Q. “Bail or Jail” – Discuss the paramount consideration in this regard.

Ans: There is no strait jacket formula or settled rules for the use of discretion but at the time of deciding the question of “bail or jail” in non-bailable offences court has to utilize its judicial discretion, not only that as per the settled law the discretion to grant bail in cases of non-bailable offences has to be exercised according to rules and principle as laid down by the Code and various judicial decisions.

The primary principle of criminal law is that imprisonment may follow a judgment of guilt, but should not precede it, but there is another principle which makes it desirable to ensure that the accused is present to receive his sentence in the event of being found guilty, at the same time following things are also required to take into the consideration:

(a) Balancing personal liberty and investigational power of police.

(b) Freedom of individual vis-vis security of State.

(c) Balance between individual liberty and interest of society etc.

Hon’ble Apex Court, very first time in case of STATE OF RAJASTHAN V/S. BALCHAND – reported in AIR 1977 SC 2447, declared that………

“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 enlargement on bail from the court. We do not intend to be exhaustive but only illustrative.”

In MOTI RAM AND ORS. V/S. STATE OF M.P [AIR 1978 SC 1594], the accused who was a poor mason was convicted. The apex court had passed a sketchy order, referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as his property was in the adjoining village. Matter went on appeal once more to the apex court and Justice Krishna Iyer condemned the act of the CJM and said that the judges should be more inclined towards “bail and not jail”.

In case of GUDIKANTI NARASIMHULU V/S. PUBLIC PROSECUTOR, HIGH COURT OF AP, reported in 1978 AIR (SC) 429, Hon’ble Supreme Court has held that,

“Bail or Jail?” at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the court prefers to be tacit, be the order custodial or not. And yet, the issue 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 sensitized judicial process. As Chamber Judge in this summit court, I have to deal with this uncanalised case-flow, ad-hoc response to the docket being the flickering candlelight. So, it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ‘procedure established by law’. The last four words of Art. 21 are the life of that human right”.

As per the observation of Hon’ble Supreme Court in its various decisions as well as the settled law, the law presumes an accused person to be innocent till his guilt is proved and as a presumably innocent person, he is entitled to every freedom and facility to defend himself effectively, on that basis it can be said that the general policy of law is to allow bail rather than to refuse.

Whether bail should be granted or refused to decide that in Archbold it is stated that, the proper test of whether bail should be granted or refused is whether it is probable that the defendant (accused) will appear to take his trial, the test should be applied by reference to the following consideration:

(a) The nature of accusation.

(b) The nature of evidence in support of the accusation.

(c) The severity of the punishment which conviction will entail.

(d) Whether the sureties are independent, or indemnified by accused person.

As observed by the Hon’ble Supreme Court in case of STATE THROUGH CBI V/S. AMARMANI TRIPATHI, 2005 (8) SCC – 21, “It is well settled that the matter to be considered in an application for bail are…..

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with; and

(vii) danger, of course, of justice being thwarted by grant of bail”,

The concept and philosophy of bail was discussed by Hon’ble Supreme Court in cases of MANEKA GANDHI V/S. UNION OF INDIA reported in AIR 1978 SC 597 and VAMAN NARAIN GHIYA V. STATE OF RAJASTHAN reported in 2009 (2) SCC 281, that…. ;

“Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. 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. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have”.