Introduction
Bail in India an important aspect of criminal law and jurisprudence. It is rooted in the fundamental right of life and personal liberty granted under Article 21 of the Indian Constitution. It reiterates the principle that personal liberty cannot be taken away except through due process established by law. It tries to attain an equilibrium between the rights of the accused and ensuring their appearance in the courts
Statutory Provisions Relating To Bail
The CrPC enacted in 1973 classifies offences as bailable and non bailable. This means that there are certain offences for which bail can be granted and there are certain offences for which bail may not granted even if it can be afforded by the accused. However, it is to be noted that just because an offence is non-bailable does not imply that there shall be no bail for the accused. Bail for bailable offences under Section 436 of the CrPC is a matter of right. However, in the case of non-bailable crimes, bail is a judicial discretion and not a right under Section 437 of the CrPC. Anticipatory bail under section 438 is granted to offer protection before the actual arrest occurs.
Importance of Bail
There has been a continuous reiteration of the principle of “Bail is the rule, jail is the exception”. For example, in the case of State of Rajasthan v Balchand, the Hon’ble Supreme Court held that detention before conviction should be a rare exception since all accused are presumed innocent until proven guilty. However, it is to be noted further that this is not a blanket understanding, judges often factor in seriousness of offences, potential to tamper with evidence, and likelihood of absconding while exercising judicial discretion in granting bail.
Though, in India the system of bail still faces a lot of challenges such as delays in hearing, overcrowded prisons and the socio-economic inequalities in access to legal aid. This is evidenced in the fact that more than 75% of Indian prisoners are those under trial, still accused, not yet convicted, which goes on to show how the process itself turns into punishment.
The manifestation of these challenges can be seen in the case of Umar Khalid and Sharjeel Imam’s case which arose out of the 2020 Delhi riots. While the UAPA statute provides for stringent bail conditions, barring release if accusations are prima facie true. Despite 5 years of incarceration, even the bail proceedings remain incomplete and another adjournment was sought by the prosecution. In this matter, the Hon’ble Supreme Court recently told the Delhi Police that delays in filing responses to bail pleas, based on procedural lapses cannot justify prolonged deprivation of liberty.