Human Rights Analysis
Malpractices relating to bail
Dr. Asif Nazrul
BAIL is a crucial factor in administration of criminal justice. An accused is said to be admitted to bail when he is released from the custody of police or court and is entrusted to the custody of persons known as his sureties. In turn, the sureties accept the responsibilities to produce the accused to answer, at a specified time and place, the charge against him.
Although bail ensures avoidance of unnecessary sufferings of presumably innocent person, it may conversely hamper administration of justice by enabling the accused person to abscond or to threaten the victims and witnesses. Granting or rejection of bail may also result into economic and social plight for the families of victim and witnesses.
Not a right for persons accused of non-bailable offence
Bail cannot be claimed as right by persons accused of non-bailable offences that are more serious in nature. Murder, attempt to murder, culpable homicide, kidnapping, abduction, rape, robbery, dacoity, receiving stolen property are some examples of non-bailable offence. Section 496 of Cr. P.C suggest that, a person accused of committing a non-bailable offence may not be released on bail if there is reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life (for example, murder and rape).
Section 496, however, allows the court to grant bail to disadvantaged people like children, women and the sick and persons who appear to be innocent. It must be stressed here that granting bail even to the above persons is not mandatory for the courts and as observed by the Supreme Court of India in R. G. Upadhyay v. S. Sing, discretion in granting bail in such cases should be exercised 'in a judicious manner'.
As principle, the courts should decide not to grant bail if there is a reasonable apprehension that: a) the accused may abscond if he is released on bail and/or b) the accused if released on bail would tamper with the witnesses.
In practice, also granted to notorious criminals
Quite contrary to the legal provisions and principles, in the recent years bail has often been granted to the most notorious offenders and rejected to the women and children. For example: between 1994 and 2001, 1047 cases have been instituted against 97 persons whom the Dhaka metropolitan police, in 2002, had listed as “the notorious terrorists involved in sensational cases in the Dhaka Metropolitan Areas”. Among these 1047 cases, bail related information could be obtained about 659 cases. Out of these 659 cases, the said `terrorists' in total obtained bail in 512 cases (76 from the High Court) which means in more than 77 percent cases, their bail prayer succeeded.
The above mentioned list included some more renowned terrorists and gang leaders whom the government has later declared as the `top terrors' and announced reward for information that may facilitate their arrest. For example, Subrata Bain obtained bails in eight cases 
involving non-bailable offences, Haris Ahmed obtained 10, Hannan 6 and Tokai Sagar 7 bails in similar cases. Until the 17 August bombing of last year all over the country, bail had very generously been offered to the religious extremists as well. Bail to notorious terrorists often led to unavailability of witnesses, or absconding of the accused. For example, in 442 cases against the aforesaid 97 notorious terrorists, the reason for delay in the disposal of cases is unavailability of witnesses. Out of these 442 cases, the accused got bail in 296 cases and remained absconding in 72 cases. There are examples where the absconders were later sentenced to life imprisonment or capital punishment, but could not be arrested again. Bail even led to the death of attempted victim or witness quite in a few cases.
Although law expects bail to be granted to the women and children, often it is them or the poorest section of the society who are denied bail. In BLAST vs. Bangladesh and others (Petition number 7578 of 2003), it was reveled that out of 7402 under trial prisoners in the Dhaka Central Jail, 118 were women and 214 were children below the age of 18 years and others were mostly of very poor background. These indicate that the legal and institutional lacuna in the bail regime could be exploited only or mostly to the advantage of moneyed and influential offenders.
Role of major players
As statutory and case laws always warn against granting bail to persons who might abscond or tamper with witnesses, the great number of bails to those persons clearly indicate that their bail prayers were not examined very judiciously or opposed properly. The major players, in these regard, include the following.
Police facilitates obtaining bail : Failure of police, in particular the investigation officers, in preparing the FIR, case docket and investigation report properly and in conducting thorough investigation or in producing witness to the court may dilute a case substantially or delay the hearing of a case for an indefinite period. In the former case, under section 497.2 of Cr.P.C., and in the latter case, utlising its authority under section 339C, the Court normally releases an offender on bail. In addition, police may facilitate bail for a habitual criminal by omitting to mention previous cases against that offender in P.C.P.R. column in the charge-sheet or by discarding the non-bailable sections from the charge sheet.
Public prosecutors not performing properly: The public prosecutors or Court Sub Inspectors can contribute to the granting of a bail in various ways. These includes i) by not objecting to the bail prayer or ii) by not doing it properly or iii) by absenting himself from the hearing or iii) by repeatedly claiming that he had not received case docket or other necessary papers.
Less seriousness or leniency of judges: The judges enjoy wide discretion in deciding whether or not bail should be given in non-bailable cases. There are allegations that they often do not or cannot do it properly may be due to inexperience, heavy work load, insincerity, or because of political pressures on them or their involvement in corruption. The High Court and the Session judge very rarely exercise their revision jurisdiction to inquire or monitor the appropriateness of granting bails by the subordinate judges to notorious criminals.
Government influence: The government, in particular the Home Ministry through the police and Law Ministry through the Session Judges and Establishment Ministry through the Magistrates may influence granting of bail to politically loyal criminals. Such allegations suggest need for establishing an independent, transparent and accountable judiciary for stopping or minimising political or monetary influence in the bail system.
Reform needs
Determining sureties : Lawyers who become sureties often do it for monetary benefit and in case of forfeiture of the bail bond, punishment like payment of penalty are not generally enforced and punishment of civil jail had never been executed against them. It is suggested these punishment should be strictly enforced at least in cases involving murder and rape. Alternatively, tough and more effective measures must be introduced for enforcing appearance of the accused released on bail. For example: it may be made mandatory for the accused to deposit documents of his immovable property, if any, to the court as a guarantee for appearing to the court.
Stringent laws for certain offences: It is also proposed that before releasing 'apparently innocent' accused under section 497.2, the court itself or through a subordinate official, would undertake an inquiry to be satisfied that there are not reasonable grounds for believing that the accused has committed that offence.
Witness protection laws: A special police force should be set up who would have necessary training and facilities for ensuring protection of witnesses. Once the protection could be ensured, obtaining bail by the habitual criminals would be much more difficult and administration of criminal justice would be immensely strengthened.
Specialised investigation cell : Such cell with adequate legal training should be developed within the police personnel. The cell members would do only investigation of criminal cases and they would not be transferred to any other department of police, unless it is absolutely necessary for public purpose. They would be attached with a police station, but their works would be regularly monitored by designated magistrates or by the solicitor wing of the Law Ministry or by any other appropriate authority. The charge-sheet or final report produced by them in relation to serious non-bailable offence like murder and rape must be double checked by the monitoring authority before its submission to the court concerned. Pre-trial stage should be strengthened to limit number of suits.
Strengthening public prosecution: In order to ensure such service, salary and facilities to the prosecutors must be raised to an extent that could attract good and honest lawyers to join the PP office, adequate and high standard training must be imparted to them and an efficient and fully computerised documentation and information centre must be established and regular and rigorous monitoring over them by the solicitor wing must be put in place.
Monitoring the judges: Monitoring over the subordinate judges must be strengthened, particularly in cases where bail is granted to a person accused of offences punishable with death sentences. The revisional and monitoring authority of the superior courts should be increased, if the existing one is not sufficient. Access to information to the reasons for granting or rejecting bails in non-bailable offences must be established for public scrutiny. Other measures: Independence of Judiciary and establishment of judicial magistrates would also result into more efficient and less corrupt bail process. Transparency and in-house accountability must be established. There are many other measures which may contribute to strengthening of the present bail regime. For example, strengthening legal aid, strengthening and streamlining of court support staff, promulgation of Right to Information Act, creation of Judiciary Ombudsman, reform in case management and court management system.
To conclude, it must be underlined here that reforms in the bail related criminal systems should be accompanied by steps towards ensuring early identification and speedy trial of and exemplary punishment for instituting false and frivolous cases. A massive awareness programme against false cases should also be undertaken for reducing and preventing institution of such cases. Otherwise use of bail process against the weaker sections of society might proliferate and that would jeopardise the objectives of aforesaid reform agenda.
This article represents a summary of a research work conducted by the author on behalf of the Power and Participation Research Center (PPRC).
Photo: AFP
The author is Professor of Law, University of Dhaka.
