In deriving the important theoretical aspects which govern the facets of bail which has been recognised as an essential facet of the fundamental right to a fair trial, the pragmatism has been efficiently delineated by the hon'ble Supreme Court of India in Arvind Kejriwal versus Central Bureau of Investigation (2024) INSC 687.
According to Justice Ujjal Bhuyan of the Supreme Court of India, has elaborately carved out the jurisprudence governing the issue of bail to persons arraigned by the law enforcement authorities while expressing his opinion vide a separately penned Judgment in Arvind Kejriwal versus Central Bureau of Investigation (2024):
Bail as a pillar of civilised criminal justice:
“39. Bail jurisprudence is a facet of a civilised criminal justice system. An accused is innocent until proven guilty by a competent court following the due process. Hence, there is presumption of innocence. Therefore, this Court has been reiterating again and again the salutary principle that bail is the rule and jail is the exception.” (p. 29).
Personal liberty: A sacrosanct right:
“40. This Court has emphasised and re-emphasised time and again that personal liberty is sacrosanct. It is of utmost importance that trial courts and the High Courts remain adequately alert to the need to protect personal liberty which is a cherished right under our Constitution.” (p. 30).
Judicial reluctance in granting bail: A continuing concern:
“38. This Court in Gudikanti Narasimhulu Vs Public Prosecutor (1978) 1 SCC 240, had highlighted that bail is not to be withheld as a punishment. The requirement as to bail is merely to secure the attendance of the prisoner at trial. This Court in Manish Sisodia referred to and relied upon the aforesaid decision and reiterated the salutary principle that bail is the rule and jail is the exception. This Court has observed that even in straightforward open and shut cases, bail is not being granted by the trial courts and by the High Courts.” (p. 28).
The need for Courts to recognise bail as the norm:
In Gudikanti Narasimhulu Vs. Public Prosecutor (1978), it has been held as under:
“53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognise the principle that “bail is rule and jail is exception”.
According to Justice Surya Kant of the Supreme Court of India has enunciated the following important points of criminal jurisprudence in Arvind Kejriwal versus Central Bureau of Investigation (2024) while expressing his opinion about the desirability and the legal validity of granting bail to a person incarcerated of a crime:
The evolution of bail: A safeguard for personal liberty:
“38. The evolution of bail jurisprudence in India underscores that the ‘issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process’. The principle has further been expanded to establish that the prolonged incarceration of an accused person, pending trial, amounts to an unjust deprivation of personal liberty…The courts would invariably bend towards ‘liberty’ with a flexible approach towards an undertrial, save and except when the release of such person is likely to shatter societal aspirations, derail the trial or deface the very criminal justice system which is integral to rule of law.” (p. 21).
Extended incarceration pending trial: A violation of Article 21:
“40. In our considered view, although the procedure for the Appellant’s arrest meets the requisite criteria for legality and compliance, continued incarceration for an extended period pending trial would infringe upon established legal principles and the Appellant’s right to liberty, traceable to Article 21 of our Constitution…” (p. 23).
Assessing bail on merits: No one-size-fits-all approach:
“43. It is true that generally the Trial Court should consider the prayer seeking bail once the chargesheet is filed, since the material that an Investigating Authority may have been able to procure would undoubtedly facilitate that court to form a prima facie opinion with regard to:
(i) the gravity of offence;
(ii) the degree of involvement of the applicant;
(iii) the background and vulnerability of the witnesses;
(iv) the approximate timeline for conclusion of the trial based on the number of witnesses; and
(v) the societal impact of granting or denying bail.
However, there can be no straitjacket formula which enumerates that every case concerning the consideration of bail should depend upon the filing of a chargesheet. In fact, each case ought to be assessed on its own merits, recognising that no one-size fits all formula exists for determining bail.” (p. 24).
Prompt adjudication of bail: Avoiding procedural delay:
“45. However, superior courts should adhere to this procedural recourse from the outset. If an accused approaches the High Court directly without first seeking relief from the Trial Court, it is generally appropriate for the High Court to redirect them to the Trial Court at the threshold. Nevertheless, if there are significant delays following notice, it may not be prudent to relegate the matter to the Trial Court at a later stage. Bail being closely tied to personal liberty, such claims should be adjudicated promptly on their merits, rather than oscillating between courts on mere procedural technicalities.” (p. 25).
