Introduction:
All persons are entitled to Personal Liberty as enshrined under Article 21 of the Constitution of India and when we talk about the granting of Bail, it is a crucial implication of Article 21 mentioned in Constitution of India. Bail in simpler terms refers to the release which is provisional in nature and provided to the accused in a certain criminal case and pertaining to that case, the court is yet to give its decision in the case. There are various types of Bail ranging from Regular Bail which states that it is given to a person who has been either in police custody or has been arrested and this type of bail is filed under Section 437 and Section 439 of the Code of Criminal Procedure,1973. Section 437 of the Code of Criminal Procedure 1973, talks about bail in situations of non-bailable offences. This provision goes on to state that bail won’t be given if such person appears to be guilty of an offence which is punishable by death or imprisonment for life and the court has reasonable grounds to believe that and this provision also goes on to lay down further more guidelines for providing Bail to an accused individual. Furthermore, Section 439 of the Code of Criminal Procedure, 1973 goes on to give special powers to High court or the Court of Session w.r.t giving bail. Then Interim Bail is granted for a shorter duration and is usually given before the hearing of the grant of either Regular or Anticipatory Bail. Furthermore, Anticipatory Bail is granted under the Provision of Section 438 of the Code of Criminal Procedure, 1973 which is either by the Court of Session or the High Court, in this application the accused apprehends that he might be arrested for a non-bailable offence for which he applies for an Anticipatory Bail.
Why its in news?
In recent case, Utsav Kadam v. The State of Assam Bail Appln/1623/2021, the Guwahati High Court in its order granted bail to one of the main accused in Rape Charge against him. The court in its decision stated that the accused was the State’s future asset as he was a talented student who was enrolled in a prestigious institution and continuing his detention in the interest of trial of the case is not necessary. Further, the court also stated that there is a prima facie case against the accused according to the evidences established but the court in its defence stated that when they consider a bail application, the court does not look into the merits of the evidence present in front of the court but there are other reasons the court takes into consideration while granting bail.
The facts of the case in the instant matter in brief is that the accused who was the student of IIT Guwahati had lured the victim who was also a student in the same institution to a premise of a school and she was informed that the accused student wanted to discuss some points regarding her position as the Joint Secretary of a Club. Later the survivor was also forced alcohol and was unconscious when the accused committed the offence of Rape. The court in this matter granted the accused Bail stating that the accused was the State’s future asset and talented and detention in this case is not necessary. The court has also mentioned as the accused was a talented student then such detention would also damage his academic path.
This order by the Guwahati High Court goes against provision as laid down in the Indian Penal Code, 1860 and the Code of Criminal Procedure, 1973. The offence of Rape is mentioned under Section 375 of the Indian Penal Code, 1860 which goes on to state what actions constitute as Rape and further Section 376 of the Indian Penal Code 1860, goes on to state the Punishment for Rape. This provision lays down that any person who commits the offence of Rape would be punished with imprisonment for a term which is not less than 7 years but could extend for 10 years.
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| IIT Guwahati |
The offence of Rape is a non-bailable offence as it is one of the heinous crime and its evident that the offence of Rape is a non-bailable offence and in the recent decision by the Guwahati High Court, the court clearly established that the evidences prima facie were against the accused but still the accused was granted Bail. The accused has clearly committed the offence of Rape and the court by granting him Bail is against the provision of Section 437 of the Code of Criminal Procedure, 1973 where the bail can’t be granted for non-bailable offence and clearly the offence of Rape is a non-bailable offence. The court stating that the accused was state’s future asset and talented and granting him Bail for the same is an unfortunate situation as it goes against the proper administration of justice and just by merely being in a prestigious institution the accused was granted Bail in an offence as heinous as the offence of Rape which is essentially a non-bailable offence.
Author's Views:
The granting of Bail should be done on the basis of the offence committed by the accused but in the instant case, though the court stated that the evidences were against the accused but they did not discuss the merits of the evidence of the case rather only give reasons for the bail and granting Bail in such a heinous crime as Rape just because he was enrolled in a prestigious institution and was a brilliant student from the academic perspective. The court can grant bail in three situations, when the nature of the accusation and punishment is severe if conviction occurs and there is a reasonable apprehension that there won’t be any tampering with the evidence or witness and finally if the court is prima facie satisfied in granting bail. The Court in the instant matter did take into consideration the tampering of evidence and witness and stated that the accused was a talented student and won’t do anything to hamper the administration of Justice but the accused was alleged to have committed the offence of Rape which is one of the most heinous crimes and the punishment for the same is imprisonment up to 7 years which could be extended to 10 years as mentioned under Section 376 of the Indian Penal Code, 1860. The Court has quite conveniently ignored the offence and has granted Bail on the basis of non-tampering of evidence as the accused belonged to a prestigious institution and this decision surely creates a bubble of doubt regarding the administration of Justice in such cases of heinous offences.
When we talk about non-bailable offence, a person charged under such offence can’t claim Bail as right but the court can consider granting the person Bail in certain conditions if the individual is under the age of 16 or a woman or is sick and further the court can give any just and proper reason that they deem fit as a special reason to grant bail. In the instant case, the Guwahati High Court is not justified to give a reason on the basis of his academic pursuits which is unfortunate as he is accused of the offence of Rape which is a heinous crime. There has been a debate around the granting of the Bail to the accused by the Guwahati High Court and the reasons given by the court is not justified for granting the accused Bail. Furthermore, there is no justification to grant Bail in such heinous crime like of Rape and no amount of talent or intellect could be a reason to grant bail in such offences. Reasonings by the court in such grave offences raises a doubt in the minds of individuals w.r.t women safety, justice and fair accountability in offences committed against women.
Conclusion:
Therefore, in conclusion I would like to state that the Court should reconsider their decision of granting bail as the accused is alleged to have committed the offence of Rape. Further, Bail is indeed a right that can be claimed by individuals but while granting Bail, the court needs to take in consideration the offence for which the individual is charged and offences which are non-bailable in nature in itself does not give the person the right to claim Bail and there has to be a proper and just reason given by the Court in lieu of granting Bail to the individual, though the court won’t be discussing the merits and demerits of the evidence available but would consider the material that is available prima facie to the court. As already known, every accused is considered to be innocent until proved guilty and the essence of bail is to not let go the accused free but only release from custody. Courts should look at the nature of the crime for which the accused is alleged to have committed and if such offence is a non-bailable offence then accordingly the court should consider the application of Bail in such cases. The Guwahati High Court in the case of Utsav Kadam v. The State of Assam, should reconsider their decision in the granting of Bail to the accused in lieu of fair and just accountability as the offence in the current case is an offence of grave nature and the confidence in the Judiciary to be the flag bearer of Justice should be upheld in the minds of the citizens.
References:
- www.legalserviceindia.com
- www.livelaw.in
- www.indianexpress.com
- www.thedailyguardian.com
- www.freepressjournal.in
- www.theprint.in
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