention of an accused.
In India, there was no provision for Anticipatory Bail under the Criminal
Procedure Code, 1898. However, vide paragraph 39.9 of the 41st Report of the Indian
Law Commission (that gave rise to enactment of the Criminal Procedure Code, 1973)
introduction of a provision for ANTICIPATORY BAIL was recommended. The law
Commission recorded that reads as below:
“39.9. The suggestion for directing the release of a person on bail
prior to his arrest (commonly known as "anticipatory bail'') was
carefully considered by us. Though there is a conflict of judicial
opinion about the power of a Court to grant anticipatory bail, the
majority view is that there is no such power under the existing
provisions of the Code. The necessity for granting anticipatory bail
arises mainly because sometimes influential persons try to implicate
their rivals in false causes for the purpose of disgracing them or for
other purposes by getting them detained in jail for some days. In recent
times, with accentuation of political rivalry, this tendency is showing
signs of steady increase. Apart from false cases, where there are
reasonable grounds for holding that a person accused of an offence is
not likely to abscond, or otherwise misuse his liberty while on bail,
there seems no justification to require him first to submit to custody,
remain in prison for some days and then apply for bail.
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We recommend the acceptance of this suggestion. We are further of the

view that this special power should be conferred only on the High
Court and the Court of Session, and that the order should take effect at
the time of arrest or thereafter.”
This aspect and recommendation was also considered by the 5 judges Bench
of the Hon’ble Supreme Court in paragraph 356 of the judgment delivered in a case
“Kartar Singh Vs. State of Punjab5” though interpretation about denial of
Anticipatory bail is made on the basis of subjective opinions and further holding by
implication that Bail is not a fundamental right.
Though History of Bail that does not differentiate between Anticipatory and
Regular bail is very much clear and 41st Report of Indian Law Commission is also
accessible to all, the Hon’ble Supreme Court of India in CRIMINAL APPEAL NO.
462 OF 20186 decided on 27th March, 2018 has held in paragraph 14 of the judgment
has observed that
“In any case, the protection under Section 438, Cr.P.C. is available to
the accused only till the court summons the accused based on the
charge sheet (report under Section 173(2), Cr.P.C.). On such
appearance, the accused has to seek regular bail under Section 439
Cr.P.C. and that application has to be considered by the court on its
own merits. Merely because an accused was under the protection of
anticipatory bail granted under Section 438 Cr.P.C. that does not
mean that he is automatically entitled to regular bail under Section
439 Cr.P.C. The satisfaction of the court for granting protection under
Section 438 Cr.P.C. is different from the one under Section 439
Cr.P.C. while considering regular bail.”

CONCLUSION:
The Supreme Court of India has clearly gone against the history and concept
of bails. Further the Supreme Court of India has gone against the recommendations
contained in paragraph 39.9 of the 41st Report of Indian law Commission, as well as
previous decisions of the Supreme Court.
I can understand the change in circumstances but those must have been
reflected in some study and some law that is not being brought before by the Apex
Court. It is very unfortunate to know that even the Apex Court of India is so ignorant
and going with the sentiments and against the logic.
In my opinion, right to bail, is certainly not a Fundamental/Basic Human Right
else all criminal/penal laws had to be enacted with an incorporation of a provision for
bail, either Anticipatory or Regular but there are certain laws those deny Anticipatory
bail and those laws have been held Constitutional and valid, as held in Kartar Singh’s
case, mentioned above. Bail is certainly a statutory right. Till this aspect, the law
conforms to the very basic concept of bails and its history of origin.
However, the judgment of the Supreme Court of India in CRIMINAL
APPEAL NO. 462 OF 2018 decided on 27th March, 2018 has deviated from the
normal concept of bails and also observations made in paragraph 39.9 of 41st Report
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of the Law Commission of India. The basic consideration to grant a Regular bail,
means the bail after arrest, requires a test as explained in section 437 and 439 of the
Code of Criminal Procedure of India to be passed by the accused, primarily that the
accused will not abscond or influence the trial; He will not influence or threat the
witnesses and that he will not commit the same crime while on bail. Whereas,
Anticipatory bail requires rather stronger case that also includes no prima facie case
against the accused and that he will not influence investigation. Thus the grant of
Anticipatory Bail is always on better footings than the grant of Regular Bail.
Furthermore, concept of the bail is to make sure, through security and surety
that the accused will be available to meet the penalty, in case he is held guilty.
Further, it is a sacred principle of criminal law that till one is proved and held guilty,
he is considered to be innocent and the burden is always upon the prosecution the
charges. If it is so then it is purely out of logic to put under trials in prison and to
suffocate atmosphere of prisons.
It is my considered opinion that we people are easily swayed by allegations
and without taking pain to reach a logical conclusion start believing the accused a
criminal. Unfortunately, our judges are also the members of the same society, in
which other people live. They too are prone to same level of faulty faculties and thus
passing judgments those, in fact, go against the basic concepts of sociology of and law
of crimes.
I feel that the judgment dated 27th March, 2018, passed by 3 judge’s bench in
CRIMINAL APPEAL NO. 462 OF 2018 needs to be reconsidered keeping in view
the basic concept of Criminal/Penal laws, history and concept of bails and also the
presumption of innocence in Criminal Trials.

+---Malkeet Singh (05.04.2018)

REFERENCES:-
1
Richard R. Cherry. Lectures on the Growth of Criminal Law. In Ancient Communities.
Macmillan & Co. New York, 1890, Lecture, Page-1.
2
Ibid, Lecture 1, page-3.
3
Timothy R. Schnacke, et al., (Report) The history of Bail and Pretrial release. Pretrial Justice
th
Institute, Rockville, MD (US), Updated 24 Sept., 2010, pages 1 and 2
4
Ibid.
5
1994 (2) Supreme Court Reporter 375
6
CRIMINAL APPEAL NO. 462 OF 2018 arising out of SPECIAL LEAVE PETITION (CRL.)
NO. 8184 OF 2017 in case titled as Satpal Singh Vs. The State of Punjab.