‘Bail is a rule, jail is an exception’ is a legal doctrine that was laid down by the Supreme Court of India in a landmark judgement of State of Rajasthan vs. Balchand alias Baliya (AIR 1977 2447). The legal doctrine, in this case, was laid down by Justice V. Krishna Aiyer, who based it on fundamental Rights guaranteed by the constitution of India.
What is bail?
Bail commonly means release on one’s own bond, with or without sureties. Every accused person is presumed to be innocent until proved guilty. The effect of granting bail is not to set the accused free, but to release him from custody and to entrust him to his own bond and to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. Thus, Bail is security obtained from a person arrested regarding an offence for the purpose of securing his presence during the course of a trial.
According to Black’s Law Dictionary, Bail is defined as “Procuring 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.”
In the case of Superintendent and Remembrance of Legal Affairs vs. Amiya Kumar Roy Chowdary, the Court held that “the law of bails, has to dovetail two conflicting demands, namely, on one hand, the requirements of 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 viz., the presumption of innocence of an accused till he is found guilty.”
Granting of bail
When the person is accused of a crime, he has a right to apply for bail. A person who wants to get bail can approach the Session court or High court. It is not mandatory that while filling a bail Application, an applicant must approach the sessions court first and on the rejection of the plea move to the high court. A person in custody or apprehending arrest can move a high court directly seeking bail without approaching a sessions court first. However, normally High court does not entertain the direct application and asks the applicant to go to Sessions Court first and come to high court only after rejection by Sessions Court.
Section 436 of the Code of Criminal Procedure, 1973, lays down that a person accused of a bailable offence under I.P.C. can be granted bail. On the other hand, Section 437 of the Code of Criminal Procedure,1973 lays down that the accused does not have the right to bail in non-bailable offences. It is the discretion of the court to grant bail in case of non-bailable offences.
It will not be wrong to say that granting of bail, by and large, is a discretionary relief and courts over the years have not followed any fixed pattern in allowing or disallowing bail.
Types of Bail
In India, bails are regulated by the Criminal Procedure Code and can be broadly classified into 4 main types; they are: -
· Regular Bail: - Is a bail granted to a person who has been arrested and/or was in police custody or judicial custody.
· Anticipatory Bail: - Is bail granted before the arrest and is granted normally by Sessions Court or High Court. It is granted when someone apprehends arrest in some crime.
· Interim Bail: - Is a bail granted before the hearing for a grant of regular bail or anticipatory bail for a shorter span of time.
· Default bail: - Is granted as per Section 436A of the code of criminal procedure when the accused is under trial and is in judicial custody and has undergone half of the maximum punishment awardable for the offence.
“Anticipatory bail” can be applied at different stages. Any person who is apprehending his arrest even if there is no F.I.R lodged against can approach for Anticipatory bail. In case FIR is lodged but the investigation has not yet begun i.e. pre-investigation stage then that person can apply for Anticipatory bail. A person can also approach for anticipatory bail at the post-investigation stage.
While granting anticipatory bail, Courts sees the seriousness of the offence, Role of the accused and evidence against the accused. It is expected that after exercising the discretion judiciously, the High Court or the Sessions Court grants “anticipatory bail” and that too after hearing the Public Prosecutor.
On the other hand Section 439 of Cr. P.C. is the guiding principle for adjudicating a Regular Bail Application wherein Court takes into consideration several aspects viz. the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds.
Each criminal case presents its own peculiar factual matrix, and therefore, grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is a prima facie case against the accused. The court must not undertake a meticulous examination of the evidence collected by the police, or rather order specific tests in order to adjudicate bail applications.
Bail is rule, jail is an exception
In a recent case, the Supreme Court on 11th November 2020 granted bail to Republic TV Editor-in-Chief Arnab Goswami in a 2018 case of abatement of suicide. A vacation bench of justices D.Y. Chandrachud and Indira Banerjee gave the order on Goswami’s petition challenging the 9th November Bombay High Court order declining interim bail to Goswami in the Anvay Naik-Kumud Naik suicide. The Hon’ble Apex court intervened to protect the Rule of Law and also to protect the fundamental rights of Arnab Goswami.
Detention of an individual infringes the Right to Life and Liberty guaranteed under Article 21 of Constitution of India. It is indeed a very important, pathbreaking and laudable judgment. Rule of law prevailed and liberty of an individual was rightly protected. However, it is seen that such speed and alacrity is not there in the regular course of working.
Normally it takes day, weeks and months to get bail. The Jails of the country are overcrowded with undertrials and Courts are reluctant to grant bail. In fact, there is no speed in granting bail and in normal course Prosecution is given weeks after weeks only to file a reply.
The Prosecution should not be given more than three days to file reply once accused is sent to Judicial custody.The Courts should decide regular bail application within a maximum time period of 7 days from filing. Sadly, in practice, it is observed accused languish in jails for months waiting for disposal of his bail application. The doctrine of “Bail being Rule and Jail being an exception” will have no meaning if Courts do not decide the bail applications on priority and in a time-bound manner.
Sadly, for an “Aam Aadmi” (Common Man), acquiring bail is a tough thing. Once an FIR is registered, a person and his well-wishers are made to run from pillar to post for bail of suspect/accused. The suspect/accused is at the mercy of Police Officer, he is at the mercy of Lawyers, he is at the mercy of Lordships, he is at the mercy of procedures which never comes to an end. Life of a common man revolves around the court and procedure.
I can tell you; it is such a difficult task to even to get the matter heard and get that quick bail in simplest of an offence. The reality remains that in our country, quick bail for a rich and powerful person is not that difficult but quick bail for an Aam Aadmi, for the middle class and for the poor class is of great difficulty. Does that imply that Right to Liberty is available only to Rich and Powerful?
The main purpose of detention is to ensure easy proceedings by availing the accused for the trials without any inconvenience. Thus, if it can be ensured that the accused will be available as and when required for the trial, then, detaining the person is not required and custody should be avoided at all cost.
The provisions of the Criminal Procedure Code, 1973 (Cr. P.C.) regarding the arrest of an individual must be interpreted in a sense that unless indispensable, detention of a person must be avoided. Let’s not forget that guilt of a person can be established only after trial and we come across many a case where accused are acquitted of all charges after years languishing in jail and after years of trial. In all such cases the Right to Life and Liberty is the biggest casualty and every such case is no less than a crime by state and judiciary upon the acquitted person who has languished in jail for denial of bail.
(Rakesh K. Singh is an Advocate by profession and is the Founder Head of Law firm RKS Associate. He is also the Founder Head of NGO - Bharat Utthan Sangh. All views expressed in this article are his own.)