While granting bail, the apex court reiterated that bail is the rule and bail is exception.The court said that this principle is also applicable in money laundering cases.
“Twin test under section 45 of the PMLA does not take away this principle,” the bench held.
A bench of Justices BR Gavai and KV Viswanathan said that ‘bail a rule, jail an exception’ is part of fundamental right under Article 21 of Constitution and deprivation of liberty can be done only following due procedure of law.
The top court referred to its ruling in the money laundering and corruption cases involving former deputy chief minister Manish Sisodia and said that liberty of the individual is always the rule and deprivation of it by procedure established by law is the exception.
The top court also said that any confessional statement made by an accused in police custody cannot be the basis to arrest him in another case.
What is the ‘bail is rule and jail an exception’ principle?
The ‘bail is the rule, and jail is the exception’ principle was first used in the 1977 landmark judgment of the ‘State of Rajasthan vs Balchand alias Baliya’ case. The ruling said that bail should be denied only in circumstances where there is a risk of the accused fleeing from justice, obstructing justice, repeating offenses, or intimidating witnesses. This concept has been cited in numerous cases since, reinforcing its importance in upholding personal liberty.
“The basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offenses or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. When considering the question of bail, the gravity of the offense involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court,” the 1977 bench said.
The top court has consistently reiterated this principle in various judgments. In 2011, the court granted bail to five accused in the 2G spectrum case, including Sanjay Chandra, while underscoring that bail is the rule.
Similarly, in 2019, the court granted bail to P Chidambaram in the INX Media case, despite the seriousness of economic offenses, affirming that the fundamental jurisprudence of bail remained unchanged. In November 2020, the Supreme Court extended interim bail to journalist Arnab Goswami, highlighting the critical nature of personal liberty and the principle of bail as the norm.
CJI DY Chandrachud, in his address at the All India District Judges Conference in March, voiced concerns about the declining adherence to this principle in lower courts. He emphasized the need for judges to prioritize personal liberty and adhere to the established legal standard.