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Make Bail a Rule and Jail an Exception: SC Asks Judges to Show Humane Attitude, Compassion

A bench led by Justice Madan B Lokur emphasised that “a fundamental postulate of criminal jurisprudence is the presumption of innocence” and thus courts should take certain relevant factors into account before sending an accused behind bars.

Utkarsh Anand | CNN-News18

Updated:February 6, 2018, 5:40 PM IST
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Make Bail a Rule and Jail an Exception: SC Asks Judges to Show Humane Attitude, Compassion
File image of Supreme Court. (Photo: Reuters)

New Delhi: Concerned that the jail instead of bail has become a norm in criminal jurisprudence, the Supreme Court on Tuesday urged the judges to show a “humane attitude” while passing orders to incarcerate a person.

A bench led by Justice Madan B Lokur emphasised that “a fundamental postulate of criminal jurisprudence is the presumption of innocence” and thus courts should take certain relevant factors into account before sending an accused behind bars.

“Another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society,” held the Court.

It noted that antecedents of the accused, his role in the alleged offence, his willingness to join the investigation and also the poverty or the deemed indigent status are some of the factors that must be considered before deciding a bail plea.

“To put it shortly, a humane attitude is required to be adopted by a judge while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody,” said the bench.

It pointed out that a judge must also be mindful that incarcerating a person dents his or her dignity, “howsoever poor that person might be”.

The bench said that “the requirements of Article 21 (right to live with dignity) of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems,” will have to be kept in mind.

“The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately,” it maintained.

The Court further said that “conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory".

The bench’s observations came as it heard a petition for bail by an accused, who was booked under the offences of cheating and forgery.

After the trial court in Gorakhpur and the Allahabad High Court declined to protect the accused from arrest, he moved the apex court.

The bench noticed that the accused was not arrested after the registration of the FIR, nor after filing of the chargesheet and that it was nobody’s case that he was absconding.

“That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity,” said the bench, ordering bail for the accused.

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| Edited by: Ashutosh Tripathi
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