Bail not Jail

Presumption of innocence, a well known or common term in Criminal law which means a person is presumed to be innocent until proven guilty. “Presumption of innocence” is well recognized in Article 11 of the Universal Declaration of Human Rights (1948). Therefore a person whose personal liberty is curtailed by arrest is entitled to bail. Speaking of Bail not jail, it is the general rule in Indian Criminal Jurisprudence. No doubt getting bail had constantly been an extended drawn and a very hard process.

Article 21, of the Indian Constitution states ‘Right to life’, the most cherish able right given to a citizen is simply violated from an accused who is deteriorating under trails in jail for false allegations, due to the fact that the courts have without going into the correctness of the allegations of case, as an alternative merely dismissing the same by simply announcing that it is matter of trail and at this level the same cannot be considered or just that since the charge sheet has not been filed and consequently it is not the proper stage to use for bail.

Recently, The Supreme court heading a three-judge bench, CJI S.A. Bobde on Friday , cancelled the bail granted by Allahabad HC to Azamgarh gangster Arun Yadav, who was accused of gunning down one Rajnarain Singh and his wife challenged bail to Arun Yadav, who faced 15 cases of murder or attempt to murder. The Supreme Court has advised all the high court not to mechanically apply the ‘bail not jail’ principle while giving relief to gangster, sharpshooters and heinous offenders and must weigh the effect of such bail on the safety of witnesses and families of victims.

But the factors which the court must keep in mind before granting the bail applications as held by Hono’ble Supreme Court in “Sanjay Chandra vs CBI” speaking through G.S. Singhvi, H.L. Dattu wherein the Hono’ble Supreme Court has given the following factors which must be kept in mind while granting bail and the same factors must be kept in mind by any courts be it lower or higher courts. The factors to be considered as follows:
1. While granting the bail, the court has to keep in mind:-
    A. The nature of accusations, the nature of the evidence in support thereof,
    B. The severity of the punishment which conviction will entail,
    C. The character, behavior, means and standing of the accused,
    D. Circumstances which are peculiar to the accused,
    E. Reasonable possibility of securing the presence of the accused at the trial,
    F. Reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.
    G. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.
It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”
2. Custody is not punitive in nature, but preventive, and must be opted only when the charges are serious and prima facie and not otherwise.
3. Punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
4. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined:
“The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court.”
5. To enquire into the antecedents of a man who is applying for bail to find whether he has a bad record–particularly a record which suggests that he is likely to commit serious offences while on bail.
6. In Moti Ram v. State of M.P., (1978) 4 SCC 47, this Court, while discussing pre-trial detention, held:
“The consequences of pre-trial detention are grave. Defendants’ presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defense. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”
7. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.
8. The time to be taken in trial and they should not be subject to indefinite custody.

Conclusion

The innocent suffering in jail with false allegations while the criminal is roaming around freely after his bail, if the Constitution provides us the right why should the courts of law can’t apply or secure that rights for the innocent. After considering all the grounds, a person should be granted the bail. Unless it is simply against the law to violate the secured rights of an innocent.