As the denial of bail to DMK MP Kanimozhi and others in the 2G case has thrown up a nationwide debate on the right of bail to undertrial prisoners, with politicians citing the philosophy of “bail not jail” but legal luminaries have squarely put the blame on legislators for the lopsided amendment brought in the criminal procedure code retaining the absolute discretionary powers of the trial judge on the issue.
Since the bail to undertrial accused is dealt under Sections 436 and 437 of the CrPC, legal experts in this context refer to the new Section 436A inserted by Parliament in the amended code, which hardly has made any difference with regard to trial judge’s discretionary powers.
The only difference made by the amended provision was that an accused could not be held back in custody continuously during the trial for more than half of the maximum sentence to be awarded to him or her for the offence charged with.
It means, if a person is to be awarded maximum sentence of five years, he would become entitled to compulsory bail after two-and-half years of judicial custody. The other change brought about by the section 436A with regard to granting bail is that no prisoner could be detained in jail for a period more than the prescribed maximum sentence. However, these exceptions will not apply to the death penalty cases.
Several legal luminaries, including former Supreme Court Judge V.R. Krishna Iyer known for his liberal views on the right of an individual, have blamed the political class for bringing such an “half-hearted” amendment, which hardly has made any difference with regard to the trail judge’s absolute discretionary powers to take a decision on bail irrespective of what stand the prosecuting agency has taken.
In the words of Justice Iyer, “The subject of bail belongs to the blurred area of criminal justice system and largely hinges on the haunch of the court, otherwise called judicial discretion. The CrPC is cryptic on the topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.”
According to Justice Iyer, release of an undertrial accused on bail was “crucial” because his continuous detention goes against the universally accepted principle of criminal justice system that a person is presumed to be “innocent” unless proved guilty by the court of law. Besides, the continuous custody prevents an accused from preparing his defence effectively to contest his case.
In this context, reference is made to Section 437, which provides for granting bail with certain conditions, some times stringent ones considering the nature of the case and the behaviour of the accused to make him “bound” to follow the law and prevent from making any attempt to interfere with the judicial process in any manner.