BAIL VS JAIL

‘Bail is a rule & Jail is an exception’

What is the principle of law regarding Bail

• One of the basic principle of law says that ‘bail is a rule and jail is an exception’. It means, as a general rule a person should not be deprived of his personal liberty unless there is grave concern.
• When the person is accused of a offence, then in case of bailable offence, he has a legal right to apply for bail. But it does not mean that in ‘non-bailable offence, he would not seek bail.

What is the Bailable or Non-Bailable

Offences can be understood under two heads: Bailable and Non-Bailable.

• Bailable offences are offences which are less grave or less serious in nature, wherein bail is regularly claimed from the law enforcing authorities. Under bailable offences, bail is claimed as a matter of right.
• Non- Bailable offences are grave and serious offences, for example- offence of murder. Under non-bailable offences, bail is a matter of discretion of the Hon’ble Courts.

What are the different types of Custody

The word ‘custody’ means apprehending someone so that other persons of public can be protected. The principle or the analogy behind arresting the suspect of an offence is to save other people in the society. Wherein, the words “custody” and “arrest” are not synonymous. It is true that in every arrest there is custody but vice versa is not true.

• POLICE CUSTODY: Police custody means that police have physical custody of the accused and the accused is lodged in the lock-up of a police station. Usually after lodging of FIR against a person and preliminary investigation, generally police arrest the accused in order to prevent him from tampering the evidence or influencing witnesses.

• JUDICIAL CUSTODY: Police Custody means that police has the physical custody of the accused while Judicial Custody means an accused is in the custody of the Prison Authorities/Judge. When Police takes a person into custody, the CrPC follows up and the Police have to produce the accused before a Magistrate within 24 hours of the arrest. Judicial custody may extend to a period of 90 days for offence of very serious nature or 60 days for all other offences, if the Magistrate is convinced that sufficient reasons exists, following which the accused or suspect must be released on bail.                    

Note: – If the accused is juvenile, his age is to be ascertained, then that minor is directed to be produced before Juvenile Justice Board.

How, BAIL IS A RULE and JAIL IS AN EXCEPTION

In India, several fundamental rights have been provided to every citizen under Constitution of India and it is something which cannot be taken from an individual in their whole life journey.

• Whereas, Article 21 of Constitution of India guarantees Right to Life and Liberty, but the detention/arrest of a person clearly infringes his right. So detention is only done when a person commits any offence and his presence is required throughout the court proceedings. Therefore, it is well settled provision of the Criminal Procedure Code, 1973 (CrPC) that the arrest of an individual must be interpreted in a sense that unless indispensable, detention of a person must be avoided.
• Various provisions of CrPC provide statutory rights to the detained person and “Bail” is one of them.

SUPREME COURT in ASLAM BABALAL DESAI Vs. STATE OF MAHARASHTRA

• The law must be interpreted by courts in a manner that it promotes public good.
• Criminal Law in India concerns with Social protection and prescribes rules of behavior.
• The purpose of the Criminal Code is to impress upon the need for speedy completion of the investigation by the police officer within the prescribed periods. On its default, the Magistrate shall release the accused on bail.

• Conclusively it is a well settled law that “BAIL IS A RULE and JAIL IS AN EXCEPTION”

For any clarifications/suggestions or any queries please write drop a comment or write to us at info@sigmalegal.in

Advocate Sahajpreet Singh

(LEGAL DEPARTMENT)

TEAM SIGMA LEGAL