A JUDICIAL CONUNDRUM OF "BAIL IS THE RULE AND JAIL IS AN EXCEPTION"

“The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”.

– Justice V.R. Krishna Iyer

INTRODUCTION

“Right to life and liberty of a person cannot be deprived except upon a procedure established by law” stands in line with presumption of innocence (one of the cardinal principle of Criminal Law). The ideal behind an accused whose guilt is yet not established is a prime conviction that results in Bail provisions. Bail is condition for temporary release of an accused where there is a bailable offence, whereas in case of non-bailable offence, it exists as discretion of the court. Bail goes in coherence with arrest, wherein arrest is meant to secure the appearance of the person who is charged guilty. The reasoning behind granting bail is that the presence of the accused can be guaranteed instead of imprisoning him in jail and thereby not depriving him of his liberty. Bail ensures that by giving a certain security and without curtailing the liberty of the accused the temporary release is given on the condition of presence whenever so required by the Court.

BAIL IS A RULE AND JAIL IS AN EXCEPTION

“Bail is a rule and jail is an exception” is complimentary with the liberty of an accused whose guilt is not yet established. Presence of an accused is sine qua non for criminal justice administration, which is guaranteed as a matter of right through bail in bailable offences as specified in the First Schedule of the Bharatiya Nyaya Suraksha Sanhita, 2023.

RECOGNITION OF BAIL AS A RULE

Recently, Chief Justice of India D.Y. Chandrachud emphasized on the need to look on the prerogative of bail as a rule and not an exception and delivered in the All District Judges Conference. It was emphasized that bail as a subset of personal liberty, where the District Judiciary contains itself form providing bail is a serious concern. It is the District Judiciary which primarily decides upon the matter of bail and thus the adduced principle of bail in first instance must be adopted, except for the situations which might infer some reasonable ground for the judge. He further raised the concern of providing jail as a rule by the District Judiciary and questioned on such attribute, adding the dire need to reinvent the mindset.

Cases emphasizing bail as a matter of rule are as under-

Jalaluddin Khan v. Union of India [2024 INSC 604],

In this case, the precept of “Bail is the rule and jail is an exception” as a settled law was recognized. It adds that bail cannot be revoked after it is ascertained or granted by the court. Bail needs to strictly stick with the law that allows for its grant and no deviance be there from the law providing about the bail.

Furthermore, Justice Abhay Oka added that the courts should grant bail primarily and on a secondary connotation shall consider the imprisonment of an accused. It is the commitment of the court towards securing individual liberty which is the undercurrent for bail. Under Special Statues as well, the mandate of bail as a rule stands. Any deviance in non determination of bail would attract violation of Article 21 of the Constitution of India.

Prem Prakash v. Union of India through the Directorate of Enforcement [2024 LiveLaw (SC) 617]

It was held that-“Liberty of the individual is always a rule and deprivation is the exception". It categorically allows deprivation only for the cases in which bail cannot be given prima facie as per the law laid down. The curtailment of the individual liberty can only be construed by the procedure established by law, which must be just, fair and a reasonable one. In pursuance to the decision, the bench considered the long incarceration of the petitioner and the delay in trial due to the large number of witnesses to grant bail. The judgment of the Jharkhand High Court was set aside which denied bail to the petitioner.

Gali Janrdhan Reddy v. State of Andhra Pradesh [(2016) 2 SCC (Cri) 661]

It was observed that only in cases where a reasonable apprehension exists that the accused can influence the investigation and the witnesses, bail is generally denied irrespective it exists as a matter of right.

Bail is generally a post arrest stage, that accounts for the presence of the accused. It overlooks the interest of the accused and emphasizes on the truthfulness of the accused to appear whenever being called upon by the court.

JUSTIFICATION OF BAIL AS A RULE

Bail is an opportunity that is present with the accused whose guilt is yet to be decided to exercise his/her personal liberty on account of the factum that the trial is still pending. The concept of bail stands on the pedestal of human rights clubbed with fair justice, and is centric to the accused rights as well. Bail works in the furtherance of access to justice, and a measure to ensure the innocence of those who might not be actually be guilty.

Establishing bail as a rule is a necessary quantum that can determine the quest for individual liberty that lies with the accused who is not being held guilty as the trial is still pending. Bail acts as security that the accused produces before the court by entering into a bond with certain parameters presented to ensure his presence like not leaving the country or a specific jurisdiction, etc. The provisions of Bail are dealt in the Bharatiya Nyaya Suraksha Sanhita, 2023 under Chapter 35 (Section 478-496). The use of bail as a rule has seen a fading value on the District Judiciary, wherein it is taken as a an exception. The conundrum over bail as a rule is a challenge at the grass root of the judicial setup due to various technical and procedural roadblocks set as judicial precedents which have have fogged the District Courts.

CONCLUSION

Individual liberty is a cornerstone and a cradle of constitutional system recognized under Article 21. Bail is an essential conviction of the criminal justice administration and is a part and parcel of fair justice in favor of the accused. Although, bail as a rule might sound as a dead letter but in many cases it is the rule which is diligently followed.

The primary concern of justice administration is access to justice for all, for which bail is a crucial step. The path towards the conception of jail as an exception has to become obsolete so as to cater wings to bail. The debacle of bail is a controversial point for judiciary to decide but only in cases of reasonable apprehension that the accused might interfere with the investigation and witnesses shall be the ground for not granting bail. Bail is a remedy which exists as a matter of right to the accused in pursuance to ensure personal liberty.

References

1. https://blog.ipleaders.in/bail-when-is-it-granted-by-the-court/
2. Kamlapati v. State of West Bengal [AIR 1979 SC 777]
3. https://www.livelaw.in/top-stories/i-want-to-hear-from-district-judges-why-bail-is-the-rule-principle-is-losing-ground-cji-dy-chandrachud-251076?fromIpLogin=76817.35311604783
4. Jalaluddin Khan v. Union of India [2024 INSC 604]
5. Prem Prakash v. Union of India through the Directorate of Enforcement [2024 LiveLaw (SC) 617]
6. Gali Janrdhan Reddy v. State of Andhra Pradesh [(2016) 2 SCC (Cri) 661]