Bail & Related matters

Absurd, burdensome or unreasonable bail conditions are being thrust upon the accused by courts, while granting bail, based on the whims and fancies of the judges rather than in strict adherence to the provisions of law.

The Supreme Court (SC) in State of Kerala v Mahesh (AIR Online 2021 SC 205) sets aside an order of the High Court (HC) of Kerala granting bail to the accused. The order clarifies when the SC can set aside a bail order granted by a HC.

he object of pre-trial detention of the accused is not to impose punishment but to subject him to the penal procedures of law. The “bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial". Therefore, granting of bail should be the rule and cancellation of bail should be resorted to only in rarest of the rare cases where the accused on bail has done something wholly wrong against the sanctity of legal provisions of bail.

Bail is the rule but not its refusal Bail is the rule and refusal of bail is the exception. When the bail is refused the personal liberty of the citizen is deprived. Such deprivation can be done only by following the principles and procedures known to law. That means refusal of bail must be done by following due process of law. Bail can be granted at any stage of the trial.

Factors to be considered while granting anticipatory bail The court must take the following broad factors into consideration before allowing or rejecting an application for anticipatory bail. The nature and gravity of the accusation The antecedents of the applicant such as his previous conviction or imprisonment. The probability of applicant fleeing from trial or other proceedings Whether the accusation is for injuring or humiliating the applicant