Bail Balances Personal Liberty Against Society; Section 439 Needs Custody: Supreme Court

The appellant was accused of smuggling antiques, particularly idols, to foreign countries for heavy sums; the Rajasthan High Court at Jodhpur rejected his bail application, an earlier one having been rejected on 15.12.2003 (para 1). He relied on his discharge of the offence under Section 413 IPC, the evidence of seven witnesses, bail to co-accused and in six of ten cases, and over 2 1/2 years in jail (para 2). The State pointed out that the discharge order had been set aside by the High Court and an appeal against that was withdrawn in the Supreme Court (paras 2, 3).

For an application under Section 439 the person must be in custody; anticipatory bail under Section 438 is of limited duration, within which the regular court must be moved, otherwise the distinction between the two provisions becomes meaningless (paras 5, 6, 8-11). Section 438 requires a 'reason to believe', founded on reasonable grounds, that arrest is likely; mere fear is not enough, it cannot be invoked after arrest, and blanket orders should not generally be passed (para 12). Bail is a conditional liberty (para 13) and a mechanism by which the State involves the community in securing the prisoner's presence (para 14). A balance must be kept between personal liberty and society's need to be shielded, with the presumption of innocence in view (para 15); an accused is not detained to punish him on an assumption of guilt (para 16). At the bail stage detailed discussion of evidence is avoided and only a prima facie case is considered; in serious offences, the nature of the offence, the evidence and the larger public interest matter (para 19).