ARTICLES

RIGHT TO PRIVACY

RIGHT TO PRIVACY

“I cherish my privacy and woe betide anyone who tries to interfere with that” – Jeff Beck

INTRODUCTION

According to Merriam Webster dictionary, the legal definition of the right to privacy means the right of a person to be free from intrusion into or publicity concerning matters of a personal nature. According to Black’s Law Dictionary, the right to privacy has been defined as the right that determines the non-intervention of secret surveillance and the protection of an individual’s information. This dictionary also states that the word privacy means the right to be alone; the right of any person to be free from any unwarranted publicity; right to live without any unwarranted interference by the public in matters with which public is not necessarily concerned. Privacy right is a facet of human right and hence, it is inalienable from the personality of a human being. It is so deeply embedded with the liberty and dignity of an individual that it cannot be denied the status of a fundamental right. The idea of liberty in a democratic nation would be vague if privacy is not given the status of a fundamental right. 

According to Justice Krishna Iyer, “Personal liberty makes for the worth of human person”. Hence, the notion of dignity and liberty are not independent of privacy. The right to privacy is a right which an individual possesses by birth. Privacy simply means the right of an individual to be left alone which is recognized by the common law. The notion of privacy is sometimes ambiguous because of the different historical theories of privacy given by three different groups of eminent jurists. However, the fact that privacy is an existing right just like any other human right cannot be denied.

DEVELOPMENT OF RIGHT TO PRIVACY IN INDIA 

The Right to Privacy has been very much debatable in India because the Indian Constitution does not expressly grant the Right to Privacy. The drafters of the Indian Constitution put forth the Right to life as an essential right. The Right to Live with Dignity is imbibed in the Constitution of India under ‘Article21’, which provides that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The Supreme Court of India has also given various interpretations to Article 21 of the Indian Constitution expressly granting Right to life to all the citizens of India and with the growing times, right to life has been given too much-expanding horizon with so many other rights coming within its ambit like right to speedy trial, Right to shelter, and many others. The explanation is given by the Apex Court to “life” and “liberty” under the Indian Constitution has always been expansive to the extent that it does not mean mere animal/physical existence. “Life” is meant something more than mere animal existence and includes the right to live with human dignity.

The Preamble of the Indian Constitution guarantees the liberty of thought, expression, belief, faith and worship to all the citizens of the country. This in itself reveals how important and expansive the term “liberty” was for the drafters of the Indian Constitution. A term of Article 21 of the Indian Constitution which includes the word “personal liberty” reveals that for an individual to lead a dignified life, his/her liberty should be protected which ultimately demands the Right to privacy to be given legal recognition. The Supreme Court of India has time and again emphasized to give an expansive interpretation of the term “personal liberty” under Article 21 of the Indian Constitution. The Supreme Court has stated in a case, “The expression personal liberty is of widest amplitude covering a variety of rights.”

The question to recognize a right to privacy arose in Kharak Singh v. State of U.P. wherein Justice Subbarao in his minority opinion expressed a need to recognize such a right even though it is not expressly granted by the Constitution of India. The petitioner, in the aforementioned case, was put under surveillance because of his criminal activities. The surveillance was to keep a watch at the petitioners’ house which also involves secret visits to the petitioners’ house at night. He challenged such provisions of Secret and domiciliary visits of the U.P. Police Regulation as a violation of his right to privacy. The Court, however, refused to give recognition to the right to privacy reason being that the Indian Constitution does not give express recognition to any such right. Herein, the Supreme Court held that Regulation 236 of UP Police Regulation was unconstitutional as it clashed with Article 21 of the Constitution. It was held by the Court that the Right to Privacy is a part of the right to protection of life and personal liberty and equated privacy to personal liberty. Justice Subba Rao also observed that the concept of liberty in Article 21 is comprehensive enough to include privacy. The same view was observed by the Apex Court in M.P. Sharma v. Satish Chandra.

IMPORTANT JUDGEMENTS

In People’s Union for Civil Liberties v. Union of India, the Court mentioned as follows- “We have; therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right of privacy, Article 21 is attracted. The said right cannot be curtailed “except according to the procedure established by law”. In this case10 the court held that telephonic conversations are private in nature and hence, tapping of the same amounts to a violation of one’s own privacy. 

In Naz Foundation Case Delhi High Court gave the landmark judgment on consensual homosexuality. The right to privacy held to protect a “private space in which a man may become and remain himself”. It was said that individuals need a place of sanctuary where they can be free from social control and reflect the realities of their nature. 

Also in the case of Navtej Singh Johar v. Union of India, the SC held that Section 377 of IPC insofar as it applied to consensual sexual conduct between adults in private is constitutional.

Further, the nine-judge bench of the Supreme Court of India had unanimously delivered the judgment in the landmark case of K.S Puttaswamy v. Union of India, the dignity of an individual is a foundational pillar of the constitution and thereby inalienable. The facts of the case were that the government of India decided to provide to all its citizens a unique identity called Aadhar which is a card containing 12 digit Aadhar numbers. The registration for this card was made mandatory so as to enable the people to file tax returns, opening bank accounts, etc. However, the registration procedure for such cards required the citizens to give their biometrics such as fingerprints, iris scans, etc.

CONCLUSION

With the recognition of privacy as a basic and fundamental right of an individual, India definitely cannot lag behind. The judgment of the Supreme Court is correct and true and with the growing information technology, privacy needs to be a fundamental right. However, it is also true that stringent laws need an introduction after this. An expert committee must be formed to probe into the matter as to how many privacy infringement issues are taking place in India and accordingly legislation exclusively dealing with such problems must be enacted. When it comes to conflict between infringement of privacy and public interest, reasonable care must be taken to choose as to what is more important. Individual interest cannot override public interest. The maxim “salus populi est suprema lex” which means public welfare is the highest law must be maintained in the democracy. Jurisprudentially also, Bentham gave the pain and pleasure theories. Hence, the Government must take into account the pleasure of a larger number of people who should try to inflict lesser pain. There must be regulation on the arbitrary use of power by the Government with respect to personal information of the people.

Art of Cross-Examination

Art of Cross-Examination

Introduction

“The exercise of this right [cross-examination] is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the fact to which he bears testimony, the manner in which he has used those means, his power of discernment, memory, and description, are all fully investigated, ascertained, and submitted to the consideration of the jury, who have an opportunity of observing his demeanour, and of determining the just value of his testimony. It is not easy for a witness, subjected to this test, to impose on a Court or jury, for however artful the fabrication of falsehood may be, it cannot embrace all the circumstances to which cross-examination may be extended.” (TAYLOR, 12th Edition. P. 910)

In India where large number of complaints and cases are filed in civil and criminal courts every day, delay in justice is common as pendency of cases in courts are also growing rapidly. Examination of witnesses plays an important role in the presentation of the evidence in a court of law irrespective of civil or criminal case and admissibility of evidence is also an important aspect which has to be decided by the judges only. Due to which each case will be looked upon clearly and it will take long time to pass the judgment by the court. The examination of witnesses can be classified into three types as defined under ‘Sec: 137’ of ‘Indian Evidence Act, 1872’ as follows:-

Examination-in-chief means the examination of witness by the party who calls him shall be called his examination-in-chief.

 

Cross-Examination means the examination of witness by the adverse party shall be called his cross-examination.

 

Re-Examination means the examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

 

The art of Cross-Examination plays an important role in the trial of each case which involves hard work and talent of lawyers while providing justice to their clients. A perfect lawyer should learn the art of Cross-Examination not by reading newspapers but the successful artist learns by doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet, by conducting the examination personally. The trial lawyer must learn as well to adapt to particular witnesses and different cases.

 

The right of Cross-Examination is one of the most powerful instrumentalities provided lawyers in the conduct of litigation. One of the most important purposes of Cross-Examination is to attempt to destroy the testimony or the credibility of the opponent’s witnesses. Justice is not served if a witness is unable to communicate credibility to a jury. The search for truth is the ultimate and idealistic end of all litigated matter in a court trial.

 

In the course of cross-examination, a witness may be asked following questions—

  • To test his veracity;
  • To discover who he is and what is his position in life;
  • To shake his credit by injuring his character, although his answer might criminate him to penalty or forfeiture. (Section 146, IEA, 1872)

The cross-examination is treading on safe ground so far as (1) and (2) are concerned. As regards (3), complex set of consideration present themselves.

If the questions refer to a relevant matter the provision of Section 132 are applicable (S. 147, IEA, 1872). If, however, the questions refer to an irrelevant matter, they are proper—

If the truth or imputation conveyed by them would seriously affect the opinion of the Court as the credibility of the witness.

 

Following cross-examination are improper—

  • If the imputation conveyed by them relates to matters so remote in time or of such a character that they would not affect the credibility of the witness;
  • If there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence. (Section 148, IEA, 1872)

Before such questions are asked, the person putting them must have reasonable grounds for thinking that the imputations was well-founded (section 149, IEA, 1872). If any lawyers asks such questions without reasonable grounds, the court may report the case to the High Court or other authority to which he is subject (Section 148 IEA, 1872)

 

The main object of Cross-Examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence which is already given by a witness. Cross-Examination of witness is a duty of every lawyer towards his client and not a matter of glory and fame. It is the most efficacious test to discover the truth and to detect the false statements of the witness. It should be remembered that the Justice should not be defeated by the improper Cross-Examination. One of the purposes of Cross-Examination is to asking questions regarding what the witness has stated in the Examination-in-chief and the answer is the reply by the witness to the question put by the advocate.

 

Often, however, one needs to spend time with the witness to develop several critical points to counter the impact of the direct examination. Before initiating a Cross-Examination of any witness, the lawyer should clearly bear in mind those points he or she wishes to make with that witness. And then, he or she should write them down. These points also should be discussed with those who are assisting at trial. Patience is the virtue in Cross-Examination and judges must give chance to every party to Cross-Examine the other party’s witness.

 

A lawyer should use leading questions i.e. “is that correct?” and “isn’t it a fact” etc. at the time of Cross-Examining of the witness because asking only leading questions is perhaps the oldest rule of Cross-Examination. It is an old rule because it is a good one. Leading questions are most effective because they essentially allow the Cross-Examiner to testify and the witness to ratify. The technique advances one of the important dynamics of the courtroom is control. Asking leading questions allows the Cross-Examiner to be forceful, fearless, knowledgeable and informative. Good thing come from leading questions. Usually be aware that leading questions also can grow tiresome. No one likes to hear a hundred questions in a row that end with, “is that correct?” and all the questions put during the trial of Cross-examination must be lawful as permitted under ‘Sec: 146’ of ‘Indian Evidence Act, 1872’.

 

Questions asked during the Cross-Examination must be relevant to the issue related in the facts of the case and indecent & scandalous questions can also be asked by the advocate at the time of Cross-Examination unless they relate to the fact in issue. Most importantly questions intended to insult or annoy should be forbidden by the court though questions seems to be proper.

 

The court who has authoritative power to decide the case can recall the witness for the Cross-Examination based on the facts and circumstances of the particular case and a summary procedure does not take away the rights of the parties to Cross-Examine whereas every party has to be given fair deal in the matter of Cross-Examination. There are certain important points which can be considered as chief heads of the Cross-Examination as follows:-

 

1. To cause the witness to alter or amend his evidence by questioning about his testimony.

 

2. To modify the evidence given under the Examination-in-chief, by causing the witness to speak to supplementary facts to show the reasons and circumstances.

 

3. To discredit the evidence of witness by putting questions connected with his character.

 

4. From reasons arising out of his evidence by causing him to give further evidence.

 

5. To cause him to give evidence to be received as true.

THE MANNER OF CROSS-EXAMINATION

It needs but the simple statement of the nature of cross examination to demonstrate its indispensable character in all trials of questions of fact. No cause reaches the stage of litigation unless there are two sides to it. If the witnesses on one side deny or qualify the statements made by those on the other, which side is telling the truth? Not necessarily which side is offering perjured testimony, there is far less intentional perjury in the courts than the inexperienced would believe, but which side is honestly mistaken? for, on the other hand, evidence itself is far less trustworthy than the public usually realizes. The opinions of which side are warped by prejudice or blinded by ignorance? Which side has had the power or opportunity of correct observation? How shall we tell, how make it apparent to a jury of disinterested men who are to decide between the litigants? Obviously, by the means of cross-examination. If all witnesses had the honesty and intelligence to come forward and scrupulously follow the letter as well as the spirit of the oath, “to tell the truth, the whole truth, and nothing but the truth,” and if all advocates on either side had the necessary experience, combined with honesty and intelligence, and were similarly sworn to develop the whole truth and nothing but the truth, of course there would be no occasion for cross examination, and the occupation of the cross-examiner would be gone. But as yet no substitute has ever been found for cross-examination as a means of separating truth from falsehood, and of reducing exaggerated statements to their true dimensions.

 

CROSS-EXAMINATION OF THE PERJURED WITNESS

“What can be conceived more difficult in advocacy than the task of proving a witness, whom you may neither have seen nor heard of before he gives his testimony against you, to be a wilful perjurer, as it were out of his own mouth?”

Witnesses of a low grade of intelligence, when they testify falsely, usually display it in various ways: in the voice, in a certain vacant expression of the eyes, in a nervous twisting about in the witness chair, in an apparent effort to recall to mind the exact wording of their story, and especially in the use of language not suited to their station in life. On the other hand, there is something about the manner of an honest but ignorant witness that makes it at once manifest to an experienced lawyer that he is narrating only the things that he has actually seen and heard. The expression of the face changes with the narrative as he recalls the scene to his mind; he looks the examiner full in the face; his eye brightens as he recalls to mind the various incidents; he uses gestures natural to a man in his station of life, and suits them to the part of the story he is narrating, and he tells his tale in his own accustomed language. If, however, the manner of the witness and the wording of his testimony bear all the earmarks of fabrication, it is often useful, as your first question, to ask him to repeat his story. Usually he will repeat it in almost identically the same words as before, showing he has learned it by heart. Of course it is possible, though not probable, that he has done this and still is telling the truth. Try him by taking him to the middle of his story, and from there jump him quickly to the beginning and then to the end of it. If he is speaking by rote rather than from recollection, he will be sure to succumb to this method. He has no facts with which to associate the wording of his story; he can only call it to mind as a whole, and not in detachments. Draw his attention to other facts entirely disassociated with the main story as told by himself. He will be entirely unprepared for these new inquiries, and will draw upon his imagination for answers. Distract his thoughts again to some new part of his main story and then suddenly, when his mind is upon another subject, return to those considerations to which you had first called his attention, and ask him the same questions a second time. He will again fall back upon his imagination and very likely will give a different answer from the first and you have him in the net. He cannot invent answers as fast as you can invent questions, and at the same time remember his previous inventions correctly; he will not keep his answers all consistent with one another. He will soon become confused and, from that time on, will be at your mercy. Let him go as soon as you have made it apparent that he is not mistaken, but lying.

An amusing account is given in the Green Bag for November, 1891, of one of Jeremiah Mason’s cross-examinations of such a witness. “The witness had previously testified to having heard Mason’s client make a certain statement, and it was upon the evidence of that statement that the adversary’s case was based. Mr. Mason led the witness round to his statement, and again it was repeated verbatim. Then, without warning, he walked to the stand, and pointing straight at the witness said, in his high, impassioned voice, ‘Let’s see that paper you’ve got in your waistcoat pocket! ‘Taken completely by surprise, the witness mechanically drew a paper from the pocket indicated, and handed it to Mr. Mason. The lawyer slowly read the exact words of the witness in regard to the statement, and called attention to the fact that they were in the handwriting of the lawyer on the other side.

Case Study:

 

1. Hari Narayan singh v/s State of West Bengal (2009 CriLJ 4001 [cal.])

                                         

(Ratio-Impeaching the credit of a Witness by Cross-Examining)

According to this case court observed that it is not necessary that all the persons who happen to be there should be brought as witnesses. One witness out of several is good enough, if his testimony legally acceptable and believable.

 

2. Bhagwan Singh v/s State of Bihar (AIR 1976 SC 202)

 

(Ratio-Cross-Examination of Hostile Witness)

In this case Supreme Court observed “where the court gives permission to the prosecutor to Cross-Examine his own witness thus characterizing him as, hostile witness, that fact does not completely effaces his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.

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LEGAL NOTES

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Cross-Examination of Approver by the Accused

Category; trial procedure 

The term approver is neither defined nor used under Criminal Procedure Code but is usually applied to a person, supposed to be directly or indirectly concerned in or privy to an offense to whom a pardon is granted under section 306 of CrPC with a view to securing his testimony against other persons guilty of the offense. The examination of the approver under section 306(4) of the code is mainly concerned with the examination of the complainant and witness by the Magistrate while processing the complaint under section 200 of the CrPC before setting up the process. The question of ‘Examination of the witness’ arises only after charges are framed under section 228 of CrPC. As there is no express provision u/s 306(4) CrPC which permits the accused to cross-examine an approver before committing the case to the Court of Session the Magistrate is not empowered to appreciate the evidence in session triable case. Further, the term “Examination’ under section 306(4)(a) cannot be interpreted to mean ‘Examination’ as contemplated under section 138 of Evidence Act, so as to give an accused the right to cross-examine the approver, at the pre committal stage. In Suresh Chandra Bahri v. State of Bihar (2000) the Supreme Court Bench has regarded section 306(4) as mandatory provision and observed that the object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused in as much as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing Court itself at the very threshold. 

In no stretch of circumstances the cross-examination which is contemplated under section 306(4) of the Code can be equated with the ‘examination of witness’ under section 138 of Evidence Act. where u/s 305 CrPC when an approver is being examined by a Magistrate, he is merely recording his statement after grant of pardon and as such he merely acts as a post office by recording a statement u/s 306 CrPC and thereafter forwards it to the court of session which is the court competent to try the case and therefore the term ‘examination’ used in section 306(4) cannot be equated with the term ‘examination of witness’ meant u/s 138 of Evidence Act. 

 

 

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The Complexity and Controversy of Article 31, 31A, 31B, and 31C

The ‘Right to Property’ is one of the most controversial and complicated subjects under Constitutional Law. Originally Right to Property was a fundamental right enshrined under Article 19(1)(f) and Article 31. Both of these articles were repealed by the 44th Amendment Act of the Indian Constitution.

Article 19 (1) (f) of the Indian Constitution states that every person has the right to hold and dispose of their personal property as they see fit and as long as it’s within the concurrent laws. Article 31 of the Indian Constitution states that no person can be deprived of his property without the consent of a proper authority. These rights were not absolute and provided with some restrictions or exceptions for example, the property can be acquisition-ed for the general welfare of the public, or protection of the interests of the scheduled tribes.

The controversies which were revolving around the “Right to Property” introduced several amendments such as 1st, 4th, 7th, 25th, 39th, 40th, and 42nd.  These amendments either modified the existing articles or added some new articles or modified the. Articles 31A(added by 1st amendment and amended by 4th, 17th, and 44th amendments), 31B (added by 1st amendment) and 31C(added by 25th amendment and amended by 42nd and 44th amendments) were results of the same process.

44th Amendment Act of the Indian Constitution was challenged in the RC Cooper vs Union of India case popularly known as the Nationalization case. The union government under Mrs. Indira Gandhi acquisition the private banks in order to achieve farmer’s growth and provide easy loans. The banks called it an inadequate acquisition as the compensation was for their properties, they were not compensated for their reputation. The Supreme Court observed that ‘The compensation provided to the banks under Article 31 of the constitution can’t be illusory or arbitrary’. The non-tangible assets of the banks should also be compensated for. In the Keshavananda Bharti case of 1973, the Supreme Court ruled that the amount cannot be arbitrary.

Article 31A, 31B, 31C, and The 9th Schedule

Article 31A

Parliament added Article 31a to the Indian Constitution by the 1st Constitutional Amendment of 1951. The Article gave a right to the government that it can acquire the property of the people and by doing so, the fundamental rights mentioned in Article 14 and 19 of the Indian Constitution shall not be violated.

This amendment allowed the government to enhance the growth of the nation in the following manner:

1. Introduced for the purpose of the abolition of the Zamindari system as the government took the land from the Zamindars and used it for public welfare by either redistribution or agriculture.

2. The government took control of different private companies in order to use them for enhanced growth. However, this could be done for a fixed amount of time after which, the control had to be returned.

3. The government redistributed the mining rights from my lords.

4. The government took control of the production and distribution of various other resources like oil.

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Article 31B

Article 31B was also introduced in the constitution by the 1st Constitutional Amendment of 1951. It was introduced with respect to giving validation to certain acts and regulations. The article provides that the provisions mentioned in Article 31a are immune from the Indian judiciary and cannot be nulled on the basis that they might violate the fundamental rights mentioned in Articles 14, 19 and 31 of the Indian Constitution. Supreme Court in Waman Rao Case ruled that the acts and laws mentioned in the IX schedule till date, shall not be changed or challenged, but any attempt to amend or add more acts to that schedule will suffer close inspection and examination by the judiciary system.

 

Schedule IX

Ninth Schedule was added to the constitution by the first constitutional amendment in 1951. The reason for adding the ninth schedule to the Constitution was that at that point of time various State Govt. and Union Govt. wanted to implement policy of zamindari abolition and other land reforms. The Supreme Court in Kameshwar Singh case had ruled that the right to property cannot be taken away. Therefore, Ninth Schedule was added which made provision that any law put in Ninth Schedule will be outside the purview of Courts and Courts cannot question the validity of those laws which are put under the Ninth Schedule. In the I.R. Coelho case, Supreme Court finally held that Judicial Review is the basic feature of the Constitution and the Supreme Court can test the validity of law if it violates the basic feature of the Constitution even if it is put under Ninth Schedule.

 

Article 31C

Article 31C was included in the Constitution by the 25th Amendment of the Constitution in 1971. With these articles, the government tried to give primacy to some Directive Principles of State Policy over the Fundamental Rights. Article 31C intends to fulfill two objectives:

  • Any law made in order to give effect to Article 39b and Article 39c of the Indian Constitution will avoid the scrutiny of courts even if it violates Article 14 and Article 19 of the Indian Constitution.
  • Courts will not have the jurisdiction to decide whether the law enabled really gives effect to the principles mentioned in Article 39cand 39b of the Indian Constitution.

 

 

In the first look, it may seem that the provisions discussed above are arbitrary and parliament has tried all means to keep the ball in its court in the name of growth and welfare of general. It may be true to some extent but the judiciary tried its best to keep up the ‘Spirit of Constitution’ and safeguarded the rights of people. Through several judgments by evolving the concept of Basic Structure the Supreme Court has time to time have protected the Fundamental Rights guaranteed to people under the Constitution of India.

 

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PROVISIONS FOR BAIL UNDER CRPC

“The issue of bail is one of liberty, justice, public safety and burden of the public

treasury, all of which insist that a developed jurisprudence of bail is integral to

a socially sensitized judicial process”.

 – Justice V.R. Krishna Iyer

 

Bail is a kind of Security which is given by the accused to the court that he will attend the proceedings against the accusations made upon him and include personal bond and bail bond. The term bail is not defined under CRPC, although the terms “ bailable offense” and “non-bailable offense” have been defined (Sec. 2a). “Bail” has been defined in the Law Lexicon as Security for the appearance of the accused person on giving which he is released pending trial or investigation. Govind Prasad v. State of  West Bengal, 1975 CriLJ 1249.

The distinction between bailable and non-bailable offenses is based on the gravity of the offence, danger of accused absconding, tampering of evidence, previous conduct, health, age and sex of the accused person. Though the schedule for classification of offenses as bailable or non-bailable is provided in Crpc; however, it is mostly the offenses which are punishable with imprisonment for not less than three years that are classified as non-bailable.

The concept of bail emerges from the conflict between the police power to restrict the liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the person accused of an offense. Bail is regarded as a mechanism whereby the State imposes upon the community the function of Securing the presence of the prisoners, and at the same time involves the participation of the community in the administration of justice. The provisions relating to the grant of bail are enshrined in Chapter XXXIII, under Sections 436-450 of Cr.P.C Offences have been classified into bailable and non-bailable and “cognizable” and “non-cognizable”. Officer-in-charge of the police station, Magistrate, Sessions Court, and High Court are empowered under Cr.P.C. to deal with bail, imposing conditions on bail, cancellation of bail or anticipatory bail. 

 

Provisions As To Bail And Bonds 

Sec. 436: In What Cases Bail To Be Taken

Sec. 436a: Maximum Period For Which An Undertrial Prisoner Can Be Detained

Sec.437: When Bail May Taken In Case Of Non-bailable Offence

Sec.437a: bail To Require Accused To Appear Before The Next Appellate Court

Sec.438: Directions For Grant Of Bail To Person Apprehending Bail

Sec.439: Special Powers Or High Court And Court Of Session Regarding Bail

Sec.440: Amount Of Bond And Reduction Thereof

Sec.441: Bond Of Accused And Sureties 

Sec.441A: declaration By Sureties

Sec.442: Discharge From Custody

Sec 443: Power to order sufficient bail when that first taken is insufficient.

Sec 444: discharge of sureties

Sec 445: Deposit instead of recognizance

Sec 446: Procedure when the bond has been forfeited

Sec 446A: Cancellation of bail and bail bond

Sec 447: Procedure in case of insolvency or death of surety or when a bond is forfeited

Sec 448: Bond required from minor

Sec 449: Appeal from orders under Section 446

Sec 450: Power to direct levy of the amount due on certain recognizance

The Code of Criminal Procedure, 1973 contains elaborate provisions relating to bails. Code provide different kinds of bail :-

  • Bail in Bailable offense (Section 436)

  • Bail in Non-bailable offense (section 437)

  • Anticipatory bail (section 438)

  • Ad interim bail

  • Bail after conviction (section 389)

  • Bail on default (section 167(2)

BAIL PROVISIONS IN CASE OF BAILABLE OFFENCE

Section 436 provides for the release on bail of a person accused of a bailable offense. Section436 of Cr.PC is mandatory in nature and the court or the police have no discretion in the matter. Any accused person arrested for a bailable offense willing to provide bail must be released. The only discretion available with the police is to release the accused either on a personal bond or with sureties. In cases where the accused is unable to provide bail, the police officer must produce the accused person before the Magistrate within 24 hours of arrest as specified under s. 57 of Cr.P.C. Subsequently, when the person accused of an offense is produced before a Magistrate and is willing to furnish bail, then the Magistrate must release the accused person and the only discretion available is to release either on personal bond or a bond with sureties. The Magistrate cannot authorize the detention of a person who is willing to furnish bail with or without sureties even for the purposes of aiding the investigation.

BAIL PROVISIONS IN CASE OF NON-BAILABLE OFFENCE

Provision, as to bail in case of non-bailable offense, is laid down in Section 437 of the code. This section gives discretionary power to the Court (other than High court or Court of Session) to release an accused on bail in a non-bailable case. It lists down circumstances when bail will not be granted or when shall bail be granted with specific condition etc.

 

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