"Bail or jail at the pre-trial or post-conviction stage belongs to the blurred
area of the criminal justice system, and largely hinges on the hunch of the
Bench, otherwise called judicial discretion."
A bail is fundamental to a criminal justice system which guarantees the accused
a right to fair trial by granting provisional release in an ongoing case. This
system seeks equilibrium between 'Individual Rights' and 'Interest of the
Society'. It ensures liberty of an accused without granting unjust benefit.
A bail application is examined on a case to case basis keeping in mind factors
such as the enormity of charge, nature of accusation, severity of punishment,
danger of evidence and witnesses being tampered, health, age and sex of the
accused, etc. However, the discretion exercised by the court in practicing the
grant of bail is vague, arbitrary and ambiguous.
The paper will critically analyse recent bail orders to determine judicial
discretion in granting bail or imposing conditions under which a grant of bail
can be exercised. In this context, an attempt has also been made to understand
the jurisprudence and the impending philosophy behind granting bail to an
accused in the Indian judicial system.
"The issue of bail is one of liberty, justice, public safety and burden of the
public treasury, all of which insist that a developed jurisprudence of bail is
integral to a socially sensitized judicial process." - Justice V.R. Krishna Iyer in Gudikanti Narasimhulu case
The term 'Bail' has not been defined in the Code of Criminal Procedure, 1973.
However, the offences in the code have been classified as bailable and
non-bailable in Section 2(a) Cr.P.C. as: "bailable offence" means an offence
which is shown as bailable in the First Schedule, or which is made bailable by
any other law for the time being in force; and "non-bailable offence" means any
other offence. Section 436 and 437 of the Cr.P.C. deals with provisions to a
bail in bailable and non-bailable offences respectively. Bail is a matter of
right in the former while it is a matter of judicial discretion in the later.
The Black's Law Dictionary defines bail, "to procure the release of a person
from legal custody, by undertaking that he shall appear at the time and place
designated and submit himself to the jurisdiction and judgment of the court."
Bail, in law means, to acquire a release from the prison of an accused, who is
either awaiting a trial or an appeal by depositing a bail bond to the court
having jurisdiction, in order to secure their appearance at the time of the
trial and to ensure that if found guilty, they are available to receive the
sentence by the court. The bail bond to be furnished by the accused is not
mentioned in the Cr.P.C. and thus lies at the behest of the court.
If the bail is denied to an under-trail , it would mean that though they are
presumed to be innocent till the guilt is proved beyond reasonable doubt, they
would be subjected to the psychological and physical deprivations of jail
life. An under-trail loses their job and is prevented from contributing
effectively to the preparation of their defence. Equally important, the burden
of their detention frequently falls heavily on the innocent members of the
While a person who is a habitual offender, accused of a serious crime
and is likely to abscond in order to avoid a trial, will become an obstruction
to a fair trial and become a graver danger to the society if released on bail.
In order to circumvent the above-mentioned purposes the discretion exercised by
the legislature should be assiduous.
The nature of judicial discretion is based on range of circumstances such as
enormity of the charge, nature of accusation, severity of punishment,
possibility of absconding; threat to witness; health/age/ sex of accused,
position/status of accused, probability of committing more offences, previous
convictions and interest of society. This is not an exhaustive
catalogue. However, the judicial discretion in granting bail with respect to
social connotations, changing nature of crimes cannot be used
arbitrarily. The discretion exercised by the courts have failed to meet the
parameters guided by an elaborate procedure of law, creating a system which is
Bail over Jail
"…has to dovetail two conflicting demands, namely, on one hand, the requirements
of the 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 i.e., the presumption of
innocence of an accused till he is found guilty…"
The power to arrest an person affects the liberty of a person and can bring
humiliation, curtail freedom and cast scars forever. It can act as an
instrument to oppress and harass at the hands of the state.
The principle 'Bail is rule and jail is an exception' was laid down by the
Supreme Court in the landmark judgement of State of Rajasthan v.
Balchand. The court held that detention of an individual infringed their
right to life and liberty guaranteed under Article 21 of the
Constitution. The fundamental objective to arrest and detain an accused is
to secure their appearance at the time of the trial. If the presence is
otherwise ensured then it would be unjust to deprive the accused of their
liberty which is a fundamental right under the Constitution. Article 22, further
safeguards an accused from arbitrary and indefinite detention.
right is subjected to an exception i.e. social security. Additionally, two
salutary provisions under Cr.P.C. Section 167 (allows a person to be under
police custody for a period of 15 days on the orders of the magistrate only if
there are grounds to believe that investigation cannot be completed within 24
hours) and Section 437 (empowers the court and the officer-in charge of the
police station who has either arrested the accused or investigated the case to
consider the question of bail in a non-bailable offence) have been enacted to
avoid hardships in case of non-bailable offences.
The policy of law is to grant bail rather than refuse it. The Law Commission
recommended introduction of provisions in 2005 to grant relief to thousands of
prisoners who are awaiting trial to relieve them from overcrowded
prisons. Section 436A of the Cr.P.C. sets out that if a prisoner is released
on a bail or undergoes detention for half-term of imprisonment then they shall
It recommends that those detained for offences which might lead to
seven years of imprisonment be released on completion of one-third period of the
jail-term while those charged with offences leading to an extended term with
half of that period. And those who have spent entire term under trial can also
apply for remission. The commission further warns police officials against
unnecessary arrests and magistrates against mechanical remand orders.
complies with the Reformative theory of law; a balance between deterrent theory
and punitive theory which as the name suggests focusses on reforming an accused
by keeping them away from serious offenders of law and jail which is believed to
be an institution of crime.
The NCRB data, 2019 reveals that 69% of the country's prison population
comprises of pre-trial prisoners. S.D. Balsara in his paper 'Bail Not Jail-
Empty The Prisons', presents several compelling reasons to avoid pre-trial
detention. It includes: The presumption of innocence, The effect of detention on
the prisoner's private life, Prospect of acquittal become more bleak, Higher
ratio of pleas of guilty, Greater chances of imprisonment, Effect on morale of
the accused; Detaining offenders, who on conviction, are not considered suitable
for detention and Effect on prison population.
There is an increasing need
of granting anticipatory bail at a time when false cases are being filed in
order to disgrace a person by detaining them in jail for a few days or when
there is hardly any justification for a person to be held in custody. Recently,
in Munawar v. State of Madhya Pradesh , the stand-up comedian was arrested
under various sections of the IPC including Section 295A (deliberate and
malicious act intended to outrage religious feelings of any class) for allegedly
hurting the religious sentiments by cracking jokes on Hindu gods and goddesses.
He was held in jail for over a month and was denied bail thrice by the sessions
court and the High Court. Frooqi submitted to the Supreme Court that the
impugned order by the HC "spells a death knell to the fundamental concomitant of
bail jurisprudence which rests upon the principle that grant of bail is a rule
whereas its rejection it's only by way of an exception".
The comedian was
granted bail on the grounds that the investigation authorities failed to follow
the guidelines held in the Arnesh Kumar case, which held that arrests should
be an exception in cases where offences are punishable with less than seven
years of imprisonment. The Apex Court had imposed checks and balances on the
powers of police officials before and after an arrest of an accused. It further
directed the State Governments to instruct police officials to not arrest an
accused without check-list and a preliminary-investigation, re- emphasizing the
jurisprudence of bail in India balancing natural justice and personal liberty.
Judicial Discretion or Arbitrariness?
The recent judgements have exercised arbitrariness in exercising discretion
which have become a roadblock to the judicial system. On a closer scrutiny, an
observation can be made, in high profile cases, individuals are granted bail
without considering the gravity of the case. While, investigating agencies fail
to conduct a preliminary investigation causing illegal arrest of so called
"ordinary individuals". In Govind Prasad case, the Apex Court rightly ruled that
granting bail is a judicial and not a ministerial act. However, the courts now
and again have failed to exercise lawful 'judicial discretion'.
Swami Chinmayanand, former BJP leader and a self-styled godman had been
acquitted by the special court in Lucknow in connection with a sexual harassment
case in March 2021. However, it seems that the court had already decided the
verdict of the case while granting bail to the accused who was charged under
Section 376-C of the IPC. Justice Rahul Chaturvedi in a twenty-five page bail
order did not hesitate to make several unwarranted comments against the victim.
The accused here had strong political links while the victim seemed powerless,
who was victim-shamed about not speaking up about her painful experience. The
"A girl, whose virginity is at stake, not uttering a single word to her own
parent or before the Court regarding the alleged incident, is an astonishing
conduct which speak volumes about the ingeniousness of the prosecution
It is not wrong on the part of the judge to grant the accused a bail when
prosecution's case appears baseless, or if there is no possibility of the
evidence or witnesses being tampered. However, the conclusion in the bail order
that the case was made entirely out of greed and bad intention without any
conclusive evidence is a disaster of jurisprudence. Similarly, supporters of the
ruling party like Swami Assemanand and Sadhvi Pragya Thakur, who have been
linked to terror attacks roam freely.
The high profile case of Republic TV owner and editor Arnab Goswami proves that
the judicial system works with power and influence. Goswami's case was listed as
urgent and was granted bail within six days by the Supreme Court with a bail
condition of Rs 50,000 and no sureties, which is generally the rule.
Unlike the treatment meted out to prominent and connected people, common
citizens like academicians, 'inconvenient' journalists, student leaders and
activists are treated at the hands of the judiciary with a stark
difference. GN Saibaba, a former professor at Delhi University with 90%
physical disability charged with life imprisonment for alleged Maoists links
have been rejected bail petition for 45 days on medical grounds by the Nagpur
The accused has been suffering from multiple health problems.
His treatment in custody is a clear case of disability-based discrimination.
Failure to provide basic facilities such as western toilet or trained helpers
have not only led to compromising one's personal dignity and liberty but has
also deteriorated his medical condition.
The apex court in the Sunil Batra
case held that lives of prisoners cannot be reduced to mere animal
existence. The United Nations High Commissioner for Human Rights commented
saying, "We would like to remind India that any denial of reasonable
accommodation for people with disabilities in detention is not only
discriminatory but may well amount to ill-treatment or even torture."
imprisonment seems nothing more than an abduction by the government. Similarly,
Stan Swamy, an 83- year old Activist charged for alleged role in 2018 Bhima
Koregaon violence, suffering from Parkinson's and hearing disorder has been
denied bail. The conditions of these prisoners have not led the court to grant
bail even on humanitarian grounds. Let alone them being a threat to society if
released on bail, it will provide them with adequate medical attention and right
to live with dignity which the jail authorities fail to do so.
In a bail order of an accused Vikram Bagri, who was charged under Section 354 of
the IPC, the Madhya Pradesh High Court stated, "The applicant, along with his
wife, shall visit the house of the complainant with rakhi thread/band on August
3 at 11 am with a box of sweets and request the complainant to tie the rakhi
band to him with the promise to protect her to the best of his ability for all
times to come." Previously FIRs have been lodged against the accused in
offences including sexual harassment, assault of criminal force to woman with
intent to outrage her modesty and criminal intimidation.
The list of offences
prove that the man is a repeated offender and is a threat to the well-being of
the society. Additionally, by passing such an order, the M.P. High Court has not
only undermined the woman's modesty and independence, but also reaffirms a
patriarchal notion where a woman needs to be protected by a man.
Even if an accused is successfully released on bail the police officials book
them in another case. It has become a regular exercise by the state to curb the
dissent of a citizen by using harsh penal provisions like sedition i.e., Section
124A of the IPC, 1860. Pinjra Tod founders and research scholars at JNU,
Devangana Kalita and Natasha Narwal, who is expecting a child were granted bail
in matters regarding protests against the Citizenship Amendment Act in North
East Delhi. Soon after the court's order, the Delhi Police issued an
application to integrate the two in a separate case related to violence.
Despite, failure to show evidence that the activists were involved in hate
speech or incited particular section of woman and the Supreme Court's dismissal
of the Delhi Police's assertion that if released Kalita would tamper with
evidence, she still remains in Tihar jail. The delay in the conclusion of trial
violates the constitutional guarantee of a fair, just and reasonable procedure
and in fact a fundamental right of speedy trial.
During these unprecedented times the courts continue to function haphazardly.
The Supreme Court granted bail to 14 convicts of post-Godhra massacre where 23
people were burned alive. The incident was described by the Gujarat High Court
as: "We have seen senselessness of violence and loss of innocent human lives. We
cannot imagine the pain suffered by the victims who perished in the raging fire.
We cannot judge the depth of sorrow and despair of their families." By
granting bail to the culprits who were involved in a pre-planned inhuman
collective violent act of terrorism the apex court is setting a bad precedent
that one can roam freely even after committing such a heinous crime.
Unfortunately, the courts did not follow the same in case of activists like
veteran poet Varavara Rao who was tested Covid positive.
The inevitable decisions mentioned in the paper highlight inconsistencies in
grant of a bail order. It suggests that a bail cannot be granted arbitrarily
based solely on judicial discretion. Judicial orders should not violate
fundamental rights but situation in court rooms is questionable. A discretion
guided by the law, exercised with caution and care, must be applied by balancing
the interest of both personal liberty of Individuals and justice.
authorities need to interpret the bail orders in a systematic and effective
manner without any interference from government authorities and affiliations. An
accused should be granted a bail unless there are strong grounds that the
release would deter the societal well-being.
The period between the arrest and the judgement poses a serious challenge in a
criminal system, where an accused is presumed to be innocent until proven
guilty. For the accused pre-trial detention means loss of job, disruption in
social relationships, etc while on the other hand there is a risk of fleeing
from justice, obstruction in the course of justice. A bail can only balance
between 'freedom of person' and 'interest of social order' at the stage of
arrest, investigation, trial and appeal in case of conviction. Thus,
unnecessary pre-trial arrest should be minimised.
The routinisation of under-trial detention has become a tool for state
authorities to hush the critics without proving allegations against them by
keeping them in prisons for extended periods. This has led to a colossal waste
of public funds to keep undertrial prisoners. The courts owe more than verbal
respect to the principle that punishment begins after conviction, and that every
man is deemed to be innocent until duly tried and duly found
guilt. Unnecessary pre-trial detention imposes additional burden on the
state, and can even have psychological impact on the detainee.
The bail system in the country runs on the assumption that risk of monetary loss
is the only deterrent against fleeing from justice. This system of bail is very
discriminatory where the poor are priced out of their liberty in the justice
market. Alternate factors such as family ties, job security, roots in the
society, or membership in an organisation can act as determinative factors in
grant of bail where a person is released on a personal bond instead of monetary
Enactment of a comprehensive code reflecting the basic concepts, philosophy and
utility for grant and refusal of bail will ease rationalisation in judicial
discretion. Extend and power of a court to grant and refuse bail should be
clearly defined. A system of checks and balances of police authorities and
judicial officials during preliminary investigation and trial of an accused
should take place to avoid misuse of power, and if found misusing power they
should be penalized for depriving someone's liberty without due process. A bail
must be considered as a basic human need rather than just another procedure of
the criminal code.
- Gudikanti Narsimhulu v. Public Prosecutor, High Court of Andhra Pradesh,
(1978) 1 SCC 240.
- Black's Law Dictionary 181 (3rd ed., 1933).
- Moti Ram v. State of Madhya Pradesh, (1978) 4 SCC 47.
- Supra Note 1.
- K.N. Joglekar v. Emperor, (1) AIR 1931 All. 504.
- Sanjay Chandra v. CBI, (2012) 1 SCC 40.
- Arnesh Kumar v. State of Bihar, (2014) 8 SCC 469.
- State of Rajasthan v. Balchand, 1977 SCC (4) 308.
- M. Hanumantha Reddy v. Government of Mysore, AIR 1953 Mys 132
- Niranjan Sahoo and Vivek Jain, Justice System in Crisis: The Case of
India's Undertrial Prisoners, ORF Issue Brief (Aug.
- S.G. Goudappanavar, Critical Analysis of Theories of Punishment, JSS Law
- Prison Statics India, National Crime Records Bureau (Ministry of Home
Affairs) (2019). https://ncrb.gov.in/sites/default/files/PSI-2019-27-08-2020.pdf
- S.D. Balsara, Bail Not Jail- Empty The Prisons, Journal of the Indian Law
Institute, Vol. 22, No. 3 (July-September 1980), pp. 341-350 (10 pages).
- Munawar v. State of Madhya Pradesh, 2021 SCC OnLine SC 60.
- Supra Note 8.
- Govind Prasad v. state of West Bengal, 1975 Cri. LJ 1249.
- Swami Chinmayanand Alias Krishna v. State of Uttar Pradesh, 2020 SCC OnLine
- Arnab Goswami v. State of Maharashtra, (2021) 1 SCC 802.
- Ismat Ara and Sukanya Shantha, A List of Activists, Scholars and scribes
Whose Personal Liberty Remains at Judiciary's Mercy, The Wire (13 Nov.
- G.N. Saibaba v. State of Maharashtra, (2018) 12 SCC 505.
- Sunil Batra v. Delhi Administration, (1978) 4 SCC 409.
- UN experts urge India to release rights defender Dr. G.G. Saibaba on health
grounds, United Nations Human Rights (Office of the High Commissioner), (28 June
- Stan Swamy v. State of Maharashtra and Ors., 2018 SCC OnLine Bom 16849.
- Vikram v. State of Madhya Pradesh, 2020 SCC OnLine MP 9491.
- State of NCT Delhi v. Devangana Kalita, BA No.2038/2020, Delhi High
- Om Prakash v. State of Rajasthan, 1996 Cri. LJ 819
- Harishbhai Vallabhbhai Patel v. State of Gujarat, Cri. Misc. BA 17058 of
2012, Gujarat High Court.
- Supra Note 6.
- Sudesh Kumar Sharma, Dimensions of Judicial Discretion in Bail
Matter, Journal of the Indian Law Institute , July-September 1980, Vol. 22, No.
3 (July-September 1980), pp. 351-370.