BAIL

CONTEXT

The jurisprudence of bail is anchored on  the bedrock of Article 21 of the constitution which safeguards not only life but also liberty by commanding that liberty can be deprived only through the procedure established by law, which must be just, fair and reasonable

Prolonged detention of an accused pending trial may convert the process itself into a punishment rendering a finding of acquittal practically useless as the accused would have suffered much of the punishment by then. This is why the grant of bail is fundamentally important.

Bail can be sought by an accused through a broad spectrum of provisions ranging from pre-arrest bail to statutory bail.

 Pre-arrest bail envisaged under section 438 of the code of criminal procedure enables the accused to approach a session court or High court seeking a direction to release him on bail in case he is arrested on a non-bailable offence

Statutory bail under section 167 of the CrPC, vests with the accused the right to be released if the investigation is not completed within ninety days or sixty days, as the case may be, depending on the severity of the alleged offence.

ABOUT BAIL

Bail –is the conditional release of a person from confinement or custody during investigation and trial.

CrPC defines a bailable offence as an offence that is shown as bailable in the First Schedule of the CrPC, or which is made bailable by any other law for the time being in force and a non-bailable offence means any other offence.

While bail is a matter of right in bailable offences, in non-bailable offences, the grant of bail is at discretion exercised by the judge taking note of the factual aspects of the case.

It can also be sought during the appellate stage to prevent endless internment during the pendency of the appeal.

The presumption of innocence is a foundational postulate in India’s criminal jurisprudence. This is the main reason why an accused is usually released on bail pending investigation and trial except for a few offences framed under the Penal code as well as offences framed under special statutes like the Unlawful Activities Prevention Act, Narcotic and Psychotropic Substances Act, and the Prevention of Money-laundering Act, all of which impose extremely rigid conditions for the grant of bail.

BAIL IS THE RULE AND JAIL IS THE EXCEPTION

A conjoint reading of section 436(bailable offences) and 437 (non-bailable offences) of the CrPC makes it clear that the wisdom of the legislature is to secure bail .various verdicts which reflect this –

Allahabad High court in Emperor vs. H.L. Hutchinson (1932), wherein the trade unionists who were accused to have conspired against the empire were granted bail based on the aforesaid principle.

Gurbaksh Singh Sibia (1980) the same principle reaffirmed by Supreme Court.

GROUNDS OF BAIL

As declared by Supreme Court the grant or denial is regulated, to large extent, by the facts and circumstances of each particular case.

The right to bail is not to be denied merely because of the sentiments of the community against the accused.

The Primary purposes of bail are-

• To relieve the accused of imprisonment
• To relieve the state of the burden of keeping him
• To keep the accused constructively in the custody of the court, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.

Ms Y versus State of Rajasthan & Ors, 2022 –Supreme Court held that reasoning is the lifeblood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system. A non-reasoned order suffers the vice of arbitrariness.

TRIPLE TEST

The grant of bail is usually guided by a triple test-

• The ascertainment of whether the accused is at flight risk
• Possibility of tampering with the evidence
• And influencing witnesses.
• In addition to the above three, it was held by a three-judge bench of the Supreme court in the P . Chidambaram case of 2019 that the gravity of the offence may also be an additional consideration that may be ascertained by the sentence prescribed for the offence alleged to have been committed.