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This article is written by Kritika Garg from National Law University Odisha. This is an exhaustive article that explains the legal phrase ‘Bail is rule, jail is an exception’.

Introduction

‘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 v. Balchand alias Baliya in 1978. The judgement was based upon several rights that have been guaranteed by the Constitution of India with Article 21 being the most important one. Detention of an individual infringes his right to life and liberty as guaranteed under Article 21 of the Constitution of India. The main purpose of detention is to ensure easy proceedings by availing the accused for the trials without any inconvenience. Thus, if it can be ensured that the accused will be available as and when required for the trial, then, detaining the person is not necessary. Therefore, it was held that the provisions of the Criminal Procedure Code, 1973 (CrPC) regarding the arrest of an individual must be interpreted in a sense that unless indispensable, detention of a person must be avoided. 

Bail

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.

Types of bails

In India, bails are classified into 3 main types:

Regular bail: 

Section 437 and Section 439 of the CrPC deals with regular bail. This type of bail is granted when a person accused of a crime is under police custody. 

Anticipatory bail: 

Anticipatory bail can be granted by a High Court or a Session Court under Section 438 of CrPC.

The application of this type of bail is made when a person anticipates that he might get arrested for a non-bailable offence. A non-bailable offence is an offence in which an accused cannot file an application for grant of bail. The court may grant bail to the accused on its own discretion. 

Interim bail: 

Interim bail is granted before the hearing for a grant of regular bail or anticipatory bail for a shorter span of time.

Conditions for granting bail 

  1. In case of a bailable offence, bail must be granted if:
  • The investigation is not completed within the prescribed time. 
  • There is no reasonable ground to believe that the accused has committed a non-bailable offence. 
  • The trial has not been completed with a time span of 60 days.
  • There is no reasonable ground to believe that the accused is guilty even after the trial is completed but the judgement is not pronounced.

2. In case of a non-bailable offence, it is at the discretion of the court to grant bail which is majorly decided on the basis of the facts and circumstances of the case.

Anticipatory bail 

Section 438 of the CrPC deals with anticipatory bail, which states that when a person has reasons to believe that he might get arrested for a non-bailable offence, then he may apply to High Court or the Session Court for his release on bail during such arrest and the court may direct the same if it deems it to be fit. 

In a landmark judgement of Siddharam Satlingappa Mhetre v. State of Maharashtra, the court highlighted the importance of the Right to life and liberty guaranteed under Article 21 of the Constitution of India. Section 438 of the CrPC must be read in the light of Article 21 where granting or refusing of bail must reflect a perfect balance of sanctity of an individual’s liberty and the interest of the society.

Reasons for incorporating the provision of anticipatory bail

The reasons for the incorporation of anticipatory bail is multifold:

Right to liberty

The right to liberty guaranteed under Article 21 of the Constitution of India is one of the major reasons for the incorporation of the provision of anticipatory bail. The court is of the point of view that since it is a fundamental right, it should not be infringed for frivolous reasons. 

Presumption of innocence

A person is innocent until proven guilty beyond a reasonable doubt. This principle of criminal jurisprudence is another reason for the incorporation of the provision of anticipatory bail. However, for seeking anticipatory bail, a person has to fulfil certain conditions as per Section 438(2) of the CrPC.

Conditions

  1. That the person will be available for interrogation as and when needed;
  2. That the person will not fly away to any other country without the court’s permission;
  3. That the person will not tamper with the evidence and will not try to induce, or threaten the witnesses or the persons aware of the facts of the case by any direct or indirect contact. 

Necessity

  • Political rivalry is one of the major reasons behind the requirement of anticipatory bail. Influential people try to implicate their rivals in false cases in order to humiliate them or for other personal motives.
  • Another major reason for granting anticipatory bail is the prevalence of arbitrary and heavy-handed arrest, which often leads to harassment and humiliation of individuals. This was also the underlying reason behind the enactment of Section 438 in the CrPC.

Landmark judgements

The most contentious question regarding anticipatory bail has been whether the Courts can invariably prescribe a time limit while granting an anticipatory bail or not? 

There have been divergent decisions regarding the same:

Gurbaksh Singh Sibbia v. State of Punjab (1980)

In this case, the apex court held that Section 438 of the CrPC must be used very sparingly and in exceptional cases only. However, the discretion of the court to grant bail cannot be limited just because the offence is punishable with life imprisonment or the death penalty. Additionally, the court held that the bail should not be limited by time, however, the court can impose reasonable restrictions on the basis of the circumstances and the facts of the case.

Salauddin Abdulsamad Shaikh v. State of Maharashtra (1995)

This case overruled the judgement passed in the case of Gurbaksh Singh Sibba and held that the grant of anticipatory bail should be limited by time. The court held that the anticipatory bail must be granted for a limited period, on the expiration of which the matter must be left to the regular court for decision. 

Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors (2010)

This is the judgement in which the apex court widened the scope of personal liberty with respect to arrest and grant of bail to the citizens. The apex court emphasised upon the importance of maintaining a balance between personal liberty and social interest. The court held that the duration of the anticipatory bail cannot be limited by time because there is no limitation set by any law. Therefore, wide discretion has been conferred to the court to grant anticipatory bail as per the facts of the case. 

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Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Ors. (2020)

In this landmark judgement, the court held that the protection under Section 438 of the CrPC cannot be invariably limited to a fixed time. However, depending on the facts of the case, the courts may impose certain conditions and time limit while granting bail. Additionally, the court held that the protection provided by an anticipatory bail does not end when the accused is summoned, or charges are framed. It can be continued until the trial ends. However, if the circumstances of the case require a fixed time limit or imposition of certain conditions, then, the court can impose the same. 

Difference between regular bail & anticipatory bail

  1. While regular bail is dealt with under Section 437 and Section 439 of the CrPC, anticipatory bail is dealt with under Section 438 of the CrPC.
  2. Regular bail can be granted by any judicial magistrate or court but anticipatory bail can be granted by the High Court or the Session Court only.
  3. Regular bail is a post-arrest legal process that is granted when the person is under police custody while anticipatory bail is a pre-arrest legal process that is granted when a person anticipates the possibility of his arrest for a non-bailable offence.
  4. Bail is granted as a matter of right under section 437 but the power to grant anticipatory bail is an extraordinary power that is to be used by the Court sparingly.
  5. While the CrPC of 1898 included the provision of regular bail, there was no specific provision of anticipatory bail. It was only after the recommendation of the 41st Commission Report of 1969, anticipatory bail became a part of the new CrPC of 1973. 

Apart from the provision of bail, there is another provision that releases the detained persons, known as Parole. Parole is an early release of a prisoner in exchange for a promise of good behaviour and abidance of certain conditions imposed while granting parole. While bail is granted to an accused during a trial or before the trial, Parole is granted to a convict who has been serving his sentence in the prison. Parole is granted to the prisoner on behalf of his/her good behaviour so that he/she can transit back into the society. 

Parole

Derived from the French phrase ‘Je donne ma parole’ meaning ‘I give my word’, Parole is the release of a prisoner either temporarily for a special occasion or completely before the sentence ends on account of his good behaviour. It is a conditional release in which the prisoner promises to abide by the conditions along with observance of certain restrictions in order to get the privilege of returning back to society. 

In parole, the prisoner is released, however, his quantum of the sentence remains intact, which means in case of violation of the parole’s conditions, the parole can be cancelled, and the prisoner can be brought back to the prison. It is important to note that parole is not a right rather, it is a privilege given to the prisoners so that they can be reinstated in the social environment and fulfil their duties and responsibilities as a citizen. 

Parole is not included under Section 432 of the CrPC, which deals with suspension and remission of sentences. As per the judgement of the apex court in the case of Sunil Fulchand Shah v. Union of India, Parole does not amount to suspension of sentence, thus, leaving it out of the scope of Section 432 of the CrPC. It is dealt with under the Prison Act, 1894 and Prison Act, 1900

All convicts except for convicts who are foreigners, a threat to national security, committed a crime against the state, convicted of more than one murder, or convicted for rape or murder of a child, shall be eligible for Parole. The aforementioned convicts might get parole at the discretion of the authorities. 

Types of parole

  • Regular Parole: Regular parole is granted for a maximum period of one month, except in special circumstances, to the convicts who have served their one year of imprisonment. It is granted in situations like: 
    • Death of a family member;
    • Marriage of a family member;
    • Delivery of child by the wife of the convict;
    • Accident or serious illness;
    • Maintaining social ties;
    • Damage due to natural calamities;
    • Filing special leave petition in the Supreme Court.
  • Custody Parole: Custody parole is granted in emergency situations like death of a family member, marriage of a family member, serious illness, etc. It is granted for a maximum period of 14 days and the prisoner cannot file for regular parole or custody parole for the next one year after the time period of the parole expires. 

Why is jail an exception

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.


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