The Jurisprudence of bail under Criminal Law has been expanding a vastly when
we see that it has been recognized by courts as low as magistrate court and as
high as the Supreme Court of India. It has its mentions in the criminal laws of
general nature as well as special legislations. However, there is a stark
difference between the theoretical application of bail and its practical and
Bailable and Non-Bailable offences
Bailable offences are those offences under which the police cannot arrest the
accused even for a second from the moment he produces the securities. The police
has a duty to inform the accused of his right to get bail.
However, under non-bailable offences, the person or the group of persons is
arrested and brought to magistrate within 24 hours of arrest and the police
demands police custody of the accused for further investigation and collection
evidence. After the duration of police custody is over, the accused is taken to
judicial custody and sent to jail after the magistrate examines whether further
custody is required.
In the lecture, an observation from Justice Sahay of Bombay High Court was
mentioned where he noted that for bailable offences, a remand report must be
considered for grating bail which must include the ingredients of the offence
Transit Anticipatory Bail
The concept of transit anticipatory bail expands the scope and jurisprudence of
bail. Though Section 438 does not mention about transit anticipatory bail, the
courts have been vocal about it. In N.K. Nayar Ors. vs State of Maharashtra &
, the Bombay high court had focused on the inclusiveness of section
438 in cases where the case against accused is filed in some other case.
The transit anticipatory bail deals with cases where the case is filed in a
state different from the place of the accused and he is seeking for an
anticipatory bail in that state. Such a provision favors the accused otherwise
another state's police gets the power to arrest him and then after arrest, he
would have to apply for regular bail.
This is a pure question of jurisprudence of the criminal courts in India and
this concept of anticipatory bail transcends the right of bail in such cases
After the 1973 amendment to section 438, the concept of anticipatory bail was
introduced. The very objective of anticipatory bail is to prevent influential
people from filing malicious cases against rivals and getting them detained in
jail. Moreover, it strengthens the practice of article 21 of the Constitution as
long as the accused has agreed to cooperate with the investigation, not likely
to abscond and not likely to tamper the evidence and witnesses. After the
amendment, exclusive power has been given to sessions court and the high court.
However, it must be given with caution, provided a major part of the decision
depends on the discretion of the magistrate.
Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab
 is a landmark
judgement and has laid down the scope of anticipatory bail. It observed that the
section 438 must be kept under the umbrella of article 21 and it should not be
limited or restricted by time. However, the court has the right to impose
restrictions depending on the case and facts. It can also withdraw the grant of
anticipatory bail if it is satisfied that the accused is not fulfilling the
Misuse of Bail
The jurisprudence of bail has been extremely vulnerable to its misuse by the
courts, accused and even prosecution. There have been many instances where the
accused has dishonestly tried to seeking interim bail by abusing the inherent
powers of the high courts under Section 482 of CrPC.
The courts must also be wary of the fact that where judicial instruments are
misused and abused by dishonest litigants/persons, they must be dealt with
harshly. The Hon'ble Supreme Court has consistently held that when it comes to
criminal prosecutions, arrests, investigations, and other things, the High
Courts should exercise their power under Section 482 CrPC with caution.
It is without any doubt that India's bail jurisprudence has travelled a long and
wide history and has come to a point where it requires much needed comprehensive
revamp. In 2017, the 21st law commission of India had stated that the current
bail system in India is 'inadequate' and 'inefficient' in achieving its
The fundamental principle of criminal jurisprudence is its presumption of
innocence. However, such a principle seems to be blurring when we see the rate
of arrest and their time period. It is also neglected in special cases where the
accused is made responsible to prove his innocence and till then he shall be put
Some may even argue that special legislations have defeated the purpose behind
bail. For an undertrial accused, when the time period for his custody crosses
the duration of imprisonment, had he been convicted, it violates his right to
life, personal liberty and disables him from proving his innocence.
Section 45 of the prevention of Money Laundering Act mentions twin tests of
bail. One is that the case must be prima facie and another is the magistrate
must be convinced that the accused shall not commit any future offences. These
conditions lose their structure under the principle of presumption of innocence
of the accused.
In the case of Sujeesh v. State of Kerala
, the court observed that at
this stage, granting bail to the petitioner could stymie the inquiry's progress,
and the risk of the petitioner influencing witnesses and interfering with the
investigation cannot be ruled out.
In the case of Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav and Anr
it was observed that the court that grants bail should use its power sparingly
and not on a regular basis. A thorough assessment of the evidence and extensive
documenting of the case's merits is not required at the stage of granting bail.
However, in such judgments, the reasons for prima facie concluding why bail was
granted must be stated, especially if the prisoner is charged with a serious
Bail can only be revoked in the event of unforeseen circumstances. The main
premise behind bail cancellation is that the bail order was legitimate when it
was issued, and it is only cancelled if the accused commits the same crime,
obstructs the investigation, tampers with evidence, flees to another country, or
performs acts of violence. This provision of bail cancellation compensates the
misuse that might happen under section 438 of CrPC.
The concepts that govern bail jurisprudence are numerous. However, if some
provision could be made that allows an accused to have personal representation
before the court in the event that his or her bail is denied, it would be a
fantastic step forward in defending the accused's rights and liberty. Delays in
granting bail to the accused, particularly if they are innocent, have an
influence on the welfare and well-being of society as a whole.
- N.K. Nayar Ors. vs State of Maharashtra & Ors., 1985 CriLJ 1887.
- Gurbaksh Singh Sibbia & Ors. Vs. State of Punjab, (1980) 2 SCC 655.
- State of Rajasthan v. Ravi Shankar Srivastava, (2011) 10 SCC 632.
- 268th Report, 21st Law Commission of India, 2017.
- Sujeesh v. State of Kerala, Crl. MC No. 633 of 2022.
- Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav and Anr. (2004 (7)
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