Bail, in non-bailable offences, is not a matter of right of the accused person. Section 437 of the Code of Criminal Procedure envisages the provision as regards bail in case of non-bailable offences, which may or may not be granted depending on the discretion of the court. But this provision also provides a proviso which exempts women, and empowers court to grant bail to a woman irrespective of the gravity of the crime. The recent take of CBI Court by refusing bail to Kanimozhi, Member of Parliament who is one of the accused in 2-G Scam case, on the ground that no special consideration can be given to a woman has come with differed opinions. A step on it, an appeal was filed before the Delhi High Court against the decision of CBI court on the ground that the lower court erred in classifying the term “woman” under CrPC when no such classification can be made under CrPC or the Constitution of India. No matter what will be the decision of the High Court, the proviso to Section 437 of the Indian Constitution illustrates the gender biased behaviour of the Criminal law prevailing since its inception. It would be quite interesting to keep a watch on the prospective stand of Delhi High Court in this case. Section 437 of CrPC uses the word “may”, which means it is not mandatory for the court to grant bail to the woman, who is an accused. It is merely an enabling provision which empowers the court to grant bail not only to a woman, but it should also be kept in mind that those provisions which affect fundamental rights of a person shall be given effect generally.[1]
Supreme Court, once while dealing with Section 437 of CrPC, was of the view that though this Section gives special consideration to a woman, it cannot be considered to be a mandatory provision.[2]Though once it had been held by Allahabad High Court that this proviso to Section 437 shall be exercised mandatorily,[3]but the same decision was reversed by Allahabad High Court itself stating that the provision is not mandatory in nature.[4]In the former case, High Court was of the view that the word “may” provided therein under the Code is not discretionary but mandatory in nature, while in the latter case it was of the view that is subjected to judicial discretion. Now, it will depend on the discretion of the Delhi High Court whether it will grant bail to Kanimozhi. Since it would not be mandatory for the court to provide remedy to her under this proviso, claiming bail based on this proviso will not be of much help. Though other instance may go in favour of her for e.g. the duration for which she has been in jail and the tedious behaviour of CBI by not opposing the bail plea. No doubt these facts may well go in her favour, but it would be interesting to see the reaction of the high court towards the reasoning of lower court judge.
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