Judicial Judgement: Gudikanti Narasimhulu V. Public Prosecutor

The Supreme Court in its landmark judgement in the case Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., dated December 6, 1977 propunded the "bail not jail" philosophy, the foundation of which was laid by the celebrated Justice V R Krishna Iyer. He stated that:

"questions like "bail or jail?" and "at the pre-trial stage or post-conviction stage?" belonged to the blurred area of the criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion".

"It makes sense to assume that a man on bail has a better chance to prepare or present his case than one rendered to custody. And if public justice is to be promoted, mechanical detention should be demoted," he had said.

“Bail or jail”

This judicial discretion has to answer one of the most important fundamental rights guaranteed under Article 21 of the Constitution, namely, personal liberty. Grant of bail may be gifting personal liberty to a person who has been arrested or who is anticipating an imminent arrest. On the other hand, refusal of bail implies sending that person to jail, or to police custody, as the case may be, and thereby depriving that person of his personal

While releasing a bunch of accused in the 2G scam case, the SC reinforced that bail ought to be a norm, not jail.

Stiff opposition by police to bail applications even when investigations are over and the accused not likely to flee, has become the norm. The court must be alive to the fact that liberty, a fundamental right, is taken away in such instances

Police often treat denial of bail as an "easy route''. Trials take time to begin. Often pre-trial incarceration exceeds maximum punishment for the charges invoked or becomes an incentive for police not to create a water-tight case on evidence. It becomes an easy route not to work hard at getting a conviction and treat pre-trial custody as substitute punishment.

There are times when despite long pre-trial jail, the case may end with an acquittal, which makes a mockery of justice. The need for an arrest is to secure presence of the accused for investigation, prevent further crimes and escape, make the community safer if the accused is prone to violence, and witness tampering. When these factors are absent, bail should be