The jurisprudence of bail in post-independent India, 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”. The same procedural law which provides for arrest and incarceration, ensures that bail can be sought by an accused through a broad spectrum of provisions ranging from pre-arrest bail to statutory bail. While the former envisaged under Section 438 of the Code of Criminal Procedure (CrPC) enables the accused to approach a Sessions court or High Court seeking a direction to release him on bail in case he is arrested on a non-bailable offence, the latter, as conceived 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.
The basic presumption
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 under the Penal Code as well as offences framed under special statutes like the Unlawful Activities Prevention Act, the Narcotic and Psychotropic Substances Act and the Prevention of Money Laundering Act, all of which impose extremely rigid conditions for the grant of bail.
While bail refers to the conditional release of a person from confinement or custody during investigation and trial, it can also be sought during the appellate stage to prevent endless internment during the pendency of appeal though the benefit of the presumption of innocence is not available at the latter stage. In the ever-enduring words of Justice Krishna Iyer, “The issue of ‘Bail or Jail’ — at the pre-trial or post-conviction stage — although largely hinging on judicial discretion, is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law.” (Gudikanti Narasimhulu vs Public Prosecutor (1977)).
Grant of bail as the rule
A common misnomer that precipitates public apprehension is the perception that jail is and ought to be a necessary consequence of arrest and the failure to jail an accused post-arrest endangers public justice. In fact, 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. Unless bail is granted to an accused who is presumed to be innocent in the eyes of the law until guilt is proven, he may not be able to take the necessary steps lawfully permissible to defend himself. The Supreme Court has time and again reiterated that “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 as the rule and jail as the exception. Such an understanding reflects the legal lineage which can be traced back to the verdict of the 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 on the basis of the aforesaid principle. This principle has been consistently reaffirmed by the Supreme Court in a catena of decisions including the constitution bench decision in Gurbaksh Singh Sibbia (1980).
The CrPC defines “bailable offence” as an offence which 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 “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 the discretion exercised by the judge taking note of the factual aspects of the case. It was held by the Calcutta High Court in 1923 “ that the discretionary power of the Court to admit to bail is not arbitrary, but is judicial”, and “is governed by established principles.”(Nagendra vs King Emperor).
Judicial discretion and its requirements
As declared by the Supreme Court, “the grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.” (Sanjay Chandra vs CBI (2011)). In practice, the notion of judicial discretion remains circumscribed by the judicial pronouncements of superior courts.
However, a cryptic judicial order sans ratiocination is unhealthy as it endangers not only liberty but also law. The application of the mind is a necessary pre-requisite of a sound judicial order.
In 2022, the Supreme Court derided the recent tendency of granting or refusing bail through terse orders by observing that “reasoning is the life blood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system. A non-reasoned (cryptic) order suffers the vice of arbitrariness.”(Ms. Y versus State of Rajasthan & Ors.(2022)).
The triple test
The grant of regular bail is usually guided by what is referred to as the 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 (P. Chidambaram Case (2019)) that the gravity of the offence may also be an additional consideration which may be ascertained by the sentence prescribed for the offence alleged to have been committed.
Despite multitude of declarations of the apex court, one is left surprised that there are numerous instances of courts of law violating the legal principles declared by the Supreme Court and resorting to verdicts beyond reason and comprehension. The right to personal liberty as manifested in Article 21 will remain elusive as long as institutional attitudes remain stymied by such perverse considerations.
Abhilash M.R is lawyer practising in the Supreme Court
