Personal liberty is fundamental; bail in bailable offenses is a matter of right. Judicial officers must exercise due discretion, ensuring just application of legal standards.

Order

27/08/2025

1. While granting bail to the petitioners, explanation was sought by this Court from the concerned Judicial Magistrate who extended police or judicial remand of the petitioners and dismissed the bail application filed by them under Section 480 BNSS, although the accused-petitioners before him/her are accused of bailable offences. Learned ADJ was also directed to place his explanation before this court who further dismissed the bail application filed by the petitioners under Section 439 Cr.P.C.

2. In pursuance of directions issued by this Court, the explanation has been submitted by the concerned judicial officers. This Court is not satisfied with the explanation as it has made an attempt in showing that the ingredients of Section 309(2) BNS were also present on the record, which being a non-bailable offence, led to the dismissal of the bail pleas. But a careful perusal of the clarification/explanation as well as bail rejection orders passed under sections 480 and 483 BNSS make it clear that Section 309(2) has not been mentioned anywhere in the bail rejecting orders and it is also evident that the bail petitions filed by the petitioners were disposed of in a mechanical manner.

3. Personal liberty is a priceless treasure for a human being. It is essentially a natural right. No one would like to lose their liberty. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society.

4. The expression 'Personal Liberty' in Article 21 of the Constitution is of the widest amplitude and it covers a variety of rights which go to constitute personal liberty of a person and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19 of the Constitution. 'Personal Liberty' under Article 21 of the Constitution primarily means freedom from physical restraint of person by incarceration or otherwise. The concept of "right to life and personal liberty" guaranteed under Article 21 of the Constitution includes the "right to live with dignity" and it does not mean mere animal like existence of life. After the Hon’ble Supreme Court's decision rendered in the case of Maneka Gandhi Vs. Union of India , AIR 1978 SC 597 , Article 21 of the Constitution now protects the right of life and personal liberty of citizen not only from the executive action but from the legislative action also. A person can be deprived of his life and personal liberty if two conditions are complied with, first, there must be a law and secondly, there must be a procedure prescribed by that law provided that the procedure is just, fair and reasonable.

5. With anguish and pain, this Court observes here that the learned Magistrate as well as learned Additional District & Sessions Judge failed to exercise their discretion in right perspective and in a very casual manner, decided the bail applications, placed before them. In bailable offenses, bail is considered a matter of right, not discretion. If the accused is ready and willing to provide the necessary bail bonds or security, the police or court cannot refuse to grant bail.

6. Every arrest has a victim and an accused. Every arrest is also a relief and a pain. It is a critical part of the justice system. All arrests have to be justified and be based on evidence and pave the way for justice. It is to be scrutinized closely by all supervisory authorities accountable including judiciary. Arrest/detention has so many psycholog