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Anticipatory bail

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Under Indian criminal law, there is a provision for anticipatory bail under Section 438 of the Criminal Procedure Code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. On filing AB, the opposition party is notified about the bail application and the opposition can then contest the bail application in court (public prosecutor can also be used to do this). Anticipatory bail is nowadays being used for countering false 498 cases (Dowry law). It is one of the first and last lines of defense for a 498A victim for preventing him (groom) and his family getting arrested on trumped-up charges by the estranged daughter-in-law. Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested. When Can A Person Apply for Anticipatory Bail? When any person apprehends that there is a move to get him arrested on false or trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him, He has the right to move the court of Session or the High Court under section 438 of the code of Criminal Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Conditions That May Be Imposed By The Court The high court or the court of session may include such conditions in the light of the facts of the particular case, as it may think fit, including: a condition that the person shall make himself available for interrogation by the police officer as and when required; a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; a condition that the person shall not leave India without the previous permission of the court. Arrest If such person is thereafter arrested, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail and the magistrate taking cognizance of such offence decides that warrant should be issued against that person, he shall issue a bailable warrant in conformity with the direction of the court granting anticipatory bail. Anticipatory Bail Not A Blanket Order The applicant must show by disclosing special facts and events that he has reason to believe, that he may be arrested for a non-bailable offence so that the court may take care to specify the offence or offences in respect of which alone the order will be effective and it is not a blanket order covering all other offences.

Cancellation An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody on an application moved by the complainant or the prosecution.

Urvashi Saikumar - Amity Law School - -Justice as we know was a right fundamental to all, but it's fallacy is evident, as money now results in its fall - Objectively analyzed the criminal jurisprudence adopted by India is a mere reflection of the Victorian legacy left behind by the Britishers. The passage of time has only seen a few amendments once in a while to satisfy pressure groups and vote banks. Probably no thought has been given whether these legislations, which have existed for almost seven decades, have taken into account the plight and the socio-economic conditions of 70% of the population of this country which lives in utter poverty. India being a poverty stricken developing country needed anything but a blind copy of the legislations prevalent indeveloped western countries. The concept of bail, which is an integral part of the criminal jurisprudence, also suffers from the above stated drawbacks. Bail is broadly used to refer to the release of a person charged with an offence, on his providing a security that will ensure his presence before the court or any other authority whenever required. Meaning of Bail Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security. The law lexicon[1] defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation. Courts have greater discretion to grant or deny bail in the case of persons under criminal arrest, e.g., it is usually refused when the accused is charged with homicide. What is contemplated by bail is to "procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court." [2] A reading of the above definition make it evident that money need not be a concomitant of the bail system. As already discussed above, the majority of the population in rural India, lives in the thrall of poverty and destitution, and don't even have the money to earn one square meal a day. Yet, they are still expected to serve a surety even though they have been charged with a bailable offence where the accused is entitled to secure bail as a matter of right. As a result, a poor man languishes behind bars, subject to the atrocities of the jail authorities rubbing shoulders with hardened criminals and effectively being treated as a convict. History of Bail The concept of bail can traced back to 399 BC, when Plato tried to create a bond for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England. Evolution in England There existed a concept of circuit courts during the medieval times in Britain. Judges used to periodically go ?on circuit? to various parts of the country to decide cases. The terms Sessions and Quarter Sessions are thus derived from the intervals at which such courts were held. In the meanwhile, the undertrials were kept in prison awaiting

their trials. These prisoners were kept in very unhygienic and inhumane conditions this was caused the spread of a lot of diseases. This agitated the undertrials, who were hence separated from the accused. This led to their release on their securing a surety, so that it was ensured that the person would appear on the appointed date for hearing. If he did not appear then his surety was held liable and was made to face trial. Slowly the concept of monetary bail came into existence and the said undertrials was asked to give a monetary bond, which was liable to get forfeited on non-appearance. In The Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that no man could be taken or imprisoned without being judged by his peers or the law of the land. Then in 1275, the Statute of Westminster was enacted which divided crimes as bailable and non bailable. It also determined which judges and officials could make decisions on bail. In 1677, the Habeas Corpus Act was added to the Right Of Petition of 1628, which gave the right to the defendant the right to be told of the charges against him, the right to know if the charges against him were bailable or not. The Habeas Corpus Act, 1679 states, "A Magistrate shall discharge prisoners from their Imprisonment taking their Recognizance, with one or more Surety or Sureties, in any Sum according to the Magistrate's discretion, unless it shall appear that the Party is committed for such Matter offenses for which by law the Prisoner is not bailable." In 1689 came The English Bill Of Rights, which provided safeguards against judges setting bail too high. It stated that "excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects. Excessive bail ought not to be required." Current Practice In 1976 the Bail Act 1976 came into force. It sets out the current and the basic legal position of bail prevailing in England. It lays out that there is a general right to bail, except as provided for under the First Schedule of the Act. While there are different grounds for refusing the right to bail depending on the type of offence, for all imprison able offences the two basic grounds are as set out by the O'Callaghan decision. But there is also the additional ground that if the court is satisfied that there are "substantial grounds for believing" that the defendant if released on bail will commit an offence while on bail, bail may be refuse. Under section 5(3) of the Bail Act 1976 the court which withholds bail is required to give reasons, so that the defendant can consider making an application.[3] In practice, however, the reasons given by English courts on a variety of standard forms are frequently short and not explicitly based upon particular facts and factors. Stone's Justices' Manual suggests that magistrates announce any decision to refuse bail merely by relating the grounds and statutory reasons in short form.[4] English administrative law also requires that, where there is an existing obligation to give reasons for a decision, the reasons given be clear and adequate, and deal with the substantial issues in the case.[5] The English courts use tick boxes for recording the grounds and the reasons for not granting bail. There is a use of a standard pattern that which lists out the various reasons for not granting the bail. These forms vary in their precise configuration, but in substance they are all the same as all of them set out the grounds for refusing bail in one column, and a number of possible reasons for the findings those grounds established in another column. The decision is recorded by ticking the relevant box in each column. But the decisions recorded on standard forms might be at risk of being characterised as "abstract" or "stereotyped", and therefore inadequate. The quality of the reasons given directly reflects the quality of the decision-making process. Evolution in America According to the San Francisco News and the SF Chronicle, the first modern Bail Bonds business in the United States, the system by which a person pays a percentage to a professional bondsman who puts up the cash as a guarantee that the person will appear in court, was established by Tom and Peter P. McDonough in San Francisco in 1898. Infact, this was the same year that the Bill of Rights was introduced in England, and the Congress passed the Judiciary Act. This specified which types of crimes were bailable and set bounds on a judge's discretion in setting bail. The Act states that all non-capital crimes are bailable and that in capital cases the decision to detain a suspect, prior to trial, was to be left to the judge. In 1791 The Bill Of Rights was incorporated into Constitution of the United States, through the 5th, 6th and 8th Amendments, guaranteeing citizens the right to due process of law, a fair and speedy trial and protection against excessive bail. The Eighth

Amendment to the Constitution of the United States provides that "excessive bail shall not be required," but it does not provide any absolute right to bail. Current Practice Under current law, a defendant has the right to bail unless there is sufficient reason not to grant it. The main reasons for refusing bail according to the Bail Act 1976 are that there are substantial grounds for believing that the defendant (1) will abscond; (2) will commit further offences whilst on bail; or (3) will interfere with witnesses. Conditions may be applied to the grant of bail, such as living at a particular address or, rarely, paying an amount into court or having someone act as surety. Release on bail is sometimes referred to as police bail, where the release was by the police rather than by a court. The alternative to being granted bail is being remanded into custody (also called being held on remand). In America, every accused person is entitled to a hearing at which evidence relevant to his individual case is considered to determine the amount of bail necessary. No precise rule can be laid down that will determine the amount of bail required in any particular instance. Bail is to be fixed according to the circumstances of each case. The matter is generally one for the sound discretion of the trial court. Although the determination of the trial court is subject to the review in the appellate courts for abuse of discretion, ordinarily the appellate courts will not interfere if the amount set by the trial court is reasonable and not excessive. The amount of a bond should, of course, be sufficient to assure the attendance of the defendant upon the court when it is required. The bond should be fixed in such amount that will exact vigilance on the part of the sureties to see that the defendant appears in court when called.[6] Both the Federal Constitution and state constitutions contain provisions against excessive bail. Bail set at an amount higher than reasonably calculated to insure that the accused will appear to stand trial and submit to sentence if convicted is excessive, and falls within the proscription of the Federal Constitution if set by a federal court, or of the particular state's constitution if set by a state court. But no hard-and-fast rules for determining what is reasonable bail and what is excessive bail have been laid down. That the bail is reasonable which, in view of the nature of the offense, the penalty attached to the offense, and the probability of guilt of defendant, seems no more than sufficient to secure attendance of the defendant.[7] The amount of bail, in and of itself, is not finally determinative of excessiveness. What would be reasonable bail in the case of one defendant may be excessive in the case of another.[8] As indicated below, such matters as the past criminal record of the defendant, and the nature of the crime committed and the punishment therefore, are material factors in determining whether bail is excessive. Where two or more cased are pending against a defendant, the fact that bail in one case, considered by itself, is reasonable, does not prevent the collective amount required in the several cases from being excessive. The gist of the problem confronting a court in setting the amount of bail is to place the amount high enough to reasonably assure the presence of defendant when it is required, and at the same time to avoid a figure higher than that reasonably calculated to fulfill this purpose, and therefore excessive. The general rule in federal courts is to try to strike a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction, under the circumstances surrounding each particular accused.[9] In other words, in determining the amount of bail, the good of the public as well as the rights of the accused should be kept in mind. The Bail Reform Act of 1966 provides for the release of defendant on his personal recognizance or upon execution of an unsecured appearance bond in an amount specified by the judicial officer before whom he appears, unless the officer determines, in the exercise of his discretion, that such release will not reasonably assure the appearance of defendant as required, in which event specified conditions of release which will reasonably assure defendant's appearance for trial may be imposed. The Bail Reforms Act, 1966 was initiated by President Johnson who felt that under the Federal Rules, bail in an amount higher than reasonably calculated to be necessary to assure the presence of the accused is excessive. It has been stated that the factors to be taken into consideration in determining the amount of bail are: (1) ability of the accused to give bail,

(2) nature of offense, (3) penalty for the offense charged, (4) character and reputation of the accused, (5) health of the accused, (6) character and strength of the evidence, (7) probability of the accused appearing at trial, (8) forfeiture of other bonds, and (9) whether the accused was a fugitive from justice when arrested. [10] That the accused is under bond for appearance at trial in other cases should also be considered. A major factor in determining the amount of bail in a current matter is the character and former criminal record of the defendant. It has been held, however, that the criminal activities and tendencies of a person applying for bail on a charge of vagrancy do not justify the fixing of bail at an excessive amount for the purpose of keeping him in jail. In determining the amount of bail, voluntary surrender may be considered as an indication that the defendant has no intention of absconding from justice. On the other hand, it is also proper, in setting a higher bail figure, to take into consideration the fact that at the time of arrest the accused was a fugitive from justice, or the fact that the defendant has previously absconded while under indictment. Even where bail is a matter of right, the fact that a person has previously forfeited bail is a factor to be considered in determining the amount of bail; in such a case bail may be set in such amount as will reasonably assure the presence of the defendant at court, although bail may not be refused altogether.[11] In setting the bail, the court may also consider the behavior or misbehavior of the defendant during parole from prison on a previous criminal conviction. The probability of the establishment of guilt at the trial, or the existence of doubt as to the guilt of the accused, is a proper consideration in determining the amount of bail. Hence a court, in determining the amount of bail, may consider the character and strength of the evidence by which the crime charged is supported. A court should give some regard to the prisoner's pecuniary circumstances, since what is reasonable bail to a man of wealth may be equivalent to a denial of the right to bail if exacted of a poor man charged with a like offense.[12] An accused cannot be denied release from detention because of indigence, but is constitutionally entitled to be released on his personal recognizance where other relevant factors make it reasonable to believe that he will comply with the orders of the court.[13] However, bail is not rendered excessive by the mere inability of the accused to procure bail in the amount required. In other words, the extent of the pecuniary ability of the accused to furnish bail in not controlling, if it were, the fixing of any amount, no matter how small, where the accused had no means of his own and no friends who were able or willing to become sureties for him, would constitute a case of excessive bail, and would entitle him to got at large on his own recognizance. It is the incarceration of those individuals who cannot meet established money bail requirements, without meaningful consideration of other possible alternatives, which infringes on both due process and equal protection requirements. The current American position is stated as follows in a standard treatise "There is power in the court to release the defendant without bail or on his own recognition." The Legal Position in India The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as follows: " Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence". Further, ss. 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C.. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker sections of society. The unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their callous attitude towards the poor.

According to the 78th report of the Law Commission as on April 1, 1977, of a total prison population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trials. For specific jails, some other reports show: Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per cent under-trials; Assam, Tripura and Meghalaya-66 per cent under-trials. One of the reasons for this is, as already mentioned above, is the large scale poverty amongst the majority of the population in our country. Fragmentation of land holdings is a common phenomenon in rural India. A family consisting of around 8 ? 10 members depends on a small piece of land for their subsistence, which also is a reason for disguised unemployment. When one of the members of such a family gets charged with an offence, the only way they can secure his release and paying the bail is by either selling off the land or giving it on mortgage. This would further push them more into the jaws of poverty. This is the precise reason why most of the undertrials languish in jail instead of being out on bail. Judicial Trend An overview of the following cases highlight the adverse condition of the poor with regard to the unjust bail system in India. In State of Rajasthan v Balchand [14], the accused was convicted by the trial court. When he went on appeal the High Court, it acquitted him. The State went on appeal to the Hon'ble Supreme Court under Art. 136 of the Constitution through a special leave petition. The accused was directed to surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose. In Moti Ram and Ors. v State of M.P [15], the accused who was a poor mason was convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as his property was in the adjoining village. MR went on appeal once more to the apex court and Justice Krishna Iyer condemned the act of the CJM, and said that the judges should be more inclined towards bail and not jail. In Maneka Gandhi v Union of India [16], Justice Krishna Iyer once again spoke against the unfair system of bail that was prevailing in India. No definition of bail has been given in the code, although the offences are classified as bailable and non-bailable. Further Justice P.N.Bhagwati also spoke about how unfair and discriminatory the bail system is when looked at from the economic criteria of a person this discrimination arises even if the amount of bail fixed by the magistrates isn't high for some, but a large majority of those who are brought before the courts in criminal cases are so poor that they would find it difficult to furnish bail even if it's a small amount. Further in Hussainara Khatoon and others v. Home Sec,State of Bihar [17] , the Court laid down the ratio that when the man is in jail for a period longer than the sentence he is liable for then he should be released. Conclusion A perusal of the above cases highlights the strong anti-poor bias of the Indian criminal justice system. Even though the courts in some cases have tried to intervene and also have laid down certain guidelines to be followed but unfortunately nothing has been done about it. There is also a strong need felt for a complete review of the bail system keeping in mind the socio-economic condition of the majority of our population. While granting bail the court must also look at the socio-economic plight of the accused and must also have a compassionate attitude towards them. A proper scrutiny may be done to determine whether the accused has his roots in the community which would deter him from fleeing from the court. The court can take into account the following facts concerning the accused before granting him bail: (1) The nature of the offence committed by the accused. (2) The length of his residence in the community. (3) His employment status history and his financial condition. (4) His family ties and relationships. (5) His reputation character and monetary conditions. (6) His prior criminal records, including any record or prior release on recognizance or on bail. (7) Identity of responsible members of the community who would vouch for his reliability. (8) The nature of the offence charged and the apparent probability of conviction and the likely sentence in so far as

these factors are relevant to the risk of non-appearance. (9) Any other factors indicating the ties of the accused to the community or barring on the risk of willful failure to appear. The Way Forward It is thought that from the various schemes the government operates for rural employment, loans to farmers etc, a portion of the funds which it transfers to the panchayat for developmental work of the same should be set aside and kept to meet the bail amount for undertrials belonging to the particular panchayat / block. The utilization of this fund would be in the hands of the elected leaders of the society with the representative of district collector / district magistrate being a part of the system. This would, go a long way in securing freedom for scores of undertrials who would then be able to contribute to society thereby playing an important role and forming part of the national mainstream. Such a scenario will have the effect of reducing the burden of over-crowding in jail. The setting up of separate jails, or at any rate isolating undertrials from convicts, would prevent hardened criminals from exercising their deleterious influence over undertrials. Such segregation would also change the attitude of jail authorities and society at large towards under trials. The under trials who have been charged with petty crimes can further be put in reformative homes instead and asked to do community service till the time they are released on bail. Elementary education facilities must be granted to those under trials who are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the hands of a few, but, should be available to the masses including those who do not have the financial capacity to afford it. End Notes 1. Law lexicon by Ramanth Iyer, (3rd ed). 2. Black's Law Dictionary 177 (4th ed.) 3. Legislation has recently been enacted which, when brought into force, will require magistrates? courts and the Crown Court to give reasons for their decisions where they grant bail after hearing representations from the prosecutor in favour of withholding bail (Criminal Justice and Police Act 2001, s 129). Such a requirement has the potential to promote thoughtful decision-making and the proper consideration of the risks that a defendant might pose if granted bail. 4. Stone's Justices? Manual 2000, para 1-432. 5. H W R Wade and C F Forsyth, Administrative Law (8th ed 2000) pp 918?919. 6. State v Chivers, 198 La 1098, 5So 2d 363. 7. Braden v Lady (Ky) 276 SW2d 664. 8. Stack v Boyle, 342 US 1, 96 L Ed 3, 72 S Ct 1; Bennett v United States (CA5 Fla) 36 F2d 475. 9. Spector v United States (CA9 Cal) 193 F2d 1002; United States ex rel. Rubnistein v Mulcahy (CA2 NY) 155 F2d 1002. 10. Delaney v Shobe, 218 (inability to give bond in the amount set is not sufficient reason for holding the amount excessive). 11. In addition to a higher bail, the court may require additional sureties after a prior forfeiture of bail. Wallace v State, 193 Tenn 182, 245 SW2d 192, 29 ALR2d 941. 12. McCoy v United States, 123 App DC 81, 357 F2d 272; Beddow v State, 259 Ala 651, 68 So 2d 503; People ex rel. Sammons v Snow, 340 III 464, 173 NE 8, 72 ALR 798; Green v Peit, 222 Ind 467, 54 NE2d 281; State v Mastrial, 266 Minn 58, 122 NW2d 621, certden 375 US 942, 11 L Ed 2d 274, 84 S Ct 349; Royalty v State (Miss) 235 So 2d 718; Ex parte Royalty v State (Miss) 235 So 2d 718; Ex parte Malley, 50 Nev 248, 256 P 512, 53 ALR 395. 13. Bandy v United States (US) 7 L Ed 9, 82 S Ct 11 (per Douglas J., as individual justice). 14. AIR 1977 SC 2447 15. AIR 1978 SC 1594 16. AIR 1978 SC 571 17. AIR 1979 SC 1360

WHY BAIL?
Before actually determining the place of bail within human rights framework as conferred by the Constitution, it is important to examine the object and meaning of bail, such that an analysis of these fundamental objects and change therein may reveal a change. The object detention of an accused person is primarily to secure her/his appearance at the time of trial and is available to receive sentence, in case found guilty. If his/her presence at the trial could be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to deprive the accused of his liberty during pendency of criminal proceedings. Thus it is important to note the relevant provisions enshrined in the Universal Declaration of Human Rights:Article 9- No one shall be subjected to arbitrary arrest, detention or exile. Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention.[3] DEFINITION There is no definition of bail in the Criminal Procedure Code, although the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C. Bail has been defined in the law lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation. What is contemplated by bail is to procure the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgement of the court.[4] Thus having discussed the object and meaning of the concept of bail, it becomes important to fit this concept within the criminal justice jurisprudence as conferred by the constitution of India.

RIGHT TO BAIL AND ARTICLE 21S RIGHT TO PERSONAL LIBERTY


The right to bail is concommittant of the accusatorial system which favours a bail system that ordinarily enables a person to stay out of jail until a trial has found him/her guilty. In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment. The right of police to oppose bail, the absence of legal aid for the poor and the right to speedy reduce to vanishing point the classification of offences into bailable and non-bailable and make the prolonged incarceration of the poor inevitable during the pendency of investigation by the police and trial by a court. The fact that undertrials formed 80 percent of Bihars prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the undertrials exceeded the period of imprisonment prescribed for the offences they were charged with- these appalling outrages were brought before the Supreme Court in Hussainara Khatoon v. State of Bihar[5]. Justice Bhagwati found that these unfortunate undertrials languished in prisons not because they were guilty but because they were too poor to afford a bail. Following Maneka Gandhi v. Union of India[6], he read into fair procedure envisaged by Article 21 the right of speedy trial and sublimated the bail process to the problems of the destitute. He thus ordered the release of persons whose period of imprisonment had exceeded the period of imprisonment for their offences. He brought into focus the failure of the magistrates to respect section 167(2) of Cr.P.C. which entitles an undertrial to be released from prison on expiry of 60 days or 90 days as the case may be. In Mantoo Majumdar v. State of Bihar[7] the Apex Court once again upheld the undertrials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison. The court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of the undertrials, remanded by them to prison. The Court deplored the delay in police investigation and the mechanical operation of the remand process by the magistrates insensitive to the personal liberty of undertrials, and the magistrate failure to monitor the detention of the undertrials remanded by them to prison.[8] In Kadra Pahadiya[9] the Supreme Court observed that the Hussainara judgment had not brought about any improvement and reiterated that..in Hussainara Khatoon it was held that the right to speedy trial is implicit, in the rights enshrined in Article 21 and the Court, at the instance of an accused, who was denied this right, is empowered to give instructions

to the State Governments and to other appropriate authorities to secure this right of the accused. In order to make this right meaningful in Bihar, the Supreme Court proceeded to pass orders to ensure institutional improvement in order to make speedy trial a meaningful reality. The Court therefore indicated the remedy in the event of denial of the accusers right to personal liberty enshrined in Article 21 namely that the Supreme Court may be approached in order to enforce the right and the Supreme Court in pursuance of its constitutional power may direct the State Government and other appropriate authorities accordingly. Thus order requesting High Court to furnish the Supreme Court with the number of Sessions Courts in Bihar, the norms of disposals fixed by the High Court; the steps, if any, taken to ensure compliance with those norms and considering the number of pending sessions cases, the adequacy of number of session court in Bihar. In regard to prisoners awaiting commitment, Court might suo motu consider granting of bail in accordance with the above mentioned principle laid down in Hussainara. The travails of illegal detainees languishing in prisons, who were uniformed, or too poor to avail of, their right bail under section 167 Cr.P.C. was further brought to light in letters written to justice Bhagwati by the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar[10] and Sant Bir v. State of Bihar[11]. The court recognized the inequitable operation of the law and condemned it- The rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of status quo but it exist also for the poor and the downtrodden and it is solemn duty of the court to protect and uphold the basic human rights of the weaker section of the society. Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of bail and unawareness of their right to bail, to undertrials and as such violation of their right to personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the majority of poor and to make human rights of the weaker sections a reality.

RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID ARTICLES 21 AND 22 READ WITH ARTICLE 39A
Article 21 of the Constitution is said to enshrine the most important human rights in criminal jurisprudence. The Supreme Court had for almost 27 years after the enactment of the Constitution taken the view that this Article merely embodied a facet of the Diceyian concept of the rule of law that no one can deprived of his life and personal liberty by the executive action unsupported by law. If there was a law which provided some sort of procedure, it was enough to deprive a person of his life and personal liberty. However Maneka Gandhi v. Union of India[12] marked a watershed in the history of constitutional law and Article 21 assumed a new dimension wherein the Supreme Court for the first time took the view that Article 21 affords protection also against legislation (and not just executive action) and no law can deprive a person of his/her life or personal liberty unless it prescribes a procedure which is reasonable, fair and just it would be for the court to determine whether the procedure is reasonable, fair and just ; if not, it would be struck down as invalid. In Hussainara Khatoons case the Apex Court, inter alia, observed that the undertrials languishing in jail were in such a position presumably because no action application for bail had been made on their behalf either because they were not aware of their right to obtain release on bail or on account of their poverty they were unable to furnish bail. The present law of bail thus operates on what has been described as a property oriented approach. Thus the need for a comprehensive and dynamic legal service programme was left in order to revitalize the bail system and make it equitably responsive to needs of poor prisoners and not just the rich. In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to consult and to be defended by legal practitioner of his choice, but according to the interpretation placed on this provision by the Supreme Court in Janardhans case[13] this provision does not carry with it the right to be provided the services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a mandate that the state shall provide free legal service by suitable legislations or schemes or any other way, to ensure that opportunities for justice are not denied to any citizen by reason of economic or other disabilities this however remains a Directive Principle of State Policy which while laying down an obligation on the State does not lay down an obligation enforceable in Court of law and does not confer a constitutional right on the accused to secure free legal assistance. However the Supreme Court filled up this constitutional gap through creative judicial interpretation of Article 21 following Maneka Gandhis case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra[14] and Hussainara Khatoons case that a procedure which does not make legal services available to an accused person who is too poor to afford a lawyer and who would, therefore go through the trial without legal assistance cannot be regarded as reasonable, fair and just. It is

essential ingredient of reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through the court process should have legal services made available to him. The right to free legal assistance is an essential element of any reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the language of Article 21 and held that this is. a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.

RIGHT TO BAIL (SECTION 167(2) CR.P.C) AND DELAY IN INVESTIGATION


With the incorporation of section 167(2) Cr.P.C. the investigating agency is required to complete the job of investigation and file the charge-sheet within the time limit of either 60 or 90 days as the case may be. In case the above is not completed within the definite period a most valuable right accrues to the accused. The accused is, in that eventuality, entitled to be released on bail. It would be seen that the whole object of providing for a prescribed time limit under section 167(2) Cr.P.C. to the investigation agency to complete the investigation was that the accused should receive expeditions treatments at the hands of the criminal justice system, as it is implicit in Article 21 that every accused has right to an expeditions disposable of his case. Section 167 has been criticized[15] with respect to the fact that the prescribed time limit relates only to the investigation aspect and does not touch other segments of the criminal-justicesystem, thus the object (of speedy trial), behind section 167 stands frustrated. Moreover section 167(2) is seen to paradoxically serve as a way of grant of liberty to some dangerous criminals who would otherwise not be able to get it under our system (for example they may not be otherwise entitled to bail by virtue of nature and gravity of offence.) thus the utility of section 167 Cr.P.C. may be thus questioned in the light of above, as to whether it really serves the purpose enshrined in Article 21 of the Constitution, particularly in the light of viewing the criminal justice system as whole not confined solely to investigation- it therefore follows that to achieve the right to speedy trial (as enshrined in section 163(2) Cr.P.C.) it is important to overhaul the system in its entirety and not parts of the system in isolation.

CONCLUSION
This paper has attempted to explore the various dimensions of the RIGHT TO BAIL within the constitutional framework. It is of prime significance to note that the very concept of bail arises from a presumption, of the accusatorial system, of innocent till proven guilty. As such an individuals personal liberty which is a fundamental right under Article 21 of the Constitution, cannot be compromised until he/she is convicted and thus proven guilty. Thus he/she is allowed to furnish security (in the form of bail) to secure the accuseds presence for trial while enabling him/her to retain his/her personal liberty. However, as was brought to light, in famous Hussainara Khatoon case, personal liberty as operating within the domain of the criminal justice system remains the cherished prerogative of the rich. While those who can ill afford legal counsel to inform them to their right to bail. (i.e. in non-bailable offences- section 2(a) Cr.P.C.) and consequently are unable to pay the amount, are relegated to languish in prisons, often for terms longer than the period of punishment prescribed for the offence they are charged with. Thus in order to extend the fundamental right of personal liberty under Article 21 of the Constitution, to even the economically weaker sections of the population (who form a majority of the prison population), the right to free legal aid must be made a constitutional right. Thus the decision in the same case, also in M. H. Hoskot v. State of Maharashtra making legal aid a constitutional mandate under Article 21 is welcome in paving the way towards upholding human rights in criminal jurisprudence. However in order to ensure ones right to a speedy trial-and thus consequently minimum infringement on the accuseds right to personal liberty an overhaul of the criminal justice system in its entirely is called for. A mere emphasis on investigation machinery by prescribing a time limit as per section 167(2) Cr.P.C. will not suffice to attain the desired object. Moreover it is interesting to note that on lapse of the prescribed period bail as of right accrues to the accused, even if he is a accused of a grave, heinous non-bailable offence and in other circumstances would have definitely been refused to bail. Thus the backlash of section 167(2) as well as its possible effectiveness ought to be considered in the light of its object of ensuring a right to speedy trial under Article 21 of the Constitution. Thus the law of bails must continue to allow for sufficient discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of criminal justice system and to sensitise the same to the needs of those who must otherwise be condemned to languish in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail matters or to furnish the bail amount itself.

New Bail Laws 2008 - s.22A Bail Act 1978

A seminar paper presented to the NSW Criminal Defence Lawyers Association, 16 April 2008 by Andrew Haesler SC Deputy Senior Public Defender

Introduction The newly amended s. 22A of the Bail Act 1978 Sec 22A commenced operation on the 14.12.2008 22A Power to refuse to hear bail application (1) A court is to refuse to entertain an application for bail by a person accused of an offence if an application by the person in relation to that bail has already been made and dealt with by a court, unless: (a) the person was not legally represented when the previous application was dealt with, and the person now has legal representation, or (b) the court is satisfied that new facts or circumstances have arisen since the previous application that justify the making of another application. (2) A court may refuse to entertain an application in relation to bail if it is satisfied that the application is frivolous or vexatious. (3) The Supreme Court may refuse to entertain an application in relation to bail if the bail application comprises a bail condition review that could be dealt with under section 48A by a magistrate or authorised justice or the District Court. (4) Except as provided by subsection (3), this section does not affect the power of a court to review a decision in relation to bail under Division 2 of Part 6 or the right of a person to request such a review. (5) If a court has previously dealt with an application for bail for a person accused of an offence, a further application to a court for bail in relation to that offence may not be made by a lawyer on behalf of that person, unless the lawyer is satisfied that: (a) the person was not legally represented when the previous application was dealt with, or (b) new facts or circumstances have arisen since the previous application that justify the making of another application. (6) In this section, a reference to a court does not include a reference to an authorised justice exercising the functions of a court. has had an immediate and dramatic affect on the number of prisoners and child detainees on remand. Baxter Juvenile detention Centre is full. Kids are doubling up in cells meant for one and are sleeping in the spare visitors rooms. The adult gaol population reached 9,749 prisoners on 23 March 2008, a new record. There are 2,456 people on remand and, on average, over 50 remandees and sentenced prisoners being kept overnight in police cells. Corrective Services Offender Population Report for week ending 6 April 2008 Interestingly, on 29 January 2008 there were 2,393 remandees in custody. The increase has not been as great as I had expected, though it is clearly trending upward. When the Bail Amendment Bill 2007 was introduced the Attorney-General was unapologetic about the increase:

New South Wales has the toughest bail laws in Australia. Over the last few years we have cracked down on repeat offenders Those types offenders now have a much tougher time being granted bail under our rigorous system. These extensive changes have delivered results. There is no doubt that the inmate population, particularly those on remand, has risen considerablyIn fact the number of remand prisoners has risen by 20 percent in the last 3 years alone and new gaols are being opened to accommodate the increase. AttorneyGeneral Mr Hatzistergos, Legislative Assembly Second reading Speech, 17/10/2007

The speech indicated a complete change in philosophy behind the original Bail Act which when it was introduced in 1978 was premised on a persons right to liberty. Now the basis is the communitys right to protection. The new section circumscribes a Courts ability to hear repeat bail applications. Section 22A says that the court "is to refuse" to entertain a bail application if an application in relation to that bail has already been made and dealt with by a court. Exceptions are limited to cases where the applicant was not previously legal represented, or where new facts or circumstances have arisen which satisfy the court that a new bail application is justified. A Court can also refuse frivolous or vexatious bail applications. This proviso was previously limited to Supreme Court applications (the old s.22A) and applications for review (s.48(7). Obligations are also imposed on a persons legal representative. A lawyer cannot make an application for bail on behalf of a client where a court has previously dealt with that person's bail application, unless the lawyer is first satisfied that the person did not previously have legal representation or new facts or circumstances have arisen which justify a new bail application. Transitional provisions The amendment to s 8B extends to a grant of bail to a person for an offence committed before 14.12.2007, but only if the person is charged on or after 14.12.2007: s 36. The amendments relating to the court's power to refuse to hear bail applications extends to cases where an accused person's previous bail applications have been dealt with by the court before 14.12.2007: s 37. The changes were said by the Attorney-General to be balanced. Attorney-General Mr Hatzistergos, Legislative Assembly Second reading Speech, 17/10/2007 The Attorney justified the changes by reference to cost and the problem of unnecessary and repeated applications by well funded litigants. He spoke of the anguish to victims of repeated applications and the danger of Magistrate shopping. He assured parliament that unrepresented applicants would get a second go if they subsequently got a lawyer. What he didnt say was that the changes ignored the practical reality of life in a Magistrates Court On a bad day a bail Court can have over 50 matters to be dealt with by one Magistrate and one Duty Solicitor: tolerable if you know there is a safety net of a right to a fresh application: intolerable if that right is removed. and the potential impact of an ill prepared application. The provisions are similar to those in s. 18 of the Victorian Bail Act 1977. The Victorian Law Reform Commission recently reviewed the Act. Victorian Law Reform Commission, Final Report, Review of the Bail Act, August 2007 The Commission recommended some amelioration of the harshness of the provision by allowing a fresh application to be made within 2 days of an initial refusal. The problem, recognised in Victoria, has already arisen in New South Wales. Where a person is refused bail on a weekend after being represented by a duty Solicitor, Magistrates have held that they cannot hear a further application. I have been asked to talk generally about the practical operation of the new provision and in particular to look from a defence perspective at strategies, which might ameliorate the impact of the changes.. The Bail Act 1978 Bail means, authorisation to be at liberty under this Act, instead of in custody: s. 4 Every person arrested has a right or is entitled to or eligible to be granted bail (sections 6, 8 & 13). After arrest, if police bail is not granted, a person must be brought before a Magistrate or Authorised Justice so that the question of their bail can be determined (s. 20). When the Act was introduced s. 22 said that there was no limit to the number of applications for bail. The recent changes removed this provision. Then, as now s.22, refers to the Regulations, which make provision for applications. Clause 8 of the Regulations refers to application in relation to:

A grant of bail, A review of bail, and An alteration of conditions. Section 28 gives or reinforces the inherent power of the Supreme Court to grant Bail. Section 45 gives the Supreme Court power to review bail decisions. The Forms and Regulations provide for applications and requests for review to be made either when a person is otherwise appearing before a court or by the lodging of the application/request Form. Applications and Reviews There is a distinction made in the Bail Act between Applications and Reviews. Sections 22 and 22A and clause 8 of the Bail Regulations 1987 govern applications. Division 2 of Part 6 of the Bail Act and clause 8 and 22 of the Regulations govern Reviews by Courts. When it comes to applying s.22A the distinction between an Application and a Review is critical; for, as I set out below, except in one limited way, s. 22A does not apply to requests for review. What distinguishes the two concepts is however, unclear. The Act, Regulations and the Forms attached to the Regulations do not always make any meaningful distinction. Often they are treated as synonymous. Similarly, the Authorities I have reviewed do not explore or explain the distinction. The Act gives to an accused the right to make any number of applications for bail and that right is contained in s 22(1). An accused can also make applications to have a bail determination reviewed: s 48. Any such application by an accused has, in my view, because of the presence of s 48(1)(b) and s 48(5), the same effect as a fresh application. Reynolds J in R v Hammill (1986) 25 A Crim R 316. In Robert & Turkmani (1997) 97 A Crim R 456, the Court of Appeal remarked on the practice when application pursuant to s.28 was made during a trial of declining jurisdiction unless circumstances justified the reconsideration of bail in which case the application was removed to the Court of Appeal (at 457). In DPP v Cassaniti [ 2006] NSWSC 1103 Basten JA addressed a number of problems relating to reviewing decisions of a judge at a similar level in the hierarchy but did not discuss the present problem. The terms Application and Review are often used interchangeably, for example: 1. Form 3 puts both applications and requests for review on the same page and uses an identical format for both. 2. Form 4 is the Notice that is given about review of Bail decisions. It says (clause 2) that: A bail decision includes a refusal to grant bail, a granting of bail conditionally or unconditionally and a dispensing with bail. There are two opposing views about the distinction between Application and Review. The first is based on the definition of bail in s. 4. I understand Chief Magistrate Henson put this view on 1 March 2008 at a Young Lawyers CLE. An Application for bail is an application for authorisation to be at liberty instead of being in custody. If bail is refused and a person is denied their liberty then it is argued a fresh Application is required. Any reconsideration of an initial refusal must, because there is a request that the person have their liberty, be an Application for bail. An Application for bail can thus only be made if the applicant does not already have bail. An example can be found in s.30AA where following a conviction or sentence appeal bail can only be granted in limited and exceptional circumstances. A Review only becomes necessary once bail is granted, for example: if conditions need to be changed or if the prosecution want the Court to reconsider the decision to grant bail. There can be no review of a decision not to grant bail as that person does not have any bail to be reviewed. Support for this view comes from s.22A itself, as the section would have very little work to do if any bail

decision at all could be reviewed without penalty. If a person who was bail refused had a choice; Application or Review, they would always chose Review and thus avoid the strictures of s.22A. The second alternative is that the scheme of the Act provides precisely for that choice. Apart from an initial Application a person can chose to apply afresh for bail or have their earlier bail decision reviewed. The prosecution can ask for a review (s.48). The breadth of this power is made clear by s.44 (2) Except as prescribed by the regulations and subject to this Division, a magistrate may review any decision made by any authorised officer, magistrate (including the reviewing magistrate) or authorised justice in relation to bail. (Emphasis added) And s. 45(1): Subject to this Division, the Supreme Court may review any decision of any authorised officer, magistrate or authorised justice or of the District Court, Land and Environment Court, Industrial Relations Commission in Court Session or Supreme Court (however constituted) in relation to bail. (Emphasis added) Support for this proposition also comes from Forms 3 and 4 and Clause 8. If a review were limited to case where a person already had a grant of bail neither Form nor Clause 8 would be set out as they are. When a Court decides an initial Application, whether it decides to grant bail or refuse it that decision can be reviewed or alternatively a fresh application made. For example: if bail is refused in the Local Court, a fresh Application can be made to the Supreme Court (s. 22) or a request made that the Supreme Court review the original decision (s. 48). Only if there is no bail decision such as when a person comes before a Court or has been convicted or sentenced is it necessary for a fresh Application to be made. As a general rule where a decision can be reviewed that decision includes both affirmative and negative results. It would be odd indeed if only a decision to grant bail could be reviewed by an applicant but the decision to refuse it required a fresh application. If my opinion is correct then apart from an initial Application there is little utility in making a fresh Application for a grant of bail. In most cases it would be more opportune to seek a review of the initial refusal, particularly as Reviews are hearings de novo. Pakis (1981) 3 A Crim R 132 at 136-137 (OBrien CJ of Cr D): Hamill (1986) 25 A Crim R 316; & R v Kaddour & R v Turkmani (2000) 119 A Crim R 204 However, as the scheme of the Act allows this interpretation, the right to a review should not be read down. Why is the distinction important? Section 22A applies to both applications and reviews. This is made clear by the reference in s. 22A(1) to an application by the person in relation to that bail Sec 22 is similarly broadly worded. Prior to recent changes, the old s. 22A restricted appeals to the Supreme Court. (1) Despite section 22 (1) and (2), the Supreme Court may refuse to entertain an application by a person in relation to bail if: (a) an application by the person in relation to that bail has already been made and dealt with by the Supreme Court (however constituted), and (b) the Court is not satisfied that there are special facts or special circumstances that justify the making of the application. (2) Despite section 22 (1) and (2), the Supreme Court may refuse to entertain an application in relation to bail if the bail application comprises a bail condition review that could be dealt with under section 48A by a magistrate or justice or the District Court. It contained a similar first sentence to the current section. It had been considered by Hunt CJ at CL in R v Kissner, unreported, NSWSC, 17 January 1992, and Justice Studdert in R v Turkmani & Kaddour [2000] NSWSC 49. Both judges were of the opinion that the section applied equally to applications and reviews.

The operation of s 22A is not limited to those situations where a previous application for bail has been refused. It need only be an application made in relation to that bail. (Studdert J citing Hunt J at [10]). The new s. 22 takes up the term application in relation to bail and clearly applies to both Applications and Reviews. The new s. 22A must therefore be interpreted on the basis that those decisions were known to the legislature. If this is presumed, s. 22A (4) is puzzling. It reads: Except as provided by subsection (3), this section does not affect the power of a court to review a decision in relation to bail under Division 2 of Part 6 or the right of a person to request such a review. Subsection 3 relates only to the Supreme Courts powers to refuse applications that could be better dealt with under s. 48. Section 22A(4) thereby reverses what was said in Kissner and Turkmani. Section 22A thus has no effect on Reviews pursuant to Division 2 of Part 6. If this is the case its negative consequences would be considerably reduced. This interpretation is at odds with the stridency with which the Attorney General spoke when he introduced the Bail Act Amendment Bill 2007. At no stage did he mention Reviews. He spoke only of bail hearings. Emphasis added The words of the section are quite clear: s.22A does not affect the power of a court to Review a decision in relation to bail under Division 2 of Part 6 or the right of a person to request such a review except as provided for by s. 22A(3). Division 2 of Part 6 allows a person who is before a court to ask that their bail determination be reviewed. They can apply also from gaol to be brought to Court for a bail review or request that the Court sit to hear a review. A review can lead to the granting of bail where it has previously been refused or to the variation of bail conditions. The prosecution can also apply for a review. A review is requested (this word comes from s.22A (4) and s. 48(1)(a). A M agistrate can review their own decision (s 44(2)). It appears a Supreme Court judge can do so as well (s. 45(1)). If the new s.22A only applies to prevent fresh applications for bail where a person has been refused bail they should not to apply again but request a review of the earlier decision. If they do s. 22A will have no effect. Where does this leave us? There are two alternatives:

A. A person who has been refused bail must apply again to the Court that refused bail or the Supreme Court. They cannot seek a review of a decision to refuse bail. Section s.22A applies to every subsequent application (unless at the first the person was unrepresented). Section 22A is explicit. After the first application there can be no more, absent new reasons or circumstances. Lawyers have a statute imposed duty not to apply for bail on their clients behalf unless new facts or circumstances have arisen (s.22A (5) (b)). or B. A person who has been refused bail can request a review of the decision to refuse bail pursuant to Division 2 of Part 6. Section s.22A has no application to that request.

Conclusion If option A is preferred; where there has been a refusal of bail, a review is not possible and only a fresh application that complies with s.22A will be allowed to be heard by any Court. As a consequence s.22A will significantly restrict the number of times a person refused bail can seek their release for they (and their lawyers) will be obliged to demonstrate that new facts or circumstances have arisen. While the argument that a refusal of bail is not amenable to Review is arguable, in my opinion alternative B better fits the scheme of the Act and is to be preferred. If my opinion is correct, the Bail Act offers two alternatives when an initial application is refused, either: 1. A fresh Application the Court or the Supreme Court, or 2. A Review of the original decision by the Court or the Supreme Court. Section 22A only applies to Applications, as it excludes most reviews from its operation because of the clear words of s. 22A (4). How should practitioners approach the Court? Where a person has been refused bail they should be advised to request a review of the previous decision pursuant to clause 8 of the Regulations either in person or by application on Part 2 of Form 3. As long as the request is not frivolous or vexatious a Court is obliged to hear it. A number of suggestion to avoid the consequences of s.22A have been made by Solicitors who regularly appear in the Local Court. Paul Hayes of the LAC Bail Section has suggested that where police or an Authorised Officer initially refused Bail that for the first Court appearance a request for Review of that earlier decision be made rather than an application. I doubt if the Courts will accept this blatant attempt to subvert the legislative intent of s.22A but it is worth a try. The Court is entitled to say that this is the first application before a Magistrate and is to be treated as such. It is not necessary to attempt by artificial means or language to avoid the consequences of s.22A. The section is quite clear: Applications for bail after a first attempt are to be limited. The legislature has however clearly left the Review option open, by preserving the right of the parties to Review any decision made in relation to bail. Except reviews that could be dealt with pursuant to s. 48A (see s.22A (3) & (4)). Prior to the amendment, a practice had arisen where practitioners filed an Application for bail or made an Application for bail when in fact what they wanted was a Review of an earlier decision. As a consequence shorthand phrases such as bail applied for and bail not applied for bail refused were commonly used. Little attention was paid to what Forms, or form of words, were used as it made little difference to the procedures adopted or the outcome. This must change. Careful consideration must be given to the form in which Applications or Requests for review are made and the Form used if the application or request is in writing. When appearing for a person who has been refused bail practitioners must carefully spell out that they are not applying for bail but requesting a review of the earlier determination. Other problems I have not addressed the vexed question of what is new or fresh evidence. To put it sim ply those words must be given their ordinary meaning. As the Victorian Law Reform Commission remarked most Magistrates in that State took a fairly liberal view of what was new or fresh. At 106 I trust NSW Magistrates will do the same. Submissions must ask that new or fresh be interpreted broadly and beneficially. I note that there is a limit on the number of Reviews an applicant can make as Reviews can be refused if they are frivolous or vexatious (s. 48(7))

Andhra CBI judge arrested in cash-for-bail case


Hyderabad, June 19 (IANS) The Anti-Corruption Bureau (ACB) in Andhra Pradesh Tuesday arrested suspended CBI judge T. Pattabhirama Rao in the cash-for-bail case involving former Karnataka minister Gali Janardhana Reddy. The ACB officials arrested him from his residence in the posh Banajara Hills neighbourhood here and took him to ACB headquarters. He is likely to be produced in the court later in the day. First Additional CBI judge Pattabhirama Rao was suspended May 31 after the Central Bureau of Investigation (CBI) found that he took bribe for granting bail to Janardhana Reddy in an illegal mining case. He allegedly granted bail in a Rs.5 crore deal with the relatives of Janardhana Reddy. The suspended judge was arrested three days after son Ravichandra and retired district judge T. V. Chalapati Rao were taken into custody. According to ACB officials, Rs.1.60 crore cash was recovered from five bank lockers belonging to Ravichandra and Rs 1.14 crore recovered from Chalapati Rao's brother Balaji Rao. The ACB had earlier arrested Yadgiri, a thug in Nalgonda district. Pattabhirama Rao and seven others including Janardhana Reddy's brothers Somasekhara Reddy and Suresh Babu, both legislators from Karnataka, were booked by the ACB after the case was transferred to it June 8. The judge granted bail May 11 to Janardhana Reddy. The bail order was last week set aside by the high court

Yeddyurappa, Somanna granted bail in land denotification case


By PTI - BANGALORE 20th June 2012 09:08 PM

Photos

On March 21, Lokayukta police probing the case had filed a 'B' report absolving Somanna of charges of 'misusing his position' in the case. (File/PTI)

Former Karnataka Chief Minister B S Yeddyurappa and Housing Minister V Somanna were today granted bail by a Lokayukta court in a case relating to alleged irregularities in denotification of land.

Yeddyurappa and Somanna appeared personally before special Lokayukta court judge N K Sudhindra Rao, who granted bail to them, Somanna's wife Shailaja and one, Lingaraju and posted the case to June 30 for further hearing.

On March 21, Lokayukta police probing the case had filed a 'B' report absolving Somanna of charges of "misusing his position" in the case, stating he was neither an MLA nor a minister during the period when the said land was denotified and therefore there was no case to proceed against him.

The others accused in the case, including Yeddyurappa, were also absolved of the charges. The' B' report was challenged by complainant Ravi Krishna Reddy on March 29.

On January 17, the Karnataka High Court had granted anticipatory bail to all the accused in the case.

The complainant had alleged Somanna used his position as a minister to secure denotification of 22 guntas (one gunta is about 1,086 sq ft) of land in Nagadevanahalli village for an educational institution run by his wife, despite the land having been acquired by Bangalore Development Authority.

After the Lokayukta court took cognisance of the complaint, all four moved the high court for anticipatory bail.

The then Chief Minister Yeddyurappa had allegedly ordered denotification of the land on the request of erstwhile land owner Lingaraju, according to the complaint.