When it comes to the issue of bail, it is one such domain of criminal
jurisprudence which is completely messed up. There are lots of academic writing
and judgments available on this issue because it is one such matter which is
directly related to personal liberty of an accused. Personal liberty of an
individual which is guaranteed by the constitution cannot be undermined so
In the matter of bail, courts are expected to balance between accused's interest
of right to life and personal liberty on the one hand and societal interest on
another side. They must not be carried away with retributive rage of victim.
Even if judges deny bail to an accused, there should be some sound reasons for
denial of such bail because the quality of such reasons is a clear reflection of
the quality of decision making process that was followed to reach such decision.
The law student is thought a general rule that a bail is a rule and a jail is an
exception. But this paper analysis various judgments of Supreme Court in order
to find out whether this rule is actually followed at ground level or this rule
remains a philosophy only.
There are two types of criminal justice system that exist in the world. The
first one is Adversarial system and the other one is Inquisitorial system. "In
Adversarial system burden to prove the guilt of the accused beyond reasonable
doubt lies on the prosecution and accused is presumed to be innocent. In this
system, criminal justice system have two main objectives, first is to punish the
culprit/guilty and second one is to protect the innocent.
In this system, judges acts like a neutral umpire and truth emerge from the
facts presented by the prosecution and the defendant". Role of judge in this
system is to see that whether prosecution is able to prove the guilt of the
accused beyond reasonable doubt and if judge find that prosecution has fail to
do so, then the benefit of doubt is given to the accused. If we compare it with
inquisitorial system, it is the judicial police officer in whom the power to
investigate the offence has been vested.
"In this system it the duty of trial judge to produce the evidence in the trial
and he also has the discretion to decide which witness to be called at the time
of trial. In this system most of the questioning of witnesses is done by the
trial judge" .
In India, we follow the adversarial system where Due process is the center.
As per Packer, due process model has following characteristic which makes it
- Due process model is based on the doctrine of legal guilty. It means
person is guilty only if his/her factual guilt is established in the
procedural legal fashion and by the authorities acting within competency
allotted to them.
- In this model, there are lots of huddles/ impediments in every stage of
criminal process in order to ensure that no innocent is wrongly implicated
in a case. Packer compared this model with factory system where lots of
quality checks are employed in order to ensure that end product is less
For example, at the time of arrest there are lot of safeguards provided in
Indian Constitution and Code of criminal procedure like Article 22(1),(2)
and section 55A, 57, 46 etc. respectively. All these safeguards are there to
ensure that innocent should not be wrongly implicated in a case. Because
state being a powerful have a capacity to wrongly arrest innocent person and
deprive them of their personal liberty to go where he/she pleases.
In case of Roshan Beevi v. Joint Secretary to government of…. , the
Madras High Court talked about legality of arrest and held that:
"In effecting a lawful arrest, the arrester should have the power or
authority sanctioned by law, to arrest. Otherwise, his action will be wholly
without jurisdiction and in such a contingency the person to be arrested has
got the right of private defence and can repel the arrest even by violence
subject to Section 99, I.P.C. Therefore, in order to have the action of the
arrester to be in conformity with the legal and constitutional provisions,
it must be an arrest properly and lawfully made in terms of the specified
provisions of the Criminal Procedure Code"
- In due process model burden to prove guilt of accused beyond reasonable
doubt lies on the prosecution.
- "Due process model operates on presumption of innocence. As per packer
presumption of innocence is a direction to the officials (including judges)
that when they will treat suspect they should avoid presumption of guilt."
In India, we follow due process model where presumption of innocence operates in
every stage. Therefore, we have safeguard of arrests and bail provisions in our
criminal process. We believe in establishment of legal guilt and not factual
This paper will deal with the issue of bail but it is interesting to note that
the term bail is no where defined in the Code of criminal procedure, 1973. It
only defines what are "Bailable Offence" and "Non Bailable Offence".
As per section 2(a) "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."
As per Black law Dictionary, bail is defined as:
"Procedure the release of a person from legal custody, by undertaking that
she/he shall appear at the time and place designated and submit him/herself to
the jurisdiction and judgment of the court".
History Of Bail
The Bail's history can be traced from 399 BC which was the period when Plato for
the first time tried to create bond in order to secure release of Socrates. But
modern jurisprudence can be said to have originated from the series of laws made
in England during middle ages.
During the middle ages in England, circuit courts were established in different
parts of England and judges use to visit these circuit Court periodically and
not regularly as it happens nowadays in order to decide cases including those
relating to bail. At that time in England the term session and quarter session
were used to reflect the time period when such courts were in operations. And
during such intervals when such courts were not in operations under trials were
kept in a prison waiting for their trail to commence.
As a result these jails were overcrowded with these under trail prisoners. Later
on reports were published in newspapers regarding the pathetic conditions of
such jails in which such under trial prisoners were kept along with the accused
of offences. At the same time there were protests from under-trial prisoners
also to improve their conditions in jail.
As a result administration decided to separate the cases of under-trial
prisoners from those who were accused of offences and under-trial prisoners were
given an option to secure their release only after exciting bond and after
furnishing surety who can ensure that under-trial will appear on the date
appointed for hearing. And if such under-trial did not appear in the trial on
the date appointed then his surety will be held liable.
After sometime the concept of monetary bail also emerges, under which
under-trial prisoners were asked by the administration to furnish a monetary
bond in order to secure their release form the jail. And if such under-trial
prisoners did not appear before the court on the date appointed for trial then
his bond money will be forfeited.
It is said that in 1215 when King of England was forced to sign Charter of
rights which is also known as Magna Carta, first step was taken in the direction
of granting rights to the citizens. Charter of rights Cleary states that "No man
could be taken or imprisoned without being judged by his peers or the law of the
land." Thereafter, government passed Statue of Westminster in 1275. This was an
important legislation because for the first time it was clearly expressed in the
act itself what bailable crimes and what are non bailable crimes. As well as,
the act itself provides that who are those judges and Government officials that
will decided the issue of bail.
Similarly, Habeas Corpus Act was passed in 1677 that gave the accused right to
know what all are the charges that were framed against him as well as the right
to Know whether charge framed against him were of bailable offence or of non
bailable offences. This act was passed in order to ensure that no person to be
detained unlawfully by the authorities.
English bill of Rights came into force in 1689, it was also an important
legislation because it provides safeguard against judges setting bail too high.
"Excessive bail hath been required of persons committed in criminal cases, to
elude the benefit of the laws made for the liberty of the subjects. Excessive
bail ought not to be required."
But in 1976 legislature passed Bail act 1976, this was a land mark legislation
because it was purely based on the principle that we all follow today, that is
bail is a rule and jail is an exception. This act expressly stated that if crime
does not fall under first schedule of the act then it will be considered as
More over act also provided the grounds on which bail can be refused by the
judge but section 5 Sub Clause (3) of the act also required that order refused
bail to an accused must be reasoned one. It is in line with the administrative
law principles operating in England at that time which required that whenever
there is an obligation imposed by the statue to give reason for any decision
then such decisions must be clear, adequate as well as deal with substantial
issues in the case. Basis of having such principle was that quality of reason is
a clear reflection of quality of decision making process that was followed to
reach such reason.
Bail Is Provided Under Law In Two Frameworks:
- Constitutional framework
- Statutory framework
Constitutional Framework On Bail And Its Judicial Approach
The Constitution of India is important because it is a pillar of criminal
procedure followed in India. In other words, constitution is foundational stone
on which entire criminal procedure is built. Therefore, it very important to
talk about constitution articles while dealing with provisions of CrPC. The
constitutional provisions particularly Part III of the constitution which deals
with the Fundamental rights of protection of life and personal liberty of
Also, Article 19 of the constitution which deals with freedom of speech and
expression, right to movement and reside in any part of India, assembly with
arms etc. But we also need to understand that freedoms granted under Article 19
are not absolute rather there are reasonable restrictions imposed on such
freedoms provided in article 19(2).
Article 21 of the Indian constitution states that "No person shall be deprived
of his life or personal liberty except according to procedure established by
law". The language of Article 21 is negative i.e. it is a restrictive provision.
The word 'State' has not been used in article 21, so it appear that primarily it
is the duty of private Individual not to create those circumstances which amount
to deprivation of liberty and personal liberty.
But in actual reality, it is the state that has the primary duty to ensure that
it does not violate life and personal liberty of private individuals through it
activities. In Article 21, the word used is 'person' which includes citizens as
well as non citizens.
It is an umbrella article and one of the important foundations of criminal law
in India. In pre Maneka Gandhi, Supreme court used to make strict and literal
interpretation of Article 21 of Constitution. In A.K. Gopalan case
contented by the petitioner that the expression 'procedure established by law'
is similar to 'due process of law' followed in American constitution.
And only difference is that 'due process of law' followed American constitution
gave protection from both substantive law as well as from procedural law whereas
article 21 gave protection from procedural law only. Word 'law' does not means
any law rather there has to be reasonable, principle of natural justice
followed. But court rejected this contention of petitioner and held that
'procedure established by law' does not include 'due process of law' followed in
Before Maneka Gandhi Judgment
, the courts approach was that if procedure
established by law is followed then it is sufficient and there is no need to
look into if such procedure is arbitrary, unreasonable and violate principles of
But after Maneka Gandhi Judgment, the Supreme Court gave new interpretation to
'procedure established by law'. Now, a procedure through which a person could be
deprived from his/her personal liberty must be non arbitrary, reasonable, fair,
principle of natural justice followed in every procedure. While framing the
Indian constitution, framers rejected the American concept of due process
because of it is elastic and uncertainty.
However, by Maneka Gandhi Judgment this concept of due process has been brought
back in India. It provides that any procedure must pass the test of Article 21
along with the test of Article 14 and 19 of the Constitution.
Justice Krishna Iyer in Sunil Batra v. Delhi Administration
that due process means any deprivation of life and personal liberty should only
by reasonable and non arbitrary procedure.
Personal liberty is one of the sacrosanct of the Indian Constitution. And its
dimension has been widen by the judiciary from time to time through its
judgments. Now personal liberty includes condition in a prison, solitary
confinement as well.
Article 22 (1) & (2) is to be read with Article 21 in order to have complete
understanding of concept of liberty as together they form one part. When a
person is arrested, his personal liberty has to be curtailed.
These above mention fundamental rights are sacrosanct of criminal justice
system. And they all are interlinked with each other. Though Bail has not been
defined in the Code of Criminal procedure but bail has a constitutional
foundation attached to it.
Statutory Framework On Bail And Its Judicial Approach
The term bail is no where define in Code of criminal procedure. It only defines
what are "Bailable Offence" and "Non Bailable Offence. The provisions of bail
are provided under Chapter XXXIII Section 436 to 440 of CrPC which provides
cases in which bail can be taken, the maximum period for which an undertrial
prisoner can be detained, conditions of bail and other related provisions.
The Right Of Bail Varies In Bailable And In Non-Bailable Offences Such As:
- In bailable offence bail can be obtain as a matter of right provided
accused furnished bail bond. Whereas in non bailable offences bail cannot be
obtain as a matter of right.
- In bailable offence it is not depend upon judicial discretion whereas in
case of non bailable offence granting of bail is purely a matter of judicial
discretion. Whole cases will be scrutinize by the judge before granting the
bail in case of non bailable offence.
One may argue that constitutional freedom approach in the matter of bail is
more appropriate than statutory approach. But it is to be understood that such
interpretation is not good one because constitutional approach has its own
limitations. For example, article 21 of the constitution states that state can
curtail personal liberty only if there is a procedure established by law and
through judicial interpretation we know that such procedure must be reasonable,
fair, non arbitrary and natural justice followed.
Suppose, a person is arrested by police and he has been denied bail, so state
may say that it has well established procedure and their procedure is
reasonable, fair and non arbitrary. So bail can be denied to a suspect. In such
a situation, we will have no other option left. Therefore, statutory framework
approach will be much better, where we are having better judicial precedents.
In the matter of bail, court must maintain balance between accused interest of
right to life and personal liberty on the one hand and societal interest on
another side. The societal interest lies in the fact that there has to be peace
and harmony in the society and there has to be sense of stability and security
in the society. On the other hand, individual interest lies in the fact that his
freedom of action will be guaranteed but any such freedom of action if it
threatened societal peace and stability and sense of security, then such action
can be curtail.
Crime is said to be a wrong against the society. Now the question arises that if
crime is aimed at a particular individual, why does state has to take a
responsibility to prosecute an accused person? Answer to such is that though
crime is aimed at a particular individual but it shakes the larger societal
conscience and shakes the sense of the security in the society. Therefore, it is
the state which prosecute the criminals and punishes him for the wrong done. As
we know that there is a social contract between State and its subject, citizens
will follow the rules made by the legislature in return state will ensure their
In the matter of bail, it is necessary that court must distinguish between
person suspected of crime and person convicted of crime. In the matter of person
suspected of crime presumption of innocence must be taken very seriously. As
packer suggested, presumption of innocence is not contrary to presumption of
guilt. Rather presumption of innocence is a direction to the officials
(including judges) to avoid presumption of guilt in their treatment to suspects.
Criminal justice system which we followed in our country, the competency to
decide the guilt of the person is vested in the courts and not the police
officers. Police officers have been vested with the competency to investigate
the offence only. Criminal justice system works in better manner when we have
good allocation of competencies in our system. It is true that while considering
the matter of bail societal interest must be taken into consideration but it
important to note that at the same time one cannot ignore individual interest
If one keeps on denying bails then criminal justice system goes on toss. Under
Part III of the Indian constitution, it talks about each and every individual
and not about whole societal rights. So when judge consider matter of bail it
must do balance between individual interest of right to life and personal
liberty on the one hand and societal interest on another side.
Section 436 to 450 of the CRPC deals with provisions of bail and bail bond in
criminal matters. It is interesting to note at nowhere in the Code of criminal
procedure it has been mentioned that what amount of security need to be paid by
the accused in order to secure his release. Entire matter has been left at the
discretion of the magistrate to put monetary cap on the bond to be furnished by
the accused. But it has been seen in number of cases that courts are not very
sensitive toward the socio-economic condition of the accused.
In many cases it has been shown that courts demand such an unreasonable amount
as bail bond that it will become impossible for poor accused to furnished bail
bond for securing his release. This is one of the major reason why most of the
under trial prisoners are in jail instead of being out on bail. Therefore it
must be taken into consideration by the magistrate that majority of Indian
populations is still poor and it would not be possible for them to arrange such
an unreasonable and exorbitant amount of bail bond.
"According to prison statistic in India 2019, number of under trail prisoner has
increased from 323537 in 2018 to 330485 in 2019( as on 31st December of each
year), having increased by 2.15% during this period."
In the case of State of Rajasthan v. Balchand , Justice Krishna Iyer made
"While the system of pecuniary bail has a tradition behind it, it may well be
that in most cases not monetary suretyship but undertaking by relations of the
petitioner or organization to which he belongs may be better and more socially
Similar situation arises in the case of Moti Ram v. State of M.P.
the accused who was convicted by the court was a poor mason. The Supreme court
of India made a strict order directing CJM to release accused on bail but Apex
court did not made any specific reference as to bond, sureties etc. However, CJM
presumed that he has a full authority in the said matter and therefore fixed
10,000 rupees as surety and bond.
When accused showed his inability to furnish
such amount of bond and requested magistrate to accept surety from his brother, CJM refused his request merely because the brother's assets and property were in
Justice Krishna Iyer observed that judges should be more inclined toward bail
instead of jail. It should be law of bail and not law of poor or law of rich.
"If mason and millionaire were treated alike, egregious inequality is an
inevitability. Likewise, geographic allergy at the judicial level makes mockery
of equal protection of the laws within the territory of India. India is one and
not a conglomeration of districts, untouchably apart".
In Hussainara Khatoon v. Home Secretary, State of Bihar case
, the Supreme
Court found that cases of under-trail prisoners that has been filed before them
have been in the jail for period longer than maximum term for which they could
have been sentenced if convicted.
In the present case, court took into account the plight of the poor under-trial
prisoners that most of the time they have been unaware of their right to obtain
bail or due to their socio-economic conditions they could not engage lawyer for
them or in most of the cases court refused personal bond of the accused and
insisted that monetary bond with surety must be furnished in order to secure
bail. "In this case court recognized the callousness of the legal and judicial
system and unjustified deprivation of personal liberty."
In this case court emphasis that there is no reason why these under-trial
prisoners should be allowed to continue to languish in jail, merely because of
the fault of the State to not try them within a reasonable period of time. The
possibility of some of them being acquitted of the offences charged against them
yet having spent several years in jail for offenses which they are ultimately
found not to have committed will be detrimental to their freedom of personal
liberty. Hence, the speedy trial of persons accused of offenses becomes
essential to ensure that the accused persons do not have to remain in jail
longer than is absolutely necessary.
The Court stated that procedure established by law as expressed in Article 21 of
the constitution means procedure through which person could be deprive from
his/her personal liberty cannot be any and every procedure rather it must be
non-arbitrary, reasonable, fair and follows principle of natural justice.
But existence of a procedure that makes accused deprived of access to legal
service and in absence of such legal aid, accused has to go for trial without
lawyer cannot be said to non-arbitrary, reasonable and fair. Therefore, it is an
essential feature of any non-arbitrary, reasonable, fair procedure that every
poor and needy person should be provided with legal service. The court further
elaborated and stated:
"The poor in their contact with the legal system have always been on the wrong
side of the law. They have always come across "law for the poor" rather than
"law of the poor". The law is regarded by them as something mysterious and
forbidding-always taking something away from them and not as a positive and
constructive social device for changing the socio economic order and improving
their life conditions by conferring rights and benefits on them.
The result is that the legal system has lost its credibility for the weaker
sections of the community. It is, therefore, necessary to inject equal justice
into legality and that can be done only by a dynamic and activist scheme of
Through 2005 amendment in code of criminal procedure section, Section 436A has
been introduced which focuses to provide the maximum period for which an under
trial can be detained.
In 2013, Home ministry came out with certain guidelines in order to reduce the
problem of overcrowding in the prison, especially with respect to those under
trial prisoners who are accused of minor offence but due to their socio-economic
conditions could not arrange for bail bond or could not engage lawyer for them
and those prisoners who are not aware of their rights to bail.
But as per amnesty international report, these guidelines remain only in pen and
paper and no efforts or very minimal efforts were made by Home ministry and
state government as well by prisons administration to implement it. As a result
there is no improvement in the conditions of under-trail prisoner in India.
per amnesty international report, only 85% of prisons were aware of Review
committee that need to be constituted by every state government as well as by
union territory under the guidelines of Home ministry. Only 78 prisons have
educated the under trail prisoners regarding their right to bail. Only 59% of
prisons sent survey list to district legal service authority and review
Different Aspects Alongwith The Problems Relating To Bail
There are various problems which are faced by under trial prisoners and the
courts while granting bail are as:
- When it come to matter of bail court gives more priority to societal
interest instead of balancing it with individual interest. They are not
sensitive towards individual interest as they do not consider those
prisoners as human. In the case of Sunil Batra (II) v. Delhi
Administration case, the Supreme Court observed that:
"This Court has rejected the hands-off doctrine and it has been ruled that
fundamental rights do not flee the person as he enters the prison although
they may suffer shrinkage necessitated by incarceration."
There cannot be a blanket ban on all fundamental rights of prisoners rather
only such rights will be curtail which are necessary for that thing.
- It is necessary that court must take into consideration what is the
degree of seriousness of a particular crime at the time of considering the
question of bail.
- Also, in matter of bail Judges have the discretion in the matter of
bail. As stated by court:
"The vesting of 'discretion is the unspoken but inescapable, silent command
of our judicial system, and those who exercise it will remember that
discretion, when applied to a court of justice, means sound discretion
guided by law. It must be governed by rule, not by, humor, it must not be
arbitrary, vague and fanciful but legal and regular. An appeal, to a judge's
discretion is an appeal to his judicial conscience. The discretion must be
exercised, not in opposition. "
But it can be seen in the case of Vikas Garg v. State of Haryana that judges
of Punjab and Haryana High Court was involve in the victim shamming and made
remarks directly upon the character of the rape victim at the time of
considering bail application of persons who are accused of a rape in this
case by stating:
"her mind was "perverse" like one of the rapists and she had a "promiscuous
attitude and a voyeuristic mind". The court effectively declared that since
she smoked, recreationally consumed drugs, and her hostel room had condoms,
she was equally to blame for her rape."
This order of High Court was override by the Supreme Court and bail of
accused persons was also cancelled. But this judgment remind us of the fact
that judges have their own bias and prejudices which also come into play
when judge has to exercise their discretion in the matter of bail. Can it be
said that discretion exercised by the judges of Punjab and Haryana High
Court in this case is sound discretion guided by law?
- We have another set of cases where judges are reluctant to exercise
their discretion to grant bail to an accused because they have fear in their
mind that if they grant bail then it may happen that false complain may be
filled against them in the High court or to their superiors, alleging that
they have received illegal gratification from the accused and in return he
granted bail to an accused on insufficient grounds. Judges always have a
fear that such complaints may hamper their promotions as well as their image
in the society because there are chances that on the basis of such complaint
departmental inquiry may be initiated against them.
So in order to avoid such situation they are in favor of not granting bail
to an accused from their court and left the entire matter in the
jurisdiction of High Court or Supreme Court. Similar situation arises in the
case of Ramesh Chandra Singh v. High Court of Allahabad, appellant
was a Add. District and Session judge who granted bail to an accused on
But complaint was filed against the said order of appellant in the High court
alleging that they have received illegal gratification from the accused and in
return he granted bail to an accused on insufficient grounds. Even though high
court does not believe in the truthfulness of the complaint but still initiate
administrative inquiry against the appellant and on the basis of such inquiry
held that appellant is guilty of misconduct and breach judicial honesty which is
paramount as well as he granted bail to an accused on insufficient grounds. The
proceedings were started against appellant under rule 3 of UP government servant
conduct rule, 1956.
- Accused father was seriously ill and medical report of his father was
attached with his bail application
- Accused was a student and he was in custody for 1 year but filed charge
sheet was against him.
- Accused has no criminal background and no chance of absconding as well
as no possibility of interference with evidence.
- No chance of accused committing the same offence in future.
- Moreover magistrate that has recorded dying declaration has acquaintance
with deceased of present case.
But it was the Supreme Court that granted relief to an appellant and held that
bail order of appellant judge was correct because judge has taken into
consideration all relevant factor of the case and its exercise of discretion can
be said to be sound one in the eyes of law. Moreover, if bail has not been
granted to an accused by the judge in the present case then it will be nothing
less than travesty of justice. The High Court was not right in holding
departmental inquiry against the judge because such practices have the tendency
to lower the moral of judges of subordinate judiciary.
The Supreme Court has also suggested that:
"while exercising control over subordinate judiciary under Art. 235 of the
Constitution, the High Court is under a Constitutional obligation to guide
and protect subordinate judicial officers. An honest and strict judicial
officer is likely to have adversaries. If complaints are entertained in
trifling matters and if the High Court encourages anonymous complaints, no
judicial officer would feel secure and it would be difficult for him to
discharge his duties in an honest and independent manner. It is imperative
that the High Court should take steps to protect honest judicial officers by
ignoring ill- conceived or motivated complaints made by unscrupulous lawyers
Moreover, Supreme Court directed that an administrative inquiry cannot be
initiated merely because the Subordinate judge passes a wrong judgment. Even if
judge passes a wrong judgment or order, then in such a situation Appellant as
well as Revisional Court has the authority to correct such order instead of
initiating administrative inquiry against the judge who pass such a wrong order.
- When balance between societal interest and individual interest is
discussed the case of Asha Ranjan v. State of Bihar which shows us how to maintain balance
between the later and former the Supreme Court took into account the following
"that apart from the murder of the Petitioners two sons, there are at least
15 out of total 45 pending cases which have been registered against him
while he was in jail and out of these 15 pending cases, one is for the
murder of the Petitioners third son and two are for attempt to murder. He
has been declared a history-sheeter Type A (who is beyond reform)."
In the present case, degree of seriousness of offences in which accused has been
in jail as well the influence of the accused in the society, if, he has been on
bail then there is a possibility that he may temper with evidences, threaten the
witness or elope. Therefore, court after taking into consideration the entire
case as well as the past records of the accused, took a balancing approach and
decided in the victim's favor. Therefore, it quashes the bail granted by the
High Court and passes the order that accused should be transferred from Siwan
jail to Delhi jail.
- In Babu Singh v. State of U.P. , Justice Krishna Iyer already laid down the
following law regarding the bail which Apex Court in the case of Asha Ranjan
case upheld, such as:
- While considering the motion for bail, judge must take into account social
and individual facts of each case.
- Also the relevant factors which should be taken into considerations
while refusing or granting of bail are as:
- "The nature of charge, the nature of the evidence and, the punishment to
which the party may be liable, if convicted, or conviction is confirmed.
When the crime charged is of the highest magnitude and the punishment of it
assigned by law is of extreme severity, the Court may reasonably presume,
some evidence warranting, that no amount of bail would secure the presence
of the convict at the stage of judgment, should he be enlarged.
- Antecedents of the man and socio-geographical circumstance, and whether
or the petitioner's record shows him to be 'a habitual offender'.
- When, a person charged with a grave offence has been acquitted at a
stage, the intermediate acquittal has pertinence to a bail plea when the
appeal before this Court pending. The ground for denial of provisional
release becomes weaker when a fair finding of innocence has been recorded by
- The period in prison already spent and the prospect of delay in the
appeal being heard and disposed of."
"No person shall be deprived of his life or personal liberty except according to
procedure established by law. So what if in millions of cases, people are
routinely being deprived of their personal liberty with no bail but jail in the
absence of expedited trial and years after, having raised the questions of Bail
or Jail? This shows that always constitutional approach will not serve the
In Re-Inhuman Conditions In 1382 Prisons
, court needs to deal with the
issue of overcrowding of under trail prisoners and how section 436A has remained
only in paper and has not been implemented by the state and by the central
government in letter and spirit. It is a landmark judgment when it come to
prisoner's constitutional and legal rights especially under trial prisoners.
The Supreme Court laid down following directions:
- "Under Trial Review Committee should ensure effective implementation of
Probation of Offenders Act, 195834 and Code of Criminal Procedure, 1973
especially section 436 and section 436A. First time offenders should be
released so that they have a chance of rehabilitation in the society.
Secretary of the DLSC will also look into the release of under trial prisoners alleged to have
committed compoundable offences.
- The Member Secretary of SLSA should work in coordination in Secretary of DLSC
of the district to ensure that an adequate number of competent lawyers are
empanelled to assist under trial prisoners and convicts, particularly the poor
and indigent, and for that purpose assure that the legal aid for the poor does
not become poor legal aid.
- The Director General of Police/Inspector General of Police in-charge of
Prisons will ensue proper utilization of funds so that condition of the
prisoners is in commensurate with human dignity which includes health,
hygiene, food, clothing, rehabilitation etc."
Despite such a judgment, it appears that position of under trial prisoners has
not been improved much because according to prison statistic in India 2019,
number of under trail prisoner has increased from 323537 in 2018 to 330485 in
2019 (as on 31st December of each year), having increased by 2.15% during this
period. From this recent data issued by NCRB, it appears that whole problem lies
in implementation aspect because Supreme Court in its previous judgment has
clearly stated that:-
"The basic rule is bail, not jail, except-where there are circumstances
suggestive of fleeing from justice or thwarting the course of justice or
creating other troubles in the shape of repeating offences or intimidating
witnesses and the like by the petitioner who seeks enlargement on bail from the
court. When considering the question of bail, the gravity of the offence
involved and the heinousness of the crime which are likely to induce the
petitioner to avoid the course of justice must weigh with the court."
Moreover, at the time of considering the question that whether accused should be
granted bail or not, Court goes into the merit of the case that whether accused
will be punished in present case if evidence goes against him, i.e., court
conduct mini trial at this stage which is not proper. The Court makes depth
analysis of evidences which is required at the stage of trial and not at the
stage of considering the question that whether accused should be granted bail or
Though crime is aimed against a particular individual but it shakes the larger
societal conscience and shakes the sense of the security in the society.
Therefore, it is the state which prosecute the criminal and punishes him for the
wrong done. When wrong is done to a victim, there is a retributive rage in him
and to satisfy it, a trial begins against the accused.
However, this approach is
problematic as one cannot use the outrage of the victim as a shield for denying
bail to accused. Our system should not get carried away with victim ideology.
There are two model of criminal process but Author Douglas Evan Beloof advocated
third model of criminal process, that is, Victim Participation Model.
to this model, a right should be given to victim to oppose bail of the accused.
Though this right has been given in many countries to victim but at the same
time it is necessary that judges must not be carried away with retributive rage
of victim. Even if judges deny bail to an accused there should be sound reason
for denial of such bail.
When we deal with issues relating to bail then it is important that we should
also study cases where one accused gets bail and the other co accused thinks
that they too can be released on bail if applied for. In such matters approach
of the court is entirely different. The Courts are reluctant to grant bail in
such matters when court is of the opinion that if co accused is released on bail
then there is a possibility that he may again indulge into such activities and
public order will be disturbed.
In the cases of Rekha v State of Tamil Nadu
, the Supreme Court clearly stated
that any order of the court denying bail to a co-accused will be justified if
such order refusing bail to an accused person is on aforementioned grounds, such
- Whether in a same case bail order has been passed by the court in the
favor of co accused?
- Whether case of the co accused is in a same footing as that of
petitioner in the present case?
- If any such bail order has been passed in the same case in the favor of
co accused then court must mention the bail application number, date of
alleged bail orders, and details of alleged similar cases.
Then, it can be said that court believed on a possibility that if ana accused is
released on bail then he will indulge in similar activities which will disturb
the public order. Since it is a normal practice in India for courts to believe
that if a co-accused has been granted bail and his case is on the same footing
as that of the petitioner, then the petitioner is ordinarily granted bail.
Same Courts With Different Approaches
Another important reason why bail jurisprudence is so messed up in India is due
to the fact that the Supreme Court of India itself not very clear, i.e.; there
are inconsistent judgments when it comes to the matters relating to bail. It is
because of this fact bail jurisprudence is not much developed in India.
example, in economic offences, when it comes to balancing individual interest on
one hand and societal interest on another hand the Supreme Court gives priority
to Individual interest over societal interest and is more inclined toward
granting bail to an accused. In such cases court gives priority to the personal
liberty enshrined in the Article 21 of the Indian constitution.
In such type of
cases, courts take presumption of innocence very seriously and make liberal
interpretation of bail provision mention in the Code of Criminal Procedure. In
such cases, the Courts are of the view that bail cannot be denied to an accused
merely because society does not want that accused be released on bail. Moreover,
in economic crimes, the court takes seriously the fact that there are delays in
concluding trial and accused has to remain in jail.
"The grant or refusal to grant bail lies within the discretion of the Court. The
grant or denial is regulated, to a large extent, by the facts and circumstances
of each particular case. But at the same time, right to bail is not to be denied
merely because of the sentiments of the community against the accused.
The primary purposes of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of keeping him, pending the
trial, and at the same time, to keep the accused constructively in the custody
of the Court, whether before or after conviction, to assure that he will submit
to the jurisdiction of the Court and be in attendance thereon whenever his
presence is required"
But the stand of court in the normal criminal cases (that is cases relating to
murder) is contrary to what has been mentioned above. When it comes to balancing
between individual interest on one hand and societal interest on another hand,
the Supreme Court in normal criminal cases gives more priority to societal
interest over individual interest and denies bail to an accused.
presumption of innocence is not taken very seriously by the courts and they are
not in favor of making liberal interpretation of bail provision mention in the
Code of Criminal Procedure. A Personal liberty which is given so much importance
while deciding bail matter in socio-economic offence, same court in normal
criminal cases imposed "reasonable restrictions" on the personal liberty and
made observation that "it would be wholly inappropriate to grant bail when not
only the investigation is over but even the trial is partly over, and the
allegations against the appellant are serious."
In socio-economic cases, the
court take very seriously the fact that there are delays in concluding trial and
accused has to remain in jail due to such delays. But in the cases of Rajesh Ranjan v. C.B.I
, the Supreme Court rejected 10 bail application of the accused
despite the fact that accused has been in the jail for the 7 years and
investigation in the case has not been completed by the investigation agencies
and moreover there was no possibility of starting trial in near future.
case, accused raised the plea of presumption of innocence and requested that
bail should be granted to him. But the Supreme Court rejected his bail
application and stated that "if this argument is to be accepted, then logically
in every case bail has to be granted."
When it comes to the national security laws such as The Unlawful Activities
(Prevention) Act 1967, the approach of the court is entirely different in
matters of bails because there is a change in criminal jurisprudence, i.e.,
Classical criminal jurisprudence, also known as conventional criminal
jurisprudence. It operates on presumption of innocence. The burden of proof is
on the prosecution to prove guilt of the accused beyond reasonable doubt.
is a affirmative punishment. Here, bail is rule and jail is an exception. The
prosecution needs to prove all elements of crimes. But the national security
laws operate on modern criminal jurisprudence, which operates differently. The
presumption of innocence is still there but is diluted in some cases as now
there is an operation of presumption of guilt. So, in these cases the burden of
proof is on the accused to prove his innocence.
This burden is little bit
heavier on the side of the accused. The prosecution in these cases need not
establish the whole case against the accused but to only show that prima facie
case is against him whereas the whole burden to disapprove the prosecution is on
Today is an era of modern criminal jurisprudence, which is more of a crime
control model. Not an accused friendly model.
Moreover, change in judicial approach while interpreting provision of TADA, POTA,
and UAPA. In classical criminal jurisprudence, whenever there are two
interpretations possible then the benefit of doubt is given to the accused
whereas while interpreting IPC strict interpretation rule is followed by courts.
However, in national security legislations, purposive interpretation is followed
by courts and benefit of doubt is not given to the accused. Interest of victim
will be given more weight age than to interest of the accused. Therefore, most
of the counter terror laws are upheld by the courts. Deferential approach of
judicial review followed by courts in national security laws cases stated as:
"Deferential standards believe in presumption of constitutionality because it
reposes confidence that lawmakers would not make laws contrary to the
constitutional principles and policies. This approach applied in national
security and foreign policy is considerably greater than those applied in other
cases. Therefore court cannot inquire beyond what is expressly available in the
Therefore, if anyone applied for Bail under UAPA then provisions of bail under
Code of criminal procedure does not apply because section 4(2) of Code of
criminal procedure clearly states that special laws can frame their own separate
procedure for investigation, trial and inquiry. It is very difficult to get bail
under UAPA because of societal interest i.e., national unity and integrity is
given priority over the individual interest.
For example, there are two persons,
one is accused of murder, he may get bail after 6 months but if someone is
accused of terror charges then he may not be granted bail easily, as getting
bail under UAPA is very difficult task. The argument related to Personal liberty
under Article 21 does not stand strong in counter terrorism cases.
"in the Bhima Koregaon cases
, total of 12 academicians, lawyers and
activists have been detained since June 2018 and despite various bail
application in the High Court, no bail has been granted. Even in the cases
related to Delhi 2020 Communal Violence, dozens of Muslim youth where several or
most of whom after 8-14 years have been acquitted of charges remained
incarcerated without the remedy of bail."
Section 43D: Modified application of certain provisions of the Code( UAPA):
- Notwithstanding anything contained in the Code, no person accused of an
offence punishable under Chapters IV and VI of this Act shall, if in
custody, be released on bail or on his own bond unless the Public Prosecutor
has been given an opportunity of being heard on the application for such
release: Provided that such accused person shall not be released on bail or
on his own bond if the Court, on a perusal of the case diary or the report
made under section 173 of the Code is of the opinion that there are
reasonable grounds for believing that the accusation against such person is
prima facie true.
- The restrictions on granting of bail specified in sub-section (5) is in
addition to the restrictions under the Code or any other law for the time
being in force on granting of bail".
But supreme court of Indian in its recent judgment namely, Union of India v. K.A.
try to reduce the rigor of Section 43D of UAPA and reaffirm that when
courts have to do balancing between societal interest and personal liberty
granted under Article 21 of the constitution to an accused in the matter of bail
then in such cases court cannot rightly gave out priority to societal interest
and undermine the personal liberty guaranteed under article 21 to an accused
especially when there is no possibility of starting trail in near future and
accused is in jail for more than 4 years and his bail application has been
continuously rejected.The court further stated that:
"It is thus clear to us that the presence of statutory restrictions like Section
43−D (5) of UAPA per−se does not oust the ability of Constitutional Courts to
grant bail on grounds of violation of Part III of the Constitution. Indeed, both
the restrictions under a Statue as well as the powers exercisable under
Constitutional Jurisdiction can be well harmonized.
Whereas at commencement of proceedings, Courts are expected to appreciate the
legislative policy against grant of bail but the rigors of such provisions will
melt down where there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already undergone has exceeded a
substantial part of the prescribed sentence. Such an approach would safeguard
against the possibility of provisions like Section 43−D (5) of UAPA being used
as the sole metric for denial of bail or for wholesale breach of constitutional
right to speedy trial."
Same courts but different approaches were taken when it comes to bail, created
clear confusion. Therefore, it is better to have set of parameters which should
be followed when court has to do balancing between societal interest and
individual interest in the matters relating to bail.
The Court should not go into the nature and seriousness of the allegations
rather court must take into consideration following factors:
- Whether there is a prima facie case against accused or not or there is a
false or frivolous case against him.
- How much control accused has upon witnesses and evidences.
- Whether there is a chance of accused absconding or threatening the
- Whether Accused have sufficient time to prepare his case.
- Antecedents of accused i.e. whether involved in criminal activities.
- Socio-economic conditions of the accused i.e. whether there is a
possibility that he can influence the witnesses.
- Chances of accused repeating the offence.
A general rule says that bail is a rule and jail is an exception. But after
going through all judgments abovementioned the question arises is whether the
subordinate judiciary really follows this rule? Because through the Supreme
Court judgments, it appears that law relating to bail is very well settle and
grounds which are to be taken into consideration by lower courts while deciding
the issue of Bail is also crystal clear.
For example, in the case of State of Rajasthan v. Balchand
delivered in 1977 by Justice Krishna Iyer, the court made observation that if
socio-economic condition of the accused is such that it is not feasible for him
to furnish monetary surety ship then in such situations undertaking can be taken
from the accused also.
Moreover, also in the Babu Singh v. State of U.P
delivered in 1978 by the
justice Krishna Iyer, the court has categorically stated that while deciding
issue of bail court must also take into account 'social and individual facts of
each case', i.e., it may happen that charges which are framed against the
accused are of serious offence but court must take into account factors such as:
- Antecedents of accused i.e. whether involved in criminal activities in
- Socio-economic conditions of the accused i.e. whether there is a
possibility that he can influence the witnesses?
- How much deep rooted accused is in the society?
- Whether it is necessary to sent accused in jail?
But in Hussainara Khatoon v. Home Secretary, State of Bihar case
was filed in 1979 as well as In RE - Inhuman Conditions In 1382 Prisons
which was filed in 2016 court needs to deal with the issue of overcrowding of
under trail prisoners that have been in the jail for period longer than maximum
term for which they could have been sentenced if convicted. In both the cases,
the court found that problem of under trial prisoner arise because most of the
time they are unaware of their right to obtain bail or due to their
socio-economic conditions they could not engage lawyer for them or in most of
cases subordinate judiciary refuse to release them on personal bond rather
require from them to furnish monetary bond with surety in order to secure bail.
Despite the directions/guidelines issued by the apex court in both the cases,
the problem of under trail prisoners is still there in 2021and has been
increasing instead of declining. It appears that judgments of Supreme Courts are
not followed in true spirit by the subordinate judiciary. Bail is a very
important issue because it directly relates with the personal liberty of
individual. Personal liberty of an individual which is guaranteed by the
constitution cannot be undermined so easily.
It is agreed with the fact that societal interest is also very important. But
our courts while deciding the issue of bail must do balancing between societal
interest and individual interest of an accused. It is true that there cannot be
any definite set of rules and procedure laid down in the matters of bail because
every case has its own peculiar circumstance.
But when one go through some recent bail orders delivered by the High Court then
it can be find out that lower courts had started acknowledging the importance of
personal liberty and are not going much into the seriousness of charge rather
they keep their enquiry into the facts like how deep rooted the accused is in
the society, whether accused has any criminal background, whether there is a
possibility of accused interfering with the evidence etc.