Bail is the Rule, Jail is the Exception: The Constitutional Paradigm
The foundational principle of Indian criminal jurisprudence, famously articulated by Justice V.R. Krishna Iyer in State of Rajasthan v. Balchand, affirms that bail is the rule and jail is the exception, derived directly from the fundamental right to personal liberty under Article 21 of the Constitution of India.
1. Bailable Offences
In bailable offences (e.g. simple hurt, defamation, affray), the grant of bail is an absolute statutory right under Section 436 CrPC / Section 478 BNSS. The police officer or Magistrate is legally mandated to release the accused upon execution of a personal bond with or without sureties.
2. Non-Bailable Offences
For non-bailable offences (e.g. murder, rape, dacoity, cheating under Section 318(4) BNS), the court exercises judicial discretion based on well-established parameters:
- Prima facie gravity of the charge and nature of evidence;
- Risk of fleeing from justice;
- Likelihood of tampering with prosecution witnesses;
- Character, antecedents, and standing of the accused.
3. Anticipatory Bail
Where a person apprehends imminent arrest in a non-bailable accusation, an application for pre-arrest bail may be preferred before the Sessions Court or the High Court under Section 438 CrPC / Section 482 BNSS.