The layman usually takes bail to be a merciful gesture or dole to be handed out by the judge. When it’s not – in bailable offences (oftenly less serious & less brutal ones) BAIL is a matter of right !, in others (oftenly known as non bailable) bail has to be obtained from the judge who has to dovetail & balance two conflicting demands of Societal Interest in being protected from hazards of being exposed to an accused criminal and on the other hand second – the presumption of innocence working in favour of a person accused (mind you not pronounced guilty but only facing an accusation) and his right to be a free man unless pronounced guilty.
In less serious offences (eg : Bailable Offences) the scales are automatically tilted in favour of the second – the societal dangers are not pervading enough to deprive a person of his liberty even pre-trial.
On the contrary in serious offences attracting long imprisonments (non bailable) where there is a reasonable likelihood of person absconding from the clutches of law to evade trial, the scales are tilted in favour of former and person is denied bail to subserve larger societal good.
The ruling philosophy was summed up in 1978 itself by J.Krishna Iyer when he said Bail is the rule – jail is the exception, if there is no fear of abscondence and tampering with evidence and a person‟s appearance can otherwise be secured at trial – there should be no reason why he should be detained during trial. Because essentially all denial of bail is in a sense a verdict before trial !!
Though the judiciary somewhat strayed away from the above constitutionally compatible interpretation in the 90‟s. The Supreme Court has again resurrected the philosophy by two latest pro-liberty decisions of :-
a) S.S.Mhetre v. State of Maharashtra – 2010 SC
b) Satish Chandra v. CBI – 2011 SC
In the former the Court dealt with anticipatory bail (in a murder matter !!) and called in for a most liberal grant of bail – as the remedy of bail serves a person‟s right to life and personal liberty and protects from indiscriminate/motivated arrests.
In the latter the court was faced with the bail pleas of 2g accused persons, notwithstanding the huge magnitude of crime the court granted regular bail, relying on the fact that preconviction detention has substantial punitive content and without trial nobody should be condemned – except in an extra-ordinary situation.
However still the sensitivity has not trickled down to the lower courts – who more often than not side with the prosecution and start with a tilt of denial, whereas it should be the other way round !!!
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