CHAPTER I

INTRODCUCTION

Introduction

Alcohol and drugs are used to obtain relief from pain and misery and to attain a state of

forgetfulness. NDPS Act was enacted in the year 1985, with a view to consolidate and amend

the law relating to narcotic drugs, incorporating stringent provisions for control and regulation

of operations relating to narcotic drugs and psychotropic substances. To strike a balance

between law offender and lawful persons, bail provisions are incorporated but were made very

stringent and if any person is convicted for possessing or selling contraband of commercial

quantity then he had to face minimum sentence of ten years.

The whole object of the arrest and detention of an accused is, obviously, to secure his

appearance to abide the sentence of law. that being so, except where a statute specifically

requires, the principles which should guide the courts in the exercise of their discretion to grant

bail of not is the probability of the accused appearing to take the trial, and not his supposed guilt

of innocence. Considerations such as the nature of indictment, the nature of evidence and the

severity of punishment awardable, have their relevance only because they effect the livelihood

of the prisoners failing to appear for his trial.

Though section 37 of the NDPS Act which lays down two limitations; one, that the court is

prima facie of the view that the accused is not guilty of the offence and secondly, that he is not

likely to commit any offence while on bail but at the stage of prayer for granting bail it is open

for the accused to rely upon the statutory violation or procedural irregularities of the

prosecution to contend the prejudice caused to him.

In case reported in Ashkar v. State of Kerala, 2019 SCC OnLine Ker 1406 Ker HC. In NDPS

case, Bail application of accused was allowed as he did not possess ‘commercial quantity’ of

psychotropic substance. In case Sukhdev Singh Vs. U. T. Chandigarh 1986 Cr.L.J. 1757

(P&H) in which the Court explain the language of the section 37 (1) (b) that the court must

adopt a negative attitude towards bail but turn positive firstly if it is satisfied that .there are

reasonable grounds for believing that the accused is not guilty of offence under the Act and

secondly that he is not likely to commit any offence while on bail. Both these test must be

satisfied before bail can be granted. Recently, Apex Court, the bench comprising Justices L.

Nageswara Rao and Deepak Gupta in Sujit Tiwari vs State of Gujarat, observed that the case of

the appellant herein is totally different from the other accused. The Court noted that the

provisions of Section 37 of the NDPS Act lays down two limitations; one, that the court is

prima facie of the view that the appellant is not guilty of the offence and secondly, that he is not

likely to commit any offence while on bail. In case reported Vikas Sagar v. State of Himachal

Pradesh, 2019 SCC OnLine HP 1524 decided by Himachal Pradesh High Court by Chander

Bhusan Barowalia, J. granted bail to a 22 year old student for an offence committed under

Section 21 of the Narcotic Drugs and Psychotropic Substances Act. As per the averments made

by him, the petitioner claimed to be innocent and that he was falsely implicated for the case.

In short, the relevant consideration that might be taken into consideration is the background, the

general character and the records available with the police etc. and bail could be granted by

Court of law depending upon the facts and circumstances of the case. Nature of the offence and

the gravity thereof and also the antecedents of the accused are the relevant consideration for the

court at the time of disposing of the bail application. Even otherwise, grant of bail is a rule and

its rejection is an exception, also that the accused is innocent till guilt is proved. These cardinal
principles of criminal law have to be borne in mind while considering concession of bail.

Bail in law means procurement of release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to legal
authority. The monetary value of the security known as the bail, or more accurately, the
bail bond, is set by the court having jurisdiction over the prisoner. The security may be
cash, the papers giving title to property, or the bond of private persons of means or of a
professional bondsman or bonding company. Failure of the person released on bail to
surrender himself at the appointed time results in forfeiture of the security.1 Bail is a post
arrest remedy aimed at the release of the arrested suspect till the date of his trial. Bail
vindicates the traditional right to freedom before the guilt is proved .Bail is allowed to
prevent confinement of innocent persons which would otherwise result into a pre-trial
punishment and to enable an accused person to prepare his defence to the charges
against him which is the common law principle, presumption of innocence.2

Since the ancient times the system of bail has been practiced by different countries of
the world in accordance to their local legal system, the traces of bail has been seen since
the time of early civilization, it is difficult to mention exact date and time when for the
first time bail was introduced or followed but if we go through different ages of our
world culture we could find the references of bail being practiced in different parts of
the world since their initial time, the signs of bail can be seen since far back from the
time of Greek empire followed by roman evolution and how it has developed since
that time

1
http://www.legalserviceindia.com/articles/bail_poor.htm
2
Asim Pandey, Law of Bail Practice and Procedure, Second Edition, 2015, Lexis Nexis. p. 8.
 to present modern times, now a days almost all the countries have the system of bail in
their criminal procedure system.3

The law of bail is an integral component of the criminal law procedure and the right to
bail is subject to statutory stipulation. The bailable and non-bailable offences are
precisely classified. Though bail can be granted in both categories of offences, the grant
of bail in non-bailable offences is by exercise of discretion, while in bailable cases bail
to be granted as a right to the accused. In Criminal Procedure Code, 1973 nowhere
define bailable and non-bailable cases, rather they have been declared in reference to
the offences simply by declaring that an offence will be bailable and non-bailable as
declared in first schedule or declared in any other law. In the case of any other laws if
the offence is not declared to be bailable or non-bailable as per specific statute then the
2nd classification in 1st schedule of Criminal Procedure Code, 1973 would apply and
accordingly if the offence is punishable is less than 3 year or more is non-bailable.4
Basically in cases of bail it is a matter of balancing of interest between the individual
liberty of accused and the societal interest. Societal interest lies in societal safety i.e. fair
and effective trial, whereas individual interest lies in the personal liberty by granting
bail.5

Bail is mainly the pre-conviction stage involving the personal liberty of a suspected
person. The concept of bail is mainly involve the two opposite interest one is the interest
of the arrestee person which involve the personal liberty to release him from the custody
on some security may be Monterey or may be any other surety. And the other interest is
the interest of the society to protect the society members from the anti-social activities.

1.1 CONCEPT OF BAIL

Literal meaning of bail means security, bond, payment and financial guarantee, bail,
although being a legal term it is used by both people of the society law-

3
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/8/08_chapter%202.pdf
4
The Code of Criminal Procedure, 1973.
5
Supra note 3.
 men and lay-men, however, this has not been statutorily clear. Conceptually, that it is
still interpreted as the assertion, assumption, and denunciation as restrictions put by the
state on freedom of individuals. The main purpose is for the presence of the accused
arrested and is available for punishment if held convicted. If the accused assures that he
will be present at each and every trial for his case then it is quite possible that he would
be released on bail and allowed him his right of liberty during the trial. Bail is one of the
method by which an accused person can be set to enjoy his liberty in order to avoid a
prison sentence. The term bail literally means appearance of the prisoner to release.
With this idea, the word bail has been taken from an old French verb bailer, which
means to give or to deliver. Although another view is that it is a Latin term “bajulare”
which means “to bear a burden”. The bonds in the sureties, as referred to in the above.
Bail is a conditional release on liberty to an accused who ensures that the accused who
or on behalf of whom undertake, is present on the trial.6

1.2 DEFINITION OF BAIL

In Black’s Law Dictionary, bail has been defined as “a security such as cash or bond
especially security required by a court for the release of a prisoner who must appear at
a future date.”7

The law lexicon defined, “bail as the security for the appearance of the accused person
on giving which he is released pending trial or investigation”. 8

Webster‟s Law Dictionary defined “Bail, a temporary release of a person in exchange

for security given for the prisoner‟s appearance at a later hearing”.9

“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

6
Available at http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/7/07_chapter%201.pdf
7
Asim Pandey, Law of Bail Practice and Procedure, Second Edition, 2015 at p. 4.
8
Black‟s Law Dictionary, 4th Edn., p. 177.
9
Webster‟s Law Dictionary of Law, India Edn. 2005, p. 41.
 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”.10

Justice William Blackstone defined it as “a delivery or bailment of a person to his

sureties on their giving, together with himself, sufficient security for his appearance, he
being supposed to continue in their friendly custody instead of going to jail”. Thus,
when a person is released on bail, the person will be produced by him before the court
when so required. The person who is released on bail is also usually asked to execute a
bond for his appearance at a later stage of the proceeding. 11

The Supreme Court in the case of Kamlapati v. State of West Bengal 12, defines bail as
„a technique which is 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.‟

1.3 IMPORTANCE OF CONCEPT OF BAIL

The importance of the instrument of bail can be well imagined from the facts that from
the initial stage of accusation at Police level to Apex Court and right from direction for
anticipatory bail to special powers of high court and court of session to grant bail and
writ of habeas corpus and certiorari have been provided to restore the liberty of the
individual. Instrument of bail is a counter to the interest of society and the individual
interest can be sacrificed for the interest of society. That is why the instrument of bail is
cautiously granted by the authorities. It is Herculean task to keep the balance between
these two contrary rights and the rule of law is the only yardstick to perform this task
judiciously. Rule of law means to follow “procedure established by law” which

10
Venkatrammaiya‟s Law Lexicon, 2nd edition, Vol. I at pp. 260-61.
11
Janak Raj Jai, Bail Law and Procedures, 6th edition, 2015, Universal Law Publishing.
12
AIR 1979 SC 777.
 has its roots to phrase “due process” found in the fifth and fourteenth amendments to the
U.S Constitution.13 Thus, the dominant idea of bail is that the liberty of a person cannot
be lightly interfered with, except in due course of law. The whole object of arrest and
detention of an accused is, obviously, to secure his appearance to abide the sentence of
law. That being so, except where a statute specifically requires, the principles which
should guide the courts in the exercise of their discretion to grant or not is the
probability of the accused appearing to take the trial and not his supposed guilt or
innocence. Considerably such as the nature of inducement, the nature of evidence and
the severity of punishment awardable, have their relevance only because they affect the
likelihood of the prisoner's failing to appear for his trial. Every trial begins with the
presumption of innocence of the accused. But a fair trial does not mean the employment
of methods which end in the acquittal of the guilty.

A fair trial has two objects in view–

(i) It must be fair to the accused.

(ii) It must also be fair to the State. The test of fairness must be judged from this dual point
of view. Just as a criminal trial must never be so conducted as would lead to the
conviction of an innocent person. Similarly progress of a criminal trial must not be
obstructed by the accused so as to lead to the acquittal of a really guilty person.14

A bail cannot be withheld merely as punishment because the object of detention of an

accused person is never punishment. To keep a person under detention with object of
punishing him on the assumption that he is guilty, even if eventually he is acquitted, is
highly improper. Generally it is the rule to allow bail rather than to refuse bail and it
ought not to be held as punishment. Since

13
Statutory Provisions Relating to Bail : Judicial Trends, Submitted by : Ashu Sanjeev Tinjan, Under the Supervision

of Dr. Preet Singh, Department of Law Maharshi Dayanand University Rohtak, retrieved at

http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/1/01_title.pdf
14
Talab Hazi Husain v. Modhukar Purshottam Mondhkar, 1958 Cr. L.T. 701.
 the law presumes an accused to be innocent till his guilt is proved, he must be allowed
an opportunity to look after his own case unless its circumstances are such that he
should not be released on bail. The fact that offence is a serious one does not afford a
sufficient ground to refuse bail. There is no hard and fast rule as to when the bail should
be granted and through the discretion of the court is unfettered it must be exercised
judicially.15 In India, we all very well know that daily thousands of arrests are made by
police for different charges among them few are pity offences and some are severe kind
of offences, in all the cases the accused are sent to police custody for detention in jail,
for two obvious reason first to ensure his presence in court for trial and second to give
justice to the victim, if the accused found guilty and to secure that the accused should
not have chance to repeat the same thing doing again or not to involve in any kind of
such things, in all the cases they are locked-up in jail till the trial comes to an
conclusion. Here what is important to see is, how the personal liberty of the individual
granted by the constitution get effected, personal liberty is a fundamental right given by
the constitution to every person which applies even to accused, in that regard law of bail
and arrest have been given much importance in modern times.16

1.4 PURPOSE OF BAIL

The principal purpose of bail is to ensure that an accused person will return for trial if he
is released after arrest. It is not the purpose of the criminal law to confine a person
accused of crime before his conviction. Bail, in criminal cases is, therefore, intended to
combine the administration of justice with the liberty and convenience of the person
accused. Administration of justice on the spot or immediately after the commission of a
crime in accordance with the fundamental principles of natural justice embedded in a
fair and just legal system is not feasible. This appears to be one of the reasons for the
evolution of

15
Mangon Iboton Singh v. Union Territory of Manipur, AIR 1969 Mani 6.
16
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/11/11_chapter%205.pdf
16
http://shodhganga.inflibnet.ac.in/bitstream/10603/70509/12/12_chapter%206.pdf
the bail jurisdiction in any legal system. The release on bail is crucial to the accused as
the consequences of pre-trial detention are given. If release on bail is denied to the
accused, it would mean that though he is presumed to be innocent till the guilt is proved
beyond reasonable doubt, he would be subjected to the psychological and physical
deprivations of jail life. The jailed accused loses his job and is prevented from
contributing effectively to the preparation of defence. Equally important, the burden of
his detention frequently falls heavily on the innocent members of his family. 17 After the
registration of crime, it takes time to complete the investigation and thereafter, it takes
even longer to conclude the trial. It is a matter of common experience that the judicial
machinery, more particularly in India, is ill-equipped to provide a speedy trial to the
accused in conformity with well-established principles of criminal jurisprudence. The
question, whether an accused should be kept in the prison or set free pending
investigation and trial, therefore, falls for consideration before the Court in every
criminal case where the accused is under arrest. An accused person cannot be detained
in judicial custody for a long time by refusing him bail if the legal system is not in a
position to provide a speedy trial. The inability of the judicial system to provide an
expeditious trial to the accused should always be kept in mind while dealing with the
issue of bail. Keeping a person behind bars without providing him a quick trial is quite
incongruous to the concept of personal liberty, which is a basic human right. The under-
trial prisoner, therefore, cannot be allowed to suffer in jail for an indefinitely long time.18

At the pre-trial stage, every accused person is presumed to be innocent until the matter is
finally disposed of by a competent court. Simply because a person has been charged
with an alleged offence, he does not lose his right to protection of life and personal
liberty.19 He has, till the final disposal of the case against him, the same right as enjoyed
by any other citizen under the Constitution of India,
17
Moti Ram v. State of M.P., AIR 1978 SCC, Paras (29-32).
18
Babu Mulla v. State of M.P., 1978 Cr LJ 1846 (MP) (p. 1847) : 1978 MPLJ 623.
19
Article 21 of the Constitution of India, 1950.
 and other provisions of the law of the land. That is why various High Courts and
Supreme Court of India have held in their judgments that “grant of bail is a rule and
refusal is an exception”. The main purpose behind the grant of bail according to the
learned Judges was that the consequences of long detention of the pre-trial accused
person who are presumed to be innocent as any other citizen were very grave. In A. R.
Antulay v. R. S. Nayak20, the Supreme Court advocated for the speedy trial on the
following lines:

(a) The period of remand and pre-conviction detention should be as short as possible.

(b) The worry, anxiety, expense and disturbance to his vocation and peace resulting from an
unduly prolonged investigation, inquiry or trial should be minimized.

(c) Undue delay may well result in impairment of the ability of the accused to defend
himself, whether on account of death, disappearance or non- availability of witnesses or
otherwise.21

1.5 PAROLE

Parole is the release of the prisoner and will be a temporary release. It has certain
conditions before the completion of the maximum sentence period. It refers to the period
of time after a defendant is freed from prison. An offender on parole would face many
of the same rules or precautions as probation. Parole is always granted to those
people who have been imprisoned for a particular time period. It follows stringent rules
to the letter, or they can be returned to custody with extra time for the violation of the
parole.22

Bail is used for the release of suspects from imprisonment pre-trial. It ensures their
return for the trial. If the suspects do not return to the court, the bail will be forfeited,
and the suspect will be brought up based on charges of the crime.

20
(1992) 1 SCC 225 (280).
21
http://shodhganga.inflibnet.ac.in/bitstream/10603/7790/1/01_title.pdf
22
https://kapilchandna.legal/2017/08/20/difference-between-parole-probation-and-bail/
 When the suspect returns with making all their required appearances, bail will be
returned after the trial is settled. There are cases in which the bail money is returned at
the end of the trial.

Bail is provided before a trial as it allows the person who is charged with a crime to be
released from the jail until the trial date. The cost of the bail is determined by the judge.
It is necessary that one has to pay 10% of the bail amount, and also the bail bondsman
will negotiate it. There will be a full payment is due for the circumstances called for it.23

1.6 PAROLE AND BAIL DISTINCTION

In a court of law both parole and bail have distinct connotations. The particular form,
under which the application is filed, coupled with the prayer made and granted are the
decisive factors to indicate its nature. Bail and parole have different connotations in law.
Chapter XXXIII of the Code of Criminal Procedure deals with the provisions of bail and
bond.24 The effect of granting bail is to release the accused from prison though the court
would still retain constructive control over him during the period. In the Halshbury
Laws of England25 Parole, however, has a different connotation from bail even though
the substantial legal effect of both bail and parole may be the release of a person from
detention or custody. Parole is a form of temporary release from custody, which does
not suspend the sentence the forties Detention, but provides conditional release from
custody and changes the mode of undergoing the sentence. In India, there are no
statutory provisions dealing with the question of grant of parole. The Parole may be
granted by way of a temporary release in accordance with the parole rules or
administrative instructions, framed by the government. The court generally cannot
exercise the power to grant temporary release, but this part would not affect the
jurisdiction of the

23
Ibid.
24
Section 436 to 450 of the Criminal Procedure Code, 1973.
25
Crimes 480 (1986) All L.J. 1253 (1986) 2 Cr. L.C. 669.Vol. 11, 4th ed. para 166. (Halshbury Law of England is a

uniquely comprehensive encyclopaedia of law and provide the complete narrative statement of law in England and

Wales. It covers all areas of laws drawing on authorities including Acts of United Kingdom).
 high court under Article 226, or of the Supreme Court under Articles 32, 136 or 142 of
the Constitution to direct the temporary release of the detanue. 26 The detune while on
parole is not a freeman. The period during which the detenue is on parole, therefore,
requires to be counted towards the total period of detention. However, if the interruption
of detention is not authorized by law then the period during which the detanue has been
at liberty, cannot be counted but should be excluded from the period of detention while
computing the total period of detention. The basis of preventive detention is suspension
of individual freedom on the basis of imposed sentence of the verdict of the court by
regular trial, if the persons can only be detained and the detention is justified so long it is
found necessary.

1.7 KINDS OF BAIL

1.8.1 Temporary Bail

Every court which has jurisdiction to try bail matter has authority to allow a temporary
bail or parole to an accused. Temporary bail means the accused is released from custody
or jail for specific time and after completion of that time the accused has to return to jail
or in custody as the case may be. Parole is another form of temporary bail. Recently
number of times the convicted accused, Bollywood star actor Sanjay Dutt has been
granted temporary bail or parole, temporary bail, parole is granted to the person who
have been convicted in an offence.27

1.8.2 Interim Bail

It is another provision, where the accused can take advantage and may apply for bail on
some genuine reason, mostly it is granted to the offences which requires to travel, also
to women, children and the persons who have crossed the age of 70 years and also to
the students who are appearing for any examination in such cases interim relief or bail
may be granted. It is to be noted

26
The Constitution of India, 1950.
27
Supra note 2 at p. 170.
 that interim bail does not mean that in future date regular bail may be granted, it can
be granted only on merit basis. The only condition where interim bail may not be
granted is in offences which has death punishment, but this condition has been relaxed
to women, children and aged person. Where an order of interim bail has been passed
in favour of accused the ordering authority cannot impose any condition while granting
bail.28

1.8.3 Anticipatory Bail

The term “anticipatory bail” is not used in Section 438, but that is clearly the subject
with which the section deals. In fact, “anticipatory bail” is a misnomer. It is not as if bail
is presently granted by the court in anticipation of arrest. When the Court grant
“anticipatory bail”, what it does is to make an order that in the event of arrest, a person
shall be released on bail. Manifestly there is no question of release on bail unless a
person is arrested.29

Anticipatory bail is granted in anticipation of arrest the anticipatory bail ensure freedom
till the regular bail application decided by the Court. 30 Anticipatory bail means where a
person has a reasonable ground that he may be arrested for an non-bailable offence by
the police on suspicion, to prevent such arrest the person moves an application in an
appropriate court seeking bail in advance prior to his arrest this procedure is called
anticipatory bail. Where the application of the person has been allowed then he shall
show that order of Court regarding anticipatory bail when the police come to arrest him,
on producing such order the person shall be released on bail. This option of anticipatory
bail is available to every person who is been suspected of committing or involved in
some non-bailable crime or offence. It is very rare that where the court allows
anticipatory bail it is not a mandatory provision the court has discretionary whether to
allow or not to allow anticipatory bail to a suspected person. If the court at any point
satisfied that anticipatory bail may

28
Ibid. at p. 75.
29
Siddhram Satlingappa Sibbia v. State of Maharashtra AIR 2011 SC 312.
30
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016 at p. 246.
 be granted then court may allow the application. Anticipatory means presumption or
anticipation of something, a possibility that may happen or certain act may occur on a
future day and to prevent that act from being happen necessary precautions need to be
taken. Where the court allows anticipatory bail it means that in the event of arresting a
person shall be released on bail, the anticipatory bail comes in function only on the
occasion of arrest.31

1.8.4 Default Bail

The Code has not used the term “default bail” in any provision. “Default bail” is a
term of convenience evolved by lawyers and judges engaged in the administration of
bail jurisdiction. Default bail simply means statutorily mandated bail that an accused
under arrest custody is entitled to get in the event of the failure of an investigating
officer to complete the investigation within the time limit prescribed by law. Since this
type of bail is granted for the reason of the default in filing a charge-sheet within the
stipulated time limit, it is popularly known as “the default bail”. It is also known as
“compulsory bail”.32 Sometimes the court may have to face a situation where
investigation was not over within the time limit of 60 days or 90 days stipulated in
Section 167 of the code of the Criminal Procedure Code, 1973. In such a situation the
court has no other alternative but to release the accused on bail. This type of
statutory release on bail is popularly known as the default. The logic behind this
provision appears to be that a person cannot be kept in custody for indefinite period on
the basis of incomplete material or investigation. The legislature has, in its wisdom,
provided a time limit of 60 or 90 days as the case may be for completing the
investigation. Within this time limit the police is bound to place a clear picture of the
investigation before the court so that the court can decide whether the accused should be
released on bail or not, if he is in custody, and weather the case is worth putting up for
trial.33

31
Supra note 2 at p. 82.
32
For the full text of Section 167, see Part III of this book.
33
Section 167, The Criminal Procedure Code, 1973.
 In Rajnikant Jivanlal Patel v. Intelligence Officer, Narcotic Control Bureau, New
Delhi34, it has been held by the Supreme Court that an order for release on bail under
proviso (a) to Section 167(2) may appropriately be termed as an order-on-default.
Indeed, it is a release on bail on the default of the prosecution in filing charge-sheet
within the prescribed period. The right to bail under Section 167(2) proviso (a) thereto is
absolute. It is a legislative command and not court‟s discretion. If the investigating
agency fails to file charge-sheet before the expiry of 90/60 days, as the case may be, the
accused in custody should be released on bail. But at that stage, merits of the case are
not to be examined. In fact, the Magistrate has no power to remand accused beyond the
stipulated period of 90/60 days. He must pass an order of bail and communicate the
same to the accused to furnish the requisite bail bonds. Default bail is granted because of
the statutory mandate and, hence, the rejection of bail application earlier on merits is
not at all relevant for the release of an accused on default bail. In Union of India v.
Thamisharasi35, it is reiterated that when an application for default bail is filed, the
merits of the matter are not to be gone into.

1.8 CLASSIFICATION OFFENCES

Bail simply the process of releasing a person which may be on his personal bond or on
some security, bail is the post arrest process and before trial. In the criminal procedure
code bail is not defined anywhere, but classification of offences into bailable and non-
bailale offences made expressly or may be made after examining the gravity of offences.
Grave offences to be made non- bailable, where bail not to be granting as a right but to
be granted on examining certain factors by exercising the judicial discretion by courts on
some just and human grounds. Bailable and non- bailable defined as follow under
criminal procedure:
34
AIR 1990 SC 71 (paras 12, 13) : (1989) 3 SCC 532 . Note: In Aslam Babalal Desai AIR 1993 SC 1 : (1992) 4

SCC 272 the decision in Rajnikant‟s case has been clarified.

35
(1995) 4 SCC 190 (para 10): JT 1995 (4) SC 253: 1995 (3): SCALE 72; Sadhwi Pragyna Singh
Thakur v. State of Maharashtra (2011) 10 SCC 445: 2011 (10 SCALE 771.
1. Bailable Offence

Bailable offences define under Section 2(a) of the Court which means an offence, which
has been categorized as bailable, and in case of such offence, bail can be claimed,
subject to fulfilment of certain conditions, as a matter of right under Section 436 of The
Criminal Procedure Code, 1973. In case of bailable offences, the Police is authorised to
give bail to the accused at the time of arrest or detention.36

2. Non-Bailable

Non-bailable means an offence in which the bail cannot be granted as a matter of right,
except on the orders of a competent court. In such cases, the accused can apply for grant
of bail under Sections 437 and 439 of The Criminal Procedure Code, 1973.37 It is
important to note that the grant of bail in a non- bailable offence is subject to judicial
discretion of the Court, and it has been mandated by the Supreme Court of India that
“Bail, not Jail” should be the governing and guiding principle.38

1.9.1 Bail is a Security for Appearance

Bail in its fundamental concept is a security for the prisoner‟s appearance to answer the
charge at a specified time and place. It is natural and relevant for any court to consider
such security in relation to and in the light of the nature of the crime charged and the
likelihood or otherwise of the guilt of the accused there under. At any early stage when
accused asks for bail, the court has necessarily to act on a reasonable and intelligent
anticipation which ex- hypothesis must, to a certain extent, be problematical because the
trial has not run its course. 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

36
Section 2(a) of the Code of Criminal Procedure, 1973.
37
The Code of Criminal Procedure, 1973.
38
State of Rajasthan v. Balchand AIR 1977 2447, 1978 SCR (1) 535.

15
 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 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.39

1.9 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,

39
http://elib.bvuict.in/moodle/pluginfile.php/184/mod_resource/content/0/Bail%20and%20Judicial% 20Discretion%20-

%20A%20Study%20of%20Judicial%20Decissions%20-%20Navneet%20 Prabhakar.pdf

15
colour or creed, 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.40

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.41

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

40
Janak Raj Jai, Bail Law and Procedures, Universal Law Publishing, 6th edition, 2015.
41
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016.
is always difficult to decide bail applications without being influenced by external and
internal forces which drive a judge to form a particular opinion.42

V.R. Krishna Ayer, Grant of Bail: Practice and Procedure, Justice V.R. Krishna Ayer
in his judgment in case Gudikanti Narsimulu v. Public Prosecutor43 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
Article 19. 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 Iyer 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
42
Asim Pandey, Law of Practice and Procedure, Second Edition, 2015, Lexis Nexis.
43
AIR 1978 SC 429 Para 12.
also 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 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‟44 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 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.
 CHAPTER- II

THE CONCEPT OF BAIL A HISTORICAL PERSPECTIVE

If one goes to pre-historic times, it is discovered that primitive man who lived in the "ideal
state of nature" was slowly drive to organise himself with others into small tribes which
formed the foundation of social control. To think that man in this original predive state was
happier because the existence of society had not corrupted his inherent freedom of action
would be an error. The fear of hunger, a harsh environment and the struggle for survival itself
made a state of nature, a somewhat undesirable status to live in. To seek protection from
these brutish forces, men formed themselves into societies. Thus, it would seem that the
original state of man-the state of nature rather than being ideal was an existence from which
man sought to escape.

Society probably comes into existence to protect the individual from fear, loneliness,
uncertainty, the unknown or unexpected and the more serious rages of the struggle for
survival. Early man's desire was to overcome these dangers; but being naturally self-
interested, he wanted to do so without surrendering the inherent freedom enjoyed in the
absence of control by society. His ideal concept of control by society, therefore was only to
the point necessary to achieve the desired goals. But throughout history, in entering society,
societal interests have been over-exerted to the extent that the goals sought by men many
times are achieved at the cost of total or near total surrender of individual rights.

Through history the protection of society is directed to a select few rather than all individuals.
Thus, in a large measure, any discussion of the origin and development of the individuals’
rights of man Willene the struggle by individuals to guard that measure of individuals
freedom from their rulers which men have never willingly surrendered to society.1

Early Civilizations:
Of the five earliest civilizations, the legal system of the Chinese the only one not founded on
religion. In the Egyptian, the Mesopotamian, the Herbre and the Hindu legal systems, the law
is conceived as revealed and imparted through the ruler, directly from God and therefore, is a
part of the dictates of religion. The Mohammedan legal system too is of Divine origin.
1
Our Inalienable Rights, p. 9
"With the Greeks however in their maturity, is first met a legal system that is ocular; i.e., it is
not conceived as a part of religion emanating from a divine source”.2

(a) Greek Legal System (1200 B.C. to 300 A.D.):

Greece is noted in history as the "Father of democracy." Certainly, this is not wholly true for
men knew of the concept of justice and democracy long before the Greek Civilization.
Nevertheless, many clear statements of modern political ideals such as justice, liberty and
constitutional government are derived from the reflections of Greek thinkers upon the
institution of city-states.

(i) The Greek City-States:

The peninsula of Greece is crises-crossed by various mountain ranges cutting it into various
sections. Somewhere around 1000 B.C., rugged Greek tribesmen settled in these small fertile
valleys separated from each other by mountain ridges. These communities grew into little
city-states. Each city-state with the surrounding country side formed an independent nation
with a king and a council of leading citizens. Important among these were Athens, Sparta,
Thebes3 etc.

There was a government of oligarchy in Athens i.e., government by a few nobles. This did
not satisfy the Athenians who at length demanded reforms. After a hard and long struggle, a
leader named draco gave the Athenians a written code of law (621 B.C.) people was pleased
that they could at least know what the laws were. Earlier, laws were not written and might
easily be changed by dishonest judges.

Nevertheless, the lot of the poor remained miserable. Many of them were slaves of debt. A
reformer, solon (638-558 B.C.) has to the Athenians a new Constitution. It provided that:

1) All men who were slaves for debt were to be free and in future, no man was to be
made slave for debt.
2
Wigmore Jhn Henry. Panorama of World's legal systems', Vol. I. p. 283.
3
Stromberg, Roland M. 'A History of Western Civilization1. 1969 (Revised Edn.
 2) Every Citizen, no matter how poor, was to be permitted to take part in the assembly.

3) Juries were created to which all citizens could appeal.

This was the Greeks’ move towards the modem ideas of democracy by stressing the
participation of individuals in government.

It is noteworthy that citizens of certain Greek states enjoyed such rights as ISOGORIA or
equal freedom of speech and ISONOMIA or equality before the law, which are prominent
among rights claimed in the modern world.

Later, another reformer Calisthenics appeared who made Athens more democratic by
extending the right of citizenship to all freemen irrespective of their social status 4. The Greek
ideal of civilization was everyone’s right of participation in the activities of the city-state.

(ii) The Stoics:

The rise and development of the Greek city state has been the persistent background of Greek
speculative thought on law and government. At the time when Pedicles was the leader of
Athens there arose a philosopher by the name of Socrates. His disciples Plato (427-347 B. C.)
and Aristotle (384-322 B. C.) came to be known as the Stoic philosophers.

The Stoics formulated the doctrine of natural rights as something which belonged to all men
at all times. The postulates of reason were to the Stoics of universal force. Though previous
thinkers had made familiar the part played by reason in molding behaviors, the Stoics
introduced and innovation. They believed in a cosmic mind which governed the world by
reason but they also asserted that reason was the attribute of all men and not citizens alone.
From this the Stoics develop the first great cosmopolitan philosophy of western thought. The
deference of city states, of Greek and barbarian is rejected and a universal world state is
postulated in which men live as equals.

Apart from the doctrine of natural rights, the stoics are accredited with giving to the world
4
This meant that only native-born men could be citizens, Slaves, foreigners and women remained excluded.
two innovative ideas of utmost importance-the idea of a world society and the Equality of
man.

Greece also stands important for its incipient development of constitutional rule. Aristotle,
Plato's famous disciple, made one of the earliest studies of the forms of government when he
reviewed the constitutions of various city states. The drawing up of the "rules of the game"
which the governed and the government alike should follow marks a significant step towards
protection of an individual.

While great changes were going on in the Eastern Mediterranean world, the little city of
Rome on River Tiber was growing.

(b) The Roman period (500 B.C. to 500 A.D.):

Italy was not cut up into small valleys as Greece was by mountains. The western plain was
large enough so that the chief city of Rome could control all of it. Besides the central position
of Italy made it possible to gain control of western Mediterranean at a time when it had no
civilization of its own.

The Early Republic:

It was an elected government of aristocrat only (patricians). The poor workmen and farmers
made the plebian class who had no say in the matter of government. The most important body
in the government was the Senate which was composed of patricians who held office for life.
It had a lot of power in approving of laws, taxation, foreign policy etc. The Assembly which
comprised of weapon bearing men had very little power.

Plebeians Versus Patricians:

The plebeians, dissatisfied with no power granted to them threatened to leave Rome and
found their own city. The Patricians required them for their army. After a struggle that lasted
a century and a half, the plebeians managed to secure (for themselves) a written code of law-
The Twelve Tables.5

5
450 B.C.
Early in the third century B.C., the Assembly constituted by the plebeians and hither to
almost powerless in front of the Senate had also wrenched from the senate the power to make
laws. This brought the distinction between the plebeians and patricians to an end. Rome
became is democracy.

The Roman democracy differed from the Athenian democracy in that whereas the Athenian
was a direct or pure democracy in which all citizens shared in making the law, in Rome it
was the representatives of the people who made the law. This was a democracy suited to a
larger population as compared to the legal systems of Tiony city states like Athens, Pericle,
etc.

Through a series of wars covering more than two centralists, being restless and ambitious to
extend their domain initiated a new concept of conquest that made laws and order effective
immediately upon seizure of new territory. The Romans did not make subjects or slaves of
their conquered people but made them Italian allies in return for military aid and taxes from
6
7
H2]them. This resulted in the establishment of an effective and uniform legal system
throughout the Roman erective. But as their domain grew, they found the application of the
Roman civil law or jus civil upon a diverse people difficult.

The jus civil or the ancient civil law of Rome was applicable to Roman citizens only and not
other races and tribes living under different customs. The ancient idea of citizenship made it
impossible to apply Roman law as such and run the risk of having a parallel legal system for
other races. They looked to the stoic doctrine of natural law postulated by Greek
philosophers. According to them natural rights belong to all men at all times and are binding
on all men
everywhere.

The practical genius of Roman jurisprudence used the Greek conception of nature based on
reason (jus natural) in order to transform the ancient and closed system of civil law into a
cosmopolitan system fit to rule a diverse
people. The Roman Praetor faced with the task of applying law to foreigners under their rule
amalgamated material supplied by foreign laws and customs and relying largely upon
common sense and reason enveloped such legal principles which were applicable to
foreigners. These general principles of justice and reason that the Roman magistrate
developed empirically from case to case came to be identified as the "jus gentium" for the
law of nations. This was available to persons of allnastions including citizens whereas the jus
civil was available to citizens only.

Natural law apart from transforming the old jus civil now created the bases on which Roman
and foreign people could live together under a common rule of law.

At no other period had the ideal of natural law exercised as creative an influence. Roman
legal development. Courts of Justice or basilicas, various tribunals, professional judges and
the Roman praetor came to the forefront. There was a strong legal procession in Rome,
Cicero was one of the most famous Roman Advocates. “The zenith of Roman Juristic science
was achieved in the second and third centuries Anno Domini. By this period Roman legal
system had advanced for beyond that of earlier races; oriental or Greek. The administration of
justice had been separated from political administration-what resembles our theory of
separation of powers.

The Roman law did not exist in one written unit, but was found in the Court Records
scattered over a wide area over a great many years.

We agree with judge R.N. wilkin that " law came to the world through Rome, just as we say
that philosophy and art came through Greece". Rome thus became the cradle of
jurisprudence- the science of law. Said judge walking," The law is the gift of Rome to the
world. Prior to the time of Roman Republic there were laws, but no such concept as the
law."6

It is important to note that by Justinian's time Italy had fallen pray to number of invasions
triggered by Atilla the Hun, and had weakened considerably. Justicnish, ruling from
Constantinople made one last attempt to regain a part of the western Roman Empire but after
his death the west and East separated again. The Empire was dead.
The offices of the Roman Empire but after his death the west and East
separated again. The Empire was dead.
6
Wilkin. R.N.. ' The Spirit of the legal profession., p.3
The offices of the Roman government fell into the hands of the Huns. Barbarian tribes
occupied most of Roman territory that were ruled by chieftains. The roman legal system was
replaced by crude laws and superstitions.

(c) Christianity
:
By this time, Christianity had been born and had spread all over the Roman Empire. There
was a vast slave population due to Prisoners of Wars Captured aj/along during the Roman
conquests who were turned into slaves, because of the mightily rift between the rich and the
poor, the poor found no respite in worshipping their emperor and began to follow the simple
teachings of Jesus.

The greatest impact of Christianity was that it looked alike upon rich and poor, besides it
brought a humaneness in the treatment of slaves and the poor. It dignified human labour
thereby raising to new heights a former pagan world.10Though the emperors did not tolerate
Christianity earlier, later on they did. In 313 A.D. Contenting issued the first decree of
universal religious toleration.

It was in the reign of Theodosius (379-395) that Christianity was made the state religion.
Emperors conferred fours upon the clergy. The higher clergy where given authority almost
equal to that of the governors.

The term Middle Ages was given to the period of Western European history that extended
from the decline of Rome (476 A.D.) to the discovery of America (1942 A.D.) The western
Europeans who lived just after the Middle Ages named it " the dark Ages" because they
thought that it was a period of darkness between the splendor of Rome and the splendor of
the civilization

they were creating. They believed that nothing of importance happened then. Today,
however, we know that the middle Ages was an important period in itself in western Europe.
Many of our cherished institutions on liberty and freedom started during that period of about
a thousand years.
The middle ages is divided into the Early Middle Ages from the fall of Rome to about 1000
A.D. and the late Middle Ages from 1000 A.D. to the discovery of America.

Early Middle Ages :

The Germanic Invasions had raided the Western Roman Empire and fragmented it into small
pieces headed by crude tribal chieftains. Infighting and
invasions among themselves resulted in general chance all over. There was no
education and the days of secretes and Plato seemed very far off.
In Europe, after centuries of invasions and fighting things began to settle
in a new way.

The feudal System :

After the downfall of Rome, the old order in the west had collapsed. The idea of nationality
did not exist any more. There was a time, centuries ago when H6]a roman citizen on being
tried at the smallest court could stand up and forthrightly command equal treatment or justice
by merely alleging that he was a citizen of Rome. But now, all nations of citizenship and
nationality had been eclipsed, instead of nationality or a people belonging to an empire or a
state and being ruled by an Emperor or a government, there was peculiar relation between
man and man. This was the feudal relation.

Feudalism originated in France and slowly spread all over Europe. In those times of chaos,
the rule was might is right. The strong seized what lands they could and bolt castles over it.
The poor peasants an workers on the land of course suffered the most.; They were not
organised and could not defend themselves against the robber barons. There was no central
government strong enough to protect them. \So they came to terms with the lord of the Castle
who
plundered them. They agreed to give him part of what they produced on his land in return for
protection from other robber lords and became his sorts. And step by step they went up to yet
bigger lords and nobles, talent last they arrived at the king at the top of the feudal structure.
Christianity becomes All-Powerful:

As said earlier, Theodosius (379-395 A.D.) had made Christianity the state religion.
Emperors began conferring favours upon the clergy because of their mass following. By the
middle Ages the popes had become very important and powerful.

The Society thus was formed by three classes-The clergy, the nobles and the peasants or
workmen. The peasants or serves as a whole were humble before their masters and accepted
the sharp class distinctions of their times as 1171a matter of course. There was another set of
people who did not attach themselves to any land or lord. They were freeman as they could
make a living as artisans, craftsmen, tool smiths, etc.

A New Middle class emerges :

Despite a class ridden society, changes were coming through the new forms of freemen. The
artisans, Craftsmen and traders formed such a class of people who were not part of the feudal
system. They were skilled freemen who had set up their own workshops and were earning
their livelihood there from. As trade increased and their importance grew they become
wealthy. As trade increased and their importance grew they become wealthy. As their
numbers increases, they formed guilds or association and the headquarters of such association
became guildhalls which later became the town halls. Thus by the first millennium after
Christ (1000 A.D.) a new middle class of townsmen emerged which was destined to give
shape to many of our modern notion of freedom, equality and liberty.

These developments aside, the state of the society and the Holy Roman Empire ream need as
bad as could be. There was general disorder everywhere marked by warring feudal lards,
raide, sieges and fires, after Charlemagne’s death in 814 A.D. Troubles arose for a division of
the spoils of the empire.

France and Germany took shape. Russia also came into formation around 850 A.D. In the
South Eastern Europe, Bulgaria, Serbia, Poland and Hungary began to take shape.
The Norman Invaders from the North :

Meanwhile from Northern Europe men came down in ships to western and southern
European countries and burnt and killed and looted. These• Northern or Normans, as they
came to be called, seized the northwest of France and Gradually settled there and became
lords and landowners. It was these Normans from Normandy in France that went and
conquered England in 1066 A.D. under William, the conqueror.

The Late Middle Ages :

The period fro, 1000 A.D. till the discovery of America in 1492 A.D. is known as the late
Middle ages. This was the age of the Crusades. The Crusades or the Holy wars were fought in
the name of Christ for the capture of Jerusalem. The first Crusade was carried out in 1096
A.D. at the behest of the pope and the last crusade or the Third Crusade began in 1187 A.D.

Despite the invasions and warfare during the decline and fall of the Roman Empire, some
towns survived. They were the ones which had natural protection of the sea or rivers or
swamps. Many were on the old Roman roads that had been centres of commerce on an earlier
day, for example. Florence. Naples, Paris, Marseilles, Tourn. London, Manchester, etc.

Towns Grow In Size And Importance :

Beginning in event century, towns grew in size and importance. The Crusades hastened their
development as centres of trade. A lot of other people also flocked to the towns as they gave
protection in times of wharf are. the townsmen become very wealthy.

By the thirteenth century, towns and become important politically. In both France and
England towns men were permitted to sit in Parliaments. They had money and so were
important in the eyes of the king as willing tax payers. Sometimes townsmen banded together
and wrested Charters from King and Nobles which usually granted them freedom from the
payment of feudal dues and the right to select some of their own officials for governing the
town they belonged to. Earlier feudal lords and nobles were quite powerful. As the powers of
the nobles declined and many western European kings become more and more the masters of
their countries, instead of deriving their income primarily form the
feudal dues of the Lords, Kings now taxed their countries, instead of deriving their income
primarily from the feudal dies of the Lords, kings now taxed their subjects to run their
governments. Much of this money came from the new middle class. Besides kings also knew
that wealthy townsmen would be more willing to pay taxes, if, like the nobles, they were
included in the discussion of the nation's business.

II - HERITAGE OF COMMON LAW

Irrespective of the long gap from the early Greek and Roman concepts of liberty, democracy
and justice for man, many of their great principles weathered the storms of the Middle
Ages, Including other systems of Jurisprudence. Despite prevalent feudalism, France had not
altogether forgotten that the Code Napoleon or Civil code had its roots there. Even though the
Northern or Normans had occupied part of France as barons and landowners yet they did not
remain oblivious to this code. The jus civil or Civil law followed these Normans through
Europe and across the English Channel into England.Henry, the Second (1154-1189 A.D.):

Henry, the second was the son of French nobleman and his mother was the Grand daughter of
William the Conqueror who conquered England in 1066 A.D. He was one of the ablest kings
England ever had. Henry inherited lands in France as well as the throne of England. He was
interested in law and he found great confusion in the Courts of England/' Many of these
were the feudal courts. It would do well to remember that feudalism was prevalent in
England.

He wanted to get more law cases tried in the kings courts especially cases dealing with the
holding of land and got many cases out of the feudal courts which tended to be arbitrary and
partisan. His judges traveled from place to place holding trials where the people lived instead
of where the king lived. They combined he legal customs they found there with the legal
opinions laid down by the kings courts.

In this way they built a body of law uniform for all England. This combined the legal customs
they found there with the legal opinions laid down by the kings courts.In this way they built a
body of law uniform for all England. This we call the Common Law, it was more just and
humane than law of most feudal courts.
Trial by jury was another practice started under Henry's rule.

RICHARD-1 (1189- 1199 A.D.) :

Richard-I was the son of Henry II and succeeded him top the throne in1189 AD. it had been
the practice among the kings to demand feudal dues from the barons and nobles for one
purpose or another. For the purpose of raising funds for the Third Crusade (1189)
RICHARD-I devised a novel way. He hold charters of self government of towns including
the town of London. While the selling of these characters was bad for this throne, the rights
which the townsmen gained were good. It was in the self governed Towns that the spirit of
liberty developed.

JOHN (1199-1216 AD.) :

Richard's death brought to the throne his brother John (1199-1216) who was perhaps the least
loved of the English kings because of his tyrannical rule England and France were old rivals.
John's contemporary in France was Philip Augustus, the king of France. They quarreled the
Philip occupied most of such lands of John that he had held in France.

It was a royal practice to demand money in the form of feudal dues from the nobles under one
pretext or the other. Sometimes these demands were too 122]high or for an unreasonable
cause.

Resentment in the nobility had been festering for long against king John's capricious ways of
demanding feudal dues from them from time of time.John after losing most of his lands in
France to phpop Augustus not only demanded funds for his barons and nobles but also
demanded that they go with him to France to fight and regain his land from Augustus. They
refused saying that their feu ions did not require them to fight outside England. After many
threats on both sides and many unlawful measures taken by the king to thwart the nobles of
London they ultimately conquered him at the island Runnymede and in the end made him
sign a Charter of Rights. This famous document known as the Magna Carta (1216) or the
Great Charter clipped the king's powers and laid the foundation of English Rights.
(a) The Magna Carta :

It was a charter of grievances against the king which stated in legal terms some of the leading
ideas of modern Government. The original intent may have been merely to gain feudal
liberties- a theory occupied by most authors today but the effect has been its transformation
into a charter of "liberty of the subject"' 7 An examination of one of the most famous clauses,
clause 29, indicates how such a broad interpretation was possible.

Clause 29 :

"No freeman shall be taken and imprisoned or diseased of any free tenement or of his
liberties or free customs, or outlawed, or exiled, or in any other way destroyed, nor will we
go upon him nor send upon him, except by the lawful judgement of his peers or by the law of
the land.

"To not one will we sell, to no one will we refuse or delay right or justice"'3
These words furnished at least one source of a number of our present well-established rights,
such as due process, habeas Corpus and trial by a jury of .peers i.e. where equals sit on
judgment.

Evidence of the Charter's influence of legislation and trials began creeping slowly into statues
and reported precedents about seventy-five years after the signing of the Magna Carta. In
1307, a case arose involving a bishop who had been imprisoned and deprived of his lands. No
specific charges were made against him and he was held for two years without a trial. The
Magna Carta was employed to secure his release and, later, to form the basis of his civil
claim for damages in the amount of Pounds 20,000 in which the allegations stated that he was
imprisoned and deprived of his lands "without being arraigned, or called in judgment, against
the form of the law of the land, and against the points of the Greater Charter".

7
Venkata Rao, K. 'Liberty & Social Control.' 1953 SCJ XVI 203
(b) Trial by Jury and habeas Corpus8 :

Another right attributable to the magus Carta Grows out of the Phrase.
"No man shall be imprisoned, except by the lawful judgement of his peers "The first instance
in which this phrase was connected with the right to Trial by Jury appears in a case tried in
1302. In this case, an accused knight objected to the Jury at his trial because it was not made
up of his peers.

The court upheld the objection holding that the phrase "Judgement of his peers" required that
the jury in this instance be composed solely of knights. Other evidence of the influence of the
Magna Carta is reflected in early statues. An enactment in 1331 provided that neither life nor
liberty not properly should be taken" against the form of the Great Charter."

Development of the Great Council or the Parliament’:

This body in the development of the Great Council came when John's son, Henrry-lll became
ruler. He became unpopular with his subjects and the nobles led by Simon de Mont fort made
prisoner, Simon called a meeting of the great council. It comprised of not only nobles, abbots
and bishops, but for the first time included two knights from each country and two citizens
from each large town. This meeting which was held in 1265 was the first one to include
others apart from the bobbles of England.

Edward-I (1272-1307) and the model Parliament:

When Edward-I was king he called a meeting of the great Council. This meeting in 1295 has
come down through history as the model Parliament as it brought about a division of the
parliament into two Houses (The House of Lords and the House of Commons). This was the
beginning of the English Parliament.

The knights and Citizens came to form the House of Commons, the nobles and bishops, the
House of Lords. The members of the house of Lords inherited their right to sit there. The
members of the House of Commons were elected.
8
Cahn. Edmund, 'The Great Rights' 1960.