Pradeep Gupta
The principle ” bail is the norm and not jail” was laid down by the Supreme Court in a judgment delivered by Justice Krishna Iyer on 20th September , 1977 in the case titled State of Rajasthan V. Balchand. A person, however, is enlarged on bail subject to condition that he does not flee or interfere with the course of justice. The judgment recognized that pre-trial incarceration is a punishment in itself and violative of fundamental right to life and personal liberty granted under Article 21 of the Constitution.
Bail is a legal provision providing for release of a person, accused or suspected of commission of an offence, from the custody of law upon conditions imposed by an officer or Court on execution by such person of a personal bond or bail bond, pending conclusion of a criminal case. The purpose of arrest and bail is to ensure accused person’s appearance in Court to face trial while retaining his personal liberty. If presence of the accused is ensured during trial, detention is unnecessary. Bail can either be regular – valid for the period of investigation or trial, Anticipatory, interim granted for a short period during pendency of application for regular bail and, lastly default bail.
As per Bharatiya Nagrik Suraksha Sanhita, 2023 (BNSS) in case of a person other than a person accused of a non-bailable offence, arrested or detained without warrant, bail can be granted by the officer in-charge of Police Station , on executing a Bond or a Bail Bond with surely. A provision also exists in BNSS for grant of bail in case of non-bailable offences subject to conditions to ensure presence of the accused during trial. If a person has undergone detention for a period exceeding one half of the maximum prescribed period- one third in case of first time offenders – the court has mandatorily to release the person on bail. In May, 2024 in the case of Ajit Peter Kerkar, the Supreme Court held that the provision also applied to persons who have remained imprisoned for more than fifty percent of maximum sentence in money laundering cases (PMLA).
In the past Courts have resorted to narrow interpretation of law in bail matters. In Vijay Madanlal Choudhary V Union of India, the Supreme Court in 2022 upheld all challenged provisions of PMLA including restrictive bail conditions even holding that ” it cannot be said that presumption of innocence is a institutional guarantee” side stepping individual’s fundamental right to life and personal liberty.
In the last couple of years there have been small, but crucial retracts from the ruling in Madanlal Choudhary’s case. In Manish Sasodia’s case the Supreme Court has on 9th august, 2024 held that speedy trial is a fundamental right and reiterated that “bail is the rule and jail exception”. The judgement captures incisively the hesitancy of courts to grant bail. It is relevant to quote a paragraph from the judgement:-
“………. That over a period of time, the trial courts and the High Courts have forgotten a very well established principle of law that bail is not to be withheld as punishment. From our experience we can say that the trial courts and the High Courts attempt to play safe in the matters of grant of bail. The principle that bail is rule and refusal an exception is, at times followed in breach . On account of non-grant of bail, even in straight forward open and shut cases, the Supreme Court is flooded with large number of bail petitions there by adding to the huge pendency. It is high time that the trial courts and the High Courts recognize the principle that “bail is the rule and jail is the exception”.
The prisons are full to the brim. The judgment offers a glimmer of hope to thousands of prisoners languishing in jails without bail. According to an estimate, Seventy Five percent of inmates are under trial prisoners who are not able to afford bail much less the means to arrange high profile lawyers.
The death of a 84 year old activist, Stan Swamy, suffering from Parkinson disease while languishing in prison, denied bail multiple times in a UAPA case is an instance of heartless judicial process. However, some recent Supreme court pronouncements on grant of bail offer a hope to the accused against unconscionable deprivation of their liberty. In kavitha’s case, an accused in excise scam, the Apex Court on 27 August, 2024 reiterated that fundamental right to liberty provided under Article 21 is superior to statutory restrictions. Again in Prem Prakash V. Union of India the Apex Court on 28 August, 2024 held that ” liberty of individual is always the rule and deprivation is the exception” and underlined that the legal principle “jail is the exception, bail is the rule” will apply even in cases registered under PMLA. In another case, Frank Vitus V. Narcotics Control Bureau decided on 8 July 2023 the Supreme Court held that as long as the accused ” is not held guilty, the presumption of innocence is applicable” and the bail conditions that infringe the accused person’s right to privacy will be violative of Article 21. In another case of Ajit Peter Kerkar in May, 2024 the Supreme Court extended the principle that a person who has undergone half of the maximum sentence as an under trial shall be released on bail, even in money laundering offences. SC’s recent verdicts on bail affirm primacy of fundamental rights. The shift is welcome when only two years ago in Vijay Madanlal Chaudhary V Union of India, the SC had upheld the stringent provision of PMLA.
While these judgements are significant, the 2022 judgement in Vijay Madanlal Choudary V. Union of India is still law of the land. Lot still remains to be done. The former Chief Justice of India often bemoaned reluctance on the part of the trial courts to grant bail and the bail appeals reaching the High Courts and Supreme Court, adding to huge pendency. Hopefully, CJI’s exhortations will nudge the courts to reassert the cardinal principle of criminal justice system – bail is the norm and jail the exception and that in the matter of personal liberty every day counts. ” Fait Justitia Ruat Caelum” – let justice be done, though heavens fall.
(The author is a Law student in the University of Jammu)
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