- -Justice as we know was a
right fundamental to all,
but it's fallacy is evident, as money now results in its fall - -
Objectively analyzed the criminal jurisprudence adopted by India
mere reflection of the Victorian legacy left behind by the
The passage of time has only seen a few amendments once in a while
satisfy pressure groups and vote banks. Probably no thought has
given whether these legislations, which have existed for almost
decades, have taken into account the plight and the socio-economic
conditions of 70% of the population of this country which lives in
poverty. India being a poverty stricken developing country needed
anything but a blind copy of the legislations prevalent indeveloped
The concept of bail, which is an integral part of the criminal
jurisprudence, also suffers from the above stated drawbacks. Bail
broadly used to refer to the release of a person charged with an
offence, on his providing a security that will ensure his presence
before the court or any other authority whenever required.
Meaning 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
submission at the required time to legal authority. The monetary
of the security, known also as the bail, or, more accurately, the
bond, is set by the court having jurisdiction over the prisoner.
security may be cash, the papers giving title to property, or the
of private persons of means or of a professional bondsman or
company. Failure of the person released on bail to surrender
the appointed time results in forfeiture of the security. The law
lexicon defines bail as the security for the appearance of the
accused person on which he is released pending trial or
Courts have greater discretion to grant or deny bail in the case
persons under criminal arrest, e.g., it is usually refused when
accused is charged with homicide.
What is contemplated by bail
is to "procure the release of a
legal custody, by undertaking that he/she shall appear at the time
place designated and submit him/herself to the jurisdiction and
of the court." 
A reading of the above definition make it evident that money need
a concomitant of the bail system. As already discussed above, the
majority of the population in rural India, lives in the thrall of
poverty and destitution, and don't even have the money to earn one
square meal a day. Yet, they are still expected to serve a surety
though they have been charged with a bailable offence where the
is entitled to secure bail as a matter of right. As a result, a
languishes behind bars, subject to the atrocities of the jail
authorities rubbing shoulders with hardened criminals and
being treated as a convict.
History of Bail
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
Evolution in England
There existed a concept of circuit courts during the medieval
Britain. Judges used to periodically go ?on circuit? to various
the country to decide cases. The terms Sessions
are thus derived from the intervals at which such courts were
the meanwhile, the undertrials 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 undertrials, who were hence separated from the
This led to their release on their securing a surety, so that it
ensured that the person would appear on the appointed date for
If he did not appear then his surety was held liable and was made
face trial. Slowly the concept of monetary bail came into
the said undertrials was asked to give a monetary bond, which was
to get forfeited on non-appearance.
In The Magna Carta, in 1215, the first step was taken in granting
to citizens. It said that no man could be taken or imprisoned
being judged by his peers or the law of the land.
Then in 1275, the Statute of Westminster was enacted which divided
crimes as bailable and non bailable. It also determined which
officials could make decisions on bail.
In 1677, the Habeas Corpus Act
was added to the Right 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
discharge prisoners from their Imprisonment taking their
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 offenses for which by law the Prisoner
is not bailable."
In 1689 came The English Bill Of Rights, which provided safeguards
against judges setting bail too high. It stated that "excessive
hath been required of persons committed in criminal cases, to
benefit of the laws made for the liberty of the subjects.
ought not to be required."
In 1976 the Bail Act 1976 came into force. It sets out the current
the basic legal position of bail prevailing in England. It lays
there is a general right to bail, except as provided for under the
Schedule of the Act. While there are different grounds for
right to bail depending on the type of offence, for all
offences the two basic grounds are as set out by the O'Callaghan
decision. But there is also the additional ground that if the
satisfied that there are "substantial grounds for believing" that
defendant if released on bail will commit an offence while on
may be refuse.
Under section 5(3) of the Bail Act 1976 the court which withholds
is required to give reasons, so that the defendant can consider
an application. In practice, however, the reasons given by
courts on a variety of standard forms are frequently short and not
explicitly based upon particular facts and factors. Stone's
Manual suggests that magistrates announce any decision to refuse
merely by relating the grounds and statutory reasons in short
English administrative law also requires that, where there is an
existing obligation to give reasons for a decision, the reasons
clear and adequate, and deal with the substantial issues in the
The English courts use tick boxes for recording the grounds and
reasons for not granting bail. There is a use of a standard
which lists out the various reasons for not granting the bail.
forms vary in their precise configuration, but in substance they
the same as all of them set out the grounds for refusing bail in
column, and a number of possible reasons for the findings those
established in another column. The decision is recorded by ticking
relevant box in each column. But the decisions recorded on
forms might be at risk of being characterised as "abstract" or
"stereotyped", and therefore inadequate. The quality of the
given directly reflects the quality of the decision-making
Evolution in America
According to the San Francisco News and the SF Chronicle, the
modern Bail Bonds business in the United States, the system by
person pays a percentage to a professional bondsman who puts up
as a guarantee that the person will appear in court, was
Tom and Peter P. McDonough in San Francisco in 1898. Infact, this
the same year that the Bill of Rights was introduced in England,
Congress passed the Judiciary Act. This specified which types of
were bailable and set bounds on a judge's discretion in setting
The Act states that all non-capital crimes are bailable and that
capital cases the decision to detain a suspect, prior to trial,
be left to the judge. In 1791 The Bill Of Rights was incorporated
Constitution of the United States, through the 5th, 6th and 8th
Amendments, guaranteeing citizens the right to due process of law,
fair and speedy trial and protection against excessive bail. The
Amendment to the Constitution of the United States provides that
"excessive bail shall not be required," but it does not provide
absolute right to bail.
Under current law, a defendant has the right to bail unless there
sufficient reason not to grant it. The main reasons for refusing
according to the Bail Act 1976 are that there are substantial
for believing that the defendant (1) will abscond; (2) will commit
further offences whilst on bail; or (3) will interfere with
Conditions may be applied to the grant of bail, such as living at
particular address or, rarely, paying an amount into court or
someone act as surety. Release on bail is sometimes referred to as
police bail, where the release was by the police rather than by a
The alternative to being granted bail is being remanded into
(also called being held on remand).
In America, every accused person is entitled to a hearing at which
evidence relevant to his individual case is considered to
amount of bail necessary. No precise rule can be laid down that
determine the amount of bail required in any particular instance.
is to be fixed according to the circumstances of each case. The
is generally one for the sound discretion of the trial court.
the determination of the trial court is subject to the review in
appellate courts for abuse of discretion, ordinarily the appellate
courts will not interfere if the amount set by the trial court is
reasonable and not excessive.
The amount of a bond should, of course, be sufficient to assure
attendance of the defendant upon the court when it is required.
should be fixed in such amount that will exact vigilance on the
the sureties to see that the defendant appears in court when
Both the Federal Constitution and state constitutions contain
against excessive bail. Bail set at an amount higher than
calculated to insure that the accused will appear to stand trial
submit to sentence if convicted is excessive, and falls within the
proscription of the Federal Constitution if set by a federal
of the particular state's constitution if set by a state court.
hard-and-fast rules for determining what is reasonable bail and
excessive bail have been laid down. That the bail is reasonable
in view of the nature of the offense, the penalty attached to the
offense, and the probability of guilt of defendant, seems no more
sufficient to secure attendance of the defendant.
The amount of bail, in and of itself, is not finally determinative
excessiveness. What would be reasonable bail in the case of one
defendant may be excessive in the case of another. As indicated
below, such matters as the past criminal record of the defendant,
the nature of the crime committed and the punishment therefore,
material factors in determining whether bail is excessive.
Where two or more cased are pending against a defendant, the fact
bail in one case, considered by itself, is reasonable, does not
the collective amount required in the several cases from being
The gist of the problem confronting a court in setting the amount
bail is to place the amount high enough to reasonably assure the
presence of defendant when it is required, and at the same time to
a figure higher than that reasonably calculated to fulfill this
and therefore excessive. The general rule in federal courts is to
strike a balance between the need for a tie to the jurisdiction
right to freedom from unnecessary restraint before conviction,
circumstances surrounding each particular accused. In other
in determining the amount of bail, the good of the public as well
rights of the accused should be kept in mind.
The Bail Reform Act of 1966 provides for the release of defendant
personal recognizance or upon execution of an unsecured appearance
in an amount specified by the judicial officer before whom he
unless the officer determines, in the exercise of his discretion,
such release will not reasonably assure the appearance of
required, in which event specified conditions of release which
reasonably assure defendant's appearance for trial may be imposed.
Bail Reforms Act, 1966 was initiated by President Johnson who felt
under the Federal Rules, bail in an amount higher than reasonably
calculated to be necessary to assure the presence of the accused
It has been stated that the factors to be taken into consideration
determining the amount of bail are:
(1) ability of the accused to
(2) nature of offense,
(3) penalty for the offense charged,
character and reputation of the accused,
(5) health of the
character and strength of the evidence,
(7) probability of the
appearing at trial,
(8) forfeiture of other bonds, and
accused was a fugitive from justice when arrested. 
is under bond for appearance at trial in other cases should also
A major factor in determining the amount of bail in a current
the character and former criminal record of the defendant. It has
held, however, that the criminal activities and tendencies of a
applying for bail on a charge of vagrancy do not justify the
bail at an excessive amount for the purpose of keeping him in
In determining the amount of bail, voluntary surrender may be
as an indication that the defendant has no intention of absconding
justice. On the other hand, it is also proper, in setting a higher
figure, to take into consideration the fact that at the time of
the accused was a fugitive from justice, or the fact that the
has previously absconded while under indictment.
Even where bail is a matter of right, the fact that a person has
previously forfeited bail is a factor to be considered in
the amount of bail; in such a case bail may be set in such amount
will reasonably assure the presence of the defendant at court,
bail may not be refused altogether. In setting the bail, the
may also consider the behavior or misbehavior of the defendant
parole from prison on a previous criminal conviction.
The probability of the establishment of guilt at the trial, or the
existence of doubt as to the guilt of the accused, is a proper
consideration in determining the amount of bail. Hence a court, in
determining the amount of bail, may consider the character and
of the evidence by which the crime charged is supported.
A court should give some regard to the prisoner's pecuniary
circumstances, since what is reasonable bail to a man of wealth
equivalent to a denial of the right to bail if exacted of a poor
charged with a like offense. An accused cannot be denied
from detention because of indigence, but is constitutionally
be released on his personal recognizance where other relevant
make it reasonable to believe that he will comply with the orders
However, bail is not rendered excessive by the mere inability of
accused to procure bail in the amount required. In other words,
extent of the pecuniary ability of the accused to furnish bail in
controlling, if it were, the fixing of any amount, no matter how
where the accused had no means of his own and no friends who were
or willing to become sureties for him, would constitute a case of
excessive bail, and would entitle him to got at large on his own
recognizance. It is the incarceration of those individuals who
meet established money bail requirements, without meaningful
consideration of other possible alternatives, which infringes on
due process and equal protection requirements.
The current American position is stated as follows in a standard
treatise "There is power in the court to release the defendant
bail or on his own recognition."
The Legal Position in India
The Criminal Procedure Code, 1973 (Cr.P.C. hereinafter), does not
define bail, although the terms bailable
offence and non-bailable
offence have been defined in section 2(a) Cr.P.C. as follows: "
Bailable offence means an offence which is shown as bailable in
First Schedule or which is made bailable by any other law for the
being enforce, and non-bailable offence means any other offence".
Further, ss. 436 to 450 set out the provisions for the grant of
bonds in criminal cases. The amount of security that is to be paid
the accused to secure his release has not been mentioned in the
Thus, it is the discretion of the court to put a monetary cap on
bond. Unfortunately, it has been seen that courts have not been
sensitive to the economic plight of the weaker sections of
unreasonable and exorbitant amounts demanded by the courts as bail
clearly show their callous attitude towards the poor.
According to the 78th report of the Law Commission as on April 1,
of a total prison population of 1,84,169, as many as 1,01,083
55%) were under-trials. For specific jails, some other reports
Secunderabad Central Jail- 80 per cent under-trials; Surat-78 per
under-trials; Assam, Tripura and Meghalaya-66 per cent
One of the reasons for this is, as already mentioned above, is the
scale poverty amongst the majority of the population in our
Fragmentation of land holdings is a common phenomenon in rural
family consisting of around 8 ? 10 members depends on a small
land for their subsistence, which also is a reason for disguised
unemployment. When one of the members of such a family gets
an offence, the only way they can secure his release and paying
is by either selling off the land or giving it on mortgage. This
further push them more into the jaws of poverty. This is the
reason why most of the undertrials languish in jail instead of
An overview of the following cases highlight the adverse condition
the poor with regard to the unjust bail system in India. In
State of Rajasthan v Balchand , the accused was convicted
trial court. When he went on appeal the High Court, it acquitted
The State went on appeal to the Hon'ble Supreme Court under Art.
the Constitution through a special leave petition. The accused was
directed to surrender by the court. He then filed for bail. It was
for the first time that Justice Krishna Iyer raised 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 , the accused who was a
mason was convicted. The apex court had passed a sketchy order,
referring it to the Chief Judicial Magistrate to enlarge him on
without making any specifications as to sureties, bonds etc. The
assumed full authority on the matter and fixed Rs. 10,000 as
bond and further refused to allow his brother to become a surety
property was in the adjoining village. MR went on appeal once more
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
In Maneka Gandhi v Union of India
, 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
are classified as bailable and non-bailable. Further Justice P.N.Bhagwati also spoke about how unfair and discriminatory the
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
brought before the courts in criminal cases are so poor that they
find it difficult to furnish bail even if it's a small amount.
Hussainara Khatoon and others v. Home Sec,State of
, the Court laid down the ratio that when the man is in jail for a
period longer than the sentence he is liable for then he should be
A perusal of the above cases highlights the strong anti-poor bias
Indian criminal justice system. Even though the courts in some
have tried to intervene and also have laid down certain guidelines
followed but unfortunately nothing has been done about it. There
a strong need felt for a complete review of the bail system
mind the socio-economic condition of the majority of our
While granting bail the court must also look at the socio-economic
plight of the accused and must also have a compassionate attitude
towards them. A proper scrutiny may be done to determine whether
accused has his roots in the community which would deter him from
fleeing from the court. The court can take into account the
facts concerning the accused before granting him bail:
(1) The nature of the offence committed by the accused.
(2) The length of his residence in the community.
(3) His employment status history and his financial condition.
(4) His family ties and relationships.
(5) His reputation character and monetary conditions.
(6) His prior criminal records, including any record or prior
recognizance or on bail.
(7) Identity of responsible members of the community who would
(8) The nature of the offence charged and the apparent probability
conviction and the likely sentence in so far as these factors are
relevant to the risk of non-appearance.
(9) Any other factors indicating the ties of the accused to the
community or barring on the risk of willful failure to appear.
The Way Forward
It is thought that from the various schemes the government
rural employment, loans to farmers etc, a portion of the funds
transfers to the panchayat for developmental work of the same
set aside and kept to meet the bail amount for undertrials
the particular panchayat / block. The utilization of this fund
in the hands of the elected leaders of the society with the
representative of district collector / district magistrate being a
of the system. This would, go a long way in securing freedom for
of undertrials who would then be able to contribute to society
playing an important role and forming part of the national
Such a scenario will have the effect of reducing the burden of
over-crowding in jail.
The setting up of separate jails, or at any rate isolating
from convicts, would prevent hardened criminals from exercising
deleterious influence over undertrials. Such segregation would
change the attitude of jail authorities and society at large
towards under trials.
The under trials who have been charged with petty crimes can
put in reformative homes instead and asked to do community service
the time they are released on bail. Elementary education facilities must be granted to those
under trials who
are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the
a few, but, should be available to the masses including those who
have the financial capacity to afford it.
1. Law lexicon by Ramanth Iyer, (3rd ed).
2. Black's Law Dictionary 177 (4th ed.)
3. Legislation has recently been enacted which, when brought into
will require magistrates? courts and the Crown Court to give
their decisions where they grant bail after hearing
the prosecutor in favour of withholding bail (Criminal Justice and
Police Act 2001, s 129). Such a requirement has the potential to
thoughtful decision-making and the proper consideration of the
that a defendant might pose if granted bail.
4. Stone's Justices? Manual 2000, para 1-432.
5. H W R Wade and C F Forsyth, Administrative Law (8th ed 2000) pp
6. State v Chivers, 198 La 1098, 5So 2d 363.
7. Braden v Lady (Ky) 276 SW2d 664.
8. Stack v Boyle, 342 US 1, 96 L Ed 3, 72 S Ct 1; Bennett v United
States (CA5 Fla) 36 F2d 475.
9. Spector v United States (CA9 Cal) 193 F2d 1002; United States
Rubnistein v Mulcahy (CA2 NY) 155 F2d 1002.
10. Delaney v Shobe, 218 (inability to give bond in the amount set
not sufficient reason for holding the amount excessive).
11. In addition to a higher bail, the court may require additional
sureties after a prior forfeiture of bail. Wallace v State, 193
182, 245 SW2d 192, 29 ALR2d 941.
12. McCoy v United States, 123 App DC 81, 357 F2d 272; Beddow v
259 Ala 651, 68 So 2d 503; People ex rel. Sammons v Snow, 340 III
173 NE 8, 72 ALR 798; Green v Peit, 222 Ind 467, 54 NE2d 281;
Mastrial, 266 Minn 58, 122 NW2d 621, certden 375 US 942, 11 L Ed
84 S Ct 349; Royalty v State (Miss) 235 So 2d 718; Ex parte
State (Miss) 235 So 2d 718; Ex parte Malley, 50 Nev 248, 256 P
13. Bandy v United States (US) 7 L Ed 9, 82 S Ct 11 (per Douglas
14. AIR 1977 SC 2447
15. AIR 1978 SC 1594
16. AIR 1978 SC 571
17. AIR 1979 SC 1360