Bail Not Jail

Yes this is how the principle is enshrined in the constitution of India and Article 21 of the constitution of India enshrines this principle as “Right to Life”. But can we say that this principle is being followed in the courts of law and the accused persons who are languishing under trails in jails on the basis of false allegations and getting the most cherished right of the constitution of India. I feel the answer is NO, because the courts have without going into the correctness of the allegations of case, rather merely dismissing the same by just saying that it is matter of trail and at this stage the same cannot be taken into consideration or just that since the charge sheet has not been filed and therefore it is not the right stage to apply for bail.

Now if we critically analyze the bend of mind of a Judge who is dismissing the bail applications without seeing the gravity of the same if the same person gets acquitted or there is a lack of evidence at the trail stage. The Judge seems to be following the course of action which is easy and not taking any blame on himself. But still the question comes that are these accused persons getting the most cherished right and if yes then how many.

Perhaps the hard reality is the accused persons cannot except a Bail from lower court in any eventuality and they will have to come to Higher Courts to seek the bail and now the interesting question is when the Higher Courts are giving the Bail on same allegations and same grounds, then what is that stopping them to get the bail at the lower courts. The answer is clear that lower courts lack the gut feeling to take the responsibility to grant the bail despite having the same “Judicial Discretion” which the higher courts have.

Not commenting on any particular case or judge of the lower courts, rather this has become the fashion and we all face this difficulty for the clients. But the factors which the court must keep in mind before granting the bail applications as held by Hon’ble Supreme Court in “Sanjay Chandra vs CBI” speaking through G.S. Singhvi, H.L. Dattu wherein the Hon’ble Supreme Court has given the following factors which must be kept in mind while granting bail and the same factors must be kept in mind by any courts be it lower or higher courts. The factors to be considered as follows:

1. While granting the bail, the court has to keep in mind:-

1. The nature of accusations, the nature of the evidence in support thereof,
2. The severity of the punishment which conviction will entail,
3. The character, behaviour, means and standing of the accused,
4. Circumstances which are peculiar to the accused,
5. Reasonable possibility of securing the presence of the accused at the trial,
6. Reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.
7. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.

It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

2. Custody is not punitive in nature, but preventive, and must be opted only when the charges are serious and prima facie and not otherwise.

3. Punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

4. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:

“The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargementon bail from the Court.”

5. To enquire into the antecedents of a man who is applying for bail to find whether he has a bad record--particularly a record which suggests that he is likely to commit serious offences while on bail.

6. In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held:

"The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family."

7. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

8. The time to be taken in trial and they should not be subject to indefinite custody.

Advocate Kapil Chandna

(Practicing in Supreme Court of India)

Advocate.kapilc@gmail.com