Detaining prisoner without trial amounts to pre-trial punishment; bail is rule, says Bombay High Court

Mumbai: The Bombay High Court has emphasised that the principle of bail is the rule, and refusal is an exception, saying detaining a prisoner for a long period without trial amounts to "pre-trial punishment".

A bench of Justice Milind Jadhav on May 9 also took note of overcrowded jails in the state, and said the courts need to strike a balance.

The bench made the observations while granting bail to one Vikas Patil, arrested for allegedly killing his brother in 2018.

Justice Jadhav noted that trials are nowadays taking perpetuity to conclude, and prisons were simultaneously overcrowded in some segments.

The bench said it regularly deals with cases where undertrial prisoners have been in custody for a long period and is equally aware of the conditions of the prisons.

Justice Jadhav referred to a December 2024 report from the superintendent of the Arthur Road Jail, which stated that the facility was overcrowded beyond its sanctioned capacity by more than six times.

It noted that every barrack sanctioned to house only 50 inmates, as of date, has anywhere between 220 to 250 inmates.

"Such an incongruity leads us to answer the proposition: How can courts find a balance between the two polarities?" Justice Jadhav remarked.

The court said these are cases concerning the liberty of undertrial prisoners who have been incarcerated for long periods, impacting their constitutional right to speedy justice and personal liberty.

The principle rule is bail is the rule, and refusal is the exception, it said.

Justice Jadhav referred to an article written by two undertrial prisoners, "Proof of Guilt", which raised the question of the long incarceration of persons awaiting trial.

He said while mere long incarceration cannot be an absolute proposition for bail, it was an important issue that needed consideration along with the right to a speedy trial.

The paradox in the question raised in the article as to how long is too long a period of incarceration until the right to a speedy trial is defeated is relevant prima facie, and there cannot be one definite answer, the court remarked.

Detaining an undertrial prisoner for a long period only served to legitimise the award of "surrogate punishment" without trial, which amounts to pre-trial punishment, the court said.

The bench also called for a change in the mindset and approach of the prosecution and referred to how prosecutors vehemently oppose bail pleas even in cases of long incarceration pending trial under the mistaken impression that the crime was serious, and hence, bail should not be granted.

"The overarching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, however stringent the law may be," Justice Jadhav said.

The court noted that in the present case, the accused has been in jail for over six years, and there is no distinct possibility of the trial to start or conclude in the near foreseeable future.