Rethinking Bail

Bail is the rule and jail is an exception. However, the present rules regarding bail are very outdated and requires amendment. At present media and public considers that a person arrested for an offence is guilty, and granting of bail is to an extent considered as almost equivalent to acquittal. Fundamental legal principle that a person is presumed innocent until found guilty is often forgotten by the police, press and consequently media. This infact is a result of the rigour of the colonial era bail provisions. Even though the purpose of custody is to ensure that a person is made available for investigation enquiry and trial, in popular myth it is the first confirmation of guilt of the accused. Keeping a person accused of an offence in custody affects his fundamental right to life guaranteed to him under Art. 21 of the Constitution. Further in India, the arresting officer himself deals with the entire case, which has the potential of skewing facts for a multitude of reasons including self aggrandisement. Hence the following suggestions are made to improve the bail provisions-

(a) The investigation and arrest and custody shall be done by separate officials. There should be at least one investigation and one arresting and custody officer in each police station. Investigation and Arresting and Custody officer should have distinct hierarchy and invariably arresting and custody officer shall be superior in rank to the investigation officer.

(b) In case of grave urgency only the investigation officer has right to arrest. In such cases, immediately after the arrest the arresting officer shall hand over the custody of the arrested person to the arresting officer.

(c) All arrested persons shall be entitled to get released immediately on bail if such person meets the following criteria - 

 (1) The offence alleged is not punishable with more than 7 years imprisonment.

 (2). The arrested person is capable of and agrees to cooperate with investigation, inquiry and trial and for the purpose agrees to

(i) submit to surveillance of any lawful nature by law enforcement agencies 

(ii) furnish such persons and near relatives complete identification details including physical address, telephone, email,social media addresses and agree further that the communication to any of the given addresses is sufficient service of notice to such person for any purpose during investigation inquiry and trial, including appeal, that any change in any of the addresses shall be promptly informed to law enforcement agencies and the forums before which the case is subsequently put up, that such person does not require any further notice than intimation through such addresses including social media accounts email and phone numbers, that in case of any failure to appear in pursuance to a notice addressed to any of the addresses or accounts furnished by such person, such person agrees to forfeit his right to bail until such time that such person is able to convince the arresting officer where the case is in investigation stage and the forum where the case is pending that such person will cooperate with the legal process, and that such person also forefeits all his rights as a citizen, including right to property and right to obtain and keep a passport upon failure to appear before the investigation officer or the forum as the case may be provided the forum where his case is pending can restore the rights upon his appearance.such person appears before the court.

(iii) agree further that he shall not involve in any wilful criminal activity during the period of bail failing which his right to bail is forefeited.

(3). The offence does not involve violent crimes of serious nature punishable with more than 3 years or crimes that affect psychological aspects of the victims.