Right To Bail Its Emerging Contours

John EED in “Essays on Freedom and Power” portrays a pertinent aspect on freedom/ liberty, which is extracted below: “Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and essential requirement of a modern man.”

- Adv Sherry Samuel Oommen

In this article, I intend to pen some of my views on the right to bail under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”). Being a complex subject, in the present article, I will be solely confining my thoughts to offences under the Indian Penal Code, 1860 and its purport considering the provisions of Section 439 of CrPC.

As a caveat, one must remember, that the right to bail could also be subject to restrictions if such conditions/ stipulations are laid down in a statute or where the offences are an “economic offence”. To illustrate, it would be relevant to note that Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides that a person shall not be released on bail unless amongst others the Court is satisfied that there are reasonable grounds for believing that the Accused is NOT guilty of such offence AND that he is not likely to commit any such offence while on bail. The Hon’ble Supreme

Court in the case of State of Kerala Vs Rajesh and Others (2020) 12 SCC 122 has held that in the event an accused fails to satisfy the conditions stipulated under Section 37 of the NDPS Act, the ban on bail operates.

1. Jurisprudential postulate of bail