“Justice delayed is justice denied.” This statement precisely shows India’s criminal justice system, where a large number of undertrial prisoners wait for several years to receive justice. One of the major reasons for this is denial of bail. Bail is a process by which a person is released from custody during the pendency of trials or is protected from arrest by obtaining anticipatory bail when one reasonably apprehends arrest for a non-bailable offence. Because of denial of bail, many accused persons spend several years in jail as undertrial prisoners before their guilt or innocence is determined by the court.
Right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right can’t be suspended even during a pandemic situation as is prevailing currently.1 This right loses its meaning when an accused person is detained for several years without completion of trial. Every individual is presumed innocent until proven guilty. Therefore, prolonged detention raises several concerns such as fairness, justice and individual liberty. Therefore, bail becomes a crucial right of an individual balancing the personal liberty of an accused and the interest of the society.
A recent example highlights this issue. The Supreme Court granted bail to a murder accused who had spent nearly nine years in jail as an undertrial. While granting bail, the Court strongly criticised the Allahabad High Court for failing to protect the accused’s fundamental right to a speedy trial under Article 21 of the Constitution.2 This decision once again brought the issue of bail jurisprudence into public discussion and emphasised the need for courts to safeguard personal liberty while ensuring the proper administration of justice.
This article discusses the meaning of bail, the different types of bail, the principles courts use while deciding bail applications, the challenges faced in the bail system, and whether the law of bail properly balances the rights of the accused with the needs of justice.
Constitutional and Legal Foundation
To understand the significance of bail in protecting personal liberty, it is necessary to examine its constitutional and statutory framework. Until 2023, bail procedures were governed by the Code of Criminal Procedure (CrPC), 1973, and then it was recodified with substantive change as the Bhartiya Nagrik Suraksha Sanhita (BNSS), 2023. Bail, in India, is not merely a legal right; it is considered part of a fundamental right under Article 21 of the Constitution. The Supreme Court has asserted this principle in several pronouncements.
Key Highlights Of Bail Law
- Bail protects the personal liberty of an accused person.
- Article 21 of the Constitution forms the constitutional foundation of bail jurisprudence.
- The BNSS, 2023, now governs bail procedures in India.
- Default bail under Section 167(2) is recognised as an important safeguard of personal liberty.
- Courts are required to balance the rights of the accused with the interests of society.
Bailable Offences
According to Section 2(c) of the BNSS, an offence listed in the First Schedule is a bailable offence or any offence made bailable by any other law for the time being in force.
The First Schedule states that the offences punishable with less than 3 years are bailable offences.
| Provision | Description |
|---|---|
| Section 2(c), BNSS | Defines bailable offences. |
| First Schedule | Generally provides that offences punishable with less than 3 years are bailable offences. |
Non-Bailable Offences
Offences other than bailable offences or offences punishable with 3 years or more than 3 years are non-bailable offences.
| Category | Description |
|---|---|
| Bailable Offence | Offence listed as bailable under the First Schedule or made bailable by any other law. |
| Non-Bailable Offence | Offence other than a bailable offence or punishable with 3 years or more. |
Supreme Court Ruling: The State v. Jagjit Singh
In The State v. Jagjit Singh, the Supreme Court stated:
…The error in the order of the High Court is that it did not consider whether the offence for which the respondent was being prosecuted was a bailable one or otherwise. Even if the High Court thought that it would not be proper at that stage, where commitment proceedings were to take place, to express the opinion on the question whether the offence under this case fell under section 5 which is bailable or under section 3 which is not bailable, it should have proceeded to deal with the application on the assumption that the offence was under 3 and therefore not bailable……,3
The Supreme Court ruled that if a person is accused of bailable and non-bailable offences, then the court will presume the case as a non-bailable offence.
Key Takeaways
- Personal liberty is protected under Article 21 of the Constitution.
- Default bail under Section 167(2) is a constitutional safeguard.
- BNSS, 2023, has replaced the CrPC, 1973, for bail procedures.
- Bailable offences generally include offences punishable with less than 3 years.
- Offences punishable with 3 years or more are generally treated as non-bailable.
- Where both bailable and non-bailable offences are involved, courts treat the matter as a non-bailable case, as recognised by the Supreme Court in The State v. Jagjit Singh.
Types of Bail
The Bharatiya Nagarik Suraksha Sanhita (BNSS) recognises different types of bail depending on the nature of the offence, the stage of the criminal proceedings, and the circumstances of the accused. The following are the principal types of bail under the BNSS.
Regular Bail
It is sought when a person is arrested for either a bailable offence or a non-bailable offence.
Section 478 of BNSS provides the provision for bail in case of a bailable offence. It is a statutory right of the accused person, and the magistrate is bound to grant the bail if he is ready to provide the bail.
Section 480 of BNSS provides the provision for non-bailable offences. It is not a statutory right; it is a discretion of the magistrate. Section 480(6) says that the magistrate granting bail must record his reasons in writing.
| Type of Offence | Relevant BNSS Provision | Nature of Right |
|---|---|---|
| Bailable Offence | Section 478 | Statutory right of the accused |
| Non-Bailable Offence | Section 480 | Discretion of the magistrate |
Default Bail
It is an automatic right that arises when the investigating agency fails to complete the investigation and file a chargesheet within:
- 90 days, in case of an offence punishable with life imprisonment, a death sentence or imprisonment for a term of 10 years or more.
- 60 days, in case of offences other than mentioned above.
| Investigation Period | Applicable Offences |
|---|---|
| 90 Days | Offences punishable with life imprisonment, a death sentence or imprisonment for a term of 10 years or more |
| 60 Days | Offences other than those mentioned above |
Anticipatory Bail
Section 482 of BNSS says that if a person is accused of a non-bailable offence and he apprehends getting arrested on reasonable belief at any time in the future, then he can seek anticipatory bail against arrest.
“The filing of a first information report is not a condition precedent to exercise the power under section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet yielded.” ⁴
It is designed to prevent the misuse of criminal charges against false allegations, particularly in politically or personally motivated cases.
Anticipatory bail can also be granted after the registration of an FIR, if the person is not arrested.
The court grants the bail, imposing certain conditions, such as:
- Making it available for police interrogations.
- Not influencing the witness or tampering with evidence.
- Not leaving the country without the court’s permission.
- Other conditions mentioned in section 480(3) of BNSS.
Anticipatory bail can be granted even after an FIR is filed, as long as the applicant has not been arrested. ⁵
Interim Bail
It is a short-term relaxation granted to an accused person while a regular or anticipatory bail application is pending.
This has no statutory basis, but it has evolved entirely through judicial precedents.
It is often granted on humanitarian grounds.
In Sukhwant Singh v. State of Punjab (2009), the SC asserted:
“Hence, we are of the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court concerned to grant interim bail or not, but the power is certainly there.” ⁶
Bail for Undertrial Prisoners Nearing Maximum Sentence
Section 479 of BNSS provides that undertrial prisoners be released on bail once they have served either half of the maximum sentence or one-third if they are first-time offenders.
This section does not apply to the offences punishable with life imprisonment or death sentence.
This section imposes a duty on the jail superintendent to flag such cases to the court, rather than leaving it to the prisoner to apply.
| Eligibility | Requirement |
|---|---|
| General Undertrial Prisoners | Completion of one-half of the maximum sentence |
| First-Time Offenders | Completion of one-third of the maximum sentence |
| Exception | Not applicable to offences punishable with life imprisonment or death sentence |
| Duty of Jail Superintendent | Must bring eligible cases to the notice of the court |
Bail as a Legal Right
Section 478(1) of BNSS, 2023, states that a person accused of a bailable offence is arrested without a warrant or brought before court, and if he is ready to provide bail, then he can claim bail as a legal right.
According to Section 480(6) of BNSS, 2023, if a person is arrested for non-bailable offense and he is in custody for more than 60 days, without conclusion of the trial, from the first date fixed for taking evidence then he can be released on bail to the satisfaction of the magistrate. The Provisions of Section 437(6), CrPC (currently Section 480(6) of BNSS), as such, cannot be considered to be mandatory in nature and cannot be interpreted to grant an absolute and indefeasible right of bail in favour of accused.⁷
Detention Limits Under Section 187(3) of BNSS, 2023
Section 187(3) of BNSS, 2023, provides that the magistrate may provide the detention of an accused person for more than 15 days if he is satisfied that there are reasonable grounds to do so.
But no magistrate shall allow the detention beyond the total period of:
| Category of Offence | Maximum Detention Period |
|---|---|
| Offence punishable with life imprisonment, a death sentence, or a term of 10 years or more | 90 days |
| Offence other than mentioned above | 60 days |
- a) 90 days in case of an offence punishable with life imprisonment, a death sentence, or a term of 10 years or more.
- b) 60 days in case of offence other than mentioned above.
In Hussainara Khatoon And Ors v. Home Secretary, State of Bihar (1980 SCC 108), the Supreme Court has stated that when an undertrial who has been in detention for 90 or 60 days, as the case may be, is produced before a magistrate, he is bound to inform the accused that he is entitled to bail as provided by proviso (a) of Section 167(2) of the Code of Criminal Procedure, 1973.⁸
Bail and Personal Liberty Under Article 21
Bail in India is not recognised as a fundamental right under the constitution. However, through several judicial pronouncements it has been brought under the scope of Article 21.
State of Rajasthan v. Balchand (1977)
In State of Rajasthan v Balchand (1977), the Supreme Court laid down the principle that “Bail is the rule and Jail is the exception.”⁹ This was the significant step taken in protection of individual liberty.
Gudikanti Narasimhulu v. Public Prosecutor (1977)
In Gudikanti Narasimhulu v Public Prosecutor (1977), the supreme court held “The significance and sweep of article 21 make the deprivation of liberty a matter of grave concern and permissible when the law authorising it is reasonable, even-handed and geared to the goals of community good and state necessity spelt out in article 19….” In this case, SC took one step further in the direction of safeguarding the personal liberty granted under Article 21 of the constitution and mandated that the law depriving this right must be reasonable. ¹⁰
Maneka Gandhi v. Union of India (1978)
In Maneka Gandhi v. Union of India (1978), the Supreme Court asserted, “…But mere prescription of some kind of procedure cannot ever meet the mandate of Article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.” ¹¹ Though this case was not related to bail jurisprudence directly, it changed the whole interpretation of Article 21 and made it mandatory that the statute must be reasonable, just and fair. Subsequently, this landmark judgement shaped the judicial decisions regarding bail.
Hussainara Khatoon v. State of Bihar (1979)
In Hussainara Khatoon v. State of Bihar (1979), a writ of habeas corpus discloses that a large number of undertrial prisoners were behind bars for years awaiting trials.
Even some of the offences were so trivial that they were punishable with not more than a few months.
The SC found this as a deprivation of Article 21 of the Indian Constitution. The SC asserted that “no procedure which doesn’t ensure a reasonable quick trial can be regarded as ‘reasonable, fair or just’, and it would fall foul of article 21. There can, therefore, be no doubt that speedy trial, and speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.”¹²
Uday Mohanlal Acharya v. State of Maharashtra (2001)
In Uday Mohanlal Acharya v. State of Maharashtra (2001), the SC linked Section 167(2) of CrPC to Article 21 of the Indian Constitution as follows:
…personal liberty is one of the cherished objects of the Indian Constitution, and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Indian Constitution. When the law provides that the magistrate could authorised the detention of the Accused in custody up to a maximum period as indicated in the proviso to sub-section 2 of Section 167, any further detention beyond the period without filing of a Challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Criminal Procedure Code, and as such, could be violative of Article 21 of the Constitution.¹³
Key Takeaway
These judicial pronouncements show that the bail is not expressly guaranteed as a fundamental right; it has evolved into an important constitutional safeguard for protecting personal liberty under Article 21 of the Constitution.
Challenges in Bail Jurisprudence
Bail jurisprudence in India has evolved considerably through constitutional principles, statutory provisions, and judicial precedents. However, despite these developments, several practical and systemic challenges continue to affect the fair implementation of bail laws. The following issues highlight some of the major concerns.
Impugned Judgements of Courts
It has been pointed out several times by the Supreme Court that courts have misunderstood the precedents of SC. And it has appeared as favouritism in the discourse of the public.
In Mohseen v. The State of Uttar Pradesh (2026), the SC found:
In the instant case, the impugned order fails to engage with: (i) the order of this Court dated 27.01.2025 in the first round; (ii) the conduct of the Respondent No. 2 in absconding and threatening witnesses post bail-cancellation; (iii) the CCTV evidence and the recovery of the country-made pistol at the instance of the Respondent No. 2; and (iv) the rejection of the second bail application by the Trial Court…..¹⁴
There have been several instances where the apex court has found the impugned judgement of the court.
No Precautionary Measures to Safeguard the Interests of Victims
The primary objective of bail is to safeguard the liberty of the accused while balancing the needs of justice. But it is often seen that the accused has abused the liberty granted through bail.
Recently, a POCSO-accused released on bail killed 3 members of the complainant’s family, including the victim and also his own wife and two young sons. ¹⁵
Unnecessary Denial of Bail
Despite having a comprehensive statutory framework governing bail, a significant number of undertrial prisoners are awaiting years before the conclusion of their trials.
Delays in the criminal justice system often result in prolonged incarceration, defeating the principle that “bail is the rule and jail is the exception.” Such delays also raise serious concerns regarding the protection of personal liberty under Article 21 of the Constitution.
Implementation Gap
The factors like pending bail applications, procedural delays, inadequate legal aid, and the lack of awareness among prison authorities regarding their proactive release obligations continue to hinder the effective implementation of bail provisions.
Poverty as a Barrier
Despite having a statute for indigence under BNSS or the judicial pronouncements directing to reduce or dispense with sureties for indigent persons, poverty is still the major obstacle in securing bail.
A huge number of indigent undertrial prisoners remain incarcerated because of the lack of funds, legal education and access to a good lawyer. This automatically leads to an increase in the number of indigent undertrial prisoners.
Summary of Key Challenges
| Challenge | Impact on Bail Jurisprudence |
|---|---|
| Impugned Judgements of Courts | Misinterpretation of Supreme Court precedents creates inconsistency and affects public confidence. |
| No Precautionary Measures to Safeguard the Interests of Victims | Misuse of bail may endanger victims, witnesses, and society. |
| Unnecessary Denial of Bail | Long incarceration of undertrial prisoners undermines Article 21 and the principle that bail is the rule. |
| Implementation Gap | Procedural delays, pending applications, and inadequate legal aid reduce the effectiveness of bail provisions. |
| Poverty as a Barrier | Financial inability prevents many indigent prisoners from obtaining bail despite legal safeguards. |
Key Takeaways
- Courts have, on several occasions, been found by the Supreme Court to have misunderstood binding precedents.
- Bail orders should balance the liberty of the accused with adequate safeguards for victims and witnesses.
- Delays in criminal trials continue to result in prolonged detention of undertrial prisoners.
- Procedural and administrative shortcomings create an implementation gap in bail jurisprudence.
- Poverty remains one of the biggest practical barriers to securing bail, particularly for indigent undertrial prisoners.
Reforms Under BNSS
The BNSS was framed with the objective to counter chronic delays and inconsistent bail practices.
The recodification of criminal law brought significant reforms in the direction of safeguarding the individual liberty, such as under section 479, a proactive release mechanism for prisoners who have spent either half of the maximum sentence or one-third of the maximum sentence (for first-time offenders). Also, section 193(2) provides that the investigation in certain offences against women and children, such as POCSO, must be completed within 2 months from the date of recording information. This section indirectly advocates for the speedy trial leading to justice for both victim and accused.
Key Reforms Introduced Under BNSS
- Section 479 introduces a proactive release mechanism for eligible undertrial prisoners.
- First-time offenders may be released after completing one-third of the maximum sentence.
- Other eligible prisoners may be released after completing one-half of the maximum sentence.
- Section 193(2) mandates that investigations in specified offences against women and children, including POCSO cases, must be completed within two months from the date of recording information.
- The reforms seek to reduce unnecessary incarceration and promote speedy justice.
Undertrial Prisoners and the Need for Reform
At present, the Indian jails are full with undertrial prisoners. Around two-thirds of inmates of prison are undertrial prisoners. ¹⁶ The major reasons for this situation include poverty, lack of awareness about legal rights and the laws governing bail, and the continued colonial mindset towards arrest. Arrest is a draconian measure, and detention for minor offences at the trial stage undermines the personal liberty granted under Article 21 of the constitution.
A large number of undertrial prisoners are accused of offences punishable with imprisonment of seven years or less. In many such cases, arrest can be avoided without affecting the investigation or court proceedings.
Major Causes of Overcrowding in Indian Jails
| Issue | Impact |
|---|---|
| Poverty | Limits access to legal representation and bail. |
| Lack of legal awareness | Many accused remain unaware of their legal rights. |
| Colonial mindset towards arrest | Leads to unnecessary arrests even in minor offences. |
| Delay in bail proceedings | Results in prolonged detention of undertrial prisoners. |
| Arrest in offences punishable up to seven years | Often unnecessary and avoidable without affecting investigation. |
Measures to Improve the Condition of Jails
To improve the present condition of the jail, the government should take effective measures.
- Basic legal education should be introduced as a compulsory or optional subject in schools and colleges.
- Legal awareness camps should also be organised in villages and rural areas to educate people about their legal rights.
- Further, lawyers may be appointed at police stations to provide legal guidance to the accused, victims, and their families.
- Regular training should also be provided to police officers to ensure that they exercise their powers of arrest in accordance with constitutional principles and the law.
Concept and Purpose of Bail
Bail is a set of pre-trial restrictions imposed on a suspect while enabling any interference in the judicial process. Thus, it is a conditional release on the solemn undertaking by the suspect that he would cooperate both with the investigation and the trial. ¹⁷ It is like a transaction which consists of the release of an accused in return for security that guarantees his presence in the trial process.
The purpose of a trial is to bring the accused before a court of law to ensure that justice is served or, in simple terms, to determine whether the accused is guilty or not. To achieve this purpose, it is often sufficient to secure the participation of the accused in the trial.
In a democratic framework, personal liberty is of paramount consideration, and unnecessary arrests undermine the fundamental values of a democratic state. A grant of bail enables an accused to continue living a normal life while defending himself or herself before the court.
However, there have also been instances where the liberty granted through bail has been misused. Therefore, while granting bail, courts must carefully assess the facts of each case and impose appropriate conditions to ensure that the accused does not abuse the liberty granted, such as by threatening the witnesses, tampering with evidence, committing similar offences or obstructing the administration of justice. In this way, the law can maintain a proper balance between the fundamental right to personal liberty and the interests of justice.
Objectives of Bail
- Ensure the presence of the accused during investigation and trial.
- Protect the fundamental right to personal liberty.
- Avoid unnecessary pre-trial detention.
- Maintain the integrity of the judicial process.
- Balance the rights of the accused with the interests of justice.
Conditions Courts May Impose While Granting Bail
| Condition | Purpose |
|---|---|
| Not threatening witnesses | Protects the fairness of the trial. |
| Not tampering with evidence | Preserves the integrity of the investigation. |
| Not committing similar offences | Prevents further criminal conduct. |
| Not obstructing the administration of justice | Ensures smooth judicial proceedings. |
| Cooperating with investigation and trial | Ensures the accused remains available for legal proceedings. |
References
- M. Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence, MANU/SC/0788/2020, para 11.7.
- https://lawbeat.in/top-stories/supreme-court-grants-bail-after-9-years-in-jail-slams-allahabad-hc-for-ignoring-right-to-speedy-trial-1586393
- The State v. Jagjit Singh, MANU/SC/0139/1961, para 3.
- Gurbaksh Singh Sibbia and Ors. v. State of Punjab, MANU/SC/0215/1980, para 42.
- Gurbaksh Singh Sibbia and Ors. v. State of Punjab, MANU/SC/0215/1980, para. 43.
- Sukhwant Singh and Ors. v. State of Punjab, MANU/SC/0866/2009, para. 4.
- Subhelal @ Sushil Sahu v. State of Chhattisgarh, 2025 INSC 242, para. 10.
- https://livelaw.duelibrary.in/articles/default-bail-in-indian-criminal-law-254194
- State of Rajasthan v. Balchand, (1977) 4 SCC 308, para. 2.
- Gudikanti Narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra Pradesh, MANU/SC/0089/1977, para 11.
- Maneka Gandhi v. Union of India and Ors., MANU/SC/0133/1978, para. 40.
- Hussainara Khatoon v. State of Bihar, MANU/SC/0119/1979, para 5.
- Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453, p. 472, para. 13.
- Mohseen v. The State of Uttar Pradesh and Ors., MANU/SC/0523/2026, para. 34.
- Man accused in POCSO case kills wife, 2 children and three more of complainant’s family in Telangana – The Hindu
https://share.google/shZ00fKF0LNbDWDQ6 - Satender Kumar Antil v. Central Bureau of Investigation and Ors., MANU/SC/0851/2022, para 5.
- Satender Kumar Antil v. Central Bureau of Investigation and Ors., MANU/SC/0851/2022, para. 9.
