Criminal Justice system
in any country is generally gigantic and complex
bestowed with multifarious goals, amongst which the safety and society of its
citizens is primary. In Indian criminal justice system, apart from many agencies
and its role in preventing and deterring crime has
always been a central point of discussion.
Their role in the system become crucial by the fact that they form the link
between the society members and the “system”
whereby they not only
conscientiously detect the crime and criminal but also ensures the fair
application of law in doing so. A meticulous investigation has always been
contended as a prerequisite for the fair trial in a “due process model”
followed in India, wherein firstly, there is presumption of innocence (barring
few) till the guilt is proved beyond reasonable doubt; secondly, the benefit of
doubt is to be given to the accused. In the aforesaid model, unlike “crime
” approach, the detentions of the innocent are seen as double failure
of the system.
A wrongful detention on one hand violate the rights of the person so detained
and also leads to breach of the security of the society and therefore the strict
adherence to this model emphasizes the prevention of unjustified detentions more
than guilty going unpunished. “Pre-trial Detentions” as an integral part of
investigations has always been questioned and despite the fact that Cr PC in the
year 2005 has been amended for the purpose of decreasing the number of pre trial
detentions, the frequency of arrest remains the same. Arrest and the associated
stigma attached has been a point of concern amongst judiciary and is been
highlighted by the apex court. Issuance of notice under sector 41A has been
insisted by the judiciary for the offences punishable up to seven years rather
than arresting a person.
Further, in addition, for mitigating the instances of unnecessary continued
detentions, bail provisions in the code have played a vital role. Since the
grounds for releasing the person are not exhaustively mentioned in the code, it
leads to non-uniform application of the laws. Though courts have on various
occasions while interpreting bail provisions in light of article 14, 19 and 21
reiterated that granting bail is a rule and its rejection is an exception but
irony is that the data of under trial prisoners have time and again proved
Reforms Of Bail Jurisprudence
The Law Commission made Recommendations to reform thirteen different areas of
Firstly, it discussed the process of ‘arrest'. In its first recommendation under
this category, the Commission argues that in order to prevent arbitrary arrest,
Section 41 of the CrPC should be amended. The Commission suggests that Section
41 should make it mandatory for the Investigation Officer to record the reasons
in the Case Diary and daily Diary Register, prior to making the arrest. The
Section should be amended to also make it necessary for the Investigating
Officer to obtain written approval by the Officer in Charge of the police
station. These steps would go some way in checking the practice of arbitrary
In the second recommendation, it recommends amending Section 50 of the CrPC.
This section asks the arresting authority to inform the arrestee in writing
about the offence committed and the grounds of arresting. However, the language
in which the notice is given to the arrestee must not necessarily be easy for
the arrestee to understand. Every arrestee cannot be acquainted with the
language known to the officials of the arresting authority.
There have been a number of bitter experiences where the arresting officials
handed over notices to semi-literate arrestees, written in the Queen's English
or, more accurately, in Indian bureaucratic legalese. Hence, the Commission
recommends the language of writing to be one that is conveniently understood by
the arrestee. This is a commendable suggestion. Section 50 should necessarily be
amended to make it mandatory for the arresting authority/officials to inform the
arrestee in a written language that he/she best understands.
The third category of recommendations is on ‘default or statutory bail and
'. The Commission discusses the underlying problems majorly in two
Sections of the CrPC. It talks about the intricacies and complexities of Section
The Court in State of Punjab v Mehar Singh and Ors
. observed that in the
absence of a special order of a Magistrate, the non-completion of an
investigation is not to be deemed to be sufficient cause for the detention of an
accused person. The Court further observed that the remand to custody may be
granted for compelling reasons when it is shown in the application that there is
good reason to believe that the accused can possibly point out or assist the
police in analyzing and cracking the case.
The Commission recommends considering the fact in the context of the remand by
appropriate authorities and suggests that the accused should not be detained in
the case when a special order of the Magistrate is absent and the investigation
is non-complete. The mandatory consideration of this context by the arresting
authority as well as the judiciary could be instrumental in preventing the
arresting authorities to follow short-cuts and ensure relatively freer and
fairer trial against the accused. Needless to add, the step would also check the
power of arbitrary arrest by the arresting authorities.
In its second set of recommendations under the category of default or statutory
bail and remand, the Commission recommends amending Section 309 of CrPC. It
highlights loopholes existing in sub-section 309 (2) of CrPC, which deals with
remand of the accused after cognizance of the offence has been taken by the
court. Where the trial is adjourned or constantly delayed, the Court may remand
the accused if he/ she is in custody. The provision nowhere mentions that the
Magistrate may also release the person from custody. This creates the problem of
suggesting that remand under the provision is a mandatory and also an exclusive
The Court should consider a two-way approach in order to ensure that the accused
is not taken on remand through improper means as well as in determining whether
the accused should be released or remanded. It should consider the compelling
need for the accused to remain in custody as well as the duration of undertrial
detention undergone by him/ her. The Commission recommends that section 309 (2)
be amended and an explanation be added that in case an accused is in custody and
the trial is getting postponed/ adjourned, the Court shall release him/her on
bail or remand the accused to further custody, for reasons to be recorded in
In another observation on Section 309 of CrPC, the Commission highlights the
problem of increasing number of pending cases and the consequent logjam.
Expressing its concerns on Section 309(1), it directs that the trial should be
held as expeditiously as possible – on a day-to-day basis when the examination
of witnesses has once begun.
The Commission argues that the Trial Courts are
already overburdened and it would be nearly impossible for them to expeditiously
dispose off trials by holding them on a day-to-day basis. We should not forget
that the position is no better at the District and lower court levels. In
December 2018, over 2.72 crore cases were pending as arrears, about 5,135
vacancies against a sanctioned strength of 22,677 existed in the lower judiciary
and approx one third of all High Court judicial posts were vacant.
Thirdly, the Commission made recommendations in the category of ‘conditions that
may be imposed in bail'. Under this category, the Commission talks about nuances
of conditions imposed on bail. The category has rightly been dealt with by the
Commission from an enhanced human rights perspective. The recommendations also
try to check the powers of the authorities to impose restrictions on the accused
that might affect his livelihood and day to day life while enlarged on bail. The
Commission argues that “a bail condition must not unreasonably violate the
rights guaranteed by the Constitution.
The debate on conditions imposed on bail is an ongoing debate, dependent on a
number of factors/facets and criteria. The challenge is to strike the ideal
equilibrium between the sociological, psychological, criminological,
socio-economical and judicial factors. Since ideal balances are difficult, if
not impossible to achieve in real life, it is obvious that if errors are to be
made or emphasis to be changed, they must err on the side of human liberty and
human rights, encapsulating the fullness of all facets of those phrases.
Fourthly, the Commission proposes modifying the Classification in Schedule I of
IPC. The Indian Penal Code, as well as the Code of Criminal Procedures, are both
characterised by high degrees of incoherence and inconsistency in offences
committed and terms of imprisonment awarded to the offender.
For example: According to Section 498-A of IPC, subjecting a married woman to
cruelty is a Non-bailable offence, punishable with imprisonment of three years,
whereas, according to Section 497, the offence of adultery is a Bailable
offence, punishable with imprisonment up to five years and is Bailable. The
classification of Bailable and Non-bailable offences as well as their relative
seriousnesses (and consequent imprisonment) is frequently illogical and
inconsistent. The Commission recommends that there should be consistency between
the term of imprisonment for offences and their classification as Bailable or
Fifthly, the Commission makes recommendations regarding anticipatory bail. The
Commission argues that the proviso in Section 438 on anticipatory bail must be
retained, despite this being contrary to the recommendations of the 203rd Law
Commission Report. The Commission argues that anticipatory bail must not only be
granted cautiously, but must also be made operative for a limited period of
time. Further, given the special position of Section 438 of CrPC and its
potential for misuse, every order passed under the section must be accompanied
with reasons for rejecting or granting anticipatory bail.
The Commission wants to treat anticipatory bail as an extraordinary privilege
It suggests the Courts exercise extreme caution in bestowing this privilege and
not grant anticipatory bail in a mechanical or perfunctory manner. Nuanced and
precise guidelines would ultimately have to be laid down by the apex court under
Section 438 to reduce the penumbra of ambiguity surrounding the provision and to
operationalise this wish of the Commission.
Sixthly, regarding economic offences, the Commission recommends that serious
economic offences like the circulation of counterfeit currency, black money,
customs offences, etc. have led to a need of change in approach towards
grant/denial of bail in such serious offences. According to the Commission,
there is a need to incorporate special provisions/statutes in CrPC for granting
or refusing bail in serious economic offences.
In addition, there is also a need for classifications of such offences in IPC.
Economic offences involve a number of related factors that could be lethal for
the society, market, and nation at large. The amount of money, nature of
scam/offence, impact on market/society, etc. should be considered, according to
the Commission, as the decisive factors in granting/rejecting bail to offenders.
Seventhly, the Commission makes recommendations on bail reforms in special laws.
It argues that since the offences dealt through special laws are serious and
grave, the bail provisions be tough and stringent. It cites the example of The
Narcotic Drugs and Psychotropic Substances Act (Statement of Objects and
Reasons, The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 1988,
seeking to amend the Narcotic Drugs and Psychotropic Substances Act, 1985),
Courts often grant bail on ‘technical grounds'. To deal with the serious crimes
dealt with by the Act as also to uphold and maintain the integrity of the act,
unconditional bails must not be granted under the Act.
Eighthly, the Commission recommends modification of Sections 436 and 436A of
CrPC. It suggests that the language of the section be made clear and unambiguous
to communicate that the bail under this section should not be trumped by
imposing excessive or unfair sureties.
The entire judicial system is based on precedents, where the question of law
already decided is binding upon all the lower courts. Similarly, in the matters
of bail, as part of the judicial discipline, there are several settled
principles such as balancing equities, allowing the bail applications only when
there is change in circumstances and so on.
It is quite settled that liberty of an individual must be zealously safeguarded
by the Court. But a judge should not be unduly influenced by the concept of
liberty, disregarding the facts and circumstances of the case.
In Shahzad Hasan Khan vs Ishtiaq Hasan Khan & Anr
the first respondent
and three others were alleged to have murdered the deceased. The first
respondent absconded after the occurrence and surrendered in court later. The
trial court rejected his bail application, and three successive bail
applications were rejected by a Single Judge of the High Court. The first
respondent made another attempt in the High Court to get bail.
Having regard to the judicial discipline and prevailing practice in the High
Court, another Single Judge of the High Court, sitting as a Vacation Judge,
ordered that the bail application be placed before the same learned Judge who
had dealt with the case on earlier occasions. However, a few days later, the
Judge, after recalling his earlier order, granted bail on the ground that the
trial could not be commenced or completed as directed by another Single Judge
and because of the delay the accused was entitled to bail, and that the liberty
of a citizen was involved.
But the Supreme Court set aside this order of the High Court observing that:
the single judge has erred in recalling his previous order of placing the matter
before the same judge who had decided the earlier bail petitions. The single
judge failed to satisfy itself of the fact that the accused was capable of
tampering with the evidence (as he had done earlier)
In Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr
applications of the accused-respondent were dismissed by the High Court of
Judicature at Patna and the same court allowed the 8th bail application and
enlarged the bail to the accused-respondent respondent as he had undergone
incarceration for a period of 3 years and that there was no likelihood of the
trial being concluded in the near future and appeal filed against the said grant
of bail came to be allowed in the Supreme Court on the ground that the High
Court could not have allowed the bail application on the sole ground of delay in
the conclusion of the trial without taking into consideration the allegation
made by the prosecution in regard to the existence of the prima facie case,
gravity of offence, and the allegation of tempering with the witness by threat
and inducement when on bail.
It is indeed a travesty of justice to keep a person for too long in prison and
as seen above the delay may be one of the factor for consideration of the bail
application but other factors must not be ignored. But the same court in
Kashmira Singh v. State of Punjab
has had a different finding altogether.
"It would indeed be a travesty of justice to keep a person in jail for a period
of five or six years for an offence which is ultimately found not to have been
committed by him. Can the Court ever compensate him for his incarceration which
is found to be unjustified?
Would it be just at all for the Court to tell a person: "We have admitted your
appeal because we think you have a prima facie case, but unfortunately we have
no time to hear your appeal for quite a few years and, therefore, until we hear
your appeal, you must remain in jail, even though you may be innocent?"
What confidence would such administration of justice inspire in the mind of the
public? It may quite conceivably happen, and it has in fact happened in a few
cases in this Court, that a person may serve out his full term of imprisonment
before his appeal is taken up for hearing. Would a judge not be overwhelmed with
a feeling of contrition while acquitting such a person after hearing the appeal?
Would it not be an affront to his sense of justice? Of what avail would the
acquittal to be such a person who had already served out his term of
imprisonment or at any rate a major part of it?
It is, therefore, absolutely essential that the practice which this Court has
been following in the past must be reconsidered and so long as this Court is not
in a position to hear the appeal of an accused within a reasonable period of
time, the Court should ordinarily, unless there are cogent grounds for acting
otherwise, release the accused on bail in cases where special leave has been
granted to the accused to appeal against his conviction and sentence."
Also the Hon'ble Supreme Court in State of Kerala v. Raneef
has observed that
keeping a person in prison questions the liberty of that individual and delay in
concluding the trail is not only one of the factor but the most important factor
in deciding whether to grant bail. And the Hon'ble Supreme Court in Sanjay
Chandra v. CBI has observed that the period of incarceration by itself would
entitle bail to the accused. And on both the occasions the Hon'ble Supreme Court
granted bail to the accused, thus leaving it for the respective courts to decide
what is to be done depending upon the facts and circumstances.
Another important aspect of bail is that an accused can file subsequent bail
application after the previous bail applications are dismissed but only if there
are change in circumstances and this is a settled principle. The civil law
concept of resjudicata and finality does not apply in the criminal law as it
involves an important question of liberty of an individual. This allows the
accused to get a favorable order of bail questioning the creditability of the
court and pestering the judges.
And the words change in circumstances are of much relevance in subsequent bail
petitions. In Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr
accused had applied for his bail eight times which were sought to be dismissed
by the High Court and further in appeal by the Supreme Court. Subsequently, his
ninth bail application was allowed and the accused was enlarged on bail on the
very same grounds on which he was previously denied bail and without there being
any change in circumstances or new facts or grounds.
The Hon'ble High Court, thus had ignored the earlier orders of the Hon'ble
Supreme Court which was violative of the principle of binding nature of the
judgments of the superior court rendered in a lis between the same parties, and
noted that such approach of the High Court in effect amounts to ignoring or
over-ruling and thus rendering ineffective the principles enunciated in the
earlier orders especially of the superior courts.
A person who anticipates his arrest for any offence can also file anticipatory
bail. The difference between bail and anticipatory bail is that bail is a post
arrest legal process, that is, it is granted only after arrest of the person
whereas anticipatory bail is a pre-arrest legal process in anticipation of
possibility of arrest of a person and bail is ordinarily granted as a matter of
right in case of bailable offence and it may also be granted in non-bailable
offences under Section 437, Cr. P. C. but power to grant anticipatory bail is of
an extra-ordinary character which is to be used by the Court sparingly.
And the principles with respect to the same are also unsettled and its
application may also vary from case to case basis. In Gurbaksh Singh Sibbia Etc
v. State Of Punjab
the full bench of the Hon'ble High Court of Punjab had held
that larger interest of the public and State demand that in serious cases like
economic offences involving corruption, which shakes the economic fabric of the
nation, anticipatory bail cannot be granted.
But the Hon'ble Supreme Court held contrary observing that:
We find ourselves unable to accept, in their totality, the submissions of the
learned Additional Solicitor General or the constraints which the Full Bench of
the High Court has engrafted on the power conferred by Section 438. Clause (1)
of Section 438 is couched in terms, broad and unqualified.
By any known canon of construction, words of width and amplitude ought not
generally to be cut down so as to read into the language of the statute
restraints and conditions which the legislature itself did not think it proper
or necessary to impose. This is especially true when the statutory provisions
which falls for consideration is designed to secure a valuable right like the
right to personal freedom and involves the application of a presumption as
salutary and deep-grained in our Criminal Jurisprudence as the presumption of
But this very Hon'ble Supreme Court in P. Chidambaram v. Directorate of
Enforcement vide two judge bench
has reiterated what was observed by the full
bench of the Hon'ble High Court of Punjab and observed that grant of
anticipatory bail, particularly in economic offences would definitely hamper the
effective investigation and thus the same cannot be granted. It is important to
note that the decision of the 5-Judges bench of the Hon'ble Supreme Court has
been given a go-bye by the division bench of the same court. And as part of the
judicial discipline the courts now would be bound by this very judgment and not
the earlier judgment.
A country's criminal law system can be ideal when it strikes a balance between
protecting the rights of individuals and rights of public at large. There are
many practices intertwined in the practice of the criminal jurisprudence with
the objective of maintaining law and order in the society. The provision of Bail
is one such practice which has earned more criticism than appraisals in the
Recently, The Supreme Court Bench consisting of Justices R. Banumathi, S.
Bopanna and H. Roya has granted Mr. Chidambaram, an ex -Minister bail in the INX
Media Case. The case revolves around the grant of the FIPB (Foreign Investment
Promotion Board) clearance to the INX Media Group in 2007. Justice Bopanna
remarked that “Bail is rule, refusal is exception.”
This is the rule which most of the courts follow in deciding whether to grant
bail or not because when bail is refused, a man is deprived of his personal
liberty, which is of too precious a value under our constitutional system,
recognized by Articles 19, 21 and 22.
What is Bail?
According to Black's Law Dictionary, Bail is defined as:
“Procuring the release
of a person from legal custody, by undertaking that he/she shall appear at the
time and place designated and submit him/herself to the jurisdiction and
judgment of the court.”
A precise definition of bail was provided by the Supreme Court in Sunil Tulchand
Shah v. Union of India
in which it was held that “Bail is a security obtained
from a person arrested regarding an offence for the purpose of securing his
presence during the course of trial.”
In the case of Superintendent and Remembrance of Legal Affairs vs. Amiya Kumar
, the Court held that the law of bails, “has to be dovetail two
conflicting demands, namely, on one hand, the requirements of society for being
shielded from the hazards of being exposed to the misadventures of a person
alleged to have committed a crime; and on the other, the fundamental canon of
criminal jurisprudence viz., the presumption of innocence of an accused till he
is found guilty.”
The concept and usage of bail can be dated back to 339 BC. The system of bail
was introduced with the practice of a concept known as circuit courts in Britain
during medieval times. In India, the provision of bail is governed by the Code
of Criminal Procedure, 1973, specifically, Sections 436 to 450.
It specifies the offences for which bail can and cannot be granted which depends
on the intensity and severity of the offence. It is the discretion of the court
to decide the bail amount on the basis of the offence and the economic status of
the person. There are mainly three types of bail in India; Regular, Interim and
Grounds on which bail can denied
In many cases, the considerations and grounds for granting and refusal of bail
have been interpreted by courts. The Hon'ble Supreme Court in the matter of
State of Maharashtra vs. Sitaram Popat Vetal
has stated few factors to be taken
into consideration, before granting bail, namely:
- The nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence
- Reasonable apprehension of tampering of the witness or apprehension of threat to
- Prima facie satisfaction of the Court in support of the charge.
Courts must deny bail only under three conditions:
- The person charged with the crime is likely to flee.
- The accused is likely to tamper with evidence or influence witnesses.
- The person is likely to repeat the same crime if granted bail.
These grounds should be considered by courts by evaluating the
factors as provided in the S.P Vital case.
Problems with Indian Bail System
In the famous case of Narasimhulu v. Public Prosecutor
, Justice Krishna Iyer
The subject of bail belongs to the blurred are of the criminal justice system
and largely hinges on the hunch on the bench, otherwise called judicial
It is imperative that discretion must be exercised with caution and care and
must be applied by balancing the interests of both justice and personal liberty
of individuals. It must not be arbitrary, vague and fanciful, but legal and
The recent trend of arbitrariness in exercising discretion has been a serious
roadblock in achieving the ends of justice. In cases involving high profile
individuals, bail is granted without considering the enormity of the case.
These individuals walk free when the people affected by them reel in injustice.
It has become a norm than an aberration in most jurisdictions including India
that the powerful, rich and influential obtain bail promptly and with ease,
whereas the mass/ common / the poor languishes in jails.
Another major problem in the bail system is the amount of bail bonds set by the
court. The economic and financial situation of a person and must be considered
before courts reach a decision regarding the amount of bail.
From the analysis of data and statistics in the Law Commission Report, it can be
observed that a majority of under trial prisoners i.e, 70.6% are illiterate or
semi illiterate which is an indicator of poor economic background.
They are trapped in the vicious cycle of poverty and illiteracy coupled with a
continuous violation of their right to personal liberty and dignity. Accused
person's economic status appears to have become the decisive factor for granting
Suggestions and conclusions
The provision of bail plays an important role in balancing the interests sought
to be protected under the criminal law jurisprudence. Courts must take
precaution in ensuring that discretion does not defeat its own purpose.
Protection of liberty and dignity of individuals is of utmost importance and
courts must either grant or refuse bail by keeping in mind the values of
equality, good conscience and justice. The bail jurisprudence needs to be
revamped with stronger and effective reforms.
A system of checks and balances, in the form of a competent authority, has to
brought into force targeting at the arbitrary exercise of discretion by courts.
Bail procedures for the economically marginalized section of the society must be
carried without much delay and formalities which would otherwise result in a
flagrant violation of their Fundamental rights.
- M.P Jain, Indian Constitution Law (Eighth Edition 2019)
- Taking Bail Seriously – The State Of Bail Jurisprudence In India (2020). Edited
by Salman Khurshid, Sidharth Luthra, Lokendra Malik and Shruti Bedi. Published
by Lexis Nexis, Gurgaon, Haryana1st edn.- ILI Law Review Vol. II
Written by Nisha Halder -
Heritage Law College ,7 sem