Juvenile Court in New Jersey

Juvenile cases in New Jersey differ greatly from cases involving adults. The goal of the juvenile justice system, the rights which juvenile defendants have, the procedures which police and courts must follow, the facilities in which juveniles are detained, the roles of the defense lawyer and the judge, and many other aspects of juvenile jurisprudence are all significantly different from the adult criminal system.

Even the Juvenile Court is separate. Juvenile cases are handled in the Family Division, not the Criminal Division, of Superior Court. In a growing number of counties, such as Essex, Family Court matters are heard in a separate building from the criminal courts.

The goal of Juvenile Court is to rehabilitate. By definition, the adult penal system contains an element of punishment. The juvenile system, on the other hand, is designed to rehabilitate the youth, rather than punish the criminal act. Thus, the case will not be called "State vs. Jane Doe", but "The State of New Jersey in the Interest of Jane Doe, a juvenile."

A juvenile case begins with a determination of probable cause. When a person under the age of 18 is accused of committing an offense, the matter is brought to a court's attention. This is usually the municipal court, and the matter is brought usually, although not always, by the police. Then, a judge or court official such as the Court Administrator or Clerk must determine that there is probable cause to think that the juvenile has been delinquent, s/he can be taken into custody.

Juvenile charges are brought in the county where the juvenile resides, rather than where the offense occurred. In appropriate cases, a judge will grant the juvenile's lawyer's motion to transfer the case to the county of the offense. While the New Jersey's twenty-one counties should strive for uniformity in the handling of juvenile cases, this is not always achieved.

Juveniles are not arrested; they are detained. They are, according to law, taken in into custody for their own protection. Parents or guardians must be notified without delay. Juveniles may not be detained in the same facility, or even the same police car, as adult suspects. They will be given a "detention hearing" by the morning following their detention to determine whether it will be safe to return the juvenile to the custody of the parent or guardian while the matter is pending.

While in custody, a juvenile is brought before a judge at least once every three weeks, to review the need for continued detention. Sometimes juveniles are released to home, but subject to home confinement, electronic monitoring, curfews, continued employment or school, or other conditions imposed by the court.

A form called a "5A Notice" is sent to the parent(s) or guardian early in the case. This is the Family Court's summons for the parent(s) and juvenile to appear and also to file an application for a Public Defender. The form is a bit confusing, and the various counties treat the 5A hearings differently.

A juvenile must have an attorney, and a Public Defender will be appointed for a juvenile whose family cannot afford to retain a "private" lawyer. Public defenders are lawyers who are available to low-income families at little or no cost. They are usually experienced in juvenile law and are familiar with the courts. Many of them are excellent lawyers. In most NJ counties defendants and their parent(s) or guardian(s) must appear at the "5A Hearing," even if they intend to hire a lawyer, as the state or the court may require "intake" information or procedures such as fingerprinting.

Juveniles have no right to a trial by jury; juvenile trials are heard by a judge without a jury. The rules of trial in juvenile court are different from adult court, and at sentencing, the judge has many options that are unavailable to adult defendants. Most juvenile cases are settled, however without a trial.

New Jersey's juvenile justice system provides many diverse options for rehabilitating the youth. The system strives to understand each defendant and to treat each as an individual. In counties such as Essex and Union, where there are several judges sitting in the Juvenile part, repeat offenders are usually scheduled to appear before the same judge, often with the same prosecutor. In appropriate cases, there are programs and plea bargains that allow for dismissals and downgrades, intensive supervision, probation, job training, substance abuse remediation, pyromania counseling, anger management, and much more. An experienced juvenile attorney can often help fashion a resolution that makes sense.

Not all juveniles are tried in juvenile court. Some are "waived up" to adult court where they receive adult court treatment and are exposed to adult penalties. Among the factors a court will consider in determining whether to waive a juvenile up to adult court are the gravity of the crime, the juvenile's age, history, gang affiliation, and the involvement of "adult" instrumentalities such as firearms, motor vehicles, and sexual activity. Offenders convicted as juveniles are not sent to prison, but to places with names like The Training School for Boys, and custodial juvenile sentences do not exceed five years. Cases that are waived up expose the youth to penalties ranging to twenty years in prison, and even more.

Juvenile records, that is, records of the juvenile offense, "disappear" once the juvenile turns eighteen. That is not exactly true - the records remain available for certain purposes, but may not generally be disclosed. Subject to some very rare exceptions, no employers, schools or government officials may inquire about a juvenile record. Juvenile records may be expunged, later on, in most cases. Consult an attorney.

Experienced New Jersey juvenile lawyers know that the juvenile justice system favors the youth who make efforts to improve, and who shows promise for a law-abiding future. Supportive families, success in school, part-time or full-time employment, involvement organized community, religious or athletic activities all suggest that the youth has a significant likelihood of rehabilitation. Juveniles with these advantages benefit most from the non-penal philosophy of the juvenile system.

Families seeking a private attorney should look for an attorney experienced in juvenile court matters. The family can help the case by appearing in court, by trying to keep the juvenile out of trouble, and by providing alternative activities and moral support to the juvenile. The juvenile's attorney should work towards a resolution that is realistic and rehabilitative, one that has a chance of succeeding. Sensitive handling of juvenile criminal matters may be the difference that saves an imperiled juvenile.

Juvenile Court in New Jersey

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Right To Bail In India

Introduction

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonable ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accessed person under a warrant or without a warrant or those relating to the release of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this article is related with the provisions related with the release of a person on a bail.

In words of Krishna Iyer J. .. the subject of bail:-

" ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process."

Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.

Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty".

In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail.

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 defense.

There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention

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.

"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."

According to Black's Law Dictionary, 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.".

MEANING OF BAIL IN INDIA

According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: " Bailable offense means an offense 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 offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 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.

Indian Courts however ,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.

It must be further noted that a person accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the person accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
Provisions under the Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436 provides that when person not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of person s accused of bailable of fences cases of persons though not accused of any offense but against whom security proceedings have been initiated under Chapter VIII of the Code and other cases of arrest and detention which are not in respect of any bailable offense.

This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his right to be released on bail.

Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the physical presence of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody.

The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.

Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable.

In Maneka Gandhi v. Union of India [1978] 2 SCR 621

The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.

It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action.

J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases.

In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47

Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.

Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. The length of his residence in the community, 2 His employment status, history and his financial condition, 3. His family ties and relationships, 4 His reputation, character and monetary condition, 5.His prior criminal record including any record or prior release on recognizance or on bail, 6. The identity of responsible members of the community who would vouch for his reliability. The nature of the offense 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, and If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond.

Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it.
Section 436A . Maximum period for which an under trial prisoner can be detained -

The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opportunity to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice system and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to suggest that the Legislature and the Government have accepted the existence of the faulty system and their inability to do anything about it. For this purpose section 436 A was inserted.

According to S. 436-A, a person who has undergone detention for a period extending upto half of the maximum period of imprisonment imposed for a particular offense, shall be released on her/his personal bond with or without sureties. The procedure provided is that the Court has to hear the Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a period longer than the maximum period of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death.

Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions regarding the implementation of the provision. There is every chance that a prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not provide any guidelines. Will the undertrial prisoner continue to serve term till the maximum period of the

Granting of Bail with conditions

Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides:

When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary: -

(a)In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b)In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c)Otherwise in the interests of Justice.

It will be noticed that: -

1)The power to impose conditions has been given to the court and not to any police officer 2)The power to impose conditions can only be exercised -

i)Where the offence is punishable with the imprisonment which may extend to seven years or more or

ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or

iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii).

CANCELLATION OF BAIL

According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody.

The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail.

In Public Prosecutor v. George Williams1951 Mad 1042

The Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail:

(a)Where the person on bail, during the period of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the search of place under his control for the corpus delicti or other incriminating things; (c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc. (d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and (e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him.

RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY

The right to bail is concomitant 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 under trials formed 80 percent of Bihar's prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the under trials 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 AIR 1979 SC 1360

Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials 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 under trials, 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 under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison.

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 (1982) 2 SCC 583. 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 under trials 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 Dicey on 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.

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 Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227. in 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 Gandhi's case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's 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."

Conclusion

It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. 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 sensitize 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.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases.

BY SUDERSHANI RAY

Right To Bail In India

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Juvenile Court in New Jersey

Juvenile cases in New Jersey differ greatly from cases involving adults. The goal of the juvenile justice system, the rights which juvenile defendants have, the procedures which police and courts must follow, the facilities in which juveniles are detained, the roles of the defense lawyer and the judge, and many other aspects of juvenile jurisprudence are all significantly different from the adult criminal system.

Even the Juvenile Court is separate. Juvenile cases are handled in the Family Division, not the Criminal Division, of Superior Court. In a growing number of counties, such as Essex, Family Court matters are heard in a separate building from the criminal courts.

The goal of Juvenile Court is to rehabilitate. By definition, the adult penal system contains an element of punishment. The juvenile system, on the other hand, is designed to rehabilitate the youth, rather than punish the criminal act. Thus, the case will not be called "State vs. Jane Doe", but "The State of New Jersey in the Interest of Jane Doe, a juvenile."

A juvenile case begins with a determination of probable cause. When a person under the age of 18 is accused of committing an offense, the matter is brought to a court's attention. This is usually the municipal court, and the matter is brought usually, although not always, by the police. Then, a judge or court official such as the Court Administrator or Clerk must determine that there is probable cause to think that the juvenile has been delinquent, s/he can be taken into custody.

Juvenile charges are brought in the county where the juvenile resides, rather than where the offense occurred. In appropriate cases, a judge will grant the juvenile's lawyer's motion to transfer the case to the county of the offense. While the New Jersey's twenty-one counties should strive for uniformity in the handling of juvenile cases, this is not always achieved.

Juveniles are not arrested; they are detained. They are, according to law, taken in into custody for their own protection. Parents or guardians must be notified without delay. Juveniles may not be detained in the same facility, or even the same police car, as adult suspects. They will be given a "detention hearing" by the morning following their detention to determine whether it will be safe to return the juvenile to the custody of the parent or guardian while the matter is pending.

While in custody, a juvenile is brought before a judge at least once every three weeks, to review the need for continued detention. Sometimes juveniles are released to home, but subject to home confinement, electronic monitoring, curfews, continued employment or school, or other conditions imposed by the court.

A form called a "5A Notice" is sent to the parent(s) or guardian early in the case. This is the Family Court's summons for the parent(s) and juvenile to appear and also to file an application for a Public Defender. The form is a bit confusing, and the various counties treat the 5A hearings differently.

A juvenile must have an attorney, and a Public Defender will be appointed for a juvenile whose family cannot afford to retain a "private" lawyer. Public defenders are lawyers who are available to low-income families at little or no cost. They are usually experienced in juvenile law and are familiar with the courts. Many of them are excellent lawyers. In most NJ counties defendants and their parent(s) or guardian(s) must appear at the "5A Hearing," even if they intend to hire a lawyer, as the state or the court may require "intake" information or procedures such as fingerprinting.

Juveniles have no right to a trial by jury; juvenile trials are heard by a judge without a jury. The rules of trial in juvenile court are different from adult court, and at sentencing, the judge has many options that are unavailable to adult defendants. Most juvenile cases are settled, however without a trial.

New Jersey's juvenile justice system provides many diverse options for rehabilitating the youth. The system strives to understand each defendant and to treat each as an individual. In counties such as Essex and Union, where there are several judges sitting in the Juvenile part, repeat offenders are usually scheduled to appear before the same judge, often with the same prosecutor. In appropriate cases, there are programs and plea bargains that allow for dismissals and downgrades, intensive supervision, probation, job training, substance abuse remediation, pyromania counseling, anger management, and much more. An experienced juvenile attorney can often help fashion a resolution that makes sense.

Not all juveniles are tried in juvenile court. Some are "waived up" to adult court where they receive adult court treatment and are exposed to adult penalties. Among the factors a court will consider in determining whether to waive a juvenile up to adult court are the gravity of the crime, the juvenile's age, history, gang affiliation, and the involvement of "adult" instrumentalities such as firearms, motor vehicles, and sexual activity. Offenders convicted as juveniles are not sent to prison, but to places with names like The Training School for Boys, and custodial juvenile sentences do not exceed five years. Cases that are waived up expose the youth to penalties ranging to twenty years in prison, and even more.

Juvenile records, that is, records of the juvenile offense, "disappear" once the juvenile turns eighteen. That is not exactly true - the records remain available for certain purposes, but may not generally be disclosed. Subject to some very rare exceptions, no employers, schools or government officials may inquire about a juvenile record. Juvenile records may be expunged, later on, in most cases. Consult an attorney.

Experienced New Jersey juvenile lawyers know that the juvenile justice system favors the youth who make efforts to improve, and who shows promise for a law-abiding future. Supportive families, success in school, part-time or full-time employment, involvement organized community, religious or athletic activities all suggest that the youth has a significant likelihood of rehabilitation. Juveniles with these advantages benefit most from the non-penal philosophy of the juvenile system.

Families seeking a private attorney should look for an attorney experienced in juvenile court matters. The family can help the case by appearing in court, by trying to keep the juvenile out of trouble, and by providing alternative activities and moral support to the juvenile. The juvenile's attorney should work towards a resolution that is realistic and rehabilitative, one that has a chance of succeeding. Sensitive handling of juvenile criminal matters may be the difference that saves an imperiled juvenile.

Juvenile Court in New Jersey

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Plessy vs Ferguson - African American History Essay

1892

The U.S. Supreme Court: the highest court in the land. Their job: to decide the constitutionality of cases. But is that what they are really doing? Can we trust that their decisions are just? Two important cases in history can help answer this question. A 1896 U.S. Supreme Court case, Plessy v. Ferguson, made facilities and schools separate based on race. In another case in 1954, Brown v. Board of Education, the court reversed its decision and said that separate was not equal. These two cases teach two lessons about the U.S. Supreme Court. Plessy shows that our justice system has failed at times to establish justice. Brown shows that even though the Court rules justly, justice isn't guaranteed.

Many events led up to Plessy v. Ferguson. For example: after the Congress withdrew federal troops from the South in 1877, conditions for blacks deteriorated. The government pushed blacks into an inferior position. The government took action to prevent blacks from voting immediately.

They embarked poll taxes, "grandfather clauses". They also segregated on trains, in parks, schools, restaurants, theaters, swimming pools, and even cemeteries. If blacks broke these segregation laws, they were likely to end up either in prison or dead!

The case of Plessy v. Ferguson was a very important case in American History because it enforced segregation even making it legal, and made segregation a concrete reality for the people of the United States. It began with a man called Homer Plessy. Plessy was 7/8 white and only had 1/8 drop of black blood in him, but under Louisiana law, was considered black. In 1890, Louisiana passed a law providing that "all railway companies carrying passengers in their coaches in this state shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations." Plessy believed that the law was unjust and so he challenged the law by refusing to leave the white railroad car. He was arrested and taken to trial. At this trial he argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution. But he was found guilty. Plessy then appealed the decision to the Supreme Court of Louisiana. Again his case was upheld. Plessy appealed again in 1896 to the Supreme Court of the United States. Homer Plessy was found guilty once again. The impact of the court's decision was a harsh one. It created a reality that was a nightmare to many. Their lives would be changed dramatically. They would officially be separated and considered low down in society.

Plessy v. Ferguson was the law of the land until 1954, when it was finally, successfully overturned by Brown v. Board of Education. In 1954, a little girl named Linda Brown in Topeka, Kansas had to walk 5 miles to school. She didn't get recess and could not play with any of the other children who were all white. Her parents filed a case to the U.S. Supreme Court saying that there is no way blacks and whites could get equal education if they were separated. The court ruled that separate is not equal.

The amount of time between Plessy v. Ferguson and Brown v. Board of Education shows just how long it took to get justice for blacks from the Supreme Court. It amazes me that our government could even question if blacks have the right to justice. It should be basic knowledge for us to know that it is wrong to treat any people so unjustly. Just to prove my point here are some questions you can ask yourself: are blacks human beings just like whites? Do blacks and whites both have feelings and needs? And finally, is the only difference between blacks and whites is that they have a different complexion? I am confused as to why so many people, including Justices on our Supreme Court would not answer yes to all these questions. How could anyone who had any intelligence think it was acceptable to treat blacks differently?

Fortunately the Court did come to its senses in Brown v. Board of Education. Yet just because The U.S. Supreme Court ruled that separate is not equal it did not mean that blacks were automatically treated equally. After Brown v. Board of Education happened, there needed to be the Civil Rights Movement, in which many people were involved to push society to change. Two people who led the Civil Rights Movement were Martin Luther King Jr. and Rosa Parks. We must acknowledge that it wasn't only those people, there were others working and helping the same cause. There were many ways that they impacted The Civil Rights Movement. They gave speeches, wrote letters, led marches, held meetings and many other strategies. They also endured mental and physical hardships. Only through the Civil Rights Movement did the promise of Brown actually get achieved. These people were poor, wealthy, high class, low class, black, some white, short and tall. Basically, there was a wide range of different kinds of people. Not everyone automatically changed their frame of mind when The U.S. Supreme Court ruled separate is not equal. There were still many people out there who were racist and wanted to keep blacks in an inferior position.

Plessy vs Ferguson - African American History Essay

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Right To Bail In India

Introduction

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonable ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accessed person under a warrant or without a warrant or those relating to the release of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this article is related with the provisions related with the release of a person on a bail.

In words of Krishna Iyer J. .. the subject of bail:-

" ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process."

Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.

Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty".

In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail.

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 defense.

There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention

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.

"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."

According to Black's Law Dictionary, 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.".

MEANING OF BAIL IN INDIA

According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: " Bailable offense means an offense 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 offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 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.

Indian Courts however ,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.

It must be further noted that a person accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the person accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
Provisions under the Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436 provides that when person not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of person s accused of bailable of fences cases of persons though not accused of any offense but against whom security proceedings have been initiated under Chapter VIII of the Code and other cases of arrest and detention which are not in respect of any bailable offense.

This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his right to be released on bail.

Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the physical presence of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody.

The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.

Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable.

In Maneka Gandhi v. Union of India [1978] 2 SCR 621

The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.

It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action.

J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases.

In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47

Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.

Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. The length of his residence in the community, 2 His employment status, history and his financial condition, 3. His family ties and relationships, 4 His reputation, character and monetary condition, 5.His prior criminal record including any record or prior release on recognizance or on bail, 6. The identity of responsible members of the community who would vouch for his reliability. The nature of the offense 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, and If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond.

Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it.
Section 436A . Maximum period for which an under trial prisoner can be detained -

The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opportunity to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice system and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to suggest that the Legislature and the Government have accepted the existence of the faulty system and their inability to do anything about it. For this purpose section 436 A was inserted.

According to S. 436-A, a person who has undergone detention for a period extending upto half of the maximum period of imprisonment imposed for a particular offense, shall be released on her/his personal bond with or without sureties. The procedure provided is that the Court has to hear the Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a period longer than the maximum period of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death.

Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions regarding the implementation of the provision. There is every chance that a prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not provide any guidelines. Will the undertrial prisoner continue to serve term till the maximum period of the

Granting of Bail with conditions

Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides:

When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary: -

(a)In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b)In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c)Otherwise in the interests of Justice.

It will be noticed that: -

1)The power to impose conditions has been given to the court and not to any police officer 2)The power to impose conditions can only be exercised -

i)Where the offence is punishable with the imprisonment which may extend to seven years or more or

ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or

iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii).

CANCELLATION OF BAIL

According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody.

The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail.

In Public Prosecutor v. George Williams1951 Mad 1042

The Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail:

(a)Where the person on bail, during the period of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the search of place under his control for the corpus delicti or other incriminating things; (c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc. (d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and (e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him.

RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY

The right to bail is concomitant 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 under trials formed 80 percent of Bihar's prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the under trials 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 AIR 1979 SC 1360

Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials 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 under trials, 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 under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison.

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 (1982) 2 SCC 583. 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 under trials 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 Dicey on 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.

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 Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227. in 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 Gandhi's case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's 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."

Conclusion

It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. 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 sensitize 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.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases.

BY SUDERSHANI RAY

Right To Bail In India

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Right To Bail In India

Introduction

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonable ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accessed person under a warrant or without a warrant or those relating to the release of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this article is related with the provisions related with the release of a person on a bail.

In words of Krishna Iyer J. .. the subject of bail:-

" ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process."

Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.

Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty".

In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail.

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 defense.

There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention

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.

"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."

According to Black's Law Dictionary, 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.".

MEANING OF BAIL IN INDIA

According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: " Bailable offense means an offense 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 offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 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.

Indian Courts however ,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.

It must be further noted that a person accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the person accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
Provisions under the Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436 provides that when person not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of person s accused of bailable of fences cases of persons though not accused of any offense but against whom security proceedings have been initiated under Chapter VIII of the Code and other cases of arrest and detention which are not in respect of any bailable offense.

This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his right to be released on bail.

Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the physical presence of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody.

The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.

Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable.

In Maneka Gandhi v. Union of India [1978] 2 SCR 621

The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.

It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action.

J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases.

In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47

Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.

Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. The length of his residence in the community, 2 His employment status, history and his financial condition, 3. His family ties and relationships, 4 His reputation, character and monetary condition, 5.His prior criminal record including any record or prior release on recognizance or on bail, 6. The identity of responsible members of the community who would vouch for his reliability. The nature of the offense 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, and If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond.

Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it.
Section 436A . Maximum period for which an under trial prisoner can be detained -

The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opportunity to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice system and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to suggest that the Legislature and the Government have accepted the existence of the faulty system and their inability to do anything about it. For this purpose section 436 A was inserted.

According to S. 436-A, a person who has undergone detention for a period extending upto half of the maximum period of imprisonment imposed for a particular offense, shall be released on her/his personal bond with or without sureties. The procedure provided is that the Court has to hear the Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a period longer than the maximum period of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death.

Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions regarding the implementation of the provision. There is every chance that a prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not provide any guidelines. Will the undertrial prisoner continue to serve term till the maximum period of the

Granting of Bail with conditions

Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides:

When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary: -

(a)In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b)In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c)Otherwise in the interests of Justice.

It will be noticed that: -

1)The power to impose conditions has been given to the court and not to any police officer 2)The power to impose conditions can only be exercised -

i)Where the offence is punishable with the imprisonment which may extend to seven years or more or

ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or

iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii).

CANCELLATION OF BAIL

According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody.

The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail.

In Public Prosecutor v. George Williams1951 Mad 1042

The Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail:

(a)Where the person on bail, during the period of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the search of place under his control for the corpus delicti or other incriminating things; (c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc. (d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and (e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him.

RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY

The right to bail is concomitant 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 under trials formed 80 percent of Bihar's prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the under trials 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 AIR 1979 SC 1360

Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials 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 under trials, 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 under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison.

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 (1982) 2 SCC 583. 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 under trials 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 Dicey on 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.

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 Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227. in 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 Gandhi's case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's 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."

Conclusion

It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. 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 sensitize 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.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases.

BY SUDERSHANI RAY

Right To Bail In India

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Right To Bail In India

Introduction

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. The object of arrest and detention of the accessed person is primarily to secure his appearance at the trial and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could be reasonable ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the issue of summons or those relating to the arrest of the accessed person under a warrant or without a warrant or those relating to the release of the accessed at his trial but without unreasonable and unjustifiably interfering with his liberty. Thus this article is related with the provisions related with the release of a person on a bail.

In words of Krishna Iyer J. .. the subject of bail:-

" ..... belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process."

Thus release on bail is crucial to the accused as the consequences of pre-trial detention are given. If release on bail is denied to the accessed it would mean that though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt he would be subjected to the psychological and physical deprivation of jail life. The jail accessed loses his job and is prevented from contributing effectively to the preparation of his defense.

Therefore where there are no risks involved in the release of the arrested person it would be cruel and unjust, to deny him bail. The law bails " has to dovetail two conflicting demands namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence. The presumption of innocence of an accused till he is found guilty".

In order to sub serve the above said objective, the Legislature in its wisdom has given precise directions for granting or granting bail.

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 defense.

There are thus several reasons which have been enumerated as to why bail ought to be allowed to prevent pre-trial detention

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.

"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."

According to Black's Law Dictionary, 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.".

MEANING OF BAIL IN INDIA

According to Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: " Bailable offense means an offense 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 offense means any other offense". That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses. Further, Sections 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.

Indian Courts however ,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.

It must be further noted that a person accused of a bailable offenses is arrested or detained without warrant he has a right to be released on bail. But if the offense is non-bailable that does not mean that the person accused of such offense shall not be released on bail: but here in such case bail is not a matter of right, but only a privilege to be granted at the discretion of the court.
Provisions under the Code of Criminal Procedure, 1973

The Code of Criminal Procedure, 1973, makes provisions for release of accused persons on bail. Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436 provides that when person not accused of a non-bailable offense is arrested or detained he can be detained as right to claim to be released on bail. The section covers all cases of person s accused of bailable of fences cases of persons though not accused of any offense but against whom security proceedings have been initiated under Chapter VIII of the Code and other cases of arrest and detention which are not in respect of any bailable offense.

This section entitles a person other than the accused of a non-bailable offense to be released on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such a person without a warrant to inform him his right to be released on bail.

Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other words, the officer-in-charge of a police station or any court does not have any discretion whatsoever to deny bail in such cases. The word " appear in this sub- clause is wide enough to include voluntary appearance of the person accused of an offense even where no summons or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary appearance or to suggest that the appearance of the accused must be in the obedience of a process issued by the court. The surrender and the physical presence of the accused with the submission to the jurisdiction and order of the court is judicial custody, and the accused may be granted bail and released from such custody.

The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1) provides the amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive. Further S. 440(2) empowers the High Court or the Court of Sessions may direct that the bail required by a police officer or Magistrate be reduced.

Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has broken the condition of his bail bond when released on bail is a bailable case on a previous occasion, shall not as of right to be entitled to bail when brought before the court on any subsequent date even though the offense may be bailable.

In Maneka Gandhi v. Union of India [1978] 2 SCR 621

The amount of the bond should be determined having regard to these relevant factors and should not be fixed mechanically according to a schedule keyed to the nature of the charge. Otherwise, it would be difficult for the accused to secure his release even by executing a personal bond, it would be very harsh and oppressive if he is required to satisfy the court-and what is said in regard to the court must apply equally in relation to the police while granting bail-that he is solvent enough to pay the amount of the bond if he fails to appear at the trial and in consequence the bond is forfeited. The inquiry into the solvency of the accused can become a source of great harassment to him and often resulting denial of bail and deprivation of liberty and should not, therefore, be insisted upon as a condition of acceptance of the personal bond.

It also stated that there is a need to provide by an amendment of the penal law that if an accused willfully fails to appear incompliance with the promise contained in his personal bond, he shall be liable to penal action.

J. Per Bhagwati & Koshal, JJ. further observed that it is now high time that the State Government realized its responsibility to the people in the matter of administration of justice and set up more courts for the trial of cases.

In Moti Ram & Others. v. State of M.P [1978] 4 SCC 47

Urgent need for a clear and explicit provision in the Code of Criminal Procedure enabling the release, inappropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation.

Criminal courts today, are extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non- appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. In this case the court also pointed out the enlightened Bail Projects in the United States such as Manhattan Bail Project and D. C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. The Court laid down following guidelines, that determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused:

1. The length of his residence in the community, 2 His employment status, history and his financial condition, 3. His family ties and relationships, 4 His reputation, character and monetary condition, 5.His prior criminal record including any record or prior release on recognizance or on bail, 6. The identity of responsible members of the community who would vouch for his reliability. The nature of the offense 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, and If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond.

Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the accused his previous record and the nature and circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as for example, where the accused is a notorious bad character or confirmed criminal or the offense is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties. But in the majority of cases, considerations like family ties and relationship, roots in the community, employment status etc. may prevail with the court in releasing the accused on his personal bond and particularly in cases where the offense is not grave and the accused is poor or belongs to a weaker section of the community, release on personal bond could, as far as possible, be preferred. But even while releasing the accused on personal bond it is necessary to caution the court that the amount of the bond which it.
Section 436A . Maximum period for which an under trial prisoner can be detained -

The new provision Section 436Awas introduced in order to solve the problems of undertrials' who were languishing in jails as they will now be given an opportunity to be set free instead of endlessly waiting for their trial to take place. This move has been made due to a faulty criminal justice system and provides a makeshift method of providing justice and relief to undertrial prisoners. This seems to suggest that the Legislature and the Government have accepted the existence of the faulty system and their inability to do anything about it. For this purpose section 436 A was inserted.

According to S. 436-A, a person who has undergone detention for a period extending upto half of the maximum period of imprisonment imposed for a particular offense, shall be released on her/his personal bond with or without sureties. The procedure provided is that the Court has to hear the Public Prosecutor and give its decision with reasons in writing. The Court may release the applicant, or if not satisfied may order for the continued detention of the applicant. However, no prisoner can be detained for a period longer than the maximum period of imprisonment provided. The exception to the section is that it is not applicable to offenders who have been sentenced to death.

Moving onto the (de)merits of the provisions itself, S. 436-A gives discretion to the Court to set the prisoner free or to make him/her continue imprisonment. There is no mention of any applications having to be filed under the section. The first part of the section states that any prisoner who has served more than half the term of his/her imprisonment 'shall' be released. However, the proviso puts a restriction on the mandatory provision by giving discretionary powers to the courts. This raises questions regarding the implementation of the provision. There is every chance that a prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence. Till the Judges give their written reasons for the same, one will not know on what grounds a continuation of the term can be ordered as the section does not provide any guidelines. Will the undertrial prisoner continue to serve term till the maximum period of the

Granting of Bail with conditions

Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides:

When a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section (1), the Court may impose any condition which the Court considers necessary: -

(a)In order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or (b)In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or (c)Otherwise in the interests of Justice.

It will be noticed that: -

1)The power to impose conditions has been given to the court and not to any police officer 2)The power to impose conditions can only be exercised -

i)Where the offence is punishable with the imprisonment which may extend to seven years or more or

ii)Where the offence is one under Chapter VI (Offences against the State), Chapter XVI (offences against the human body), or Chapter XVII (offences against the property) of I.P.C, or

iii)Where the offence is one of the abetment of or conspiracy to or attempt to commit any such offence as mentioned above in (i) and (ii).

CANCELLATION OF BAIL

According to S. 437(5) any court which has released a person on bail under (1) or sub sec (2) of S. 437 may if considers it necessary so to do, direct that such person be arrested and committed to custody.

The power to cancel bail has been given to the court and not to a police officer. Secondly, the court which granted the bail can alone cancel it. The bail granted by a police officer cannot be cancelled by the court of a magistrate. For cancellation of bail in such a situation, the powers of the High Court or Court of Session under S. 439 will have to invoked. Rejection of bail when bails applied for is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable cases than to cancel a bail granted in such case. Cancellation of bail necessary involves the review of a decision already made and can large be permitted only if , by reason of supervening circumstances it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. However, bail granted illegal or improperly by a wrong arbitrary exercise of judicial discretion can be cancelled even if there is absence of supervening circumstances. If there is no material to prove that the accused abused his freedom court may not cancel the bail.

In Public Prosecutor v. George Williams1951 Mad 1042

The Madras High Court pointed out five cases where a person granted bail may have the bail cancelled and be recommitted to jail:

(a)Where the person on bail, during the period of the bail, commits the very same offence for which is being tried or has been convicted, and thereby proves his utter unfitness to be on bail; (b)If he hampers the investigation as will be the case if he, when on bail; forcibly prevents the search of place under his control for the corpus delicti or other incriminating things; (c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering with scene of the offence in order to remove traces or proofs of crime, etc. (d)If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and (e)If he commits acts of violence, in revenge, against the police and the prosecution witnessed & those who have booked him or are trying to book him.

RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL LIBERTY

The right to bail is concomitant 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 under trials formed 80 percent of Bihar's prison population, their period of imprisonment ranging from a dew months to ten years; some cases wherein the period of imprisonment of the under trials 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 AIR 1979 SC 1360

Justice Bhagwati found that these unfortunate under trials languished in prisons not because they were guilty but because they were too poor to afford a bail. In Mantoo Majumdar v. State of Bihar AIR 1980 SC 846 the Apex Court once again upheld the under trials 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 under trials, 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 under trials, and the magistrate failure to monitor the detention of the under trials remanded by them to prison.

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 (1982) 2 SCC 583. 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 under trials 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 Dicey on 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.

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 Janardhan Reddy v. State of Hyderabad, AIR 1951 SC 227. in 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 Gandhi's case. The Supreme Court held in M.H. Hoskot v. State of Maharashtra a AIR 1978 SC 1548nd Hussainara Khatoon's 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."

Conclusion

It is indisputable that an unnecessarily prolonged detention in prison of under trials before being brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of individual liberty which forms the bedrock of a civilized legal system must view with distress patently long periods of imprisonment before persons awaiting trial can receive the attention of the administration of justice. 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 sensitize 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.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial prisoner on his bond without sureties and without any monetary obligation. There is urgent need for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons today include many who are unable to secure their release before trial because of their inability to produce sufficient financial guarantee for their appearance. Where that is the only reason for their continued incarceration, there may be good ground for complaining of invidious discrimination. The more so under a constitutional system which promises social equality and social justice to all of its citizens. The deprivation of liberty for the reason of financial poverty only is an incongruous element in a society aspiring to the achievement of these constitutional objectives. There are sufficient guarantees for appearance in the host of considerations to which reference has been made earlier and, it seems to me, our law-makers would take an important step-in defence of individual liberty if appropriate provision as made in the statute for non-financial releases.

BY SUDERSHANI RAY

Right To Bail In India

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Juvenile Court in New Jersey

Juvenile cases in New Jersey differ greatly from cases involving adults. The goal of the juvenile justice system, the rights which juvenile defendants have, the procedures which police and courts must follow, the facilities in which juveniles are detained, the roles of the defense lawyer and the judge, and many other aspects of juvenile jurisprudence are all significantly different from the adult criminal system.

Even the Juvenile Court is separate. Juvenile cases are handled in the Family Division, not the Criminal Division, of Superior Court. In a growing number of counties, such as Essex, Family Court matters are heard in a separate building from the criminal courts.

The goal of Juvenile Court is to rehabilitate. By definition, the adult penal system contains an element of punishment. The juvenile system, on the other hand, is designed to rehabilitate the youth, rather than punish the criminal act. Thus, the case will not be called "State vs. Jane Doe", but "The State of New Jersey in the Interest of Jane Doe, a juvenile."

A juvenile case begins with a determination of probable cause. When a person under the age of 18 is accused of committing an offense, the matter is brought to a court's attention. This is usually the municipal court, and the matter is brought usually, although not always, by the police. Then, a judge or court official such as the Court Administrator or Clerk must determine that there is probable cause to think that the juvenile has been delinquent, s/he can be taken into custody.

Juvenile charges are brought in the county where the juvenile resides, rather than where the offense occurred. In appropriate cases, a judge will grant the juvenile's lawyer's motion to transfer the case to the county of the offense. While the New Jersey's twenty-one counties should strive for uniformity in the handling of juvenile cases, this is not always achieved.

Juveniles are not arrested; they are detained. They are, according to law, taken in into custody for their own protection. Parents or guardians must be notified without delay. Juveniles may not be detained in the same facility, or even the same police car, as adult suspects. They will be given a "detention hearing" by the morning following their detention to determine whether it will be safe to return the juvenile to the custody of the parent or guardian while the matter is pending.

While in custody, a juvenile is brought before a judge at least once every three weeks, to review the need for continued detention. Sometimes juveniles are released to home, but subject to home confinement, electronic monitoring, curfews, continued employment or school, or other conditions imposed by the court.

A form called a "5A Notice" is sent to the parent(s) or guardian early in the case. This is the Family Court's summons for the parent(s) and juvenile to appear and also to file an application for a Public Defender. The form is a bit confusing, and the various counties treat the 5A hearings differently.

A juvenile must have an attorney, and a Public Defender will be appointed for a juvenile whose family cannot afford to retain a "private" lawyer. Public defenders are lawyers who are available to low-income families at little or no cost. They are usually experienced in juvenile law and are familiar with the courts. Many of them are excellent lawyers. In most NJ counties defendants and their parent(s) or guardian(s) must appear at the "5A Hearing," even if they intend to hire a lawyer, as the state or the court may require "intake" information or procedures such as fingerprinting.

Juveniles have no right to a trial by jury; juvenile trials are heard by a judge without a jury. The rules of trial in juvenile court are different from adult court, and at sentencing, the judge has many options that are unavailable to adult defendants. Most juvenile cases are settled, however without a trial.

New Jersey's juvenile justice system provides many diverse options for rehabilitating the youth. The system strives to understand each defendant and to treat each as an individual. In counties such as Essex and Union, where there are several judges sitting in the Juvenile part, repeat offenders are usually scheduled to appear before the same judge, often with the same prosecutor. In appropriate cases, there are programs and plea bargains that allow for dismissals and downgrades, intensive supervision, probation, job training, substance abuse remediation, pyromania counseling, anger management, and much more. An experienced juvenile attorney can often help fashion a resolution that makes sense.

Not all juveniles are tried in juvenile court. Some are "waived up" to adult court where they receive adult court treatment and are exposed to adult penalties. Among the factors a court will consider in determining whether to waive a juvenile up to adult court are the gravity of the crime, the juvenile's age, history, gang affiliation, and the involvement of "adult" instrumentalities such as firearms, motor vehicles, and sexual activity. Offenders convicted as juveniles are not sent to prison, but to places with names like The Training School for Boys, and custodial juvenile sentences do not exceed five years. Cases that are waived up expose the youth to penalties ranging to twenty years in prison, and even more.

Juvenile records, that is, records of the juvenile offense, "disappear" once the juvenile turns eighteen. That is not exactly true - the records remain available for certain purposes, but may not generally be disclosed. Subject to some very rare exceptions, no employers, schools or government officials may inquire about a juvenile record. Juvenile records may be expunged, later on, in most cases. Consult an attorney.

Experienced New Jersey juvenile lawyers know that the juvenile justice system favors the youth who make efforts to improve, and who shows promise for a law-abiding future. Supportive families, success in school, part-time or full-time employment, involvement organized community, religious or athletic activities all suggest that the youth has a significant likelihood of rehabilitation. Juveniles with these advantages benefit most from the non-penal philosophy of the juvenile system.

Families seeking a private attorney should look for an attorney experienced in juvenile court matters. The family can help the case by appearing in court, by trying to keep the juvenile out of trouble, and by providing alternative activities and moral support to the juvenile. The juvenile's attorney should work towards a resolution that is realistic and rehabilitative, one that has a chance of succeeding. Sensitive handling of juvenile criminal matters may be the difference that saves an imperiled juvenile.

Juvenile Court in New Jersey

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Juvenile Court in New Jersey

Juvenile cases in New Jersey differ greatly from cases involving adults. The goal of the juvenile justice system, the rights which juvenile defendants have, the procedures which police and courts must follow, the facilities in which juveniles are detained, the roles of the defense lawyer and the judge, and many other aspects of juvenile jurisprudence are all significantly different from the adult criminal system.

Even the Juvenile Court is separate. Juvenile cases are handled in the Family Division, not the Criminal Division, of Superior Court. In a growing number of counties, such as Essex, Family Court matters are heard in a separate building from the criminal courts.

The goal of Juvenile Court is to rehabilitate. By definition, the adult penal system contains an element of punishment. The juvenile system, on the other hand, is designed to rehabilitate the youth, rather than punish the criminal act. Thus, the case will not be called "State vs. Jane Doe", but "The State of New Jersey in the Interest of Jane Doe, a juvenile."

A juvenile case begins with a determination of probable cause. When a person under the age of 18 is accused of committing an offense, the matter is brought to a court's attention. This is usually the municipal court, and the matter is brought usually, although not always, by the police. Then, a judge or court official such as the Court Administrator or Clerk must determine that there is probable cause to think that the juvenile has been delinquent, s/he can be taken into custody.

Juvenile charges are brought in the county where the juvenile resides, rather than where the offense occurred. In appropriate cases, a judge will grant the juvenile's lawyer's motion to transfer the case to the county of the offense. While the New Jersey's twenty-one counties should strive for uniformity in the handling of juvenile cases, this is not always achieved.

Juveniles are not arrested; they are detained. They are, according to law, taken in into custody for their own protection. Parents or guardians must be notified without delay. Juveniles may not be detained in the same facility, or even the same police car, as adult suspects. They will be given a "detention hearing" by the morning following their detention to determine whether it will be safe to return the juvenile to the custody of the parent or guardian while the matter is pending.

While in custody, a juvenile is brought before a judge at least once every three weeks, to review the need for continued detention. Sometimes juveniles are released to home, but subject to home confinement, electronic monitoring, curfews, continued employment or school, or other conditions imposed by the court.

A form called a "5A Notice" is sent to the parent(s) or guardian early in the case. This is the Family Court's summons for the parent(s) and juvenile to appear and also to file an application for a Public Defender. The form is a bit confusing, and the various counties treat the 5A hearings differently.

A juvenile must have an attorney, and a Public Defender will be appointed for a juvenile whose family cannot afford to retain a "private" lawyer. Public defenders are lawyers who are available to low-income families at little or no cost. They are usually experienced in juvenile law and are familiar with the courts. Many of them are excellent lawyers. In most NJ counties defendants and their parent(s) or guardian(s) must appear at the "5A Hearing," even if they intend to hire a lawyer, as the state or the court may require "intake" information or procedures such as fingerprinting.

Juveniles have no right to a trial by jury; juvenile trials are heard by a judge without a jury. The rules of trial in juvenile court are different from adult court, and at sentencing, the judge has many options that are unavailable to adult defendants. Most juvenile cases are settled, however without a trial.

New Jersey's juvenile justice system provides many diverse options for rehabilitating the youth. The system strives to understand each defendant and to treat each as an individual. In counties such as Essex and Union, where there are several judges sitting in the Juvenile part, repeat offenders are usually scheduled to appear before the same judge, often with the same prosecutor. In appropriate cases, there are programs and plea bargains that allow for dismissals and downgrades, intensive supervision, probation, job training, substance abuse remediation, pyromania counseling, anger management, and much more. An experienced juvenile attorney can often help fashion a resolution that makes sense.

Not all juveniles are tried in juvenile court. Some are "waived up" to adult court where they receive adult court treatment and are exposed to adult penalties. Among the factors a court will consider in determining whether to waive a juvenile up to adult court are the gravity of the crime, the juvenile's age, history, gang affiliation, and the involvement of "adult" instrumentalities such as firearms, motor vehicles, and sexual activity. Offenders convicted as juveniles are not sent to prison, but to places with names like The Training School for Boys, and custodial juvenile sentences do not exceed five years. Cases that are waived up expose the youth to penalties ranging to twenty years in prison, and even more.

Juvenile records, that is, records of the juvenile offense, "disappear" once the juvenile turns eighteen. That is not exactly true - the records remain available for certain purposes, but may not generally be disclosed. Subject to some very rare exceptions, no employers, schools or government officials may inquire about a juvenile record. Juvenile records may be expunged, later on, in most cases. Consult an attorney.

Experienced New Jersey juvenile lawyers know that the juvenile justice system favors the youth who make efforts to improve, and who shows promise for a law-abiding future. Supportive families, success in school, part-time or full-time employment, involvement organized community, religious or athletic activities all suggest that the youth has a significant likelihood of rehabilitation. Juveniles with these advantages benefit most from the non-penal philosophy of the juvenile system.

Families seeking a private attorney should look for an attorney experienced in juvenile court matters. The family can help the case by appearing in court, by trying to keep the juvenile out of trouble, and by providing alternative activities and moral support to the juvenile. The juvenile's attorney should work towards a resolution that is realistic and rehabilitative, one that has a chance of succeeding. Sensitive handling of juvenile criminal matters may be the difference that saves an imperiled juvenile.

Juvenile Court in New Jersey

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

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"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

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"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

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Grandparents Rights - Visitation Rights in Illinois

In recent times grandparent visitation rights has become tough in many of the US states. Grandparent rights have been in question for a while. It was in the year 2002 the Illinois Supreme Court declared that grandparent visitation statues were unconstitutional. The court found that the law was against the fundamental right of parents to raise their children. According to the court the custodial parents could decide to what extent the grandparents had visitation and custody rights in respect of their children. Since then, for so many years, the lower courts declined to order visitation rights to grandparents and continued it until 1st January, 2007 when a new law was incorporated in the statues to provide court ordered visitation rights under certain circumstances.

When a Grandparent Is Eligible for Court Ordered Visitation?

Getting court ordered visitation under the present law is difficult and needs to satisfy certain conditions. The grandparents should prove the court that the parents have denied visitation and their actions are inappropriate for a growing child. To file a petition before the court for visitation at least one of the following conditions must exist in respect of the parents.

1. Death: One parent of the child has died.
2. Inability: One parent is unable to look after the child due to mental illness.
3. Missing: One of the parents has been missing for at least three months.
4. Imprisonment: One of the parents has been sentenced to imprisonment or incarceration during the three month period preceding the filling of the case.

Divorce and Separation: Parents are either divorced or have been legally separated during the three month period before the grandparent files the petition for visitation. A grandparent can also file a petition when there is a pending proceeding involving custody or visitation of the child and at least one of the parents has no objection for grandparent visitation.

Termination of Parent-Child Relationship: When a court terminates the parent -child relationship, the grandparents can file petition for visitation. A grandparent whose parental rights have been terminated through an adoption proceeding has no right to file a petition for visitation.

Child Born Out of Wedlock: When a child is born out of wedlock and the parents are not living together, either maternal grandparent or paternal grandparent can file petition for visitation where a court has established father's paternity of the child.

Besides the above conditions grandparents are allowed visitation rights when the parents voluntarily agree grandparent visitation. Courts uphold the existing court orders containing the provision for voluntary visitation of grandparents.

In all cases the court takes the preferences and best interest of the child while granting grandparents rights for visitation. It also modifies the order passed by it if there is clear and convincing evidence to prove that such change is inevitable to protect the child.

Grandparents Rights - Visitation Rights in Illinois

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

Video Clips. Duration : 2.82 Mins.

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

So THAT'S what they were saying... Like on Facebook! www.facebook.com Follow on Twitter! twitter.com

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

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US Supreme Court Building

Address: 1 First Street Northeast, Washington DC

Architect: Cass Gilbert (he is best known for designing the Woolworth building in New York)

Height: 92 feet, or five floors

Construction began: October 13, 1932

Construction completed: 1935, It took 3 years

Cost to build: .74 million

Made of: Marble, mostly from Vermont, Georgia, and Alabama, but the marble for the 24 columns inside the courtroom were ordered special from Italy.

What is inside:

Basement: Maintenance, parking garage, mailroom

Ground floor: Cafeteria, gift shop, clerk's office

2nd floor: The Great Hall, the courtroom, conference room, all of the judge's chambers (except for one)

3rd floor: 1 judges chamber (she picked the one on the 3rd floor because it was bigger), the office of the decision reporter, legal office, law clerks offices, dining room, reading room

4th floor: library

5th floor: gym and basketball court

What is this building used for?

Inside there is only one courtroom, but it is the most powerful court in the whole country. If a case has already gone to trial somewhere else and nobody can seem to figure out what is fair, the case will go to the Supreme Court to solve the problem.

Why is it important?

When the colonists decided they wanted to become a country, the leaders got together and wrote The Constitution to make sure everyone was treated fairly. Each of the 50 states has its own law, but they all have to follow the laws of the country, too. Sometimes a law will be written in such a confusing way nobody can understand exactly what it means. The justices who work in the Supreme Court do not make new laws, they have the job of figuring out what the law says, and if the law is fair. The Supreme Court is there to make sure every person is guaranteed his or her constitutional rights. If a person has had a trial in another court, but the judge couldn't make a decision, or it doesn't seem like the decision was fair, the case will finally end up in the Supreme Court so that the judges who work there can make a final decision. All of the other courts in America have to follow what the Supreme Court says. It is important that all Americans, rich or poor, have equality. The Supreme Court makes sure that some people aren't treated worse just because they are a certain color or don't have a lot of money. Even The President has to listen to what the Supreme Court rules.

Interesting facts:

*The Supreme Court was around for 145 years before they finally build the building it has now. It used to move around all over the place until President Taft bugged congress to give it its own building.

*Some of the judges didn't like the new building because they were used to a small room, and the new building was too luxurious. One of the judges joked that he felt as if all of the judges should have to enter the courtroom riding on the backs of elephants

*It has its own police force, called The Supreme Court Police to protect the building and the people who live inside

*The front of the building says "Equal Justice Under The Law"*The side says, "Justice, the Guardian of Liberty"

*On November 8, 2005, a chunk of marble fell off the building onto the steps below. It weighed 172 pounds.

*On January 13, 2002, a wild fox got inside and nobody could catch it for more than a day.

*On the walls of the building are sculptures of people who have been important to law and justice throughout history.

*People are allowed to tour the building Monday-Friday, from 9:00-4:30.

US Supreme Court Building

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

Tube. Duration : 2.82 Mins.

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

So THAT'S what they were saying... Like on Facebook! www.facebook.com Follow on Twitter! twitter.com

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

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Grandparents Rights - Visitation Rights in Illinois

In recent times grandparent visitation rights has become tough in many of the US states. Grandparent rights have been in question for a while. It was in the year 2002 the Illinois Supreme Court declared that grandparent visitation statues were unconstitutional. The court found that the law was against the fundamental right of parents to raise their children. According to the court the custodial parents could decide to what extent the grandparents had visitation and custody rights in respect of their children. Since then, for so many years, the lower courts declined to order visitation rights to grandparents and continued it until 1st January, 2007 when a new law was incorporated in the statues to provide court ordered visitation rights under certain circumstances.

When a Grandparent Is Eligible for Court Ordered Visitation?

Getting court ordered visitation under the present law is difficult and needs to satisfy certain conditions. The grandparents should prove the court that the parents have denied visitation and their actions are inappropriate for a growing child. To file a petition before the court for visitation at least one of the following conditions must exist in respect of the parents.

1. Death: One parent of the child has died.
2. Inability: One parent is unable to look after the child due to mental illness.
3. Missing: One of the parents has been missing for at least three months.
4. Imprisonment: One of the parents has been sentenced to imprisonment or incarceration during the three month period preceding the filling of the case.

Divorce and Separation: Parents are either divorced or have been legally separated during the three month period before the grandparent files the petition for visitation. A grandparent can also file a petition when there is a pending proceeding involving custody or visitation of the child and at least one of the parents has no objection for grandparent visitation.

Termination of Parent-Child Relationship: When a court terminates the parent -child relationship, the grandparents can file petition for visitation. A grandparent whose parental rights have been terminated through an adoption proceeding has no right to file a petition for visitation.

Child Born Out of Wedlock: When a child is born out of wedlock and the parents are not living together, either maternal grandparent or paternal grandparent can file petition for visitation where a court has established father's paternity of the child.

Besides the above conditions grandparents are allowed visitation rights when the parents voluntarily agree grandparent visitation. Courts uphold the existing court orders containing the provision for voluntary visitation of grandparents.

In all cases the court takes the preferences and best interest of the child while granting grandparents rights for visitation. It also modifies the order passed by it if there is clear and convincing evidence to prove that such change is inevitable to protect the child.

Grandparents Rights - Visitation Rights in Illinois

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

Tube. Duration : 2.82 Mins.

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

So THAT'S what they were saying... Like on Facebook! www.facebook.com Follow on Twitter! twitter.com

"THE NFL : A Bad Lip Reading" — A Bad Lip Reading of the NFL

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