The contours of the right to receive bail | Guest Post by Rasveen K. Kapoor

(This is a guest post by Rasveen K. Kapoor. Rasveen is a student at Indore Institute of Law).  

Arnab Goswami || Siddique Kapan

“A man of courage never needs weapons, but he may need Bail.” 

– Lewis Mumford, American historian

It is the sacrosanct obligation of all concerned with the justice dispensation system to ensure that the administration of criminal justice remains effective and meaningful. Literally, the expression 'bail' denotes a security for appearance of a prisoner for his release. Bail is a grant of conditional liberty to an accused who assures or on whose behalf assurance is given that he would be present at the trial. It is imperative to note that the very idea of bail emerges from an assumption, of the accusatorial framework, i.e.  innocent till proven guilty.

As recognized by the English jurist, William Blackstone, “it is better that ten guilty persons escape, than that one innocent suffer.”  An incalculable wrong is done to an innocent person who spends even a single day in prison. From the date of recording of an FIR till consummation of the trial process and the case decision, the law contains different arrangements to release an accused on bail. Through multiple decisions, the Supreme Court of India has held that bail is a privilege and is significant in a democratic republic, until he is demonstrated liable through a fair trial process.

A Mathura court on November 13^th’ 2020, dismissed the bail plea of three persons, booked on charges of sedition and terrorism after their arrest in Mathura along with a Kerala journalist namely, Siddique Kappan – who was on his way to Hathras village to meet the family of a Dalit woman who died after being brutally gang raped.

This denial of bail must be examined in context with the speed with which Arnab Goswami received bail, after just a single hearing in the Supreme Court. The speedy hearing and the grant of bail to Arnab Goswami has rekindled the moot question regarding the selective treatment of the high and the mighty - “Whether the privilege to fundamental rights is only a prerogative of the riches”?

When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Art.21 of the Constitution and therefore such refusal must be rare. Where delays in the disposal of criminal proceedings take place, the accused ought not to be kept in custody for an inordinately long time and must be released on bail except when under extremely rare circumstances it is not possible to do so.

Personal liberty is recognised significantly in the constitutional framework under Article 21. While considering bail applications of the accused, it is important that the courts balance considerations of personal liberty and the interests of the general public, thereby paving a way for judicial discretion in matters of bail.

 It is the solemn duty of the court to decide the bail applications at the earliest by a reasoned order, based on the bona fides of the applicant in light of prevailing facts and circumstances. The Hon’ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vital[1] has stated certain points to be considered before granting bail, namely:

1.  The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
2.  Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
3. Prima facie satisfaction of the Court in support of the charge.

The Supreme Court had time and again stated that bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

The Hon'ble Supreme Court in the matter of Prahlad Singh Bhati vs. N.C.T. Delhi and Ors[2] has mentioned some relevant grounds that play a vital role in deciding the bail applications being, the possibility for repetition of crime, the time lag between the date of occurrence and the conclusion of the trial, illegal detention, and undue delay in the trial of the case.

It has been regarded by the Hon’ble Supreme Court in the case Babu Singh and Ors. V. State of U.P. [3] that, deprivation of personal liberty by refusal of bail applications blurs the great trust exercisable as on the part of the judiciary as an institution, not casually but judicially, with lively concern for the cost to the individual and community. Personal liberty of an accused or convict is fundamental, and shouldn’t be subjected to suffering lawful eclipse in terms of the procedure established by law. 

In all these cases, the common condition attached is that the person released on bail will be brought before the court on demand. Other conditions may be imposed as may be deemed appropriate. It may be stated in passing that in the event of delivering custody to the state by way of refusal of bail to the accused or his surety the court may set out other conditions for the benefit and enjoyment of liberty by the accused.

Legislative prescriptions governing inmates in prison may be said to be serving this end. These regulations have to be in conformity with the themes of such human dignity as are now being expounded by the court as a part of human rights jurisprudence in general and personal liberty in particular.[4]

Passionate pleas for personal liberty are often being made while seeking release of an accused person in pre-trial cases. This approach is expressive of the conscious assertion to protect the individual rights. The pre-emptive rule of “Bail Not Jail” as regarded in Khemlo Sakharam Sawant v. State of Maharashtra[5] , vis-a-vis Article 21 should not be ignored. Though judicial discretion in matters of granting bail is imperative, but selective treatment by judiciary in matters of personal liberty dwindles the very faith of an individual in the credibility of judiciary as an institution.

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[1] State of Maharashtra vs. Sitaram Popat Vital AIR 2004 SC 4258.

[2] Prahlad Singh Bhati vs. N.C.T. Delhi and Ors AIR 2001 SC 1444.

[3] Babu Singh and Ors. V. State of U.P., (1978) AIR 527, 1978 SCR (2) 777.

[4]  D.C. Pandey, "Criminal Law", XVI ASIL 452 et. seq. (1980).

[5] Khemlo Sakharam Sawant v. State of Maharashtra 2002 (1) BOM C.R. 689.