High time HCs, trial courts recognise principle of bail is rule & jail exception: SC

It is high time the trial courts and high courts recognised the principle that “bail is rule and jail is exception”, the Supreme Court said on Friday while flagging that the courts below appear to “play safe” in matters of bail.

A bench of Justices B R Gavai and K V Viswanathan said on account of non-grant of bail even in “straight forward open and shut cases”, the apex court was flooded with a number of bail petitions which adds to the huge pendency.

The bench granted bail to senior Aam Aadmi Party (AAP) leader Manish Sisodia in the corruption and money laundering cases linked to the alleged Delhi excise policy scam, saying he has been deprived of his right to speedy justice as the trial has not yet commenced despite he being incarcerated for 17 months.

Referring to a recent judgement of the apex court, the bench noted it had observed that over a period of time, the trial courts and the high courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment.

“From our experience, we can say that it appears that the trial courts and the high courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach,” the bench said in its 38-page verdict.

“It is high time that the trial courts and the high courts should recognise the principle that ‘bail is rule and jail is exception’,” it said.

The bench said as observed time and again, prolonged incarceration before being pronounced guilty of an offence should not be permitted to become “punishment without trial”.

Referring to Sisodia’s matter, the bench said a total of 493 witnesses have been named in the cases lodged by the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED).

It noted that these cases involve thousands of pages of paper documents and over a lakh pages of digitised documents.

“It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant (Sisodia) behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution,” the bench said.

It directed that Sisodia be released on bail in both the cases on furnishing bail bonds of Rs 10 lakh with two sureties of the like amount.

The former deputy chief minister of Delhi was arrested by the CBI on February 26, 2023 over purported irregularities in the formulation and implementation of the now-scrapped Delhi excise policy 2021-22.

The ED arrested him in the money laundering case stemming from the CBI FIR on March 9, 2023. He resigned from the Delhi cabinet on February 28, 2023.