Context: In a significant verdict that will have a bearing on Unlawful Activities (Prevention) Act (UAPA) cases where a number of accused have been languishing in jail for a long time, the top court reminded high courts and trial courts about the “settled law” on bail and told them they should not hesitate to grant bail when a case was made out for one even when anti-terror charges are invoked.

Key Observations 

• Once a case for bail is made, courts should grant bail if the legal conditions are met. Serious allegations do not automatically justify the denial of bail.

• Denying bail in deserving cases would violate the constitutional right to life and personal liberty under Article 21.

About the Bail 

• Bail is a fundamental aspect of the criminal justice system in India, designed to ensure that an accused person is not deprived of their liberty unnecessarily while awaiting trial. 

• Article 21 of the Indian Constitution guarantees the right to life and personal liberty, which includes the right to seek bail.

Types of Bail

• Regular Bail: Granted under Sections 437 and 439 of the Criminal Procedure Code (CrPC) for an accused who is in custody.

• The grant of regular bail generally involves evaluating: (a) risk of the accused fleeing, (b) potential for tampering with evidence, and (c) possibility of influencing witnesses. The gravity of the offence may also be considered.

• Interim Bail: Temporary bail granted until the application for regular or anticipatory bail is decided.

• Anticipatory Bail: Provided under Section 438 of the CrPC, Allows an accused to seek bail from a Sessions Court or High Court before arrest for non-bailable offences.

Presumption of Innocence

• The foundational principle in Indian criminal jurisprudence is that an accused is presumed innocent until proven guilty, leading to bail being a common practice during investigation and trial.

• Exceptions for Certain Offences: Strict bail conditions apply to offences under special statutes such as the Unlawful Activities Prevention Act, Narcotic  and Psychotropic Substances Act, and the Prevention of Money Laundering Act.

• Sections 436 (bailable offences) and 437 (non-bailable offences) of the CrPC reflect the legislative intent to make bail the rule and jail the exception.

Judicial Pronouncements

• The Supreme Court of India has emphasized that bail is the rule and jail is the exception.

• In the landmark case of State of Rajasthan v. Balchand, the Court held that the basic principle is that an accused should not be detained unless absolutely necessary

• The Supreme Court reiterated that prolonged pre-trial detention violates the right to personal liberty.

• The Court highlighted the need for speedy trials and cautioned against the misuse of bail provisions.

Challenges 

• Overcrowded Prisons: A significant number of undertrial prisoners contribute to overcrowded prisons. 

• The discretionary power of judges in granting bail can lead to inconsistencies.

• Despite numerous Supreme Court rulings, inconsistencies and arbitrary decisions sometimes occur, affecting the right to personal liberty as envisaged under Article 21.

• Many accused individuals lack access to legal representation, affecting their ability to secure bail.

Road Ahead

• The bail provision in India is a crucial mechanism to uphold the principles of justice and liberty. 

• The provision of bail balances the individual’s right to freedom with the need to ensure their presence at trial and the protection of society.

• The legal framework provides robust guidelines, continuous reforms and vigilant judicial oversight are necessary to ensure that the right to bail is exercised fairly and effectively.

• The grant of bail, especially for non-bailable offences, is at the discretion of the judge and should be guided by facts and circumstances, not by public sentiment.

• Judicial orders for bail must be reasoned and not cryptic.