Dr.

SHAKUNTALA MISRA NATIONAL REHABILITATION

UNIVERSITY

Lucknow

Faculty of Law

RESEARCH PROJECT ON

Role of Courts in Granting Bail and Bail Reforms

For

COURSE ON ‘’Criminal Procedure Code”

Submitted by

Anamika yadav

B.ComLL.B/15-16/26

Academic Session: 2017-18

Under the Guidance of

Ms. Shipra Dubey

Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University

1
 ACKNOWLEDGEMENT

This is not just a customary acknowledgement of help that I received but a sincere
expression of gratitude to all those who have helped me complete this project and made it
seem apparently more readable than otherwise it would have been.

I am in debt to my faculty advisor Ms. Shipra Dubey for giving such an interesting
and amazing topic ‘Role of Criminal Courts in Granting Bail and Bail Reforms’ and
making it seem easy by lucidly explaining its various aspects. I would like to thank her for
guiding me in doing all sorts of researches, suggestions and having discussions regarding my
project topic by devoting his precious time.

I thank DSMNRU for providing Library, Computer and Internet facilities. And lastly I
thank my friends and all those persons who have given valuable suggestions pertaining to the
topic and have been a constant source of help and support.

Anamika Yadav

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 TABLE OF CONTENTS

1. Acknowledgements………………………………………………….…………….......2

2. Chapters

 Chapter 1: Introduction………….………...…………..………………..…………....4

 Chapter 2: The Concept Of Bail …………………………………………….............5

 Historical Aspect Of Bails

 History Of Bails In England
 History Of Bails In India

 Chapter 3: The Bail System In India: Policy And Role Of Courts…….………......7

 The Legislative Base
 Judicial Policy And Role Of Courts

 Chapter 4: Anticipatory Bail ………….………......……………..………………...9

 Nature And Purpose
 Judicial Approach

 Chapter 5: Evaluation Of Bail System In India And Bail Reforms Required To Fill
The Loopholes ………….………......……..………………..…………….…….…11
 Evaluation Of Bail System
 Bail Reforms

3. Conclusion – Summing Up………………..…………………………………..…14

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 INTRODUCTION

Bail though primarily a legal term, has acclaimed usage both by law men and lay men. It
however, has not been statutorily defined. Conceptually, it continues to be understood as a
right for assertion of freedom against the state imposed restraints. The main purpose of arrest
of an accused is to secure his presence on trial and to ensure his being available for
punishment on conviction. If the presence of an accused at his trial can be ensured by means
other than his arrest or detention, it would be quite possible to allow him the enjoyment of his
liberty during his trial. One of the ways to prevent unnecessary deprivation of the liberty of
an accused is ‘BAIL’.

Literally the expression Bail denotes a security for appearance of a prisoner for his release.
Etymologically, the word is derived from an old French verb ‘bailer’ which means to give or
to deliver, although another view is that its derivation is from the Latin term bajulare meaning
to bear a burden.

Bail is a generic term which means the judicial release from custody. The release on bail in a
criminal case after furnishing the required bond is recognized as the fundamental aspect of
Human Rights. The Code of Criminal Procedure lays down the norms of granting bail and
bonds in section 436 to 450. But there is no definition of the word bail in the Code of
Criminal Procedure, 1973. The offences are however classified as Bailable and Non-Bailable.
Article 21 of the Constitution of India provides complete safeguard to every Indian Citizen,
irrespective of caste, creed and colour – the rich, the poor alike for the protection of life and
personal liberty.

Bail is thus a grant of conditional liberty to an accused who assures or on whose behalf
assurance is given that he would be present at the trial. Bail may thus be regarded as a
mechanism whereby the state devolutes upon the community the function of securing the
presence of the prisoner and at the same time involves participation of the community in
administration in justice.

The Author of this present project topic will delve into the role of criminal courts in granting
bail to the accused and will also make an in depth analysis of loopholes in the Bail Laws and
certain reforms required to make the system more full proof.

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THE CONCEPT OF BAIL

HISTORICAL ASPECT OF BAIL

The custom of bail grew during medieval ages in England out of need to free untried
prisoners from disease ridden jails while they were waiting for the long delayed trials
conducted by travelling justices. Prisoners were bailed or delivered to reputable third parties
of their own choice who accepted responsibility for assuring their appearance at the trial. If
the accused did not appear, his bailer would stand trial in his place. But this system did not
work for a long time as it was too big a punishment for the person who stood surety for the
accused person. As is rightly said – ‘necessity is the mother of invention’. From this grew the
modern practice of posting a money bond through a commercial bondsman who receives a
cash premium for his service and usually demands some collateral security as well. In the
event of non appearance, the bond is forfeited after a grace period of number of days, during
which the bondsman may produce the accused in court1.

HISTORY OF BAILS IN ENGLAND

Under the English Law, the operational mode for interim release of an accused was that a
surety had to be bound to produce the accused to stand his trial on the day appointed for such
trial. This position was in keeping with the concept of the King’s Peace, it made responsible
the party in whose custody the accused had been delivered, under the recognized principle of
law that a body could be detained for body released. Such a position would seemingly be
untenable in a land where Magna Carta has remained the mainstay of liberty. But the law of
bail of the kind mentioned above, subsisted and emanated from the courts concern and
obligation towards the King’s Peace which theoretically had been intolerant of any
disturbance being caused to the public or to interests of the sovereign2.

It can thus be found that the concept of bail under the English common law concerned itself
with both the values namely, that of personal freedom as well as that of the security of the
politico legal system.

HISTORY OF BAILS IN INDIA:

1
Janak Raj Jai, Bail Law and Procedures, Third edition, Universal Law Publishing, New Delhi, 2004
2
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000

5
In India the concept is traced back to ancient Hindu jurisprudence which required, inter alia,
an expedient disposal of disputes by the functionaries responsible for administration of
justice. No laxity could be afforded in the matter as it entailed penalities on the functionaries 3.
Thus a judicial interposition took care to ensure that an accused person was not unnecessarily
detained or incarcerated. This indeed devised practical modes both for securing the presence
of a wrongdoer, as well as to spare him of undue strains of his personal freedom.

During Mughal rule, the Indian legal system is recorded to have an institution of bail with the
system of releasing an arrested person his furnishing a surety. The use of this system finds
reference in the seventeenth century travelogue of an Italian traveler Manucci who himself
was resorted to his freedom by bail from imprisonment for a false charge of theft. He was
then granted bail by then ruler of Punjab but the Kotwal released him only after he furnished
a surety4.

Under Mughal law an interim release could possibly be actuated by the consideration that if
dispensation of justice got delayed in one’s case then compensatory claims could me made on
the judge himself for losses sustained by the aggrieved party 5. The advent of British rule in
India saw gradual adaptation of the principles and practices known to Britishers and prevalent
in the common law. The increasing control of the East India Company over Nizamat Adalats
and other fouzdary courts in the mofussil facilitated gradual inroads of English criminal law
and procedure into the then Indian legal system.

THE BAIL SYSTEM IN INDIA: POLICY AND ROLE OF COURTS

THE LEGISLATIVE BASE

The Statutory fabric of the bail system in India is mainly comprised of some provisions of the
Code of Criminal Procedure, 1973, particularly extending from sections 436-439. The real
matrix of the system is however found in the judicial decisions. A view of both is
indispensable for a proper understanding of the pros and cons of the bail system in India.
Section 436 prescribes a doctrine that bail can be had as of right by a person who has been

3
R.P Kagnle, Kautilya Arthshastra IV, 1963, ch.9
4
William Irivine, Mughal India, Vol II, 198 (1907); Manucci’s travel account of the mid seventeenth century
was originally published in Italian and was translated later by William Irvine.
5
Sarkar J.N., Mughal Administration In India, 1920

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arrested without a warrant. Since arrest without a warrant is a serious encroachment upon an
individual’s personal liberty, the doctrine comes as a protective check against executive
action. This right is extended to cover situations where the interests of society are not likely
to be damaged by bailing out a person; instead the state’s obligation to protect individual
liberty gets promoted.

Section 437 provides for seeking and getting bail in non bailable cases. However, certain
limits have been set out. The society is unwilling to expose itself to such high risks as may
affect its security and stability. Accordingly in non-bailable cases, if circumstances of the
case reasonably suggest and events and antecedents speak of a probability of guilt of such a
high order that it may attract a sentence of death or life imprisonment then the privilege of
being bailed out is denied. But risks emanating from a juvenile, a woman, a sick or an infirm
person may not be so grave as they may be in other cases. An exception has, therefore has
been carved out to admit such persons to bail for alleged non bailable felonies also6.

JUDICIAL POLICY AND ROLE OF COURTS

Callousness of law enforcement agencies attendant with other abuses in the criminal judicial
administration are an oppressive burden of indigent, poor and illiterate accused persons.
These factors arouse the sensitivity of the court and in countering the ill effects of the same
the courts use the lever of human rights to take a relaxed view of the bail system.

Keeping in mind the aforementioned concept the Supreme Court gave a landmark judgment
in Hussainara Khatoon v. State of Bihar7. The court held that “it would be more consonant
with the ethos of our Constitution that instead of risk of financial loss the system should take
into consideration other relevant factors such as family ties, roots in the community, job
security, membership of stable organizations etc”. The court emphasized that these ought to
be the determinative factors and laid down that primarily the pre trial release should be
obtained on personal bond without monetary obligation.

In Maneka Gandhi v. Union8 of India it was laid that a speedy trial is the essence of criminal
justice and there can be no doubt that delay in trial by itself constitutes denial of justice.

6
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000
7
1979 CR.L.J.1045 (SC)
8
AIR 1978 SC 597

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A scrutiny of the recent judicial dicta reveals that the consideration of delay in the
proceedings has indeed influenced the courts in granting bail in cases like Virsa Singh v.
State through CBI9, Mohamad Yusuf Ali v. Asst. Collector of Customs10 and many others.

In Jai Singh v. State of Rajasthan11 the court has observed “it is really disturbing that the
trial courts are so unaware of liberties of the citizens. Now it is settled proposition of law
that expeditious criminal trial is a fundamental right of the accused, especially when he is in
jail or uncertain period, as an under trial prisoner, especially when there is no fault on his
part”.

In many cases the judiciary has shown a direct concern for individual freedom and personal
liberty. Thus, where the sessions court dismissed a bail application without assigning any
reason,the High Court granted bail12. Plea of alibi and all other plausible defences has also
been held worth consideration in matters of grant of bail.
The insistence for high cash security for bail came for drastic criticism by the Karnataka High
Court in the case of Afsal Khan v. State by Girija Nagar Police 13. The court observed that in
the case on hand, the present approach of the sessions judge in insisting upon the petitioner to
deposit a cash security of Rs. 750 in each case totaling Rs. 6750 is not only harsh and
oppressive but indirectly denial of bail thus depriving the person his individual liberty.

Following the pro personal liberty stance the courts have granted bail to a co-accused in a
case under sections 302, 324, 504, 506, IPC for having been involved only in extortion 14. The
courts have accordingly taken a cumulative view of all the three essential variables including
the process of justice, interests of the society and the personal liberty. The Madras High
Court being conscious of the connotation of bail as ‘restrictive liberty’ declared in Thaniel
Victor v. State of Tamil Nadu15 that a person who was granted bail by the court is deemed to
be under the custody of the court.

The court has categorically ruled in Shivarama Gowda v. State of Karnataka that collateral
considerations such as that the bail applicants being poor agriculturists, their families would

9
1992 CR.L.J.164
10
1992 CR.L.J.3285
11
Supra note 12
12
Jatindra Singh v. State of Rajastan 1999 CR.L.J.158(Raj)
13
1992 CR.L.J.1976
14
Nand Kumar v. State of U.P. 1999 CR.L.J.2339 ; see also Ram Sanehi v. State of U.P. 1999 CR.L.J.3708.
15
1991 CR.L.J.2416 (Mad)

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be constrained to starve etc. may not have any impact on the decision whether they should be
released on bail or not.

In bail matters the courts have taken into consideration the other requirements of fairness
also. Thus bail was cancelled where it was found that the accused was a relative of the lawyer
and that has influenced the judge16.

Thus the existing bail system and policy are characterized by consideration of personal
liberty, social security and safety and the requirements of fairness and justice, of which the
courts are trying to take a cumulative cognizance. Every judgment of the courts needs a
separate consideration because every case appears a new experience in itself.

ANTICIPATORY BAIL

NATURE AND PURPOSE

One of the challenges that the law enforcement agencies are facing from the human rights
movement is that nobody should be confined in anyway, unless he is declared guilty. To meet
such posers the bail mechanism in India has been statutorily extended by induction into its
fold a comparatively new concept, commonly known as ‘anticipatory bail’. Section 438 of
the Cr.PC has been shaped to incorporate this concept. It deals with a situation where a
person having reasonable apprehension that he would be arrested on an accusation of having
committed a non-bailable offence seeks to prevent his detention. Such a person can move an
application in an appropriate court, which may grant him an anticipatory bail.

JUDICIAL APPROACH

A Judicial approach to the exercise of discretion has been a cautious one. It does not and
perhaps cannot exercise the power on the assumption that a frivolous accusation may be at
the back of a proposed or initiated criminal proceeding. The nature of accusation is likely to
determine the attitude of the court in this regard. The discretionary power is to be exercised
only after a notice to the public prosecutor is given and necessary reasons are recorded if the
court considers granting of bail is necessary in the interests of justice.

16
State of U.P. v. Dev Prakash, 1999 CR.L.J.3707

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In Narsingh Lal daga v. State of Bihar17 , Patna High Court ruled that the provisions be used
in cases where the court is convinced that the person is of such a status that he would not
abscond or otherwise misuse his liberty. The court further said that even before this provision
was introduced, there had been a practice in vogue which enabled a court to release on bail
such persons without a surety or on their having given a personal undertaking that they would
appear before the court if required to do so.

In Badri Prasad Pathya v. State18 the court endorsed the view that grant of anticipatory bail
is mainly meant to relieve a person from being unnecessarily deprived of liberty; though in
this case the consideration of high hazards of releasing the persons alleged to be involved in a
prima facie case of murder weighed with the court in rejecting the application as against their
claims for personal liberty.

The purpose underlying section 438 of the code is to ensure that a person anticipating arrest is
not obliged to go to jail till he is able to move the court for being released on bail. But it
cannot also be constructed that such a direction should be allowed to come in the way of
police investigations nor should it seek to circumscribe police powers relating to remand to
police custody for purposes of facilitating investigation. Accordingly in Samabhai v. State of
Gujarat19 the court observed that a direction for anticipatory bail would not be allowed to
come in the way of a fuller consideration of the question of custody of the person when the
investigations are incomplete.

The power of the sessions court and the high court to grant anticipatory bail has been brought
out in Devidas Raghu Naik v. State of Maharashtra 20 by the Bombay High Court. In this
case the appellant’s prayer for anticipatory bail was rejected by the sessions court. He,
therefore approached the High Court with the same prayer on the same grounds. The court
granted him anticipatory bail clarifying, that there is no bar whatever for a party to approach
either the high court or the sessions court as concurrent jurisdiction is given to the high court
and the sessions court and the fact that the sessions court has refused a bail does not operate
as a bar for the high court entertaining a similar application.

17
1977 CR.L.J.1776 (Pat)
18
1977 CR.L.J.1524 (Guj)
19
1977 CR.L.J.1524
20
1989 CR.L.J.252 (Bom)

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In spite of the given reservations about the anticipatory bail, there exists another stream of
thought, according to which it can be safely observed that the anticipatory bail mechanism is
a necessity. Without it innumerable persons may be made to suffer in custody just on account
of some suspicion or a false charge. Also the experiences of courts in evolving useful
precedent in matters of anticipatory bail must not be undervalued.

EVALUATION OF BAIL SYSTEM IN INDIA AND BAIL REFORMS

REQUIRED TO FILL THE LOOPHOLES

EVALUATION OF BAIL SYSTEM

The law governing bail in India is inadequate uncertain and above the ground. The working
of the system is also unsatisfactory. The administration of criminal justice has recognized that
a bail decision is recurring one which takes place through a number of distinct stages. It also
recognizes that pre trial releases by the police on bail are within purview of the bail system.
Further bail can be granted before the accused makes an appearance before the court or
before the verdict of the trial is passed and even after he has been declared guilty and
convicted in order to enable him to avail the appeal process.

The practice of releasing on bail has assumed the form wherein an accused enters into a bond
specifying a sum of money which he is liable to forfeit if he fails to perform any of the
obligations imposed on him by the court 21. Generally the stipulated Guarantee in terms of
money in a bond is not deposited in cash in court, though the practice to do so in the case of a
police bail may be a valid one.

In addition to the bond, the release condition on bail may require a surety or sureties, who has
also to bind himself to pay a specified sum of money in the event of the failure of an accused
to appear before the police or the court on the appointed day. In the common law a surety was
essential to bail out a person which was later dispensed with. However the Code of Criminal
Procedure never spelled out the requirement of a surety as a pre-condition for release on bail
though in practice the courts grant bail only on the accused’s furnishing a bond with a
surety22.

21
The procedure when bond has been forfeited is prescribed under section 446 of the Cr.PC 1973.
22
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000

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BAIL REFORMS

Reformulation of bail provisions in the Code may alone be not sufficient to make the system
of bail function with a purpose. A serious effort of securing public support and participation
in the administration of criminal justice, coupled with necessary legislative, executive and
judicial powers to act effectively are most warranted. Such an effort alone can help in
fulfilling the preconditions required for smooth operation of the bail system. Urgent attention
in this regard is needed towards23:

a) Proper functioning of police powers

b) Developing the devices to control the police power

c) Speedy trial of the accused

d) Availability of legal aid and legal service

Reform of the existing bail law would require enactment of a comprehensive code to replace
the existing law on the subject. The proposed code must reflect the basic philosophy, utility
and guidance for grant and refusal of bail. Reforms would include rationalizing the basis of
classifying offences into bailable and non bailable ones. Bail with or without conditions and
the guidelines to be followed for purposes of imposing conditions together with the nature
and purpose thereof are also to be spelled out. The modes and forms of release will have to
rationalized, explained and streamlined so as to enable an accused to ask for a specific form
of release commensurate with his capacity and circumstances of the case.

Indulgence can be shown to the concept of Bail as a matter of right in cases where the offence
charged is of non-imprisonable nature or the alleged offender, when convicted is entitled to
non custodial punishment. However conditions could be imposed in such cases and their
breach may make the person liable to be arrested and put into custody24.

Two important aspects of bail process must be taken into consideration while formulating a
new bail law. They are : (a) the police power to grant bail (b) the police power to arrest and
seek remand. In case of the former, the law may specifically provide for the grant of police
bail in cases of arrest under a warrant, unless the release is imprudent on grounds that may be
recorded. This principle can be made applicable to summary offences as well. The right to be

23
Wani Afsal & Verma S.K., Right to Bail, Indian Law Institute, New Delhi, 2000
24
Janak Raj Jai, Bail Law and Procedures, Third edition, Universal Law Publishing, New Delhi, 2004

12
bailed in the above cases may be accompanied by a police right to ask for a surety. In the
latter case, where initial police arrest is either illegal or without a warrant, police request for
the grant of remand should be given consideration only on the basis of the guidelines which
must be legislatively provided in the code.

The procedure for bail hearing needs specific treatment. The court may be empowered to
conduct any bail hearing in private. It may also be empowered to conduct any bail hearing in
private. It may also be empowered to receive such information or material as may be relevant
despite the question of its admissibility under the rules of evidence. Another major area that
calls for considerations is about the surety – an important component of the bail process. The
substituting of surety by newer ventures, as disclosed by the Manhattan Bail Project or by the
hostel system for undertrials as obtains in some Scandanavian countries, can also be taken
note of for purposes of experimentation in certain cases. The duration, variation and
revocation of bail order also require elaboration particularly with a view to enable a
prosecutor to apply for variation of the terms of conditions of bail granted, or where the
breach of or likely breach of conditions become imminent to cause difficulties for those
entrusted to assist the courts of justice in the fulfillment of their obligations to speedy trial25.

In sum the reformulation of bail law is not a mere revision of the law. It is a prelude to any
commitment to reform the administration of criminal justice. The reform calls for garnering
total efforts. Concerned agencies of state and the government cannot ignore it for long; but
prior to the undertaking of any reform it is essential that the job of systematization and
analysis is completed. These are necessary prerequisites for any effort to draft a code.
Therefore an intense debate has to precede before the new law is codified with advantage
even at the cost of impairing the rule of law as presently assured by the existing law.

25
Ibid

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CONCLUSION

The object and purpose of bail have always been intelligible in the criminal law
jurisprudence. The perspectives are at times lost and the bail process has either been used to
give an over emphasis either to the liberty of the individual or to the security of the state. The
mal functioning of the administrative machinery and its loose control over the law
enforcement agencies have brought to the fore instances where judicial action to protect
personal liberty in the wake of the governing awareness of human rights has hardly be

en a redeeming feature. This approach has resulted in some imbalances in the mechanism,
system and process of bail, which is vital component of the machinery geared to serve the
ends of criminal justice. This perspective has to remain constantly in view while
understanding the working of the bail system.

The law on bail as legislatively enacted is poorly drafted, leaving broadly the system to be
build by the enforcement agencies themselves, which they have been doing till date.

The inclusion of provisions like anticipatory bail in the scheme of bail system is according to
some critics an anomaly because of semi assimilation of this concept with the ordinary
concept of bail. It is being suggested that the provisions of anticipatory bail be kept out of the
domain of bail altogether. However the withdrawal of the scheme will not be justified in
anyway.

In sum the confusion in the concept of bail and also in the working of the bail system is
largely the result of a basic misunderstanding of the concept and the lack of its proper
formulation under the Code. A new law on the subject alone can rectify the errors. However a
proper functioning of the bail process in our legal system should guarantee the existence of
changed social facts, which may be prerequisites for a successful functioning of the bail
system.

14