Tuesday, September 28, 2021
 News Details
Arrest Not Must – Supreme Court : Reaffirmation of Principle “Bail not Jail “

B L Saraf

In 1977 , Justice Krishna Iyer wrote a new chapter in the book of the Indian Criminal justice delivery proceedings , by laying down a golden rule “Bail not Jail “ : whereby he struck a powerful blow for the liberty of a person . Thus he laid foundation for a lenient criminal justice delivery system .For some time the principle ruled supreme, then all of a sudden the chapter disappeared from the syllabus of Indian judicial studies and case law with respect to the bail matters fell into the state of fluidity yet to crystallize to a specified shape . Though attempts at the Apex Court level , followed by some High Courts , were made to resurrect the principle .Notable among them is the observation made by the Supreme Court in Arnab Goswami’s bail plea wherein it was held that “ Bail not Jail “ principle still holds good . Other instances can also be recalled where constitutional courts have spoken positively for the liberty of accused.
Recently, Supreme Court held in an order passed in the plea of anticipatory bail, filed by a businessman Sidharth , that merely because law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty .In the words of Court : “ We may note that personal liberty is an important aspect of our constitutional mandate .Merely because law says arrest can be made does not mandate that arrest must be made .” And , further noted that a distinction has to be made between existence of the power to arrest and the justification for the exercise of it . It went on to say that if arrest is made routine ,it can cause incalculable harm to the reputation and self –esteem of the person .
Off late, we have noticed a tendency that even for projecting a genuine grievance the stringent laws such as UAPA are invoked against the dissenter and then he is put in jail for months together .Conflicting judicial voices on when to grant bail and when to refuse it have not only made t plight of the accused worse but also have caused a lot of confusion among the District Judiciary , when it comes to the disposal of a bail matter .Subjective nature of these observations doesn’t make things clear.
MP High Court has sought to put the matter in proper perspective .In Zar ine Begum VS MP State the High Court while commenting upon law applicable to bail matters observed “ District Judiciary is extremely tight fisted when it comes to granting bail .” In an explicit vein the court went with the right of the accused to get bail and asked District Judiciary to ascertain ,while deciding a bail matter , whether the release of accused will lead to breach of peace and unrest or he may attempt to abscond . The Court made an attempt to acknowledge how a strict judicial view on bail can scuttle the right to personal liberty granted under Art 21 of the constitution .
For some time now, justifiably or not , an impression has grown among some sections that courts tread slowly when it comes to protection of their basic rights . Thanks to the incumbent CJI and decisions on bail pleas by a number of High Courts in the country , the impression is fast getting dispelled and people have started to feel reassured that courts are there to stand by them when need arises . CJI has taken notice of the unwelcome trend where Section 124 A IPC which deals with the sedition provision is used ( misused ) liberally . Therefore , he has opined that this law needs to be revisited . Whatever may be the color of government , a common man always felt that his basic rights were under threat .Today , unfortunately , there is a perception that freedom of an individual is under threat as never before . Lack of uniformity in judicial pronouncements has added to the apprehensions .
The WB High Court had the other view when it overturned order of trial court which had granted bail to the accused in the Narada case . MP High Court in the Zarine Begum case , referred above , has expressed opposed view on the question of granting bail to the accused . It must be stated here that the constitutional courts like the Apex Court and High Courts have a guaranteed liberty to say different things at different times if that is required to do complete justice between the parties .The District Judiciary doesn’t enjoy such a luxury .In deciding pending matters it has to go by the statutory law or the one laid down by the Supreme Court and follow precedents created by pronouncements of the constitutional Courts .
With little bit of experience of the job ,I can well appreciate the multiple hardships a trial judge or a judicial magistrate faces in applying “ Bail not jail “ principle while disposing of a bail matter . There are instances when strict adherence to this principle has often lead to trial judges’ service carrier go off-track .No wonder trial judges at most of the times play safe by dismissing the bail application . One understands that there can be no straitjacketed formula to apply while dealing with such issues . However , the Supreme Court could come to the rescue of both trial judges and the accused by issuing clear instructions to be followed in such a situation .
Half measure won’t do .Either the District Judiciary should be trusted fully or its jurisdiction be regulated by unambiguous guidelines . Role of trial judge in a criminal proceeding can never be minimized . In All India Judge’s case (1992 ) 1 SCC the Supreme Court held “ the trial judge is a kingpin in the hierarchical system of administration of justice .He directly comes in contact with the litigant during proceedings in the court .On him lies the responsibility of building up of a case appropriately and on his understanding of the matter the cause of justice is first answered .” in Krishan lal Chowla ‘s case (Cri Appeal No 283 /2021 ) the Apex Court made a vital observation that trial judge and a magistrate are the first forums where harassed and distraught litigant seeks justice .Hence they must also effectively safe guard fundamental rights .
So long situations remains in the realm of uncertainty and there are no workable guidelines from the Highest Court of the land the District Judiciary will always find itself “ tight fisted “ when it comes to deal with a bail plea .

(The author is a Former Principal District & Sessions Judge. Feedback- [email protected] )

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