A STUDY ON LEGAL INSTRUMENTS FOR PROHIBITING

DOWRY AND IT'S IMPACT ON DEVELOPING AND LEAST

DEVELOPED COUNTRIES

A DISSERTATION SUBMITTED TO
DR. B.R. AMBEDKAR LAW UNIVERSITY, JAIPUR IN PARTIAL
FULFILLMENT OF THE REQUIREMENT PRESCRIBED
FOR THE LL.M. II YEAR EXAMINATION
2021-22(BRANCH: CRIMINAL LAW)

SUBMITTED BY:
SHREYA SHARMA
Roll Number: 543125
RAJDHANI LAW COLLEGE, JAIPUR, RAJASTHAN

UNDER THE SUPERVISION OF

DR. DEVENDRA KUMAR SHARMA
PRINCIPAL (Rajdhani Law College, Jaipur, Rajasthan)

DR. B.R. AMBEDKAR LAW UNIVERSITY,

JAIPUR
2022
 i

PROVISIONS OF BAIL UNDER THE INDIAN LEGAL

SYSTEM

A DISSERTATION SUBMITTED TO
DR. B.R. AMBEDKAR LAW UNIVERSITY, JAIPUR IN PARTIAL
FULFILLMENT OF THE REQUIREMENT PRESCRIBED
FOR THE LL.M. II YEAR EXAMINATION 2021-22
(BRANCH: CRIMINAL LAWS)

SUBMITTED BY:
RIYA SHARMA
Roll Number:
ST. WILFRED‘S COLLEGE OF LAW, JAIPUR

UNDER THE SUPERVISION OF

DR. AMIN KUMAR SINGH
VICE-PRINCIPAL

DR. B.R. AMBEDKAR LAW UNIVERSITY,

JAIPUR
2022
 ii

CERTIFICATE

This is certify that Ms. RIYA SHARMA has worked under my supervision
and guidance. The work contained in this dissertation titled PROVISIONS
OF BAIL UNDER THE INDIAN LEGAL SYSTEM is original and has
not been submitted in part or in full for any other degree either in this
university or any other university previously by the candidate. I am
satisfied that this research work is worthy of consideration for the award of
the degree of LL.M Master of Laws in post graduate stream of Law has
been complied with the Anti-Plagiarism Guidelines issued by the
competent authorities from time to time.

Place: Jaipur, Rajasthan DR. AMIN KUMAR SINGH

Date: / /2022 vice - principal

ST. WILFRED‘S COLLEGE OF LAW , JAIPUR
 iii

ACKNOWLEDGEMENT

I would like to express my deepest gratitude to my supervisor Dr. Amin kumar

singh, Vice - Principal, St. Wilfred‘s College of Law, Jaipur for timely guiding
and supervising this dissertation work. Despite his busy schedule, he has always
been ready willing to co-operate for the completion of this work. I received
constant stimulation from DR. SUSHMA GAUR, Principal, St. Wilfred‘s
college of Law, Jaipur and she has been a perennial source of guidance and gave
me the ablest suggestions and personal care in accomplishing and presenting my
dissertation in the present from. I have been fortunate enough to have the
supervision of a luminary of the stature of Dr. Amin kumar singh whose juristic
and scholarly acumen ship is widely acclaimed in the legal field. I have an
opportunity of learning and work under his scholarly guidance and supervision.
He shall be a continuous source of inspiration throughout my life.

I am also thankful to other Associate Professors and Assistant Professors, Faculty

of Law for their valuable guidance and for inspiring me to complete this project.
I wish to express my thanks to the staff of the library of the St. Wilfred‘s College
of Law, Jaipur for their cooperation.

Place: JAIPUR RIYA SHARMA

Date: / /2022

LL.M Student

(Criminal Laws)
St. Wilfred‘s college of law , jaipur law college.

Affiliated to Dr. B.R. Ambedkar Law University, Jaipur

 iv

DECLARATION

I RIYA SHARMA, hereby declare that this dissertation titled “PROVISIONS OF BAIL

UNDER THE INDIAN LEGAL SYSTEM” is based on the original research work
carried out by me under requirements of the degree of LLM Master of Laws in post graduate
stream of Law and has been complied with the Anti-Plagiarism Guidelines issued by the
competent authorities from time to time including but not limited to this University as well.

The interpretations put forth are based on my reading and understanding of the original texts
and they are not published anywhere in the form of books, monographs or articles. The books,
articles and websites etc. which have been relied upon by me have been duly acknowledged at
the respective places in the text.

For the present dissertation which I am submitting to the University, no Degree or Diploma has
been conferred on me before, either in this or in any other University.

Place: JAIPUR RIYA SHARMA

Date: / /2022 LL.M Student

(Criminal Law)
St. Wilfred‘s college of law , jaipur
Affiliated to Dr. Bhimrao Ambedkar Law
University, Jaipur.
 v

TABLE OFABBREVIATIONS

 IPC Indian Penal Code

 IEA Indian Evidence Act

 CrPC Criminal Procedure Code

 AIR All India Reporter

 SC Supreme Court

 HC High Court

 PUDR People Union For Democratic Rights

 FIR First Information Report

 v. Versus

 SCC Supreme Court Case

 CPI Communist Party of India

 CSR Community Social Register

 NCRB National Crime Records Bureau

 PW Prosecution Wittiness

 PTSD Post-Traumatic Stress Disorder

 CCTV Closed-Circuit Television Cameras

 WHO World Health Organization

 vi

 NCW National Commission for Women

 CICB Criminal Injuries Compensation Board

 OPICCP Optional Protocol to the International Covenant on Civil and

Political Rights

 UDHR Universal Declaration of Human Rights

 ICCPR International Covenant on Civil and Political Rights

 ABC American Bail Coalition

 vii

TABLE OF CASES

 Aasu v. State of Rajasthan, Criminal Appeal No. 511 of 2017.

 A.K. Jain v. Union of India, (1970) 2 SCWR 59: 1970 Cr LJ 367: AIR 1970 SC 267;

Maganlal Bagdi v. Emperor, AIR 1934 Nag 71: 35 Cr LJ 1097: 150 IC 623

 Abdul Ziz v. Emperor AIR 1946 ALL 116:47 Cr LJ 528: ILR (1946) all 238

 Achhaibar Missir v. Emperor AIR 1929 All 614: 30 Cr LJ 718

 ADM Jabalpur v. Shivkant Shukla AIR (1976) 2 SCC 521

 AIR 1995 SC 1198

 Ajit Singh v. State AIR 1970 Del 154: 1970 Cr LJ 1075

 Amar Singh v. State, 1985 Cr. LJ 550 (Del)

 Amir Chand v. Crown, AIR 1950 EP 53: 51 Cr LJ 480: 51 Punj LR 330

 Amirt Saheb Balamiya Patil v. Emperor, ILR 42 Born 406: AIR 1918 Bom 150

 Ananth Kumar v. State of A.P. 1977 Cr. LJ 1797 (AP)

 Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis.

Asim Pandya, p. 47

 Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis

p. 52

 Babu Mulla v. State of M.P. 1978 Cr LJ 1846 (MP) (p. 1847): 1978 MPLJ 623

 Babu Ram v. State, 1988 A Cr. R. 464

 Babu Singh v. State of U.P. AIR 1978 SC 527 (para 2)

 Baikunthnath Dalai v. Bula 1991 Cr LJ 203 (Ori)

 Balvantji Halaji Palvi (Darbar) v. State of Gujarat, 2003 (2) Guj. L. R. 1306 at p. 01308

(Guj.)

 Bansi Lal v. State of Haryana, 1978 Cri LJ 472 at p. 476 (P & H)

 viii

 Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77 at pp. 78-79: AIR 2003 SC 4662

SCC (Cri) 1953

 Bimaladak v. State, 1997 Cri LJ 1969 at pp.1970-71 (Cal): 1997 Cal Cri LR 72

 Bohre Singh v. State AIR 1956 All 671: 1956 All LJ 646: 1956 All WR (HC) 530: 1956

Cr LJ 671

 C.B.I. v. Vijay Sai Reddy AIR 2013 SC 2216: (2013) 7 SCC 452

 Chowriappa Construction v. Rabindranath Acharya, 1978 Cr.L.J. 864 at p. 867 (Orrisa):

1978 Cut. L.T. 348

 Cliree Curant (in re:), ILR 15 Born 485

 Corpus Juris Secundum, Vol. 8, p. 119

 Dal Chand v. State of U.P. 2000 Cr LJ 4579 (ALL) (DB)

 Devilal v. Ganpat, AIR 1951 Raj 94: 52 Cr LJ 631: (1951) 20 ITR 214

 Didarsingh v. State of Jharkhand, 2006 (1) East. Cr.C. 259 at p. 260

 Emperor v. H.L. Hutchinson AIR 1931 All 356: 134 Ind Cas 842

 Emperor v. Naga San HEWA 28 Cr.L.J. 776 (FB) (Rangoon)

 Empress v. Madar, 1885 AWN 59 (FB)

 Gopinathan Pillai v. State of Kerala, 1969 Ker LT 841: 1970 Mad LJ (Cr) 22

 Govinda Chandra Senapati v. State of Orissa, 1996 Cri LJ 1014 at p. 1016 (Ori)

 Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh AIR 1978

SC 429 (para 1) (1978) 1 SCC 240

 Gurbaksh Singh Sibbia v. State of Punjab 1980 AIR 1632; 1980 SCR

 Gurbaksh Singh Sibbia v. State of Punjab 1980 AIR 1632; 1980 SCR (paras 9, 18, 20)

 Gurbaksh Singh Sibbia v. State of Punjab AIR 1980 SC 1632 (paras 9, 18, 20) : (1980)

2 SCC 565 : 1980 SCC (Cr) 465 : 1980 Cr LJ 1125

 ix

 Gurcharan Singh v. State (Delhi Administration), Air 1978 SC 179: 1978 Cr LJ 129:

(1978) 1 SCC 118

 Gurucharan singh (Delhi Administration) v. State AIR 1978 SC 179 (paras 18 to 23):

1978 Cr. LJ 129 (1978) 1 SCC 118

 Gyan Swaroop Gupta v. State of U.P. 1993 Cr. LJ 3895 (All)

 Halsbury‘s Laws of England, Vol. II, 4th Edn., p. 73, para 99

 Hari Shankar v. State of M.P. 1980 Jab LJ 805: 1981 Cr.LR (MP) 33

 Harinder Pal Singh v. State of Punjab, 1982 Cr LT 291

 Harminder Singh v. Sarvajit Singh, (1971) 73 Punj LR 76

 Hema Mishra v. State of U.P. AIR 2014 SC 1066 (Sikri J., concurring)

 http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/13/13_chapter%207.pdf

 Hussain and Anr. v. Union of India, (Crl. No. 509 of 2017)

 Hussain and Anr. v. Union of India, (Crl. No. 509 of 2017) available at

http://mpsja.mphc.gov.in/Joti/pdf/LU/criminal%20trial%20guidelines.pdf

 Hussainara Khatoon and Ors. (VII) etc. v. Home Secretary, Bihar and Ors. etc. (1995)

5 SCC 326 Para 2

 Imperatrix v. Shivram Gundo, ILR 6 Bom 14

 In Re: State of Assam 2007 Cr. LJ 927 (Gau) (FB)

 In the matter of the petition of Daulat Singh, ILR 14 All. 45 at 47; see also Wadhawa

Singh v. Emperor, AIR 1928 Lah. 318

 Income-tax Officer, Central Circle-I v. Gopal Dhamani, 1988 Cr LJ 1079 (1082) (Raj):

(1987) 1 Raj LR 859: 1987 Cr LR (Raj) 588: (1988) 35 Taxman 115: 1988 Raj LW 84

 Indar v. Emperor, (1941) ILR Lah 519: AIR 1940 Lah 339: 42 PLR 411: 41 Cr LJ 598:

190 IC 688

 Issak Ibrahim Sandil Sovda v. State of Gujarat, 2000 (3) Crimes 466 (Guj)
 x

TABLE OF STATUTES

 Indian Constitutuion, 1950

 Criminal Procedure code, 1973.

 Indian Evidence Act, 1872.

 Indian Penal code, 1860.

 The Constitution of the United States.

 xi

TABLE OF CONTENTS
“PROVISIONS OF BAIL UNDER THE INDIAN LEGAL SYSTEM”

Page no,
CERTIFICATE…………………………………………………. ii
DECLARATION………………………………………………... iii
ACKNOWLEDGEMENT……………………………………… iv
TABLE OFABBREVIATIONS………………………………… v-vi

TABLE OF CASES ............................................................................. vii-ix

TABLE OF STATUTES………………………………………… x

CHAPTER - 1

INTRODUCTION………………………………………………… 01-10

1.1 concept of bail…………………………………………………. 1

jurisprudence of bail…………………………………………… 2
background of the study of bail………………………………... 3
1.4 Research problem……………………………………………… 4
1.5 Review of literature……………………………………………. 8
1.6 Research question……………………………………………… 9
1.7 Hypothesis……………………………………………………… 9
1.8 Research methodology………………………………………….. 9
1.9 Significance of study…………………………………………….. 10
1.10 Conclusion……………………………………………………….. 10

CHAPTER - 2
 xii

HISTORICAL EVOLUTION OF BAIL…………………………. 11-25

2.1 Introduction of bail…………………………………………… 12
2.2 Indian legal history of bail…………………………………… 15
2.3 Historical Era of bail…………………………………………. 24
2.4 Conclusion…………………………………………………… 25

CHAPTER 3
LEGAL INSTRUMENT RELATED TO BAIL IN INDIAN LEGAL
SYSTEM……………………………………………………………. 26-61
3.1 Introduction…………………………………………………… 27

Legal Instrument of bail: concept in different constitution .................... 37

India relating to protection of liberty

Article 14 of the constitution of India and bail
Article 21 of the constitution of India
Article 21 and right to bail
Article 22 of the constitution
Right to speedy and fair trial
Provision related to bail………………………………………….. 48
(A) Bail When Arrest Made Without Warrant
Bail under Sections 56, 57 and 59
Bail under Section 169
Bail under Section 170
Bail under Section 436
Bail under Section 437

(B) Bail by Police When Arrest Made in Pursuance of Warrant

 xiii

Bail under Sections 80 & 81

Bail by Magistrate
Bar of Discharge except on Bail under Section 59
Bail when Warrant Executed Outside Territory under Section81
Requiring one to Execute Bond under Section 88
Security for Peace and Bail under Section 106
Bail under Section 309
Bail to Lunatics under Section 330
Bail for Misuse of Liberty under Section 360
Bail to Witness under Section 349

Bail trends to related Indian legal system………………………… 60

Right to default bail (section 167(2) 131 and delay in investigation

3.4.1. i Bail dealing with two conflicting interests
3.4.1. ii Constitutional sanctity of bail under section 437 of code
and articles 21, 22, 227 of constitution of India
3.4.1. iii Mandate to grant bail in bailable cases
3.5 Conclusion………………………………………………………. 61

CHAPTER 4
JUDICIAL INTERPRETATIONS OF BAIL……………………… 62-89

4.1 Introduction……………………………………………………… 6

4.2 Judicial trends on grating bail……………………………………. 75

Discretion to be Exercised in Judicious
Manner and not in an Arbitrary Manner
Concurrent Jurisdiction
Anticipatory Bail Application to beDecided
with due care
 xiv

Direction for Grant of Bail to Person

Apprehending Arrest under Section 438
Jurisdiction to Grant Anticipatory Bail and Consideration
4.2.5 Anticipatory Bail Cannot be Granted as a Matter of Right

4.3 Judicial Discretion…………………………………………… 76

Restrictions Provided in section 437 do not apply to anticipatory bail .. 82

Apprehension of arrest necessary for anticipatory bail
Duration of anticipatory bail
Duration of anticipatory
Difference between bails and bonds ....................................................... 84
Safeguard of accused person in constitution
Successive Anticipatory Bail Application .............................................. 88
Interim or Transit Anticipatory Bail in some cases
In Serious Offences Usually AnticipatoryBail
not to be Granted
Anticipatory Bail in Cases of Large ScaleFraud
or Scam
Direction to Surrender and Judge to Consider
Regular Bail not to be issued While Rejecting
Anticipatory Bail
4.7 Conclusion……………………………………………………… 89

CHAPTER 5
COMPARATIVE STUDY OF BAIL IN DEVELOPING AND LEAST
DEVELOPED COUNTRIES……………………………………… 90-122
 xv

5.1 Introduction……………………………………………………. 98

Comparative study of bail……………………………………… 105

Bail trends in developing and least developing countries……… 117

5.4 Conclusion……………………………………………………… 121

Judicial Approach
Factors into Consideration While Granting Bail

CHAPTER 6

CONCLUSION AND SUGGESTION…………………………. 122-130

6.1 Analysis of the study………………………………………. 125

6.2 Verification of hypothesis…………………………………. 126
6.3 Suggestion…………………………………………………. 128
6.3.1 way out for the bail in Indian legal system
6.4 future scope and concluding remarks……………………… 130

BIBLIOGRAPHY………………………………………………………… 133
 01

CHAPTER 1

INTRODUCTION

I don’t like jail; they got the wrong kind of bars in there.
Charles
Bukowski1

The Concept of Bail

The word Bail is not specified in the Code of Criminal Law, but this phrase, in the most general
sense, means that the accused is set free from prison under a kind of guarantee that the accused
offers to the court that he must undergo trial hearings about the allegations brought against him
which involve collateral protection which bail protection. A bail is a tool used to guarantee that
the prisoner remains safe and ready for prosecution before the Judge. The Criminal Procedure
Code articles 436 and 439 2describe the definition of Bail.
If a person is arrested without a warrant, the police officer must inform such an arrested person
whether the offence he has been charged with is bailable or non-bailable. If it is a bailable
offence, then it is the right of the person to be released on bail. There is no simple difference
between a bailable crime versus an act that cannot be bailed. There are, however, other proven
criteria that the courts use to render the differentiation. Non-cognizable crime is usually
deemed to be bailable. ―To set at liberty a person arrested or imprisoned on security being taken
for his appearance on date at a certain place, which security is called bail because the person
arrested or is delivered on the hands of these who bind themselves or become bail for his due
appearance when required in order that he may be safely protected from prison to which of
they have, of they fear his escapr, rtc; the legal power to deliver him‖. To set at liberty a person
arrested or imprisoned, or security being taken for his appearance on a day and at a place
certain ................ because the party arrested or imprisoned is delivered into the hands of those
who bind themselves or become bail for his due appearance when required in order that he may
be safely protected from the prison Our Supreme Court defines bail as ‗a technique which
is evolved for effecting the synthesis of two basic concepts of human value, viz., the right of

1
Charles Bukowski.
2
C.r.p.c 1973.
 02

an accused to enjoy his personal freedom and the public‘s interest on which a person‘s release
is conditioned on the surety to produce the accused person in the Court to stand the trial.

Jurisprudence of bail

A country‘s criminal law system can be ideal when it strikes a balance between protecting the
rights of individuals and rights of public at large. There are many practices intertwined in the
practice of the criminal jurisprudence with the objective of maintaining law and order in the
society. The provision of Bail is one such practice which has earned more criticism than
appraisals in the recent past. Recently, The Supreme Court Bench consisting of Justices R.
Banumathi, S. Bopanna and H. Roya has granted Mr. Chidambaram, an ex -Minister bail in the
INX Media Case. The case revolves around the grant of the FIPB (Foreign Investment
Promotion Board)3 clearance to the INX Media Group in 2007. Justice Bopanna remarked that
―Bail is rule, refusal is exception.‖ This is the rule which most of the courts follow in deciding
whether to grant bail or not because when bail is refused, a man is deprived of his personal
liberty, which is of too precious a value under our constitutional system, recognized by Articles
19, 21 and 22.

The system of bail was introduced with the practice of a concept known as circuit courts in
Britain during medieval times. In India, the provision of bail is governed by the Code of
Criminal Procedure, 1973, specifically, Sections 436 to 450. It specifies the offences for which
bail can and cannot be granted which depends on the intensity and severity of the offence. It is
the discretion of the court to decide the bail amount on the basis of the offence and the economic
status of the person. There are mainly three types of bail in India; Regular, Interim and
Anticipatory Bail.

Background of the study of bail

The need to respect the constitutional right to bail of every suspected criminal save in
compelling right other than bail. The need to respect court‘s order as it relates to enforcement
fundamental rights other than bail. It is sought to create awareness on the citizens on their

3
Foreign investment promotion Board
 03

constitutionally guaranteed rights. This study is also aimed at exposing the unconstitutional
practice of holding charge with a view of detaining a suspect.

Research problem

It is imperative that discretion must be exercised with caution and care and must be applied by
balancing the interests of both justice and personal liberty of individuals. It must not be
arbitrary, vague and fanciful, but legal and regular.

The recent trend of arbitrariness in exercising discretion has been a serious roadblock in
achieving the ends of justice. In cases involving high profile individuals, bail is granted without
considering the enormity of the case.

These individuals walk free when the people affected by them reel in injustice. It has become
a norm than an aberration in most jurisdictions including India that the powerful, rich and
influential obtain bail promptly and with ease, whereas the mass/ common / the poor languishes
in jails.

Another major problem in the bail system is the amount of bail bonds set by the court. The
economic and financial situation of a person and must be considered before courts reach a
decision regarding the amount of bail.

From the analysis of data and statistics in the Law Commission Report, it can be observed that
a majority of under trial prisoners i.e., 70.6% are illiterate or semi-illiterate which is an
indicator of poor economic background.

They are trapped in the vicious cycle of poverty and illiteracy coupled with a continuous
violation of their right to personal liberty and dignity. Accused person‘s economic status
appears to have become the decisive factor for granting pre-trial release.
 04

Review of literature

Janak Raj Jai in his book ―Bail Law and Procedures‖ discussed elaborately that it is a well
settled law, that grant of bail is a rule and refusal of the bail is an exception. Unfortunately, the
letter and spirit of the law is not adhered to by most of the Courts in our country. Personal
liberty of an individual citizen and right to life under Article 21 of the Constitution is the most
precious fundamental right which cannot be jeopardized by any agency or institution
whatsoever. A government founded on anything except liberty and justice cannot stand. All
the wrecks on either side of the stream of time, all the wrecks of great cities and all the nations
that have passed away–all are a warning that no nation founded upon injustice can stand.
Personal liberty of a citizen, therefore, is certainly deprived when the bail is refused. It is too
precious a value of a constitutional system recognized under Article 21 of the Constitution.
After all, personal liberty of an accused is fundamental, suffering lawful eclipse only in terms
of procedure established by law. Keeping in view the fundamental right of each and every
individual citizen irrespective of caste, Prabhakar a very humble effort has been made by the
author in this book to deal with the provisions and procedure for the grant of bail as per the
letter and spirit of the law of the land.4

P.V. Ramakrishna, described the right to liberty is one of the fundamental rights guaranteed
by the modern constitution of all the civilized countries. The right is as well recognised in India
as in other foreign countries and the constitution of India contains detailed provisions relating
to the fundamental rights. Further the constitution reflects the tendency of modern civilization
to shift the emphasis from the individual to the community and at the same time it has struck a
balance between individual liberty and social control. It is in the background of the constitution
that the law relating to ―bail‖ is being shaped and as such a brief survey of the fundamental
rights has been made in the first chapter of his book. This book deals with the law of bail,
bonds, arrest and custody at length. Bail is a mechanism by which by which the adverse
consequences of delay before trial can be minimised. Attention of the author unfold minutely
the minutely the nature of the law of bails, the principles on which it is founded, and the
practical rules connected with its administration to facilitate the readers understand the basic
nuances of the law. Most recent judicial decisions of Supreme Court and High Courts have
been added in good measure.5

4
Janak Raj Jai, Bail Law and Procedures, Universal Law Publishing, 6th edition, 2015.
5
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016
 05

Asim Pandey, in his book Law of Bail Practice and Procedure, described the law of bail plays
a very important role in the administration of justice. Law of bail Practice and Procedure has
been conceptualized as a handy reference work to cater to the needs of lawyers and judges in
day-to-day court practice. The law of bail is of supreme importance since it is directly and
intimately connected with the liberty of a person which is safeguarded in article of the
constitution. It is always difficult to decide bail applications without being influenced by
external and internal forces which drive a judge to form a particular opinion.

V.R. Krishna Ayer, Grant of Bail: Practice and Procedure, Justice V.R. Krishna Ayer in his
judgment in case Gudikanti Narsimulu v. Public Prosecutor6 says ―significance and sweep of
Article 21 make the deprivation of liberty, ephemeral or enduring, a matter of grave concern
and permissible only when the law authorizing it, is reasonable, even handed and geared to the
goals of community good and State necessity spelt out in Articles. Reasonableness postulates
intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive
purpose but for the bifocal interests of justice to the individual involved and society affected.‖
Justice Krishna Ayer also mention that the code is cryptic on the topic of bail and the Court
prefer to be the order custodial or not. And yet the issue is one of the liberty, justice, public
safety and burden of the public treasury all of which insist that a developed jurisprudence of
bail is integral to a socially sensitized judicial process. Rowena Jones, Bail law and practice:
Recent Developments, in this paper, author describe that bail in New South Wales is allowed
in every case except where the accused is involved in charges of murder rape or drug offences.
In Australia we may see bail hostels.

The accused persons who have been granted restrictive Bail or where the trial process is in
progress in such cases the accused persons are kept in bail hostel. The author tried to explain
the concept of actual bail how bail should work and what is the exact meaning of bail, for which
he mentioned the act of new south wales bail Act 1987, according to which bail means, it allows
an individual framed with some criminal offence to be released from detention or custody on
some terms and conditions that he will not fail to attend the court and will act according to the
terms imposed upon him through bail order. He stressed on the issue that bail is approval to be
at freedom or liberty instead of in custody. He mentioned in his book about the jurisdiction of
police and the courts in regard to granting of bail. He very nicely narrated how to balance the

6
AIR 1978 SC 429 Para 12.
 06

rights of the supposed accused and the safety of the community while giving the values to the
liberty of the suspected; he also gave the references of the latest amendments made in the Act.

The author mainly focused on the minor offences rather than serious ones, and tried to suggest
how the accused‘s can be rehabilitated and proposed about the bail hostels and bail information
schemes. He explained the terms like Acceptable person: acceptable person is one who is
familiar to the accused generally a near one like relative or a dear friend, Bail
agreement\undertaking: the suspected person signs an agreement stating that he will follow all
the rules which are imposed upon him so he to be released on bail, Bail conditions: normally
the conditions imposed upon the accused are to be present in court on the given date and
promise to behave like a good citizen in the society other conditions such as to leave with
particular personality, to visit area police station on a given date, regularly attend the treatment
or a training program if any imposed etc. Bail hostel: a residential establishment where
suspected persons released on bail are sent for some particular reason such as to finish a drug
or alcohol program. Surety: he the person who deposit the sum or amount in the court for the
release of the accused and promises to bring him in court whenever his appearance is required
in the Court, where he fails to do so the amount deposited as security will be forfeited.

Author categorised the offences in to different sections those are minor offences and serious
offences and quoted in what offences bail may be given and where it cannot be granted. He
also categorised in what offences the police may grant bail and where the court has power to
do so. He has suggested that there should be special consideration to the disabled persons and
the person who because of their economic conditions are not able to meet the terms of their
bail, he also suggested building the bail hostel and bailing information centres.

Kelly Anne Collins, „Queensland bail laws‟7 in this article provides an overview of the current
Queensland, Bail laws. Recommendations for reform have been made by the Queensland Law
Reform Commission 1993. Granting of bail for a defendant raises questions for each justice.
The right of a person to the presumption of innocence and his/her right to liberty vis a vis
society, has the right to ensure that members of the public be recorded loads with a crime and
confirmation will be punished. A balance between these two requirements must be found. A
balance between the risk to the public safety by release of the accused and of the personal
freedom of the accused only at the level of the charge, may be wrong. The objective of this

7
Kelly Anne Collis, Article titled as “Queensland Bail Laws”, Queensland Parliamentary Library, 2000, ISBN –
0724278664, 9780724278664, p. 38.
 07

article is to offer a review on the fundamental right of the accused to get bail, it mostly revolve
around the rights of the arrested person to be considered as innocent till his guilt is proved and
at the same time to ensure the society that they are safe from being disturbed by the people
those charged with criminal offences by detaining them. A focus on the objections from the
crime victims has been shown in this article how they raised their voice against the changes
made in the Queensland bail policy and what they have argued in their protest on the changes
in bail policy they claimed that more weightage is given to the rights of accused and
compromised with the safety of the community by giving low priority to it. Apart from this the
crime victims wanted that the granting of bail should be made stronger that the accused should
not get bail that easily where they are suspected of dangerous or violent offences. The author
reviewed the recommendations made by the Queensland law reform commission which stated
that while making changes in the bail law four most important things has to be taken in to
consideration those are,

A) Presumption of innocence to be maintained.

B) Public to be protected from being hurt from harmful behaviour or conduct of the accused.

C) The priority should be given to the liberty of the people and to be protected from unlawful
or unnecessary depravation of liberty.

D) There should be effective administration of the criminal justice system and it should be
ensured that the accused of an offence should be at any cost be punished if the guilt is proved.
A fair and just trial has to be conducted and till the guilt has been proved the accused should
not be deprived of his liberty being free to leave in the society, thus a grant of bail allowing the
accused to go free until the guilt is proved or convicted.8

Max Taylor, Response by NSW council for civil liberties to review of NSW Bail Act, 1978.
Max Taylor says NSW Bail Act 1978 is not humanistic. Presumption in favour of bail has been
removed from the Act which must be restored then alone the council for civil liberties will give
its opinion on the Act. All over the world presumption of innocence of the arrestee is eroding
and judges are also swayed by the public opinion and articles published by the courts. This
article contains provisions regarding the presumption favouring the bail in all crimes even in
those cases where there is no provision of right to bail in some offences. The author has

8
Queensland Parliamentary Library, Research Publications and Resources Section, Brisbane, March 2000 ISSN
1325-1341 ISBN 0 7242 7866 4, https://www.parliament.qld.gov.au/documents/explore/
ResearchPublications/researchBulletins/rb0100kc.pdf
 08

contended in his report that no provision has been set up in the bail Act 1978, regarding
restriction or limitation over the bail in a special condition, the author has also pointed out that
in this act there is no minimum or maximum limit has been mentioned respect to application
of bail that the accused may apply in the Court.9

Research question

What is the importance of discretionary power to the judiciary in matters of bail?

Hypothesis

The guidelines issued by the Supreme Court in matters of

 bails have not yet ensured real freedom to the accused,

 there is need to revisit the guidelines to ensure better freedom.
 Whether the existing criteria granting and refusing bail is sufficient.
 Whether the societal interest override in certain heinous crimes such as gang-
rapes, acid-attacks against individual liberty as denying bail.
 Whether monetary bond are sufficient or required some stringent security
regarding bail.
 Whether the existing criteria for exercising the judicial discretion fulfilling the
present needs.

Research methodology

The purpose of this research is to study different statutes, books, cases, articles, reports etc. and
uncover different studies and development in this field. hence the research methodology
adopted here will be purely doctrinal. The present research work requires theoretical study of
the topic. The theoretical work will deal with judicial decisions relate to grant or refusal of bail.
The study will include the comprehensive study through the libraries, journals, Case laws and

9
New Council for Civil Liberties Submission to the New South Wales Law Reform Commission (NSWLRC) In
Relation to the Review of the Law of Bail, http://www.lawreform.justice.nsw.gov.au/ Documents/Completed-
projects/2010-onwards/Bail/Submissions/BA03.pdf
 09

books. The entire study is concerned to the analysis of bail provision in India. This study
comprised doctrinal form of research. Doctrinal research is done with help of primary sources
including Acts, legislation, bylaws, ordinances and secondary sources are the various
judgements pounced by the Hon‘ble Supreme Court of India and the other High Courts in India.

Significance of study

 Bail as defined is the security given for the due appearance of a prisoner in order to
obtain his temporary release.

 The very purpose behind bail being that a person is not guilty until proven so beyond
reasonable doubt.

 In a democratic society everyone is guaranteed such freedoms that are must as a human
being so even if a person is charged of any offence; he is ensured his all-other freedom
by granting bail and not needlessly detained. Only certain security is demanded from
him only to ensure his timely appearance before the court whenever required.

 The bail laws along with other are equally applicable to all the persons within the
territory of India as stated in article 14 of our constitution.

Conclusion

The provision of bail plays an important role in balancing the interests sought to be protected
under the criminal law jurisprudence. Courts must take precaution in ensuring that discretion
does not defeat its own purpose. Protection of liberty and dignity of individuals is of utmost
importance and courts must either grant or refuse bail by keeping in mind the values of equality,
good conscience and justice. The bail jurisprudence needs to be revamped with stronger and
effective reforms. A system of checks and balances, in the form of a competent authority, has
to brought into force targeting at the arbitrary exercise of discretion by courts. Bail procedures
 010

for the economically marginalized section of the society must be carried without much delay
and formalities which would otherwise result in a flagrant violation of their Fundamental rights.
 011

CHAPTER 2

HISTORICAL EVOLUTION OF BAIL

Introduction of Bail

The concept of bail has a long history and deep roots in English and American law. In medieval
England the custom grew out of the need to free untried prisoners from disease-ridden jails
while they were waiting for the delayed trials to be conducted by travelling justice.10 Prisoners
were bailed or delivered to reputable third parties of their own choosing who accepted
responsibility for assuring their appearance at trial. If the accused did not appear, his bail or
would stand trial in his place. Eventually it became the practice for property owners who
accepted responsibility for accused persons to forfeit money when their charges failed to appear
for trial. 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
as well. In the event of non-appearance, the bond is forfeited after a grace period of a number
of days during which the bondsman may produce the accused in Court.11 Usually, bail is a kind
of asset or property given by the court as a security for consideration of release from being
arrested or to avoid being jailed, as an identification that the accused or suspect will be present
on the day of hearing or trial and where if he fails to appear before the court on the given day
then his property may be sized or forfeit the bail. The amount deposited shall be returned at the
end of the trial if the accused present at every hearing regardless of whether the accused has
found guilty or acquitted. The administration of bail has seen changed enormously from this
original bail setting and these changes in America can be attributed largely to the intersection
during the 20th century of two historical phenomena. The first the slow evolution from the
personal surety system using unsecured financial conditions to a commercial surety system
primarily using secured financial conditions. The second was the often-misunderstood creation
and nurturing of a bail or no bail or release or no release dichotomy which continues to this
day. The history of bail tells us that the pre-trial releases and detention system that worked
effectively over the centuries. Moreover, the bail side of the dichotomy functioned most
effectively through an uncompensated and un-indemnified personal surety system based on
unsecured financial conditions. What we in America today known as the traditional money bail

10
Asim Pandey, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, p. 3.
11
Moti Ram v. State of M.P. AIR 1978 SC 1594 (1978) 4 SCC 47.
 012

system – a system relying primarily on secured financial conditions administered through

commercial sureties is, historically speaking, a relatively new system that was encouraged to
solve America‘s dilemma of the unnecessary detention of bailable defendants in the 1800s.
Unfortunately, however, the traditional money bail system has only exacerbated the two
primary abuses that have typically led to historical correction:

(1) The unnecessary detention of bailable defendants, whom we now often categorize as lower
risk.

(2) The release of those persons whom we feel should be unbailable defendants, and whom we
now often categorize as higher risk.

The history of bail also instructs us on the proper purpose of bail. Specifically, while avoiding
blood feuds may have been the primary purpose for the original bail setting, once more public
processes and jails were fully introduced into the administration of criminal justice, the purpose
of bail changed to one of providing a mechanism of conditional release. Concomitantly, the
purpose of‚ no bail was and is detention. Historically speaking, the only purpose for limiting
or conditioning pre-trial release was to assure that the accused come to court or otherwise face
justice. That changed in the 1970s and 1980s, as jurisdictions began to recognize public safety
as a second constitutionally valid 27 purpose for limiting pre-trial freedom. It is a matter of
court to grant bail or not .in some countries bail is allowed very commonly and at some
countries it is very hard to get bail. If the courts find that the accused will not appear in court
if he is allowed bail and there is chance that he will abscond in such cases, court may not allow
bail.

Indian Legal history of Bail

Historical genesis the ethos and injunctions of ancient Hindu jurisprudence 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 penalties on the functionaries.12 Thus, a
judicial interposition took care to ensure that an accused person was not unnecessarily detained

12
Kautilya Arthshastra, IV, Ch. 9.
 013

or incarcerated. This indeed devised practical modes both for securing the presence of a
wrongdoer, as well as to spare him of undue strains on his personal freedom.13

During Moghul Rule

The Indian legal system is recorded to have an institution of bail with the system of releasing
an arrested person on his furnishing a surety. The use of this system finds reference in the
seventeenth century travelogue of Italian traveller Manucci.14 Manucci himself was restored to
his freedom from imprisonment on a false charge of theft. He was granted bail by the then ruler
of the Punjab, but the Kotwal released him on bail only after Manucci furnished a surety. 15
Under Moghul 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 be made on
the judge himself for losses sustained by the aggrieved party.16

The advent of British rule in India saw gradual adaptation of the principles and practices known
to Britishers and was prevalent in the common law. The gradual control of the East India
Company‘s authority over Nizamat Adalat‘s and other Fouzdary Courts in the mofussil saw
gradual inroads of English criminal law and procedure in the then Indian legal system. At this
juncture of history, criminal courts were using two well understood and well-defined forms of
bail for release of a person held in custody.17 These were known as zamanat and muchalka. A
release could be affected on a solemn engagement or a declaration in writing. It was known as
muchalka which was an obligatory or penal bond generally taken from inferiors by an act of
compulsion. In essence, it was a simple recognisance of the principal of bail. Another form of
judicial release was a security with sureties knows as zamant, in which the zamin (surety)
became answerable for the accused on the basis of a written deed deposited by him with the
trying court. With discretionary powers vested in courts under the doctrine of Tazeer in
Mohammedan criminal law, a decision on the issue of grant or refusal of bail or the mode of
release, did not pose much difficulty. However, the form and contents of the British institution
of bail were statutorily transposed by the passing of Code of Criminal Procedure in 1861,
followed by its re-enactment in 1872 and 1898 respectively. In the changed context of an

13
Asim Pandya Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis.
14
Niccolao Manucci (19 April, 1638-1717) was an Italian Writer and Traveller. He worked in the Mughal
Court. He worked in the service Dara Shikoh, Shah Alam, Raja Jai Singh.
15
William Irvine, II Mog/IIII India 198 (J 907). Manucci's travel account of the mid seventeenth century was
originally published in Italian and was translated later by William Irvine.
16
J.N. Sarkar, Muthal Administration in India, 108 (1920).
17
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/8/08_chapter%202.pdf
 014

independent Republican India, administrators of law and justice are mandated to function in a
manner that the constitutional equilibrium between the „freedom of person‟ and the „interests
of social order‟ are maintained effectively. Ushering of democratic social order necessarily
required updating and streamlining of the then existing laws. As a necessary corollary to the
above, the Law Commission of India directed its attention towards the existing procedural code
and provisions governing the system of bail.18

The Legal Disposition of Bail in India

The term ‗bail‘ has not been mentioned anywhere in Indian law. However, it is widely believed
that this system came into existence by looking up at the English and American systems of
bails. The Supreme Court had in the case of Kamlapati v. State of West Bengal defined bail as:
―a technique which evolved for effecting the synthesis of two basic concepts of human value,
viz., the right of an accused to enjoy his personal freedom and the public‘s interest on which a
person‘s release is conditioned on the surety to produce the accused person in the Court to
stand the trial.‖ In Prahlad Singh Bhati v. N.C.T., Delhi &Anr., the Supreme Court laid down
established principles that while bail in India is being granted to a person, the Courts need to
keep certain things in mind like the essence of evidence, nature of the accusations, character,
and reputation of the accused and the suitable likelihood of acquiring the accused‘s presence
at the date of his trial and corresponding deliberations.

Types of bail in India

There are commonly three types of bail in India which are prevalent:

Regular bail

Regular Bail is bail that can be granted by a Court to any person post his arrest by the police.
When a person is said to have committed a non-bailable and cognizable offense, the police take
him into custody. Once the period of police custody expires, the accused is sent to jail. The
Code of Criminal Procedure contains provisions under section 437 and 439 giving the right to
the accused person to be released from custody. In simpler terms, regular bail can be defined

18
http://14.139.60.114:8080/jspui/bitstream/123456789/671/9/The%20Bail%20System.pdf
 015

as the emancipation of an accused from the custody of the police so that his presence during
the trial may be ensured.

Anticipatory Bail

The word ―anticipatory bail‖ is nowhere explained in any law Code. However, Section 438
under the Criminal Procedure of Code, 1973 contains provisions regarding anticipatory bail.
Any person who has a reason to believe that he might be arrested on the probable ground of
him having committed any non-bailable offense, he may apply for an anticipatory bail in the
Court of Sessions or the High Court that upon such arrest of his, he shall be released on bail.
However, in such cases, the Court, inter alia, takes into consideration certain factors like the
nature, essence, and gravity of the accusation, history of the applicant if he has formerly been
imprisoned in regard to a cognizable offense, probability of the applicant to escape from the
trial. After considering such factors, the Court may or may not grant accused the anticipatory
bail.

Interim Bail

Interim Bail is a provisional or temporary bail that is granted by the Court till the time an
application for regular or anticipatory bail remains pending before the Court. This bail is
granted for a short period of time. However, this bail cannot be stretched by the accused in an
attempt to evade the judicial process.

Historical Era of bail

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.
And if the accused failed to as per the stipulated today the surety himself would stand trial in
his place19 as 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 obligations towards the king‟s peace which,
heretically had been intolerant of any disturbance being accused to the public or to interests of
the sovereign.20 It can thus be found that the concept of bail under the English common law

19
A.N. Chaturvedi, Rights of Accused Under Indian Constitution, 283 (1964).
20
Right to Bail by D.C. Pandey edited by S.K. Verma.
 016

concerned itself with both the values namely, that of personal freedom as well as that of the
security of the politico-legal system. 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
penalties on the functionaries.21 The concept of bail can traced back to 399 BC, when Plato
tried to create a bond for the release of Socrates. The modern bail system evolved from a series
of laws originating in the Middle Ages in England.

Evolution of Bail in England Bail

in English common law, is the freeing or setting at liberty of one arrested or imprisoned upon
any action, either civil or criminal, on surety, taken for his appearance on a certain day and a
place named. The surety is termed bail because is termed bail because the person arrested or
imprisoned is placed in the custody of those who bind themselves or become the bailers for his
due appearance when required. So, he may be re-seized by them and surrendered to the court,
when they are discharged from further liability. The sureties must be sufficient in the opinion
of the court to answer for the sum for which they are bound and, as a rule, only householders
are accepted, and an accomplice of the person to be bailed or an infant would not be accepted.22
Bail is obligatory in all summary cases. It is obligatory in all misdemeanours, except such as
have been placed on the level of felonies, viz., obtaining or attempting to obtain property on
false pretences, receiving property so obtained or stolen, perjury or subordinate of perjury,
concealment of birth ,wilful or indecent exposure of the person, riot, assault in pursuance of a
conspiracy to raise wages, assault upon a peace officer in the execution of his duty or upon
anyone assisting him, neglect or breach of duty as a peace officer, any prosecution of which
the costs are payable out of the country or borough rate or fund.23

There existed a concept of circuit courts during the medieval times in Britain. Judges used to
periodically go on circuit to various parts of the country to decide cases. The terms sessions
and Quarter sessions are thus derived from the intervals at which such Courts were held. In the
meanwhile, the under-trials were kept in prison awaiting their trials. These prisoners were kept
in very unhygienic and inhumane conditions this was caused the spread of a lot of diseases.
This agitated the under-trials, who were hence separated from the accused. This led to their

21
R.P.K. Angle (ed.), Kautilya Arthshastra, IV ch. 9 (1963, R.P.).
22
Encyclopediabritannica.
23
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016.
 017

release on their securing a surety, so that it was ensured that the person would appear on the
appointed date for hearing. If he did not appear then his surety was held liable and was made
to face trial. Slowly the concept of monetary bail came into existence and the said undertrials
were asked to give a monetary bond, which was liable to get forfeited on non-appearance.

In The Magna Carta, in 1215, the first step was taken in granting rights to citizens. It said that
no man could be taken or imprisoned without being judged by his peers or the law of the land.
Then in 1275, the Statute of Westminster24 was enacted which divided offences as bailable and
non bailable. It also determined which judges and officials could make decisions on bail. In
1677, the Habeas Corpus Act25 was added to the right of petition of 1628, which gave the right
to the defendant the right to be told of the charges against him, the right to know if the charges
against him were bailable or not. The Habeas Corpus Act, 1679 states, ―A Magistrate shall
discharge prisoners from their Imprisonment taking their Recognizance, with one or more
Surety or Sureties, in any Sum according to the Magistrate‘s discretion, unless it shall appear
that the Party is committed for such Matter offences for which by law the Prisoner is not granted
bail‖. The concept of bail has a long history in English common law. As far as 1689 in the bill
of rights, English parliament held that bail must be reasonable. A principal which later
incorporated into the American 8th amendment to the Constitution of America. The concept of
bail comes out into the view from the clash between states power to restrict and deprive the
liberty of a man who allegedly have committed a crime and presumption of guidelines of
deceitful in his favour. In 1689 came The English Bill of Rights, which provided safeguards
against judges setting bail too high. It stated that excessive bail has been required of persons
committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.
Excessive bail ought not to be required. In the Bill of Rights, 1689 parliament held that a bail
must be reasonable, the principle which was later incorporated into the American 8th
Amendment to the Constitution.

24
Statute of Westminster, 1275 (3rd Edw. 1), also known as the statute of Westminster codified the existing law
in England in 51 chapters.
25
Habeas Corpus Act, 1679 is an Act of the Parliament of England (31 chapter 2C. 2) passed during the region
of king Charles II to define and strengthen the ancient prerogative writ of Habeas Corpus where by persons
unlawfully detained can be ordered to be prosecuted before a Court of law.
 018

English Common Law Bail

is the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or
criminal, on surety, taken for his appearance on a certain day and a place named.26 The surety
termed bail because the person arrested or imprisoned is placed in the custody of those who
bind themselves or become the bailers for his due appearance when required. So, he may be
re-seized by them, if they suspect that he is about to escape and surrendered to the court, when
they are discharged from further liability. The sureties must be sufficient in the opinion of the
court to answer for the sum for which they are bound and, as a rule, only householders are
accepted, and an accomplice of the person to be bailed or an infant would not be accepted as
security.27 Bail is obligatory in all summary cases. Obligatory in all misdemeanours, except
such as have been placed on the level of felonies, viz., obtaining or attempting to obtain
property on false pretences, receiving property so obtained or stolen, perjury or subordination
of perjury, concealment of birt, wilful or indecent exposure of the person, riot, assault in
pursuance of a conspiracy to raise wages, assault upon a peace officer in the execution of his
duty or upon anyone assisting him, neglect or breach of duty as a peace officer, any prosecution
of which the costs are payable out of the country or borough rate or fund.

In Medieval England

Methods to insure the accused would appear for trial began as early as criminal trials
themselves. Until the 13th century, however, the conditions under which a defendant could be
detained before trial or released with guarantees that he would return were dictated by the local
Sheriffs. As the regional representative of the crown, the sheriff possessed sovereign authority
to release or hold suspects. The sheriffs, in other words, could use any standard and weigh any
factor in determining whether to admit a suspect to bail. This broad authority was not always
judiciously administered. Some sheriffs exploited the bail system for their own gain.
Accordingly, the absence of limits on the power of the sheriffs was stated as a major grievance
leading to the Statute of Westminster.28 In medieval England, the sheriffs originally possessed

26
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016, p. 39.
27
(1911) Encyclopedia. Britannica/Bail. Retrieved at http://en.in.wikisource.org/wiki
28
Edw. 1. C. 15 In additional to Capital Offences, the list included “Thieves openly defamed and known”, those
“taken for House-burning feloniously done”, or those taken for counterfeiting and many other non-capital
offences.
 019

the sovereign authority to release or hold suspected criminals. Some sheriffs would exploit the
bail for their own gain. The Statute of Westminster (1275) limited the discretion of sheriffs
with respect to the bail. Although sheriffs still had the authority to fix the amount of bail
required, the statute stipulates which crimes are bailable and which are not.

In the early 17th century, King Charles I29 ordered noblemen to issue him loans. Those who
refused were imprisoned. Five of the prisoners filed a habeas corpus petition arguing that they
should not be held indefinitely without trial or bail. In the Petition of Right (1628)30 Parliament
argued that the King had flouted Magna Carta by imprisoning people without just cause.
Parliament responded to the King‟s action and the Court‟s ruling with the Petition of Right of
1628. The Petition protested that contrary to the Magna Carta and other laws guaranteeing that
no man be imprisoned without due process of law, the King had recently imprisoned people
before trial ―without any cause showed‖. The Petition concluded that ―no freeman, in any
manner as before mentioned, be imprisoned or detained...‖. The act guaranteed, therefore, that
man could not be held before trial on the basis of an unspecific accusation. This did not,
however, provide an absolute right to bail. The offences enumerated in the Statute of
Westminster remained bailable and non-bailable. Therefore, an individual charged with a non-
bailable offence could not contend that he had a legal entitlement to bail. In olden days in
England the sheriff was used to be supreme authority of a town, he was vested with number of
powers under his belt right from town administration to judicial decisions, out of which one
authority was arresting and releasing a person on bail in other words he was given power to
hold or release a suspected criminal. But this has made the sheriff more powerful and some
time he misuses his authority for his personal gain. The sheriff was given the authority to fix
amount of bail, in accordance with the crimes committed or suspected whether bailable or not.
But as the time passed this practice slowly fainted and by change of time the system of bail has
changed, and as the time passed the magistrate got the power of granting bail. A magistrate
shall discharge prisoners from their imprisonment taking their recognizance, with one or more
surety or sureties, in any sum according to the magistrate‘s discretion.

As per the English law bail can be granted in three different forms.

29
King Charles I (19 Nov., 1600 – 30 January, 1649) was Monarch of Three Kingdoms of England, Scotland
and Ireland from March 27, 1625 until his execution in 1649.
30
The Petition of Right (1628) is one of England‘s most famous Constitutional documents. It was written by
Parliament as an objection to an overseas of authority by King Charles I during his reason English citizens saw
this overseas authority as a major infringement on their civil rights.
 020

(i) Bail by police. The police has the authority to release a suspect person being
charged on condition that he has to come to police station whenever he is asked.
(ii) Police to Court. Where having been charged a suspect is given bail but must attend
his first Court hearing at the date as given by the Court.
(iii) Bail by Court. Bail where having already been in Court a suspect is granted bail
pending further investigation or while the case continues.

The King, the courts and the sheriffs were able to frustrate the intent of the Petition of Right
through procedural delays in granting the writs of habeas corpus. In 1676, for example,
when Francis Jenkes sought a writ of habeas corpus concerning his imprisonment for the
vague charge of ―sedition‖, it was denied at first because the Court was ―outside term‖, and
later because the case was not calendared; furthermore, when the court was requested to
calendar the case, it refused to do so. In response to the rampant procedural delays in
providing habeas corpus as evidenced by Jenkes Case Parliament passed the Habeas Corpus
Act of 1677.31

In medieval England, methods to insure the accused would appear for trial began as early
as criminal trials themselves. Until the 13th century, however, the conditions under which
a defendant could be detained before trial or released with guarantees that he would return
were dictated by the local Sheriffs. As the regional representative of the crown, the sheriff
possessed sovereign authority to release or hold suspects. The sheriffs, in other words,
could use any standard and weigh any factor in determining whether to admit a suspect to
bail. This broad authority was not always judiciously administered. Some sheriffs exploited
the bail system for their own gain. Accordingly, the absence of limits on the power of the
sheriffs was stated as a major grievance leading to the Statute of Westminster.

The Statute of Westminster in 1275 eliminated the discretion of sheriffs with respect to
which crimes would be bailable. Under the Statute, the bailable and non-bailable offences
were specifically listed. The sheriffs retained the authority to decide the amount of bail and
to weigh all relevant factors to arrive at that amount. The Statute, however, was far from a
universal right to bail. Not only were some offences explicitly excluded from bail, but the

31
http://www.pbus.com/general/custom.asp. p. 14.
 021

statute restrictions were confined to the abuses of the sheriffs. The justices of the realm
were exempt from its provisions.

Applicability of the statute to the judges was the key issue several centuries later when bail
law underwent its next major change. In the early seventeenth century, King Charles I
received no funds from the Parliament. Therefore, he forced some noblemen to issue him
loans. Those who refused to lend the sovereign money were imprisoned without bail. Five
incarcerated knights filed a habeas corpus petition arguing that they could not be held
indefinitely without trial or bail. The King would neither bail the prisoners nor inform them
of any charges against them. The King‟s reason for keeping the charges secret were
evident: the charges were illegal; the knights had no obligation to lend to the King. When
the case was brought before the Court, counsel for the knights argued that without a trial or
conviction, the petitioners were being detained solely on the basis of an unsubstantiated
and unstated accusation. Attorney General Heath contended that the King could best
balance the interests of individual liberty against the interests of state security when
exercising his sovereign authority to imprison. The Court upheld this sovereign prerogative
argument.

Parliament responded to the King‟s action and the court‟s ruling with the Petition of Right
of 1628. The Petition protested that contrary to the Magna Carta32 and other laws
guaranteeing that no man be imprisoned without due process of law, the King had recently
imprisoned people before trial ―without any cause showed.‖ The Petition concluded that
―no freeman, in any manner as before mentioned, be imprisoned or detained…‖ The act
guaranteed, therefore, that man could not be held before trial on the basis of an unspecific
accusation. This did not, however, provide an absolute right to bail. The offences
enumerated in the Statute of Westminster remained bailable and non-bailable. Therefore,
an individual charged with a non-bailable offence could not contend that he had a legal
entitlement to bail.33

The King, the Courts and the sheriffs were able to frustrate the intent of the Petition of
Right through procedural delays in granting the writs of habeas corpus. In 1676, for
example, when Francis Jenkes sought a writ of habeas corpus concerning his imprisonment

32
Magna Carta is a Charter (the great Charter) is a Charter agreed to by King Jonh of England at Runnymede,
near Windsor, on 15th June, 1215.
33
https://money.howstuffworks.com/bail3.htm
 022

for the vague charge of ―sedition‖, it was denied at first because the court was ―outside
term‖, and later because the case was not calendared; furthermore, when the court was
requested to calendar the case, it refused to do so. In response to the rampant procedural
delays in providing habeas corpus as evidenced by Jenkes Case, Parliament passed the
Habeas Corpus Act of 1677. The act strengthened the guarantee of habeas corpus by
specifying that a magistrate.

The Habeas Corpus Act, 167934 of England

A magistrate shall discharge prisoners from their Imprisonment taking their Recognizance,
with one or more Surety or Sureties, in any Sum according to the Magistrate‟s discretion,
un3.less it shall appear that the Party is committed for such Matter or offences for which
by law the Prisoner is not bailable. The English Bill of Rights (1689)35 states that ―excessive
bail has been required of persons committed in criminal cases, to elude the benefit of the
laws made for the liberty of the subjects. Excessive bail ought not to be required‖. This was
a precursor of the Eighth Amendment to the US Constitution.36

The language of the English Bill of Rights was only one part of the bail system developed
through many years of English law. As Caleb Foote has explained and this analysis
recounts, English protection against unjustifiable detention contained three essential
elements: first, offences were categorized as bailable or not bailable by statutes beginning
with Westminster I which also placed limits on which judges and officials could affect the
statue, second, habeas corpus procedures were developed as an effective curb on
imprisonment without specific changes; and third, the excessive bail clause of the 1689 bill
of rights protected against judicial officers who might abuse bail policy by setting excessive
financial conditions for release. English law never contained an absolute right to bail. Bail
could always be denied when the legislature determined certain offences were unbailable.
Most of the history of bail law after Westminster I was an attempt to improve the efficiency

34
The Habeas Corpus Act, 1679 is an Act of Parliament in England during reign of King Charles II known as
Habeas Corpus. Parliament to define and strengthen the ancient prerogative writs of Habeas Corpus which
required a Court to examine the lawfulness of a person‘s detention and thus prevent unlawful or arbitrary
imprisonment.
35
The English Bill of Rights (1689) is an Act that the Parliament of England passed on December 16, 1689. The
bill creates separation of powers, limits the powers of king and queen.
36
https://en.wikipedia.org/wiki/Bail
 023

of existing law and especially to grant the suspect a meaningful chance to satisfy bail
conditions when he had committed those offences that the legislature had declared bailable.

Under the English Law the considerations to be taken into account by the crown Court or
magistrate while granting bail are- 37

I. Nature or seriousness of offences. The more serious the offence charged the
stronger the temptation to abscond is likely to be since the defendant who is liable,
if convicted to receive a long sentence of imprisonment is more sensitive to run
away than one facing a less serious charge. While the seriousness of the class of
offence is an important factor, it is not necessarily conclusive.
II. Character, antecedents and community ties of the defendant. The Court should next
consider the defendant‘s antecedents. These are valuable guidance but need to be
interpreted with some care. If the defendant has abused the grant of bail in the past
or is already in bail in respect of another charge, these facts should count strongly
against him. Stability of the defendant‘s background and employment is likely of
considerable influence in determining whether he has a good bail risk. One aspect
of the defendant‘s community ties is the type of accommodation in which he lives.
The fact that the defendant has no fixed abode is often advanced as good reason for
opposing bail.
III. Defendant‘s earlier record.
IV. Strength of the evidence of the defendant having committed the offence and other
relevant matters.

Bail under the criminal procedure code, 1973

The word „bail‟ has not been defined in the Code of Criminal Procedure although the Codes
of 1898 and 1973 have defined the expression „bailable offence‟ and „non-bailable offence
‟respectively in Section 4(1)(b)38 and Section 2(a).39 In the latter section the expression
„bailable offence‟ has been defined to mean an offence which is shown as bailable in Schedule
I, or which is made bailable by any other law for the time being in force, and the expression
„non-bailable‟ has been defined to mean any other offence. The concept of bail implies a form

37
M.R. Malik, Bail of Law & Practice, Fourth edition, pp. 258, 259.
38
Section 4, Code of Criminal Procedure, 1989.
39
Section 2, Code of Criminal Procedure, 1973.
 024

of previous restraint.40 So, the meaning of the term „bail‟ is to set free a person who is under
arrest, detention or is under some kind of restraint by taking security for his appearance. Section
436 of the criminal procedure code, read with Form 45 of schedule II of that code contemplates
two kinds of security.41

(a) Security with sureties.

(b) Recognisance 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 recognisance of the principle himself.42 Therefore, in view of the definition
of the word „bail‟ the person must be under some sort of restraint and the order to release on
bail would set free such person under arrest, detention or under some kind of restraint by taking
security for his appearance.43 Section 441 of the code of criminal procedure and the form of
bail and security bond given in the schedule of forms clarifies the position of the surety who
does not guarantee the payment of any sum of money by the person accused who is released
on bail, but guarantees the attendance of that person. He is a surety for attendance and not a
surety for payment of money. His contract and the contract of the person released on bail are
independent of each other. The simple fact is that the surety promises to pay a certain sum of
money if the person accused does not appear at some time and place as required by law.44

Conclusion

The principal purpose of the bail provisions mentioned should not be to apprehend and arrest
an accused but to make sure that the person is efficaciously appearing for his trials before the
concerned legal authority. At the same time, it would be discriminatory and prejudiced to
bereave an accused of his basic right to liberty at the time when the criminal proceedings
against him remain pending before the Court. The emancipation of an accused on bail should
be done on pertinent cogitation and encumbering rational conditions that would be important
and compelling to the accused, his family, and the society at large. It is therefore of significant

40
State of Maysore v. Baswantrao, (1966) 1 Mys LJ 365: (1965) Mad LJ (Cr) 849: AIR 1966 Mys 71: 1966 Cr LJ
267.
41
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016, p. 40.
42
Redhif Staliman v. Emperor, 15 Cal WN 736: 10 IC 958.
43
State of Gujrat v. Govindlal Manilal, (1965) ILR Guj 1098: 6 Guj LR 816: AIR 1966 Guj 146: 1966 Cr LJ 746
44
Abdul Aziz v. Emperor, AIR 1946 ALL 116:47 Cr LJ 528: ilr (1946) all 238
 025

importance for the Court to take into consideration various facts and circumstances of the case
and impose reasonable conditions and finally pass a suitable and relevant order.
 026

CHAPTER – 3

LEGAL INSTRUMENT RELATED TO BAIL IN INDIAN LEGAL

SYSTEM

Introduction

The common law principle, ―every person deemed to be innocent, until proved guilty beyond
doubt‖, apply in India. As bail is except anticipatory bail under Section 438 is post arrest and
pre-trial remedy to the person who alleged to be accused on some primafacie evidences, but
not proven guilty as due to pendency of trial or inquiry.45 Bail is release of a person from legal
custody by undertaking that he shall appear at the time and place designated, as bail is mainly
pre-conviction stage- i.e., only on basis of some complaints and some sort of investigation. So
basically, there is some sort of encroachment by the police that police prejudice the liberty right
of the said arrestee as he is till now not declared to be accused or convicted and as our criminal
justice also based on the principle of presumption of innocence unless and until he proven
guilty. so, concept of bail involve two aspect as in one hand involves the personal liberty
guaranteed under Article 21 of the Constitution and on the other hand involve the safety and
security of the society and for that purpose there should be some sort of encroachment on the
liberty of the suspected person. So that there to bridge the gap between the two opposite and
contrary interest in one-way societal interest to arrest the person suspected or accused and on
the other hand the individual liberty of the person which guaranteed as a fundamental right
under Article 21 of the Constitution by releasing him on some bail or bond.46

As Liberty occupies a place of pride in our socio-political order. Who could better know the
value of liberty more than the founding fathers of our constitution. Article 21 of the
Constitution provides that no person shall be deprived of his personal liberty except according
to procedure established by law.47 It follows therefore, that the personal liberty of an individual
can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one
such procedural law. That law permits curtailment of liberty of anti-social and anti-national

45
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 74.
46
Asim Pandya, Second Edition, 2015, Law of Bail Practice and Procedure. Lexis Nexis, p. 18.
47
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 91.
 027

elements. Article 22 casts certain obligations on the authorities in the event of arrest of an
individual accused of the commission of a crime against society or the Nation. In cases of
under-trials charged with the commission of an offence or offences the court is generally called
up to decide whether to release him on bail or to commit him to jail.48

Legal instrument of bail

Fundamental rights are not new rights but are the natural rights with which a man is born. They
are recognised as inseparable or inviolable. Under the Constitution, laws inconsistent or in
conflict with fundamental rights except within prescribed limits permitting curtailment of such
rights, are void. The state shall not make any law, which takes away or abridges such rights.
Any law made in contravention of this prohibition shall be void to the extent of the
contravention. Backstone in his celebrated commentaries ‗on the Laws of England, pronounced
his philosophy of natural or absolute rights which he reduced to three principle or primary
articles:49

1 The right of personal security.

2 The right of personal liberty.

3 Right of private property50

Fundamental rights under the constitution of India relating to protection of liberty

The Constitution of India is a written Constitution and has been made flexible, it has the
features of both the unitary and federal systems of government because under The Constitution
of India, the supreme head of the government is the president as in the American Constitution,
and yet the government is parliamentary as in Great Britain. The Moti Lal Nehru Report of
1929 had made a demand for inclusion of a Bill of Rights in the Constitution to be framed in
the future.51 Prior to the Constitution of India, which came into force on 26 January, 1950,
there was no formal declaration of fundamental rights under the British rule but the government
of India Act, 1833 and thereafter the Government of India Act, 1915, contained some rudiments

48
State of Maharashtra v. Captain Buddhikota Subha Rao, AIR 1989 SC 2292 at p. 2295: 1989 Cri LJ 2317:
1989 Supp (2) SCC 605: 1990 SCC (Cri) 126.
49
Article 8 of US Constitution.
50
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 3
51
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 5.
 028

in the nature of fundamental rights of the subjects. Fundamental rights are contained in several
Articles 12-35 Part III of the Constitution of India. In Golak Nath‘s52 case it has been declared
that fundamental rights are natural rights in The Constitution itself. Bail was not inserted in the
Indian Constitution as a fundamental right, but by judicial activism it has been implicit in
Article 21 as component of personal liberty. The focus of judicial discretion in bail should
always be upon the aspects of personal liberty and equality of the individual provided under
Articles 14, 19 and 21 of the Constitution of India.53

Article 14 of the Constitution of India and Bail

The Constitution of India is the supreme law of the land. The Fundamental Rights are available
to all the ―Citizens of the country but a few of them are also available to ―persons‖. While
Article 14, which guarantees equality before law or the equal protection of laws within the
territory of India, is applicable to ―person‖ which include the ―citizen‖ of the country and
―non-citizen‖. This reflects that the Indian Legal system does not bring the nationality of an
individual into consideration while granting him/ her benefit of the provisions of bail. There is
no discrimination or differentiation in granting bail to a foreign national in India.54

Article 21 of the Constitution of India

Article 21 provides protection of life and personal liberty, the expression personal liberty
‗occurring in Article 21 of the Constitution of India, has been given a broad and liberal
interpretation. Therefore, personal liberty would include the right to socialise with members of
the family and friends, subject, of course, to any valid prison regulations. If any prison
regulation or procedure, regulating the right to have interviews with members of the family and
friends, is arbitrary or unreasonable, it would be liable to be struck down as invalid being
violative of Articles 14 and 21.55

52
L.C. Golaknath v. State of Punjab, (1967) 2 SCR 762: AIR 1967 SC 1643: 1967 (2) SCJ 486.
53
The Constitution of India, 1950.
54
Article 14 of the Constitution of India, 1950.
55
Francis Coaliemullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746 (1981) 2 SCR 516: 1981
Cr LJ 306.
 029

Article 21, along with Articles 19, 20 and 21, forms one group namely right to freedom. This
article guarantees the most essential of all rights, viz., the right to life and personal liberty. It
applies to all persons and not only to citizens as envisages in Article 19. Personal liberty,
deprived when bail is refused, is too precious a value of our Constitutional system, recognised
under Article 21. After all, personal liberty of an accused or convict is fundamental, and
suffering lawful eclipse should be only in terms of the procedure established by law. The last
four words of Article 21 are the life of the human rights. As was held in Maneka Gandhi v.
Union of India,56 it is no longer permissible to contend that the right to personal liberty can be
curtailed even temporarily, by a procedure which is not reasonable, fair and just when a statute
itself provides for a just procedures, it must be honoured. Conducting a search under Section
50, without intimating the suspect that he has a right to be searched before a gazetted officer
or a magistrate would be violative of the reasonable, fair and just procedure, and the safeguard
contained in Section 50 would be illusory.57

In cases arising under Article 21 of the Constitution, if it appears that a person is being deprived
of his life or has been deprived of his personal liberty, the burden rests on the state to establish
that the Constitutional validity of the impugned procedure is not harash, cruel, or degrading.
The burden does not lie on the petitioner to prove that the procedure prescribed by impugned
provision for taking life is unjust, unfair or unreasonable. Therefore, as soon as it is shown that
the act invades a right guaranteed by Article 21, it is necessary to enquire whether the state has
proved that the person has been deprived of his life or person liberty according to a procedure
established by law, that is to say, by a procedure which is just, fair and reasonable.58

The right to life enshrined in Article 21, cannot be restricted to mere animal existence. It means
something much more than just physical survival. The right to life is not limited only to
protection of limb or faculty. It includes the right to live with human dignity and all that goes
along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and
shelter over the head, facilities for reading, writing and expressing oneself in diverse forms,
moving about freely and mixing and mingling with fellow human beings. Every act which
offends or impairs human dignity would constitute deprivation pro tanto the right to live. 59

56
AIR 1978 SC 597(1978) 1 SCC 248 (1978) 2 SCR 621: (1978) 2 SCJ 312.
57
State of Punjab v. Baldev Singh, (1999) 6 SCCC 172: AIR 1999 SC 2378: 1999 Cr LJ 3672.
58
Deena Alias Deens Dayal v. Union of India, AIR 1983 SC 1155: 1983 Cr LJ 1602 1983 (2) Crimes 770 (SC).
59
Frances Coralie Mullin v. W. C. Khambra & Ors, AIR 849 1980 SCR (2) 1095 1980 SCC (2) 275.
 030

The guarantee under Article 21 is not only to citizens but also to a person, who may not be
citizen of a country. Thus, a tourist or any other person from a foreign country is entitled for
protection of their lives in accordance with the Constitutional provisions. But these guarantees
are not absolute but subject to reasonable restrictions.

The object of Article 21 is to prevent encroachment upon personal liberty by an appropriate

authority, except in accordance with law and in conformity with the provisions thereof. In
Bashira v. State of U.P.,60 the Supreme Court held that before a person is deprived of his life
or personal liberty, the procedure established by law must be strictly followed, and must not be
departed from to the disadvantage of the person affected. In same way Supreme Court in
Narender v. B.B. Gujral,61 observed that whenever the liberty of the subject is involved,
whether under a penal law, or law of preventive detention, it is bounden duty of the Court, to
satisfy itself that ―all the safeguards provided by the law have been scrupulously observed. In
Joginder Kumar v. State of Uttar Pradesh5,62 the Supreme Court has given direction on the
rights of arrested person in light of Articles 21 and 22 of the Constitution of India. The Supreme
Court further held that ―the power of preventive detention by the government under the
conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, is subject
to the limitations enjoined in the exercise of such power by Article 22(5) of the Constitution of
India, as construed by this Court.

This Constitution is all pervasive. All laws made by the State must, therefore, yield to
Constitutional limitations and restrictions. The citizen‘s right to personal liberty is guaranteed
in Articles 21 and 22 of the Constitution of India irrespective of his political beliefs, class,
creed or religion. The court has forged certain procedural safeguards in the case of preventive
detention. These safeguards might be designated as a regulative ―postulate of respect‖, i.e.,
Respect for intrinsic dignity of human person.

Article 21 and Right to Bail

As per Article 21 of The Constitution of India no person shall be deprived of his life or personal
liberty except according to procedure established by law.63 An arrest or detention is a serious
restriction on personal freedom guaranteed in the Constitution. Arrest means restraint or

60
AIR 1968 SC 1313: Cr LJ 1495: (1969) 1 SCR 32 (40).
61
AIR 1979 SC 420 (1979) 2 SCC 637: (1979) 2 SCR 315.
62
AIR 1994 SC 1349: (1994) 4 SCC 260: AIR SCW 1886.
63
Article 21 of The Constitution of India, 1950.
 031

deprivation of one‘s personal liberty. An arrest implies taking into custody a person under the
authority of law for the purpose of holding or detaining him to answer a criminal charge or for
preventing the commission of a crime. Legally speaking arrest means to deprive a person of
his liberty by legal authority. Article 21 of the Constitution of the India provides protection
against arbitrary arrest or illegal detention. It provides that no person can be detained in custody
except under the authority of law. It is important to point out here that even if a person has been
arrested under the authority of law, he has to be confined in custody for necessary period for
investigation of a crime or where there is chance of his absconding or tempering with the course
of justice. However, in order to protect the liberty of a person, the Constitution of India and
other secondary laws provide that a person even during the investigation of the crime can be
released on bail and he can enjoy his personal freedom. Pre-trial detention of accused means
imposition of what amounts to punishment before determination of guilt. It further affects his
liberty and life and disturbs his family and employment or business and obstructs in preparing
the defence etc. The system of bail provides for an interim release of an accused on surety. The
surety is bound to produce the accused on date of trial. Therefore, bail is an important factor in
preserving the personal liberty of an individual. In technical sense, it is a security given for the
due appearance of accused in order to obtain his release from imprisonment; a temporary
release of an accused from detention. The term bail has not defined under Code of Criminal
Procedure, 1973 but the code enlists the offences as bailable and non-bailable offences.
According to Black ‗s Law Dictionary, ―What is contemplated by bail is to 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/her self to the jurisdiction and judgment of the Court.

The object of the Article 21 of the Constitution is to prevent encroachment upon personal
liberty by the executive save in accordance with law and in conformity with provisions thereof.
When a person is deprived of his personal liberty, the procedure established by law must be
strictly followed. In case of deprivation of one‘s liberty it is the duty of the court to satisfy itself
that all the safeguards provided by law have been scrupulously observed. The Supreme Court,
adopting a liberal approach, in Hussainara Khatoon v. State of Bihar, cautioned that pre-trail
detention is not to be encouraged. If the Court is satisfied after taking into consideration that
the accused has his roots in the community and is not likely to abscond, he can be released on
his personal bond.
 032

While liberty of an individual is precious and there should always be an all-round effort on the
part of law courts to protect such liberties of individuals but this protection can be made
available to the deserving ones only since the term protection cannot by itself be termed to be
absolute in any and every situation but stands qualified depending upon the exigencies of the
situation. It is on this perspective that in the event of there being committal of a heinous crime
it is the society that needs a protection from these elements since the latter are having the
capability of spreading a reign of terror so as to disrupt the life and tranquilly of the people in
the society. The protection thus is to be allowed upon proper circumspection depending upon
the fact situation of the matter.64

It is true that personal liberty guaranteed under Article 21 of the Constitution includes all the
freedoms conferred by Article 19(1)(a) to (g). But that is also subject to reasonable restrictions
and subject to the due process of law or procedure established by law. It will not give
unrestricted freedom in the sense of immunity from arrest according to the due process of law.
A provision which curtails personal liberty should be most strictly construed in favour of the
subject and the safeguards provided for protection of citizen‘s liberty must be liberally
interpreted and applied. Surely enough accused person‘s right to personal liberty is important
but in case of a conflict between accused person ‗s right of personal liberty and interest of
public justice and welfare objectives of society, the former should be subordinated to the latter.
Liberty of a citizen is undoubtedly of importance but the same has to be in a matter as of a
serious nature balanced with the security of the community.65 There is no gainsaying the fact
that a citizen ‗s liberty should receive paramount consideration in all situations and the same
can be denied to him for very cogent reasons and only when it absolutely necessary in the
interest of justice and the bail provisions are undoubtedly, designed to achieve the aforesaid
objective.66 It is a settled principle that before a person is deprived of his liberty, the procedure
established by law must be strictly and rigidly adhered to or followed and must not be departed
from to the prejudice of the person affected. The Court, therefore, has to see whether the
requirements of law and of procedure have been satisfied in the case and whether the
deprivation of the personal liberty is according to the procedure established by law.

64
Ram Govind Upadhyay v. Sudarshan Singh, AIR 2002 SC 1475 at p. 1476: (2002) 3 SCC 598: 2002 SCC
(Cri) 688.
65
Delip Shankar Koli v. State of Maharashtra, 1981 Cri LJ 500 at p. 503 (Bom).
66
Jagjit Singh v. State of Punjab, 1978 Cri LJ 759 at p. 760 (P & H).
 033

The protection of Article is available to all persons arrested or detained be he a citizen or a

non-citizen. Such freedom also extends even to person convicted subject only to the limitations
imposed by his conviction under the law. The object of Article 21 is to prevent encroachment
upon personal liberty by the executive save in accordance with law and in conformity with
provisions thereof. Before a strictly followed and must not be departed from to the disadvantage
of the person affected.

In Narendra v. Gujral,67 the Supreme Court held that whenever the liberty of the subject is
involved whether under penal law of a law of preventive detention it is the bounden duty of the
Court to satisfy itself that all the safeguards provided by law have been scrupulously observed.
The expression deprived according to the view expressed in Gopalan case has been used as
total loss of liberty and it has no application in case of a restriction upon the right of free
movement which comes under Article 19(1)(d). The above restricted meaning of the word
deprived has not been adhered to by the Supreme Court in later decisions. The view expressed
in Gopalan‘s case has been modified by holding that when there is restriction of personal liberty
Article 21 is infringed.68

The expression personal liberty according to Gopalan ‗s case means freedom from physical
restraint from physical restraint of person by incarceration of otherwise. But in the later
decisions the Supreme Court has abandoned the meaning of personal liberty as given in
Gopalan ‗s case and in view of these later decisions the ―personal liberty includes all varieties
of rights which go to make up a person‘s liberty other than those which are already included in
several clauses of Article 19.

Even the expression ―procedure established by law which was originally interpreted by the
Supreme Court in Gopalan‘s case as state made or enacted law and not as an equivalent law
embodying the principles of natural justice yet gradually the expression has gone significant
change in later Supreme Court decisions. However, in order to be a law, it must be a valid law.
In order to be a valid law, it must not only be a law enacted by a competent legislature but also
a law which does not violate other fundamental rights.

Article 21 has a very wide scope and right to liberty has very large dimensions. It includes
many other aspects that make life worth living. Some other aspects of life as discussed in Olga

67
AIR 1979 SC 420.
68
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1925.
 034

Tellis69 case. The Supreme Court observed, ―The right to work is the most precious liberty
because, it sustains and enables a man to live and the right to life is a precious freedom. ―Life,
as observed by Field, J. in Munn v. Illinois70 means something more than mere animal existence
and the inhibition against the deprivation of life extends to all those limits and faculties by
which life is enjoyed.

Right to Live

Right to live means something more than ―mere animal existence‖, and includes the right to
live consistently with human dignity and decency even in a rescue home and prison. So, with
societal interest we should also borne in mind the individual liberty and right to life which only
does not mean a right to life but the ensurement of life with dignity.

In Sunil Batra v. Delhi Administration,71 the Supreme Court held that it is no more open to
debate that convicts are not wholly denuded of their fundamental rights. However, a prisoner‘s
liberty is in the very nature of things circumscribed by the very fact of his confinement. His
interest in the limited liberty left to him is then all the more substantial conviction for a crime
does not reduce the person into a non-person whose rights are subject to the whims of the prison
administration, and therefore, the imposition of any major punishment within the prison system
is conditional of the observance of procedural safeguards. Personal liberty of the person who
is incarcerated is to a great extent curtailed by punitive detention. It is even curtailed in
preventive detention. The liberty to move, mix, mingle, talk, share company with co-prisoners,
if substantially curtailed, would be violative of Article 21 of the Constitution of India, unless
the curtailment has the backing of law.

Article 22 of the Constitution

Protection against arrest and illegal detention in certain cases. Four principles aimed at
shielding personal freedom in preventive detention cases.

1. The detaining authority must provide the detune a very early opportunity to make a
representation.

69
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
70
Field, J. in Munn v. Illinois, (1877) 94 U.S. 113.
71
AIR 1978 SC 1675 (1978) 4 SCC 494: (1978) 1 SCR 392: 1978 Cr LJ 1741.
 035

2. The detaining authority must consider the representation as soon as possible, and this,
preferably, must be before the representation is forwarded to the advisory boards.

3. The representation must be forwarded to the advisory board before the board makes its
report.

4. The consideration by the detaining authority of the representation must be entirely

independent of the hearing by the board, or its report, expediency being essential at every
stage.72

The Courts have also found that detention will be found to be justified only if it was necessary
in pursuit of a legitimate grounds such as, failure to attend trial, interference with evidence or
witnesses, obstruction of justice, risk of committing an offence while on bail, be at harm or risk
to oneself or others; preventing the disruption of public order, reasonable suspicion of the
committal of the crime alleged against the accused, and gravity of the offence.

The right to liberty and right against arbitrary detention is found in UN principles for the
protection of all persons under any form of detention or imprisonment, particularly in principle
Nos. 9, 12, 13 and 36 (2) and in Rule 3 of United Nations Standard Minimum Rule for non-
custodial measures.73

In Maneka Gandhi v. Union of India,74 it was held that the procedure under Article 21 must be
just, fair and equitable. Before a person is deprived of his life and personal liberty, the
procedure established by law must be strictly followed, and must not be departed from to the
disadvantage of the person affected. In the case of Joginder Kumar v. State of Uttar Pradesh,75
the Supreme Court has given directions on the rights of the arrested persons in the light of
Articles 21 and 22. Similarly, in Gudikanti Narasimhulu v. Public Prosecutor, High Court of
Andhra Pradesh,76 Justice V.R. Krishna Iyer observed that refusing bail deprives a person of
personal liberty ‗guaranteed under Article 21. Granting bail is a great trust exercisable, not
casually but judicially, with lively concern for the cost to the individual and the community. In

72
Jayanaryan Shukla v. State of West Bengal, (1970) 3 SCR 225 (232) AIR 1970 SC 675.
73
United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) Adopted by
General Assembly resolution 45/110 of 14 December 1990, http://www.ohchr.org/Documents/
ProfessionalInterest/tokyorules.pdf
74
AIR 1978 SC 597.
75
AIR 1994 SC 1349.
76
AIR 1978 SC 429.
 036

Rajesh Ranjan Yadav v. C.B.I.,77 Court remarked that while Article 21 is of great importance,
a balance must be struck between the right of liberty of the person accused of an offence and
the interest of the society. No right can be absolute and reasonable restrictions can be placed
on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be said to
be an absolute rule because the grounds of bail must depend upon the contextual facts and
circumstances.

Right to Speedy and Fair Trial

The right to a speedy trial can be said to be an extension of right to liberty, security and
protection against arbitrary detention and a precursor to the right to be presumed innocent until
proven guilty. This right is ubiquitous and is not conditioned on any request or invocation of
such right by the accused person. Such accused is entitled to be produced before the court
without undue delay in order to enable the court to determine whether the initial detention is
justified and whether the accused must be released on bail. Both the ICCPR and the ECHR
provide that, releasing the accused on reasonable bail is the remedy for failure to decide upon
charges in an expeditious manner. In addition, Article 9 (3) of the ICCPR states that a detained
person shall be brought before the authorities promptly, and that the general rule is not
detention. The US Supreme Court has considered right to speedy trial within strict scrutiny, as
it has prescribed for the dismissal of the charges with prejudice as the ordinary remedy for the
violation of this right. In Hussainara Khatoon v. Home Secretary, State of Bihar,78 the Supreme
Court ordered the release of under trial prisoners whose period of incarceration had exceeded
the maximum period of imprisonment for their offences pointing towards the failure of
magistrates to respect Section 167 (2) which mandates for the release of the under-trial
prisoners on the expiry of 60-90 days respectively. Justice Bhagwati on the issue of right of
speedy trial observed that the under-trial prisoners languish in jail because they were
downtrodden and poor, and not because they are guilty. In Abdul Rehman Antulay v. R.S.
Nayak,79 the Supreme Court laid down guidelines for speedy trial for all the courts in the
country:

77
AIR 2007 SC 451.
78
AIR 1979 SC 1360.
79
AIR 1992 SC 1701.
 037

 Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right
in favour the accused to be tried speedily. It is in the interest of all concerned that the guilt or
innocence of the accused is determined as quickly as possible in such circumstances;

 Right to speedy trial flowing from Article 21 encompasses all the stages namely the
investigation, inquiry, trial, appeal, revision and re-trial;

 The accused should not be subjected to undue or unnecessary detention prior to his
conviction;

 The worry, anxiety, expense and disturbance to his vocation and peace, resulting from an
unduly prolonged investigation, inquiry or trial should be minimal;

 Undue delay may result in impairment of the ability of the accused to defend himself, whether
on account of death, disappearance or nonavailability of witnesses or otherwise; and

 However, it cannot be ignored that it is usually the accused who is interested in delaying
proceedings. Delay is a known defence tactic. Since the burden of proving the guilt of the
accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Moreover,
nonavailability of witnesses, disappearances of evidence by lapse of time, work against the
interests of prosecution.

Thus, in relation to bail, the guarantee of speedy trial serves many objectives provides
protection against oppressive pre-trial detention; relieves the person accused of an offence of
the anxiety and public suspicion due to unresolved criminal charges, protects against the risk
of loss of evidence, and enables such accused to defend himself. A bail inquiry is a judicial
process that has to be conducted impartially and judicially and in accordance with statutory
and Constitutional prescripts. Paucity of funds or resources is no defence to denial of right to
justice emanating from Articles 21, 19 and 14 and the Directive. Principles of State Policy
Article 39A the basic objectives traditionally ascribed to the institution of bail, is to ensure the
presence of the person accused of an offence at trial while maximising personal liberty in
accordance with the principles of the Constitution.
 038

Provision related to bail

(A) Bail When Arrest Made Without Warrant

Bail under Section 41 and 42 are the only sections under which a police officer may arrest a
person for non-cognizable offence. But this power can be exercised under the conditions
specified in the section. Section 41 enumerated nine categories of cases in which a police
officer may arrest a person without an order from magistrate and without a warrant. The powers
of the police to arrest a person without a warrant are only confined to such persons who are
accused or concerned with offences or are suspects thereof. A person who is alleged to have
been in possession of an illicit arm once upon a time, can neither be called presently an accused
nor a suspect thereof. Section 42 can be invoked when the offender refuses to give name and
address or gives a name and address which the police officer considers to be false. If those
particulars are within the knowledge of the police officer, neither the question of arrest nor the
question of bail will arise. As soon as name and address has been ascertained the police officer
cannot detain him, if he is willing to execute the necessary bonds.80 If for any reason, the true
name and address of the arrested person cannot be ascertained with 24 hours, the provisions of
Sections 56 and 59 will come into operation. A special feature of this section is that the bond
of an offender who is not a resident of India shall be secured by the surety or sureties whose
residence is in India. No similar restriction as to the residence of a surety is to be found in the
other provisions of the code. The power to arrest and to release on bail can be exercised by any
police officer not necessarily by an officer-in-charge of the police station because this section
has been enacted to provide for a particular non cognizable offence does not put any restrictions
on the power of a Police Officer to enlarge a person on bail after the correct name and residence
have been ascertained.81
Bail under Section 43
The Code of Criminal Procedure provides for the arrest of person by a private
person also though his powers of arrest are very limited. A private individual may arrest
a person only when: -
1. He is proclaimed offender, or
2. He in his presence, commits a non-bailable and cognizable offence.

80
Cr. L.J. 381, AIR 1999, All 160 (161).
81
The Code of Criminal Procedure, 1973.
 039

After the arrest has been made the arrested person should be, without unnecessary delay handed
over to a police officer, or in his absence, be brought to the nearest police station. The question
of bail will depend upon what opinion the police officer forms about the person brought before
him.
1. If there is no sufficient ground to believe that the arrested person has committed any
offence, he shall at once be released.

2. If there is reason to believe that such person comes under the provisions of Section 41,
a police officer shall re-arrest him and then the normal procedure of investigation,
determination of the question whether a non-bailable case is made out or not and the
desirability of release on bail etc. will arise.

3. If there is reason to believe that he has committed a non-cognizable offence he shall be

released as soon as his name and residence have been ascertained as provided under
Section 42. A chowkidar, not being a police officer is not entitled to receive a person
arrested under this section. But where a chowkidar is a police officer as under the
Chhota Nagpur Rural Police Act, (Act I of 1914) he can receive a person arrested under
Section 59, Criminal Procedure Code (old) and detain him in custody.82

Bail under Sections 56, 57 and 59

Section 56 mandates that a police officer effecting an arrest without warrant must take or send
the offender arrested, before a magistrate having jurisdiction in the case of before the officer
in charge of a police station. But in Section 56, there is an inbuilt provision authorizing police
officer to admit the arrested offender to bail, but power of the police officer is subject to the
provisions herein contained as to bail.

Section 57 provides that person arrested not to be detained more than twenty-four hours. The
intention of the legislature is that an accused person should be brought before a Magistrate
competent to try or commit with as little delay as possible. Section 57 is pointer to the
intendment to uphold liberty and to restrict to the minimum curtailment of liberty.83 Section

82
33 Cr. L. J. 572, AIR 1932 Pat. 214.
83
Mohd. Ahmed Yasin Mansuri v. State of Maharashtra, 1994 Crl.1854 (Bom.DB).
 040

59 provides that no person who has been arrested by a police officer shall be discharged except
on his own bond, or on bail, or under special order of a magistrate.

Bail under Section 169

The section refers to the grant of bail not at the start but only on the making of an investigation
under chapter XII of the code. Till then bail is not authorized under the provisions of this
section. The power to release on bail a person in custody vests in officer in charge of the police
station or the police officer making the investigation. Under Section 36, a police officer
superior in rank to an officer in charge of a police station can exercise the same powers of
investigation as can be exercised by an officer in charge of the police station. Section 169
provides that if upon an investigation it appears to the officer-in-charge of police station that
there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of
the accused to a magistrate, such officer shall release him on his executing a bond with or
without sureties as such officer may direct, to appear, if and when so required before a
magistrate empowered to take cognizance of the offence on a police report and to try the
accused or commit him for trial. An ―officer-in-charge of police station‖ includes, when the
officer-in-charge of police station is absent from the station house or unable from illness or
other cause to perform his duties the police officer present at the station house who is next to
such officer and is above the rank of constable or when the state government so desires, any
other police officer so present. An officer-in-charge of the police station or an investigating
officer cannot release a person on bail if he has appeared as an accused before the magistrate
on the basis of a complaint in respect of the incident which the police also is investigating. If
the accused is in custody, he must be released if after completion of the investigation there is
no sufficient evidence or reasonable ground of suspicion against him. The magistrate, however,
can direct the police to make further investigation. There is no provision, which empowers the
magistrate to release/discharge an accused pending investigation before submission of the final
form and taking cognizance of the offence.84

84
Heera Lal Pandit v. State of Bihar, (2004) Pat. LJR 452.
 041

Bail under Section 170

Under this section the authority to grant bail accrues to an officer in charge of the police station,
―if the offence is bailable‖. Do these words also mean that a station officer shall release a person
on bail if the offence made out during investigation was only a bailable office though the initial
accusation was in respect of a non-bailable offence of which the police took up the
investigation, or that a station officer shall release a person on bail if the offence is bailable and
the investigation was made under Section 155 (3) of the Code, that is to say, the original
accusation should be of a non-cognizable offence in order to empower a station officer to admit
a person on bail? It is submitted that a station officer is empowered to grant bail if investigation
has disclosed the offence to be bailable and it is immaterial what the initial accusation against
him was.

Bail under Section 436

The provisions of this section cast a statutory duty upon the officer in charge of the police
station to release on bail a person who was involved in a bailable offence. The power to release
either on bail or on a personal recognizance i.e., bonds without sureties extends to the time the
accused is in the custody of such officer. The right of the accused to be released arises only
when the person under arrest or detention is prepared and able to give bail. He cannot be taken
into custody unless he is unable or unwilling to offer bail or to execute a personal bond.85

Bail under Section 437

The power to release on bail a person accused of a non-bailable offence is conferred upon only
one class of police officers, namely an officer-in-charge of the police station under Section
437, Sub-section (I). Since the power to grant bail is permissive and not obligatory, it has to be
exercised with great caution because of the risk and stakes involved. Before exercising his
power, a station officer ought to satisfy himself that the release on bail would not prejudice the
prosecution in bringing home the guilt of the accused. In case the officer in charge admits an
accused to bail, it is mandatory for him to record the reasons or special reasons in the case diary

85
The Crown v. Makhan Lal, 48 Cr. L.J. 656.
 042

and preserve the bail bonds until they are discharged either by the appearance of the accused
in court or by the order of a competent Court.86 For the purpose of bail in non-bailable offence,
the Legislature has classified them under two heads:

(1) Those which are punishable with death or imprisonment for life.
(2) Those which are not so punishable.

In case of an offence punishable with death or imprisonment for life a station officer cannot
enlarge a person on bail, if there appears reasonable grounds for believing that he has been
guilty of such offence. The age or sex or sickness or infirmity of the accused cannot be
considered by a police officer for the purpose of granting bail. These matters may be taken in
view by a Court only. An officer-in-charge of the police station may grant bail only when there
are no reasonable grounds for believing that the accused has committed a non-bailable offence
or when the non-bailable offence complained of is not punishable with death or life
imprisonment.

(B) Bail by Police When Arrest Made in Pursuance of Warrant

The relevant provisions of Code of Procedure in connection with above heading are confined
in Sections 71 and 81 of Criminal Procedure Code.

Bail under Section 71. A Police officer executing a warrant under this section cannot
exercise any power beyond those contained in the endorsement, so that if the arrested person
is to be released on his personal bond, a police officer cannot demand sureties from the prisoner.
It is a matter entirely in the discretion of the Court issuing a warrant under this section to give
a direction for the release of the arrested person on bail or not. Even in bailable offence, a Court
may not give such direction.87 When a person to arrested is not arrested until the date on which
he has to attend the Court, the direction regarding the taking of bail lapses. But since the warrant
itself remains in force under Section 70 (2) of the code, the person against whom the warrant
had been issued can be arrested even after the date on which he was to be in attendance in

86
Section 436 of Criminal Procedure Code, 1973
87
Lachhmi Narain v. Emperor, 40 Cr. LJ 283, AIR 1939 All. 156.
 043

Court. This section makes it clear that a magistrate is competent to issue a warrant of arrest for
the production of a particular person before his own Court and not before a police officer.

Bail under Sections 80 & 81

When a warrant of arrest is executed outside the district in which it was issued any police
officer who is not a district superintendent of police or the commissioner of police may
release an arrested person according to the directions contained in the endorsement. But a
district superintendent of police, the commissioner of police in presidency town with in the
local limits of whose jurisdiction the arrest was made shall release on bail the arrested
person, if the offence is bailable and such person is ready and willing to give bail to their
satisfaction.88

In short, when a warrant of arrest is to be executed within the district in which it was issued
or it is to be executed out-side the district in which it was issued a police officer has not to
engage himself in the determination of the question whether the arrested person is accused
of a bailable or a non-bailable offence. He has to comply strictly with the contents of the
endorsement if any. He cannot release a person on bail simply because the arrested person
is accused of a bailable offence. In case of a warrant which is executed outside the district
in which it was issued, the proviso to Sub-section (1) of Section 81 empowers a district
superintendent of police or the commissioner of police within the local limits of whose
jurisdiction the person was arrested to release him bail, if the offence is bailable, provided
such person is ready and willing to give a satisfactory security even though there was no
direction by the court issuing the warrant.

Bail by Magistrate

Bail remains an undefined term in the Code of Criminal Procedure, 1973. Nowhere else the
term has been statutorily defined conceptually; it continues to be understood as a right for
assertion of freedom against state-imposed restraints. Since the U.N. Declaration of Human
Rights of 1947,89 to which India is a signatory, the concept of bail has found a place within

88
The Code of Criminal Procedure, 1973.
89
The Universal Declaration of Human Rights 1948, in its preparation of an International Bill of Rights the
Commission at its 1st session early in 1947 known as a preliminary draft International Bill of Human Rights.
 044

scope of human rights. A right to get admitted to bail can lawfully be circumspect if the police
needs the arrested person any time for purpose of investigation of the case. The code provides
that a person suspected of having committed a cognizable offence can be remanded to police
custody. In case of arrest without warrant, the request for remand in case of a suspect begins
with a formal arrest. Any person who is arrested by a police officer should be produced before
the judicial magistrate within 24 hours from the time of his arrest. If a person commits a bailable
offence, then the magistrate grant him bail but if he commits any non-bailable offence, then it
is on the discretion of the Magistrate that whether bail should be granted to him or not. Sections
59, 44 (1), 88, 167, 436, 437 etc. deals with powers of Judicial Magistrate to grant bail.90

Bar of Discharge except on Bail under Section 59

The first provision in the code which deals or appears to deal with the power of a magistrate to
discharge an arrested person is contained in Section 59. What the section lays down is that a
person arrested by the police cannot be discharged except:
(i) on personal recognizance, or

(ii) on bail, or

(iii) Under a special order of a Magistrate.

Bail when Warrant Executed Outside Territory under Section 81

Section 81 corresponds to old Section 86 with some distinction: Section 81 provides that an
arrested person outside the jurisdiction of a Court issuing the warrant of arrest is to be produced
before the issuing court where it is within 30 km of the place of arrest or nearer than Executive
Magistrate, or District Supt. Or Commissioner of police. The police authorities above or the
Executive Magistrate then shall direct the removal of the arrested person to the custody of the
court issuing the warrant. But, if the offence is bailable, before such removal the person arrested
may be enlarged on bail. If the offence is non-bailable one, it is only the C.J.M. subject to the
limitation provided in Section 437 or it is the sessions judge who are empowered to release
such person on bail. But these provisions would not curtail the power of the police officer to

90
The Code of Criminal Procedure, 1973.
 045

take security under Section 71. Section 187 does not override the provisions of Sections 70 to
81.91

Requiring one to Execute Bond under Section 88

The scope of this section is limited that it only empowers a Court to require a person present
in Court to execute a bond, with or without sureties for appearance before the Court taking the
bond or before the court to which the case may be transferred for trial. And the section is only
applicable to persons who are present in Court and does not authorize a magistrate to go to the
house of a person and compel him to execute a bond for appearance in Court.92
The requirements of this section are: -

i. The person is present in Court.

ii. For his appearance the Court can issue a summons.

iii. For his appearance the Court can issue a warrant. It is in the discretion of the
Court to require a person to give a bond for appearance with or without sureties.
While the charge is pending, an accused whether guilty or not must obey such
bond.

Security for Peace and Bail under Section 106

The section authorizes the taking of security for keeping the peace. The offences in which the
section applies are:

i. Offences under Chapter VIII, Indian Penal Code, namely offences against
public tranquillity e.g., Sections 141 to 160 except offences under Sections 153-
A, 153-B and 154 I.P.C.
ii. Assault or using criminal force or committing mischief.
iii. Any offence involving breach of peace.
iv. Criminal intimidation.

91
Velappan v. State, AIR 1965 Ker. 72.
92
Cr. L. J. 837: 163 Ind C. 413.
 046

Bail under Section 309

The scope of Section 309 is different from the old and corresponding Section 344. As held in
Natabar Parida v. State of Orissa,93 Section 309 is attracted only after magistrate takes
cognizance of offence. During this period magistrate may admit the accused to bail doubtlessly.
Even during the interregnum between the period of submission of charge-sheet and
commitment to courts of session, magistrate can grant bail to accused or remand him to
custody.94

Bail to Lunatics under Section 330

Bail cannot be claimed as a matter of right for persons of unsound mind. Courts have been
vested with great powers and wide discretion in the matter of grant or refusal of bail. Section
330 does not speak of bailable or non-bailable offences. The nature of offence and the severity
of punishment awardable for the commission of a particular offence are not matters to be
considered when the question of release on security of a lunatic arises. A magistrate may release
a person of unsound mind on bail even though he is charged of an offence of the most heinous
type and may refuse bail in bailable case if he is of the opinion that bail should not be allowed.
An accused of unsound mind may be released on security, irrespective of the offence with
which he is charged not only on the finding by the Court that the accused is of unsound mind,
but also prior to such finding, during the pendency of the inquiry into his state of mind. The
nature of security for release of a lunatic accused is different from the security for the release
of other persons, in that, in the former it is binding not only for appearance but also for
preventing the accused from causing injury either to himself or to any other person. But any
condition which is not specified in Section 330 cannot be imposed and if the magistrate imposes
any new condition, it is illegal and unenforceable. There are no words in Section 330 that
security for appearance is confined to the duration of the inquiry or trial. Security under this
section is for appearance of the accused ―when required before the magistrate or Court or such
officer as the magistrate or court appoints in this behalf since the security under Section 330

93
(1975) 2 SCC 220. 1975 SCC (Cr) 484: AIR 1975 SC: 1465: 1975 Cr.L.J. 1212:1975 Cur. L.J. 420.
94
State of U.P. v. Lakshmi Brahman, (1983) 2 SCC 372. 1983 SCC (Cr) 489: 1983 Cr.L.J. 839: AIR 1983 SC
439 overruling 1976 Cr.L.J. 118 (All).
 047

does not contemplate only appearance at the proceedings of the inquiry or trial for the offence
for which the accused is charged, it does not terminate with the termination of the inquiry or
trial. A person standing security may be called upon to produce the person released on his
security even after the trial has terminated. He will not be heard to say that his undertaking
came to an end with the termination of the trial.95

There is yet another distinction between the execution of security under Section 330 and
Sections 436 to 439. A bond executed under chapter XXXIII of the code (Sections 436 to 439)
is binding only with every date of hearing of such offence and for the purpose of answering
such charge. A surety does not undertake to be responsible for the attendance of the accused to
answer charges in respect of offences that might be committed at some future date. When
security is given under Section 330 a surety not only undertakes to be responsible for the
attendance of the accused to answer charges in respect of offence or offences already
committed but also guarantees that he would prevent the accused ―from doing injury to himself
or to any other person‖. Thus, the purpose of bail under Section 330 is different from the
purpose of bail under Sections 436 to 439.

Bail for Misuse of Liberty under Section 360

Under Section 360(9), the question of release on bail may arise when a convicted offender to
whom the benefit of Section 360 was given fails to observe any of the conditions of his
recognizance and is apprehended on a warrant issued by a magistrate who convicted him, or
by a magistrate who could have dealt with the offender in respect of his original offence. An
offender when he is apprehended on such warrant may either be remanded to custody until the
case is heard or he may be admitted to bail with a sufficient surety conditioned on his appearing
for sentence.96

95
Section 330 of Criminal Procedure Code, 1973.
96
Section 360 of Criminal Procedure Code, 1973.
 048

Bail to Witness under Section 349

If any witness or person called to produce a document or thing before a criminal Court, refuses
to answer such questions as are put to him or to produce any document or thing in his possession
or power which the court requires him to produce, and does not offer any reasonable excuse
for such refusal and persists in his refusal he may be dealt with according to the provisions of
Sections 345 to 346. Under this section a complainant is not a witness and a witness is not
bound to answer a question which is irrelevant to the issue. A witness is also not bound to
answer any question asked by the Court which tends to incriminate him in criminal proceedings
because of the protection afforded to him under Section 165, The Evidence Act, 197297 nor is
he bound to produce a document in respect of which he claims privilege under Sections 123 or
124, Indian Evidence Act.98

Bail to First offender etc. under Section 360, Sub-section (1) of Section 360 deals with the
power of a court or a magistrate of the second class specially empowered by the state
government in this behalf, to release a convicted offender on his entering into a bond, with or
without sureties, to appear and receive sentence when called upon during such period (not
exceeding three years) as the magistrate may direct, and in the mean- time to keep the peace
and be of good behaviour. The magistrate thus has discretion either to punish the offender with
imprisonment or release him on probation of good conduct. The proviso to Sub-section (1) of
this section lays down the procedure to be adopted by a magistrate of the second class not
specially empowered by state government in this behalf, when such magistrate is of opinion
that the powers conferred by Section 360 should be exercised in favour of the convicted person.
An interesting question arises as to what should a magistrate, who is not competent to release
a convict forthwith, do, when there are more than one accused before him and he is of the
opinion that one or more of them, but not all, deserve the benefit under this section. It was held
by the Madras High Court in re Pitamanayaga Pandaram that such magistrate should dispose
of the case of the other accused himself first and then submit the case of the accused who in
his opinion deserves the benefit of this section. The same view was taken by the Bombay High
Court. In a later ruling by the same High Court, it was held that there is nothing in the language
of either old Section 562 or old Section 380 which prohibits a Magistrate of the second or third
class sending up all the accused, the whole case, and the entire proceedings to the sub divisional

97
ILR 10 Bom 185.
98
The Indian Evidence Act, 1972.
 049

magistrate in a case where he suggests that action should be taken under Section 562 against
only one or few of the accused persons.

Bail related to Indian legal system

The concept of bail was incorporated by the Supreme Court in case of Sunil Fulchand v Union
of India,99 bail is well understood in criminal jurisprudence and the Criminal Procedure Code,
1973 contains elaborate provisions relating to grant of bail. Bail is granted to a person who has
been arrested in a non-bailable offence or has been convicted of an offence after trial. The
effect of granting bail is to release the accused from interment through the court would still
retain constructive contract could still be exercised through the conditions of the bond secured
from him. It must be borne in mind that for the purpose of granting bail, the Legislature has
used the words ―reasonable grounds for believing‖ instead of evidence which means that the
court dealing with the grant of bail can only satisfy it as to whether there is a genuine case
against the accused that the prosecution will be able to produce prima facie evidence in support
of the charge. It is not expected at this stage to have the evidence establishing the guilt of the
accused beyond reasonable doubt.100
The exercise of judicial discretion should on considering the just and human factors. As it
should be ruled out that in some brutal, heinous and inhuman crimes bail must not be granted
moreover the democratic principle of liberty. In bail application the jurisdiction to grant bail is
to be exercised on the basis of settled principles, having regard to the circumstances of each
case. While granting bail the Court has to consider the nature of accusation, nature of evidences
in support thereof, the standing character and behaviour of the accused, reasonable
apprehension of being tempered with the large interest of public and state. On the other hand,
as due to poverty some prisoners not grant bail due to their inability to deposit the security as
also in case of Hussainara Khatoon v. State of Bihar,101 in these type of cases it should be grant
on natural ground as due exercise of judicial discretion of grant of bail. In State of Rajasthan
v. Balchand,102 the accused was convicted by the trial court. When he went on appeal the High
Court acquitted him. The state went on appeal to the Hon‟ble Supreme Court under Article 136
of the Constitution through a special leave petition. The accused was directed to surrender by
the Court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised

99
AIR 2000 SC 1023: 2000 AIR SCW 582: 2000 Cr. LJ 444
100
C.B.I. v. Vijay Sai Reddy, AIR 2013 SC 2216: (2013) 7 SCC 452.
101
AIR 1979SC 1369.
102
AIR 1977 SC 2447.
 050

his voice against this unfair system of bail administration. He said that though while the system
of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that
in most cases an undertaking would serve the purpose. In Moti Ram and Ors. v. State of M.P.,103
the accused who was a poor mason was convicted. The apex court had passed a sketchy order,
referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any
specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and fixed
Rs. 10,000 as surety and bond and further refused to allow his brother to become a surety as
his property was in the adjoining village. MR went on appeal once more to the Apex Court and
Justice Krishna Iyer condemned the act of the CJM, and said that the judges should be more
inclined towards bail and not jail.
In Maneka Gandhi v. Union of India,104 Justice Krishna Iyer once again spoke against the unfair
system of bail that was prevailing in India. No definition of bail has been given in the code,
although the offences are classified as bailable and non-bailable. Further Justice P.N. Bhagwati
also spoke about how unfair and discriminatory the bail system is when looked at from the
economic criteria of a person this discrimination arises even if the amount of bail fixed by the
magistrates isn‟t high for some, but a large majority of those who are brought before the courts
in criminal cases are so poor that they would find it difficult to furnish bail even if it's a small
amount. The exercise of judicial discretion should on considering the just and human factors.
As it should be ruled out that in some brutal, heinous and inhuman crimes bail must not be
granted moreover the democratic principle of liberty. Bail is a post arrest remedy aimed at the
release of the arrested suspect till the date of his trial. The mechanism of bail can be best
understood by studying the components that particularly go into every bail decision namely: -
1. The circumstances leading to the arrest and detention of a person.
2. The factors for arriving at the bail decision like police record relating to the offence, its
bailable or non bailable nature, the furnishing of the requisite security by the accused,
need for surety and so on.
3. Lastly interpreting the law relating to bail.
4. An arrested person can be released on bail only after his matter has been duly processed
through a judicial mind. The functional aspect of bail is to facilitate dispensation of
criminal justice in a manner that it is not harsh and keeps the judicial system of an even
keel. The exercise of judicial discretion may thus call for an examination of social

103
AIR 1978 SC 1594
104
AIR 1978 SC 571.
 051

realities as may smoothen the criminal process for attaining just ends. Thus, an accused
placed in a position of indecency or infirmity or any other kind of disability may
favourably be included in the exercise of judicial discretion for grant of bail. On the
other hand, the possibility of the accused absconding or his tampering evidence, or his
repeating the offence may justifiably negotiate chances of his release. The financial
aspect of bail is, therefore, to facilitate dispensation of criminal justice in an expedient
and fair manner. To set at liberty a person arrested or imprisoned, on security being
taken for his appearance on a day and a place certain, which security is called ―bail,‖
because the party arrested or imprisoned is delivered into the hands of those who bind
themselves for his forthcoming, that is, become bail for his due appearance when
required, in order that he may be safely protected from prison.
5. In State of Uttar Pradesh through C.B.I. v. Amarmani Tripatthi,105 the Court held that
the matters to be considered in an application for bail are:
(1) Whether there is any prima facie or reasonable ground to believe that the accused
had committed an offence.
(2) Nature and gravity of the charge.
(3) Severity of the punishment in the event of conviction.
(4) Danger of accused absconding or fleeing if released on bail.
(5) Character, behaviour, means, position and standing of accused.
(6) Likelihood of the offence being repeated.
(7) Reasonable apprehension of the witness being tempered with.
(8) Danger of course, of justice being thwarted by grant of bail.
(9) While a vague allegation that accused may tamper with the evidence or witness may
not be a ground to refuse bail, if the accused is of such character that his mere presence
at large would intimate the witnesses or if there is material to show that he will use his
liberty to subvert justice or tamper with the evidence, then bail will be refused.
The Supreme Court in Ram Pratap Yadav v. Mitra Sen Yadav,106 held that the High Court
should keep in mind, while hearing the application for bail, the factum of the prayer having
been rejected by the sessions court and the reasons therefore, expressly set out in order of the
Sessions Court. It is specifically ordained that the order of the High Court, how so ever brief it
may be, should make it appear that the High Court, while forming opinion on prayer for bail

105
AIR 2005 8 SCC 21: AIR 2005 SC 3490: CrLJ 4149.
106
2002 AIR S.C.W. 4851: 2003 (1) G.L.R. 514 (S.C.).
 052

was conscious of the reasons for rejection of prayer for bail as assigned by the Sessions Court,
and it is also recently observed by the Supreme Court in Mansab Ali v. Irsan107 that since, the
jurisdiction to grant bail is discretionary, it is required to be exercised with great care and
caution by balancing right of liberty of individual and interest of society in general. In granting
or refusing the bail, the Courts are required to indicate may be very briefly the reasons for grant
or refuse bail the jurisdiction has not to be exercised in a casual and cavalier fashion.
Principles relating to grant or refusal to bail in Kalyan Chandra Sarkar v. Rajesh Ranjan,108 it
was held that the law in regard to grant or refusal of bail is very well settled. 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 merit of the case need not be undertaken, there is a need to indicate in such orders reasons
for prima facie concluding why bail was being granted particularly where the accused is
charged of committed a serious offence. Any order devoid of such reasons would suffer from
non-application of mind. It is also necessary for the Court granting bail to consider among other
circumstances some more factors as: -
(a) The nature of accusation and the severity of punishment in case of conviction and the nature
of supporting evidence.

(b) Reasonable apprehension of tempering with the witness or apprehension of threat to the
complaint.

(c) Prima facie satisfaction of the court in support of the charge.

Right to default bail section 167(2) and delay in investigation

The provisions of bail have been laid down under the Code of Criminal Procedure, 1973. Bail
vindicates the traditional right to freedom before the guilt is proved, it permits unhampered
preparation, and it permits unhampered preparation of defences and prevents infliction of
punishment before conviction. Bail is a sort of trust reposed in the accused by the court, if it is
found that the accused has betrayed its trust in any manner or has misused the liberty granted
by the court, the beneficiary of bail makes himself disentitled to this privilege. Law provides
that where an investigation cannot be completed within 24 hours fixed by Section 57 of the

107
2002 AIR S.C.W. 5391.
108
(2004) 7 SCC 528: 2004 SCC (CRI) 1977: AIR 2004 SC 1866.
 053

Code of Criminal Procedure, then the case is to be referred to the magistrate. Section 167(2) of
the Code empowers the Magistrate to authorize the detention of an accused in such cases as he
thinks fit for a term not exceeding 15 days on the whole. But in order to protect the personal
freedom of an accused, it is provided that no Magistrate shall authorize the detention of accused
for more than 90 days in grave cases and 60 days in less serious cases. When the period is
expired, the court should grant bail to the accused. The Supreme Court in Mantoo Mazumdar
v. State of Bihar,109 held that on the expiry of the said period, the accused shall be released on
bail if he is prepared to and does furnish bail.

3.4.1. i Bail Dealing with two Conflicting Interests

Bail walks the thin line between harmonizing the conflicting claims of individual freedom and
the interests of justice. While the objectives of trial and thereby of arrest are of paramount
importance to society, the grave consequences of pre-detention trial have a negative impact on
the accused person since he/she may be presumed to be innocent in the Court of law but
subjected to physical and psychological deprivations that jail life carries. Courts face a dilemma
while adjudicating bail matters, best highlighted in the words of Justice N. Talukdar and Justice
A Banerjee: ―The Law of Bails, which constitutes an important branch of the procedural law,
is not a static one; and in a welfare state, it cannot indeed be so. It 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.‖ Bail has not been defined in the Code of
Criminal Procedure per se and is covered under Chapter XXXIII of the Code ―Provision as to
bail and bonds‖ under Sections 436-439.110 Broadly speaking, bail must be granted in the
following cases: If the person so arrested is not accused of committing a non-bailable offence.
If the investigation has not been completed within the time prescribed for the same. If there are
no reasonable grounds which exist to believe or assume that the accused person is guilty of
committing a non-bailable offence. If the trial before the concerned magistrate is not completed
before 60 days. If there are no reasonable grounds to believe that the accused person is guilty
after the completion of trial but before the judgment is pronounced. In case of offences
involving the commission of non-bailable offences, the operative term is may be released on

109
AIR 1910 SC 847.
110
The Code of Criminal Procedure, 1973.
 054

bail ‗which brings it under the component of higher juridical discretion. This discretion is again
based on multiple factors, mainly the facts and circumstances of each case. The decision is
always expected to be guided by law and the principle that bail is the rule and refusal of it are
the exceptions. Here is a look at some landmark judgments under the law of bail and
anticipatory bail before commenting on the direction that the law has taken over the last few
years. Sanjay Chandra v. C.B.I.111 The case brought to the forefront the dilemma of a court
hearing bail, being further compounded in cases of economic offences that result in major
losses to the exchequer. The CBI‘s contention that witnesses may be influenced by the
appellants was disregarded by the Supreme Court on the grounds that seriousness of the offence
is not the only rule to guide the discretionary power of the court while granting bail. The Court
has to take simultaneous cognizance of the punishment that maybe afforded to the accused
person after trial and conviction under the relevant statute, it ruled. The Supreme Court held
that if only the first rule of seriousness of offences ‗is taken into account; the Constitutional
rights of the accused would be severely compromised. Bhagirath Singh Jadeja v. State of
Gujarat,112 the Supreme Court established that very cogent and overwhelming circumstances
are necessary for an order seeking cancellation of the bail as the trend today is towards granting
bail. The reason to back this was the well-settled position that the power to grant bail is not to
be exercised as punishment before trial. The material consideration to be taken into account
while evaluating the circumstances to cancel a bail is whether the accused would be readily
available for his/her trial and whether he/she is likely to abuse the discretion granted in his/her
favour by tampering with evidence, the court ruled. Joginder Kumar v. State of U.P., in this
case, the Supreme Court reiterated its position of balancing individual rights and societal rights
under the question of arrest and bail. The Apex Court established that the concerned authorities
need to justify an arrest and not merely arrest in furtherance of the power of arrest bestowed
upon them. It was ruled that no arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. The Court further held that it would be
prudent for a police officer in the interest of protection of the Constitutional rights of a citizen
and perhaps in his own interest that no arrest should be made without a reasonable satisfaction
reached after some investigation as to the genuineness and bona fides of a complaint. This,
besides the reasonable belief both as to the person‘s complicity and even so as to the need to
effect arrest. Aslam Babalal Desai v. State of Maharashtra.113 The Supreme Court held that

111
Sanjay Chandra v. CBI, (2012) 1 SCC 40.
112
AIR 372 1984 SCR (1) 839 1984 AIR 372 1984 SCR (1) 839 1984 SCC (1) 284 1983 SCALE (2) 818.
113
Aslam Babalal Desai v. State of Maharashtra, AIR 1993 SC, 1, 1993 (1) ALT Cri 265, 1993.
 055

once a person‘s ‗liberty has been interfered with his arrest without a court‘s order or a warrant,
the investigation must be carried out with utmost urgency and completed within the maximum
period allowed under the Criminal Procedure Code. This would be operative in law by ensuring
that if the prosecuting agency fails to show a sense of urgency in the investigation of the case
and omits or defaults to file a charge sheet within the time prescribed, the accused would be
entitled to be released on bail. The orders so passed in such circumstances under Section 167
(2) would be deemed to be an order under Section 437 (1) or (2) or of Section 439 (1). The
rules for cancellation of such bail will continue to operate as established under the Criminal
Procedure Code, it was held Shahzad Hassan Khan v. Ishtiaq Hasan Khan.114 The Supreme
Court laid down that when subsequent bail applications are made, after the first bail application
has been rejected, such applications should be placed before the same judge who passed the
earlier order of refusal. The reasoning behind the same was to prevent the abuse of the process
of the court. GAMA v. State of U.P.115 in the instant matter, it was laid down that bail may be
applied for even after it has been rejected in the first or subsequent instances. That there is no
provision for the operation of constructive res judicata in dealing with bail applications was the
view taken by the court. This is an extremely important position of law which supports
individual liberty as compared to the process of the Court. Anticipatory Bail Siddharam
Satlingappa Mhetre v. State of Maharashtra, in this case was a landmark judgment by the
Supreme Court on the law of anticipatory bail. The Apex Court highlighted the importance of
life and liberty as being inalienable Constitutional rights the upholding of which was of
paramount importance. It observed that the society has a vital interest in grant or refusal of bail
because ―every criminal offence is the offence against the state‖. The order granting or
refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of
individual liberty and the interest of the society, the Court said. In light of these guiding
principles, the Supreme Court laid down ten parameters to be taken into consideration while
dealing with anticipatory bail. Gurbaksh Singh Sibbia v. State of Punjab,116 the Supreme Court
took a very serious view on anticipatory bail applications by persons belonging to the higher
echelons of society in this case. It was held that the power of the Court to grant anticipatory
bail under Section 438 of the Criminal Procedure Code must be used ―very sparingly and in
exceptional cases only‖. The discretion under Section 438 cannot be exercised with regard to
offences punishable with death or imprisonment for life unless the Court at that very stage is

114
1987 AIR 1613 1987 SCR (3) 34 1987 SCC (2) 684.
115
1987 CriLJ 242.
116
1980 AIR 1632, 1980 SCR (3) 383.
 056

satisfied that such a charge appears to be false or groundless, the Apex Court ruled. The Court
further reasoned that bail or anticipatory bail cannot be granted to any person on the basis of
his status in society as this would be inequality. The Court‘s position in this case was a
significant departure from the earlier position on anticipatory bail. The principle of bail and the
colossal sanctity of individual liberty as enshrined by the Constitution have been reaffirmed
and emphasized by the Apex Court as well as the high courts. To compile and recapitulate, the
ratio accent of the law would be that while bail is a rule, jail is an exception. The principles
governing the discretion vested with the upholders on the august bench may vary based on the
facts and circumstances of each case. However, the basic underlying consideration remains that
liberty of a citizen can be encroached only under due process of law wherein the enforcement
agencies are required to assign cogent reasons for need to justify custodial interrogation and
sustained detention at a pre-trial stage which is otherwise punitive and against the principles of
natural justice. Further, in view of the reformative theory applied to the principles of
punishment, it has always been an approach to balance deterrent and punitive theories vis-à-
vis reformation of an accused and to keep them away from hardened criminals in jail which are
deemed to be universities of crime. The broad considerations that may weigh in the minds of
the judge while allowing or refusing bail are the gravity of the offences alleged. The need for
custodial interrogation for lawful pursuit of investigation or for recovery, etc. The chances of
the accused fleeing from justice. The fears of tampering with prosecution evidence or
threatening witnesses. The criminal antecedents of the accused, if any. With rising media
awareness and human rights activism, there is a constant watch that maintains the equilibrium
between the individual liberty on one hand and the interest of the society and victims of crime
on the other. However, one cannot ignore the pressure the media trials create on courts, a fact
that does not positively contribute to the rules of equity or justice. It is imperative that adequate
safeguards are built in to avoid abuse in case of high-pressure media trials. Majeed Memon
noted criminal lawyer no encroachment on personal liberty of a citizen in civil society governed
by rule of law could be justified unless there are compelling reasons for doing so. Pretrial arrest
in any case needs to be invariably avoided unless it is specifically found in a given case that
interest of justice would suffer if arrest is not made. However, after arrest by the investigating
agency if the arrestee is brought before judicial officer in the matters of bail, the question which
the learned judge from the lowest court to the highest court has to ask himself is not whether I
should grant bail or not, but whether I can refuse bail to the applicant. Unless the judge is
satisfied that there are compelling factors to deny bail, liberty of the arrestee has to be resorted
and bail be granted. This is in keeping with the golden principle of ―bail is a rule and jail is
 057

an exception. The personal liberty is of utmost importance in our Constitutional system

recognized under Article 21. Deprivation of personal liberty must be founded on the most
serious considerations relevant to welfare objectives of the society as specified in the
Constitution. The Apex Court of the country has laid down in its judgments that ―Personal
liberty, deprived when bail is refused, is too precious a value of our Constitutional system
recognized under Article 21 that the crucial power to negate it is a great trust exercisable, not
casually but judicially, with lively concern for the cost to the individual and community. To
glamorize impressionistic orders as discretionary may, on occasions, make a litigative gamble
decisive of a fundamental right. After all, personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of procedure established by law ‗. Thus,
personal liberty is not curbed except in accordance to the procedure established by law in order
to strike a balance between the right to individual liberty and the interest of society. ―Bail‖
has been defined as: ―The process by which a person is released from custody.‖117 In the
Indian legal system, the procedure of bail is provided in the Criminal Procedure Code. Bail has
not been defined in the code although the offences are classified as bailable and non-bailable.
In the former class, the grant of bail is a matter of course. It may be given either by the police-
officer in charge of a police station having the accused in his custody or by the Court. The
release may be ordered on the accused executing a bond and even without sureties. In the latter
class, the accused may be released on bail but no bail can be granted where the accused appears
on reasonable grounds to be guilty of an offence punishable either with death or with
imprisonment for life. But the rule does not apply to a person under 16 years of age, a woman,
a sick or infirm person. As soon as reasonable grounds for the guilt cease to appear, the accused
is entitled to be released on bail or on his own recognizance; he can also be released, for similar
reasons between the close of the case and delivery of judgment. When a person is released on
bail the order with reasons therefore, should be in writing.

3.4.1. ii Constitutional Sanctity of Bail Under Section 437 Of Code and

Articles 21, 22, 227 Of Constitution Of India.

Liberty occupies a place of pride in our socio-political order, and who knew the value of liberty
more than the founding fathers of our Constitution whose liberty was curtailed time and again
under the draconian laws of the colonial rulers. That is why they provided, in Article 21 of the
Constitution, that no person shall be deprived of his personal liberty except according to the

117
Webster's Third New International Dictionary.
 058

procedure established by law .it follows therefore that the personal liberty of an individual can
be curbed by a procedure established by law. The Code of Criminal Procedure 1973 is one such
procedural law. That law permits curtailment of liberty of anti-social and anti-national
elements. Article 22 casts certain obligations on the authorities in the event of the arrest of an
individual accused of commission of crime against the society or the nation. In the case of
under trials charged with commission of an offence or offences the court is generally called
upon to decide whether to release him on bail or to commit him to jail. This decision has to be
made mainly in non-bailable cases. Having regard to the nature of the crime, the circumstances
in which it was committed, the background of the accused, the possibility of his jumping bail,
the impact 148 his release may have on the prosecution witnesses, its impact on the society and
possibility of retribution, etc.

Significance and sweep of Article 21 makes the deprivation of liberty matter of grave concern,
if public justice is to be promoted, mechanical detention should be demoted. All deprivation of
liberty is validated by social defence and individual correction along an anti-criminal direction.
If there is threat to the life of the accused, the paramount need is to give him the bail and keep
him in jail for his own security reasons. Liberty of a citizen has to be zealously safeguarded,
particularly when his release from the jail is not posing any threat to public at large. The
Sessions Court‘s view that bail has to be refused to the petitioner as there is a serious threat to
his life, if he comes out of the jail, is not in keeping with the provisions contained in Article 21
to the Constitution of India. If the release of the accused is posing a threat to the security of the
society, then it has to be denied to him, but not the converse of the same. If he is otherwise
entitled to be released on bail, there is no reason why it should be denied to him merely because
his presence outside the jail would invite threat to his life.118

The courts normally declines bail in cases of offence punishable with death or imprisonment
for life since the severity of punishment is itself a factor as to induce the accused to flee from
justice. Pre-trial detention has a purpose and policy behind it and the issue of bail or jail has to
be decided by the Court on relevant criteria and not on emotionally appealing but legally
impertinent circumstances.

118
Atul Rao v. State of Karnataka, 2009 Cr LJ 634 (Kant HC: 2009 (74) ALL Ind Cas 402: ILR 2008 Kant
(4763).
 059

The Court considering the bail application must have some materials before it from which it
would be satisfied that the apprehension that the accused would tamper with the evidence if
released on bail is genuine. Only because some allegations are made that if released on bail,
the accused would tamper with evidence may not be sufficient for the Court to refuse the bail
to the accused person. That the refusal of bail is a serious matter because the liberty of a citizen
of India is interfered with when the bail is refused.

Thus, the liberty of the individual has been safeguarded by the modern Constitutions of all
civilised countries. The rights of personal freedom, protection of one‘s life and limb and of one
‗s good name are as well – recognised in India as in other countries. The right to be at liberty
is a valuable right and when an application is given for bail, it is this valuable right that the
accused person seeks from the Court.119

3.4.1.iii Mandate to Grant Bail in Bailable Cases

The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute
and indefeasible right. In bailable offences, there is no question of discretion in granting bail
as the words of Section 436 are imperative. The only choice available to the officer or the Court
is as between taking a simple recognizance of the accused and demanding security with surety.
There is no manner of doubt that bail in a bailable offence can be claimed by accused as of
right and the officer or the Court, as the case may be, is bound to release the accused on bail if
he is willing to abide by reasonable conditions which may be imposed on him. When an
accused person is arrested for a bailable offence and he is prepared to give bail, he shall be
released on bail.120 Every person accused of a bailable offence has a right to be released the
person accused of a bailable offence on bail and not to detain him. As soon as it appears that
the accused person is prepared to give bail, the police officer or the Court before whom he
offers to give bail, is bound to release him on such terms as to bail as may appear to the officer
or the Court to be reasonable.

In a bailable offence, the only choice for the Court is between taking a simple recognized of
the principle offender and demanding security with surety. Ordinarily, the word bail ‗applies
to the second kind of security according to the practice and procedure of courts. The criminal

119
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 25.
120
Union of India v. Sant Prakash Bhagwandas, 1969 MLW (Cr) 88. P.V. Ramakrishna, Law of Bails, 9th
edition, 2016, Universal Law Publishing, p. 77.
 060

Court has no discretion in bailable offences while granting bail under Section 436 to impose
any condition except demanding security with sureties.

A reading of Section 436(1) of the code would clearly indicate that, in the first instance, a
person charged of a bailable offence is entitled to bail as a matter of right. The area of discretion
being that the Court may release the person merely on executing a bond without surety for his
appearance instead of taking bail from such a person when a person is indigent and is unable
to furnish surety.

Section 436 is meant for any person who is arrested or brought before the Court except a person
accused of non-bailable offence. The section is not limited to persons accused of a bailable
offence and is applicable to chapter VIII except the provisions specially excluded. Thus, a
magistrate holding an inquiry under Section 110 can, under Section 436, compel the person
proceeded against to execute a bond for his appearance during the inquiry. The absence of a
specific form for the purpose is no ground to hold otherwise.121 In the case of billable offences,
to which Section 436 applies, a police officer has no discretion at all to refuse to release the
accused on bail, so long as the accused is prepared to furnish surety. Thus, the appellant and
his brother were prosecuted under Sections 294 and 323 of the IPC and under Sections 24 and
25 of the Cattle Trespass Act. All the offences are bailable and under the law the accused
persons had the right to be released on bail.

Under the Indian Constitution, the Rule of Law is perceived as an indispensable tool to avoid
discrimination, and arbitrary use of force. The present system of bail is heavily influenced by
economic status and discriminates against the impoverished and the illiterate. Our judicial
system seems to have evolved two approaches to bail—bail as a right for the financially able;
and for rest, bail is dependent on the judicial discretion, exercised through manipulation of the
amount of ―reasonable‖ bail that will be required. Often the criteria for setting bail amounts
fails to take into account the accused person‘s ability to pay, hence, the loss of liberty is
imminent in the pre-trial detention. Accused person‘s economic status appears to have become
the decisive factor for granting pre-trial release.

In this chapter after discussing the constitutional provisions relating to bail, researcher reach
in the conclusion that the personal liberty of individual which granted by our Constitution as

121
Syed Chunnarshah v. State of Maharashtra, 1971 Mah LJ 237 at P.V. Ramakrishna, Law of Bails, 9th
edition, 2016, Universal Law Publishing, p. 78.
 061

fundamental right and on other side the societal interest, a balance need to be drawn in a
judicious manner. Bail is a right and refusal is an exception. However, the Courts can impose
the conditions while granting bail. But the conditions should not be unreasonable. Courts have
also power to cancel bail. But power to cancel bail in non-bailable offences must be used
sparingly. It is the duty of the Magistrate to dispose of the bail application as early as possible.
Police and the Magistrate have been given power to grant bail under Criminal Procedure Code.
However, in bailable offences, bail can be claimed as a matter of right. Police or Magistrate
has no discretion in this regard. However, police uses discretion in granting bail as the people
are not aware of statutory provisions. There is urgent need to impart awareness in this regard
so that police may not misuse its powers for extraneous considerations.

Conclusion

Right to Bail is fundamental right guaranteed under Article 21 of the Constitution of India but
in Code of Criminal Procedure it is not defined but it is a process mentioned under code. Bail
act as an instrument, for providing accused proper time to defend his side. Bail is granted by
court after analyzing facts, circumstances of each case, nature of offence, and conduct of the
accused in prison. The court exercise their discretion power i.e. in a judicious manner and not
as a matter of course.

The jurisprudence of bail follows certain fundamental and principles. The impending
philosophy behind the practice of granting bail is to ensure that the right to life and liberty is
protected. Bail jurisprudence is based on various principles. But if there could be some
provision that enables an accused of personal representation before the court in case of rejecting
the bail would be a great initiative in protecting the freedom and liberty of the accused. Delays
in granting bail for the accused especially if they are innocent, not only affect the interest of an
individual but it has an impact on the welfare, well-being of the society at large. Another grey
area in the application of bail is that it is granted quite later in the case. This is to also do with
the saturation of cases and the overburdening of the legal system. If at the initial stage of the
case the court finds no prima facie evidence against the accused even in a non-bailable offence,
it should grant bail in the interest of justice. It is pertinent to mention here that justice delayed
is justice denied. Thus keeping undertrials in jail for a period longer than required is a violation
of their constitutional and human rights.
 062

CHAPTER IV

JUDICIAL APPROACH REGARDING BAIL IN INDIA

Introduction

In the administration of criminal justice system, the alternatives of bail and jail are open from
the very beginning. These alternatives are available in both the cases namely, bailable or non-
bailable offences. Functionally the classification of offences in two categories has not much
bearing in the actual operation of the bail system, since the consideration of bail is to be made
on the basis that the accused will appear before the Court for trial on the appointed day. The
nature of offence may be a relevant factor, but the exercise of judicial discretion in respect to
release relates primarily to the person accused and not the accusation made against him. The
bail-jail alternatives are open in case of all accusations and in each case the judicial authority
is the final arbitrator in the matter of granting or refusing the bail, which may come up for
consideration before it at successive stages of the criminal proceedings. Release on bail
presupposes the custody of an accused in the hands of state authority for alleged breach of a
conduct prohibited by law. If the nature of the charge is one for a bailable offence he may be
admitted to bail in case he is prepared to furnish the necessary surety. An accused can even be
discharged on his executing a bond with or without sureties. A pre-condition in each of the
above situation is that he would appear on the appointed date before the Court.122
The factors which are to borne in mind while considering an application for bail are whether
there is any prima facie or reasonable ground to believe that the accused had committed the
offence, nature and gravity of the accusation, danger of the accused absconding or fleeing, if
released on bail, likelihood of the offence being repeated, reasonable apprehension of the
witnesses being influenced, and danger, of course, of justice being thwarted by grant of bail.123

In matters of bail the test to be applied is the test of reasonable belief as opposed to decision
and conclusion which marks the ends of the trial. The available materials for the court in
considering the question of granting bail are the charges made, the attendant facts including
the police report, facts stated in the petition for bail and the grounds of opposition to the
granting of that petition. The release on bail does not change the reality and from that fact

122
http://14.139.60.114:8080/jspui/bitstream/123456789/671/11/Bail%20Mechanism.pdf
123
Janak Raj Jai, Bail Law and Procedure, Sixth Edition, 2015, Universal Law Publishing, p. 2.
 063

alone, it cannot be said that he is not a person arrested for an offence. A person released on bail
is still considered to be detained in the constructive custody of the court through his surety. He
has to appear before the court whenever required or directed. Therefore, to that extent, his
liberty is subjected to restraint. He is notionally in the custody of the court and hence continues
to be a person arrested. Even in spite of the fact that the accused had been released on bail, he
continues to be a person arrested on a charge of commission of an offence.124

Judicial trends on grating bail

To consider the question as to the circumstances in which bail can be granted on the ground of
delayed proceedings when a person is in custody has also been made under Section 436A.
Which provides for grant of bail when a person has undergone detention upto one half of
maximum prescribed imprisonment. It was submitted that the said provision applies only
during trial and the first case is not covered by the said provision as the appellant therein has
not undergone the requisite detention period to claim bail under the said provision. With regard
to grant of bail, pending appeal, Akhtari Bi (Smt.) v. State of M.P.125 and Surinder Singh alias
Shingara Singh v. State of Punjab,126 which provides that if the appeal is not heard for 5 years,
excluding the delay for which the accused himself is responsible, bail should normally be
granted. The second case is not covered by the said judgment as the pending appeal in the High
Court is of the year 2013.
In Abdul Rehman Antulay and Ors. v. R.S. Nayakand Another,127 while holding that speedy
trial at all stages is part of right under Article 21, it was held that if there is violation of right
of speedy trial, instead of quashing the proceedings, a higher court can direct conclusion of
proceedings in a fixed time. In the light of these principles, the present appeals can be disposed
of by directing that the pending trial in the first case and the appeal in the second case may be
disposed of within six months.
The Honourable Supreme Court in its recent judgment in Hussain case laid down guidelines
and specially mention in Para 10 Directions given by this Court in Hussainara Khatoon to this
effect were left to be implemented by the High Courts8 which are as ―Since this court has
already laid down the guidelines by orders passed from time to time in this writ petition and in

124
Bail and Judicial Discretion. A Study of Judicial Decisions submitted by: - Mr. Navneet Prabhakar submitted
to: - Prof. Dr. M. Sarrdah and Prof. U.S. Sarrdah, New Law College, Bharati Vidhyapeeth, Pune – 38.
125
(2001) 4 SCC 355.
126
(2005) 7 SCC 387.
127
(1992) 1 SCC 225 – Para 86.
 064

subsequent orders passed in different cases since then, we do not consider it necessary to restate
the guidelines periodically because the enforcement of the guidelines by the subordinate courts
functioning in different states should now be the responsibility of the different High Courts to
which they are subordinate. General orders for release of under trials without reference to
specific fact-situations in different cases may prove to be hazardous. While there can be no
doubt that under trial prisoners should not languish in jails on account of refusal to enlarge
them on bail for want of their capacity to furnish bail with monetary obligations, these are
matters which have to be dealt with on case-to-case basis keeping in mind the guidelines laid
down by this Court in the orders passed in this writ petition and in subsequent cases from time
to time. Sympathy for the under trials who are in jail for long terms on account of the pendency
of cases has to be balanced having regard to the impact of crime, more particularly, serious
crime, on society and these considerations have to be weighed having regard to the fact-
situations in pending cases. While there can be no doubt that trials of those accused of crimes
should be disposed of as early as possible, general orders in regard to judge strength of
subordinate judiciary in each state must be attended to, and its functioning overseen, by the
High Court of the state concerned. We share the sympathetic concern of the learned counsel
for the petitioners that under trials should not languish in jails for long spells merely on account
of their inability to meet monetary obligations. We are, however, of the view that such
monitoring can be done more effectively by the High Courts since it would be easy for that
Court to collect and collate the statistical information in that behalf, apply the broad guidelines
already issued and deal with the situation as it emerges from the status reports presented to it.
The role of the High Court is to ensure that the guidelines issued by this court are implemented
in letter and spirit. We think it would suffice if we request the chief justices of the High Courts
to undertake a review of such cases in their states and give appropriate directions where needed
to ensure proper and effective implementation of the guidelines. Instead of repeating the
general directions already issued, it would be sufficient to remind the High Courts to ensure
expeditious disposal of cases‖. Further it was held by the Supreme Court in para 27 of Hussain
judgment which are mentioned below:
(i) The High Courts may issue directions to subordinate courts that –
(a) Bail applications be disposed of normally within one week.
(b) Magisterial trials, where accused are in custody, be normally concluded within
six months and sessions trials where accused are in custody be normally
concluded within two years.
 065

(c) Efforts are made to dispose of all cases which are five years old by the end of
the year.
(d) As a supplement to Section 436A, but consistent with the spirit thereof, if an
under trial has completed period of custody in excess of the sentence likely to
be awarded if conviction is recorded such under trial must be released on
personal bond. Such an assessment must be made by the concerned trial courts
from time to time.
(e) The above timelines may be the touchstone for assessment of judicial
performance in annual confidential reports.
i. The High Courts are requested to ensure that bail applications filed before them are
decided far
ii. as possible within one month and criminal appeals where accused are in custody for
more than
iii. five years are concluded at the earliest.
iv. The High Courts may prepare issue and monitor appropriate action plans for the
subordinate courts.
v. The High Courts may monitor steps for speedy investigation and trials on
administrative and judicial side from time to time.
vi. The High Courts may take such stringent measures as may be found necessary in the
light of judgment of this Court in Ex. Captain Harish Uppal v. Union of India.128

Discretion to be Exercised in Judicious Manner and not in an Arbitrary Manner

Grant of bail though being a discretionary order-but, however, calls for exercise of such
discretion in a judicious manner and not as a matter of course. Order for bail bereft of any
cogent reason cannot be sustained. Needless to record, however, that the grant of bail is
dependent upon the contextual facts of the matter being dealt with by the Court and facts
however do always vary from case to case. While placement of the accused in the society,
though may be considered but that by itself cannot be a guiding factor in the matter of grant of
bail and the same should and ought to always be coupled with other circumstances warranting
the grant of bail. The nature of the offence is one of the basic considerations for the grant of

128
(2003) 2 SCC 45.
 066

bail more heinous is a crime, the greater is the chance of rejection of the bail, though, however,
dependent on the factual matrix of the matter. The Court dealing with the application for bail
is required to exercise its discretion in a judicious manner and not as a matter of course. The
jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard
to the circumstances of each case and not in an arbitrary manner. While granting the bail, the
court has to keep in mind the nature of accusations, the nature of evidence in support thereof,
the severity of the punishment which conviction will entail, the character, behaviour means and
standing of the accused, circumstances which are peculiar to the accused, reasonable possibility
of securing the presence of the accused at the trial, reasonable apprehension of the witnesses
being tampered with, the larger interests of the public or state and similar other
considerations.129

It has also to be kept in mind that for the purpose of granting the bail the Legislature has used
the words ―reasonable grounds for believing‖ instead of ―the evidence‖ which means the court
dealing with the grant of bail can only satisfy itself as to whether there is a genuine cases against
the accused and that the prosecution will be able to produce prima facie evidence in support of
the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the
accused beyond reasonable doubt. In any event, the discretion to be used for grant of bail shall
always have to be strictly in accordance with law. The principles, which the Court must
consider while granting or declining bail, have been culled out by the court in the case of
Prahlad Singh Bhati v. NCT, Delhi,130 that the jurisdiction to grant bail has to be exercised on
the basis of well-settled principles having regard to the circumstances of each case and not in
an arbitrary manner. While granting the bail, the court has to keep in mind the nature of
accusations, the nature of the evidence in support thereof, the severity of the punishment which
conviction will entail, the character, behaviour, means and standing of the accused,
circumstances which are peculiar to the accused, reasonable possibility of securing the presence
of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the
larger interests of the public or state and similar other considerations. It has also to be kept in
mind that for the purposes of granting the bail the legislature has used the words reasonable
grounds for believing instead of the evidence which means the court dealing with the grant of
bail can only satisfy it as to whether there is a genuine case against the accused and that the

129
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/13/13_chapter%207.pdf.
130
(2001) 4 SCC 280.
 067

prosecution will be able to produce prima facie evidence in support of the charge. It is not
expected, at this stage, to have the evidence establishing the guilt of the accused beyond
reasonable doubt.
In State of U.P. v. Amarmani Tripathi,131 the Court held that the matters to be considered in an
application for bail are–
(i) Whether there is any prima facie or reasonable ground to believe that the accused had
committed the offence.

(ii) Nature and gravity of the charge.

(iii) Severity of the punishment in the event of conviction.
(iv) Danger of the accused absconding or fleeing, if released on bail.

(v) Character, behaviour, means, position and standing of the accused.

(vi) Likelihood of the offence being repeated.

(vii) Reasonable apprehension of the witnesses being tampered with.

(viii) Danger of course of justice being thwarted by grant of bail.

In the case of State of Kerala v. Raneef,132 Court held that in deciding bail applications an
important factor which should certainly be taken into consideration by the Court is the delay in
concluding the trial. Often this takes several years, and if the accused is denied bail but is
ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21
of the Constitution, which is the most basic of all the fundamental rights in our Constitution,
not violated in such a case? Of course, this is not the only factor, but it is certainly one of the
important factors in deciding whether to grant bail.15 Thus the concept of bail is a question of
deciding about the personal liberty of the person who yet not convicted so the application of
the bail should be decide in a speedy manner.

131
(2005) 8 SCC 21.
132
(2011) 1 SCC 784.
 068

Concurrent jurisdiction

Although under this section concurrent jurisdiction is given to the High Court and sessions
court, the fact that the sessions court has refused to bail under this section does not operate as
a bar for the High Court entertaining a similar application on the same facts and for the same
offence. However, if the choice was made by the party to move first the High Court and the
High Court has dismissed the application, then the decorum and the hierarchy of the courts
require that if the Sessions Court is moved with a similar application on the same facts, the said
application be dismissed. Where bail petition of the accused is pending in the High Court, the
accused cannot pursue his bail application simultaneously before the Court of Sessions.133
Power of the High Court is Independent even after a bail application is rejected by the Court
of Session, a person in custody can move the High Court for bail under Section 439 (1),134
because in such cases the High Court is not exercising any revisional power, but exercises a
special power. After the High Court rejected a bail application, the Court of Session can
entertain a bail application of the same accused, if any substantial grounds for bail arose after
such rejection. On the other hand, if the fresh application was meant to overcome the earlier
order of rejection of bail by the High Court, judicial decorum requires that the Court of Session
should direct that accused to approach the High Court.

Anticipatory bail application to be decided with due care

Great ignominy, humiliation and disgrace are attached to the arrest. Arrest leads to many
serious consequences not only to the accused but for the entire family. Most people do not
make any distinction between arrest at a pre-conviction stage or post-conviction stage. Arrest
and detention also directly affects the liberty of an individual. Under the Constitution of India
life and liberty of a person is given highest importance. Any deprivation of liberty of a person,
therefore, must be closely watched by the Court. Life and liberty of a person can be taken away
for valid reasons only and it should have a clear sanction of law. In view of this where a person
comes before the court with an application for anticipatory bail on reasonable apprehension
that he would be deprived of his liberty without a just cause, the Court must examine the
application with all seriousness. If applications of anticipatory bail are dealt with mechanically

133
Mahendra Singh v. State of U.P. 1997 (4) Crimes 470 (All).
134
Hari Shankar v. State of M.P. 1980 Jab LJ 805: 1981 Cr.LR (MP) 33.
 069

and perfunctorily it would cause gross injustice to the applicant. It is therefore exhorted in
Siddhram‘s case that while considering an application for anticipatory bail, the court must
examine all the relevant aspects. Without proper examination of the relevant material the Court
should not dismiss or grant the application for anticipatory bail. This aspect has been made
clear by the Supreme Court in Siddhram‘s case in the following words:
The complaint filed against the accused needs to be thoroughly examined including the aspect
whether the complainant has filed false or frivolous complaint on earlier occasion. The Court
should also examine the fact whether there is any family dispute between the accused and the
complainant and the complainant must be clearly told that if the complaint is found to be false
or frivolous, then strict action will be taken against him in accordance with law. If the
connivance between the complainant and the investigating officer is established then action be
taken against the investigating officer in accordance with law. The gravity of charge and exact
role of the accused must be properly comprehended. Before arrest, the arresting officer must
record the valid reasons which have led to the arrest of the accused in the case diary. In
exceptional cases, the reasons could be recorded immediately after the arrest, so that while
dealing with the bail application, the remarks and observations of the arresting officer can also
be properly evaluated by the Court. It is imperative for the Courts to carefully and with
meticulous precision evaluate the facts of the case.135

Direction for Grant of Bail to Person Apprehending Arrest under Section 438

(1) 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 a direction under this section; and that Court may, if it thinks fit, direct that in the
event of such arrest, he be released on bail and that court may taking into consideration inter
alia following factors namely: (i) the nature and gravity of the accusation; (ii) the antecedents
of the applicant including the fact as to whether he has previously undergone imprisonment on
conviction by a court in respect of any cognizable offence; (iii) the possibility of the applicant
to free from justice, and (iv) where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, either reject the application forthwith or
issue an interim order for the grant of anticipatory bail: Provided that, where the High Court
or, as the case may be, the Court of Session, has not passed any interim order under this sub-

135
Asim Pandey, Law of Bail, Practice and Procedure, 2nd edition, 2015, Lexis, Nexis.
 070

section or has rejected the application for grant of anticipatory bail, it shall be open to an officer
in charge of a police station to arrest, without warrant, the applicant on the basis of the
accusation apprehended in such application.136

(1-A). Where the Court grants an interim order under Sub-section (I) it shall forthwith cause
a notice being not less than seven days‟ notice, together with a copy of such order to
be served on the Public Prosecutor and the Superintendent of Police, with a view to
give the Public Prosecutor a reasonable opportunity of being heard when the application
shall be finally heard by the Court.
(1-B). The presence of the applicant seeking anticipatory bail shall be obligatory at the time
of final hearing of the application and passing of final order by the Court, on an
application made to it by the Public Prosecutor, the Court considers such presence
necessary in the interest of justice.
(2) When the High Court or the Court of Session makes a direction under sub section (1) it
may include such conditions in such directions in the light of the facts of the particular case as
it may think fit, including: -
(i) A condition that the person shall make himself available for interrogation by a police
officer as and when required.
(ii) A condition that the person shall not directly or indirectly make any inducement, threat
or promise to any person acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the Court or to any police officer.
(iii) A condition that the person shall not leave India without the previous permission of the
Court.
(iv) Such other condition as may be imposed under Sub-section (3) of Section 437, as if the
bail were granted under that Section (3). If such person is thereafter arrested without
warrant by an officer in charge of a police station on such accusation and is prepared
either at the time of arrest or at any time in the custody of such officer to give bail, he
shall be released on bail; and if a magistrate taking cognizance of such offence decides
that a warrant should be issued in the first instance against that person, he shall issue a
bailable warrant in conformity with the direction of the court under Sub-section (1).

136
Section 438 of the Code of Criminal Procedure, 1973.
 071

Jurisdiction to Grant Anticipatory Bail and Consideration

According to Section 437 different considerations, come into play when any person is accused
of a non-bailable offence and there appear reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment for life. Regarding all other
offences the matter has been left to the discretion of the court concerned. Bail should not be
refused as a matter of punishment. A person accused of an offence, howsoever heinous, has to
be considered as innocent till he is proved to be guilty. While considering the question
regarding grant or refusal of bail, several circumstances, including the seriousness of the
offence, the possibility of the accused to abscond, or the chances of his tampering with the
witnesses or misusing his liberty, as well as the prima facie nature of the evidence available on
the record, have been considered by the court as relevant considerations. There considerations
are also relevant for the purpose of deciding the question of grant of anticipatory bail. Besides
these, the background and the circumstances which persuaded the Law Commission to
recommend the introduction of the provision of anticipatory bail in the statute book have also
to be borne in mind.137
The High Court and a Court of Session, have concurrent jurisdiction to grant anticipatory bail,
according to 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 a direction under this section; and that Court may, if it thinks fit, direct
that in the event of such arrest, he be released on bail and that Court may taking into
consideration inter alia following factors namely: -
1. The nature and gravity of the accusation.

2. The antecedents of the applicant including the fact as to whether he has previously undergone
imprisonment on conviction by a Court in respect of any cognizable offence.

3. The possibility of the applicant o free from justice.

137
Bansi Lal v. State of Haryana, 1978 Cri LJ 472 at p. 476 (P & H).
 072

4. Where the accusation has been made with the object of injuring or humiliating the applicant
by having him so arrested, either reject the application forthwith or issue an interim order for
the grant of anticipatory bail.

5. The nature and gravity of the accusation.

6. The antecedents of the applicant including the fact as to whether he has previously undergone
imprisonment on conviction by a Court in respect of any cognizable offence.

7. The possibility of the applicant o free from justice.

8. Where the accusation has been made with the object of injuring or humiliating the applicant
by having him so arrested, either reject the application forthwith or issue an interim order for
the grant of anticipatory bail.138

Anticipatory Bail Cannot be Granted as a Matter of Right

Anticipatory bail cannot be granted as a matter of right nor should it be lightly granted. And,
in offences like murder, dowry death, for example, which are punishable with death or
imprisonment for life and for imprisonment which may extended to life, anticipatory bail ought
not to be granted unless some very compelling circumstances are made out. For anticipatory
bail, it is trite knowledge that Section 438 is made applicable only in the event of there being
an apprehension of arrest, and where the accused is inside the prison bars upon arrest against
cognizable offences, the question of relieving the accused from unnecessary disgrace and
harassment would not arise. An apprehension of arrest on accusation is the sine qua non for
taking recourse to Section 438 an accusation may exist before a case is registered by the police.
Thus, the apprehension must be based on real belief and the arrest must be imminent. Studied
in this light it becomes crystal clear that place of apprehension of arrest has importance.139 An
analysis of Section 438 discloses that a person invoking the jurisdiction of the Court must have
the reason to believe that he is likely to be arrested on an accusation of having committed a
non-bailable offence.140 The power exercisable under Section 438 is somewhat extraordinary

138
http://www.legalindia.in/personal-liberty-and-grant-of-anticipatory-bail/
139
Sachindra Mahawar v. State of M.P., 2000 Cri LJ 637 at p. 641.
140
K. Rajesekhara Reddy v. State of A.P.¸ 1999 Cri LJ 1933 at p. 1934.
 073

in character and it is only in exceptional cases where it appears that the person may be falsely
implicated or where there are reasonable grounds for holding that a person accused of an
offence is not likely to otherwise misuse his liberty then power is to be exercised under Section
438. It is true that the court is not powerless to grant bail for the entire period of trial but the
recent development of law leans in favour of granting limited bail especially, when the
investigation is at the premature stage.141 Anticipatory bail to some extent intrudes in the sphere
of investigation of crime and as such the Court must be cautious and circumspect in exercising
such power which is of a discretionary nature and such a power is not to be exercised lightly.
But, at the same time, if the circumstances on record are such which give rise to an inference
that the accusations are mala fide and appear to be false or groundless, it would not be proper
to refuse exercise of powers conferred upon the Court under Section 438 of course, general
allegations of mala fide or falsity of accusation are not sufficient to invoke this power. It is true
that the power to grant anticipatory bail under Section 438(1) has to be exercised sparingly.
One of the categories of cases for the grant of anticipatory bail, is that there should be
―reasonable grounds for holding that a person accused or an offence is not likely to abscond,
or otherwise misuse his liberty while on bail.142
In State of M.P. & Anr. v. Ram Kishna Balothia & Anr., court considered the nature of the
right of anticipatory bail and observed that, ―We find it difficult to accept the contention that
Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first
place, there was no provision similar to Section 438 in the old Criminal Procedure Code. Also,
anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right
conferred long after the coming into force of the Constitution. It cannot be considered as an
essential ingredient of Article 21 of the Constitution. And its non-application to a certain
special category of offences cannot be considered as violative of Article 21.‖
In the case of Gurbaksh Singh Sibbia etc. v. State of Punjab,143 it was held that legal position
438 of the Code of Criminal Procedure, 1973-

 The power under Section 438 is of an extra-ordinary character and must be exercised
sparingly in exceptional cases only.

141
State of Maharashtra v. Ananda Tukaram Akale, 2008 Cri LJ (NOC) 579.
142
Suresh Vasudeva v. State, 1978 Cri LJ 677 at p. 683.
143
1980 AIR 1632; 1980 SCR.
 074

 Neither Section 438 nor any other provision of the Code authorises the grant of blanket
anticipatory bail for offences not yet committed or with regard to accusations not so far
levelled.
 The said power is not unguided or uncanalised but all the limitations imposed in the
preceding Section 437, are implicit therein and must be read into Section 438.
 In addition to the limitations mentioned in Section 437, the petitioner must make out a
special case for the exercise of the power to grant anticipatory bail.
 The discretion under Section 438 cannot be exercised with regard to offences
punishable with death or imprisonment for life unless the Court at that very stage is
satisfied that such a charge appears to be false or groundless.
 The larger interest of the public and State demand that in serious cases like economic
offences involving blatant corruption at the higher rungs of the executive and political
power, the discretion under Section 438 of the Code should not be exercised.
 Mere general allegations of mala fides in the petition are inadequate. The court must be
satisfied on materials before it that the allegations of mala fides are substantial and the
accusation appears to be false and groundless.
Anticipatory bail cannot be granted in all cases as a matter of course. The exercise of power
under Section 438 being of an extraordinary nature, has to be invoked in exceptional cases
only. While considering the prayer for grant of anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice should be caused to the free and full investigation
and there should be prevention of harassment and unjustified detention of the accused.144
An order of anticipatory bail constitutes, an insurance against police custody following upon
arrest for offence or offences in respect of which the order is issued. In other words, unlike a
post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose
favour it is issued is thereafter arrested on the accusation in respect of which the direction is
issued; he shall be released on bail. Section 46(1) of the code which deals with how arrests are
to be made, provides that in making the arrest, the police officer or other person making the
arrest shall actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action. A direction under Section 438 is intended to
confer conditional immunity from this „touch‟ or confinement. This is a new provision made
on the recommendation of Law Commission. Under the old Code there was no specific

144
Govinda Chandra Senapati v. State of Orissa, 1996 Cri LJ 1014 at p. 1016 (Ori).
 075

provision for grant of ―anticipatory bail‖. The view of several High Courts was that unless a
person was under a restraint, i.e., in legal custody, no bail could be granted.145

Judicial Discretion

The Hon‘ble Supreme Court in the case of Gurubaksh Singh Sibbia146 held that: -

1. The society has a vital stake in both of these interests namely, personal liberty and the
investigational power of the police, though their relative importance at any given time depends
upon the complexion and restraints of political conditions. The Court's task is how best to
balance these interests while determining the scope of Section 438.
2. The High Court and the Court of Session should be left to exercise their jurisdiction under
Section 438 by a wise and careful use of their discretion which by their long training and
experience, they are ideally suited to do. The ends of justice will be better served by trusting
these courts to act objectively and inconsonance with principles governing the grant of bail
which are recognised over the years, than by divesting them of their discretion which the
legislature has conferred upon them, by laying down inflexible rules of general application. It
is customary, almost chronic; to take a statute as one finds it on the ground that, after all, ―the
Legislature in its wisdom‖ has thought it fit to use a particular expression. A convention may
usefully grow whereby the High Court and the Court of Session may be trusted to exercise their
discretionary powers in their wisdom, especially when the discretion is entrusted to their care
by the legislature in its wisdom, if they are liable to be corrected.
The Court would grant or refuse anticipatory bail after taking into considering the following
factors, such as: -
(i) The nature and gravity of the accusation.
(ii) The antecedents of the applicant including the fact as to whether the accused has previously
undergone imprisonment on conviction by a court in respect of any cognizable offence.
(iii) The possibility of the applicant to flee from justice.
(iv) Where the accusation has been made with the object of injuring or humiliating the applicant
by having him so arrested, either reject the application forthwith or issue an interim order of
the grant of anticipatory bail. This amendment in the section will come into force from the date

145
Varkey Paily Madthitudiyil, AIR 1967 Ker. 189; Narayen Parshad AIR 1963 MP 276.
146
Gurbaksh Singh Sibbia v. State of Punjab, 1980 AIR 1632;1980 SCR.
 076

of its notification. The considerations that weigh with the court in dealing with applications
under this section are similar to applications under Section 437 and Section 439. But the nature
of the offence is given primary consideration. The guiding principle is that if the Court can
safely opine that if allowed to be free the accused would be wholly indifferent towards the
investigations, he need not at all be afraid of the result of the investigation and the trial, the
court can refuse the application. When the conduct of the person seeking anticipatory bail was
not inspiring confidence and no attempt to involve in false case to disgrace or malign is made
out, investigation to unearth the conspiracy was pending, it cannot be held that exceptional and
special grounds justifying anticipatory bail were made out.147 The gravity of the offence is an
important factor to be taken into consideration while granting anticipatory bail so also the need
for custodial interrogation. While considering the question of grant of anticipatory bail, the
court will accord anxious consideration to the relevant factors such as gravity of the offence,
nature of the accusation, likelihood of absconding, likelihood of tampering with evidence
etc.148

Restrictions provided in section 437 do not apply to anticipatory bail

The Constitution Bench in Gurbaksh Singh Sibbia‘s case has clearly observed that there is no
justification for reading into Section 438 the limitations mentioned in Section 437. The Court
further observed that the plenitude of the section must be given its full play. The Constitution
Bench has also observed that the High Court is not right in observing that the accused must
make out a ―special case‖ for the exercise of the power to grant anticipatory bail.

While dealing with the issue whether the limitations contained in Section 437 could be read
into Section 438, the Supreme Court in Gurbaksh Singh‘s case said that we see no warrant for
reading into this provision the conditions subject to which bail can be granted under Section
437(1) of the code. That section, while conferring the power to grant bail in cases of non-
bailable offences, provides by way of an exception that a person accused or suspected of the
commission of a non-bailable offence „shall not be so released‟ if there appears to be
reasonable grounds for believing that he has been guilty of an offence punishable with death
or imprisonment for life. If it was intended that the exception contained in Section 437(1)

147
Kasturchand Ramlal v. State of Maharashtra, 1981 Cr. L.J.1328
148
Somabhai Chaturbhai Patel v. State of Gujarat, 1977 Cri LJ 1523 at p. 1524 (Guj): (1977) 18 Guj LR 131.
 077

should govern the grant of relief Section 438 (1), nothing would have been easier for the
legislature than to introduce into the latter section a similar provision. If at all the conditions
mentioned in Section 437 are to be read into the provisions of Section 438, the transplantation
shall have to be done without amputation. We see no valid reason for re-writing Section 438.149

In State of A.P. v. Bimal Krishna Kundu,150 it was held that it must be remembered that Section
438 of the code applies to all non-bailable offences and not merely to offences punishable with
death or imprisonment for life. It is also to be remembered that applicability of the section is
not confined to offences triable exclusively by the Court of Sessions. There is no indication in
Section 438 of the code for justifying a hiatus to be made among non-bailable offences
vivisecting those punishable with death or imprisonment for life and those others punishable
with less than life imprisonment. No doubt such a classification is indicated in Section 437(1)
of the Code, but that section is concerned only with post-arrest bail and not pre-arrest bail.

Apprehension of arrest necessary for anticipatory bail

For anticipatory bail, it is trite knowledge that Section 438 is made applicable only in the event
of there being an apprehension of arrest, and where the accused is inside the prison bars upon
arrest against cognizable offences, the question of relieving the accused from unnecessary
disgrace and harassment would not arise. Section 438 contemplates an application to be made
by a person apprehending arrest of an accusation of having committed a non-bailable offence.
It is indicative of the fact that an application for anticipatory bail is pivoted on an apprehension
of arrest which invites the exercise of power under Section 438.151
As a condition precedent to its application, Section 438 makes it incumbent that there must be
an existing accusation of having already committed a non-bailable offence. On such an
accusation there must be reason to believe that applicant may be arrested. A mere apprehension
of arrest will not suffice. That must be on the basis of an accusation of having committed a
non-bailable offence. That means the apprehension must be reasonable and based on existing
facts. Imaginary accusation or future possible accusations will not be sufficient. On such
accusations which are yet to come there cannot be any reasonable apprehension of an existing
threat of arrest. It is a condition precedent for an application under Section 438 that there must
be an existing reasonable apprehension of arrest on the existing accusation of having already

149
Gurbaksh Singh Sibbia v. State of Punjab, 1980 AIR 1632; 1980 SCR (paras 9, 18, 20).
150
AIR 1997 SC 3589: 1997 AIR SCW 3700 (paras 7, 8) (1997) 8 SCC 104.
151
Bimaladak v. State, 1997 Cri LJ 1969 at pp. 1970-71 (Cal): 1997 Cal Cri LR 72.
 078

committed a non-bailable offence prior to the point of time of filing the application. That
accusation will have to be specified in the application and the direction to be sought for is for
release in case of arrest in connection with that accusation. Protection under Section 438 could
be claimed only against specified accusation and not against possible arrest in general against
unspecified existing accusations or accusations likely to arise in future.
Application under Section 438 of the code is actually made on apprehension of arrest. In other
words, it is only the apprehension of arrest which invites exercise of power under Section 438
of the code. The direction that may be given on such application is that in the event of his arrest,
the applicant shall be released on bail. The provisions of Section 438 are applicable to an
apprehended arrest whether to be made by a police officer in charge of a police station or by
any person who is authorized in law to effect arrest.152
Mere „fear‟ is not „belief‟, for which reason it is not enough for the applicant to show that he
has some sort of a vague apprehension that someone is going to make an accusation against
him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant
is based that he may be arrested for a non-bailable offence, must be capable of being examined
by the Court objectively, because it is then alone that the court can determine whether the
applicant has reason to believe that he may be so arrested. Section 438 (1), therefore, cannot
be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity
against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as
large, as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual‘s
liberty, it is neither a passport to the commission of crimes nor a shield against any and all
kinds of accusation, likely or unlikely. Secondly, if an application for anticipatory bail is made
to the High Court or the Court of Session it must apply its own mind to the question and decide
whether a case has been made out for granting such relief. It cannot leave the question for the
decision of the magistrate concerned under Section 437 of the Code, as and when an occasion
arises. Such a course will defeat the very object of Section 438. Thirdly, the filing of a First
Information Report is not a condition precedent to the exercise of the power under Section 438.
The imminence of a likely arrest founded on reasonable belief can be shown to exist even if an
F.I.R. is not yet filed. Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so
long as the applicant has not been arrested. Fifthly, the provisions of Section 438 cannot be
invoked after the arrest of the accused. The grant of ―anticipatory bail‖ to an accused who is
under arrest involves a contradiction in terms, in so far as the offence or offences for which he

152
Suresh Vasudeva v. State, 1987 Cri LJ 677 at p. 683 (Del) 201.
 079

is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or
Section 439 of the code, if he wants to be released on bail in respect of the offence or offences
for which he is arrested. An allegation of a non bailable offence against a person and his
apprehension that he would be arrested is not sufficient to grant anticipatory bail. Where in the
petitions for anticipatory bail of the accused persons not a whisper has been made to draw an
inference that the object with which power to grant anticipatory bail has been provided in this
section is satisfied the Sessions Judge has not applied judicial mind in grating anticipatory bail
which tends towards abuse of process of the court, it is liable to be vacated.153
That is what is meant by a „blanket order‟ of anticipatory bail, an order which serves as a
blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any
eventuality, likely or unlikely regarding which, no concrete information can possibly be bad.
The rationale of a direction under Section 438(1) is the belief of the applicant founded on
reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect
the applicant to draw up his application with the meticulousness of a pleading in a civil case
and such is not requirement of the section. But specific events and facts must be disclosed by
the applicant in order to enable the Court to judge of the reasonableness of his belief, the
existence of which is the sine qua non of the exercise of power conferred by the section. Apart
from the fact that the very language of the statute compels this construction, there is an
important principle involved in the insistence that facts, on the basis of which a direction under
Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the
observance of that principle that a possible conflict between the right of an individual to his
liberty and the right of the police to investigate into crimes reported to them can be avoided. A
blanket order of anticipatory bail is bound to cause serious interference with both the right and
the duty of the police in the matter of investigation because, regardless of what kind of offence
is alleged to have been committed by the applicant and when, an order of bail which
comprehends allegedly unlawful activity of any description whatsoever, will prevent the police
from arresting the applicant even if the commits, say, a murder in the presence of the public.
Such an order can then become a charter of lawlessness and weapon to stifle prompt
investigation into offences which could not possibly be predicated when the order was passed.
Therefore, the court which grants anticipatory bail must take care to specify the offence or
offences in respect of which alone the order will be effective. The power should not be
exercised in a vacuum.

153
Suresh Chandra v. State of Orissa, 1988 (3) Crimes 428 429.
 080

An order of bail can be passed under Section 438(1) of the Code without notice to the Public
Prosecutor. But notice should issue to the public prosecutor or the Government Advocate
forthwith and the question of bail should be re-examined in the light of the respective
contentions of the parties. The ad-interim order too must conform to the requirements of the
section and suitable conditions should be imposed on the applicant even at that stage.
Equally, the operation of an order passed under Section 438(1) need not necessarily be limited
in point of time. The Court may, if there are reasons for doing so, limit the operation of the
order to a short period until after the filing of an F.I.R. in respect of the matter covered by the
order. The applicant may in such cases be directed to obtain an order of bail under Sections
437 or 439 of the Code within a reasonably short period after the filing of the F.I.R.

Duration of Anticipatory Bail

Section 438 does not mention anything about the duration to which a direction for release on
bail in the event of arrest can be granted. The order granting anticipatory bail is a direction
specifically to release the accused on bail in the event of his arrest. Once such a direction of
anticipatory bail is executed by the accused and he is released on bail, the concerned court
would be fully justified in imposing conditions including direction of joining investigation. In
pursuance to the order of the Court of Sessions or the High Court, once the accused is released
on bail by the trial Court, then it would be unreasonable to compel the accused to surrender
before the trial court and again apply for regular bail. The Supreme Court declared the law laid
down in the cases of K.L. Verma v. State, Salauddin Abdulsamad Shaikh v. The State of
Maharashtra154 and Sunita Devi v. State of Bihar155 as per in-curium and held that the validity
of the restrictions that the accused released on anticipatory bail must submit himself to custody
and only thereafter can apply for regular bail is contrary to the basic intention and spirit of
Section 438. It is also contrary to Article 21 of the Constitution. The test of fairness and
reasonableness is implicit under Article 21156 of the Constitution of India. Directing the accused
to surrender to custody after the limited period amounts to deprivation of his personal liberty.
It is unreasonable to lay down strict, inflexible and rigid rules for exercise of such discretion
by limiting the period of which an order under this section could be granted. Once the
anticipatory bail is granted then the protection should ordinarily be available till the end of the

154
Siddhram Satlingappa Mhetre v. State of Maharashtra, AIR 2011 SC 312: 2011 Cr LJ 3905.
155
AIR 2005 SC 498.
156
The Constitution of India, 1950
 081

trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the
anticipatory bail granted by the Court is cancelled by the Court on finding fresh material or
circumstances or on the ground of abuse of the indulgence by the accused.
Section 438 confers on the High Court and the Court of Session, the power to grant, anticipatory
bail if the applicant has ―reason to believe‖ that he may be arrested on accusation of having
committed a non-bailable offence. The power of the court to grant anticipatory bail is very
wide. The power to grant anticipatory bail can be exercised even after the submission of the
charge-sheet. In other words, as long as the person having a reasonable belief that he might be
arrested with reference to any non-bailable offence is not arrested, his application for
anticipatory bail can be entertained. It is pertinent to note that that while enacting Section 438
the parliament has not provided that the duration of anticipatory bail should be limited in point
of time or that the anticipatory bail is of a transient nature until regular bail is obtained. Further,
the language of Section 438, is absolutely clear and it does not leave room for applying the
principles of statutory interpretation. Section 438(2) permits High Court or the Court of
Sessions to include such conditions in the order granting anticipatory bail in the light of the
facts of the particular case as it may think fit, including other order general conditions provided
in that sub-section. Thus, no condition of unequivocal language of Section 438 Court have
since the year 1996 evolved a uniform procedure of limiting the duration of anticipatory bail
and the requirement of obtaining regular bail during the said limited duration. This practice has
as such no legal sanction.157

Duration of Anticipatory

Regarding duration of anticipatory bail there is no express provision as to specify whether the
anticipatory bail is granted for a limited duration or granted for unlimited duration, but as par
judicial interpretation as in Sibbia judgment held by Apex Court that it may be ordered for
limited period. But in general, the Court held the rule should be not to limit the anticipatory
bail to a shorter period. It is only upon specific facts of the case that the court may limit the
bail to a shorter period. Order of anticipatory bail does not ensure restraining from arrest till
the end of trial but for a limited duration. The matter should be left for regular bail, giving

157
Asim Pandya, Law of Bail: Practice and Procedure, Second edition, pp. 99-100.
 082

sufficient time to the accused to move regular Court for bail and only in case of refusal by the
Regular Court, to approach Higher Court.158
In Adhri Dharan Das v. State of West Bengal,159 it was observed that the anticipatory bail is
given for a limited duration so as to move the court for regular bail in terms of Section 439.
The view that such limited duration may extend to the date on which the bail application is
disposed of or even few days thereafter to enable the accused to move the higher Court, cannot
be accepted.
Anticipatory bail concept in Indian criminal justice system is the provision in which bail is
granted by High Court or Court of Session in anticipation of arrest in a non-bailable offence
where there is reasonable apprehension of such arrest. But the order of anticipatory bail should
not be a blanket order. And the discretion should be exercise by the High Court or by the Court
of Session should be on just and reasonable grounds. The purpose of the provision of
anticipatory mainly is to protect the respectable members of society from unnecessary
harassments. Anticipatory bail does not grant an absolute immunity from arrest rather it grants
immunity from custody upon arrest provided the accused furnished the bail. Thus effect is non-
bailable offence converted into bailable offence for the purpose of an arrest in that particular
case. The anticipatory bail shall be granted for an indefinite period and the grant of anticipatory
bail for a limited period should not be done whereas the actual spirit in which the Sibbia
judgement shall be understood is anticipatory bail in general shall be granted for unlimited
period, but the Court also empowered in proper case to grant bail for a limited period.

Difference between bails and bonds

Definition of Bail
By the term bail, we mean the release of the litigant, from police custody and entrusting him/her
to the private custody of the person, who guarantees the department to produce the litigant, to
answer the charge, whenever required. It is a court‘s approval that allows the accused to be out
of jail, on the deposit of necessary amount and compliance to the necessary conditions.
In finer terms, bail is an agreement, wherein the person under indictment makes a written
assurance to the legal authority, that he/she will appear to the court until the proceedings are

158
K.L. Verma v. State and Another, (1998) 9 SCC 348.
159
A.I.R. (2005) 4 SCC 303: AIR 2005 SCW 1013.
 083

finished with respect to the case and will adhere to the terms and conditions set out in the
agreement.
Further, a specified sum has to be deposited for availing bail, as security, which is refunded to
the person, if he complies with the conditions carefully and the same will be forfeited if the
person defaults in the fulfilment of the conditions specified in the agreement without reasonable
cause.
An anticipatory bail is one granted by the Session Court or High Court, to an accused who
perceives arrest for the commission of the nonbailable offence, but is not yet arrested by the
police officers.

Definition of Bond
Bond can be understood as a formal written agreement, duly signed by the defendant and surety
to make good to pay the definite sum, if the defendant fails to appear the court for a specified
criminal proceeding, at the stipulated date and time. It is a mechanism used to avail the release
of the accused, waiting for the trial upon the criminal charges, from the police custody.
Bond is actually the commitment of the bonds person to fulfil the debt if the accused defaults
in appearing before the court. The defendant pays 10% interest on the value of the bond, to the
bondsman, along with the collateral.

Key Differences Between Bail and Bond: - Difference between bail and bond can be
drawn clearly on the following grounds:

Bail implies the provisional release of the accused who is awaiting trial, provided that a certain
sum is deposited to the appropriate authority, as security, to assure their appearance in the court.
Conversely, bond connotes the surety bond, i.e., the bonds person commits to making good,
the loss caused if the defendant does not appear to the court when called.
In bail, the consideration is paid by the defendant or by someone on his/her behalf, such as
friends or family. Unlike, the consideration in bond is paid by the bail bondsman who acts as
a surety to the agreement.
In bail is allowed for a definite consideration, fixed by the court, whereas bond is available
only if a third party who possesses credibility takes the responsibility of the debt and obligation
of the accused. The amount of bail is returned to the defendant at the end of the trial when all
the court proceedings are complied with. On the other hand, the amount paid in the form of the
 084

fee, for the services rendered is not refunded. The amount of bail is comparatively less than the
bond because it does not involve interest

Safeguard of accused person in constitution, successive Anticipatory bail

applications Successive anticipatory bail application

There is no indication in Section 438 whether successive applications for anticipatory bail are
maintainable in law or not. For finding the answer to this question one has to rely upon the
general principles governing the law of bail. It is settled law that the doctrine of res judicata is
not applicable to the bail jurisdiction. Hence, successive bail applications are not barred in law.
The only thing necessary to be pointed out at the time of consideration of a successive bail
application is that some material change in the facts of the case has taken place after the
rejection of the previous bail application. The change expected by the law should not be a just
cosmetic change but of a substantial nature. There is no reason as to why the same principle
cannot be applied to anticipatory bails also.160
A person so long as he is not arrested, can legally apply for anticipatory bail more than once,
if h can satisfy the Court about the intervention of a substantial change in the facts and
circumstances of the case after the rejection of his previous anticipatory bail application. In
Ravinder Saxena v. State of Rajasthan,161 after the rejection of third application for anticipatory
bail moved by the accused and having failed to get the bail from High Court, the accused was
finally granted anticipatory bail by the Supreme Court as though no contention about
maintainability of the successive bail application for anticipatory bail was raised by the
respondent before the Supreme Court.
The view of the Calcutta High Court on this issue in Maya Rani Guin v. State of West
Bengal,162 is that a second application for anticipatory bail would amount to reconsideration of
earlier order. The accusation being the sine qua non and which remains the same, there cannot
be any revival of ―reason to believe‖ or apprehension of arrest which was considered by Court
in the earlier application for anticipatory bail. Thus, the second application for anticipatory
bail, even if new circumstances develop after rejection or disposal of the earlier application, is
not maintainable.

160
Asim Pandey. Law of Bail: Practice and Procedure, Second edition, p. 111.
161
AIR 2010 SC 1225: 2010.
162
2003 CrLJ 1 (Cal) (FB).
 085

In Aneesh v. State of Kerala,163 a specific question was raised about the maintainability of a
successive anticipatory bail after the first anticipatory bail was dismissed as withdrawn. The
Kerala High Court answered the questions to it in the following words:
(i) It cannot be said as an infallible and absolute rule that when an application for
anticipatory bail is dismissed as withdrawn, the applicant cannot file a second
application on the same set of facts.
(ii) When a second application for anticipatory bail is made after withdrawing the
first application, the Court would consider the question whether the applicant
was justified in withdrawing the earlier application or whether he was only
gaining time or was indulging in forum shopping. The Court has every
discretion to deal with the application and consider whether the relief should be
granted or not in the facts and circumstances of the case.
(iii) When a request for withdrawal of the application for anticipatory bail is made,
it would be ideal for the Court to record as to why the applicant wanted to
withdraw the application. If such reasons are stated, it would enable the Court
to deal with the second application for anticipatory bail filed at a later stage.164

Interim or transit anticipatory bail in some cases

Court can entertain an application for grant of interim bail to accused to enable him to surrender
before the Court having jurisdiction in a case wherein, he is accused of the offence committed
outside the jurisdiction of the Court where the accused ordinary reside.165
The Court of sessions or the High Court within whose jurisdiction a person ordinarily resides,
may apply for anticipatory bail and the same may be entertained by the said Court only with a
view to providing an immediate relief so as to enable him to approach the court of sessions or
the High Court within whose territorial jurisdiction the offence alleged to have been committed.
Thus, an application under Section 438 should be finally decided only by the Court within
whose territorial jurisdiction the alleged offence has been committed. The Court entertaining
application for anticipatory bail at the first instance which does not have the territorial
jurisdiction can give protection only for a brief period on adequate condition with a view to

163
2014 Cr LJ 1853 (Ker) (DB).
164
Asim Pandya, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, pp. 113.
165
Sanjeev Chandel v. State of H.P, 2003 Cr LJ 935 (HP) (paras 6, 9).
 086

enabling the person apprehending arrest to approach the court within whose territorial
jurisdiction the offence alleged to have been committed.166
The power under Section 438 cannot be exercised by a Court having no territorial jurisdiction
other than the limited jurisdiction for the transitional period, that is, arrest and release on bail
by the arresting authority or the Magistrate on whose order person arrested is required to be
produced before the Judicial Magistrate having jurisdiction in the other State or Union
Territory. Thus, the High Court cannot exercise its jurisdiction under Section 81 as the power
to grant bail is confined to the authorities mentioned in the second proviso appended thereto.
The High Court, however, can exercise a limited jurisdiction so that a person upon arrest may
not be taken into custody
by the arresting officer. Such arresting authority may be directed to release him on bail subject
to the fulfilment of the terms and conditions as may be imposed. The terms and conditions may
provide for execution of bond that he shall, within a reasonable time, and not beyond the period
of 24 hours, appear before the Courts as mentioned in the second proviso appended to Section
81 of the Code of Criminal Procedure and obtain a regular bail from such authority on such
terms and conditions as the Court may deem fit and proper.167

In Serious Offences Usually Anticipatory Bail not to be Granted

The harassment or humiliation likely to be suffered by the persons accused of offences has to
be weighed against the likely effect of pre-arrest bail on the investigation, the other co-accused
persons, the victims of the offences and the public in general. When serious offences are
disclosed and involvement of an accused person is, prima facie, established, the Court would
be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding
considerations. Prominence or reputation of the petitioner in the society or the prospects of his
contesting and winning an election cannot be allowed to overshadow the considerations of
prima facie case and the likelihood of investigation being adversely affected by pre-arrest
bail.168 Very compelling circumstances must be made out for granting bail to a person accused
of committing murder and that too when the investigation is in progress.169

166
Neela J. Shah v. State of Gujarat, 1998 Cr LJ 2228 (GuJ) : 1998 (1) GLH 594 : 1998 (1) GCD 646 (para 8).
167
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing.
168
Natvarbhai Pitamberbhai Patel v. State of Gujarat, 2004 Cr LJ 215 (Guj) (para 12).
169
Pokar Ram v. State of Rajasthan, AIR 1985 SC 969 (para 13): 1985 Cr LJ 1175: 1985 (1) SCALE 918:
(1985) 2 SCC 597.
 087

Anticipatory Bail in Dowry Death Cases

The Supreme Court has sounded a serious note of caution that the High Court is under no
compulsion to exercise its jurisdiction to grant anticipatory bail in the matter regarding
unnatural death of a daughter-in-law at the house of her father-in- law. The appropriate course
in such a case is to allow the concerned Magistrate to deal with the case on the basis of the
material before the Court at the point of time of their arrest. It is neither prudent nor proper for
the High Court to grant anticipatory bail that may cause prejudice to prosecution. This however
does not mean that in every case pertaining to dowry death anticipatory bail should be denied.
It depends on the facts and circumstance of each case.170

Anticipatory Bail in Cases of Large-Scale Fraud or Scam

An accused facing a charge under Sections 406, 409, 420 and 120-B of I.P.C is ordinarily not
entitled to invoke the provisions of Section 438 of the Criminal Procedure Code unless it is
established that such criminal accusation is not a bona fide one. It is difficult to conceive that
an accused who is involved in thousands of cases in different parts of the country by cheating
millions of countrymen, can be given benefit of the privilege of anticipatory bail as a matter of
routine as was done in the two cases.171
It is wrong to contend that anticipatory bail cannot be granted in respect of offences like
criminal breach of trust for the mere reason that the punishment provided therefore is
imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too,
though of course, the Court is free to refuse anticipatory bail in any case if there is material
before it justifying such refusal.172

Direction to Surrender and Judge to Consider Regular Bail not to be issued While
Rejecting Anticipatory Bail

It has been noticed that there is a tendency among some judges to issue directions to the
subordinate Court to consider regular bail on the same day while rejecting an application for

170
Asim Pandya, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, pp. 122-123.
171
Narinderjit Singh Sahni v. Union of India, AIR 2001 SC 3810: 2001 AIR SCW 4249 (para 59) : (2002) 2
SCC 210.
172
Gurbaksh Singh Sibbia v. State of Punjab, AIR 1980 SC 1632 (paras 9, 18, 20) : (1980) 2 SCC 565 : 1980
SCC (Cr) 465 : 1980 Cr LJ 1125.
 088

anticipatory bail. Sometimes even observations are made to grant regular bail if accused
surrenders and applies for regular bail. Such directions are potent enough to create enormous
confusion. It is the duty of the superior courts to follow the command of the statutory provisions
and be guided by the precedents and issue directions which are permissible in law. In the facts
of the case, the observations made by the learned single Judge while dealing with second
application under Section 438 was not at all warranted under any circumstance as it was neither
in consonance with the language employed in Section 438 nor in accord with the established
principles of law relating to grant of anticipatory bail. We may reiterate that the said order has
been interpreted by this Court as an order only issuing a direction to the accused to surrender,
but as we find, it has really created colossal dilemma in the mind of the learned Additional
Sessions Judge. We are pained to say that passing of these kinds of orders has become quite
frequent.173
It can be concluded from above discussion in this chapter that there is need of reform regarding
speedy disposal of bail applications as well as speedy disposal of the trial. As the refusal of bail
to a suspected person is the encroachment of individual liberty. The concept of anticipatory
bail need more reform regarding duration of anticipatory bail.

Conclusion

Right to Bail is fundamental right guaranteed under Article 21 of the Constitution of India but
in Code of Criminal Procedure it is not defined but it is a process mentioned under code. Bail
act as an instrument, for providing accused proper time to defend his side. Bail is granted by
court after analyzing facts, circumstances of each case, nature of offence, and conduct of the
accused in prison. The court exercise their discretion power i.e. in a judicious manner and not
as a matter of course. The jurisprudence of bail follows certain fundamental and principles.
The impending philosophy behind the practice of granting bail is to ensure that the right to life
and liberty is protected. Bail jurisprudence is based on various principles. But if there could be
some provision that enables an accused of personal representation before the court in case of
rejecting the bail would be a great initiative in protecting the freedom and liberty of the accused.
Delays in granting bail for the accused especially if they are innocent, not only affect the
interest of an individual but it has an impact on the welfare, well-being of the society at large.

173
Ranjit Singh v. State of M.P., 2013 AIR SCW 5728 (para 29): 2013 (12) SCALE 190 followed Rashmi
Rekha Thatoi v. State of Orissa, (2012) 5 SCC 690 : 2012 (5) SCALE 123.
 089

Another grey area in the application of bail is that it is granted quite later in the case. This is to
also do with the saturation of cases and the overburdening of the legal system.
If at the initial stage of the case the court finds no prima facie evidence against the accused
even in a non-bailable offence, it should grant bail in the interest of justice. It is pertinent to
mention here that justice delayed is justice denied. Thus keeping undertrials in jail for a period
longer than required is a violation of their constitutional and human rights.
 090

CHAPTER 5

COMPARATIVE STUDY OF BAIL IN DEVELOPING AND LEAST

DEVELOPING COUNTRIES

A man of courage never needs weapons, but he may need bail.174

Lewis Mumford

Introduction

Bail is very important part of criminal justice system as its meaning is concerned that is
procurement of release from prison of a person awaiting trial. As bail is about the release of
the person so the relevancy of the individual liberty as guaranteed by Article 21 of the
Constitution comes in question while deciding bail application.175 Moreover, bail serve two
interest one is individual liberty and other is interest of the society. A man on bail has a better
chance to prepare or present his case than remand in custody. And if public justice is to be
promoted mechanically detention should be demoted. The considerable public expense in
keeping in custody where no danger of disappearance. In cases of bail in non-bailable cases the
judicial discretion to be exercise on just and human grounds and on some codified
provisions.176

Personal liberties and freedom are guaranteed by the Constitution. Right to bail is a right with
a vital importance. Prior to independence and formation of the Constitution, the right to bail
was provided under the provisions of code of criminal procedure, 1973. When bail is rejected
the personal liberty of an accused is deprived, the judiciary must exercise the powers to grant
the bail. The significance and the sweep of Article 21 makes the deprivation of liberty, a matter
of grave concern and permissible only when the law authorise.177 The Bail system causes
discrimination against the poor since the poor would not be able to furnish bail on account of

174
Lewis Mumford
175
The Constitution of India, 1950.
176
janak Raj Jai, Bail Law and Procedure, Sixth Edition, 2015, Universal Law Publishing, p. 9.
177
http://etheses.saurashtrauniversity.edu/id/eprint/749: Researcher: - Shukla Rajendra Ranjan Kumar, at page
178
 091

their poverty while the wealthier persons otherwise similarly situated would be able to secure
their freedom because they can afford and furnish bail. This discrimination arises even if the
amount of the bail set by the Magistrate is not so high „for a large majority of those who are
brought before the courts in criminal cases are so poor that they would find it difficult to furnish
bail even in small amount.178

Bail now become a big industry, due to monetary bond as security for requires attendance of
the accused at the time of trial. The Courts in India are judge-centric and state-centric. Bail is
rejected as a rule and granted as exception, the maxim Bail is a rule and jail is exception is a
myth, in practice the reverse is followed. The worse situation is when a person arrested on mere
suspicion who if a respectable member of the society compel to live in the prison due to refusal
of bail. On the other hand, as due to poverty some prisoners not grant bail due to their inability
to deposit the security as also in case of Hussainara Khatoon v. State of Bihar,179 in these type
of cases it should be grant on natural ground as due exercise of judicial discretion of grant of
bail.

The poor cannot afford bail monetary security set by courts. The majority earn negligible
livelihoods as wage labourers or joint family tillers of tiny farms, the result of the land
alienation and fragmentation of holdings which we have seen in recent decades. The former
cannot afford bail. The latter can, but at the cost of mortgaging their only source of income.
They hesitate to sacrifice the well- being of the family for the freedom of the individual.180

Right to Bail

As we know bail is matter of judicial discretion. While considering whether to grant or not to
grant bail, conflicting claims of individual liberty of the accused and the larger societal interest
have to be taken into considerations. Article 21 of the Constitution of India recognizes the right
of a speedy trial to every citizen. The object of the new The Code of Criminal Procedure, 1973
is the expeditious trial. The delay in the conclusion if the trial violates the Constitutional

178
State of Rajasthan v. Balchand, AIR 1977 SC 2477 at 2448, Justice Bhagwati in a Report to the Legal Aid
Committee.
179
AIR 1979 SC 1369.
180
www.theshillongtimes.com/2011/12/12/the-rule-is-bail-not-jail/#ssH5SeDdDV7V8hzE.99.
 092

guarantee of a fair, just and reasonable procedure and in fact a fundamental right of speedy
trial.

Police and the magistrate have been given power to grant bail under code. However, in bailable
offences, bail can be claimed as a matter of right. Police or Magistrate has no discretion in this
regard. However, police uses discretion in granting bail as the people are not aware of statutory
provisions. There is urgent need to impart awareness in this regard so that police may not
misuse its powers for extraneous considerations.

Police officer has no discretion to refuse release under Section 436 makes it clear that grant of
bail need not necessarily by the Court only. The police officer has also the jurisdiction to release
the person on bail with or without surety.181 In bailable offences to which Section 436 applies,
a police officer has no discretion at all to refuse to release the accused on bail, so long as the
accused is prepared to furnish surety. In the instant case it was held that as the accused was
prepared to furnish security, the respondent police officer was bound to release him on bail.9
In the case of a bailable offence, the police officer arresting an accused, himself will give bail
and if for any reason he fails to do so, the court will necessarily give bail. In the case of Dharmu
Naik v. Rabindranath Acharya182, the appellant and his brother were involved in a bailable
offence and were arrested by the respondent police officer inspite of bail granted to them earlier
by the magistrate. It was held by the High Court that the respondent police officer illegally
arrested the appellant and his brother and detained them in police custody though they had been
previously enlarged on bail and the bail order was produced before him. It was held that it was
hard to believe that the appellant and his brother, who had, in apprehension of their arrest,
obtained the release order after surrendering in Court, would keep quiet and would not produce
the bail order and would silently submit to police custody without protest. It was further
observed that even assuming that no bail order was produced before the respondent police
officer, yet evidence showed that surety was offered at the time of arrest of the appellant and
that therefore the respondent was bound to release him on bail in view of the fact that in a
bailable offence the police officer has no discretion at all to refuse to release the accused on
bail, so long as the accused is prepared to furnish surety. Accordingly, the respondent police
officer was convicted under Section 342 IPC for wrongful confinement.

181
Chowriappa Constructions v. Embassy Constraints and Devpt P. Ltd., 2002 Cri LJ 3863 at p. 3865 (Kant).
182
Cri LJ 864 at p. 867 (Ori).
 093

Comparative study of bail

Who Can Grant Bail?

Police Officer

The code of criminal procedure confers the power to the police to release a person on bail. Any
person arrested by police has to be released on bail if he is arrested without warrant or order
from the magistrate under the circumstance mentioned in Section 41 of code and that if the
offence with which he is charged is a bailable offence. Also, in case a person when arrested by
the police in relation to a non-cognizable offence on the ground that he refused to give his
correct name or address, may be released on executing a bond with or without sureties, to
appear before a magistrate if required. The officer in charge of the police station may in his
discretion release any a person accused of or suspected of the commission of non bailable
offence and arrested or detained by him without warrant. But such power cannot be exercised
even in his discretion if there appear sufficient grounds for believing that such person has been
guilty of an offence punishable with death or imprisonment for life.

Bail by Executive Magistrate

Section 44 (1) authorizes any magistrate either judicial or executive to arrest or order the arrest
of any person who has committed any offence in his presence. Since he can order ones arrest,
he also has the power to release him on bail. It has been held that magistrate arresting a person
is not a court, so detaining such person beyond 24 hours would be illegal normally.183 So, he
has to be produced before a competent magistrate under Section 167 (1) code.184 Under Section
81 the executive magistrate has the power to grant bail to a person who is charged of a bailable
offence and arrested under warrant and that the offence was committed in any other district.

183
M.R. Malik; Bail Law & Practice, Fourth edition, p. 54.
184
Section 167 of Criminal Procedure Code, 1973.
 094

Judicial Magistrate

Bail before a judicial magistrate can be moved at any stage of investigation, enquiry or trial, at
the time of the commitment or after conviction until a proper bail order is obtained from the
appellate Court.185

Bail by Sessions Judge

Section 439 confers the power upon the sessions judge to take up bail application of an accused
against whom the investigation is pending and the bail of such accused has been refused by the
sessions judge at the investigation stage. The power of the sessions judge is concurrent with
that of the High Court. The power upon the sessions judge or the High Court under Section
439 to enlarge the accused on bail is as an original court. But the sessions judge can impose
appropriate conditions on bail. Section 439 also empowers the sessions Judge to set aside or
modify any condition imposed by the magistrate while admitting the accused on bail.186

Bail by High Court

The High Court has been given wide power to grant bail as Court of superior jurisdictions, as
a trial Court, as an appellate Court or as a Court of revision. Power has also been given to the
High Court either to reduce the bail granted by the magistrate, or by the sessions judge on being
satisfied that the amount of bail is excessive and has also the power to cancel the bail granted
either by the magistrate or by the sessions judge on being satisfied that the bail has been
improperly granted ad regard to being had to the facts and circumstances of the case and in the
interest of the public order and for fair trail of the case pending against the accused, his bail
should not be granted. The High Courts have been given wide discretionary powers in matters
of granting or refusal of bail.187

185
Section 436-437 of Criminal Procedure Code, 1973.
186
Section 439 of Criminal Procedure Code, 1973.
187
M.R. Malik; Bail Law & Practice, Fourth edition, p. 172.
 095

Bail by Supreme Court

The Constitution of India under Article 134 and 136 confers a limited appellate jurisdiction to
the Supreme Court. The Supreme Court has got the powers under Article 142 of the
Constitution to enforce its decrees etc. Article 145 confers power upon the Supreme Court to
make rules for regulating generally the practice and procedure of the code. Under Article 134
the Supreme Court can entertain an appeal from any judgment, final order or sentence in a
criminal proceeding of a High Court. Under 136 the Supreme Court can grant special leave to
any appeal from any Judgment, decree, or determination or sentence etc. Article 142 the
Judgment of the Supreme Court a law and it is enforceable throughout the territory of India.188

Bail or Security

The expression occurs in Section 81 which lays down that the executive magistrate, district
superintend of police, or commissioner of police, before whom any person, intended to be
arrested by the Court is produced, can, when such person is brought before him to take such
bail or security, as the case may be in cases of offence conferred on the chief judicial magistrate
(subject to the provisions of Section 437, or the sessions judge of the district in which the arrest
is made on consideration of the information and the documents referred to in Sub-section (2)
of Section 78, release him on bail. Nothing in the section shall, however be deemed to prevent
a police officer from taking security under Section 71 of the code.189

Security

The word security has been used in several sections of the code such as Sections 71, 81, 106,
107, 108, 109, 110, 117, 119, 122, 123, 124, 170, 330, 340 and 346. Section 71 provides that a
Court, issuing a warrant for the arrest of any persons has the discretion to direct, by
endorsement on the warrant, that the officer, to whom the warrant is directed, has to take
security and release such person from custody, but such release must be subject to his executing
a bond with sufficient surety for his attendance before the court. The endorsement of on the
warrant must state.190

188
The Constitution of India, 1950.
189
Asim Pandey, Law of Bail, Practice and Procedure, 2nd edition, 2015, Lexis, Nexis, pp. 43-44.
190
The criminal Procedure Code,1973.
 096

(a) The number of sureties.

(b) The amount of surety and the person, for whose arrest the warrant is issued, are to be
respectively bound.

(c) The time he is to appear before the Court. Further duty cast upon the officer, to whom the
warrant is directed, is to forward the bond to the court whenever a security is taken under this
section.

Sections 106 to 124 (both inclusive) finds place in Chapter VIII of the code. These sections
deal with the procedure for proceedings arising out of security for maintain peace and for good
behaviour. Sections 106 and 107 deal with security for keeping peace on conviction and in
other cases respectively. The difference between the two sections is that, while Section 106
empowers a court of sessions or court of a magistrate of the first class, while convicting a
person of certain offences or abetting any such offence, to order the convicted person to execute
a bond, with or without sureties for keeping peace for such period not exceeding three years as
it thinks fit, Section 107 empowers an executive magistrate to issue show cause notice to any
person who is likely to commit a breach of peace or disturb public tranquillity on why he should
not be ordered to execute a bond, for keeping peace.191

Sections 108, 109 and 110 of the code respectively deal with security for good behaviour from
persons disseminating seditious matters, suspected persons, and habitual offenders. In all these
sections, an executive magistrate has been empowered to require such persons to show cause
why he should not be ordered to execute a bond with or without surety for his good behaviour.
Under Sections 108 and 109, the duration of such bond must not exceed one year while under
Section 110 such duration must not exceed three years. Under Section 110 the bond must be
with surety unlike Sections 108 and 109 where the bond may be with or without sureties. While
Section 117 of The Code of Criminal Procedure deals with the provisions relating to the order
to furnish security, Section 119 provides for the commencement of period for which security
is required.

191
Section 106-107 of Criminal Procedure Code, 1973
 097

Section 117 of the Code, inter alia, provides that when it is proved upon inquiry that it is
necessary for keeping peace or maintain good behaviour, as case may be, that the person,
against whom the inquiry is made should execute a bond, with or without security, the
magistrate shall make, an order accordingly.

Section 119 of the code provides that when a person has been ordered to give security under
Section 106, or Section 117, if at the time such order is made, he has been sentenced to, or is
undergoing a sentence of, imprisonment, the period of security shall commence on the expiry
of that period of sentence. In other cases, the period shall commence on and from the date of
the order unless the order directs that it will commence at a later date.

Section 122 of the criminal procedure code provides for imprisonment in default of security.
Section 123 confers powers on the High Court, the court of sessions and the chief judicial
magistrate to release persons imprisoned for failing to give security, and Section 124 provides
for security for unexpired period of bond.192

Section 122 of the Code, inter alia, provides that if a person ordered against under Section 106
or Section 117 does not give security as ordered, he shall be detained in prison when the period
of security does not exceed one year but when such period exceeds one year the magistrate
shall detain him in prison pending the order of the sessions judge before whom the proceedings
shall be conducted as expeditiously as possible. The sessions judge, after examining such
proceedings and after giving the concerned person a reasonable opportunity of being heard,
may pass such orders as he thinks fit, but in case of imprisonment the period must not exceed
three years. Imprisonment for failure to give security for keeping peace shall be simple but
when the proceedings have been taken under Section 109 or Section 110 such imprisonment
may be rigorous or simple as the sessions judge or magistrate in each case directs.193

Bail by Police

The power of a Police Officer, to release on bail a person accused of an offence and taken into
custody by him, may be divided under two heads: (a) when the arrest was made without any

192
Section 122 of Criminal Procedure Code, 1973.
193
Asim Pandya Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis, p. 45.
 098

warrant; and (b) when the arrest was made in pursuance of warrant of arrest. Power of police
to grant bail under head (a) may be gathered from Sections 42, 43, 56, 59, 169, 170, 436, 437
and Schedule I Column 5 of the Code. The powers of police to grant bail under head (b) are
controlled by directions endorsed under Section 71 of the Code.194 Section 81 of the Code
however, allows a police officer to take bail when the person arrested or produced before him
has been accused of the commission of a bailable offence even though warrant of arrest does
not contain any direction to that effect. In case of non-bailable offence the endorsement on the
warrant has to be strictly followed. Endorsement on warrant however should be by name.195

Comparative study of bail

Bail" originates from the word "bailler" it is french and it means to take charge or control.
According to Black‘s Law Dictionary bail is defined as ―To procure the release of a person
charged with an offence by ensuring his future attendance in court and compelling him to
remain within the jurisdiction of the court‖.196 ―To set at liberty a person arrested or imprisoned
on security taken for his appearance on a day
and place. This security is called bail, as the party arrested or imprisoned is delivered into the
hands of a person who binds himself for his forth coming‖ Also bail in civil law is defined as
a deposit of money or property to secure the release of persons under civil arrest for failing to
pay debt reduced to court order and the effect is to ensure payment of such awards. Bail is also
defined as a procedure by which a person arrested or detained in connection of a crime may be
released upon security being taken for his appearance on the day and place as may be
determined by the authority effecting the release. This writer defines bail the release of a person
in custody of an authorized authority after the consideration of certain factors and on certain
terms pending the outcome of the case against him. Bail is not an automatic right of the
applicant it depends on certain conditions and it is at the discretion of the court. But such
discretion is to be exercised and applied judiciously and within the bounds of law and its only
when such discretion is exercised perversely that the appellate court will upturn the decision
of the lower court.

194
Section 71 of Criminal Procedure Code, 1973.
195
Kochu Kunjio v. State of Kerala, (1962), Cr.L.J. 436, 1961 Ker. L.T. 577.
196
Black’s law dictionary.
 099

Fundamental rights under the American constitution

Article 6 lays down that in all criminal prosecutions the accused shall enjoy the rights to a
speedy and public trial by any impartial jury of the state and district wherein the crime shall
have been committed, which district shall have been previously ascertained by law, and to be
informed of the nature.197

Article 8 lays down that excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishment inflicted. Section 1(i) of Article 14 lays down that all person
born or naturalised in the United States and subject to the jurisdiction thereof, are citizen of the
United States and of the state wherein they reside. No state shall make or enforce any law,
which shall abridge the immunities of the citizens of the United States, nor shall any state
deprive any person of life, liberty or property without due process of law, nor deny any person
within its jurisdiction an equal protection of law.

Due Process of Law

The liberty protected by due process includes the rights of the citizens to be not merely free
from physical restraint of his person, as by incarceration, but is deemed to embrace the right of
the citizen to be free in enjoyment of all his faculties, to be free to use them in all lawful ways,
to live and work where he will, to earn his livelihood or avocation and, for that purpose, to
enter into all contracts which may be proper, necessary and essential to his carrying out to a
successful.198

The phrase ―due process‖ has not been defined in the American Constitution. Its meaning and
scope has been allowed to be developed by adjudication. Thus, the expression means the
process of law, which hears before it condemn, which proceeds upon inquiry and renders
judgment only after a trial it,199 therefore ensure that a man ‗s legal rights should not be affected
by proceedings taken behind his back. He should be given due notice of the proceedings of the
time and place including the tribunal before which the claim is to be made, of the nature of the
case against him, and be afforded sufficient liberty to prepare and make his answer. In a capital
case due process of law involves the right of the accused to be defended by a counsel, and

197
Article 6 of U.S. Constitution.
198
Allegeyer v. Lousiana, (1897) 167 US 578.
199
Dartmouth College Case 4 Law Edn 129; Trustees of Dartmouth College v. Woodward, 4 Wheeton 518.
 0100

denial of such a right would invalidate the trial denial of due process in a criminal trial is failure
to observe fairness in trial essential to the concept of justice.200 Even a judgment based on a
confession extorted under duress is denial of due process. No free man shall be arrested or
detained in prison or deprived of his freedom or outlawed or banished or in any way molested
and will not set forth against him nor send against him, unless by the lawful judgment of his
peers, and by the law of the land.201

Fundamental rights under the British constitution

There is no written Constitution in England and there is no declaration of fundamental rights

under the English Constitution. In England, the Magna Carta of 1215 and the petition of rights
1628, lays down that no man shall be arrested or imprisoned or disseized, outlawed or exiled
for in any way molested save by the lawful judgment of his peers or the law of the land. Thus,
the principle of the process of law itself is equivalent to the law of the land in England and had
its origin in the 13th century, and this protection of liberty of the individual has been confirmed
by successive English sovereigns. Even though there is no formal declaration of fundamental
rights, the four great The Magna Carta, the Petition of Rights, the Bill of Rights and The Act
of Settlement contain provisions upholding the liberties of the subjects. But the liberties
guaranteed under these charters are not beyond legislative interferences. Since the parliament
is supreme and can pass any law as it thinks fit, the liberty of an individual in England is a
liberty confined and controlled by law, whether common law or statute.202

The fundamental difference in the concept of individual liberty between America and England
is that in America the Constitution is intended to act as a limitation on the power of the
legislature as well as the executive, whereas in England the maxims of liberty and justice are
only applied as guards against executive usurpation and tyranny.203 In England no member of
the executive can interfere with the liberty of a subject unless he can support the legality of his
action before a court of justice.204

200
Lisseuba v. California (1941) 314 US 219.
201
P.V. Ramakrishna, Law of Bails, 9th edition, 2016, Universal Law Publishing, p. 5.
202
Liversidge v. Anderson, (1941) 3 AII ER 338:110 LJKB 724: 1942 AC 206.
203
A.K. Gopalan v. State of Madras, 1950 SCR 88: AIR 1950 SC 27:1950 SCJ 174.
204
Eshugbayi Eleko v. Officer Administering the Govt. of Nigeria, AIR 1931 PC 248: 61 Mad LJ 975: 1931 AC
662.
 0101

comparison of bail worldwide

In the United States, it is common for bail to be a cash (or other property) deposit. Cash bail in
other countries is more limited. Known as a bail bond or cash bail, an amount of money is
posted so that the suspect can be released from pre-trial detention. If the suspect makes all of
their required court appearances, this deposit is refunded.

In 46 US states, a commercial bail bondsman can be paid to deposit bail money on behalf of a
detained individual. This practice is illegal in the rest of the world. Illinois, Kentucky, Oregon
and Wisconsin have outlawed commercial bail bonds, while New Jersey and Alaska rarely
permit money bail.

 Australia Bail laws in Australia are similar to the laws of New Zealand and
Canada, but are different in each state. Each state holds that there is a prima facie
entitlement to bail for most charges upon application by a defendant. However, there is
an exception when the charges are especially serious, such as drug trafficking, family
violence or murder. In such cases, there is no entitlement to bail, and it must be argued
as to what circumstances exist that justify a grant of bail.205

In Victoria, bail may be refused to a defendant who faces a more serious charge unless
the defendant demonstrates compelling reasons why bail should be granted.206
Compelling reasons may generally be established by demonstrating that jail is an
unlikely outcome for the charge, or that bail conditions can be imposed that make re-
offending unlikely. In cases where a defendant is charged with murder, terrorism or
offending with a moderately serious charge while on bail, to become eligible for bail
the defendant must prove exceptional circumstances. Exceptional circumstances is
difficult to demonstrate, but may potentially arise as a consequence of significant delay
in a criminal prosecution.207

 Canada As in other Commonwealth nations, people charged with a

criminal offence in Canada have a prima facie right to reasonable bail (known in

205
Devine, F.E. (1989). Bail in Australia (PDF). Australian Institute of Criminology. ISBN 0-642-14732-9.
Retrieved 12 February 2019
206
"Major Reforms to Overhaul Bail System Pass Parliament". Delivering for All Victorians. Premier of Victoria.
23 June 2017. Archived from the original on 1 January 2018. Retrieved 12 February 2019.
207
"Grounds for refusal of bail". The Law Handbook 2018. Fitzroy Legal Service. Archived from the original on
12 March 2019. Retrieved 12 February 2019.
 0102

Canada as 'judicial interim release') unless there is some compelling reason to deny it.
These reasons can be related to the accused's likelihood to skip bail, or to public danger
resulting from the accused being at large. In stark contrast to many other jurisdictions
granting a constitutional right to bail, [citation needed] in Canada the accused may even
be denied bail because the public confidence in the administration of justice may be
disturbed by letting the individual, still legally innocent, go free pending the completion
of the trial or passing of sentence (Criminal Code, s. 515 (10)(c)). Sureties and deposits
can be imposed, but are optional.208

 Czech Republic Instead of remand, a court in the Czech Republic may decide to
accept: a

guaranty from a trustworthy person or association

a written word of honor from the person charged

surveillance by a probation officer

bail

Bail can be considered when a charged person is held because of concern of possible escape or
of a continuation of criminal activity. Bail cannot be considered where there is a concern of
influencing witnesses or otherwise frustrating of the proceedings. Bail is also excluded in case
of 31 specified serious crimes (e.g., murder, grievous bodily harm, rape, robbery, public
endangerment, etc.) when the person is held due to concern of continuation of criminal activity.
Bail may be posted either by the charged person, or with his or her consent, by a third party,
but this only after this third party has received a thorough briefing regarding the charges and
reasons for custody209 and possible grounds for the forfeiture of the bail.210 After the bail has
been posted, the court must again review the grounds for bail, and must decide either to accept

208
Criminal Code of Canada, Judicial Interim Release". Archived from the original on 22 May 2011.
209
Czech National Council. "Criminal Procedural Code of the Czech Republic, § 73a (1)". Collection of the
Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012
210
Czech National Council. "Criminal Procedural Code of the Czech Republic, § 73a (9)". Collection of the
Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
 0103

or refuse the bail. When accepting the bail, the court may also require the charged person to
stay in the country.

The court may decide to rescind the bail if the charged person

 escapes, is in hiding or fails to report a change of address and thus frustrates the
possibility of delivery of summons or other documents from the court, the prosecution
or the police, or
 is at fault for failing to appear for a proceeding, which may not take part without him
or her, or
 continues criminal activity, or attempts to finish the crime which they had attempted or
threatened previously, or
 is evading execution of imprisonment sentence, court ordered fine or other court
ordered punishment.

The court holds out on bail as long as the reasons for custody remain (which includes pending
of the charges), and in case of conviction until the convict starts serving prison sentence,
reimburses the criminal proceedings and/or pays court ordered fine. In case that the court
decided also on damages and the aggrieved party asks for it within three months, the bail or its
part may be used also to reimburse the damages.211 Otherwise, the court returns the bail. Both
the prosecutor and the person in custody may challenge any decision on custody (including
bail) by filing a complaint which leads to review by an appellate court.

 United Kingdom In the modern English bail system, monetary payments play a
very small role. Securities and sureties can be taken as conditions for being granted
bail, but these amounts are not excessive. Wider restrictions such as curfews, electronic
monitoring, presenting at a police station, and limits on meeting specific people or
going to specific places are more common conditions. Bail is regulated primarily by the
Bail Act 1976 and the Police and Criminal Evidence Act 1984, both of which have been
heavily amended by later legislation such as the Policing and Crime Act 2017.212

211
Czech National Council. "Criminal Procedural Code of the Czech Republic, § 73a (6), § 73a (7)". Collection
of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
212
"Pre-Charge Bail and Release Under Investigation Procedure" (PDF). Greater Manchester Police. June 2020.
 0104

The Bail Act 1976 was enacted with the aims of creating more conditions by which
defendants could be denied bail and also redefining the parameters of fulfilling bail.
The Bail Act also nullified the recognizance system, removing the requirement of
paying a specific amount of money and instead arresting defendants for failing to
surrender. The Bail Act created a qualified right to be granted bail before conviction,
except for when certain factors applied. This does not guarantee a person will get bail,
but it places the onus on the prosecution to demonstrate why bail should be refused in
preference to custody.

In England and Wales there are three types of bail that can be given:213

 Police bail. A suspect is released without being charged but must return to the police
station at a stated time.
 Police to court. After being charged, a suspect is given bail but must attend their first
court hearing at the date and Court stated.
 Court bail. After a court hearing, a suspect is granted bail pending further investigation
or while the case continues.

 United States The 8th Amendment to the United States Constitution states, "Excessive
bail shall not be required", thus establishing bail as a constitutionally-protected right.214
What constitutes "excessive" is a matter of judicial discretion, and bail can be denied if
the judge feels that it will not aid in forcing the accused back to trial. Money bail is the
most common form of bail in the United States and the term "bail" often specifically
refers to such a deposit, but other forms of pre-trial release are permitted; this varies by
state. Many states have a "bail schedule" that lists the recommended bail amount for a
given criminal charge. At the first court appearance (the arraignment), the judge can set
the bail at the amount listed on the schedule or at a different amount based on the
specific facts of the crime and the person accused.215 A common criticism of bail in the
United States is that a suspect's likelihood of being released is significantly affected by
their economic status and systemic racial bias. In response, in 2014 New Jersey and

213
"Bail Conditions", Dorset Police. Retrieved 30 December 2008.
214
"United States of America 1789 (rev. 1992)". www.constituteproject.org. Retrieved 25 August 2018
215
"Pre-trial Court Appearances in a Criminal Case". American Bar Association. Retrieved 18 July 2017.
 0105

Alaska have abolished cash bail for all but a limited number of court cases. Though the
California legislature attempted to eliminate cash bail in 2018, this change was vetoed
by California Proposition 25 in November 2020.

 Difference between UK and US The principal difference is that in the USA, bail
requires a certain amount of money to be pledged as security for a person‘s appearance,
hence the profession of bail bondsman. Sureties are sometimes required in the UK, but
no money is paid up front, the amount of the surety becomes payable if the accused
fails to turn up. Furthermore, in the UK, the legislation specifically provides that the
accused has a right to bail, that is, the accused must be bailed unless the court thinks
there is a possibility that he or she will abscond, commit more crimes while on bail,
interfere with witnesses, etc.216

The system of bail in the USA varies from state to state. In the UK it is such simpler -
If you are given bail, you might have to agree to conditions like:

 living at a particular address not contacting certain people giving your passport to the
police so you cannot leave the UK reporting to a police station at agreed times, for
example, once a week If you do not stick to these conditions, you can be arrested again
and be taken to prison to wait for your court hearing. Some serious cases will require a
cash deposit before bail is granted, but the vast majority of accused are released on their
own recognizes. Not all countries have a bail system. That's the first difference. There
are some countries where either you are held in jail until trial or you are let go as a low
risk and there's no bail involved. Of the countries with bail systems, most have a
provision requiring a judge to only impose a bail within the financial limits of the
person. For example, in Canada if you're super poor then your bail will likewise be
super cheap. It's illegal to have bails where a person has to borrow money. The point is
to make a person risk a financial penalty for running, not profiting off accusations. That
leaves the United States with a very unique system where private industry profits off
excessive bail amounts and this is considered constitutional.

216
ibid
 0106

Bail trends in developing and least developing countries

 Bail trends between district and high courts

Substantial differences are found in the judgments regarding the bail of the trial court and the
High Courts. In most of the cases it has been observed that in cases where the trial court rejects
the bail plea, bail is accepted by the High Court. The trial court dismisses the bail petition like
other petitions without mentioning any judicial view.Each case of a crime is of a different kind,
but the order of dismissal of the bail petition is almost of the same kind which is written
mechanically that the offense is of serious condition, so it would not be appropriate to grant
bail. Thus, by writing, the trial court dismisses the bail plea even in cases in which the offense
is not initially constituted and the accused cannot be sentenced even if the documents presented
by the police are accepted. On the other hand, the High Court and the Supreme Court adopt
humane behaviour towards bail and decide on bail according to the circumstances. In spite of
the legal view of the High Court and the Supreme Court being conveyed to the trial court, the
learned judicial officer writes the circumstances of the case differently and dismisses the bail
application mechanically. But when the matter reaches the High Court, it writes in the bail
order without reacting to it that in our opinion it seems appropriate to grant bail. This makes
the case entirely of judicial discretion. Thus, despite having constitutional rights, the accused
has to wait for 90 days to present the charge sheet for hearing the bail petition, then is forced
to wait for one to two months for hearing in the High Court. In its 154th report10, the Law
Commission of India reviewed the arrest method and supported the conclusion drawn in the
third report of the National Police Commission that the majority of the arrests were related to
large small prosecutions and, therefore, should not be considered necessary in terms of crime
prevention. Based on the conclusion that more than 60 percent of arrests were unnecessary and
42.3 percent of prison expenses are due to such arrests, the National Police Commission
recommended that arrests be justified during the investigation of a cognizable offense if:

The case should be about serious crime like murder, robbery, robbery, rape etc. and arrest of
the accused and blocking his transmission is necessary to instill confidence in the victims of
terrorism.

There is a possibility of the accused absconding and impeding the process of law.
 0107

The accused behaves furiously and is likely to commit further offenses until his transmission
is brought under restriction.

The accused is habitually criminal and is likely to commit similar offenses until he is kept in
custody.

The Supreme Court of India opined in Jogindar v/s Uttar Pradesh State11that the power of
arrest should not be exercised in a moral manner. The Supreme Court also determined that no
arrest should be made without a reasonable belief in the goodwill of the complainant and
without investigating the need for arrest. The guiding principles laid down in the Joginder
Kumar case got legal shape by the Act of Criminal Procedure Code (Amendment) Act, 2008
(5 of 2009). Section 41 of the Code of Criminal Procedure, 1973 was amended to limit the
power of arrest for cognizable offenses for which the punishment is seven years or less. The
amendment further prescribes that the police officer shall record his reasons for making the
arrest or not. Thereafter, the method of arrest without a warrant must be based on compatibility
'probabilistic'. It depends on the facts and circumstances within the officer's knowledge and
information that should be reasonable and reliable. Life and liberty have been given the highest
position in the Indian Constitution. There has always been a conflict between Article 21 of the
Indian Constitution and the bail provisions of Criminal Procedure Code Sections 437, 438, 439.
In criminal cases, bail is the rule and judicial custody is the exception. The different judicial
approach of the country's top courts and the trial court has made the law of bail disputed. The
difference between the constitutional provision and the law of bail is clearly visible in the order
related to the bail of the trial court and the Supreme Court. The Supreme Court says that there
is no such offense in the Criminal Law wherein bail cannot be granted but the status of the trial
court has been established by a court which can sentence but cannot grant bail. The trial judge
asks his lawyer why the court sentencing cannot grant bail. Seeing the condition of women
prisoners under consideration in the district jail, this question seems troubling. Why do the trial
courts conduct the opposite in cases where the Supreme Court and the High Court can grant
bail? In both the cases of women and men, the trial court mechanically rejects the bail
application. The matter becomes a matter of debate when the High Court of India rejects the
bail application of the MLA, MP and Minister for bail. The supremacy of constitutional law
and the order of mechanically rejected bail come into the question. If detailed study and
research is done on the bail law of the Supreme Court, High Court and Trial Court, then the
judicial approach is different at every level. Both the Supreme Court and the High Court pass
 0108

an order of bail interpreting Article 21 of the Constitution, while the trial court continues to
dismiss the mechanized deposition petition repeating the circumstances of the case and the
seriousness of the offense. The role of the trial court appears to be to dismiss the bail plea when
she dismisses the women's bail petition like other petitions without mentioning any judicial
view. Every case of crime is of a different kind, but the order of dismissal of the bail petition
is almost the same, which is written mechanically. Since the offense is of serious condition,
granting of bail does not seem appropriate, the writ court dismisses the bail petition even in
cases where the offense is not initially constituted and in case of acceptance of documents
submitted by the police. Even the accused cannot be sentenced. The Supreme Court's legal
approach does not follow the trial court in bail related cases.

Despite being informed of the High Court's legal approach to the trial court, the learned judicial
officer writes the circumstances of the case differently, dismissing the bail application
mechanically. But when the matter reaches the High Court, without reacting to it, it writes in
the bail order that in our opinion it seems reasonable to grant bail. This makes the case entirely
of judicial discretion. The common man pays for the difference in judicial discretion. In a case
contemplated by a Magistrate Court, the accused has to seek asylum from the High Court for
bail and stay in jail for three to four months in judicial custody. Despite having the
constitutional right, the accused has to wait for 90 days to present the charge sheet for hearing
the bail plea, then is forced to wait for one to two months for hearing in the High Court. The
number of bail petitions pending in the High Court indicates the dreaded situation. There is a
huge difference between the daily rate of appearance of bail petitions and the rate of redress in
the High Court. It has now been established that the trial court rejects the bail plea and the High
Court accepts most of the bail pleas on the basis of merit defect in which the arguing role of
the lawyer is secondary. This situation gives big business opportunity to the lawyers practicing
in the High Court.

 Criticism of bail based on money:

One of the criticisms frequently raised on the bail system is that it is based on money because
even after various reforms in the penal law, it is the surety that discriminates against poor
people. Financially sound individuals can easily succeed in purchasing their freedom while
poor people suffering from financial bail system stay in prison because they cannot get money.
In fact, the ability to pay is the only factor in deciding who is freed and who is in prison. The
natural impropriety of this method raises the question whether such a method is actually
 0109

practical. The judgment of the Supreme Court in the case of Rudal Shah v. State of Bihar217 is
an eye-opening incident of the worst example of state executive inaction regarding the status
of poor people. He was released from prison after 14 years, ie on 16 October 1982, despite
being acquitted of all charges by the competent penal court on 3 June 1968.

 Developing countries

Canada: - The Canadian law of bail is derived from the principles of bail which evolved
in the English common law. In particular, the right to be released without excessive bail was
enshrined in the English Bill of Rights, which was part of the law of the colonies in British
North America. Prior to Confederation in 1867, the individual colonies each had the authority
to enact local laws relating to bail. After 1867, the Parliament of Canada acquired exclusive
jurisdiction over the criminal law, including the law of bail. The first major federal legislation
with respect to bail was included in the criminal legislation package of 1869. In that law, the
federal government made bail discretionary for all offences. This provision was subsequently
subject to much judicial interpretation, as it made the granting of bail highly discretionary for
each justice of the peace. It also placed considerable emphasis on cash bail, making release on
bail dependent on the individual's financial resources, rather than factors such as likelihood of
appearing to answer the charges. The next major statutory change to bail in Canada was the
1960 Canadian Bill of Rights which provided for a "right to reasonable bail". This provision
was subsequently used by the courts to rule, for the first time, that the Extradition Act included
a right to bail.

Conditions of release

The court can impose conditions on release, requiring the accused to comply with one or more
of the following conditions;

report at a certain time to the police,

remain within the territorial jurisdiction,

notify the police of any change of address, employment, or occupation,

217
Rudal Shah v. State of Bihar
 0110

abstain from communicating, directly or indirectly with certain individuals,

refrain from attending certain locations,

deposit their passport,

comply with any other condition the court considers necessary to ensure the safety of any
victim or witness, and

comply with any other reasonable condition the court considers desirable.

If the accused is charged with one of the following offences, the court is required to prohibit
the accused from possessing any firearm, crossbow, restricted weapon, or prohibited weapon,
unless the court considers that such an order is not required:

an offence with the commission of violence, attempted violence, or the threat of violence,

a terrorism offence,

criminal harassment,

intimidation of a justice system participant (victim, witness, etc.),

certain offences under the Controlled Drugs and Substances Act,

an offence that involves a firearm, crossbow, restricted weapon, or prohibited weapon, or

certain offences under the Security of Information Act.

If the accused is charged with one of the following offences, the court is required to consider
whether conditions are necessary to protect the victim or witnesses of the offence:

a terrorism offence,

criminal harassment,

intimidation of justice system participant,

an offence with the commission of violence, attempted violence, or the threat of violence, or
 0111

certain offences under the Security of Information Act.

New-Zealand: - A Supreme Court was first established in 1841 (it was renamed the High
Court in 1980, and is different from the current Supreme Court), and various lower courts
subsequently established. Its establishment followed the arrival in New Zealand of the first
chief justice, William Martin, and it heard its first case in January 1842. The magistrates' courts
came into being in 1846 (replaced by district courts in 1980). The Court of Appeal was set up
in 1862 and originally consisted of panels of judges from the Supreme Court. The Court of
Appeal was the highest court in New Zealand, although appeals could be taken from this to the
Judicial Committee of the Privy Council in London. In 1957 the Court of Appeal was
reconstituted to become separate from the Supreme Court, having its own judges. In 2004 a
new Supreme Court was established, becoming New Zealand's court of last resort following
the simultaneous abolition of the right to appeal to the Privy Council.

In 1865 a Native Land Court was established to "define the land rights of Māori people under
Māori custom and to translate those rights or customary titles into land titles recognisable under
European law". It has since been heavily criticised for acting as a device for removing Māori
from their land. Some of the problems were with the court itself – holding proceedings in
English and in cities far from Māori settlements, judges with inadequate knowledge of Māori
custom – while others were more to do with the laws it enforced. For example, for many
decades land law did not recognise that an entire hapu owned its land, and land ownership was
put in the hands of a few people. In 1954 it was renamed the Māori Land Court, and has been
substantially reformed since the nineteenth century. Until the mid-twentieth century it also
dealt with Māori adoptions. The New Zealand judiciary have generally been seen as
independent and non-corrupt, although not always non-biased. Until recent years they have
played a very minor role in developing the law, and as late as 1966 it was said that they "usually
follow English decisions scrupulously".[19] In the 1980s the judiciary played a major role in
redefining the constitutional position of the Treaty of Waitangi.

The New Zealand legal system is heavily based on the English law, and remains similar in
many respects. As with all common law countries, English law is organised around the
doctrines of precedent (like cases should be decided alike) and stare decisis. These principles
dictate that lower courts must follow the decisions of the more senior courts in the judicial
hierarchy. This encourages consistency of decision-making.
 0112

United Kingdom: - Bail in the United Kingdom is the practice of releasing individuals from
remand subject to certain conditions which are designed to enable criminal justice outcomes,
primarily trials and police investigations, to be completed efficiently and effectively. The right
to bail is guaranteed in a wide range of contexts but is not absolute. The legal systems of
England and Wales, Northern Ireland and of Scotland each deal with bail in similar but distinct
ways. Bail can be granted by the courts, the police and certain other criminal justice authorities
including the Serious Fraud Office (SFO) and Financial Conduct Authority (FCA).

Bail in this context is distinct from the bail bonds system applied in the United States and the
approaches of the two systems differ markedly. The United Kingdom's approach to bail is more
comparable to other common law jurisdictions including Canada, Australia, New Zealand and
a number of Commonwealth nations alongside British Overseas Territories, to which English
law applies directly.

Right to Bail: - The Bail Act 1976 created a qualified right to be granted bail before
conviction, except for when certain factors apply. This does not guarantee a person will get
bail, but it places the onus on the prosecution to demonstrate why bail should be refused in
preference to custody: General right to bail of accused persons and others.

(1) A person to whom this section applies shall be granted bail except as provided in Schedule
1 to this Act.

(2) This section applies to a person who is accused of an offence when— (a) he appears or is
brought before a magistrates' court or the Crown Court in the course of or in connection with
proceedings for the offence, or (b) he applies to a court for bail or for a variation of the
conditions of bail in connection with the proceedings. — Section 4 Bail Act 1976 Section 4 is
not explicitly incorporated into the provisions affecting police bail, however, the individual
parts of PACE, notably s34 and s37, incorporate the principle in substance if not form. There
are two types of bail - conditional and unconditional. Unconditional bail means that the only
requirement attached to the bail is to attend a court at a specified date and time. Conditional
bail will attach further requirements to a person's bail designed to reduce their likelihood of
committing further crimes, interfering with an investigation or absconding. This may be done
by the police or a court. Police bail is more limited than court-imposed bail. Failure to meet
bail conditions, including the requirement to attend court which applies in 'unconditional bail'
cases, may result in a warrant being issued by the court for the bailee's arrest.
 0113

Exclusions of the Right to Bail: - The modern law retains some of the historic exclusions
to the right to bail. Section 25(2) of the Criminal Justice and Public Order Act 1994 establishes
that the right to bail is excluded in cases of murder, attempted murder, rape and certain sexual
offences where the defendant has already been convicted of one or more of those offences. Bail
may still be granted in these cases, but only in exceptional circumstances. This is as opposed
to most offences, where there is a presumption that bail will apply unless there are particular
reasons not to grant it as specified in the legislation. In some cases, drug related offending, by
a person who has previously failed to engage with a drug testing regime, will also fall under
the exclusion of the right to bail.

 Least developing countries

Bangladesh: - As a Bangladeshi citizen of the country, every person has the right to
justice. If he gets involved in a criminal case, he has to appear in court and take bail. There are
two types of bail. One is anticipatory/advance bail and the other is interim bail. However, how
to get bail and what is bail is discussed below.218

Anticipatory Bail & Interim Bail in Bangladesh; - The bail that he takes from the Sessions or
High Court division of the Supreme Court of Bangladesh to avoid arrest after a case is filed
against him is usually called anticipatory bail. The bail that is taken while the case is pending
in jail is called interim bail. When a person is granted bail in anticipation of arrest or in
anticipation of arrest, it is called Anticipatory Bail. The accused can take bail from the court
before arrest. As an exception to the general rule of bail, such bail is granted under the exclusive
jurisdiction of the High Court. When a person has reason to believe that he or she may be
arrested for a non-bailable offense, the High Court, if he or she deems it appropriate to apply
to the High Court Division, will at that time order anticipatory bail to prevent the person from
being arrested in the future. There is no specific provision in the law for granting anticipatory
bail. Explaining Section 497 of the Criminal Procedure Code, the court continued to grant
anticipatory bail. Therefore, one has to apply for anticipatory bail in accordance with Section
497 of the Criminal Procedure Code. The wording of this section may direct the High Court
Division to grant bail to any person; Only the High Court Division explains this part.219

218
https://unctad.org/topic/least-developed-countries/list
219
Unctad report.
 0114

How to conduct bail hearing?

In order to get anticipatory bail, the applicant has to prove in court that he is disgusted with the
government and fears arrest. He must show that the state wants to arrest him with malicious
intent and that this could cause irreparable damage to his reputation and freedom. In a 1973
PLD case, it was stated that the police had to prove in court that they wanted to arrest him for
political motives. In a 1985 case, a full bench of the Appellate Division ruled that a person
could be granted anticipatory bail if he or she feared being involved in a malicious case for the
purpose of belittling someone. However, in order for the accused not to leave the country and
to appear only as directed by the court, he has to be careful in granting bail in advance.

Tanzania: - Bail is a security required by the court or police for the release of an Accused
person or a prisoner who must appear in Court or police station in a future time. The security
given can be in form of cash, bond, or word from a reputable surety. In Tanzania bail can be
sought and be granted by only two institutions.220

i. By Police- The Criminal Procedure Act gives power of granting bail to police.
However, police bail can only be obtained when the matter yet to be instituted
before the Court of law.
ii. By the Court- When the case is instituted before the court of law, police power to
grant bail is curtailed. Under this situation bail can only be sought in court.

In that sense it is very clear under the Tanzania legal position, that there are bailable offences
and non-bailable offences. And bail can only be granted on bailable offences. For bailable
offences bail is a right though it is not an absolute right because it depends on court discretion
and fulfilment of bail conditions. The decision on whether to grant or not to grant bail rests on
the court. Right to bail draws its genesis from the principle of presumption of innocence which
is enshrined under Art 13 (6) of the Constitution of the United Republic Tanzania. Mwisumo,
J stated ―Bail is a right and not a privilege to an Accused person.‖ Therefore, under our law
accused person is entitled with right to bail. From that premise it is therefore argued that denial
of bail to an accused person without legal justification amount to infringement of constitutional
right. In Tanzania bail can be sought during trial and after trial when a person has been

220
Tanzania legal system wiki.
 0115

convicted and intends to Appeal. Bail during trial is commonly known as bail pending trial.
And bail after conviction and after appealing is called bail pending Appeal.221

Bail Pending Trial: - This is kind of a bail which is sought in court proceeding when the trial
is yet to be determined or when judgment is not yet to be given. For a person to be granted this
bail, the offence itself has to be a bailable offence not mentioned in section 148(5) (a) of
Criminal Procedure Act. Not only that, there are other conditions which focus on the Accused
and his general previous conducts.

The following are other condition to be put into considerations;

i. Having reliable sureties

ii. Readiness to comply with bail conditions

iii. Having no record of previous imprisonment for a period exceeding three years

iv. Suffering from diseases such as diabetes and high blood pressure

v. Accused‘s own safety or protection

This bail is provided under section 148(1) Criminal Procedure Act. The court has power to
grant bail however, in-case the DPP certify in writing that granting Bail to the Accused is likely
to prejudice safety or interest of the Republic, which will be a sufficient ground for the court
to deny bail to the Accused. When a person wants to apply for a bail in Tanzania, he/she must
consider nature of the offence as to whether it is bailable or non-bailable offence. Non-bailable
offences have been provided by s.148 (5) (a) Criminal Procedure Act. From that premise a
person would only be granted Bail if the offence is a bailable offence.

Myanmar: - A Myanmar court rejected bail Thursday for an independent newspaper editor
and a satire columnist who were detained last week over an article that allegedly insulted the
armed forces under a controversial telecommunications law, sparking a protest campaign from
fellow journalists who say it curbs free speech. Kyaw Min Swe, editor-in-chief of The Voice

221
Ibid.
 0116

Daily, and the newspaper's satire columnist who writes under the pseudonym "British Ko Ko
Maung," were detained on June 2 under Article 66(d) of the Telecommunications Law, which
prohibits the use of the telecom network to defame people. Violators are subject to a jail
sentence of up to three years and a fine.

"According to the Criminal Code, Section 497/1,222 they can be let out on bail, but their bail
requests were rejected. The judge asked us for more documents and we produced more
documents, but then he said he can't wait to receive more documents to support bail because
they have to be sentenced as soon as possible," Myo Thein, lawyer for Kyaw Min Swe and
British Ko Ko Maung, told RFA's Myanmar Service. A second lawyer and advisor to the pair
of journalists said denying bail to the editor and satirist for charges that can carry a maximum
of three years was unlawful, when bail is granted for people facing much stiffer terms of 5-10
years. "We don't know and can't say whether there is an organization or a group that influences
the judicial sector, but what we can say is that people in the judicial sector are working in ways
that go against current laws.223 We will submit what we see to higher-level organizations to
deal with this misuse (of law)," said lawyer Khin Maung Myint. The next court hearing for the
two men will be on June 16, and their lawyers will again seek release on bail. British Ko Ko
Maung had written a piece entitled "Oath of the Nation of Bullets" that mocked "Union Oath,"
a military propaganda film that aired on the military-owned Myawaddy TV channel to coincide
with Armed Forces Day on March 27. Lieutenant Colonel Tun Tun Oo of the Yangon regional
command initially filed a complaint with the Myanmar Press Council charging that the piece
offended the dignity of the armed forces, according to a report by the online news agency
Democratic Voice of Burma (DVB). The council mediates disputes involving the press. The
Voice Daily issued an apology on May 14, but the military filed charges on May 17 at Bahan
Township Police Station in the commercial capital Yangon. In response to the case, more than
100 Myanmar journalists gathered on Tuesday in Yangon to call on the government to drop
lawsuits filed against reporters under Article 66(d) and formed a 21-member Committee for
the Protection of Journalists to demand that the government, parliament, and the military
abolish the law. On Thursday they launched a 10-day white armband campaign called
"Freedom of the Press" to agitate for the repeal of the article and the drive quickly spread to
other Myanmar cities, including Mandalay, where reporters fanned out and distributed
pamphlets in plazas and markets. "We write news articles on print media which are properly

222
Criminal Code, Section 497/1,
223
Myanmar constitution wiki.
 0117

registered, but when we post these articles online, we are arrested and charged under 66(d). We
are joining this campaign as we are media people and to show our stand for media people,"
said Min Din from the Mandalay Era Journal. "I am joining this campaign to show my will to
amend Section 66 D and to reform the Myanmar Media Council as we don't think it stands up
for reporters," said San Yu Kyaw, an official at the Mandalay Journalism School. The
Irrawaddy online news service reported that journalists and supporters from Saigaing Division
in north-central Myanmar also joined the white armband campaign and called on the
government to review the Telecommunications Law. Rights groups argue that the defamation
provision of Myanmar's Telecommunications Law has been used to silence criticism of the
government, military, and Buddhist leaders, and should be dropped. The Voice Daily case
brings the number of people who have been charged under Article 66(d) to 56 under the
National League for Democracy (NLD) government.224 So far, seven of them have been
sentenced to jail.

Conclusion

In India, where a person is accused of a serious crime and is likely to be convicted and punished
severely for such a crime, he would be prone to abscond or jump bail in order to avoid the trial
and consequential sentence. If such person is under arrest, it would be rather unwise to grant
him bail and restore his liberty. Further, where the arrested person, if released on bail, is likely
to put obstructions in having a fair trial by destroying evidence or by tampering with the
prosecution witnesses, or is likely to commit more offences during the period of his release on
bail, it would be improper to release such a person on bail. On the other hand, where there are
no such risks involved in the release of the arrested person, it would be cruel and unjust to deny
him bail.

Judicial Approach

Analysing the statutory provisions and observation of the Apex Court, it may be submitted that
though the Magistrate has the power to grant or refuse the bail, yet it is his duty to follow
judicial observations, he has to act judicially not to be affected by personal whims. As stated

224
National League for Democracy (NLD)
 0118

earlier, the Code of Criminal Procedure divides the offences in to two categories under
Schedule 1. In respect of bailable offences, the accused under Section 436 has the right to be
released on bail and in respect on non-bailable offences, Section 437225 of the Code amended
by the Act of 1980 lays down the provisions regarding the circumstances under which the
Officer In Charge of the Police station of a court other than a High Court or a Court of Session
can release any person accused or suspected of committing any of the non-bailable offence
when arrested or detained without warrant by Officer-in-Charge of a police station. In respect
of bailable offences there is no question of discretion in granting bail, as the wording of the
section is imperative. Therefore, when any person accused of a bailable offence is arrested or
detained without warrant by the officer In-charge of the police station and is prepared at any
time while in the custody of such officer to give bail, such person shall be released on bail. So,
it is a general rule that the bail is to be granted in bailable offence, it to refuse in very rare cases.
In K. Joglekar v. Emperor,226 it was held that there is no hard and fast rule regarding the
discretion of Magistrate in granting bail. The only principle is that there should be a careful
exercise of that discretion. The discretion should be used in the interest of justice. Justice
Bhagwati also reiterated the same in Kashmira Singh v. State of Punjab227 It would be travesty
of justice to keep a person in jail for a period of five or six years for an offence which is
ultimately found to have not been committed by him. Can the courts ever compensate him for
incarceration which is found to be unjustified.

Factors into Consideration While Granting Bail

Therefore, the Courts in India have adopted liberal use of discretionary power of bail in order
to avoid the long pre-trail incarceration. The Courts in India usually keep the following factors
into consideration while exercising their discretionary powers:

1) The nature of accusation.

2) The nature of the evidence in support of the accusation.

3) The severity of the punishment which conviction will entail

225
Crpc 1973 sec437
226
AIR 1931 All 504.
227
1977 AIR 2147 1978 SCR (1) 385 1977 SCC (4) 291.
 0119

4) Whether the sureties are independent or indemnified by the accused.

On the other hand, if the crime charged is of the highest magnitude and the punishment for it,
as assigned by law is of extreme severity, in such a case the court may reasonably presume that
no amount of bail would secure the presence of accused at the stage of judgment.

Regarding the monetary surety in furnishing the bail, the Supreme Court in Moti Ram v. State
of M.P.228 made it clear that the magistrate should abandon the antiquated concept under which
pre-trial release could be ordered only against monetary bail. The Court held that monetary
concept is out-dated and experience shows that it has done more harm than good. If a magistrate
is satisfied after making an inquiry into the condition and background of the accused that the
accused has got these roots in the community and is not likely to abscond, he can safely be
released on order to appear. Explaining the negative effects of monetary bail system, Justice
Bhagwati cautioned that the poor find it difficult to furnish bail and highlighted that poverty
and been transformed into crime and subordinate Courts have forgotten that 22,000 persons
whom they sent to jail were languishing in prisons not because they were guilty but because
they were too poor to afford bail. Justice Bhagwati further laid down a test to determine ―roots
in society‖. He emphasized upon the following factors to be kept into account:

1) His residence in the society.

2) His employment, status, family ties and relationships.

3) His reputation, character and monetary position.

4) His prior criminal record.

5) The identity of responsible members of society who would vouch for his reliability.

6) The nature of offence charged the apparent probability of conviction and the likely sentence.

228
Moti ram v. state of m.p.1978 AIR 1594, 1979 SCR (1) 335.
 0120

7) Any other factor indicating the ties of the community or bearing on the risk of wilful failure
to appear.

The accused, therefore, in appropriate cases, after considering the above factors, should be
released on his personal bond without monetary obligation. As deprivation of one‘s personal
liberty for the reason of financial poverty only is an incongruous element in a society raised on
the pillars of equality and social justice assuring dignity of individual‘s life.229

Finally, it may be submitted that bail was not inserted in the Indian Constitution as a
fundamental right, but by judicial activism it has been implicit in Article 21 as component of
personal liberty. But the bail system in India suffers from property-oriented approach and is
conspicuous of the erroneous assumption that the risk of monetary loss is the only deterrent
against fleeing from course of justice. Thus, it is submitted that the court must abandon this
antiquated approach under which pre-trial release is ordered only against bail sureties. Thus,
the focus of judicial discretion in bail should always be upon the aspects of personal liberty
and equality of the individual provided under Articles 14, 19 and 21 of the Constitution of
India.230
The bail amounts ought not to be excessive and the demand for verification of surety should
not be unreasonable.231 The amount can be changed with change in circumstances. Though the
amount can be changed with change in circumstances. Conditions may be imposed on the
accused about his attendance in the Court on a fixed date and place. A condition requiring daily
attendance in the Court is, however, illegal. Thus, the magistrate directed the accused in a
bailable case that he should report daily twice to the commissioner of police, the order was
repugnant to the provisions of the code. However, no statutory limits exist on the amount of
bail bond or the number of sureties that may be required. The entire matter is left to the
discretion of the Court without giving any guidelines. The imposition of conditions can,
therefore, be in the nature of prescribing certain requirements to be fulfilled for securing a
release. A condition imposed must have a bearing with the nature or purpose of the bail, which
for all practical purposes is a process of the system of criminal justice besides being a mode to
secure the accused‘s freedom. Thus, an order that the accused would appear on the requisition
by the police when needed is a competent order, or a direction to attend to investigation when

229
Ibid.
230
Janak Raj Jai, Bail Law and Procedures, 6th edition, University Law Publishing, 2015, p. 294.
231
Moti Ram v. State of M.P., AIR 1978 SC 1595.
 0121

needed is valid. Precedents continue to show that it is well within the Court‘s jurisdiction to
impose some restrictions on the freedom secured by an accused who has been granted bail,
irrespective of the fact restrictions really relate to the purpose of the bail or not. Unreasonable
restrictions on freedom, however, cannot be justifiable imposed in any case. A court cannot
impose conditions which may restrict liberty of a person.
From the above discussion researcher after analysing the statutory provisions of bail that there
is need of reform because present bail practice is anti-poor. We need a proper implementation
of guidelines specified by our judiciary. Thus, High Court or Court of Session have been given
special powers to grant bail. However, the bail powers are not to be exercised in a casual and
cavalier fashion. The Supreme Court has laid down a number of tests and guidelines in this
regard to protect the liberty of the citizens.
 0122

CHAPTER 6
CONCLUSION AND SUGGESTION

Analysis of the study

Law of bail should balance between two conflicting demands of the society as a whole.
Shielding the society from misadventures of the persons allegedly involved in crime and
presumption of innocence of the accused till he is found guilty.232 The courts below are
supposed to be guided by the principle ―Bail is the rule and jail is an exception‖ but that
exception is further subject to an exception that the provisions of bail should not be interpreted
only for the benefit of the accused but also for the benefit of the prosecution as well as for the
benefit of the society at large, which can also be affected directly or indirectly with the
commission of an offence against the society. In a conflict between social security and
individual liberty,233 court need not sacrifice security of the society at the altar of individual
liberty. While considering the applications for bail, the courts are supposed to apply some tests,
such as the nature and seriousness of the prosecution. The nature of evidence in support of the
prosecution, the severity of the punishment which the conviction will entail, the character,
behaviour and standing of the accused, a reasonable possibility of the presence of the accused
not being secured at the trial. While disposing of the bail applications, it is also the law that the
Courts are supposed to be guided prima facie by the allegations of the prosecution. The courts
need not and invariably should not enter into defenses which might be taken by the accused
unless those defences can throw a light about the genuineness or otherwise of the allegations
of the prosecution. In case the above principles of law are kept in view while disposing of the
bail applications, the scope of committing an error on the part of the subordinate Courts
becomes too remote.
The court is normally required to consider the following things at the stage of
consideration of bail:
(1) The nature and seriousness of the accusation;

(2) Severity of the offences;

(3) Nature of the evidence collected and the character and behaviour of the

232
Ramesh v. State of Haryana, 1997 Cri LJ 2848
233
K. Muthuramaligam v. State, 1997 Cri LJ 3501
 0123

Accused;

(4) Chances of the accused absconding and not being available during the Trial;

(5) Possibility of repetition of such crime:

(6) Chances of the accused of tampering with evidence and witnesses; and Last but not least.

(7) Larger interest of the people and the State.234

The Court should mainly consider two aspects while considering the bail applications, the
seriousness of the offence and the interest of the society at large. For grant of bail, the two
paramount considerations viz., the likelihood of the accused fleeing from justice and his
tampering with prosecution evidence relating to ensuring a fair trial of the case in a Court of
justice are relevant. It is essential that due and proper weight should be given on these two
grounds upon other factors. The Court shall consider the important circumstance to consider
the application for bail whether accused will flee from justice or tamper with the prosecution
evidence in the event of bail. These are the two important factors which are holding the field
of granting bail even today.235 Contradictions and confusions colour the law of bail in our
country. The provisions as to bail as contained in our Code of Criminal Procedure present a
legislative policy, which is inchoate and full of blanks. Discretion conferred on courts in
matters of bail,
which is nearly unbounded legislatively, is judicially also so free that, despite the long list of
considerations, it becomes difficult to rationalize the exercise of discretion one way or the other
in a particular case. It is debatable whether the existing statutory provisions, also analyzed in
the light of the judicial guidelines prescribed by the Supreme Court and various High Courts
to govern the discretion in the matter of ‗Bail or Jail‘, constitute ‗reasonable, fair and just‘ law
under Article 21 of our Constitution Out of several considerations, two of them are uppermost
which are to be weighed for the purpose of grant or refusal of bail. First is that whether the
accused will be available for trial and not flee from justice. And the second one is that he will
not influence witnesses and tamper with evidence. The two essential considerations would be

234
Mohammad Masood v/s State of Karnataka,2002 Cr LJ 1381
235
M.Krishnaappa v/s State of Karnataka,1992 Cr LJ 2648.
 0124

very decisive factors in exercising the judicial discretion of granting or refusing bail; they being
likelihood of accused fleeing from justice and his tampering with prosecution evidence, relating
to ensuring fair trial of the case. It is essential that due and proper attention should be given on
these two factors. The court while granting bail to an accused should consider among other
circumstances, the following factors necessarily before granting bail:
(a) The nature of crime and the severity of punishment in case of convocation
and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witnesses or apprehension

of threat to the complainant.

While granting bail, the Court is duty-bound to consider all the statements recorded under
Section 161 Cr. P.C., examine the gravity of the offence and also examine the question of
possibility of the accused tampering with the evidence and possibility of getting the attendance
of the accused during trial and then would be entitled to grant bail to an accused.

Liberty occupies a place of pride in our socio-political order. And who knew the value of
liberty more than the founding fathers of our Constitution. That is why they provided in Article
21 of the Constitution that no person shall be deprived of his personal liberty except according
to procedure established by law. It follows therefore that the personal liberty of an individual
can be curbed by procedure established by law. The Code of Criminal Procedure, 1973, is one
such procedural law. In cases of under-trials charged with the commission of an offence or
offences the court is generally called upon to decide whether to release him on bail or to commit
him to jail. This decision has to be made mainly in non-bailable cases, having regard to the
nature of the crime, the circumstances in which it was committed, the background of the
accused, the possibility of his jumping bail, the impact that his release may made on the
prosecution witnesses, its impact on society and the possibility of retribution, etc. As per 268th
report of law commission of India 67 percent of the prison population is awaiting trial in India.
Inconsistency in bail system may be one of the reasons for the over-crowding of prisons across
the country and giving rise to another set of challenges to the Prison Administration. Freedoms
as guaranteed under Part III of the Constitution has a unique relation with the ideas and
objectives enshrined in the Preamble of the Constitution of India i.e., Justice – economic, social
and political. It remains one of the solemn duty of the republic and its realisation in its full
sense is one of the cherished goal. The right of a fair trial requires moderation not only to the
 0125

person accused of an offence, but also consideration of the public and society at large as
represented by the State. It must also instil public confidence in the criminal justice system,
including those close to the accused person, and those affected by the crime.

Contradictions and confusions colour the law of bail in our country. The provisions as to bail
as contained in our Code of Criminal Procedure present a legislative policy, which is inchoate
and full of blanks. Discretion conferred on courts in matters of bail, which is nearly unbounded
legislatively, is judicially also so free that, despite the long list of considerations, it becomes
difficult to rationalize the exercise of discretion one way or the other in a particular case. It is
debatable whether the existing statutory provisions, also analysed in the light of the judicial
guidelines prescribed by the Supreme Court and various High Courts to govern the discretion
in the matter of ‗Bail or Jail‘, constitute ‗reasonable, fair and just‘ law under Article 21 of our
Constitution.

Verification of hypothesis

A possible first step to remedy this situation could be a legislative reconsideration of existing
bail provisions. This would entail an amendment of the existing law by incorporating additional
safeguards and expressly laying down its policy against unnecessary detention and excessive
bail, whether in the CR.P.C. itself or in the ―Statement of Objects and Reasons‖ of the
Amending Act. As explained earlier, the problem with bail jurisprudence in India is not so
much the absence of rules, or even clearly defined rules. It is with the courts not paying
sufficient heed to both the text and purpose of the law and previous judgments of the Supreme
Court. Clarifying the objectives of bail through an Explanatory Note or Statement of Objects
and Reasons will thus, help set a benchmark, which is easy for judges to follow. In this context,
it would be instructive to analyse the American standard under the Bail Reform Act requiring
―clear and convincing‖ evidence that the accused had violated stipulated bail conditions.38
Although limited to cases of revocation of bail, and not applicable to police arrests,39 the
American standard and its use in case law provides an interesting alternative to the standard of
proof applicable. Consequently, in the articulation of their orders on bail, judges must relate
reasons such as nature of crime or severity of charges to their assessment of the accused‘s
potential for interfering with the judicial process, and should not act on perceived public
interest. Even otherwise, the law should be interpreted to require courts to regularly determine
whether the reasons advanced by the State for continued incarceration are justified, especially
 0126

if the trial is prolonged. This will resolve questions pertaining to their institutional competence
to deny bail by presuming guilt based on a prediction of the accused‘s future acts, while
simultaneously preserving their discretion. The prosecution too, must bear the burden of
proving that public interest considerations outweigh the presumption of innocence and right to
civil liberties. After all, if an accused has cooperated during investigation and regularly
attended trial, how can the Court assume that he/she will not continue doing so and what proof
can they adduce to rebut this adverse presumption.

Suggestions

(i) Formulation of bail provisions in the Code may alone be not sufficient to make the
system of bail functions 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 warrant. Such
an effort alone can help in fulfilling the pre-conditions required for smooth
operation of the bail system. Urgent attention in this regard is needed towards the:

a) Proper functioning of police power,

b) Developing the devices to control the police power

c) Speedy trial of the accused, and

d) Availability of legal aid and legal service from the preliminary stage for the terminal
end of criminal process.

(ii) Performance 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. In view of the
emergence of certain issues under the Human Rights jurisprudence, specific
mention of arrangements has become necessary about dealing the cases of minors,
lunatics, and those detained for preventive purposes under special laws.
 0127

(iii) Procedural lucidity and comprehensiveness are required in the existing statutory
bail scheme. The reformation of bail law is must; therefore, replace this vagueness
and uncertainty by clarity and coherence.

(iv) Also, there should be an active effort to eradicate poverty and spread education
because poverty is the root of most of the crimes. If this problem is solved there
will be fewer disputes hence less no of under-trials languishing in jail.

(v) Also, the number of Courts should be increased and the vacant seats of the judges
be filled up immediately. The numbers of Courts are not adequate enough to dispose
all the cases. Its inadequacy results in pending of cases. And vacant post of the
judges adds to the problem. vi. Rationalism of the law of bails requires thinking on
the basic premises in favour of the grant of bail with risks appurtenant to it, as well
as the determining of factors relevant to assessment of risks.

way out for the bail in Indian legal system

Two important aspects of the bail process must be taken into consideration while formulating
a new bail law. They are:

(a) the police power to grant bail and

(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 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.

(i) Courts should be empowered to impose reasonable conditions but these may not be
statutorily listed only. However, it can be provided that the conditions must have a
bearing to the object and purpose of bail. Viz. ensuring the presence of the accused
 0128

on the appointed day and that he/she does not obstruct the course of justice. A
number of court decisions have already crystallized the factors which are relevant
to assess risks involved in releasing arrested person on bail. These factors together
with other necessary ones may be catalogued to set up discernible criteria for use
by the Courts while exercising their discretion.

(ii) The delayed disposal of criminal cases together with the fact that the accused person
had been enlarged on bail affords opportunity to an accused to approach and
influence witness and also to exploit the gains of dismal memory of the events
narrated by a witness after a long lapse of time. This adversely affects the
administration of criminal law and justice. A prolonged release on bail of an
accused person caused by successive adjournments of trial has the potential of
reducing even the chances of the accused appearing in the Court to receive his
conviction, if found guilty.

(iii) The technical procedure should be favourable to the accused regarding timely
preparation of bail order by the copy agency, so that the bail order should be
implement from the very time of announcement of the same.

(iv) Malimath committee reports have given many powers to police to grant bail. It is
general impression that police is ignorant about law but has only the knowledge of
power. This type of combination is not good. While exercising such absolute power
the interest of the accused may not be protected. There is an urgent need to give
thought to this aspect to avoid misuse of power by the police in granting Bail.

(v) The judges have been given discretionary power to grant or not to grant bail. The
exercise of this power is generally based upon the precedents. But, unfettered
powers given to the judges are generally misused and subject to great criticism. It
has been seen that bails granted by the lower Courts are cancelled by the higher
Courts. There must be definite criteria in this regard.

(vi) There is no statutory limit fixed on the amount of bail bond or number of sureties.
The entire matter has been lost to the discretionary of the Courts. Many persons
 0129

have to remain in jail for want of furnishing bail bonds. The statutory provisions
may be made for each category of cases.

(vii) If the police fail to submit the challan with in the stipulated period as given in
Section 167(2) of The Code of Criminal Procedure, 1973, the accused in custody
becomes entitled for bail. It has been observed that these statutory provisions are
not strictly adhered to. It is statutory duty of the courts to ensure the release of the
accused on bail. The accused may be appraised of his/her right in this regard. A
statutory duty in this regard should be imposed on the Courts.

The technical architecture of the Crime and Criminal Tracking Network and Systems (CCTNS)
scheme may be adapted and utilized to ensure that the person accused of an offence does mark
his appearance, by taking a picture and/or his fingerprints, name, father ‗s name, mother ‗s
name, spouse ‗s name, address, date of birth, mobile number, contact number, driving license,
voter ID, Aadhaar number and criminal history, if any. The Delhi High Court, in the past has
directed the Central Bureau of Investigation to start a cell on criminal records of abductors and
kidnappers. Such kind of extra judicial developments may be used as a catalyst to set up
national criminal databases, link various investigating agencies and judiciary. These links may
call for the active involvement of the Ministry of Home Affairs, facilitated by various state and
national authorities. In such manner, decision making of the Courts, public prosecutors, the
investigation agencies and various other authorities that perform key functions in upholding
the law and deliver justice would aid in their functioning.

The above suggestions are merely outlines for improvement law on bails. A separate legislation
is urgently needed firstly to remove the prevailing confusion and then to law down a sound
mechanism for smooth working of the bail system. It is indeed a major task to overhaul the
existing law of bail.

6.3.1 Future scope and concluding remarks

The jurisprudence of bail follows certain fundamental and principles. The impending
philosophy behind the practice of granting bail is to ensure that the right to life and liberty is
 0130

protected. Bail jurisprudence is based on various principles. But if there could be some
provision that enables an accused of personal representation before the court in case of rejecting
the bail would be a great initiative in protecting the freedom and liberty of the accused. Delays
in granting bail for the accused especially if they are innocent, not only affect the interest of an
individual but it has an impact on the welfare, well-being of the society at large.

Another grey area in the application of bail is that it is granted quite later in the case. This is to
also do with the saturation of cases and the overburdening of the legal system. If at the initial
stage of the case the court finds no prima facie evidence against the accused even in a non-
bailable offence, it should grant bail in the interest of justice. It is pertinent to mention here that
justice delayed is justice denied. Thus, keeping undertrials in jail for a period longer than
required is a violation of their constitutional and human rights.
 0131

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