Bail not the Jail is the principle in Criminal Law of India

Final judgment in Arnab Goswami case:

The High Court was of the view that the prayers for interim relief proceeded on the premise that the appellant had been illegally detained and since he was in judicial custody, it would not entertain the request for bail or for stay of the investigation in the exercise of its extra-ordinary jurisdiction. The High Court held that since the appellant was in judicial custody, it was open to him to avail of the remedy of bail under Section 439 of the CrPC. The High Court declined prima facie to consider the submission of the appellant that the allegations in the FIR, read as they stand,do not disclose the commission of an offence under Section 306 of the IPC. That is how the case has come to Supreme Court.

Human Liberty

Human liberty is a precious constitutional value,which is undoubtedly subject to regulation by validly enacted legislation.As such, the citizen is subject to the edicts of criminal law and procedure.Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC ―or prevent abuse of the process of any Court or otherwise to secure the ends of justice.

Respondents are right in submitting that the procedural hierarchy of courts in matters concerning the grant of bail needs to be respected. However, there was a failure of the High Court to discharge its adjudicatory function at two levels –first in declining to evaluate prima facie at the interim stage in a petition for quashing the FIR as to whether an arguable case has been made out, and secondly, in declining interim bail, as a consequence of its failure to render a prima facie opinion on the first. The High Court did have the power to protect the citizen by an interim order in a petition invoking Article226. Where the High Court has failed to do so, this Court would be abdicating its role and functions as a constitutional court if it refuses to interfere, despite the parameters for such interference being met. The doors of this Court cannot be closed to a citizen who is able to establish prima facie that the instrumentality of the State is being weaponized for using the force of criminal law. Our courts must ensure that they continue to remain the first line of defense against the deprivation of the liberty of citizens. Deprivation of liberty even for a single day is one day too many. We must always be mindful of the deeper systemic implications of our decisions

It would be apposite to extract the observations made, albeit in a dissenting opinion,by one of us (Dhananjaya Y Chandrachud, J.) in a decision of a three judge bench in Romila Thapar vs Union of India:―

[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty.

(2018) 10 SCC 753

More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand [(1977) 4 SCC 308], Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is ‘bail, not jail’. [These words of Justice Krishna Iyer are not isolated silos in our jurisprudence, but have been consistently followed in judgments of this Court for decades. Some of these judgments are: State of U.P.vs Amarmani Tripathi, (2005) 8 SCC 21 and Sanjay Chandra vsCBI, (2012) 1 SCC 40.]

The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty,leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the subordinate judiciary‘. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as under trials. Courts must be alive to the situation as it prevails on the ground –in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system‘s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the ―solemn expression of the humaneness of the justice system.

[T]here is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and disposed of with expedition. Every court in our country would do well to remember Lord Denning‘s powerful invocation in the first Hamlyn Lecture, titled ‘Freedom under the Law’ [Sir Alfred Denning, Freedom under the Law, the Hamlyn Lectures, First Series, available at here] :―

Whenever one of the judges takes seat, there is one application which by long tradition has priority over all others.The counsel has but to say, My Lord, I have an application which concerns the liberty of the subject‘, and forthwith the judge will put all other matters aside and hear it. …

It is our earnest hope that our courts will exhibit acute awareness to the need to expand the footprint of liberty and use our approach as a decision-making yardstick for future cases involving the grant of bail.
Read the full judgment below:

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