LAW OF CRIMES - II

INTERNAL ASSESSMENT – 2
REPORT WRITING

NAME: Shreyans Karan Parakh

DIVISION: C
PRN: 20010126284
COURSE: BB.A. LL.B. (H)

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 BATCH: 2020-2025
Critical Analysis of Bail Laws with reference to adv S.K. Jain’s lecture

Introduction
CrPC does not define bail. India as a signatory to the UN Declaration of Human Rights, 1948
has made efforts into making bail a relevant tool against state-imposed restraints.

Bail is defined as a concept that is applicable when a man is arrested for a crime against the
state, and is deprived of his liberty and freedom, the man has to offer surety to the pertinent
authorities to retain his freedom and liberty, so as to ensure that the man shows in concept
court. This definition is clarified in Stroud’s Judicial dictionary.

Bail’s objective is not punitive or preventive but is a measure of ensuring that a person
accused will stand on trial, in return for liberty. Bail is the norm and jail is the exception, and
refusal to bail violates the right to liberty of an individual.1

Bail seeks to balance to very important and yet conflicting demands of society. First being,
that criminals and threats to society are not exposed and that is done through confinement.
Secondly, it deals with a fundamental principle of criminal jurisprudence, which is no one is
guilty until proven so. Therefore, it is an extremely important branch of procedural law.2

Report on Lecture
Senior advocate SK Jain, a noted criminal lawyer from Bombay High Court holding more
than 50 years of experience under Criminal law guided the students of Symbiosis Law School
on the intricacies of bail and the relevant legal provisions.

Stating from experience, he highlighted how the importance of bail had evolved from when
he started practicing to the present. Earlier, junior lawyers used to appear in the matters of
bail. Post emergency though, senior advocates became more prominent in the courts due to
legislations like AFSPA and TADA being passed. Often bail was seen as extremely necessary
1
Sanjay Chandra v CBI, (2012) Cr LJ 702 (SC).
2
Govind Prasad v State of West Bengal, (1975) Cr LJ 1249 (Cal).
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more so than the trial itself because the time and date is not well scheduled with law cases
stretching years. Due to this inordinate delay, bail is the general norm in the past decade or
so.

Importance of Bail
Article 14 of the Constitution gives every citizen of India equality in front of law and equal
protection of law. Article 21 protects the right to life with dignity and liberty. Therefore,
according to the advocate in relation to that remaining in jail causes stigma. In today’s world,
the perception of bail largely varies. According to him, normal people are crucified and
politicians idolized for obtaining bail. This is despite bail being considered extremely
important from magistrate court to the Supreme Court, especially after the Maneka Gandhi
case where the court confirmed that bail is the way forward.

Advocate SK Jain then explained the classifications of bail under Indian law i.e., bailable and
non-bailable offences. Under the IPC schedules the various crimes are distinguished based on
whether they are bailable or non-bailable offences.

The speaker then went to elaborate various procedures that exist under bail. Detainment of a
person without making them aware of their bail rights or detainment after the bail security
has been paid is seen as wrongful in the eyes of law. He then explained how if the Remand
report by the police does not meet the essentials of the crime the court does not have to
consider it.

In today’s court criminal practice has increased its scope massively and various acts have
come under the ambit of criminal law like the Prevention of Sexual Harassment at Workplace
Act. The principles of liberty have become more profound today according to the advocate
and therefore, bails ae really important. This is achievable only if awareness with regard to
bailable offence along with the rights of citizens and the role played by police is spread.
According to Supreme Court, asking for bail in every case as a concept is outdated and new
procedure is needed. According to SK Jain, if courts execute bail more often it reduces time
and paperwork of the court.

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 Non- Bailable offences
Advocate SK Jain explained that under non-bailable offences, a person arrested has to be
produced in front of the magistrate within 14 hours. The police have the right to arrest
persons up to 14 days in normal offences and up to 30 days in serious offences. The speaker
clarified though that the nomenclature non-bailable offence, does not imply that there can be
no bail but rather the bail is given with restrictions on movement.

Even under offences like these, arrest should be considered only as an absolutely necessity
and should be avoided as much as possible. This was also held in the Joginder Singh case of
the Supreme Court as was explained further that the judge stated that more than 60% of the
cases are unnecessary and number of arrests should not be made due to the right to arrest but
based on need to arrest. Even amendment adding section 41(a) to CrPC asking for police to
serve notice and give an opportunity to explain as to why persons accused of crimes that are
punishable up to 7 years should not be arrested. This provision was apparently added to keep
check on the powers of the police.

It was explained that when a person is accused for a crime punishable by death, then the
person cannot be granted bail generally, but on the basis of facts under some cases it can.

Anticipatory Bail
Under Section 438 of the CrPC, the high courts and sessions courts are empowered to provide
anticipatory bail and the legislation has kept faith in the judiciary to protect oft targeted
influential persons against wrongful arrest in the case of non-bailable offences. In a 1978
constitutional bench of the Siddharam Satlingappa Mhetre case, the scope of anticipatory bail
was decided. FIR was not necessary for arrest. If a complaint is lodged a person can go to the
sessions court seeking protection from humiliation. Anticipatory bail applications are granted
only under extraneous circumstances by the police.

Sharing his own personal experience, the advocate shared a story of how he went up against
the great Ram Jethmalani in a case where the court stated that under Section 304 of IPC this

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cannot apply. Further, in the case advocate Jethmalani tried pointing that a person being
detained for even more than a minute violates their dignity and reputation.

Anticipatory bails are not normal procedure and strong cases need to be made for the same.
Two criteria need to be considered by the court, first that there is no-offence prima facie and
secondly that the other person can be secured for the hearing. Anticipatory Bail cannot be
granted in the cases of serious economic offences, SC ST atrocities act, serious offences
against women and state, etc.

This bail is not temporary but stays till the filing of the chargesheet. For special cases where
there is delay due to pendency of cases in court the provision of Interim AB is granted.

General principles of Bail

According to SK Jain, bail applications need to be decided on the same day and if they cannot
be them provisions like Interim bail must come into play. He believed that lawyers must be
well versed in bail matters and must know the pertinent CrPC sections well. When conditions
were imposed to under the Prevention of Money Laundry act for bail, they were struck down
initially by the SC, but later were deemed to be as necessary under the act.

When famous personalities approach the High court directly instead of sessions court for bail
it is unethical. Further, despite bail being the rule there needs to be proof of eligibility beyond
doubt. In older cases, when there were multiple stab wounds the prosecutors argued that there
would be murder if the accused was let out but these strategies will not apply. Today the
advocate’s duty is to protect liberty and dignity of citizens of the state.

Analysis of Indian Legal Viewpoint

Bailable offences
Under Section 436 of the CrPC, persons accused for offences other than non-bailable
offences come into play. This section allows for persons arrested under non-bailable to
offence to be released under bail during any time of the proceedings while making an offer
that would ensure would take place. Further, the court can refuse bail on non-compliance by
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persons while on bail. Even if the charge is bailable, bail will not be granted if the accused
obstructs the court's process or breaches his attendance bond. 3 In the case of Vaman
Narayan Ghiya vs the State of Rajasthan 4 it was held that the court has no jurisdiction in
granting bail under this section except while asking for security. In the case of Talab Haji
Hussain v. Madhukar Purshottam Mondkar5 as well, where when a person was released on
bail was arrested again due to the prejudicial turn in the trial.

Non-Bailable offences
According to Section 437 of CrPC, when a person accused of, or suspected of, committing a
non-bailable offence is arrested or detained without warrant by a police officer-in-charge, or
appears or is brought before a court other than the High Court or a court of session, he may
be released on bail, but he will not be so released if: I there appear reasonable grounds for
believing that he has committed an offence punishable by death or life imprisonment; or (ii)
he has been charged for an offense punishable for 7 years or more.

The grant of bail in non-bailable cases is generally a matter in the discretion of the authorities
concerned6. The Code of Criminal Procedure, 1973 first gives discretion to the court,
particularly a magistrate, to order release on bail even in cases of non-bailable offences.
However, the wide discretion is to some extent controlled by two restrictions; the
Code9provides that if there appear reasonable grounds for believing that the accused, not
being a person under the age of sixteen years or a woman or a sick or infirm person, has been
guilty of an offence punishable with death or imprisonment for life, then he must not be
released on bail.7

Anticipatory Bail
Section 438 of the CrPC allows for Anticipatory bail. It is stated that it should be limited to a

3
Joseph D Kattampilly v State of Kerala, (1970) Ker LR 521.
4
Vaman Narayan Ghiya v. State of Rajasthan, 2009 Cri L.J. 1311.
5
Talab Haji Hussain vs.Madhukar Purushottam Mondkar and another, (1958 SCR 1226).
6
Talab Haji Husain v Madhukar Purshottam Mondkar, AIR 1958 SC 376.
7
Baba Ajaib Das v State of Bihar, (1975) Pat LJR 109.
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fixed period and it should be provided only in special cases based on facts of cases. 8 The apex
court while observing the above celebrates the two provisions and related them together. The
court was pleased to observe that Section 438 and Article 21 goes hand in hand and that by
enacting the provision for grant on Anticipatory Bail the legislature has upheld the
fundamental right of the citizen.9

Comparative Analysis
Bailable and Non-Bailable offences

8
Sushila Agarwal v. State of Delhi, 2020 SCC OnLine SC 98.
9
Badresh Bipinbai Seth v. State of Gujarat, (2016) 1 SCC 152.
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 Bailable offences
It is defined u/s 2(a) of CrPC, as
an offence which is shown as
bailable in the 1st schedule, or
which is made bailable by any
other law for the time being in
force.
Bailable offences are considered
less serious in nature.
As a general rule bailable
offences are those in which
punishment is for or less than 3
years. But there are some
exceptions to this rule.
In Bailable Offences, bail can be
claimed as of right and is
granted as a matter of course by
the police officer or by court. Its
provision can be traced u/s 436
of CrPC
Ex: Cheating (Sec. 407 IPC),
Affray (Sec.160,IPC), Bribery
for elections (Sec 171E IPC)
In Rasiklal v. Kishore
Khanchand Wadhwani , It was
held by the apex court that the
right to claim bail granted by
sec. 436 in a bailable offence is
8 an absolute & indefeasible right
Non-Bailable offences
It is also defined u/s 2(a) pf
CrPC, as an any other offence
other than bailable.
Non- Bailable offences are
considered more serious /
heinous in nature.
The quantum of punishment is
high in Non- Bailable offences
which may extend to Life
Imprisonment.
Bail cannot be claimed as right
and court or the police officer
has discretion to grand bail after
considering facts and
circumstances pf each case.
Provision for Non- Bailable
offence is given u/s 437 of
CrPC.
Ex: Dowry Death (Sec. 304B,
IPC), Murder (Sec. 302, IPC),
Rape (Sec.376, IPC),
Voluntarily causing Grieve Hurt
(Sec. 326, IPC)
In Mansab Ali v. Irsan, It was
held by the apex court that since
the jurisdiction is discretionary,
it is required to be exercised
with great care and caution by
balancing valuable right of
liberty of an individual and the
interest of society at large.
 Comparing Right to Bail with various countries
United Kingdom
In the United Kingdom, under Section 4 of the Bail Act, 1976, any offender who has
appeared in front of court should be provided bail granted, that none of the exceptions apply
to the person. Even the conditions in bail are lenient and have to followed extremely only
when expectational cases. The exclusions to bail are offences like Murder, Manslaughter,
Class: A drug users, etc., where it is harder to get bail. Exceptions are like no-real prospect
test, or where the person is still a consistent threat to society.10
United States of America
The bail system in United States is inherited from Common Laws and United Kingdom.
Persons there are arrested and have to have a hearing for a pre-trial bail based on which the
courts decide whether to grant bails or not. The detention rates in the United States have been
increasing overtime, but cash bails are generally the norm. Uniquely, in the United States the
various states have differing state laws for bailable and non-bailable offences, but federally
bail is deemed to be the norm owing to common law.11
New Zealand
In New Zealand, the issue of bail can come into play at various points during the justice
process. New Zealand believes in the theory of innocent until proven guilty, and by holding
bail as a right they are upholding this tenet in society. The New Zealand Bail Act, 2000
Section 7 holds bail as a right in most cases except certain exceptions such as assault. Further,
in most cases the onus of showing why a person cannot be granted bail lies on the police and
prosecution but in certain cases like murder and sexual assault the onus of proof reverses.12
Saudi Arabia
In Saudi Arabia, for persons who have had trial their families can get temporary leave around
Ramdan-Eid through the Nafetha website but for pre-trial detainees for smaller offences their
exists a bail system where persons often do not get to choose their own lawyers and there is a
10
Cps.gov.uk. 2021. Bail | The Crown Prosecution Service. [online] Available at: https://www.cps.gov.uk/legal-
guidance/bail [Accessed 1 March 2022].
11
Zaniewski, A., 2014. Bail in the United States: A brief review of literature. [ebook] Massachusetts
Department of Corrections. Available at: https://www.mass.gov/doc/bail-in-the-united-states-a-brief-review-of-
the-literature/download#:~:text=Since%20the%20country's%20founding%2C%20the,England%20(Hegreness
%2C%202013)..
12
Courts of New Zealand. 2022. Bail decisions. [online] Available at: <https://www.courtsofnz.govt.nz/about-
the-judiciary/how-decisions-are-made/bail/#:~:text=Defendants%20who%20are%2017%20years,serious
%20offending%20(%20section%2015%20).>.
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lengthy pre-trial detention.13 Further, there are no databases showing information about
persons who have received bail.14

Recommendations
The 268th Law Commission Report from May15, 2017 gave many recommendations to the
Provisions related to Bail. Those along with the analysis-based recommendations are:
 There should be an increase in the number of bailable offences in the CrPC to ensure
that lesser people are detained pre-trial unfairly. Access to lawyers should also be
made easier along with financially, it should be made easier for poorer persons to get
access to bail and the quantum of money should be made less or negligible based on
the socio-economic situations.16
 The Right to Bail should be legally put in a legislation and the information for the
same should be more broadcasted so as to ensure proper justice systems. New Zealand
is a good example to learn from in this regard.
 Like in the case of Bhim Singh17, where the Supreme Court has stated that when a
prisoner has served half their term waiting for trial, they should be granted bail under
Section 436. In general, the time for trial or bail proceedings should be reduced.

Conclusion
According to the 1961, Vera Institute of Justice in New York, where the Manhattan Bail
Project18 was undertaken, it was found that the persons who receive bail and have better
connections to society with lesser conditions and bail rights are likely to return to court
earlier. While analyzing relatively, it can be seen in countries like the United States, United
Kingdom and New Zealand, bail is the norm and the governments ensure that progress is
13
Human Rights Watch. 2018. Saudi Arabia: Thousands Held Arbitrarily. [online] Available at:
https://www.hrw.org/news/2018/05/06/saudi-arabia-thousands-held-arbitrarily.
14
US Department of State. 2018. 2017 Country Reports on Human Rights Practices: Saudi Arabia. [online]
Available at: https://www.state.gov/reports/2017-country-reports-on-human-rights-practices/saudi-arabia/.
15
The Law Commission of India, Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail,
Report No. 268 (May. 23, 2017).
16
Report of the Expert Committee on Legal Aid: Processual Justice to the People (1973) (Chairperson: Justice
VR Krishna Iyer), Government of India, Ministry of Law Justice and Company Affairs.
17
Bhim Singh v. Union of India, (2015) 13 SCC 603.
18
Charles E. Ares, Ann Rankin, and Herbert Sturz, “The Manhattan Bail Project: An Interim Report on the Use
of Pre-Trial Bail,” 38(2) New York University Law Review 67-95 (1963); Rational and Transparent Bail
Decision Making: Moving from a Cash-based to a Risk-based Process ( Pretrial Justice Institute, 2012).
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made towards this direction to ensure every offender regardless gets an opportunity to bail
according to natural justice. This case talks about how natural justice is not violated when the
respondent is not always present for bail hearings and rather upheld. This is only because it is
important to highlight the importance of bail and bail as an essential right for every person
awaiting trial so as to ensure the reformative action is applicable in society.

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