The Supreme Court judgment granting bail to former Deputy Chief Minister of Delhi, Manish Sisodia, revived a well-settled but endangered principle that ‘jail and not bail is the exception’, even in economic offence cases.
The adage ‘bail, not jail, is the rule’ came from the pen of Justice Krishna Iyer, in 1977.
Also Read: Manish Sisodia bail judgment highlights | SC affirms Sisodia’s ‘right to a speedy trial’
On Friday (August 9, 2024), a Bench of Justices B.R. Gavai and K.V. Viswanathan did not mince words while saying that High Courts and trial courts nowadays prefer to “play safe” and deny bail even if the case is an open-and-shut one.
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“From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail… The principle that bail is a rule and refusal is an exception is, at times, followed in breach… It is high time trial courts and the High Courts recognised once again the principle that ‘bail is the rule and jail is the exception’,” Justice Gavai, who authored the 38-page verdict, observed.
Justice Gavai said detention or jail before being pronounced guilty should not become punishment without trial.
Economic offences
There is merit in granting bail in economic offence cases if trial is not going to commence in the foreseeable future. The court said it was not proper to equate an economic offence with cases punishable with death, imprisonment for life, drugs, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc.
“Even if the allegation is a grave economic offence, it is not a rule that bail should be denied in every case… Ultimately, the consideration has to be made on a case-to-case basis, on the facts… The primary object is to secure the presence of the accused to stand trial,” the Supreme Court said.
Justice Gavai said the right to bail and speedy trial were both facts of the right to life. Bail should be the rule except in cases in which the accused is the reason for delay in the trial.
The court pointed out that Central agencies should not think that an accused in a money laundering case should be denied bail till he had suffered a specified period of incarceration.
“While ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be,” the Supreme Court stressed.
