Author: Revanth Roy Chelluboyina, ICFAI law school, Dehradun
To the point
Under the new statutory framework, the law formally defines “Bail” as the release of a person accused of or suspected of an offence from the custody of law upon certain conditions and the execution of a bond or a bail bond. This principle is not merely a legal technicality; it is a constitutional mandate derived from the presumption of innocence, which asserts that every person is innocent until proven guilty by a court of law. Under article 21 of the Constitution, the right to life and personal liberty is sacrosanct. Depriving an individual of this liberty before a conviction is reached is an extreme measure that must be justified by rigorous standards. As India transitions from the colonial-era Code of Criminal Procedure 1973 (CrPC) to the modern BNSS, the relevance of this maxim faces new challenges and interpretations, making it a critical subject for legal discourse.
Use of legal Jargon
The Right to Bail: The BNSS mandates that when a person accused of a bailable offence is arrested, they must be released on bail if they are willing to provide surety. However, a critical humanitarian provision is embedded here: if the arrested person is indigent and unable to furnish sureties within seven days, the court or police must release them on a personal bond.
This statutory mandate is the legislative culmination of the doctrinal history established in State of Rajasthan v Balchand. In this landmark verdict, Justice VR Krishna Iyer immortalized the phrase: “The basic rule may perhaps be tersely put as bail, not jail.” The court reasoned that deprivation of liberty is an extreme measure that the State must justify with compelling evidence of flight risk.
Proof:
Maximum Detention and the Rights of First-Time Offenders
The analysis of pre-trial detention extends to section 479 of the BNSS, which serves as a check against the “process becoming the punishment.” The statute dictates that an under-trial must be released if they have served half of the maximum sentence for the alleged offence. In a significant evolution of the law, the BNSS now provides that a first-time offender, one with no prior criminal convictions is entitled to mandatory bail after serving only one-third of the maximum sentence.
This provision addresses the judicial concerns raised in Hussainara Khatoon v Home Secretary, State of Bihar, where the Supreme Court first recognized the “right to a speedy trial” as an integral part of Right to life and personal liberty .By mandating release at the one-third mark, the law creates a “calibrated liberty” model, ensuring that first-time entrants into the criminal justice system are not subjected to the soul-crushing environment of prisons for an indefinite period before their guilt is proven.
Discretionary Bail and the Humanity of Section 480
In non-bailable offences, the “Bail is the Rule” maxim faces its most rigorous test. The BNSS dictates that bail is discretionary and should generally be refused if there are reasonable grounds to believe the accused is guilty of an offence punishable by death or life imprisonment. However, the statute balances the gravity of the crime with human dignity through specific humanitarian exceptions. Regardless of the charge, the court retains the power to grant bail if the accused is a child under 18, a woman, or is sick and infirm.
The judicial interpretation of this discretion was refined in Sanjay Chandra v CBI, where the Court held that the object of bail is “neither punitive nor vindictive.” The court argued that even in serious cases, the primary purpose of detention is only to secure the attendance of the accused at trial. Therefore, section 480 must be interpreted as a tool for ensuring presence, not as a means of pre-conviction punishment, especially when dealing with vulnerable categories of persons.
Abstract:
This article examines the foundational principle of criminal jurisprudence—”Bail is the Rule, Jail is the Exception” and its constitutional validity under the Constitution of India. It Analyses the statutory framework of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) focusing on sections 478 to 483, alongside landmark judicial interpretations that define the limits of pre-trial detention. The scope of this discussion is limited to the balance between individual liberty and the state’s interest in justice, particularly in the context of both bailable and non-bailable offences.
Case Laws: Anticipatory Bail Section 482
The most potent shield against the misuse of police power is section 482, which allows a person to seek bail before an arrest occurs. The statute empowers the High Court and the Court of Sessions to grant protection based on the “apprehension of arrest.” This power is not unfettered; the court must impose conditions such as restrictions on leaving the country and to be available for the interrogation procedure
The guiding light for this provision is the Constitution Bench judgment in Gurbaksh Singh Sibbia v State of Punjab: The Court established that anticipatory bail is a regular statutory right that must be interpreted liberally to uphold the constitutional mandate of Right to life and personal liberty. The Sibbia principles reject the notion that relief is only for “extraordinary” cases, affirming that it is rooted in the presumption of innocence. However, the court balanced this by requiring a “reason to believe” based on tangible facts, while clarifying that judges should issue specific protections rather than “blanket orders” against all future arrests. This evolution ensures that the “Bail is the Rule” doctrine applies with full force even before the state attempts to curtail an individual’s liberty.
Conclusion:
The true test of this maxim lies in its application alongside stringent special statutes like the Unlawful Activities (Prevention) Act 1967 (UAPA) and the Prevention of Money Laundering Act 2002 (PMLA) In these domains, the “twin conditions” for bail often flip the script, making jail the rule and bail a rare luxury.
FAQS
1. How does the BNSS benefit first-time offenders regarding pre-trial detention?
Under Section 479 of the BNSS, a first-time offender (someone with no prior convictions) is entitled to mandatory bail after serving only one-third of the maximum imprisonment period for the alleged offence, rather than the standard one-half required for others.
2. What humanitarian exceptions exist for granting bail in non-bailable offences?
While bail is discretionary for serious crimes, Section 480 allows the court to grant bail regardless of the charge if the accused is under 18 years of age, a woman, or is sick and infirm, prioritizing human dignity over the gravity of the offence.
3. When can an individual apply for Anticipatory Bail under the new framework?
Under Section 482 of the BNSS, a person can approach the High Court or Court of Sessions if they have a “reason to believe” they may be arrested for a non-bailable offence, provided the apprehension is based on tangible facts rather than vague fears.
