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Confused Purposes and Inconsistent Adjudication: An Assessment of Bail Decisions in Delhi's Courts
Published online by Cambridge University Press: 24 April 2024
Abstract
A persistent issue in the Indian criminal justice system has been the over-incarceration of pre-trial detainees, which is inextricably linked with the practices of trial courts in deciding on the detention and release of accused persons pending trial. The present statutory law and judicial discourse provides little guidance on the process for deciding bail matters. There has also not been much effort to empirically research decision-making in such matters and/or the impact of these decisions on the pre-trial detainee population in prisons. The present study is an attempt to plug this gap, analysing ‘regular’ bail orders of Sessions Courts of Delhi available from the eCourts system between 2017 and 2019 for the offences of theft and rape. The data reveals a failure to recognise the fundamentally preventive purpose of bail, as well as to develop individualised and specialised processes in compliance with this purpose. Such failure in guidance has resulted in judges importing factors from the trial process that remain unjustified outside of the punitive detention process, such as guilt. In conclusion, we argue that a fundamental reimagination of the approach to bail is required – one that is distinct from the trial process and focuses instead on the individualised assessment of risk.
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- Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of the National University of Singapore
Footnotes
*
Professor of Law and SK Malik Chair Professor on Access to Justice, National Law University Delhi; Executive Director, Project 39A, National Law University Delhi.
**
Senior Associate, Project 39A, National Law University Delhi at the time of submission. Presently reading for the MSc in Criminology and Criminal Justice, University of Oxford.
The authors would like to thank Saloni Ambastha, Ayan Gupta, Livie Jain, Tammana Malik, and Waleed Nazir Latoo for their tireless and intensive efforts in coding the data and Ashna Devaprasad for her invaluable assistance. We would also like to thank the team at Civic Data Labs for their assistance in securing the data for analysis. This work would not have been possible without all their support. All errors are our own.
References
1 National Crime Records Bureau, ‘Prison Statistics India Report 2020’ (Ministry of Home Affairs 2020) <https://ncrb.gov.in/en/prison-statistics-india-2020> accessed 4 Feb 2022.
2 See Chandra, Aparna & Medarametla, Keerthana, ‘Bail and Incarceration: The State of Undertrial Prisoners in India’ in Vidyasagar, Shruti et al (eds), Approaches to Justice in India (Eastern Book Company 2017)Google Scholar; Karnam, Murali & Nanda, Trijeeb, ‘Condition of Undertrials in India: Problems and Solutions’ (2016) 53(16) Economic and Political Weekly 14Google Scholar; Raghavan, Vijay, ‘Undertrial Prisoners in India: Long Wait for Justice’ (2016) 51(4) Economic and Political Weekly 17Google Scholar; Madhurima, ‘Undertrial Prisoners and the Criminal Justice System’ (2010) 2 Supreme Court Cases Journal J-25; Balsara, SD, ‘Bail Not Jail - Empty the Prisons’ (1980) 22(3) Journal of the Indian Law Institute 341Google Scholar; Bhagwati, PN, ‘Human Rights in the Criminal Justice System’ (1985) 27(1) Journal of the Indian Law Institute 1Google Scholar; Bhandari, Vrinda, ‘Pretrial Detention in India: an Examination of the Causes and Possible Solutions’ (2015) 11(2) Asian Criminology 83Google Scholar.
3 A Sessions Court is a criminal trial court that has the jurisdiction to try any offence under the Indian Penal Code 1860 and pass any sentence authorised by law, with the death sentence subject to confirmation by the High Court. See ss 26 and 28 of the Code of Criminal Procedure 1973 (CrPC).
4 For a useful summary of the law of bail in India, please refer to Pillai, Chandrashekhar, Kelkar's Lectures on Criminal Procedure (6th edn, Eastern Book Company 2017)Google Scholar.
5 CrPC, First Schedule.
6 CrPC, ss 436 and 437.
7 See Balyan, Chirag, ‘Bail or Jail: The Antinomies in Liberal Theory and the Way Forward’, in Kurshid, Salman et al (eds), Taking Bail Seriously: The State of Bail Jurisprudence in India (LexisNexis 2020)Google Scholar.
8 The CrPC prescribes that if the report on completion of investigation, known as the ‘chargesheet’, is not submitted within a prescribed period (sixty or ninety days depending on the nature of offence), then the accused is entitled to bail, also known as ‘default bail’ (see CrPC, s 167). Further, at particular points in the proceedings, an entitlement to bail emerges, such as when a trial before a magistrate is not concluded within sixty days from the first day fixed for taking evidence and if, after the conclusion of the trial in a non-bailable offence and before the judgement is delivered, the court finds that it is reasonable to believe the accused is not guilty (see CrPC, s 437). Section 436A of the CrPC requires that undertrials who have completed at least half of the maximum sentence (other than those accused of offences with punishment of death penalty or life imprisonment) be released on bail and also bars the detention of undertrials beyond the maximum sentence possible for the offences they are accused of. The circumstances for grant and rejection of bail change under special legislations, such as the Unlawful Activities (Prevention) Act 1967 (UAPA) and the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS). These legislations place a higher burden for release on bail, generally requiring that the accused establish that they are not guilty in order to be released on bail. See section 43D (inserted in 2008) of the UAPA; section 37 (amended in 1989) of the NDPS. In addition, the period allowed for submission of chargesheet has been extended under some special legislations, going up to one year for certain cases under the NDPS Act, thus further increasing the period of detention prior to accessing default bail (NDPS, s 36A(4); UAPA, s 43D; Maharashtra Control of Organised Crime Act 1999, s 21(2)).
9 With a few exceptions, such as Anurag Deep, ‘Role of Police and the Law of Bail in Common Law Jurisdictions (with Special Reference to India)’, in Salman Kurshid et al (eds), Taking Bail Seriously: The State of Bail Jurisprudence in India (LexisNexis 2020).
10 CrPC, s 167 provides that if an investigation cannot be completed in 24 hours, the accused must be forwarded to a magistrate who will determine if further custody is necessary, for a period not exceeding fifteen days at a time, with a maximum of fifteen days for police custody and a maximum of ninety days of judicial custody if it is an offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years; and sixty days if it is any other offence.
11 CrPC, s 439.
12 Ram Govind Upadhyay v Sudarshan Singh (2002) 3 SCC 598; State of Maharashtra v Sitaram Popat Vetal (2004) 7 SCC 521; Chaman Lal v State of UP (2004) 7 SCC 525; Kalyan Chandra Sarkar v Rajesh Ranjan (2004) 7 SCC 528; Omar Usman Chamadia v Abdul (2004) 13 SCC 234; Lokesh Singh v State of Uttar Pradesh (2008) 16 SCC 753; Brij Nandan Jaiswal v Munna (2009) 1 SCC 678; Prasanta Kumar Sarkar v Ashis Chatterjee (2010) 14 SCC 496; Mauji Ram v State of Uttar Pradesh (2019) 8 SCC 17; P Chidambaram v Directorate of Enforcement (2020) 13 SCC 791; Mahipal v Rajesh Kumar (2020) 2 SCC 118; Sunil Kumar v State of Bihar (2022) 3 SCC 245; Manoj Kumar Khokhar v State of Rajasthan (2022) 3 SCC 501.
13 Hussainara Khatoon & Ors v Home Secretary, State of Bihar 1979 AIR 1360; Ashim v NIA (2022) 1 SCC 695; SC Legal Aid Committee v Union of India (1994) 6 SCC 731; Shaheen Welfare Association v Union of India (1996) 2 SCC 616; RD Upadhyay v State of AP (1996) 3 SCC 422.
14 Sanjay Chandra v CBI (2012) 1 SCC 40.
15 ibid.
16 P Chidambaram (n 12).
17 Gurcharan Singh v State (Delhi Admin) (1978) 1 SCC 118; State of Maharashtra v Captain Buddhikota Subha Rao 1990 SCC (Cri) 126; Prahlad Singh Bhati v NCT Delhi (2001) 4 SCC 280; Ram Govind Upadhyay (n 12); Chaman Lal (n 12); Kalyan Chandra Sarkar (n 12); Jayendra Saraswathi Swamigal v State of Tamil Nadu (2005) 2 SCC 13; State of UP v Amarmani Tripathi (2005) 8 SCC 21; Vaman Narain Ghiya v State of Rajasthan (2009) 2 SCC 281; Prasanta Kumar Sarkar (n 12); Dipak Shubhashchandra Mehta v CBI (2012) 4 SCC 134; Kanwar Singh Meena v State of Rajasthan (2012) 12 SCC 180; CBI v V Vijay Sai Reddy (2013) 7 SCC 452; Neeru Yadav v State of UP (2014) 16 SCC 508; Anil Kumar Yadav v State (NCT of Delhi) (2018) 12 SCC 129; P Chidambaram (n 12); Mahipal (n 12); Myakala Dharmarajam and Others v State of Telangana (2020) 2 SCC 743; Harjit Singh v Inderpreet Singh @ Inder (2020) 2 SCC 118; High Court of Judicature for Rajasthan v State of Rajasthan Crl App 5618 of 2021; Shri Mahadev Meena v Raveen Rathore Crl App 1089 of 2021; Bhoopendra Singh v State of Rajasthan Crl App 1279 of 2021; State of Kerala v Mahesh Crl App 343 of 2021; Sudha Singh v State of Uttar Pradesh (2021) 4 SCC 781; Sunil Kumar (n 12); Manoj Kumar Khokhar (n 12); Centrum Financial Services Limited v State of NCT of Delhi (2022) 13 SCC 286.
18 Prasanta Kumar Sarkar (n 12).
19 Gurcharan Singh (n 17).
20 Ram Govind Upadhyay (n 12). See also Gudikanti Narasimhulu v Public Prosecutor, APHC (1978) 1 SCC 240; Babu Singh v State of UP (1978) 1 SCC 579; Satish Jaggi v State of Chhattisgarh (2007) 11 SCC 195; Ash Mohammad v Shiv Raj Singh (2012) 9 SCC 446; Neeru Yadav (n 17); P Chidambaram (n 12); Jayaben v Tejas Kanubhai Zala (2022) 3 SCC 230.
21 State of Rajasthan v Balchand (1977) 4 SCC 308 [3]; Babu Singh (n 17) [13]; Panchanan Mishra v Digambar Mishra (2005) 3 SCC 143 [13]; Sanjay Chandra (n 17) [28].
22 Shahzad Hasan Khan v Ishtiaq Hasan Khan (1987) 2 SCC 684.
23 Gurcharan Singh (n 17); Puran v Rambilas (2001) 6 SCC 338; Sitaram Popat Vetal (n 12); Chaman Lal (n 12); Kalyan Chandra Sarkar (n 12); Ajay Kumar Sharma v State of UP (2005) 7 SCC 507; Amarmani Tripathi (n 17); Lokesh Singh (n 12); Vaman Narain Ghiya (n 17); Masroor v State of Uttar Pradesh (2009) 14 SCC 286; Prasanta Kumar Sarkar (n 12); Dipak Shubhashchandra Mehta (n 17); Kanwar Singh Meena (n 17); Sanghian Pandian Rajkumar v CBI (2014) 12 SCC 23; Anil Kumar Yadav (n 17); Mahipal (n 12); Myakala Dharmarajam and Others (n 17).
24 See for example, Umang Poddar, ‘India's judiciary wants a new bail law – but wouldn't implementing existing rules do the job anyway?’ (Scroll.in, 16 Jul 2022) <https://scroll.in/article/1028189/judiciary-is-asking-for-a-new-bail-law-but-wouldnt-implementing-existing-rules-do-the-job-anyway> accessed 28 Feb 2023.
25 Law Commission, ‘268th Report on Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail’ (Law Com No 268, 2017).
26 It is worth mentioning the relevance of the first proviso of section 437 of the CrPC (regulating the determination of regular bail in non-bailable matters), which requires that magistrates not release any person ‘if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life’. This is the only mention of guilt or seriousness of the offence in the legislative framework of decision-making in bail matters. However, the provision operates as a limitation on the power of the magistrates to consider bail applications for offences that are outside of their trial jurisdiction (with no such corresponding limitation on Sessions Courts under CrPC, s 439) and therefore does not provide instruction on the role of guilt or seriousness in the decision-making process for bail matters. See Satender Kumar Antil v CBI (2022) 10 SCC 51. The law complies with the framework this article proposes, as it creates an exception for the most serious offences and limits such an exception to the magistrate level, allowing Sessions Courts to decide on these matters based on broader criteria than guilt and seriousness.
27 Balchand (n 21).
28 Gurcharan Singh (n 17). See also Jeetendra v State of Madhya Pradesh (2020) 12 SCC 536; Naveen Singh v State of Uttar Pradesh (2021) 6 SCC 191.
29 Ram Govind Upadhyay (n 12); See also Kalyan Chandra Sarkar (n 12); Ajay Kumar Sharma (n 23); Masroor (n 23); Prasanta Kumar Sarkar (n 12); Dipak Shubhashchandra Mehta (n 17); Ash Mohammad (n 17); Sanghian Pandian Rajkumar (n 23); Neeru Yadav (n 17); Anil Kumar Yadav (n 17); Mahipal (n 12).
30 See Commonwealth Human Rights Initiative, ‘Circle of Justice: A National Report on Undertrial Review Committees’ (Commonwealth Human Rights Initiative 2016); Commonwealth Human Rights Initiative, ‘Summary of CHRI's First National Watch Report on the Functioning of the Under Trial Review Committees: Compliance To ‘Re-inhuman Conditions In 1382 Prisons’’ (Commonwealth Human Rights Initiative 2016); Commonwealth Human Rights Initiative, ‘Road to Release: Third Watch Report on Rajasthan's Periodic Review Committees’ (Commonwealth Human Rights Initiative 2015); Commonwealth Human Rights Initiative, ‘Undertrial Review Committees: Setup and Functioning in West Bengal’ (Commonwealth Human Rights Initiative 2015); Commonwealth Human Rights Initiative, ‘Undertrial Review Mechanisms: West Bengal’ (Commonwealth Human Rights Initiative 2014); Commonwealth Human Rights Initiative, ‘Undertrials: A Long Wait to Justice. A Report on Rajasthan's Periodic Review Committees’ (Commonwealth Human Rights Initiative 2011); Amnesty International, ‘Justice Under Trial: A Study of Pre-Trial Detention in India’ (Amnesty 2017); Daksh, ‘Access to Justice Survey’ (Daksh 2015); Moti Ram & Ors v State Of Madhya Pradesh 1978 AIR 1594; Hussainara Khatoon & Ors (n 13).
31 See n 2.
32 See Centre for Law and Policy Research, ‘Reimagining Bail Decision Making Report: An Analysis of Bail Practice in Karnataka and Recommendations for Reform’ (2020) <https://clpr.org.in/wp-content/uploads/2020/03/BailReport_AW_Web_Final.pdf> accessed 4 Feb 2022.
33 See, eg, National Crime Records Bureau, ‘Prison Statistics of India Report 2020’ (n 1).
34 See n 2.
35 Centre for Law and Policy Research (n 32).
36 See Commonwealth Human Rights Initiative, ‘Circle of Justice’ (n 30); Commonwealth Human Rights Initiative, ‘Summary of CHRI's First National Watch Report’ (n 30); Commonwealth Human Rights Initiative, ‘Road to Release’ (n 30); Commonwealth Human Rights Initiative, ‘Undertrial Review Committees: Setup and Functioning in West Bengal’ (n 30); Commonwealth Human Rights Initiative, ‘Undertrial Review Mechanisms: West Bengal’ (n 30); Commonwealth Human Rights Initiative, ‘Undertrials: A Long Wait to Justice’ (n 30); Amnesty International (n 30).
37 Law Commission, ‘36th Report on Section 497, 498 and 499 of the Code of Criminal Procedure 1898 - Grant of Bail with Conditions’ (Law Com No 36, 1967); Law Commission, ‘41st Report on The Code of Criminal Procedure 1898’ (Law Com No 41, 1969); Law Commission, ‘78th Report on Congestion of Undertrial Prisoners in Jail’ (Law Com No 78, 1979); Law Commission, ‘154th Report on The Code of Criminal Procedure 1973’ (Law Com No 154 1996); Law Commission, ‘177th Report on Law Relating to Arrest’ (Law Com No 177, 2001); Law Commission, ‘203rd Report on Section 438 of the Code of Criminal Procedure, 1973 as Amended by the Code Of Criminal Procedure (Amendment) Act, 2005 (Anticipatory Bail)’ (Law Com No 203, 2007); Law Commission, ‘268th Report’ (n 25).
38 See Ramanathan, Usha, ‘Ostensible Poverty, Beggary and the Law’ (2008) 43 Economic and Political Weekly 33Google Scholar; Prabha Kotiswaran, ‘How Did We Get Here? Or A Short History of the 2018 Trafficking Bill’ (EPW Engage, 18 Jul 2018) <https://www.epw.in/engage/article/how-did-we-get-here-or-short-history> accessed 23 May 2020; Ajita Banerjie, ‘Decriminalising Begging Will Protect Transgender Persons from Police Harassment’ (The Wire, 17 Aug 2018) <https://www.thewire.in/rights/decriminalizing-begging-will-protect-transgender-persons-from-police- harassment> accessed 22 May 2020; ‘India: Stop ‘Social Cleansing’ in Bangalore – Illegal Mass Evictions Against a Transgender Community’ (Human Rights Watch, 18 Nov 2008) <https://www.hrw.org/news/2008/11/18/India-stop-social-cleansing-bangalore> accessed 22 May 2020; Mrinal Satish, ‘‘Bad Characters, History Sheeters, Budding Goondas and Rowdies’: Police Surveillance Files and Intelligence Databases in India’ (2011) 23 National Law School of India Review 133; Ankita Sarkar & Medha Deo, ‘Masquerading Violent Discrimination as Preventive Action: An Analysis of Section 110 of the Criminal Procedure Code’ (The P39A Criminal Law Blog, 26 Jan 2021) <https://p39ablog.com/2021/01/26/masquerading-violent-discrimination-as-preventive-action-an-analysis-of-section-110-of-the-criminal-procedure-code> accessed 4 Feb 2021; Law Commission, ‘177th Report’ (n 37) 149; Aparna Chandra & Keerthana Medarametla, ‘Bail and Incarceration: The State of Undertrial Prisoners in India’, in Shruti Vidyasagar, Harish Narasappa & Ramya Sridhar Tirumalal (eds), Approaches to Justice in India (Eastern Book Company 2017).
39 See Moti Ram & Ors (n 30); Hussainara Khatoon & Ors (n 13). See also Sandeep Jain v NCT of Delhi (2000) 2 SCC 66; BN Srivastava v CBI (2018) 14 SCC 209; MD Dhanapal v State (2019) 6 SCC 743; Legal Aid Committee, ‘Report of the Legal Aid Committee : Appointed by the Government of Gujarat Under Government Resolution Legal Department No. Lac-1070-D dated 22nd June 1970’ (Government Central Press 1971); Expert Committee on Legal Aid, ‘Processual Justice to the People : Report of the Expert Committee on Legal Aid, May 1973’ (Ministry of Law Justice and Company Affairs, Government of India 1974); Law Commission, ‘268th Report’ (n 25); Murali Karnam & Trijeeb Nanda (n 2); Raghavan (n 2); Madhurima (n 2); Sudesh Kumar Sharma (n 2); Bhagwati (n 2).
40 Centre for Law and Policy Research (n 32).
41 The authors undertook a preliminary analysis of digitisation in the eCourts system across all states based on a random sample of court data and found that Delhi had one of the highest proportions of orders uploaded online.
42 Three primary errors emerged: either the sections were not specified at all, the procedural section 437 of the CrPC was recorded, or only one of the sections punishable under was mentioned. This made it difficult to analyse the offences cumulatively, for example to identify the most serious offence accused or charged.
43 Limiting the dataset to IPC offences means that if in a 376 IPC case a special legislation such as POCSO was also applied, such a case would have been excluded from the final dataset for analysis.
44 It is worth mentioning that while the orders do list the sections that the accused faces charges under, these orders usually only specify ‘376 IPC’ and do not list the sub-sections under 376 IPC that apply to the case. This has prevented a more disaggregated analysis of rape cases.
45 While there have been differing interpretations of the role of presumption of innocence in the Constitutional framework (see Vrinda Bhandari, ‘Inconsistent and Unclear: The Supreme Court of India on Bail’ (2013) National University of Juridical Sciences Law Review 549; and S Bhardwaj, ‘A fundamental right to be presumed innocent’ (Project39A Blog, 30 June 2022) <https://p39ablog.com/2022/04/05/a-fundamental-right-to-be-presumed-innocent/> accessed 4 Feb 2022), courts have recognised the intersection between bail and the presumption of innocence. In particular, the court in Sanjay Chandra (n 17) [21]–[22] has stated, ‘The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty … From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test.’ See Sekhri, Abhinav, ‘Separating Crime from Punishment: What India's Prisons Might Tell Us about its Criminal Process’ (2021) 33(2) National Law School of India Review 278Google Scholar; Law Commission, ‘268th Report’ (n 25).
46 See Sanjay Chandra (n 17); P Chidambaram (n 12).
47 Each case represents one application of one accused in one case or FIR. This means that if there were multiple accused in a single case who filed applications for bail, each application is recorded as a separate case in the dataset. In addition, if there were multiple FIRs registered against the same accused, each FIR in which an application for bail was made is recorded as a separate case.
48 The description of facts in the case was available in only 1143 theft cases (60.38% of total cases) and 701 rape cases (56.40% of the total cases).
49 Information was unavailable in 446 theft cases and 530 rape cases.
50 CrPC, s 437.
51 See Dash, Preeti Pratishruti, ‘Rape adjudication in India in the aftermath of Criminal Law Amendment Act, 2013: findings from trial courts of Delhi’ (2020) 2(4) Indian Law Review 2Google Scholar; Satish, Mrinal, Discretion, Discrimination and Rule of Law: Reforming Rape Law Sentencing in India (Cambridge University Press 2016) 61–90CrossRefGoogle Scholar; Kumari, Ved & Barn, Ravindra, ‘Understanding Complainant Credibility in Rape Appeals: A Case Study of High Court Judgments and Judges’ Perspectives in India’ (2015) 55(3) British Journal of Criminology 435Google Scholar.
52 See Hussainara Khatoon (n 13).
53 See National Crime Records Bureau, ‘Prison Statistics India Report 2019’ (Ministry of Home Affairs 2020) <https://ncrb.gov.in/sites/default/files/PSI-2019-27-08-2020.pdf> accessed 4 Feb 2022; Vijay Raghavan & Roshni Nair, ‘A Study of the Socio-Economic Profile and Rehabilitation Needs of Muslim Community in Prisons in Maharashtra’ (Tata Institute of Social Sciences 2011); Priti Bharadwaj, ‘Pre-trial Detention and Access to Justice in Orissa’ (Commonwealth Human Rights Initiative 2010); Commonwealth Human Rights Initiative, ‘Right to Legal Aid & Access to Justice: The State of Undertrials in Alwar Prison of Rajasthan’ (Commonwealth Human Rights Initiative 2016); Pandit Govind Ballabh Pant Institute of Studies in Rural Development Lucknow, ‘Children of Women Prisoners in Jails: A Study in Uttar Pradesh’ (Planning Commission Government of India 2004).
54 See Moti Ram (n 30).
55 CrPC, s 440(1).
56 CrPC, s 441.
57 Balchand (n 21); Gurcharan Singh (n 17); Jeetendra (n 28); and Naveen Singh (n 28) have all expressed that bail is the rule while jail is the exception. See also Ram Govind Upadhyay (n 12); Kalyan Chandra Sarkar (n 12); Ajay Kumar Sharma (n 23); Masroor (n 23); Prasanta Kumar Sarkar (n 12); Dipak Shubhashchandra Mehta (n 17); Ash Mohammad (n 17); Sanghian Pandian Rajkumar (n 23); Neeru Yadav (n 17); Anil Kumar Yadav (n 17); and Mahipal (n 12), which have expressed the latter standard.
58 See also TN Singh ‘The Hussainara Case: Some Socio-Legal Aspects of Pretrial Detention’ (1980) 1 Supreme Court Cases Journal J-1.
59 See Ram Govind Upadhyay (n 12); Satish Jaggi (n 17); Neeru Yadav (n 17); Jayaben (n 17); Prasanta Kumar Sarkar (n 12); Amarmani Tripathi (n 17); Kalyan Chandra Sarkar (n 12); Chaman Lal (n 12); Harjit Singh v Inderpreet Singh @ Inder Crl App 883 of 2021; Mahipal (n 12); Kanwar Singh Meena (n 17); Prahlad Singh Bhati (n 17); Manoj Kumar Khokhar (n 12); Sunil Kumar (n 12); State of Kerala (n 17); Bhoopendra Singh (n 17); Shri Mahadev Meena (n 17).
60 Ram Govind Upadhyay (n 12); Sitaram Popat Vetal (n 12); Chaman Lal (n 12); Kalyan Chandra Sarkar (n 12); Omar Usman Chamadia (n 12); Lokesh Singh (n 12); Brij Nandan Jaiswal (n 12); Prasanta Kumar Sarkar (n 12); Mauji Ram (n 12); P Chidambaram (n 12); Mahipal (n 12); Sunil Kumar (n 12); Manoj Kumar Khokhar (n 12).
61 In these cases, the prosecution admitted that there were some limitations in evidence, that there were no antecedents against the accused, or that there would be delays in compiling evidence.
62 Indicting statements from the investigating officer were generally in support of the prosecution version, recording the facts against the accused and criminal antecedents, if any. Conceding statements noted some lapse in the investigation or complainant's statement, or the lack of criminal antecedents against the accused.
63 The Supreme Court recently recognised the right of the ‘victim’ to fair and effective hearing in bail proceedings but failed to clarify the consideration that ought to be given to such submissions by judges, which is representative of the problem highlighted in this section. See Jagjeet Singh vs Ashish Mishra @ Monu Crl App 632 of 2022 (SC).
64 CrPC, s 441.
65 See for example Marie VanNostrand & Gena Keebler, ‘Pretrial Risk Assessment in the Federal Court’ (2009) 73(2) Federal Probation 2; CA Mamalian, ‘State of the Science of Pretrial Release I’ (Pretrial Justice Institute 2011) <https://bja.ojp.gov/sites/g/files/xyckuh186/files/Publications/PJI_PretrialRiskAssessment.pdf> accessed 4 Feb 2022; Marie VanNostrand, Kenneth J Rose and Kimberly Weibrecht, ‘State of the Science of Pretrial Release Recommendations and Supervision’ (Pretrial Justice Institute 2011); John-Etienne Myburgh, Carolyn Camman & J Stephen Wormith, ‘Review of Pretrial Risk Assessment and Factors Predicting Pretrial Release Failure’ (Centre for Forensic Behavioural Science and Justice Studies 2015); Bornstein, Brian H et al, ‘Reducing Courts’ Failure-to-Appear Rate by Written Reminders’ (2013) 19(1) Psychology, Public Policy, and Law 70CrossRefGoogle Scholar; Mayson, Sandra G, ‘Dangerous Defendants’ (2018) 127 Yale Law Journal 490Google Scholar; Lauryn P Gouldin, ‘Defining Flight Risk’ (2018) 1(3) Brigham Young University Law Review 838; Gouldin, Lauryn P, ‘Disentangling Flight Risk from Dangerousness’ (2016) 85(3) University of Chicago Law Review 678Google Scholar.
66 Law Commission, ‘268th Report’ (n 25).