One of the most common terms that one comes across while delving into the
domain of criminal law is bail. Derived from the French word Baliere
which means to set someone free
, bail amounts to the release of an
accused in a criminal case or civil suit on provisional bases.
Usually, bails are granted on various stringent conditions as established by the
law which may mandate the accused to abide by certain conditions which might
include being present in front of the police officials/judicial authorities
whenever called upon, signing a bail bond for a specific sum of money or giving
a surety to the court.
Violation of lex loci or law of the land calls for different types of
punishments including imprisonment in jails and judicial custodies but the
Indian Constitution through its Article 21 which takes into account the
fundamental right to freedom guaranteed to all citizens of the country states
No person shall be deprived of his life or personal liberty except
according to procedures established by law.
Thus, taking into context various
factors which led to the arrest of the accused like nature and category of the
crime, analysis of the evidences and testimony of the witnesses, quantum of
apprehended danger to the society in case the accused is let free etc., the
court deliberates upon whether bail should be granted or not. Also, in civil
cases the accused enjoys bail as a right whereas in criminal cases, granting
bail to an accused depends upon the will of the court.
Thus the essential
jurisprudence behind bail mechanism is to form an amalgamation between the
interest of the state and society in general with the right to freedom and
liberty of the under trial prisoner.
One of the most notable fact about the practice of granting bail is that even
though this practice dates back to the era of Mughal emperors and courts where
bail, then known as Zamanat
was granted, even though in the present
21st century the term bail does not find any place in the Code of Criminal
Procedure, 1973 or The Indian Penal Code, 1860 though the provisions and
statutory backing related to bail can be found under section 436 to 450 of
chapter III of Cr.P.C.
Classification of bails in India
In Indian law, the bails can be classified into the following three types:
Regular bailIt is a type of bail which is granted to an accused who has been arrested and is
in police custody after commission of a cognizable (an offense for which police
can start the investigation before the permission of the court and arrest the
accused without a warrant) and non-bailable offense. This type of bail
facilitates the release of the accused from custody to be present at the trial.
These type of bails are granted under section 437 and 439 of the Indian Penal
Anticipatory bailAs the name suggests, this type of bail is usually applied for by the accused
when there is an apprehension of being arrested as the result of being charged
for a criminal offense. This type of bail can even be applied before an FIR is
filed under section 154 of Cr.P.C and is granted under section 438 of Cr.P.C. It
is a pre – arrest relief that may be applied for by the plaintiff in the high
courts or the courts of sessions.
The right to life under Article 21 of the Indian constitution and section 438 of
Cr.P.C go hand in hand. In the landmark case of Badresh Bipinbai Seth v. State
of Gujarat, the apex court held that the provisions of article 21 and its
liberal interpretation should be taken into question while granting anticipatory
bail under S. 438. Also, through other judgments it has been established that
mere rejection of anticipatory bail by the courts does not give police the right
to arrest the appellant.
Interim bail This is a type of temporary bail which is awarded for a very short period of
time in case the application for anticipatory bail or normal bail is pending
before the court. Usually, this type of bail is applied when the accused
wants to avoid the jail or custody time during the period of the trial.
According to the nature of the offences and the right to obtain bail, offenses
can be classified as bailable and non – bailable offenses.
Bailable offenses are those offenses where bail can be granted to an accused
person as a matter of right. Covered under section 436 of the Cr.P.C, these
types of offenses usually carry less than three years of punishment and are less
heinous in nature. Bail in such offenses may be granted either by the courts or
the police/investigating officer handling the case after furnishing various
sureties or bonds by the accused or even without them. The presence of bail bon
plays a pivotal role in such type of offenses as the court or the police officer
may refuse to grant bail if the accused acts in contravention to the terms of
The other types of offenses are non-bailable offenses. Covered under article 437
of the Cr.P.C, in these types of offenses, bail is not available to the accused
as a matter of right. Thus it solely rests upon the discretion of the court to
grant bail to the accused or not. These types of offenses are rather heinous in
nature and usually carry punishment term of more than 3 years. The criminal
history of the accused, his credentials, apprehension of danger to society in
case he is let free and the risk of witnesses being pressurized or led by the
accused too become important factors while deciding the grant of bail to the
There are various conditions governing bail both in bailable and non – bailable
offenses too. Under the ambit of the Criminal Procedure Code, it should be clear
beyond reasonable doubt to the authorities granting bail in bailable cases that
the accused prima facie becomes to be innocent; there is a lot of investigation
to be carried on before establishing the guilt of the person or giving him a
clean chit, and the nature of offense is not heinous i.e. the punishment term is
less than 10 years.
According to provisions of section 437, bail can even be denied in bailable
offenses if the accused does not comply with the provisions furnished in the
bail bond. If a person is accused of a crime other than those where punishment
ascribed is death, and has completed half of his jail term in prison, he can be
released on bail bond during the tenure of investigation.
In case of non-bailable offenses, the person accused cannot demand bail as a
matter of right in the court and it depends upon the authority , will and
complete discretion of the court to decide whether bail can be granted or not.
The court may grant a bail to a person who has been arrested without a warrant
unless it has sufficient reasons and grounds to believe that the person is
guilty of an offense punishable with death or life imprisonment.
Also, bail may
be refused if the offense for which the person was arrested is cognizable in
nature or the person accused has been arrested for committing an offense of
cognizable nature in the past which may have included a punishment of more than
7 years or life imprisonment.
However, the courts take a humanitarian approach in granting bail to women and
children in case the evidences do not appear strong enough or there seems a need
of further and detailed investigation in the case to establish the guilt of the
accused. In the recent example of State V. Safoora Zargar
, five month pregnant
Safoora who was a student of Jamia Islamia University accused of UAPA in Delhi
riots was granted bail on humanitarian grounds by the High Court of Delhi on
humanitarian grounds due to her pregnancy even after several objections by the
additional solicitor general.
The humanitarian move which took turn towards
promoting the right to a healthy life and liberty was welcomed and celebrated by
many NGOs and human rights organizations. However, certain reasonable conditions
were imposed upon her which included no contact with witnesses to protect them
from being influenced, bar on travelling without taking permission and non -
engagement in the activities for which she was being investigated.
Fundamental principles of bail in India
One of the most basic fundamentals of Indian legal system is the jurisprudence
behind when the punishment for an accused begin? According to landmark case of Maneka
Gandhi V. Union of India, it was established beyond any reasonable doubt that
depriving any individual of his right to personal liberty without following the
due process of law must be considered as a punishment.
Moreover, it was held
that punishment for any offense alleged to have been committed by a person must
begin after the guilt of the person has been established by law.
Another important essential in dealing with bail cases is the presumption of
innocence of the accused where every person is presumed innocent until he is
proven guilty beyond reasonable doubt so as to protect his right to freedom,
liberty and life. In the leading case of State of Rajasthan V. Balchand alias
Baliya in 1978,
the prominent principle of Bail is the norm and
jail is an exception
was laid down based upon liberal interpretation of the fundamental
rights guaranteed by the constitution to its citizens so that unnecessary
harassment to the accused can be absolved and trials and administration of
justice can be done in a streamlined and smooth manner.
Moreover, this principle
helps save the interests of those who become the victims of vindictive
litigations and false cases lodged against them due to political rivalries,
personal vendetta or misunderstandings. Thus, this leads to the interpretation
that unless it becomes inevitable and indispensable, detaining a person should
be avoided at all costs.
In the recent unfortunate case of rioting at the Red Fort in Delhi on 26 January
2021, famous activist actor Deep Sidhu was granted bail despite being named as
one of the key accused in the case as it was appealed by the defense lawyers
that continued jail without direct and concrete evidence leading to his
incrimination would lead to plain miscarriage of justice, violation of personal
rights of individual liberty as there was only a remote possibility of him being
convicted in the case as police had only tried to carve an example out of him
due to the fact that he was a popular and prominent public figure.
Though there are numerous examples of bail being granted to the accused in a
number of matters even involving serious crimes, section 362 Cr.P.C clearly
states that no second bail application shall be admissible and entertained in
the courts of justice once a bail application has been rejected on similar
grounds. However, through various judicial pronouncements it has been
established that an accused person can file a successive bail application but
the courts must consider the grounds of rejection of the previous bail
Critical analysis and conclusion of bail jurisprudence in India
One of the most important and long overdue reforms in the bail jurisprudence in
India is that bails should be granted keeping in mind the innocence principle by
the courts. Very often, the bails get denied merely by looking at the nature of
the offense and often ignoring the fact that the crime on part of the accused
has not yet been established by the court after following the due process and
procedure established by the law. A thorough account of the evidences, witnesses
and the history of the accused must be kept in mind while granting bails to make
the process more rational, fair and transparent.
Moreover, in order to prevent miscarriage of justice in various statutes brought
in to protect particular disadvanted sections of the society like section 498A
(dowry harassment), section 375 (rape) and SC ST prevention of atrocities act,
there should be quick and effective redressal mechanism to finish the trial
efficiently without inordinate and unnecessary delays so as to acquit the
innocent people falsely accused in these cases and save valuable and productive
years of their life which would even lead to safeguarding the valuable human
resources of the country.
Last but not the least, the Indian bail system which often relies heavily on
furnishing bonds and securities, the poor and the lower economic strata of the
society have to bear the brunt of their poverty and find themselves in a
disadvantaged position due to their poverty when they are not able to furnish
high bail amounts set by the courts. In the case of Moti Ram V. State of M.P 1978,
it was held that setting arbitrary amounts as sureties or bonds violates the
right to freedom and right to equality of poor section of the society and wreaks
the whole purpose of ensuring justice to everyone which is the goal of the
Indian constitution. Thus the amount of sureties must be reasonable and must be
decided keeping in mind the economic feasibility and affordability of the
Thus, all these grey areas should be taken into light and necessary reforms
should be brought in at the earliest so as to ensure that the provision of bail
establishes a system of checks and balances within the country and legitimate
bails are given to those who deserve them so that the law of the land can be
maintained and rule of law is not violated in the country.
Award Winning Article Is Written By: Mr.Akash Sharma
Authentication No: AP33827869507-28-0421