Bail Is the Rule, While Jail Is an Exception

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Adv. Kapil Chandna
Adv. Kapil Chandnahttp://kapilchandna
Advocate Kapil Chandna, law graduate from Delhi University, is a founding partner of Chandna & Chandna Associates and is enrolled with the Bar Council of Delhi in 2012. Kapil Chandna started working independently in 2014 and had represented clients all over India, securing favorable orders for his clients:- Bail (Anticipatory as well as Regular) in Cheating, Forgery, False Dowry Case, Dowry Death, False Rape Case, POCSO, Murder/ Attempt to murder, Prevention of Corruption Act, Money Laundering.

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The Principle of Bail as Rule and Jail as an exception finds its very source from Article 21 and Article 22 of the Constitution of India and also from the well-known principle of “Presumption of Innocence, Unless Proved Guilty”.

Only because a person is accused to have a committed an offense, the state cannot endlessly take away his or her right of life and liberty as enshrined in Article 21 of the Constitution of India, unless that guilt is established beyond reasonable doubt.      

Article 21 of the Constitution of India lays down that no person shall be deprived of his life and personal liberty except in accordance with the procedure established by law, and the procedure must be just and reasonable. “The Fiat of Article 21, is that any procedure which deprives a person of his life or liberty must be just fair and reasonable. Just, fair and reasonable procedure implies a right to free legal services where he cannot avail them. It implies a right to speedy trial. It implies human conditions of detention, preventive or punitive.”

In Babua @ Tazmul Hossain V. State of Orissa, the Apex Court of India has held that:- 

“It is well settled that pre-trial detention is not to be resorted to as a measure of punishment. The mere fact that the case prime facie involves a serious crime is not by itself conclusive. Deprivation of liberty by refusing to grant bail is not as a measure of punishment or for the punitive purpose, but for the interests of justice to the individual concerned and to the society affected.”

It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. 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. We do not intend to be exhaustive but only illustrative.”

In Moti Ram v. State of M.P., (1978) 4 SCC 47, Hon’ble Supreme Court, while discussing pre-trial detention, held:

“The consequences of pre-trial detention are grave. Defendants presumed innocent are 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 defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.”

 In Babuwa V. Tazmal Hussian, 2001 (1) Crimes 215 (S.C): 

“The liberty of an individual is a matter of great constitutional importance in our system of governance. It is the duty of every magistrate as the custodian and the sentinel on ever vigilant guard of the freedom of an individual who has a precious right under the Constitution which cannot be taken away capriciously, arbitrarily or without legal justification.” 

In Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC: 

“Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.”

Sanjay Chandra vs Cbi on 23 November 2011: 

The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon.

The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

Principles considered while granting bail  

To balance the individual rights with society at large Hon’ble Supreme in Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280, and In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, culled following principles must be considered while granting or declining bail: 

  1. Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; 
  2. Nature and gravity of the charge; 
  3. The severity of the punishment in the event of conviction; 
  4. Danger of the accused absconding or fleeing, if released on bail;
  5. Character, behavior, means, position, and standing of the accused;
  6. Likelihood of the offence being repeated; 
  7. Reasonable apprehension of the witnesses being tampered with; and
  8. Danger, of course, of justice being thwarted by grant of bail.

It has also to be kept in mind that to grant 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.”

Chidambaram vs Directorate Of Enforcement on 4 December 2019: “At the stage of granting bail, an elaborate examination of evidence and detailed reasons touching upon the merit of the case, which may prejudice the accused, should be avoided.” Further, “In determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.”

Therefore, the courts while deciding an application for bail has to keep in mind the Right to life as a constitutional right of the accused, balancing with social factors i.e. accused will join and co-operate with the investigation, witnesses should not be threatened or influenced, evidence is not tampered and most importantly accused should not abscond to face his trial.


This Article is written by Adv. Kapil Chandna. Advocate Kapil Chandna is a graduate from Delhi University, founding partner of C&C Associates and is enrolled with the Bar Council of Delhi (2012).


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