Bail, not Jail – SC

NEW DELHI: The once-prevalent liberal regime – bail is the rule and jail the exception – appears to be on its way back. Except those charged with heinous crimes, all accused should be granted bail, the Supreme Court said on Friday.

"We are against filling up of jails with undertrials," said a Bench of CJI K G Balakrishnan and Justice C K Thakker while granting bail to Baba Amrik Singh, jailed since January last year for embezzling gold while preparing a "palanquin" that was taken to Pakistan in 2006.

While the move can help de-congest jails, it may turn out to be a push for the revival of the old liberal judicial approach where the accused, in keeping with the doctrine of the presumption of innocence, were released on bail.

The practice was abandoned, with lower courts often appearing to submit to the popular clamour for a tough hand against crimes. The departure not just meant overcrowding in already congested jails, but also resulted in accused, especially the poor, remaining interned in prisons for periods far longer than they would have spent behind bars upon conviction.

"For minor offences, you cannot put the accused in jail for long and make them languish till the date of conviction," said the CJI, accepting the arguments of senior advocate Nidesh Gupta who appeared for the accused.

The SC’s reluctance to keep more and more undertrials in jails represents a ray of hope for nearly two lakh prison inmates awaiting trial in various cases. According to National Crime Records Bureau figures for the year 2006, nearly 54,000 undertrial prisoners were charged with murder.

"Theft and attempt to murder were two IPC crimes under which there were a large number of undertrial prisoners — 23,434 for theft and 22,526 for attempt to murder," said NCRB statistics.

Tihar Jail in Delhi, one of the largest prisons in the world, fares no better compared to other jails in the country as far as the problem of overcrowding goes. With a capacity of 5,200 prisoners, it has nearly 9,500 inmates while around 50,000 undertrial prisoners go in and out of the prison throughout the year. It was this problem that had forced the Delhi high court to order holding of courts within the prison complex and grant bail to undertrials languishing there despite being charged for petty offences.

Media View
Making bail the rule and jail the exception is indeed the way to go. In fact, this principle follows logically from the fundamental premise of our legal system that a person is innocent until he or she is proven guilty. Making the refusal of bail rarer, however, must not be based on any attempt to reduce crowding of jails. In cases where the offence is really serious and letting the accused roam free may be harmful to society, it clearly makes sense to deny bail. Similarly, where the chances of evidence being tampered with or the accused fleeing are judged to be high, it would be justified to refuse bail. But, whether bail is granted or denied cannot be a matter of whim. Where bail is denied, there must be substantial grounds for doing so.

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