Jail - Bail

Brahmadandi Ramesh, Advocate
Advocate Code: 135, Telangana High Court
Email Id : rameshbrahmadandi.0946@gmail.com

Date : 27/05/2022
Location : H.No. 1-8-93/2, Bagh Lingampally, Hyderabad - 500 044, State - Telangana
📱 +91 9396530946

Jail - Bail

"Liberty of a person is foremost important & paramount; Personal Liberty is the paramount essential to human dignity and human happiness the Constitution of India protects the Life and Liberty of an individual. The personal Liberty of a person not merely the right to the continuance of a person's animal existence.

• It is the duty of the courts to uphold the dignity of personal liberty.

• It is the duty of the court to see whether individual crosses the Lakshman Rekha i.e., carved out by law is dealt with appropriate as cited by the Hon'ble Supreme court of India in Dharmendra Kirthlal v. State of U.P. in AIR 2013 SC 2369 ii) Vikas v. State of Rajasthan (2014) 3 SCC 321.

• At this juncture it is stated that Hon'ble Supreme Court has categorically stated that Article 21 and Article 19 i.e. personal life & liberty and rights of Freedom of a citizen are the heart and soul of the constitution.

• "Article 50" glaringly states about separation of judiciary from executive. Hence Dr.B.R.Ambedkar describes the same as Conscience of the Constitution.

• The Hon'ble Supreme Court by going a further mile considered the vital & pivotal importance of Separation of Judiciary from Executive and Legislature also cited in Madras Bar Association v. Union of India & another in (2015) 8 SCC 583.

• That When a person is arrested and detained by the police immediately within 24 hours as per Article 22(2) of Constitution of India and also U/sec 56 & 57 Cr.PC is suppose to be produced before the nearest Magistrate. On being produced the learned magistrate U/Sec 167 Cr.PC has to remand in judicial custody either for 7 days (Executive Magistrate) for 15 days before the Judicial Magistrate at this juncture it is to be noted that in Arnesh Kumar v. State of Bihar reported in the 2014(8) SCC 273 wherein an Accused may be released under 41A Cr.PC if the alleged offence is upto 7 years or below 7 years.

• That the domain of the bail now came into the picture. The Cr.PC deals with Sec. 436, 437, 438, 439.

Wherein 436 deals with bail for Bailable offences by a Magistrate.

Wherein 437 deals with bail for Non-Bailable offences by the Magistrate of I Class.

Wherein 438 deals with Anticipatory bail for cognizable offence by Sessions Court and High Court.

Wherein 439 deals with bail by Hon'ble High Court and Sessions Court respectively.

• That it is Painfully stated that now a days in practice it is came into lime light that the accused are sent to Jail under 167 Cr.PC for 15 days by the learned Magistrate in a routine manner whereas it is specifically directed in Arnesh Kumar v. State of Bihar by the Hon'ble Supreme Court of India that it is the duty of the learned magistrate that when an accused is produced before the learned Magistrate then he has to be satisfied that condition precedent for arrest U/Sec 41 A Cr.PC. has been complied thereafter only, the learned Magistrate has to authorize detention of the accused; even before the same the learned magistrate has to satisfy himself whether penal section and the given facts could lead the detention of the accused or not

• That in P. Chidambaram v. Directorate of enforcement Reported in 2020(1) LRC 368 (SC) Hon'ble Supreme Court has categorically said that triple test is to be taken into consideration in granting the Regular Bail.

Whether there is an apprehension of fleeing from Justice.

Whether there is any threat to prosecution witness.

Whether there is any threat of tamper & hamper with the prosecution evidences.

• That similarly the Hon'ble Supreme Court lead by Hon'ble Three Judges Bench headed by Hon'ble CJI has categorically stated in case of Siddaram Satlingappa Mhetre v. State of Maharastra and others reported in 2011(1) SCC 694 while dealing with the Anticipatory bail. The Hon'ble Supreme Court has observed the following guidelines.

The Anticipatory Bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

• That our holy constitution glaringly states that under any circumstances a Citizen's person liberty is not be suppressed that's why Article 21 plays a vital and pivotal role in the detention of the accused even there are certain conditions to be followed under PD Act, NDPS Act and other specialization Acts therefore a pre trail long detention must be always not suggestible to secure the complete justice. The circumstances of each an individual case pertains to Arrest and detention satisfies the triple test in regular bail and Anticipatory Bail; that under the guise of Investigation keeping the accused in Jail for 60 days or 90 days or 180 days is to be reconsidered and redefined in light of the Judgement delivered by the Hon'ble Supreme Court of India in Chandran Ratnaswamy v. K.C. Palavisani in AIR 2013 SC 1952.

• That after the conviction however the accused is to be Jailed to serve the sentence as a prisoner; before the same during the trail or pre trial as a under trail person a long term detention is neither required nor needed. Thus it could be reiterated that Article 21 shall be given the top priority in protecting the person's life and liberty; as the Hon'ble Supreme Court has categorically stated that if a person is detained in Judicial Custody then his, his family's reputation name, fame impact on children, in society will play a major role, therefore the courts do have a heavy responsibility to pass appropriate orders either under 167 Cr.PC. or in bailment in the backdrop of Article 21.

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