The first part of section 497(1) is permissive and allows a person arrested to be released on bail who is accused of a non-bailable offence. The second part of section 497(1) contains a prohibition against the release of a person arrested for being accused of a non-bailable offence, and has come to be recognized as the prohibitory part of section 497 (i.e. the prohibitory clause). The prohibition is applicable in relation to a person who has been arrested after being accused of a non-bailable offence “punishable” with death or imprisonment for life or imprisonment for ten years. The operative word here is “punishable”.
The word “punishable” has been defined by Black’s Law Dictionary to mean “subject to a punishment” when used in relation to a person. The ordinary dictionary meaning of the word “punishable” therefore clarifies that in the event that an offence that a person has been charged with could possibly result in the punishment of ten years in prison such offence would fall within the prohibitory clause. Thus, any offence in relation to which punishment has been prescribed in the form of a range and it has been left to the court to determine the sentence in view of the facts of the case, but the maximum punishment that could possibly be awarded for such offence is ten years, would fall within the prohibitory part of section 497(1) of Cr.P.C. Simply put, it is the maximum punishment and not the minimum prescribed in relation to an offence under PPC that determines whether or not the accused is “punishable” for ten years and whether the offence in question falls within the prohibitory clause or not. At bail stage it is not for the court to try and predict the possible sentence that would be imposed on a person under arrest for being an accused of a non-bailable offence.
Section 497(1) provides a broad threshold to guide the courts in exercising their discretion in bail matters. Initially the prohibitory part of section 497(1) provided that a person was not to be released on bail if there appeared reasonable grounds for believing that he was guilty of a nonbailable offence that he had been charged with. The said proviso was amended and substituted in 1923 when the prohibition was limited to offences punishable with death or transportation for life. The provision was once again amended in 1974 and the prohibition in section 497(1) was extended to offences punishable with death or imprisonment for life or imprisonment for ten years. The legislative intent in view of the words used in section 497(1) is therefore unambiguous. In relation to offences which attract a maximum punishment of less than ten years, bail is granted as a matter of right.
However, in cases where a person has been arrested for a non-bailable offence the maximum punishment for which is up to ten years in prison, the court is required to determine, “if there appears reasonable grounds for believing that he has been guilty” of such offence. The Second proviso to section 497(1) places the responsibility of showing cause as to why an accused should not be released on bail upon the prosecution. Thus it is for the prosecution to satisfy the court that reasonable grounds do exist for supporting the belief that the accused is guilty of an offence punishable with up to ten years of imprisonment. In the event that the prosecution fails to do so the court can admit an accused to bail under section 497(1), even where he stands accused of a non-bailable offence punishable with death or imprisonment for life or imprisonment for ten years.
There is discretion vested in the court to release a person on bail who has been accused of an offence punishable with death or imprisonment for life or punishment up to ten years. But such discretion has to be exercised on the basis of whether or not the court has been convinced by the prosecution that sufficient material exists on record which satisfies the test of existence of reasonable grounds for the court to believe that the person is guilty of such offence which falls within the prohibitory clause.
The legislature has determined the scope of discretion vested in a court to release a person on bail who has been accused of a non-bailable offence. The legislature in balancing the interest of the State in prosecuting offenders and the rights of a person to liberty (till such time that he or she has been convicted after a fair trial) could have left only the most heinous offences within the prohibitory clause of section 497(1) of Cr.P.C. That would probably be in line with provisions of Articles 9 and 10A of the Constitution and the settled principle of fairness and justice that a person is presumed to be innocent until proven guilty. However, the legislature has not done so and has placed fetters on the right to liberty of a person who is accused of a non-bailable offence punishable for up to ten years in prison. The only discretion vested in the Court for purposes of bail in an offence falling under section 497(1) of Cr.P.C is for the court to satisfy itself that sufficient grounds exist to support a belief that the person arrested is guilty of an offence he has been charged. The court cannot give the words of section 497(1), and specially the word “punishable” used therein any meaning other than its ordinary textual meaning which inevitably means that given that punishment up to ten years imprisonment is prescribed in relation to a large number of offences, the persons accused of such offences are not entitled to bail as a matter of right.
The language of Section 497(1) of Cr.P.C might have been acceptable in a colonial State where the indigenous persons did not enjoy complete citizenship and fundamental rights and the State found it expedient to lock up anyone accused of a non-bailable offence. But the apex Court has repeatedly emphasized that every person is presumed innocent until proven guilty, that the benefit of any doubt must be granted to the accused, and that bail is not to be denied to an accused as punishment. Yet, the language of Section 497(1) of Cr.P.C vests in a Court the limited discretion to determine if there exist “reasonable grounds for believing” that the accused is “guilty”. The standard applicable is that of a reasonable man and the language of Section 497(1) of Cr.P.C does not require the prosecution to satisfy the “beyond reasonable doubt” standard applicable for securing a conviction. In other words, Section 497(1) of Cr.P.C essentially requires a court to prejudge the “guilt” of an accused by applying a “reasonable” man standard, which is a lower standard than the “beyond reasonable doubt” standard, leaving almost no room to grant an accused the benefit of the doubt at the time of considering his entitlement to bail. This, together with the innumerable offences, which prescribe a punishment of up to 10 years means that the state has to meet a very basic threshold to take away the right of a citizen to liberty guaranteed by Article 9 of the Constitution, if he is charged with a non-bailable offence. The accused remain hauled up behind bars pending trial in which the State often fails to meet the higher “beyond reasonable doubt standard” (as reflected by our conviction rate), resulting in acquittal, but also resulting in the accused having been imprisoned for years, due to denial of bail pending without ever being convicted.
Denial of bail automatically becomes a punishment in view of (i) the broad category of offences that fall within the prohibitory clause, (ii) the limited discretion vested in Court in view of the language of Section 497(1) of Cr.P.C and the lax standard that applies to the prosecution to justify arrest, and (iii) the time it takes to complete trials. It undermines the rights of an accused to liberty guaranteed by Article 9 and pretrial punishment without conviction prohibited by Article 10A and fundamental principles of fairness, due to courts required to only ascertain, tentatively, if the accused is “guilty” on the basis of a “reasonability” standard. This assessment takes place at a time when the accused is behind bars and has no ability to fully defend himself as he does not have complete access to the material to be presented by the prosecution before the court to satisfy the “reasonability” threshold. The right to liberty in Article 9 is subject to law. And the language used in Section 497(1) creates a prescription by law renders the right of liberty of a citizen accused of a non-bailable offence pending his trial largely meaningless. The Parliament might wish to reconsider Section 497(1) of Cr.P.C in juxtaposition with Article 9 and 10A of the Constitution to address the continuing practice of pre-trial punishment due to denial of bail.
Criminal Misc. No. 108-B of 2022 Majid Ali Versus The State & another
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