The legal principle ‘bail is a rule and jail is an exception‘ was given by the Supreme Court in its landmark judgement of the State of Rajasthan vs Balchand @ Baliay in 1977.
In this case, J. Krishna Iyer stated that “the basic rule may perhaps be tersely put as bail, not jail”. The judgement was passed based on rights provided by the Constitution of India.
This article talks about the principle of “bail is a rule and jail is an exception.”
Meaning of Bail
There is no clear definition of ‘bail’ under the law or statute. However, in general terms, bail can be defined as the temporary release of a person accused of any offence or under trial. The bail is granted only under a promise by such a person to appear as and when required.
P Ramanatha Aiyar has defined the term ‘bail’ in the Advanced Law Lexicon, 3rd Edition, as:
“Bail is releasing a person who has been arrested or imprisoned in exchange for security for his attendance on a specific day and place, which security is known as bail”.
Granting of Bail
The right to bail is available to every person accused of any offence/ crime. Any person charged with a bailable offence can be granted bail under section 436 of the Code of Criminal Procedure (CrPC).
However, a person accused of a non-bailable offence has no right to bail. Such a person can only be granted bail at the discretion of the court under certain specific conditions according to section 437 of the CrPC.
Section 436 of the CrPC provides that, when a person accused of a bailable offence is arrested or detained without a warrant and is prepared to furnish bail before the court at any stage of the proceeding, he will be released on bail. Bail cannot be refused in such conditions.
According to section 437(1) of the CrPC, a person accused of a non-bailable offence can be released on bail if he is under sixteen years of age, a woman or sick. A person charged with a non-bailable offence punishable with death or life imprisonment cannot be granted bail if the prima facie evidence makes it reasonable to consider him guilty. However, an accused can be granted bail if there are no reasonable grounds available to support the guilt of the accused at any stage of the investigation, trial, or enquiry.
Bail Is a Rule, and Jail Is an Exception
In the State of Rajasthan vs Balchand @ Baliay (1977), while granting bail to the petitioner, the court stated that unless there are circumstances indicating that the petitioner seeking bail is fleeing from justice, obstructing the course of justice, or causing other problems in the form of repeating offences, intimidating witnesses, etc., we do not intend to be exhaustive but rather to be illustrative.
Unless there are such above-stated circumstances, detaining an individual and taking away their right to liberty is against the principles of natural justice. It violates Article 21 of the Indian Constitution, which provides and ensures every person’s right to life and liberty. The legal principle ‘Presumption of innocence,’ which means a person is not guilty until proven guilty, ensures that an innocent person must not be detained and deprived of his Fundamental Right.
Bail is a rule since it is guaranteed and protected by the law. Every person has the right to bail except under certain circumstances. On the other hand, jail is an exception since it is not necessary that the person accused of a crime be guilty. And detaining such a person until proven guilty violates his Fundamental Rights.
It can be concluded that the Supreme Court gave the legal principle ‘bail is a rule and jail is an exception’ in 1977. Bail can be defined as the temporary release of the person accused of any offence or under trial. The bail is granted only under a promise by such a person to appear as and when required. Detaining an innocent person violates the Fundamental Rights guaranteed by the Constitution of India. Hence, it was stated in the case state of Rajasthan vs Balchand that “Bail is a rule and jail is an exception”.
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