Article 226 and Bail Petitions

Article 226 and Bail Petitions Introduction: The right of speedy trail includes the right to get bail application decided on same day because to live a life with human dignity is fundamental right of every citizen in pursuit of happiness and excellence and if due to irregularities in the system and loopholes in the enactment these rights are not taken care of then intervention is needed from the supreme law of the land. So, the writer in the present paper put forwards the arguments that writ of mandamus under Article 226 of the Constitution of India will act as a boon in clearing the Bail Petition expeditiously and hence providing Speedy Justice to the accused. The Need Of Intervention In Form Of Writ Of Mandamus: There is no doubt that code of criminal procedure in form of various sections from chapters such as v,vi,xii,&xxxiii thought of providing expeditious remedy which is very basic principle to criminal justice system but due to too much of idealistic hangover on the drafter of the code i.e. due to so called noble presumption that our police machinery will be objective and efficient while handling a case has taken us in the country where the basic principle of criminal justice has ended in to disaster and the notion of expeditious remedy has taken the back seat. Hussainara Khatoon v. Home Secretary, State of Bihar[1] is glaring example of above said lines. The close look of some of the sections from above mentioned chapter from which the first encounters of accuse takes place such as 50,57, 157,167 of the code which are highlighted in the present paper because these sections gives maximum space to investigating agency as well as judiciary to apply its whims. Sec.50 of the code which casts the obligation on the police that in case of arrest without warrant the arrestee should be inform the grounds of arrest as well as whether right to bail exist in that matter or not[2] so as to avail his remedy but this procedure is hardly followed by police personals. Moreover the Judgments like Vimal Kumar Sharma v. State of U.P.[3] in fact supporting the approach of police Officers and providing them a way out to right guaranteed under Art.22 of Indian constitution by saying that ground of arrest need not said immediately but as soon as possible, hence providing a space where the officials can apply their whim and fancies. Section 57 of the code caste obligation on the police to produce the person arrested before Magistrate within 24 hours but there exit serious doubts when cases like Manoj Kumar Agarwal v. State of U.P.[4] are reported in which High Court held that not production within 24 hours will not make the arrest illegal, so in a way High Court even accepts the reality. Sec. 157 which provides for procedure for investigation gives the I.O. unfettered power in matter of cognizable offence because arrest has been made discretionary under this section and worries of supreme court in the case of Joginder Kumar’s Case and hence giving of direction to government to issue instructions to the department as mentioned in case hints at misuse of this section by Police department. Sec. 167 of the code provides for the procedure when investigation can not completed within 24 hours. Although under Sub-section 2 of the Sec.167 the period within which the investigation need to completed is 60 or 90 days depending upon the nature of punishment but our reporters are full of such decisions in which the investigation has not been completed within stipulated period of time and courts dare to state that if not investigation is not completed within stipulated period then detention will not become illegal and the bail will be given only when the accuse is ready to furnish the bail-bond[5]. The logic behind not giving sue motto Bail in above mentioned cases need to be re-looked again. Why a person should suffer when investigating agency is not able to wind up its investigation within 2or 3 months need to be answer because after all unless proved guilty the accuse will not be called guilty in eyes of law. Sub Section 5 makes the more horrible when it gives the chance to agency to satisfy the Magistrate the reason of not completing the investigation even within 6 months. When a bail petition is filed before the court under various sections of chapter xxxiii a peculiar procedure is followed in courts specially in lower courts i.e. without the submissions of case dairy the hearing on the petition will not start i.e. three-four chance is given to the office of public prosecutor to send the requisition slip demanding the dairy to be produced before the court. This giving of three –four chance means that accuse will have to be in jail for some days and hence he will have to suffer the mental agony although he has not been yet declared guilty in eyes of law. The chapter no where expressly provides for following the above mentioned procedure but the only defense that can be given in support of that procedure will be the compliance with the phrase ensuring whether their exist reasonable ground of the accuse being guilty or not but the question which need to be answered is that what is the extent of jeopardizing the liberty of one person to ensure whether their exit reasonable ground or not. The above-mentioned lacunas first affect the quick disposal of bail and latter they are responsible of delay in sentencing. So the conclusion that can be drawn from the above discussion is the fact that despite of so many provisions in Cr.PC. regarding bail or matters related with it, although drafted in good manner so as to ensure speedy justice, due to some or other reasons as discussed above is not able to provide speedy justice. Conclusion Hence definitely it is the Article 226 of the constitution of India, which will come to rescue because of denial of legal as well as fundamental right of speedy justice, which will include right of speedy trail. So direction can be given in the form of writ of Mandamus to the lower courts to consider the Bail Petition as fast as possible for them but the points of caution that to be noted is the fact that whenever such direction will be issued then the High Court must take care that the speedily disposal must not cause injustice because is excepted fact that if justice delayed is justice denied then justice hurried is justice buried.

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