Bail is Rule and Jail is Exception
Jaw dropping gap between legal maxims and what really happens in India’s trial courts!
By Advocate Suresh Tripathi |Published: 2023-10-02
The Chief Justice of India Hon'ble Dr Justice Dhananjaya Y Chandrachud, speaking at an event held by the Bar Council of India on November 20, 2022, highlighted the issue of an overwhelming number of bail cases reaching the higher judiciary. He stated that the higher courts are inundated with bail matters due to reluctance at the grassroots level to grant bail.
Justice Chandrachud did not shy away from addressing the root cause of this reluctance. He noted that judges at the lower levels are hesitant to grant bail not because they lack the competence to understand the nature of the crime but due to a "sense of fear." There's apprehension among these judges that if they grant bail, they might face repercussions or be targeted in the future for releasing an accused in a serious case.
Similarly, on March 31, 2023, a bench of the Supreme Court comprising Justices Sanjay Kishan Kaul and Aravind Kumar expressed their disapproval of trial courts, particularly a magistrate court in Bihar, for routinely rejecting bail applications without due consideration. The bench remarked that it appears that despite several orders from the Supreme Court, trial courts either misunderstand the scope of these orders or choose to dismiss bail applications without proper evaluation.
The Bombay High Court too recently ruled that undertrial prisoners who have spent a considerable time in jail should typically be granted bail, irrespective of the gravity of the charges they face. According to the High Court, if an undertrial has already served a substantial portion of the potential sentence, the court is generally duty-bound to release them on bail, setting aside the severity of the allegations against them.
The Bombay High Court has ruled that, in cases where undertrial prisoners have spent a considerable amount of time in jail, they should generally be granted bail, even if they are accused of serious offenses. This decision came in the case of Akash Satish Chandalia v. State of Maharashtra, in which Justice Bharati Dangre granted bail to Akash Chandalia, who had been incarcerated for 7.5 years on charges of double murder.
Justice Dangre observed that depriving someone of their personal liberty without ensuring a speedy trial is inconsistent with Article 21 of the Indian Constitution, which guarantees the right to life and personal liberty. She explained that when a timely trial is not feasible, and if the accused has already served a substantial portion of the expected sentence, the court should typically grant bail, irrespective of the seriousness of the allegations against them.
The bail application in question was related to a case involving a gangster named Kisan Pardeshi and his associates, including Chandalia. They were accused of kidnapping, assault, and murder in July 2015. Chandalia noted in his bail application that two co-accused individuals, Vikas Gaikwad and Yasmin Sayyed, had already been released on bail in 2022 due to trial delays.
Justice Dangre observed that there was no compelling reason why Chandalia should not also be granted bail, and she consequently approved his bail application. The judge emphasized that while the seriousness and heinous nature of an offense should be considered when deciding on bail, the extended period of incarceration of an accused as an undertrial prisoner should also carry significant weight in the decision-making process.
The law pertaining to arrests in India is primarily governed by the Code of Criminal Procedure (CrPC), which outlines the powers and procedures related to police arrests. The CrPC allows police officers to make arrests without a warrant if they have reasonable grounds to believe that the person has committed a cognizable offense or is about to commit one. The arrested person must be informed of the grounds for arrest and their right to seek bail.
For non-cognizable offenses, an arrest can only be made with a warrant or with the permission of a magistrate. After arrest, the individual must be presented before a magistrate within 24 hours, excluding travel time, who will decide if the arrest was lawful and whether the person should be remanded in custody or granted bail.
It's crucial to note that the law includes safeguards against arbitrary arrests. For non-cognizable offenses, arrests require a warrant, and in the case of cognizable offenses, the police must have reasonable grounds to believe the accused has committed the offense before making an arrest.
The principle that "bail is the rule and jail is the exception," advocated by Justice V R Krishna Iyer, signifies that courts should grant bail unless there are compelling reasons for custody. Despite Iyer's influential judgments on bail, the situation in trial courts in 2023 appears contrary to his principles.
In Indian society, arrest carries a stigma, and arrested individuals are often presumed guilty. However, the Supreme Court has consistently emphasized the presumption of innocence until proven guilty in a court of law.
Nevertheless, media coverage often portrays arrested individuals as guilty before trial, contrary to the legal principle. In countries like the United States and the United Kingdom, arrest is not the first resort, and the police monitor individuals until there are valid reasons to arrest, such as evidence tampering or flight risk.
