(This is the second post in a series discussing restrictive bail regimes)
This post looks at restrictive bail provisions through Indian legal history, drawing the line at India's independence. The next post will look at post-independence history. A similar exercise was attempted several years ago on the Blog, and a gradual increase in digitisation has meant that even within this short span of a decade, one can try to offer a more nuanced and textured presentation of the issues involved here. However, since this post is, again, based on publicly available material, it may have missed out on some facets, and readers are advised to keep that caveat in mind.
Restrictive Bail Provisions and the Criminal Procedure Codes pre Independence
If we look at bail provisions in the Criminal Procedure Codes of 1882 and 1898 (prior to 1923) in terms of non-bailable offences, it would appear that bail really was the exception for the colonial regime when it came to magistrate courts [the gradual changes to the regime are captured in this paper]. Section 497(1) in the 1898 Code (common in material aspects with the 1882 Code) stated that a person brought before magistrate's court after arrest "shall" not be released on bail if "there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused". This was different from situations where during investigation / inquiry / trial the material only showed "sufficient grounds for further inquiry into his guilt" [Section 497(2)]. Such restrictions were absent when it came to courts of session and the High Court, upon whom Section 498 of the Code conferred an unfettered power to grant bail.
Significant amendments were made to the 1898 Code in 1923. One such amendment was to Section 497(1) which changed the restriction upon magistrates in granting bail only for offences punishable with death or with transportation for life as opposed to all kinds of non-bailable offences. Thus, the policy towards bail was greatly liberalised, but it was felt that some fetters ought to be remain on how magistrate's exercised their discretion. After all, some members called the magistrates 'stupid' and 'weak' during the course of the legislative debates surrounding the 1923 amendments [discussed here at pp. 61-63]. Importantly, this test in Section 497(1) of the 1898 Code was retained in the 1973 Code as well, under Section 437(1).
Old commentaries on the 1898 Code (see p. 1474 here and p. 1183 here) suggest that the legal position prior to 1923 was that bail ought not to be granted by magistrates in non-bailable cases, and that while such restrictions were absent in provisions pertaining to superior courts it did not mean that this was treated as a license to grant bail liberally. The changes in 1923 were acknowledged by the commentators as having liberalised the bail regime and having been interpreted by courts to that effect as well. However, it was a mistake to think that the 1923 amendments had liberalised the regime to such an extent that the merits of the accusations were now altogether irrelevant.
What is important for us here is the discussion on how to construe the test laid down by Section 497(1) which required magistrates to ask whether "there appear reasonable grounds for believing that he has been guilty of the offence of which he is accused". There are two perspectives from which this restriction ought to be considered: first, how did courts read the letter of the law, and second, how was it applied in practice. The old commentaries referred to above offer some insight as to the first aspect, confirming that 'reasonable grounds' was a judicial determination based on the available material which was highly fact-specific. The second aspect, of how courts then applied this vague test, therefore turned on the practice of criminal law at the time. To appreciate this requires some elucidation as it is quite different from how things are done today when it comes to the investigations generally, and specifically the prosecution of serious crime that is punishable with death or transportation for life (today, life imprisonment).
In respect of investigations, police were notorious for not maintaining proper records of statements of witnesses recorded during investigations under Section 161 of the Code. Legally, there was no clear obligation on police to record statements separately within the case diary, and there was absolutely no obligation akin to Sections 173(5) or 207 of the 1973 Code to supply a copy of the police report and all statements of witnesses to the accused upon completing the investigation. The only obligation to supply copies of witnesses arose when the accused wished to cross-examine the witness who took the stand where a witness claimed to have made a prior statement and was now deposing contrary to it.
How would courts deal with framing of charge or appreciating any aspect of the case pre-trial you might wonder, considering how ubiquitous the Section 161 statements are for these issues in the administration of criminal law today. Well, the answer lies in the committal process [see Section 206 of the 1898 Code]. It was not the unsigned, unsworn testimony of the witness which determined issues such as charge and the sufficiency of material prior to trial proper, as it is today. Instead, the committal hearings before the magistrate required the prosecution to examine, on oath, the witnesses that it sought to rely upon to establish its case. The accused had a right to cross-examine these witnesses as well. To help imagine this process, consider what happens today in proceedings instituted upon a complaint in warrant triable cases under the 1973 Code. There are no Section 161 statements in such cases, and the prosecution must examine its witnesses on oath prior to framing charge, with the accused having a right to cross-examine these witnesses as well.
What this trip down memory lane shows us is that while the test as it was under Section 497(1) of the 1898 Code may have been carried forward by the 1973 Code as well in Section 437(1), but the material which formed the basis for applying the test was fundamentally different when it came to applying the test within the 1898 Code's context. Sworn testimony of witnesses who were available from cross-examination was replaced with unsigned, unsworn statements recorded by police officers which the law itself declares ought not to be used as substantive evidence. I will return to this point later on in the series, but it is so significant and rarely raised that it merits being flagged at the outset itself.
Restrictive Bail Provisions and Special Laws
The previous part referred to the classification drawn by Section 497(1) and (2) of the 1898 Code. The former (at least till 1923) restricted the power of magistrates to grant bail where reasonable grounds existed to support a belief that the accused was guilty, while the latter permitted bail if the material was only enough to suggest further grounds for inquiry into guilt.
Keeping this in mind, perhaps the first proper restrictive bail regime we encounter was under the Criminal Law Amendment Act of 1908, one of the harshest statutory measures crafted by the colonial regime to punish revolutionaries at the time. Amongst its provisions was a clause, Section 12, which stated that a person shall not be released on bail "if there appear sufficient grounds for further inquiry into the guilt of such person." The reference to Section 497 helps appreciate the draconian nature of this threshold. Having 'sufficient grounds for further inquiry' was nothing but a polite way of allowing bail rejections where the police averred that they had a case. These parts of the 1908 were repealed in 1922, while the remaining parts of it pertaining to declaring certain associations as unlawful and proceeding against them remain in force even to this day.
Perhaps it was the presence of the 1908 Act that did not necessitate further restrictions upon the bail regime during the First World War. Its repeal in 1922, coupled with the liberalising influence of the 1923 amendments, meant that when the Second World War reached the subcontinent, the colonial regime was without comparable legislation to curb the grant of bail. When the War came to India, the government responded with the Defence of India Act 1939 and rules made thereunder, which allowed for a truncated trial for many crimes that had any bearing on the war effort. Still, in 1939 itself, this war-based procedural regime did not have a dedicated restrictive bail regime. That came in February of 1941 with the introduction of Rule 130A which read as under (p. 192 here):
Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no reason accused or convicted of a contravention of these Rules shall, if in custody, be released on bail or on his own bond, unless —
(a) the prosecution has been given an opportunity to oppose the application for such release, and
(b) where the prosecution opposes the application and the contravention is of any such provision of these Rules as the Central Government or the Provincial Government may by notified order specify in this behalf, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such contravention.
The archives suggest that the proposal emanated from provincial governments which were troubled by how quickly bails were granted by courts without adequately hearing the prosecution. They do not offer much by way of discussion on the specific test that was added in clause (b). Is this because the test was no different from the existing regime under the 1898 Code? I would caution against such a reading, because Rule 130A inserted a rather different set of restrictions.
First, Rule 130A applied to all courts, which was a significant departure from the existing position that did not fetter the discretion of sessions courts and the High Courts to grant bail no matter what the allegations were. Second, Rule 130A now vested great power with the government, by placing a premium on its decision to oppose the plea for bail. If the prosecution did not oppose bail, then the additional restrictions would never come into play. Third, the test itself was worded differently than Section 497(1) which cast different obligations on the players. Section 497 of the Code was read as placing the onus upon the prosecution asking it to furnish material to show reasonable grounds existed to believe a person was guilty, whereas Rule 130A placed asked the accused to establish reasonable grounds to believe that he was not guilty. The former resembles the burdens at trial - if the prosecution did not establish its case first, the accused would not have any case to answer. The latter invited the court to assume the truth / veracity of what the prosecution brought forth, and burdened the accused to demonstrate the grounds within this material which supported his innocence.
The validity of the provision was challenged in re V. Bhuvaraha Iyengar [AIR 1942 Mad 221], where it was argued that the clause departs from the "fundamental principle" that a person is presumed innocent until proven guilty. The Madras High Court rejected the contention, stating that the impugned Rule did no such thing but only indicated "that where a person is accused of an offence under the rules the Court may not liberate him on bail pending the trial, except when it has reasonable ground to believe that he is innocent. When the Court comes to decide the case, it must acquit the accused if the prosecution has failed to establish the charge." That is a non-reasoned answer if there ever was one. The Court also rejected the bail request, noting that "grave charges are alleged against the petitioner by a responsible police officer and a the stage at which the applications for bail were made it was impossible for the magistrate or the sessions judge to be satisfied that there were reasonable grounds for believing that the petitioner was not guilty of a contravention of the rules, and that is the position now."
The above extract gives us a glimpse of what Rule 130A was meant to achieve: a practical annulling of bail prior to the cross-examination of key witnesses at trial for the offences which were designated as being important to the war effort. In an already truncated legal procedure the court would never be faced with a situation where grave charges were not levelled by responsible officers with some material to support their claims, except for the most egregious of false cases. A court would presumably only be able to develop reasonable grounds to believe that the person was not guilty during a trial due to cross-examination of witnesses as at trial the burden still lay upon the prosecution to prove guilt as held by the Madras High Court.
Next Post
This post has surveyed the historical position in the general law and the special law on matters of bail, drawing the line at 1947. We saw how the general position on bail changed from being a very restrictive one — at least in respect of magistrate courts — to a more liberal one during the inter-war period. The onset of the Second World War brought with it a new set of restrictive measures and introduced Rule 130A in the Defence of India Rules. In the next post, we will see how the memories of this wartime measure would continue to echo all through the history of the constitutional republic of independent India.
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