Pretrial Bail & Post trial Bail – Distinction

Pretrial Bail & Post trial Bail – Distinction

“Bail is a rule, rejection is an exception.” This concept is applicable only to pretrial bail cases. Converse is in the post trail bail cases.

Court must not only keep in view ‘right of accused’ but also right of victim and society.

Seriousness of crime, manner of committing crime, age, ailment, sense of fear and insecurity among fellow human beings are relevant factors to be considered before granting bail.

Where bails are granted in cases which are shocking the conscience of the society and criminals go unpunished, it amounts to thereby encouraging the criminals and in the ultimate making, justice suffers by weakening the system’s credibility.

Court must not only keep in view the right of the criminal but also the right of the victim of the crime and the society at large. Not that in all cases of conviction bail should be denied. Wherever the crimes are heinous in nature, shocks the conscience of the society, manner of committing is so brutal and when circumstances stare at the accused, in such cases bail should not be granted.

But, it differs from facts and circumstances such as age, ailment, the manner how committed, etc.

Society has a right to protect itself against cruel and unusual crimes. Every human being has a right to live and no one should be harmed by senseless violence. The civilized society, then has a right to punish and see that crimes are not perpetrated or repeated at the cost of public places. With overwhelming number of crimes today being committed in every sphere of life, the offender is almost never caught for considerable time and to get evidence is more difficult. Even when convicted, if Courts to take lenient view and enlarge such accused persons the consequences are, —

(a)- it amounts to popularizing such atrocities,

(b)- crimes usually provoke four types of reactions – physical, financial, social and psychological.

These shock waves are felt immediately as well as over a long time; sometimes, they are indefinite. The social and psychological aftermaths are not identified so easily, yet they may paralyse the victims more;

(c)- The fear that victims  experience either during or after the crime may also be accompanied by a feeling of utter helplessness;

(d)- It may make the judicial trial a mockery; and

(e)- distrustness is a common reaction both immediately and long term and people may lose confidence in public system.

The death of a homicide victim is never dignified. The moment the dependents of the victim are notified of the tragedy they suffer a grief, unique in its own way. The justice system atleast sends a signal that the guilty are not let a large till the case is finally concluded and there is a protection of law for those victims and a signal that no one should take law to one’s own hands.

In any crime, one way or the other, public are “secondary victims” because every crime instances reflect a sense of fear and insecurity among fellow human beings.

Therefore, in order to prevent fleeing from justice, threat to victim’s dependents, to ensure a sense of confidence in the prosecution witness, to prevent patronizing crimes, to prevent endangering one’s own life and mocking the justice system itself and in order to uphold sanctity to the trial and as a solace to the dependents of the victim, it is not appropriate to enlarge the accused who is convicted for an offence under Section 302, IPC.

(It is an excerpt from the reported judgment of P.Manickam v. The State of Tamil Nadu, reported in 1997 (3) CTC 52)


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