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LATEST NEWS UPDATES | Bail is norm: Supreme Court to courts by Sanjay K Singh

Bail is norm: Supreme Court to courts by Sanjay K Singh

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published Published on Nov 23, 2011   modified Modified on Nov 23, 2011
-The Economic Times
 
The Supreme Court has asked courts to send accused persons to jail only after conviction. In a landmark judgement on bail, which will have a major impact on the several thousands of undertrials languishing in various jails, the Supreme Court on Monday said denial of bail to an accused for an indefinite period impinged on the Fundamental Right to life and personal liberty. 

"The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty," said a bench comprising Justice GS Singhvi and Justice HL Dattu, while granting bail to the five corporate executives accused in 2G case. 

"When undertrial prisoners are detained in custody for an indefinite period, Article 21 of the Constitution is violated," the bench said, adding, "every person, detained or arrested, is entitled to speedy trial." 

The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand trial when called upon, the bench said. 

From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test, the bench said. As a natural corollary, courts have to take into the account the necessity element for keeping the accused behind the bar like if freed how they could influence the witnesses and free trial in the case. 

The SC further said, "in this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances." 

The judges said that the denial of bail to the accused as a preventive measure to ensure free trial in the case has to be balanced by the principle that such denial has also punitive aspect which under law begins only after the conviction. 

"Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson," remarked Justice Dattu writing the judgement for the bench. 

Provisions of the Criminal Procedure Code confers discretionary jurisdiction on criminal courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general, the bench said.


The Economic Times, 24 November, 2011, http://economictimes.indiatimes.com/news/politics/nation/bail-is-norm-supreme-court-to-courts/articleshow/10850926.cms


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