In a criminal trial, the rationale behind the incarceration and imprisonment of an alleged suspect individual is substantially to gain the participation in on-going proceedings or for demanding his appearances as and when required, and if he is found guilty, he must appear in court to serve his penalty. It would be inherently unfair to divest the suspect of his basic and the most fundamental right of personal living and liberty conferred by the constitution of India under Article 21 if his availability could be justly guaranteed without his arrest.
The fundamental rule of evidence Act u/s 101 is grounded on a renowned Latin maxim “Ei Incumbit Probatio, Qui Dicit, Non-Qui Net” which interprets that the burden of proof lies on party who asserts , not on him who denies which leads to the presumption of innocence. Defendant is entitled to a fair trial beyond a possible suspicion by the prosecution. It would be unjust to hold the accused in jail for an unreasonable amount of time, as this would subject him to psychological, social, and physical abuse. Similarly, in serious offences where the accused is likely to flee or cross the bail in order to escape a trial, or when the accused is likely to tamper with evidence or interfere with the prosecution, it would be hazardous to grant him bail. The law of bail “has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an accused till he is found guilty.”
This paper focuses on how Bail provision are misused and what are the ways to curb the misuse of these provisions.