BAIL JURISPRUDENCE

By:-

DEEKHSHA SHARMA

3RD YEAR, BA.LLB.

THE LAW SCHOOL, UNIVERSITY OF JAMMU

E-mail: - deekhshasharma99@gmail.com

www.probono-india.in

August 30, 2020

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ABSTRACT

The idea of bail rises up out of the contention between the 'police control' and to limit the
freedom of a man who is affirmed to have perpetrated a wrongdoing and the assumption of
blamelessness to support him. This paper deals with the study of the Bail system in India. The
researcher has laid stress on the law commission reports. The paper also includes various
loopholes in the bail system of India. Bail in English Common law is the liberating or setting
at freedom a man captured or detained on security or on surety being taken for his appearance
on a certain day and place named. As such, bail is the conveyance of a captured individual to
his sureties upon their giving security for his appearance at an assigned place and time, to the
purview and judgment of the court. The impact of allowing bail isn't to set the detainee free
from prison or guardianship, yet to discharge him from the care of law and to endow him to
the authority of his sureties who will undoubtedly deliver him to show up in the court at a
predefined time and place. The important end product is that it is interested in the sureties to
grab the detainee whenever and any release themselves by giving him over to the authority of
law and the outcome would be that he (the detainee) would be then detained.

Keywords: Bail, Constitution, Law Commission, Code of Criminal Procedure, 1973,

Court.

INTRODUCTION

The meaning of Bail etymologically derived from an old French verb ‘Bailer’ which means to
‘give’ or ‘to deliver’. The Universal Declaration of Human Rights enshrines under Article 9
that no one shall be subjected to arbitrary arrest, detention, or exile. As India is a signatory to
the UN Declaration of Human Rights, 1948 the concept of Bail has found a place within the
scope of Human Rights. While no Right or Freedom is absolute in any country, there are
limitations provided under the law. A person can be taken into custody by arresting him,
based on suspicion of having committed a crime.

Article21of the Indian Constitution guarantees the Right to life and personal liberty as a
Fundamental Right. It states that- No person shall be deprived of his right to life and personal
liberty except according to a procedure established by law.

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The Supreme Court has held in the Maneka Gandhi V. Union of India1, case that the
procedure of curtailing this right has to be just, fair and reasonable.

Section 436 of the Criminal Procedure Code read with form 45 of Schedule II of that Code
contemplates two kinds of security:

(i) Security with sureties; and

(ii) Recognizance of the principal himself.

The word ‘Bail’ more appropriately applies to the former and this is the meaning given to the
word in practice and in the Criminal Procedure Code as distinct from the recognizance of the
principal himself.

DEFINITION OF BAIL

Black’s Law Dictionary (4th edition) defines bail as “Procure the release of a person from
legal custody, by undertaking that he/she shall appear at the time and place designated and
submit him/herself to the jurisdiction and judgment of the court.”

Webster’s Third New International Dictionary defines “Bail” as: “The process by which a
person is released from Custody.”

Lexlexicon by Ramanth Iyer, (3rd edition) defines bail as: “The security for the appearance of
the accused person on which he is released pending trial or investigation.”

The Criminal Procedure Code, 1973, does not define bail, although the terms bailable
offence and non-bailable offence have been defined in section 2(a) Cr.P.C. as:

“Bailable offence means an offence which is shown as bailable in the First Schedule or which
is made bailable by any other law for the time being in force and non-bailable offence means
any other offence”. Hence, it is generally stated that all serious offences i.e., offences for
which punishment is three years or more have been considered as non-bailable offences.
Further, sections 436 to 450 set out the provisions for the grant of bail and bonds and for
security to be paid by the accused to secure his release in criminal cases. The amount has not
been specifically mentioned in the Cr.P.C. So, it is at the discretion of the Court to put a
monetary cap on the bail bonds.
1
Maneka Gandhi V. Union of India,1978 AIR 597, 1978 SCR (2) 621

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Therefore, in view of the definition of the word ‘Bail’ the person must be under some sort of
restraint and the order of releasing a person under arrest or detention or under some kind of
restraint by taking security for his appearance. Bail is conditional liberty.

PURPOSE OF BAIL

The right to personal liberty is a basic fundamental right of every person as recognized under
Article21, Constitution of India. But this right is not absolute; it can be curtailed to
maintain a balance between individual interest and interest of society at large. However, to
ensure that individual right to liberty of a person is not unreasonably restrained, its
curtailment requires procedure established by law to be followed. The procedure provided
under the Code of Criminal Procedure to curtail the liberty of a person ensures that a person
is not unreasonably detained if his detention is not required for securing ends of justice.

AUTHORITIES WHO CAN GRANT BAIL

BAIL BY BOTH MAGISTRATE AND POLICE

Bail in bailable cases (Section 436 Cr.P.C)

When any person other than a person accused of a non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station, or appears or is brought
before a Court, if he is prepared at any time while in the custody of such officer or at any
stage of the proceeding before such Court to give bail.Then such person shall be released on
bail.

Bail in non-bailable offences on lack of reasonable grounds for conviction [Section 437
(2)]

The Court at any stage of the investigation, inquiry, or trial, on finding that there are no
reasonable grounds for believing the commission of a non-bailable offence by the accused,
but there are sufficient grounds for further inquiry into his guilt, can release the accused on
Bail.

BAIL BY MAGISTRATE

Bail in non-bailable offence (Section 437)

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When any person accused of, or suspected of, the commission of any non-bailable offence is
arrested or detained without warrant by an officer incharge of a police station or appears or
brought before a court other than the High Court or Court of Session, then he may be released
on bail.

There are a certain exceptional cases where bail is not granted in non-bailable cases.Bail
cannot be claimed as a matter of right in non-bailable offences.

Exceptions: If there appear reasonable grounds for believing that the accused has been guilty
of an offence punishable with death or imprisonment for life or If such offence is a
cognizable offence and the Accused had been previously convicted of an offence punishable
with death, imprisonment for life or imprisonment for seven years or more or he had been
previously convicted on two or more occasions of a cognizable offence punishable with
imprisonment for three years or more but not less than seven years, then he will not be
released on bail except for a person under the age of sixteen years or a woman or sick or
infirm.

Bail on arrest by Magistrate (Section 44):

When any offence is committed in the presence of a Magistrate, Whether Executive or

Judicial, within his local jurisdiction, then he is empowered to arrest or order any person to
arrest the offender, and then may grant him bail as per the provisions of bail under the code.

Bail in non-bailable offences on failure to conclude the trial within stipulated time
[section 437(6)]:

In any case triable by a Magistrate, if the trial of a person accused of any non-bailable offence
is not concluded within a period of sixty days from the first date fixed for taking evidence in
the case, then if he is in custody during the whole of the said period, such person shall, be
released on bail, unless the Magistrate otherwise directs for reasons to be recorded in writing.

Bail in non-bailable offences on the conclusion of the trial [437(7)]:

At any time after the conclusion of the trial of a person accused of a non-bailable offence and
before judgment is delivered, if the Court is of the opinion that there are reasonable grounds
for believing that the accused is not guilty of any such offence, it shall release the accused, if
he is in custody, and ask him to execute a bond without sureties for his appearance to hear
judgment delivered.

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Anticipatory Bail, Bail to person apprehending arrest (section 438):

When any person has reason to believe that he may be arrested on an accusation of having
committed a non-bailable offence, he may apply to the High Court or the Court of Session for
bail, Court may direct that in the event of such arrest, he shall be released on bail.

Bail on undergoing one half of the maximum punishment for the alleged offence (section
436 A):

An accused who has during investigation, inquiry or trial, has already undergone more than
one half of the maximum punishment provided for the alleged offence, such offence should
not be an offence for which punishment of death has been provided. Such accused shall be
released on bail.

Bail to appearbefore next appellate court (section 437 A):

Before the conclusion of trial and disposal of the appeal, Trial Court shall require the accused
to execute a bail bond with surety, to appear before the higher court, bail bond shall be in
force for six months

Special powers of High Court or Court of Session regarding bail (Section 439 Cr.P.C.):

A High Court or Court of Session may direct that any person accused of an offence and in
custody, be released on bail.

Bail by Court not having jurisdiction to take cognizance (Section 81 Cr.P.C.):

When a police officer arrests a person for a non-bailable offence, on a warrant issued by a
court of another district. It shall be lawful for the Chief Judicial Magistrate (subject to the
provisions of Section 437), or the Session Judge, of the district in which the arrest is made, to
release such person on bail.

Bail on the execution of bond for appearance (section 88 Cr.P.C.):

When any person for whose appearance or arrest the officer presiding in any Court is
empowered to issue a summons or warrant, is present in such Court, then such officer may
require such person to execute a bond, with or without sureties, for his appearance in such
Court, or any other Court to which the case may be transferred for trial. If such a person fails
to execute a bond then he shall be arrested and sent to custody.

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Bail on security for keeping the peace on conviction (Section 106):

When a Court of Session or Court of a magistrate of the first class is of opinion that it is
necessary to take security from a person for keeping the peace, the Court may, at the time of
passing sentence on such person, order him to execute a bond, with or without sureties, for
keeping the peace for such period, not exceeding three years, as it thinks it. If such a person
fails to execute a bond then he shall be sent to custody.

Bail on receiving security for keeping the peace in other cases (Section 107 Cr.P.C.):

When an Executive Magistrate receives information that any person is likely to commit a
breach of the peace or disturb the public tranquility or to do any wrongful act that may
probably occasion a breach of the peace or disturb the public tranquility, and is of opinion
that there is sufficient ground for proceeding, then he may require such person to execute a
bond with or without sureties, for keeping the peace for such period, not exceeding one year,
as the magistrate thinks fit. If such a person fails to execute a bond then he shall be sent to
custody.

Bail on receiving security for good behavior from persons disseminating seditious
matters (Section 108 Cr.P.C.):

When an Executive Magistrate receives information that there is within his local jurisdiction
any person who, within or without such jurisdiction disseminating seditious matters, and the
Magistrate is of the opinion that there is sufficient ground for proceeding, the Magistrate
may, require such person to show cause why he should not be ordered to execute a bond, with
or without sureties, for his good behavior for such period, not exceeding one year, as the
Magistrate thinks fit. If such a person fails to execute a bond then he shall be sent to custody.

Bail on security for good behaviour from suspected persons (Section 106 Cr.P.C.):

When an Executive Magistrate receives information that there is within his local jurisdiction
a person taking precautions to conceal his presence and that there is reason to believe that he
is doing so with a view to committing a cognizable offence, the Magistrate may, require such
person to execute a bond, with or without sureties, for his good behavior for such period, not
exceeding one year, as the Magistrate thinks fit. If such a person fails to execute a bond then
he shall be sent to custody.

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Bail on receiving security for good behavior from habitual offenders (Section 110
Cr.P.C.):

When an Executive Magistrate receives information, that there is within his local jurisdiction
a person, who is a habitual offender or is so desperate and dangerous as to render his being at
large without security hazardous to the community, for his good behavior for such period, not
exceeding three years, as the Magistrate thinks fit. If such a person fails to execute a bond
then he shall be sent to custody.

Bail during the inquiry as to the truth of information (Section 116 Cr.P.C.):

If, magistrate conducts an inquiry as to the truth of information receive against a person,
which requires him to execute a bond for maintaining peace or good behavior, and he
considers that immediate measures are necessary for the prevention of a breach of the peace
or distribution of the public tranquility or the Commission of any offence or for the public
safety, then he may direct such person to execute a bond, with or without sureties, for
keeping the peace or maintaining good behavior until the conclusion of the inquiry.

Bail on order to give security (Section 117 Cr.P.C.):

If, upon inquiry as to the truth of information receive against a person, which requires him to
execute a bond for maintaining peace or good behavior, it is proved that it is necessary for
keeping the peace or maintaining good behavior to execute a bond, then Magistrate shall
require that the person in respect of whom the inquiry is made should execute a bond, with or
without sureties, failing which he shall be sent to jail.

Bail when investigation cannot be completed within the prescribed time (Section 167
Cr.P.C.)

If an investigation could not be completed within 24 hours of the arrest of a person, then he
needs to be produced before the nearest Magistrate who can extend the police custody upto
15 days.

If further detention is required then an accused can be detained only in judicial custody for a
total period not exceeding ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprisonment for a term of not less than ten
years;

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The Magistrate can extend the custody to sixty days, where the investigation relates to any
other offence.

On the expiry of the said period of ninety days, or sixty days, as the case may be, the accused
person shall be released on bail.

Bail of a person of unsound mind (Section 330 Cr.P.C.):

Whenever a person is found to be of unsound mind and incapable of making his defence, The
Magistrate or Court, as the case may be, whether the case is one in which bail may be taken
or not, he shall be properly taken care of and shall be prevented from doing inquiry to himself
or to any other person.

Bail in cases for contempt of lawful authority of public servant (Section 340 Cr.P.C.):

When any Court is of opinion upon an application, that it is expedient in the interest of
justice, that an inquiry should be made for contempt of lawful authority of public servant for
offences against a public servant, which appears to have been committed to or in relation to a
proceeding in that Court or in respect of a document produced or given in evidence in a
proceeding in that Court, such Court may after conducting a preliminary inquiry or take
sufficient security for the appearance of the accused person and grant him bail.

Procedure when Court considers that case is not to be dealt with section 345 (Contempt
of Court) (Section 346 Cr.P.C.):

The court is of the opinion that the case should not be disposed of as the contempt of court
case then such Court, after recording the facts constituting the offence and the statement of
the accused, may forward the case to a magistrate having jurisdiction to try the same, may
require security to be given for the appearance of such person before such Magistrate and
release him on bail.

Bail on probation of good conduct or after admonition (Section 360 Cr.P.C.):

(i) Accused not under twenty-one years of age convicted of an offence punishable
(a) With fine only
(b) With imprisonment for a term of seven years or less.
(ii) Accused under twenty-one years of age with no proved previous conviction and
convicted of an offence punishable

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 (a) With death
(b) With imprisonment for life.

Then if it appears to the Court that it is expedient, the offender should be released on the
probation of good conduct, the Court may instead of sentencing him at once to any
punishment direct that he may be released on entering a bond with or without surety to appear
and receive a sentence and call upon during such period as the Court may direct and in the
meanwhile to keep the peace and be of the good behaviour.

Suspension of sentence pending the appeal, the release of appellant on bail (Section 389
Cr.P.C.):

The Appellate Court may during the pendency of any appeal by a convicted person, order that
the execution of the sentence or order appealed against be suspended and if he is in
confinement, be released on bail, or on his own bond.

Bail during reference to High Court (Section 395 Cr.P.C.):

Any Court making a reference to the High Court may, Pending the decision of the High
Court, may either commit the accused to jail or release him on bail and direct him to appear
when called upon.

Bail during calling for the record to exercise power or revision (section 397 Cr.P.C.):

The High Court or any Sessions Judge may call for and examine the record of any
proceeding, before any inferior Criminal Court situated within its or his local jurisdiction, for
the purpose of satisfying as to the correctness, legality,or property of any finding. After
calling for such record, direct that the execution of any sentence or order be suspended, and if
the accused is in confinement, that he be released on bail or on his own bond pending the
examination of the record.

BAIL BY POLICE

Bail on non-requirement of arrest in cognizable offence (Section 41 A):

It provides, Police is authorized to arrest a person without a warrant of a Court in Cognizable

cases, but if an arrest of a person is not required under the provision of Section 41, then he
shall issue a notice directing the person against whom a reasonable complaint has been made
or credible information has been received or a reasonable suspicion exists that he has

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committed a cognizable offence to appear before him or at such place as has been specified in
the notice.

Bail on the assertion of name and address (section 42 Cr.P.C.):

When a person accused of committing a non-cognizable offence is arrested for, not disclosing
his name or address or Giving false name or address, then, on the assertion of his true name
and address, he can be released by the police officer, on his executing a bond, with or without
sureties, to appear before a Magistrate if so required.

Bail on the assertion of name and address when arrested by a private person (section
43):

If there is no sufficient reason to believe that a person arrested by a private person has
committed a non-cognizable offence, and he on the demand of a police officer to give his
name and residence, gives a name or residence which such officer has reason to believe to be
true and he has not concealed any fact which has been asked by the police officer he shall be
released on bail.

When arrest made under warrant bearing endorsement for bail (Section 71 Cr.P.C.):

Any Court issuing a warrant for the arrest of any person may in its discretion direct by
endorsement on the warrant, that, if such person executes a bond with sufficient sureties for
his attendance before the Court, then the Officer to whom the warrant is directed shall release
such person from custody on taking security.

Bail on deficient evidence (Section 169 Cr.P.C.):

If, it appears to the officer in charge of the police station upon conducting an investigation,
that there is deficient evidence or reasonable ground of suspicion to justify the forwarding of
the accused to a Magistrate, then such officer shall, if such person is in custody, release him
on his executing a bond, with or without sureties.

While granting bail, such officer may also direct him to appear, if and when required, before
a Magistrate empowered to take cognizance of the offence on a police report, or commit him
for trial.

Bail in cases to be sent to the magistrate when evidence is sufficient (Section 170
Cr.P.C.):

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 If, it appears to the officer in charge of the police station upon conducting an investigation,
that there is sufficient evidence or reasonable ground,such officer shall forward the accused
under custody to a Magistrate empowered to take cognizance of the offence upon a police
report or commit him for trial.

But if the offence is bailable and the accused is able to give security, he shall be released on
bail. While granting bail such police officer shall also take security from him for his
appearance before such Magistrate.

JUDICIAL TREND

Right to bail without any discrimination on the basis of nationality:

The Hon’ble High Court of Delhi in the case of Lambert Kroger V. Enforcement
Directorate,2laid down-

No person can be denied bail just because of the reason of his being a foreign national. To
secure his presence before the Courts as and when required till the completion of the trial, he
can be released conditionally. Such a condition can be impounding of Passport to restrain him
from fleeing from the trial.

Detention for unreasonable time violative of Article 21:

Dipak ShubhashChandra Mehta V. C.B.I. and Anr., 3When the under trial prisoners are
detained in jail custody to an indefinite period then it’s a violation of Article 21 of the
Constitution of India. But the Court granting bail should exercise its discretion in a judicious
manner and not as a matter of course. Though at the stage of granting bail, a detailed
examination of evidence and elaborate documentation of the merits of the case need not be
undertaken.

Right to Anticipatory Bail:

2
Lambert Kroger V. Enforcement Directorate 2000 IIIAD Delhi 584, 2000 CriLJ 2125, 85 (2000) DLT 62,
2000 (53) DRJ 288, 2000 (69) ECC 592
3
Dipak ShubhashChandra Mehta V. C.B.I. and Anr., AIR 2019 SC 949

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Shri Gurbaksh Singh Sibbia and Ors. V. State of Punjab, 4Applicant must show that he
has ‘reasons to believe’ that he may be arrested for some non-bailable offence. Provisions
cannot be involved on the basis of vague and general allegations as if to arm oneself in
perpetuity against possible arrest. Anticipatory bail is neither passport to commita crime nor a
shield against any kind of accusation. Filing of first information report FIR) is not a condition
precedent to exercise power under Section 438 (1). Bail under Section 438 (1) can be granted
even after FIR so long as the arrest is not made. Powers are discretionary to be exercised in
light of the circumstances of each case.

Right to bail on failure to complete investigation within a stipulated period of time

Dalmia V. C.B.I.,5if the investigation is not completed within the stipulated period the same
would not be detrimental to the right of the accused to bail. When a charge sheet is not filed
and the investigation is kept pending, the accused will have the right to bail under Section
167(2).

Bail on Personal Bond:

R.D. Upadhyay V. State of A.P. and Others 6, Undertrials languishing in jail for non-
furnishing of surety despite bail order granted in favour of them. The court can consider the
release of such prisoners on personal Bond. But it is at the discretion of the Court and cannot
be asked as a matter of Right.

A similar decision was laid down in B.M. Bhalla V. State W.P. (c) 3465/2010, the release of
under trial prisoners on personal bonds who are languishing in jail due to inability to furnish
surety. Release on furnishing of surety other than local surety, if UTP not a resident of Delhi.

LOOPHOLES IN THE BAIL PROCESS

The accused in criminal cases take anticipatory bail from the Supreme Court or High Courts
and use it to get regular bail from trial courts, taking advantage of the procedural labyrinth in
criminal law.

4
Shri Gurbaksh Singh Sibbia and Ors. V. State of Punjab 1980 AIR 1632, 1980 SCR (3) 383
5
Dalmia V. C.B.I., AIR 2008 SC 78
6
R.D. Upadhyay V. State of A.P. and Others, (1996)3 SCC 422

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The Supreme Court has asked the directors of judicial academies and criminal courts across
the country to guard against such wily acts by persons trying to get the better of the law.

A Bench of Justices Ranjan Gogoi and Naveen Sinha recently came across the phenomenon
of the accused approaching multiple forums to get bail in the case of a woman accused of
abetment to suicide.

Modus operandi

Usually, the modus operandi is that the accused would approach the Supreme Court or the
High Court concerned or even the Sessions court for interim pre-arrest bail.

Once this is procured, they surrender before the local trial court and use the interim order for
protection against arrest from the higher court to flex their muscles before the trial judge to
get regular bail.

The fallout is that in the future, even if the higher court cancels or decides not to renew the
interim bail, the accused would remain on bail on the strength of the trial court’s regular bail.

The Bench was informed of this loophole by Jharkhand Atulesh Kumar.

“When the Supreme Court or a High Court or even a session’s judge grants interim
anticipatory bail and the matter is pending before that court, there can be no occasion for the
accused to appear and surrender before the trial court and seek regular bail. The predicament
of the subordinate judge in considering the prayer for regular bail and the impossibility of
denial of such bail in the face of the pre-arrest bail granted by a higher forum is real.
Surrender and a bail application in such circumstances is nothing but an abuse of the process
of law by the accused,” the Bench said.

The Bench observed that “time has come to put the subordinate courts in the country on
notice that such a practice must be discontinued and consideration of regular bail applications
upon surrender during the pendency of the application for pre-arrest bail before a superior
court must be discouraged.”

The Court in State of Punjab V. Mehar Singh and Ors.,7observed that in the absence of a
special order of a Magistrate, the non-completion of an investigation is not to be deemed to
7
State of Punjab V. Mehar Singh and Ors, 1974 CriLJ 970

14
be sufficient cause for the detention of an accused person. The Court further observed that the
remand to custody may be granted for compelling reasons when it is shown in the application
that there is good reason to believe that the accused can possibly point out or assist the police
in analyzing and cracking the case. The Commission recommends considering the fact in the
context of the remand by appropriate authorities and suggests that the accused should not be
detained in the case when a special order of the Magistrate is absent and the investigation is
non-complete. The mandatory consideration of this context by the arresting authority as well
as the judiciary could be instrumental in preventing the arresting authorities to follow short-
cuts and ensure a relatively freer and fairer trial against the accused. Needless to add, the step
would also check the power of arbitrary arrest by the arresting authorities.

The crux of bail reforms lies in the idea of balancing the human rights of the accused and
ensuring the conviction of the offender through a free and fair trial. Hence, this is the area
that needs to be emphasized the most. However, risk assessment, as well as risk management,
is based on the discretion of the investigation agency. No modification to any section of the
Cr.P.C. has been suggested by the Commission. Hence, the success of the recommendations
is entirely dependent on the behavioral changes in the actions of the investigating agency and
its officers, which is a highly unreal and almost unachievable expectation.

Law Commission Report

The Law Commission of India [Commission] in its 268th Report titled "amendments related
to Criminal Procedure Code, 1973, provisions related to bail". The Report has been in the
pipeline for over a year and has provided a draft Criminal Law (Amendment) Bill 2017
focusing on making changes to the provisions on arrest and bail throughout the Criminal
Procedure Code, 1973 [Cr.P.C.].

The Law Commission, in its 268th Report 8, highlights this problem once again by
remarking that it has become the norm for the rich and powerful to get bail with ease, while
others languish in prison. While making recommendations to make it easier for all those
awaiting trial to obtain bail, the Commission, headed by former Supreme Court judge B.S.
Chauhan, grimly observes that “the existing system of bail in India is inadequate and
inefficient to accomplish its purpose.” One of the first duties of those administering criminal
justice must be that bail practices are “fair and evidence-based”. “Decisions about custody or
8
‘Amendments to Criminal Procedure Code: Provisions related to Bail
<http://lawcommissionofindia.nic.in/reports/Report268.pdf> accessed on 30 August 2020

15
release should not be influenced to the detriment of the person accused of an offence by
factors such as gender, race, ethnicity, financial conditions or social status,” the report says.
The main reason that 67% of the current prison population is made up of undertrials is the
great inconsistency in the grant of bail. Even when given bail, most are unable to meet the
onerous financial conditions to avail it. The Supreme Court had noticed this in the past, and
bemoaned the fact that poverty appears to be the main reason for the incarceration of many
prisoners, as they are unable to afford bail bonds or provide sureties. The Commission’s
report recommending a set of significant changes to the law on bail deserves urgent attention.

The Commission seeks to improve on a provision introduced in 2005 to grant relief to

thousands of prisoners languishing without trial and to decongest India’s overcrowded
prisons. Section 436A of the Code of Criminal Procedure stipulates that a prisoner shall be
released on bail on a personal bond if he or she has undergone detention of half the maximum
period of imprisonment specified for that offence. The Law Commission recommends that
those detained for an offence that would attract up to seven years’ imprisonment be released
on completing one-third of that period, and those charged with offences attracting a longer
jail term, after they complete half of that period. For those who had spent the whole period as
undertrials, the period undergone may be considered for remission. In general terms, the
Commission cautions the police against needless arrests and magistrates against mechanical
remand orders. It gives an illustrative list of conditions that could be imposed in lieu of
sureties or financial bonds. It advocates the need to impose the “least restrictive conditions”.
However, as the report warns, bail law reform is not the panacea for all problems of the
criminal justice system. Be it overcrowded prisons or unjust incarceration of the poor, the
solution lies in expediting the trial process. For, in our justice system, delay remains the
primary source of injustice.

Various amendments have been released by the law commission in its latest report which are
as follows:

1. Arrest: Amend Section 509 Cr.P.C. to require police officers to inform arrested persons of
the reasons for arrest in a language he understands.

2. Statutory Bail and Remand: Courts should not authorise remand to custody routinely and
examine the case diary [Section 17210 Cr.P.C.] thoroughly. Judges must not accept blanket

9
‘Section 50 Cr.P.C.’ <https://indiankanoon.org/doc/1848903/> accessed on 30 august 2020
10
‘Section 172 Cr.P.C.’<https://indiankanoon.org/doc/1330928/> accessed on 30 August 2020

16
statements that remand is necessary as the "accused may be able to give further information".
They must enforce the rule that Supplementary Chargesheets [Section 173(8) Cr.P.C.] 11are
filed only to add information subsequently available, to prevent delays. Specific suggestions
are made in respect of Sections 16712 and 30913 Cr.P.C. [the two provisions authorising
remand as per the Commission, which is, in fact, incorrect as it ignores Section
20914 Cr.P.C.]. For Section 309, amendments are suggested to require judges to ascribe
reasons for denying bail during the trial. Section 167 is sought to be amended for excluding
the period an accused spends outside the actual custody of the police from calculations.

3. Conditions for Bail: Bail conditions must consider the socio-economic position of the
person and must not be unduly onerous. Courts are encouraged to look beyond financial
considerations to enforce appearance. The Report says "bail must be granted subject to the
least restrictive conditions to ensure the appearance of the person accused of an offence and
the safety of the community", and emphasises that pre-trial detention is exceptional.

4. Modifying Classifications of Bailable and Non-Bailable Offences: Recommendations

that there should be a correlation between the term of imprisonment and classification of the
offence.

5. Anticipatory Bail: Recommends the proviso to Section 43815 Cr.P.C. be retained

[contrary to Report No. 203 of the Commission16]. This suggests a more careful approach
towards granting anticipatory bail, and that it must be made available for a limited period of
time, with every order of grant or rejection being accompanied by reasons.

6. Bail in Economic Offences: Economic offences are "crimes which imperil the nation's
security and governance" and a stricter approach is recommended while deciding the issue of
custody here. The Report says "all forms of economic offences which include tax evasion,
customs offences or bank fraud" should be dealt with strictly and amendments are suggested
to make bail harder.

11
‘Section 173(8) Cr.P.C.’ <https://indiankanoon.org/doc/274924/> accessed on 30 August 2020
12
‘Section 167 Cr.P.C.’ <https://indiankanoon.org/doc/1687975/> accessed on 30 August 2020
13
‘Section 309 Cr.P.C’ <https://indiankanoon.org/doc/1645292/> accessed on 30 August 2020
14
‘Section 209 Cr.P.C.’ <https://indiankanoon.org/doc/887219/> accessed on 30 August 2020
15
‘Section 438 Cr.P.C.’ <https://www.kaanoon.com/indian-law/crpc-438/> accessed on 30 August 2020
16
‘Report No. 203 of the Commission’ <http://lawcommissionofindia.nic.in/reports/report203.pdf>accessed on
30 August 2020

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7. Special Laws: The Commission suggests that courts must prevent the release of persons
on bail in special laws on 'technicalities' - with the NDPS and terrorism-related offences
highlighted. 

8. Modification of Sections 436 and 436-A Cr.P.C.: Recommends amendments to

unambiguously reflect that bail is a matter of right which must be communicated to arrested
persons. A fresh scheme is suggested for Section 436-A to decide release of persons suffering
lengthy pre-trial detention.

9. Centralised Database and Electronic Tagging: Considers the database necessary to

confirm criminal antecedents but posits caution about the introduction of Electronically
Monitored Bail. 

10. Public Prosecutor and Victims: Victims must be given an opportunity of being heard at
the stage of bail itself and be informed when release on bail is imminent. 'Treatment of
Victims' should be a principle governing bail decisions, and a 'Victim Impact Assessment
Report' may be called for where offences are of a particularly grave of heinous nature.

11. Risk Assessment: Risk assessment is a technique to help determine the least intrusive
method of policing and investigating offences, maintaining a balance between individual
liberty and community safety. The principles governing these decisions are suggested by the
Commission.

12. Exceptions: Absolute restrictions on grant of bail are uncalled for, suggesting grant of
bail where grave circumstances exist - for instance, the arrested person suffering from a life-
threatening disease for which custodial treatment is impossible.

13. Prison Infrastructure: Recommendation to overhaul the "crumbling prison

infrastructure and system". One suggestion is to release the under-trials that currently crowd
these prisons, subject, of course, to a proper evaluation of relevant factors.

The Report is a curious creature reflecting a myriad set of concerns, and ultimately does little
more than scratch the surface of an extremely problematic area in the Indian criminal process.

CONCLUSION

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We have so many provisions dealing with the Right to bail but still, statistics show that there
are many people who are languishing in jail for an unreasonable period of time which is also
violative of their Fundamental Right provided under Article 21 of the Constitution of India.
So the need of the hour is the effective implementation of these provisions then only true
justice could research these people who are entitled to this relief provided under such
provisions.

SUGGESTIONS

The following suggestions are forwarded to the policy makers to make the bail system
operative in tune with the changing trends of prison and criminal justice systems —

1. Bail procedure had to be simplified and be made understandable to even illiterate persons.

2. The right to a speedy trial is a fundamental right and if the trial is delayed and the cause of
delay is attributed to prosecution, the accused should bereleased on bail.

3. The modes and forms of release on bail are to be rationalized, and streamlined, so as to
enable an accused to ask for a specific form of release commensurate with the nature of the
offence and circumstances of the case.

4. There is a general feeling that the existing procedure in granting bailis operating in favour
of the rich and as against poor. There is a need to treat rich and poor equally in granting bail.

5. The procedure for bail hearing needs a specific treatment. The court may 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.

6. There is a need to make statutory classification of offences for granting or refusing bail.

7. The granting of bail be made a rule and its refusal as an exception to prevent the influx of
under trial prisoners.

8. Procedure relating to insisting on furnishing monetary sureties be rationalised.

9. The court should not reject the persons as sureties just because they do not own the
property within the jurisdiction of the court concerned.

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10. Courts are not following a fixed procedure for cancellation of bail. There is a need for the
courts to follow relevant criteria in cases of’ cancellation of bail.

11. A number of court decisions have already crystallized the factors which are relevant to
assess risks involved in releasing an arrested person on bail. These factors together with other
necessary conditions may be catalogued to set up discernible criteria for use by the courts
while exercising their discretion.

12. The reconsideration of bail on successive applications at various stages should be on

merits, notwithstanding the refusal of bail at an earlier stage in the lower courts. Judicial
review for modifying or revoking a bail order of the court of the first instance has to find a
significant place. The right of appeal against the bail order, both by the accused and state,
should also be incorporated.

13. The question of fixing the amount of bail should not be left to the discretion of the police
because the police officer may take advantage of the power entrusted to him for the purpose
of extracting more amount from the person released.

14. Bail may be granted liberally to women even in non-bailable offences, unless special
circumstances warrant a different stand.

15. Generally, the women will not make any attempt to escape and even if they escape, they
are not dangerous to society and it is easy to re-arrest them. So, the women accused may be
released on bailliberally.

16. Special provisions may be made for granting bail to minors, lunatics, and also for persons
for whom bail is denied for preventive purposes under special laws.

17. An alternative to the bail system i.e., the feasibility of community-controlled custodial
release shall be adopted.

The above suggestions are made to make the granting of bail inconformity with the canons of
criminal justice and the standards of human rights jurisprudence.

REFERENCES

1. ‘Amendments to Criminal Procedure Code: Provisions related to Bail

<http://lawcommissionofindia.nic.in/reports/Report268.pdf> accessed on 30 August
2020

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 2. Maneka Gandhi V. Union of India,1978 AIR 597, 1978 SCR (2) 621
3. ‘Section 50 Cr.P.C.’ <https://indiankanoon.org/doc/1848903/> accessed on 30 august
2020
4. ‘Section 172 Cr.P.C.’<https://indiankanoon.org/doc/1330928/> accessed on 30
August 2020
5. Lambert Kroger V. Enforcement Directorate 2000 IIIAD Delhi 584, 2000 CriLJ 2125,
85 (2000) DLT 62, 2000 (53) DRJ 288, 2000 (69) ECC 592
6. ‘Section 173(8) Cr.P.C.’ <https://indiankanoon.org/doc/274924/> accessed on 30
August 2020

7. ‘Section 167 Cr.P.C.’ <https://indiankanoon.org/doc/1687975/> accessed on 30

August 2020
8. ‘Section 309 Cr.P.C’<https://indiankanoon.org/doc/1645292/> accessed on 30 August
2020
9. ‘Section 209 Cr.P.C.’ <https://indiankanoon.org/doc/887219/> accessed on 30 August
2020
10. ‘Section 438 Cr.P.C.’ <https://www.kaanoon.com/indian-law/crpc-438/> accessed on
30 August 2020
11. Dipak ShubhashChandra Mehta V. C.B.I. and Anr., AIR 2019 SC 949
12. Shri Gurbaksh Singh Sibbia and Ors. V. State of Punjab 1980 AIR 1632, 1980 SCR
(3) 383
13. Dalmia V. C.B.I., AIR 2008 SC 78
14. R.D. Upadhyay V. State of A.P. and Others, (1996)3 SCC 422
15. ‘Report No. 203 of the Commission’
<http://lawcommissionofindia.nic.in/reports/report203.pdf> accessed on 30 August
2020
16. State of Punjab v Mehar Singh and Ors 1974 CriLJ 970

BRIEF BIO OF THE AUTHOR

Deekhsha Sharma is a 2nd year Ba.LLB(Hons.) student at The Law School, University of
Jammu. She has a keen interest in Criminal Law, Family Law, and Constitutional Law. She
was associated with Niti Manthan as their Legal Research and Content Writer. Her blog titled
‘Impact of COVID-19 on IP Regime’ is published at Niti Manthan.

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