BAIL IS A RULE, JAIL IS AN EXCEPTION- AN ANALYSIS
INTRODUCTION:
The Supreme Court established the principle that "bail is the rule and incarceration is the exception" in the landmark decision of State of Rajasthan v. Balchand alias Baliya. The ruling was based on the Indian Constitution's several rights, the most fundamental of which is Article 21. Detention of a private person violates his right to life and liberty, which is guaranteed by Article 21 of the Indian Constitution. The most important goal of detention is to ensure smooth procedures by making the accused available for trials with minimal disruption. As a result, if it is frequently ensured that the accused will be available as and when required for the trial, detention is unnecessary. As a result, it was decided that the rules of the Criminal Procedure Code, 1973 (CrPC) concerning the arrest of a private must be read in such a way that detention of an individual must be avoided unless necessary.
HISTORICAL VIEW:
Bail dates to 399 BC, when Plato attempted to arrange a bond in order to liberate Socrates. The circuit courts in Britain established a bail system in the Middle Ages. The contemporary concept of bail is largely derived from all of the mediaeval regulations that control it. According to Kautilya's Arthashastra, avoiding pre-trial custody was optimal, hence the concept of bail existed in ancient India as well. Bail was practised in the form of ‘Muchalaka' and ‘Zamanat' during the Mughal dynasty in the 17th century. The Code of Criminal Procedure, 1973 (hereinafter referred to as the "Act") governs bail at the moment. Although the term bail is not defined directly in the Act, the terms bailable offence and non-bailable offence are specified in Section 2. (a). The provisions of the Act relating to bail are governed by Sections 436–450.
HOW IS A BAIL GRANTED?
When a person is charged with a crime, he has the right to seek bail. A person seeking bail can go to the Session court or the High court. It is not required that an applicant file a bail application with the sessions court first and then go to the high court if the plea is rejected. A person in detention or on the verge of arrest can go straight to the high court for bail without first going to a sessions court. However, in most cases, the High Court will not hear a direct application and will instead direct the petitioner to go to Sessions Court first and then to the High Court after the Sessions Court has rejected the application.
A person accused of a bailable offence under the I.P.C. can be granted bail under Section 436 of the Code of Criminal Procedure, 1973. In non-bailable offences, however, Section 437 of the Code of Criminal Procedure, 1973, states that the accused has no right to bail. In the case of non-bailable offences, the court has the power to grant bail.
It is fair to say that giving bail is, for the most part, a discretionary relief, and courts have not followed any set pattern in granting or denying bail over the years.
TYPES OF BAIL:
The Criminal Procedure Code regulates bails in India, and they are divided into four categories:
- Regular Bail
- Anticipatory Bail
- Interim Bail
- Default Bail
- Anticipatory Bail
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BAIL IS A RULE, JAIL IS AN EXCEPTION:
Articles 21 and 22[2] of the Indian Constitution, as well as the well-known principle of "Presumption of Innocence Unless Proven Guilty,"give rise to the concept of bail as a rule and imprisonment as an exception.
A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because he or she is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. According to Article 21, every procedure that deprives a person of his or her life or liberty must be just, fair, and reasonable. A just, fair, and reasonable method implies that he has a right to free legal services if he is unable to obtain them. It means that you are entitled to a speedy trial. It refers to human confinement, whether for preventative or punitive purposes.”
The Supreme Court granted bail to Republic TV Editor-in-Chief Arnab Goswami in a 2018 case of abatement of suicide on November 11th, 2020. On Goswami's petition, a vacation bench of justices D.Y. Chandrachud and Indira Banerjee upheld a Bombay High Court ruling denying interim bail to Goswami in the Anvay Naik-Kumud Naik suicide case on November 9th. The Supreme Court of India intervened to defend the rule of law as well as Arnab Goswami's fundamental rights. Detention of a person violates Article 21 of the Indian Constitution, which guarantees the right to life and liberty. It is, without a doubt, a significant, ground-breaking, and admirable decision. The rule of law triumphed, and an individual's liberty was properly safeguarded. However, it is clear that such speed and zeal are not present in the normal course of business.
Bail usually takes days, weeks, or months to get. Undertrials are overcrowding the country's jails, and courts are hesitant to give bail. In truth, bail is seldom granted quickly, and in most cases, the prosecution is given weeks to prepare a response. Once an accused is placed in judicial custody, the prosecution should be granted no more than three days to make a response. Regular bail applications should be decided by the courts within seven days of filing. Unfortunately, it is common to see accused people languishing in jails for months while awaiting the outcome of their bail application. If Courts do not determine bail applications on a priority and in a timely way, the notion of "Bail being Rule and Jail being an Exception" will be rendered meaningless. Unfortunately, obtaining bail for a (Common Man) is a challenging task. Once a FIR is filed, a person and his supporters are forced to run from pillar to post in search of a suspect's/bail. Bail is described as a sum of money or property lodged with a court. It is a type of security used to release a suspect who has been detained on the condition that they return for their trial and court appearances. The Supreme Court of India reminded a person whose bail request had been denied by the High Court that “bail is the rule and incarceration is the exception” while granting liberty. When giving these rulings or sending people to prison, the court had encouraged judges to act compassionately. After investigating the case, the court learned that neither the FIR nor the charge sheet had been filed before the accused was held.
The supreme court bench led by Justice Madan B Lokur ruled that "the presumption of innocence" is "a fundamental precept of criminal jurisprudence," and that "courts should take certain pertinent considerations into account before sending an accused to prison."
Detaining an individual and infringing on his right to liberty is deemed punitive and against the principles of natural justice unless there are compelling reasons for custodial interrogation and continued custody at a pre-trial stage. Furthermore, the application of the Reformative theory to the principles of punishment necessitates a balance between two theories, namely deterrence theory and punitive theory, i.e., to reform an accused and keep him away from hardened criminals in prisons that are seen as crime universities. Furthermore, with the advent of human rights movement, finding a balance between an individual's liberty and the interests of society has become a major challenge. So, unless there are compelling reasons, such as the risk of the accused fleeing justice or the fear of him tampering with evidence or inducing witnesses, the accused's imprisonment is unjustified. As a result, the courts ensure that a person is not imprisoned until an arrest will jeopardize the interests of justice.
CHALLENGE OF ACCESSIBILITY DURING THE COVID-19
Despite the best efforts of the courts, several bail hearings were postponed during the lockdown period due to a lack of paper verification, malfunctioning video connectivity during e-hearings, lawyer non-appearance, and case withdrawal. While 'very essential matters' were heard by video link, there were no established limits for what constituted a 'urgent matter,' and there was no clarity about how the courts, particularly district courts, functioned. In these uncertain times, it is sad to see that the courts have not given bail proceedings the attention they need.
In various cases, the High Courts have stated that bail applications cannot be handled as a "urgent judicial matter" during a pandemic. Unjust rejection of bail, we feel, is one of the most egregious abuses of an individual's right to personal liberty, especially at this remarkable moment.
CONCLUSION
Needless to say, the courts have the discretionary power to grant bail in non-bailable offences, but such discretion should be exercised justly, reasonably, fairly, and objectively, as the prosecution agencies are currently leaving no stone unturned in their efforts to oppose the bail application unnecessarily. It is urgent to balance the rights of an accused and victim so that getting bail on reasonable grounds is no longer a difficult task. It is a well-known fact that if a bail application for a non-bailable offence is rejected by the court on unreasonable grounds, then an accused will not have to live at the mercy of police, lawyers, judges, or the lengthy procedure.