BAIL AND NOT JAIL IS THE RULE-SC!

SEDITION: In a blatant misuse of the Sedition Act, two Manipur journalist were detained for two months for questioning the effectiveness of cow dung and urine in treating covid-19 cases!

By Adv. Vinayak D. Porob

Though the Supreme Court had made it clear that bail and not jail should be the first option, the Center and State governments have been arresting hundreds of activists and denying them bail for months and years, as in the case of Fr Stan Swamy

BAIL is a subject of public discussion in India these days in view of the fact that Arnab Goswami was granted interim bail with many others before him languishing in custody still not granted the privilege of bail, in spite of several months of incarceration.
The issue of bail cannot be decided uniformly in all criminal offences, as the parameters judging bail differ on the nature of offence committed. However, the only basic principle to be considered is that bail is a rule, and jail an exception, which statement Justice Krishna Iyer was pleased to quote in one of his landmark judgments on bail.
A fundamental postulate of criminal jurisprudence is the presumption of innocence of the accused until found guilty, the courts have to consider this while deciding bail along with other factors.
However, there are instances in criminal law, where reverse onus has been placed on an accused with regard to some specific offences. But that does not detract from the fundamental postulate in respect of other offences. Each bail application is decided by the courts based on its own facts and circumstances, and there cannot be a common principle to decide bail in general. As such granting or rejecting bail is at the discretion of the court, it has to be examined and exercised judiciously in a fair and just manner.
Exercising judicial discretion has been circumscribed by a large number of decisions rendered by the Supreme Court and the High Courts of various states, yet occasionally there is a necessity for the courts to introspect whether denying bail to the accused is the right thing to do on the basis of facts and circumstances of the case?

SUPREME COURT TAKES NOTE

CERTAINLY, delay in deciding bail is an issue which the Supreme Court of India has taken note of recently. There is a pressing need for courts to remedy the institutional problem of bail applications not being disposed of expeditiously. Emphasizing the role of the District Judiciary, the Supreme Court has observed that the District Judiciary provides first interface to the citizen and though subordinate in hierarchy, it is not subordinate in terms of importance in the lives of citizens or in terms of the duty to render justice. It is through the instrumentality of bail that the criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression and therefore, there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and decided expeditiously.
While deciding bail the courts cannot presume the accused to be guilty and decide the fate of the bail as punishment before trial. At the stage of deciding bail an elaborate examination of evidence and detailed reasons touching the merit of the case should be avoided. However, there is a need to indicate in the order reasons for prima facie concluding whether bail is to be granted or not?
Bail in the State of Goa before the magistrates are usually decided expeditiously. However, in sessions trial-able offences some of the courts delay in disposing bail applications, which is most of the times frustrating for the accused as well as their advocates. The general principle laid down by the Supreme Court in scores of decisions is rendered infructuous if disposal of bail are delayed.
Granting or rejecting bail is at the discretion of the court, however in the interest of justice, the minimum, the accused is entitled to a speedy disposal of bail application. The question of one’s personal liberty guaranteed under Article 21 of the Constitution of India is at stake, which the courts in a humane manner have to consider.

VARIABLE QUANTITY

ANY person found with a quantity of narcotic drugs or psychotropic substance above small quantity but below commercial quantity than the rigors of Section 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985 are not applicable and the accused at the stage of bail need not prove that there are reasonable grounds for believing that he is not guilty of such offence, and that he is not likely to commit any offence on bail. In spite of that the courts have delayed disposal of bail in such variable quantity offences.
Earlier such variable quantity bail issues were decided within a span of a week and now due to many reasons including Covid-19, bail in variable quantity are also decided belatedly – in spite of the fact that the Supreme Court in its busy schedule decided the bail plea of Arnab Goswami within a week, by seriously taking into consideration the issue of personal liberty.
Considering the issue that in deserving cases and in cases falling under the parameters of law when bail is not granted, the consequences for those who suffer incarceration are serious, and being alive to the situation recently there is circular issued to District Courts in Goa as per information provided, to dispose of bail applications expeditiously. This is the need of the hour as in a bail proceeding the question of liberty is at stake and under no circumstances be overlooked.
(The writer is a practicing criminal lawyer based in Mapusa- Goa.)

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