Existing research and suggestions for reform by State institutions, the Law Commission of India and civil society groups on under-trial detention have either focused on police excesses or have viewed the problem of granting of bail purely through the lens of prisons, prison conditions and related institutional mechanisms. However, the primary situs of a decision on detention – the lower criminal courts which decide on whether a person who is arrested and produced must be released on bail or be detained – has received lesser attention. Therefore, to understand the role of courts in bail decision making in this study we engaged with cases in lower criminal courts in three districts in Karnataka – Bengaluru, Dharwad and Tumakuru – at the stage of ‘first production’ of an accused after arrest and more generally, in the ‘pre-trial’ stage. The study was conducted in two stages of Court Observations of cases in lower criminal courts over a period of 45 days and a study of the Court Records over a period of 6 months. These records helped us confirm our findings from the Court Observations study on bail at first production but also helped gain a broader perspective on the influence of these factors on bail in the pre-trial stage.
A summary of the findings and our recommendations for reform are as follows:
A.Substantive Factors for Grant of Bail: Statutory Basis and Nature of Offences
a. IPC v. SLL Offences:
From our Court Observations study, we observed that SLL offences constitute a substantial portion of the docket in the lower criminal courts. On first production, bail was granted in only one-tenth of those cases in comparison to offences under the IPC. Thus the rate of detention and the period of detention for persons accused of SLL offences is significantly higher than IPC offences. These findings were confirmed by our Court Records study as well. In Bengaluru, IPC cases formed a majority of the composition of first production cases and bail was more frequently granted to IPC offences over SLL offences. In Dharwad and Tumakuru, in the first productions data set, the proportion of IPC and SLL cases were skewed on account of the small sample.
b. Bailable v. Non-Bailable Offences:
Our study showed that bail was granted at a lower rate to non-bailable cases in Bengaluru and Dharwad as per our Court Observations study. In Tumakuru however bail was granted more in nonbailable cases (27%).
c. Bail for bailable offences:
Significantly, in all three districts, bail was not granted by the courts even in some bailable cases where bail is a matter of right, and accused were remanded to either judicial or police custody. For instance, in Tumakuru, bail was not granted for any bailable offence.
d. Range of Punishment:
Across the three districts, the rate of bail was high in case of offences punishable with imprisonment of 1 to 3 years. At first production in Bengaluru, a higher sentence prescribed for an offence meant a lower chance of securing bail and no person accused of an offence punishable with death or life imprisonment secured bail. However, in Dharwad and Tumakuru, a substantial number of accused persons secured bail despite being accused of offences punishable with death or life imprisonment.
I. Re-thinking the classification of bailable and non-bailable offences:
Any attempt at bail reform must necessarily address the existing classification of offences under Indian criminal law so that the number of bailable offences are expanded. This re-thinking of the classification needs to take into account the level of seriousness of the offence, degree of violence, injury to the victim or property and the possibility of using alternative dispute resolution methods. This reclassification should extend to SLL offences as well, a substantial number of which are classified as ‘non-bailable’ under the applicable law without adequately weighing the factors outlined earlier. SLL offences comprise almost 50% of the court docket and more research on the scope and nature of these offences is necessary.
II. Instituting Bail Protocols:
In this study, we have observed that the process of bail decision making is entirely discretionary and rests heavily in the hands of judges of lower criminal courts. This could also be a reason for the wide geographical variations in outcomes that we observed in our study. In order to limit the discretion of the court in standard matters or at least to ensure that bail is not denied in bailable offences and where the requirements for grant of bail are fulfilled, a first step to institutionalize legal reform is that a Bail Protocol be developed and instituted for all criminal courts to follow. The Bail Protocol could include a form to be filled by judges at the time of a hearing on bail to record all relevant information in relation to an accused, including but not limited to legal representation, date of arrest, the various bail decisions in the pre-trial stages and the period of remand to custody. In addition to ensuring availability of information at all points in time, it is likely to direct the mind of the judge to the considerations that must be borne in mind while making a bail decision.
B. Influence of Procedural Factors on Bail Decision Making: Legal Representation
While almost two thirds of the accused had legal representation at first production and the presence of a lawyer did have a positive impact on the likelihood of receiving bail, legal representation by itself did not result in orders granting bail as Bengaluru. Effective legal representation, including but not limited to filing bail applications, appeared to have a positive effect on bail outcomes as all three districts reported higher bail orders where bail applications were filed. Bail applications undoubtedly increased the chances of securing bail across the three districts, with over 50% of accused who filed bail applications in Dharwad and Tumakuru receiving bail.
Overhauling the existing legal aid system:
The availability of effective legal representation that goes beyond the mere presence of a lawyer has a positive effect on bail outcomes. This would require a complete overhaul of the existing legal aid system so that every person who is produced in court is represented by a lawyer who can effectively represent him / her by filing a bail application in a timely manner. This would also require that legal aid lawyers are properly trained and their capacity is built to provide effective legal representation. Effective legal aid will ensure that an accused is not merely represented but receives appropriate legal counsel at all levels.
C. Recognising the Distinction between Pre-trial and Under-trial Stages of the Criminal Justice Process in Law
The manner of bail decision making in India has remained largely unchanged since the enactment of the Code of Criminal Procedure, 1973, barring a few guidelines from the Supreme Court of India. As we set out on this study, we noted that the law does not make an explicit distinction between the pre-trial and under-trial stages. We argued that the failure to make this distinction will have consequences for bail decision making as bail decisions would be driven by similar factors in both stages, despite the obvious differences in the burdens of proof to be satisfied in the two stages; the considerations that guide a bail decision in the pre-trial stage, where a charge sheet has not yet been filed, ought to be different from a decision on bail at the under-trial stage where trial has officially commenced.
The category of ‘under-trial’ prisoners in India includes not only persons whose trial has commenced but also includes ‘pre-trial’ prisoners who have been imprisoned prior to filing of the charge sheet. The distinction between pre-trial and under-trial prisoners has not been made in India in decision making at any stage in the criminal process and this has resulted in narrow approaches to solving the under-trial problem which have failed to privilege and secure pre-trial liberty.
Further, data collection on under-trial prisoners in India follows the ‘census’ method to determine the number of under-trial prisoners in a given year i.e. the data presented on under-trial detention only represents the total number of under-trial prisoners at the end of the calendar year. But it does not record the ‘flow’ of under-trial prisoners i.e. those accused persons who are arrested and released within the same year. The failure to estimate the flow of under-trial prisoners in a given year, the average period of detention and the reasons for the same will result in policy reform measures for bail decision making that are woefully inadequate and misguided.
I. Creating a distinction between the pre-trial and under-trial stages:
This distinction is essential to devise appropriate strategies to control the levels of detention at each stage, as pre-trial prisoners are detained merely on a suspicion and prior to filing of a detailed charge sheet by the investigating authorities.
II. Employing the ‘flow’ method of data collection on under trial prisoners:
We must record data on the number of accused persons who enter and exit prisons in a given year and the time period for which they have been detained in the pre-trial stage, as opposed to following the present ‘census’ method which focuses only on the stock of accused persons in jail at the end of the year.
D. Reform in Case Information Management:
During the Court Observations phase of the study which focused on first productions, we were able to generate reliable and accurate data on court practice in these proceedings as we collected the data. However, collection of accurate data in the Court Records study through official court files was contingent on scrupulous data and case information management by courts, as well as their willingness to share this data with us.
Lower courts in Dharwad and Tumakuru employed inadequate and often inconsistent record keeping practices where information on a number of relevant aspects were not recorded by courts. While lower courts in Bengaluru maintained a separate record of first production cases, a similar practice was not followed in Dharwad and Tumakuru where a single register was maintained for all cases. This, compounded by the bureaucratic and operational difficulty faced in accessing this data in a reliable and timely fashion, presented limitations to the study.
Designing protocols for record keeping:
In order to ensure uniformity and consistency in record keeping practices and to limit the discretion exercised by courts in bail decision making, it is imperative to reform the process of record keeping in lower courts by developing mandatory protocols for recording information. A move away from the current random and haphazard practices would assist in recording information in a standardised manner to bring consistency and order to the system.
E. Reducing Reliance on Money Bail:
The provisions on bail in Chapter 33 of the CrPC apply irrespective of the stage of the criminal justice process and is primarily a money-based bail system i.e. bail is linked to the paying capacity of the accused where bail amounts are set by judges without any instructive guidelines. However, there is overwhelming evidence to show that curtailing pre-trial liberty in fact results in heavy costs for the accused and society and a reliance on money-bail disadvantages individuals from socio-economically disadvantaged backgrounds who find it difficult to post bail amounts set by courts. Therefore, our final set of recommendations relate to the structure of bail in India.
Efforts at bail reform around the world have attempted to move from relying solely on a system of money bail which has the consequence of detaining poor defendants posing little risk to the community while also releasing dangerous individuals with the capacity to bail themselves out. Policy reform in recent years in the United States has led to the replacement of the ad hoc money bail system with bail schedules that were designed to lay down the amount of bail to be set against each offence with a view to bring greater certainty and predictability in the system. However, as bail schedules have been subject to the similar criticisms as the money bail system, pre-trial services frameworks that monitor those who are released on recognisance or an unsecured bond have been proposed as alternatives to the traditional money bail system.
Instituting a pre-trial services system:
One approach to moving away from a purely money based bail system is to institute a robust pre-trial services framework which encourages pre-trial liberty. A pre-trial services framework would rely on non-custodial measures to monitor accused persons who are released on an unsecured bond, such as by issuing regular reminders of court hearing dates, providing mental health services, ensuring that accused receive the assistance of lawyers, and conducting regular supervision checks to ensure presence for trial and compliance with the conditions of release to ensure their presence in court for trial.
- The money bail system gave rise to a new stakeholder in the process i.e. bail bond agents, who step to make payment towards the bail bond for and to secure the release of those who cannot make payment. However, the bail bond practice has been criticised strongly, as agents often refuse to post bail for defendants with low money bail amounts because they are not lucrative clients and often employ physically and economically coercive practices to recover their dues. See The National Association of Pretrial Services Agencies, The Truth About Commercial Bail Bonding in America, August 2009. Available at https://www.pretrial.org/download/pji-reports/ ↵