Stringency in the Indian Bail System

Conditional release of a person accused of a crime pledged for the appearance in court on a due date is known as bail. There are three kinds of bail in India. Regular bail, interim bail and lastly anticipatory bail. Regular bail is when a person accused is in police custody after which bail is applied for under section 437 and 439 of the Criminal Procedure Code (CrPC). Interim Bail is granted for a short period of time before the regular or anticipatory bail is granted and anticipatory bail is granted under section 438 of the CrPC by either the sessions Court or the High Court when a person feels that he might be arrested of a non-bailable offence committed by him.

Different Acts have various other restrictions while granting a bail intern making bail under one act more stringent than the other. For instance, UAPA – Unlawful Activities (Prevention) Act, 1976 covers bail under section 43D (5) and Narcotic Drugs and Psychotropic Substances Act (NDPS), 1985 covers it under Section 37. In accordance to UAPA bail cannot be granted if there are reasonable grounds to prove that the accusation against the accused is in its first appearance that is prima facie true. However, Section 37 of NDPS says that bail cannot be granted even if there are strong reasons to believe that the accused may not be guilty and is least likely to commit any offence when granted bail. This thereby makes laws relating to bail in NDPS more stringent than UAPA. Considering the harsh conditions for bail and its effects on constitutional rights the court has made speedy trials to protect the innocent people.

National Investigation Agency vs Zahoor Ahmad shah Watali is one of the case laws where there was sufficient reason to believe that the accusation on the accused was prima facie true thereby applying Sec 43D (5) of UAPA the bail was denied. Another case proving importance of Speedy trial is Union of India v. K.A Najeeb. A 3-judge bench of the Apex Court on Monday granted bail to one of the accused of the 2010 Palm Chopping Case, K.A Najeeb. He has been accused of offences under the Indian Penal Code, Explosive Substances Act, and UAPA. The court held that Section 43D (5) of UAPA will not act as a bar to the ability of Constitutional Courts to grant bail on the ground of violation of Fundamental Right to Speedy Trial envisaged under Article. 21 of the Constitution. The court also observed that the National Investigation Agency (NIA) had failed to take any step towards screening the 276 witnesses and that the accused has already spent more than five years in imprisonment. The charges themselves were framed on 27.11.2020.

The court further observed that the rigorous use of S. 43D (5) will meltdown where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Thus, the court in the exercise of its appellate jurisdiction upheld the decision of grant of bail of the Kerala High Court imposing additional conditions.

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