JURISDICTION OVER APPLICATIONS FOR ANTICIPATORY BAIL

Chevening Journal , 2012

This article argues that the power exercised by the Supreme Court in giving relief by way of anticipatory bail is not proper. The way the SC is delivering justice in this process is not only unruly but also promotes bail business and not bail justice. However, this scenario prevailed in 2010-2016 and things have changed and/or improved a lot now.

Bail: Law and Practice in India , Manoj Kumar Sinha and Anurag Deep (Ed's.), 2019

In a primitive society one can briefly conceive of right to bail but in civilized society bail has become the rule. It is indisputable that the law of bails occupies an important place in administration of justice and is now a very valuable branch of the law of procedure. All the countries of the world including India are focusing on protection of Human Rights of the people and all Human Rights instruments are specifically focused on protection, prevention and promotion of the welfare of the people including accused and right to bail is one of the fundamental rights of an accused. Right to bail has become the cumbersome, for want of bail under trial prisoners lying in prisoner for want of bail. The procedural mechanism relating to imposition of condition in bail creates confusion between the object of the law of bail and the procedure adopted in practice. In most of the cases of preventive detention, the right to bail is denied which violates the fundamental human right of personal liberty of suspects and also violates the legal norm: Presumption of Innocence until Guilt is proved. In deeply rooted corruption in investigation machinery, this causes massive and brutal violation of human rights of an accused person. The justice is expected to be delivered without any fear or favour. So, this discretion is granting or refusing the bail should be exercised without any fear and favour. If the judges are passing order for some considerations, it will not be fair justice. If the custody is granted under any sort of influence then it will be depriving the constitutional right of the person arrested. Now, in the verge of modernization and globalization, most of the countries of the world are focusing on the reformative aspects in dealing with the treatment of prisoners, in such a condition denial of bail is nothing but the denial of the fundamental right of the accused person.

Bail: Law and Practice in India 1 - 29 (ILI, 2019), 2019

IN ORDER to understand criminal law and criminal justice administration system in India, it is important to understand the constitutional law, in particular, the bill of rights contained therein. The Constitution, which is the supreme law of the land, always has significance in moulding and shaping the criminal law. It can be said that the Constitution fixes the “path, direction and distance” for the growth of criminal law. Whether a country should adopt a due process model of criminal justice administration or a crime control model is a choice that is always constrained by the Constitutional framework. Thus, constitutional imperatives are important to be understood in moulding and shaping the criminal law. The fundamental rights guaranteed under the Constitution places major restraints on the state’s ability to enact and apply the criminal law. Thus, it is important to understand, in the first place, the fundamental rights, in particular, the right to freedom guaranteed under the Constitution. It is briefly explained in section two. Section three contains brief overview of the constitutional framework relating to criminal justice administration and four deals with right to bail and the Indian Constitution. Fifth section deals with constitutionality of statutory negation or restrictions on right to bail and the sixth with evolution of anticipatory bail jurisprudence in the light of article 21. The section seven refers to the statistics relating to undertrial prisoners with a view to draw some inferences on the working of the system of bail in the country and the last section contains the conclusions drawn.

Journal of Criminal Law, 2019

This article provides an overview of the latest developments in criminal procedure and practice pertaining to pre-trial defendants. It critically reviews the position regarding: failure to answer to bail, breach of pre-charge bail conditions and the considerations of granting bail with the liability to be rearrested following a breach of bail conditions (s. 72 of the Policing and Crime Act (PCA) 2017). In the eight years of Conservative government, criminal justice reform programmes have been seen as executing the extensive erosion of civil liberties. This article examines the enthusiastic enterprise set out in the PCA 2017 to deliver reform of the law on bail-and the consequences of failure to answer to bail following this reform. The first section of the article consists of a brief review of the early commitment to realign the State power with Britain's past underlying traditions of democracy, freedom, human rights and the rule of law, arguably, accentuated with the Protection of Freedoms Act 2012. This is followed by a discussion of the interaction between police officers and suspects, namely: (a) pre-arrest, and on arrest, (b) caution and legal rights and (c) detention. This section will discuss recent coarsening of that commitment regarding powers of arrest, detention, entry, bail and failure to answer to bail, for pre-trial defendants. The article then turns to outline and evaluate the juxtaposition of the Law Commission's Consultation Paper on Search Warrants. An analysis will then be made of the impact of s. 72 of the PCA 2017, before concluding with a critical evaluation of whether this change is a contemporary rapine of breach of bail, or a comparative necessity.

The liberty of the individual must be guarded, protected and promoted but the interests of the society, of which the individual is component, must be taken into account if society is to move forward and flourish instead of stagnating and breaking apart”. Makame, J. (as he then was). Bail has its roots from both spiritual and human development concepts. It is the matter of law and practice that, any person who is related to the accused person may apply for the conditional release from the custody of the accused person. It is the right given to the suspect or the accused person to be released or be free from custody while waiting for further investigations and other criminal procedures to take place or to continue taking place. Such released must have a number of conditions which needs to be fulfilled by the suspect so as to be free from being detained, such as the presence of surety (ies). Failure to comply with such conditions may result the suspect to continued being detained. The Book of Genesis reports that the first crime as Adam and Eve's violation of habitation rules in the Garden of Eden. They were summarily banished from the premises. No criminal trial proceedings were required because the Omniscient Judge had full knowledge of all relevant facts. The next reported criminal act is the murder of Abel by Cain. In this instance, the Omniscient Judge held an inquiry as to what had happened to Abel. Disbelieving Cain's testimony, the Judge sentenced Cain to wander the Earth forever. Despite the summary nature of Cain's murder trial, it demonstrates the basic elements of modern constitutional due process: notice and opportunity to be heard. After the murder of Abel, responsibility for identifying criminals and imposing punishments passed to humankind. The Old Testament Books of Exodus, Leviticus, and Deuteronomy codify specific criminal acts and begin to outline procedures for determining guilt or innocence and imposing punishment. The Book of Numbers requires that Moses establish cities of refuge for persons awaiting trial on charges of manslaughter. These are the functional equivalent of today's bail laws. Numbers also states that persons accused of murder will stand before the congregation to be judged an early reference to the criminal proceeding of trial by jury. The reason as to why we have bail is the Constitutional Principle on Innocence. That ‘Let the accused to be free for a while as long as his guilty has not yet been established beyond reasonable doubt.’ No arbitrary arrest or detention. Bail must not be punitive by nature rather than assurance of accused attendance before the court of law when needed. In the case of Annette Pagnoule (on behalf of Aboulaye Mazou) v. Cameroon the African Commission held that detention without any charge being brought against the suspect constitutes arbitrary deprivation of liberty. In the case of Van Alphen v The Netherlands, the Human Rights Committee stated that “the term ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability”. This right is given to any person. In the case of Tito Doughas Lyimo v. R, It was held that, “bail is a right and not a privilege”. However, there are some grounds which prevent the suspect or accused person from being given this right. It depends with the degree of the crime committed or the nature of the crime committed or sometimes the circumstances in which the crime was committed or the relationship between the suspect or accused person and the surrounding society. It also depends on the characteristics or behaviours of the said person. For instance, if his release may affect the criminal investigations and procedures to the extent of affecting the protection of other’s rights hence render to injustice other than justice to the victim(s). The same was argued in the case of Daudi Pete V DPP, the court held that bail is a right and not a privilege and therefore Section 148 (5) (e) of the Criminal Procedure Act which denied bail to an accused of armed robbery was declared unconstitutional since it violates human rights. This paper presents some of the circumstances in which bail cannot be granted by a court, police or any other institution with competent jurisdiction to do so

2024

The Zimbabwean constitution which came into effect in 2013 was earmarked to bring a new order and a departure from laws that were inhibitive and limiting the full realisation and enjoyment of human rights. Indeed the 2013 Constitution revolutionized a number of dragnets which were used prior to the 2013 Constitution. It transformed access to courts, opening it up to everyone and it made the right to bail a clear entitlement, shifting the onus from the accused person to the State in showing why bail should not be granted. However, the same questions asked before the 2013 Constitution are resurfacing post 2013. There seem to be distortions to factors that have to be considered when the question of denial and granting of bail is asked. The courts have adopted varying approaches, yet the underlying understanding is that bail has become a constitutional entitlement, which means the instinctual attitude of the courts should be to release an accused person on bail. Of course bail can be denied but the extent to which it can be denied by reference to the constitution is only in the face of compelling reasons. Unfortunately, the constitution does not define or specify compelling reasons, which means it is all up to the courts. The quest for bail by the Nyatsime detainees led by the former Member of Parliament Honourable Job Sikhala is one of the many cases that have added to distortions in the jurisprudence of bail matters. As such the extent of the distortions is unpacked in this concise.

International journal of health sciences

In criminal law, bail is also known as the right to liberty. It refers to everyone's right to liberty, which is also a basic right under Articles 19 and 21 of the Indian Constitution. The right to bail allows individuals to continue about their everyday lives by enabling a person accused of a crime to be freed from jail. Despite the fact that there are various requirements for obtaining bail, under criminal law, a person is deemed innocent until proved guilty, and the courts and the constitution have adopted a liberal approach to this privilege. A sort of bail that permits a person to post bail before being arrested if they are charged with a certain offence is known as advance bail provision. The classification of charges as bailable or non-bailable expands this right. In cases of bailable offenses, bail can be requested as a matter of law and is almost never denied; however, in cases of non-bailable offenses, a request for bail can be made in good faith, and the courts' te...

A person arrested either on suspicion of having committed an offence or caught in the act, is entitled to be presumed innocent until the contrary is proved. Presumption of innocence is a well-established legal principle in criminal justice administration, which dictates that the burden of proving guilt rests on the person who asserts. This precedent was laid down in the locus classicus case of Woolmington v DPP, and is recognised internationally as a fundamental human right under the UN's Universal Declaration of Human Rights (Article 11). Correspondingly, it is guaranteed in the 1999 Constitution of the Federal Republic of Nigeria (as amended). The right to bail is a direct offshoot of a person's constitutional right to personal liberty. Similarly, the right to fair hearing is an adjunct to the principle of presumption of innocence. The thrust of this paper titled, "Right to Presumption of Innocence: Exploring the Interplay Between Rights to Fair Trial, Personal Liberty and Bail in the Nigeria." seeks to harness the interconnectedness of these rights in relation to where the defendant's right to presumption of innocence begins and is extinguished. The research method employed is analytical. Findings indicates that though right to presumption of innocence endures throughout the trial, and is extinguished once a defendant is convicted and sentenced. Nevertheless, it thus appears to be reactivated once the appeal is allowed or when post-conviction bail is granted. It is recommended amongst other things, that where a criminal defendant has been convicted and sentenced, but has applied for a stay of execution pending appeal and subsequently granted post-conviction bail; his right to the presumption of innocence should be deemed to have been reactivated and remains in effect, rather than being extinguished.

Introduction Measures to ensure the presence of persons and evidence for the smooth running of the criminal procedure Concept of pre-trial detention Detention in Macedonian criminal legislation International Standards on determining pre-trial detention Analysis of solutions in Macedonian custody jurisprudence Conclusion Bibliography