Criminal appeal No.2178 of 2011 (arising out of SLP (Crl.) No.5650 of 2011)
Transcript of "Access to justice"
ACCESS TO JUSTICEUNDER TRIALS IN PRISONS/BAIL/PERSONAL BOND/SURETY
The law relating to bail is contained in sections 436 to 450 ofchapter XXXIII of the Code of Criminal Procedure, 1973.Section 436 deals with situation, in what kind of cases bail should begranted.Section 436 deals with the situation when bail may be granted in caseof a bailable offence.Section 439 deals with the special powers of the High Court or theCourt of Sessions regarding grant of bail.Under sections 437 and 439 bail is granted when the accused underdetention.
Khatri and Ors v/s State of Bihar and Ors.(AIR (1981) SC 928)Supreme Court Observations:• State cannot avoid its constitutional obligation to provide free legal services to a pooraccused by pleading financial or administrative inability.• The constitutional obligation of the State to provide free legal services to an indigentaccused is not only at the stage of trial but also at the stage when he is first produced beforethe magistrate and also when he is remanded from time to time.• However the right to free legal aid would be illusory for an indigent accused unless theMagistrate before whom he is produced informs him of such right. It would be mockery oflegal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legalservices.SUPREME COURT JUDGMENT
Moti Ram and Others v/s State of Madhya PradeshAIR (1978) SC 1594SUPREME COURT JUDGMENTThe Court held:“Even so, poor men-Indians are, in monetary terms, indigentsyoung persons, infirm individuals and women are weakcategories and Courts should be liberal in releasing them ontheir own recognizances put whatever reasonable conditionyou may.”~ The code of Criminal Procedure Code, 1973 - Sec.436 - Where a personis unable to give bail within a week of the date of his arrest, it shall be asufficient ground for the officer or the court to presume that he is anindigent person and is unable to furnish surety ,instead of taking bailfrom such persons ,discharge him on his executing a bond with outsureties for his appearance.
Hussainara Khatoon v/s. Home Secretary, State of Bihar(AIR 1979 SC 1369)Courts must abandon the antiquated concept under which pretrialrelease is ordered only against bail with sureties.The Court held:“If the Court is satisfied, after taking into account, the basisof information placed before it, that the accused has hisroots in the community and is not likely to abscond it cansafely release the accused on the personal bond”.SUPREME COURT JUDGMENT
Free Legal Aid Committee, Jamshedpur v/s State of Bihar(1982) 3 SCC 378 It was brought before the court that the persons released onbail are asked to be present before the court every 14 dayseven when the enquiry is pending and the charge sheet has notbeen filed,The accused granted bail by the Magistrate court are rearrested once the case is committed to the Sessions court .The Supreme Court held that this practice was wrongand caused unnecessary harassment of the accused.SUPREME COURT JUDGMENT
Criminal appeal No.2178 of 2011 (arising out of SLP (Crl.)No.5650 of 2011)Decided on :23-11-2011SANJAY CHANDRA V/S CBISUPREME COURT JUDGMENTAs recently as 2011, the Supreme Court reaffirmed its decades-old commitmentto “bail not jail.”“It is not in the interest of justice that accused should be in jail for anindefinite period.” And, “This Court, time and again, has stated that bail is therule and committal to jail an exception.It is also observed that refusal of bail is a restriction on the personal liberty ofthe individual guaranteed under Article 21 of the Constitution.”