Bail is a subject of public discussion in India these days in view of the fact that Arnab Goswami was granted interim bail and many other before him languishing in custody are still not been granted the privilege of bail inspite of several months of incarceration.
Bails cannot be decided uniformly in all criminal offences as the parameters to judge bail differs from the nature of the offence committed. However the only basic principle which is to be considered is that bail is a rule and jail is an exception and which statement Justice Krishna Iyer was pleased to quote in one of his landmark judgement on bail.
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A fundamental postulate of criminal jurisprudence is the presumption of innocence of the accused until found guilty which the courts have to consider while deciding bails along-with other factors. However there are instances in criminal law where reverse onus has been placed on an accused with regard to some specific offences but that does not detract from the fundamental postulate in respect of other offences. Each bail shall be decided by the courts based on its own facts and circumstances and there cannot be a common principle to decide bails in general and as such granting or rejecting a bail is the discretion of the court which has to be exercised judiciously and in a fair and just manner. The exercise of judicial discretion has been circumscribed by large number of decisions rendered by the Supreme Court and the High Courts of various states yet occasionally there is a necessity for the courts to introspect whether denying bail to the accused is the right thing to do on the facts and circumstances of the case or not?
Certainly delay in deciding bails is an issue which the Supreme Court of India has taken note of recently as there is a pressing need for courts to remedy the institutional problem of bail applications not being disposed of expeditiously. Emphasising the role of District Judiciary, the Supreme Court has observed that the District Judiciary provides first interface to the citizen and though subordinate in hierarchy, it is not subordinate in terms of importance in the lives of citizens or in terms of the duty to render justice. It is through the instrumentality of bails that the criminal justice system’s primordial interest in preserving the presumption of innocence finds its most eloquent expression and therefore there is a pressing need for courts across the judicial hierarchy in India to remedy the institutional problem of bail applications not being heard and decided expeditiously.
While deciding bails the courts cannot presume the accused to be guilty and decide the fate of the bail as punishment before trial. At the stage of deciding bails an elaborate examination of evidence and detailed reasons touching the merit of the case should be avoided, however there is a need to indicate in the order reasons for prima facie concluding whether bail is to be granted or not? Bails in the State of Goa before the Magistrates are usually decided expeditiously, however in sessions triable offences some of the Courts delay in disposing off bail applications which is most of the times frustrating for the accused as well as their advocates. The general principle laid down by the Supreme Court by scores of decisions is rendered infructuous if disposal of bails are delayed. Granting or rejecting bails is the discretion of the court, however in the interest of justice, the minimum, the accused is entitled is that for speedy disposal of the bail application as the question of one’s personal liberty guaranteed under Article 21 of the Constitution of India is at stake which the courts in a humane manner have to consider.
Any person found with a quantity of narcotic drug and psychotropic substance which is above small quantity but below commercial quantity than the rigors of section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are not applicable and the accused at the stage of bail need not prove that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence on bail and inspite of that the courts have delayed disposal of bails in such variable quantity offences. Earlier such variable quantity bails were decided within a span of a week and now due to many reasons including Covid-19 the bails in variable quantity are also decided belatedly inspite of the fact that the Supreme Court in its busy schedule is deciding the bail plea of Arnab Goswami within a week by seriously taking into consideration the issue of one’s personal liberty.
Considering the issue that in deserving cases and in cases falling under the parameters of law when bails are not granted, consequences for those who suffer incarceration are serious and being alive to the situation recently there is circular issued to the District Courts in Goa as per information provided, to dispose of bail applications expeditiously which was the need of the hour as in a bail proceeding the question of liberty is at stake and which under no circumstances can be overlooked.
