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.
‘Bail is rule, jail is an exception’ is a legal principle that was laid down by the Supreme Court in a landmark judgement of State of Rajasthan VRS Balachand alia Balia . in 1978. The judgement was based upon several rights that have been guaranteed by the Constitution of India with article 21 of the Constitution of India.
Various Sections of CrPC provide statutory rights to detained individuals or individuals apprehending detention. One such right is known as ‘Bail’. It is a provisional release of a detained person, who is accused of a crime and the judgement is yet to be given. The term ‘Bail’ has been derived from a French verb ‘Bailer’ which means ‘to give’ or ‘to deliver.’ Bail is granted keeping in mind the objective behind arrest which is to ensure the presence of the accused before the court for the trial without any inconvenience. However, if the presence of the accused can be guaranteed without detaining the person, then it would be unjust to violate his right to liberty. Therefore, bail is a form of security deposited to appear before the court for release.
Unless there are some cogent reasons for custodial interrogation and sustained detention at a pre-trial stage, detaining an individual and encroaching his right to liberty is considered to be punitive and against the principles of natural justice. Further, the application of the Reformative theory to the principles of punishment calls for a balance between two theories, namely deterrent theory, and punitive theory, i.e., to reform an accused and to keep him away from hardened criminals in jail which are deemed to be universities of crime. Furthermore, with a rise in Human rights activism, the equilibrium between the liberty of an individual and the interest of society has become the main concern. So unless there are some cogent reasons such as chances of the accused fleeing from justice or the fear of him tampering with the evidence or inducing the witnesses, detention of the accused is against his fundamental right to liberty which is totally uncalled for. Therefore, the courts ensure that a person is not detained unless the interest of justice suffers if an arrest is not made.
As regards Section 41 of the CrPC, the Supreme Court has significantly observed that even for a cognizable offence, an arrest of the accused is not mandatory and that an arrest in offences punishable with imprisonment below seven years or extending to seven years can only be made if the IO is satisfied that there is a reason to believe that the accused committed the offence and that there is necessity for such an arrest. Pertinently, Section 41 mandates the IO to record the reasons while choosing to arrest/or not choosing to arrest.
Section 167 (Default Bail) of the CrPC pertains to the procedure when an investigation cannot be completed in twenty-four hours and also provides the maximum period of time to complete an investigation i.e., ninety days when the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years; or sixty days where the investigation relates to any other offence. In this regard, the Court held that a failure by the IO to complete the investigation within the prescribed time would enable the release of the accused and such right is absolute and indefeasible and that such right cannot be taken away even during unforeseen circumstances such as the pandemic. At this juncture, it may be pertinent to point out the observations of the Supreme Court:
“The legislature has also and always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged and indefinite period.”
The rule that bail is the rule and jail is the exception and that arrest is a draconian measure resulting in curtailment of liberty. Consequently, the Supreme Court has directed the Courts to decide on bail applications within a time bound manner.
The Supreme Court has prominently reiterated that the burden vests on the investigative agencies to comply with procedural safeguards, the real test is in its practical application especially by the Magistrates and the investigative agencies to implement these guidelines in its letter and spirit. and accordingly, strike a balance between the rights of the accused and the interest of a criminal investigation.
Siddhartha Mishra
( Advocate Supreme Court of India )
Email : – ssmishra33@gmail.com
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