Landmark Judgement on Anticipatory Bail by SC

The question which generally evolves around the legal corridors is whether bail is a matter of right ? Does it impinges on fundamental rights of the accused etc. This involves issues of great public importance pertaining to the importance of individual’s personal liberty and the society’s interest.

The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society.

The Supreme Court has asked courts to send accused persons to jail only after conviction. In a landmark judgement on bail, which will have a major impact on the several thousands of undertrials languishing in various jails, the Supreme Court said denial of bail to an accused for an indefinite period impinged on the Fundamental Right to life and personal liberty.

“The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty,” said a bench comprising Justice GS Singhvi and Justice HL Dattu, while granting bail to the five corporate executives accused in 2G case.

It is clear from the Statement of Objects and Reasons that the purpose of incorporating Section 438 in the Cr.P.C. was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyse this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the court.

According to Dicey, a distinguished English author of the Constitutional Law in his treatise on Constitutional Law observed that Personal liberty, as understood in England, means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification.

Eminent English Judge Lord Alfred Denning observed: By personal freedom I mean freedom of every law abiding citizen to think what he will, to say what he will, and to go where he will on his lawful occasion without hindrance from any person…. It must be matched, of course, with social security by which I mean the peace and good order of the community in which we live.

“When undertrial prisoners are detained in custody for an indefinite period, Article 21 of the Constitution is violated,” the bench said, adding, “every person, detained or arrested, is entitled to speedy trial.”

The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand trial when called upon, the bench said.

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity’ is the operative test, the bench said. As a natural corollary, courts have to take into the account the necessity element for keeping the accused behind the bar like if freed how they could influence the witnesses and free trial in the case.

The SC further said, “in this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.”

The judges said that the denial of bail to the accused as a preventive measure to ensure free trial in the case has to be balanced by the principle that such denial has also punitive aspect which under law begins only after the conviction. “Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson,” remarked Justice Dattu writing the judgement for the bench.

Provisions of the Criminal Procedure Code confers discretionary jurisdiction on criminal courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general, the bench said.

The above discussion clearly throws light on the fact that the normal rule is “BAIL NOT JAIL”.

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