BAIL IN CRIMINAL LAW: UNDERSTANDING ‘FIRST PRODUCTION’

August 4, 2017
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CLPR has continuously engaged with the criminal justice system using direct court interventions and empirical research to understand the effectiveness of existing justice delivery mechanisms. As part of an Azim Premji Philanthropic Initiatives supported study, CLPR is currently conducting research into ‘first productions’ in criminal courts in Bangalore, Dharwad, and Tumkur. This involves observation of first productions and review of relevant court records to analyse the legal framework and practice of bail adjudication.

According to the Code of Criminal Procedure, an arrested person must be produced before the Magistrate, if the case cannot be investigated within 24 hours. A ‘first production’ is when the accused appears before the Magistrate for the first time after his arrest. At this stage, three things could happen – the court may grant bail, or remand the accused to judicial custody, or remand the accused to police custody.

Bail is a mechanism used by the State to ensure the presence of the accused at the trial. Courts can adjust or deny bail if it appears that the accused may threaten public safety or interfere with the judicial process and this can be done at certain points of intervention, following arrest. The stage of ‘first production’ is one such point of intervention.

Recently the need for reform in bail adjudication in India has gained traction, spurred by the alarming proportion of pre-trial and under trial detainees – 67.2% as of December 2015 (Prison Statistics India, NCRB, 2015). The Supreme Court and High Courts have stated the need for a ‘balance’ between the rights of the accused and the need to protect society. The Law Commission of India, in its 268th Report has reiterated the need to harmonise Bail laws with current socio-legal problems and to ensure that the accused has access to justice.

 An essential component of access to justice is the availability of legal aid. India has a statutorily guaranteed right to free legal aid for the indigent, through Legal Services Authority. At the time of ‘first production’, the Magistrate has a duty to inform the accused of the right to engage a lawyer, and the availability of free legal aid if he cannot afford a lawyer (Mohd. Ajmal Kasab v. State of Maharashtra). But CLPR’s study of first productions in Bangalore found that only in 21% of first productions (61 out of 288), was the accused informed by Magistrate of the right to free legal aid. Read more about our findings on legal aid in The New Indian Express.

In the coming days, CLPR proposes to examine legal aid reform and bail adjudication, especially in the backdrop of systemic challenges with protracted proceedings, huge pendency, and overcrowding of prisons.