What is section 437?
Section 437 of the Code of Criminal Procedure empowers the Court to impose conditions at the time of granting bail. The Court may, while granting bail to an individual, ask him to surrender his passport as stated in Hazarilal vs. Rameshwar Prasad. The accused cannot be subjected to any condition which is not pragmatic and is unfair. the Court must make sure that the condition imposed on the accused aligns with the intendment and provisions of the sections and not onerous.
Scope and applicability of section 437 (3)
- Regarding the scope and applicability of the discretionary powers that Section 437(3) gives to a court deciding bail, there also comes the problem of a certain brand of outrightly absurd and problematic bail orders handed out by various courts in the country.
- In a fairly recent case involving a politician from Jharkhand, Som Marandi v. the State of Jharkhand, the Hon’ble Judge of the HC of Jharkhand, in the bail order, directed the petitioners to deposit 35,000/-(Thirty-Five thousand) each in the Prime Minister’s Citizens Assistance and Relief in Emergency Situations (PM CARES) Fund and also download the ‘AarogyaSetu’ app as bail.
- It is an issue that can prima facie be raised that how exactly does this judge justify the deposition of an amount into a government relief fund and the downloading of a mobile application to be ‘in the interests of justice, that too in the context of granting bail.
- Therefore, this order can easily be termed as misuse of judicial discretion as the law mentions that directives like these that are in no way related to the object of granting bail, being violative of the individual’s rights, cannot be justified under the ambit of Section 473(3) of the CrPC.
What is bail?
The concept of bail and its intricacies has massively evolved since the enactment of the Code of Criminal Procedure in 1973 (CrPC). The term ‘bail’ itself is not defined in the statute, it has, however, been defined by Black’s Law Lexicon as “security for the appearance of the accused person on giving which he is released pending trial or investigation.” Bail as a concept in procedural law and jurisprudence has come to be principally and conceptually interpreted by different judges in line with relevant jurisprudence and, as we will attempt to investigate in this research paper, in absurd and unconventional ways.
Here is an attempt to look at, and critically analyze, the imposition of arbitrary conditions on the accused under s.437(3), purely on the discretion of the court, and the impact this would have on the fundamental rights of the accused.
Does bail safeguard the fundamental rights of the accused?
The true purpose behind bail, which is to ensure that an accused in a case does not evade the legal process, which is lis pendens before a court, hinges on a very flawed fundamental process of thinking, which is the assumption that the accused has nothing to lose- except for money. Although there has been no change in the statute itself, courts have started to recognize the nitty-gritty of bail and its implications, but the odd few still do exist and need to be checked via criticism and discussion in the legal community. This ties into our problem of judicial discretion which also similarly lacks a fundamental straitjacket mechanism that can be applied so that it could be made into a perfectly balanced and untouchable model; for wherever there is human input, there is bound to be subjectivity regarding things.
What is the ‘Rule of dicey’?
It means the absence of arbitrary powers or even discretionary powers because wherever there is discretion there is scope for arbitrariness. It is quite necessary to concede that the presence of any sort of discretion that is given to a court, would directly point to some sort of arbitrariness also being present in connection to it or as a possible side effect. It should be noted that there is a good reason that the law cannot necessarily give the courts an all-purpose instruction booklet regarding the grant of bail is because the grant of bail as a decision has so much complexity and a wide variety of possible scenarios that have to be considered and studied by a set of human eyes before taking a call on it. There is a need for these discretionary powers to be present at an administerial level because, in the absence of it, there would always be some sort of new situation that nobody has ever seen happen before, making it next to impossible to take a fair decision on it without putting in some trust in our judicial offers. In this essay, there is mostly mentions of misdoings on part of judges, but it should be considered that the number of cases we see arising directly out of blatant abuse of this discretionary power is not substantial in number; often, it is either error in the application of basic principles or their interpretation that leads to dissatisfaction with the handling of a particular case. Taking that into account, in my opinion, a good solution would be to conduct a considerably better recruitment and sensitization process for potential judiciary candidates, which would involve familiarizing them with special new-age problems that have a trend of showing up in bail matters. This should considerably, if not completely, bring down and separate the ‘abuse of power’ problem from the ability/competence-based problem amongst the court system of the country. Any sort of power given to a human being in an official capacity must have some sort of a check on its usage by an external body or a separately appointed official and no power should be unchecked.
The primary objective of the provisions providing for the bail should not be to detain and arrest an accused person but to form sure his appearance at the time of trial and to make sure if the accused is held guilty, he is available to suffer the consequence of the offense intrinsically committed, in terms of punishment under the law. it might be unjust and unfair to deprive the alleged accused of his liberty during the pendency of the criminal proceeding against him. the discharge on bail upon appropriate considerations and imposition of reasonable conditions is critical not only to the accused, and his relations who could be dependent upon him but also the society large, hence the Court is duty sure to contemplate the facts and circumstances prevailing within the matter and strike a balance between considerations and imposition of the reasonable conditions then pass the acceptable order.
JUSTIFICATION OF JUSTICE