Need To Re-Examine The Law Of Bails

Sudhanshu Sachan1
The law of bails plays a significant role in the criminal justice administration of the country.
It is of great eminence because it is a tool that is being used to strike a balance between
liberty of the accused and protection of the society from the criminals. In Concise Oxford
Dictionary and Chamber's 20th Century Dictionary, the meaning of the word "bail" has been
explained as a sum of money paid by or for a person who is accused of wrong doing, as
security that he will appear at his trial, until which time he is allowed to be free i. The law of
bails “ has to dovetail two conflicting demands, namely, on 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.” ii The
paper discusses the definition, history and different dimensions of the bail law. It also
encompasses discussion on provisions related to bail in the Code of Criminal Procedure,
1973. It principally focuses on the problems related to grant of bail and some probable
solutions to them. It is inherently true that the law of bails needs reform in order to make it
more strengthened and stringent. The paper emphasizes on the need to reform the bail law to
smoothen the criminal justice administration and to foster bail law achieve it’s real objective.

The term bail comes from the old French verb 'baillier' which means to 'give or convey'.
Another view is that the word is derived from the Latin term "Bajalure" which means, to bear
burden"iii. Both the views appear to be true as in the former there is something that is to be
given i.e. money to ensure bail whereas in the latter one bears burden for another i.e. the
surety. A person is detained in order to ensure his presence for investigation and trial
procedures. It is also done so that the accused does not absconds, tampers evidence or harms
other people. If all these things can be ensured otherwise than by arrest then there seems no
point to put the accused behind bars. This is the ultimate objective of bail law. If the accused
or a surety on his behalf can assure the presence of the accused whenever needed, then it will
be unreasonable to interfere with his liberty.

The offences have been categorized into two: a) Bailable and b) Non-Bailable offences.
Section 2(a) of Cr.P.C. defines “bailable offence” means an offence which is shown as
bailable in the First Schedule and rest all are non-bailable offences. In the former case, bail is
a matter of right for the accused. While in the latter granting bail is on the discretion of the
courts. The discretion has to be exercised prudently, judiciously and in the light of various
guidelines mentioned below:

The enormity of the charges; The nature of the accusation; The severity of the punishment
which the conviction will entail; The nature of the evidence in support of accusation; The
danger of the accused absconding if released on bail; The danger of witness tampering; The
protracted nature of trial; Opportunity to the applicant for preparation his defence and access
to his counsel; The health, age and sex of the accused; The nature and gravity of the

1 4th SEMESTER, B.ALL.B(H) 2018-23 ,CUSB1813125106, SLG,CENTRAL UNIVERSITY OF SOUTH BIHAR,GAYA.

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circumstances in which the offence has been committed; The position and status of the
accused with reference to victim and witness; The probability of the accused committing
more offences if released on bail, etc.; and interests of society.

Bail becomes a right when the investigation does not gets complete within the prescribed
period. The time period for completing the investigation process and filing the charge sheet is
90 days in offences where the punishment ranges from death sentence, to life imprisonment
or imprisonment for more than 10 years. In all other offences the prescribed limit is 60 days.
If the charge sheet has not been filed within 90 or 60 days, as the case may be, bail becomes a
right for the accused by virtue of Section 167 Cr.P.C. When an accused person has already
undergone more than one half of the maximum punishment provided for the alleged offence,
during investigation, inquiry or trial, then as per section 436 A Cr.P.C. such accused shall be
released on bail. The alleged offence should not be punishable with death penalty.

The law of bails has different dimensions and carries with it a varied set of legal questions.
The law allows the accused to file an application for bail but has not mentioned any limit on
the number of such applications. The answer to this has been settled through various judicial
pronouncements that there is no limit on the number of bail applications one can file. In
Gama v. State of U.P.,iv it has been held that the doctrine of constructive Res Judicata can’t
be made applicable to bail applications. In the case of State of M.P. v. Kajadv it was held that
it is true that successive bail applications are permissible under the changed circumstances.
But without the changed circumstances the second bail application would be deemed to be
seeking review of the earlier judgment which is not allowed in criminal law.

In cases of joint liability, granting bail becomes more difficult. Reasons for granting bail to
one accused and not to others should be judicious, prudent and logical. The principle used in
such situations is the Doctrine of Parity. According to this doctrine, where the case of the
accused is similar in all respects as that of the co-accused then the benefit extended to one
accused should be extended to the co-accused. This means that if all the circumstantial
evidence, facts of the case, extent of participation in the criminal act etc. show that all the
accused are liable in the same way, then the benefit or the punishment extended on all the
accused persons will be similar by the virtue of this doctrine.

Suppose a situation occurs in which the offence committed by a person gets converted from
a bailable to a non-bailable offence, and the person alleged is on bail. In such situations, the
application on which the accused is on bail can't be renewed. He has to apply for a fresh bail.
In the case of Hamidav v. Rashidvi, the person was alleged to have committed offence under
Section 324, 352 and 506 of IPC. These sections are all bailable and the person was granted
bail. The victim succumbed to injuries and died. The offence got converted into Section 304
IPC which is a non-bailable section. Application for renewal of bail was granted by the HC
but quashed by the SC. The SC gave a word of caution to the HC for exercising power under
Section 482 IPC. The crux is that in such situations a fresh bail application has to be filed
primarily because the nature of offence has changed and the case needs a revamping.

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Issues In The System Of Granting Bails

Forum-shopping or Bench-Hunting is a very spontaneous practice in the court of law. When a

bail application gets rejected by the bench of a particular court, then the application is again
presented to a different bench of the same court, even if the first bench is available. Mainly in
such cases the bail gets granted in the latter. This can simply be termed as huge miscarriage
of justice. It is also in contradiction with the famous saying that “what cannot be done
directly, it also cannot be done indirectly.” Here, people take benefit of the loopholes existing
in our legal system. Delivering impartial justice or finding truth seems to be just idealistic
goals and nothing else. The apex court has looked into the matter and has expressed deep
concern. The court deprecated the practice in the case of Shahzad Hasan Khan v. Ishtiaq
Hasan Khanvii and ruled that “ judicial discipline requires that such matters must be placed
before the same judge if he is available for orders.” The court’s criticism looked beautiful on
the paper but didn’t had any effect on the real scenario. The court reiterated the same in the
case of State of Maharashtra v. Buddhikota Subha Rao(Capt.) viii.

There is a two fold solution to this problem:- a) It is the advocates who are the gatekeepers of
the country's law. If they disregard such practice, then this problem will automatically get
resolved. It is sure that if an accused gets bail, the advocates get a considerable reward. So it
would be required of them to keep their personal interest aside while dealing with bail cases.
b) The second solution is that there should be a vigilant check on such practices by the
superior courts. The judges of the lower courts also must discuss among themselves cases of
bail, so that they are well aware about the bail cases of different courts. If the discussion takes
place, then any litigant who tries to do forum shopping could be directly sent to the judge
who presided over the matter earlier.

The whole process of bail seems to favour the resourceful over the destitute. The rule,
nowadays is, jail is for poor and bail is for rich. An accused who is capable of furnishing bail
bond and can bring sureties in his behalf is entitled to bail. The severity and seriousness of
the offence committed by him hardly matters in such cases. On the other hand, poor people
who are charged of petty offences remain in jails because of their incapability to furnish bail
bonds. American President Lyndon B Johnson, who, when signing the Bail Reforms Act,
1966, remarked,

“A poorer defendant cannot pay the price. He languishes in jail weeks, months and perhaps
even years before trial. He does not stay in jail because he is guilty. He does not stay in jail
because any sentence has been passed. He does not stay in jail because he if any more likely
to flee before trial. He stays in jail for one reason only–because he is poor…”ix

The amount of security to be paid by the accused has not been mentioned in Cr.P.C. Thus, it
becomes the discretion of the court to decide the amount and while doing the same they do
not take into account the plight of the weaker sections of the society. The exorbitant amounts

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demanded by the courts are in a way denial of bail to the downtrodden class. The jails are
filled with under trial prisoners, which mainly include the indigent and the penniless. In the
famed case of Hussainara Khatoon and ors. V. Home Secretary,State of Biharx the court held
that if a person has lived in jail longer than his proposed period of punishment, then he is
liable to be released. India’s demography is mainly composed of people from rural
background. They have small pieces of land in the name of property. If the bread earner of
the family goes to jail, the only way to get him out is to sell the land or keep it on mortgage.
The debt incurred in the process becomes onerous for the poor family, which makes the
situation more problematic and thorny.

Probable solutions to this issue would be that the courts should be more empathetic towards
the oppressed class. They should take into account the economic background of the accused
before ordering the bail amount. A legislation on the bail amount would suffice the job. It can
include factors such as the economic classification of the accused, the severity of the offence
committed, the time already spent behind the iron rods etc. This would help the courts as well
as the prisoners in granting and getting bail respectively.

Judicial discretion in granting bails is an issue of serious concern and needs extensive
reforms. The way bails are being granted seems to be violating Right to Equality. For the
same offence, a well-off person gets bail while the application of other gets rejected.
Handsome amount and power pressure act as the guiding factors towards bail whereas the
guidelines of the apex court remain as mere spectators in the existing paradigm. The Hon’ble
SC itself on 28th January, 2020 in Sardarpura massacre case of 2002 gave bail to 14 convicts
who were charged of burning 33 people alive who belonged to the Muslim community. Out
of the 33, 22 were women. The court ordered that they should engage in spiritual work and
social service as the condition for bail. This order seems to be irrational on the ground that
persons convicted for such heinous and ghastly crime were granted bail and were in a way set
free. Won’t this pose a threat to the society? Also the SC did not grant bail to a communist
leader Abhijit Iyer Mitra who had sarcastically tweeted something on the Konark temple and
later even apologized for it. The Former CJI Ranjan Gogoi in this case said that jail is a safer
place for you. Imagine the situation of the country's judiciary when the CJI himself gives
such blatant orders. In another case of Professor GN Saibaba of Delhi University who is 90%
paralyzed, the Bombay HC did not grant bail even on medical grounds. He is alleged to have
maoist links whereas on the other hand Pragya Singh Thakur who was alleged to kill 6 people
in a bomb blast was given bail on medical grounds and was even allowed to contest elections.
Isn’t this a situation of hypocrisy and dual standards. Though after many years, recently the
SC has granted bail to GN Saibaba. Another case is of the murder of Mohsin Shaikh, which is
one of communal in nature. Alleged persons belonged to Hindu Rashtra Sena who in hate
violence killed innocent Mohsin Shaikh. The Bombay High Court granted bail to the accused.
The problem with the bail order was that, it categorically mentioned ‘the fault of the deceased
was only that he belonged to another religion...’. This statement gives a negative connotation
and may aggravate communal tension. The SC, however reversed the bail order, criticized
and gave a word of caution to the high court. Another case is of Swami Chinmayanad,
Allahabad HC in which bail was granted to the accused but certain derogatory remarks were

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made on the victim, an LL.M. student. Swami is facing charges of sexual assault and the bail
order contained certain demeaning and depreciating remarks on the character of the victim.
These remarks can affect the fair trial and therefore are irrational and unreasonable.

The courts should refrain from giving such bail orders. The cases mentioned above are recent
in nature and are just a glimpse of the current scenario. The better approach to this could be
to follow the guidelines of the apex court mentioned in a plethora of cases while granting
bail. In the landmark judgment of Moti Ram and Other v. State of M.P xi, Justice Iyer laid
down that judges should be more inclined towards bail and not towards jail. The undisputed
principle of criminal jurisprudence that “Bail is a rule and jail is an exception” should always
be followed and cautiously exercised.

i Prakash Chandra Agarwal, Law relating to bail in India: A study of legislative and judicial trends, 2
International Journal of law, 28 (2016).
ii Supt. & Remembrancer of Legal Affairs v. Amiya Kumar Roy Choudhury, (1974) 78 CWN 320,325.
iii Prakash Chandra Agarwal, Law relating to bail in India: A study of legislative and judicial trends, 2

International Journal of law, 28 (2016).

iv Gama v. State of U.P.1987 CriLJ 242(ALL).
v State of M.P. v. Kajad AIR 2001 SC 3317
vi Hamidav v. Rashid 108 (2008) I SCC 474
vii Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987)2 SCC 684
viii State of Maharashtra v. Buddhikota Subha Rao(Capt.) 1990 SCC(Cri) 126
ixArvind Pennathur,Interwining Poverty and Crime: The Indian Bail System, Center For Cirminal Law Studies,

National University, Jodhpur(March 22nd ,2020,00:57AM),

https://criminallawstudiesnluj.wordpress.com/2019/05/22/intertwining-poverty-and-crime-the-indian-bail-
system/amp/
x Hussainara Khatoon and ors. V. Home Secretary 1980 SCC (Cri)23.
xi Moti Ram and Other v. State of M.P 1978 AIR 1594

References:-

1. R.V.Kelkar, CRIMINAL PROCEDURE, (6th ed. Eastern Book Company 2014).

2. P.M. Mathivathani & Mrs. V. Udayavani, Bail and its Processing under CrPC- A Critical Study, 120
International Journal of Pure and Applied Mathematics, 2801 (2018).
3. J. Markandey Katju, CJI Gogoi was blot on judiciary, but other SC judges equally culpable, The
Week(March 23rd, 2020, 10:42 AM),
https://www.google.com/amp/s/www.theweek.in/news/india/2020/02/04/opinion-cji-gogoi-was-
blot-on-judiciary-but-other-sc-judges-equally-culpable.amp.html
4. Sonam Saigal, Five years on, No relief for jailed Delhi University Professor Saibaba, The Hindu(23rd
March , 2020, 10:49 PM), https://www.thehindu.com/news/national/five-years-on-no-relief-for-
jailed-delhi-university-professor-saibaba/article27084472.ece/amp/
5. Anibhuti Rastogi, Bail- but only for the rich, Law Times Journal( 24th March, 2020, 9:55 PM),
https://lawtimesjournal.in/bail-but-only-for-the-rich/
6. Debayan Roy, SC grants bail to 14 convicts of 2002 Gujrat riots, asks them to do spiritual work, social
work, The Print( 24th March, 2020, 10:25PM), https://theprint.in/judiciary/sc-grants-bail-to-14-
convicts-of-2002-gujarat-riots-asks-them-to-do-spiritual-social-work/355420/?amp
7. The Wire staff, Pulling up Bombay HC in remark over Mohsin Shaikh case, SC says religion not an
excuse for murder, The Wire( 26th March, 2020, 11:10PM), https://thewire.in/communalism/pulling-
bombay-hc-remark-mohsin-shaikh-case-sc-says-religion-not-excuse-murder/amp/
8. Legal Service India( 25th March, 2020, 08:50PM),
http://www.legalserviceindia.com/articles/bail_poor.htm

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