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Adv.R.P.Chugh (Advocate/Legal Consultant (     14 November 2012

Bail or jail !


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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 2 Replies

surjit singh (Assistant)     18 November 2012

I appreciate your posting, but I want to make a practical point. In a bailable case the police has been authorised to release the person on bail on appropriate sureity. The police instead of releasing the person sends it to court and the court ultimately grants bail, but I have not seen a single incidence where the magistrates ask the police why the person was not granted bail at the police station.

Now comming to non bailable offence, In most of the cases court asks for case diary and the bail is decided on that. When court does not believe the statemnets recorded under 162 Crpc, is it  not odd to see that the courts are granting bail on the basis of material on case diary which the same court does not entertains at the trial stage.


Another think I would like to say, in most of the case  ie. 80% in which conviction is made in the lower court, and ultimately it leads to aquital in the higher court. DOES IT NOT MEANS THAT THE COURT AT THE LOWER LEVEL EITHER DOES NOT APPLY ITS MIND JUDICIOUSLY OR THEY ARE INCOMPETENT.

Samar Garg (Trader)     18 November 2012

I have faced trial and as an accuse and have been to Lower courts various times for several issues of before after and during the trial but truly speaking most of the Magistrates in Lower courts wants to follow the version of either police or the complainant. Infact one of the Additional Cheif Metropolitan Magistrate (ACMM) in mumbai has issued NBW against me 2 times by merely filing an application for NBW from the complainant's lawyer despite of my lawyer asking for exemption with valid reasons. Now at the first place in a police case a complainant's or their lawyer is no party unless to file such application neither they have sought written permission from APP nor the application was supported by state then how can the ACMM be so dumb to issue NBW in the first instance of my not being present in person ? However the NBW was cancelled later on my reaching there and on showing cause of it. But again after 2 months the same drama from Complainant's end & NBW was raised.. this time i had'nt had much supporting documents to support my version and my lawyer has to cite numerous Supreme court decesion that on merely not attending one date (that too is before framing of charges) a non bailable warrant cannot be issued unless the magistrate is satisfied that the accused is absconding and then after persuing the citations for half an hour the ACMM finally ordered a fine of Rs.500 and cancellation of NBW, now i dont understand that if a person is so dumb how he can be posted on a rank like ACMM.. 


Lower courts are actually better said police court, because like the Police department's moral policing  the magistrates are also morally deciding the fate of accuse & law is something they use only sections or citations which support their view infact at times magistrates are not even giving a speaking order & neither they write the proper arguments done by the defense with the citations quoted and they would only write the prosecution's Doubt & suspiction story.  



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