Shivangi Mishra

Final year student, School of Law

Jamia Milia Islamia


The trajectory of the present article is dictated by the weight of fair and just notions embedded in the treatise constituting bail jurisprudence. It has been reaffirmed throughout this article that the alignment of bail jurisprudence with constitutional provisions was legally premeditated to safeguard the humanistic rights of an accused. In the final segments, a question regarding the utility of existing legal provisions concerning the procedure of granting bail has been undertaken. In the process of arriving at an answer, the amendments brought about in the Code of Criminal Procedure, 1973 have been identified as a beacon of progressive legal development in bail jurisprudence.

An Analysis of the Trajectory of bail jurisprudence

The concept of bail is touted as an essential ingredient in the process of fructification of the three-winged criminal justice system that revolves around entrenching the ideals of fair and speedy trial, and dispensation of fair and speedy justice to the downtrodden. The concept of bail is an offspring of the humanistic concern for the incarcerated facing criminal charges as well as those facing the imminence of judicial fetters. In consonance with the legally celebrated dictum that an accused is presumed to be innocent until proven guilty, the concept of bail entitles the accused to be released from custody once security for his appearance has been furnished. In its verdict in Natturasu v. State,[1] the Madras High Court pronounced that the concept of bail connotes the process of procuring the release of an accused charged with a certain offence by ensuring his future attendance in the court for trial and compelling him to remain within the jurisdiction of the court.

The Criminal Procedure Code refrains from presenting an explicit definition of the term ‘bail’. Nevertheless, the Supreme Court in its judgment in the case, Vaman Narain Ghiya v. State of Rajasthan[2], endeavoured to define bail as a right of an accused of the assertion of freedom against the State imposing restraints that can be exercised in the form of security for the appearance of a prisoner for his release. Section 2(a)[3] draws a marked distinction between bailable (those mentioned as bailable under the First Schedule of the Code) and non-bailable offences depending upon the heinousness of the offence and the entailing term of punishments.

The general but assailable rule is that offences punishable with imprisonment for three years or more have been classified as non-bailable whereas trivial offences that call for lesser terms of punishment under the Code have been categorized as bailable. It is noteworthy that this classification is not marred by rigidities and is fluid with exceptions existing on either side.

When an offence is classified as bailable, the accused can claim bail as a matter of right, however, when the offence is categorized as non-bailable, the claim for bail does not per se become an assertion in futility but loses the character of a right. Pithily, in case of non-bailable offences, bail becomes a privilege to be granted at the discretion of the court. Further, Section 436[4] of the Criminal Procedure Code is an indefeasible right that mandates the magistrate or police to grant bail at any time whether in the custody of police or at any stage during trial, when the person arrested or detained without warrant, is accused of a bailable offence. This section contemplates a situation where bail can be claimed by the accused as a matter of right. The proviso to Section 436 further clarifies that it is discretionary upon the officer making the arrest or the Court to dispense with the requirements of procuring a bail from such person accused of a bailable offence after assessing the attending circumstances and may discharge the accused on his executing a bond without sureties for securing his appearance in court. Section 436(1) adopts a comprehensive tone that gives the Court or the officer in charge of the police station the leeway of granting bail in an equal capacity and wards off the possibility of bail granted by one authority being dismissed as insufficient. Enunciating in crystal clear terms that there is no such requirement ordained by Section 436 that when an accused is granted bail by the police, he may as well procure bail from the court when required to appear before it. The Court in Monit Malhotra v. State of Rajasthan[5] clarified that “ the authority granting bail to an accused is not relevant in considering whether bail ought to be granted or not, but it is the purpose for which the bail bonds have been asked and furnished which is relevant and this purpose is for appearance before the court on all dates of hearing or as and when called. Further, in the Free Legal Aid Committee, Jamshedpur v. State of Bihar,[6] the Court scathed the practice where an accused was compelled to appeal before the court on every fixed date even when he was released on bail and the charge sheet was not filed,

This practice could not be allowed and whenever an accused is released on bail he need not be required to appear before the court until the charge sheet is filed and process is issued by the court.”

In its verdict in Siddharam Satlingappa Mhetre vs State of Maharashtra And Ors[7], the Court elucidated that the concept of bail is intertwined with the doctrine of right to life and personal liberty safeguarded under Article 21 of the Constitution[8]. In the instant pronouncement, the Court upheld the relief granted to an accused, not indicted by the Court, from the shackles of imprisonment under the concept of bail and reiterated that personal liberty is an unassailable fundamental right that can be curtailed only when attending circumstances and peculiar facts necessitate it. The Court further revealed unsettling statistics that underpin the vicious freehandedness of police authorities in amputating the liberty of the accused.

Justice Krishna Iyer in Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh[9], rested his verdict on the ideals of personal liberty upheld by Article 21 of the Constitution and opined that deprivation of personal freedom at the hands of the amoebic doctrine of the police power of the State “must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.” In consonance, the Supreme Court,[10] while dealing with an application preferred under Section 439 of the Code of Criminal Procedure in respect of serious offences distinguished a perverse or illegal order and cancellation of the order granting bail, and implore that attributes like individual liberty and social security, the concept of bail, the definition of crime and the duty of the court must be taken into account.

It is trite that the concept of bail survives in the criminal justice system as an outgrowth of the protections dearly afforded to an accused by way of legal rights crystallized in the human rights campaign. Squarely, in order to counterbalance the disadvantaged position the accused finds himself in, a coterie of rights such as the right to bail is conferred upon him[11]. While safeguarding the personal liberty of the accused, Article 21 of the Constitution finds overwhelming support in the stance taken by the United States-based National Association of Pretrial Services Agencies (NAPSA) that dismisses vagrant instances of deprivation of liberty as “harsh and oppressive” that subject the accused to “economic and psychological hardship [12] besides leaving their families in the lurch.

Moreover, as has been discussed above, it is not essential that a person accused of a non-bailable offence shall in no possibility be released on bail. In the wake of such circumstances, the High Court or the Court of Session is required to “exercise its judicial discretion while considering the question of granting of bail” under Section 439(1) of the new Code. The decisive considerations prompting grant of bail in Section 439(1) coincide with those forming the crust of Section 437(1), that are, “the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardizing his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."[13]

When London spearheaded the Justice Conference on Bail and Remands in Custody in the autumn of 1965, it raised the clarion call and paved the path for bail reforms by raising burning questions related to the sequence of justice in the modern-day interpretation of the concept of bail. This also leads us to the research question around which this academic exploration revolves,

Are the reasons for disallowing bail well-supplemented to avoid unnecessary remands in custody?”[14]

Modern Indian judicial pronouncements, bearing in mind the dastardly repercussions of financial disabilities to procure bail, address the pressing issues that come handy with prevailing economic and socio-economic divisions. Economic inequities and the consequent injustice caused to the rightful holders of the presumption of innocence who often lack the wherewithal to secure bail is a glaring lacuna not peculiar to Indian criminal justice processes. The compelling judicial interest spelling the significance of an accused to be duly presented in court is the dominant driving force behind the aggressive stringency often adopted by the judiciary in the United States. On a humanitarian note, it must be realized that the globe of criminal justice should not blindly revolve around the cruelties of bail or jail as these are not the only means to the end they ardently chase. Pilot initiatives in New York City have demonstrated that there exist milder ways such as systems employing court date notification and pretrial monitoring and supervision, for securing the accused's appearance in court. These justice friendly alternatives promote the return of the accused to court while guarding the notion of liberty and presumption of innocence. The Indian landscape struggling to find a solution to the soaring dockets of pending cases faces an identical deadlock where an accused who cannot afford bail is often remanded to incarceration[15]. The statistics issued by the US Department of Justice urges existing mechanisms to revisit the ideals of justice and fairness amidst the violent and degrading characteristics of pretrial incarceration. The report suggests that "pretrial confinement increases the likelihood of conviction".

Pretrial confinement-or just the threat of confinement-prompts defendants to plead guilty and give up their right to trial. Most persons accused of low-level offences when faced with a bail amount, they cannot make will accept a guilty plea; if they do not plea at arraignment, they will do so after having been in detention a week or two. Guilty pleas account for 99.6 percent of all convictions of New York City misdemeanor defendants.

In Romesh Sharma v. CBI[1], the Delhi High Court passed its verdict adopting a compassionate outlook considering the plight of the under trails who do not possess the means to afford bail and revealed that the existence of Section 436A stands sentinel defending the rights of the accused. Section 436A is a protective provision for undertrials "who have already undergone more than one and a half of the total sentence" prescribed as a for the offence at hand.

However, this protection is beyond the reach of those detenues where the punishment for the concerned offence is the death sentence. It is crystal clear that the incorporation of Section 436A in the precincts of the Code signals a benevolent provision that aims to “ameliorate conditions of the undertrials who are languishing in jail for a long period of time having undergone more than half of the sentence which the offence carries".Section 167 further chalks out the maximum period for which the police investigation must be carried out and a charge sheet to be thereof filed before the court. This period extends to 90 days in case of offences punishable with death, life imprisonment, or imprisonment for a term not less than ten years, while the period remains sixty days for all other offences. In bringing out this classification under Section 167, CrPC, a time limit has been prescribed for the police to investigate with respect to under-trial prisoners before the lapse of the above-mentioned period. Liberties of undertrials and the accused are further anchored by Section 41-A of the Code that aims to “avoid unnecessary arrest or threat of arrest looming large on the accused”.[17]

More so, in Moti Ram v. State of MP[18], it was remarked that the right to be released on bail under Section 436(1) cannot be nullified indirectly by fixing too high an amount of bond or bail bond to be furnished by the person seeking release, especially in cases of the downtrodden. Reaffirming its faith in milder means of release for the accused in synchrony with the proposals and practices exemplified by the United States, the Court averred that after a studied analysis of the social and personal background of the accused that Court may allow his release on an order to appear or on his recognizance "unless it is shown that there is a substantial risk of appearance or there exist circumstances justifying the imposition of conditions on release." It is a valid assertion that it is incumbent upon the Magistrate to release the accused on order to appear or on his recognizance when a satisfactory inquiry is made into the condition and background of the accused and ensured that he has his roots in the community and is not likely to abscond.

In Prahlad Singh Bhati v. NCT, Delhi[19], the Supreme Court of India, albeit inadvertently, resonated the dichotomy adopted by the American criminal justice system between a felony and non-felony offences, invariably premised on notions of the seriousness of the offence while determining acceptance or rejection of bail applications. It was contended that bail must be granted in congruence with well-established principles and circumstances of each case. The determining factors while granting bail is the “nature of accusations, nature of evidence in support thereof, the severity of punishment which conviction will entail, the social and personal background of the accused, circumstances peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations.

Taking recourse to simplistic terminologies, the Court answering the research question,Are the reasons for disallowing bail well-supplemented to avoid unnecessary remands in custody?” gave a befitting reply by reverting on the classification between bailable and non-bailable offenses elucidated by sections 436 and 437 respectively,

A Magistrate has jurisdiction to grant bail if the offence is not punishable with death or imprisonment for life in the alternative[20].”

Indian courts have, over a period of time, tirelessly answered the question in the affirmative by adducing through progressive judgments and amendments in the Criminal Procedure Code[21] the judiciary’s stance of having grown into an institution mindful of the uncontrolled rise in pending cases. We may conclude by remarking that the judiciary has well equipped itself by coming up with necessary provisions in the shape of Sections 167, 437, 439 and 436A, CrPC for allowing and disallowing bail to avoid unnecessary remands in custody.

Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.


[1] 1999 (1) ALD Cri 224. [2] (2009) 2 SCC 281 [3] The Code of Criminal Procedure (1970), sec 2(a). [4] The Code of Criminal Procedure (1970), sec 436. [5] 1991 CriLJ 806. [6] AIR 1982 SC 1463. [7] Criminal Appeal no. 2271 (2011). [8] of India. [9] 1978 AIR 429. [10] Ash Mohammad vs Shiv Raj Singh @ Lalla Babu & Anr, CRIMINAL APPEAL NO. 1456 (2012). [11] R. Sharma, Human Rights and Bail, APH Publishing (2002). [12] The Price of Freedom, Human Rights Watch (2010), https://www.hrw.org/report/2010/12/02/price-freedom/bail-and-pretrial-detention-low-income-nonfelony-defendants-new-york (Apr 28, 2020). [13] Sanjay Chandra v. CBI, CRIMINAL APPEAL NO.2178 (2011). [14] Bail and Summons: Institute on the Operation of Pretrial Release Projects, New York; Proceedings of October 14, 1965, and Justice Conference on Bail and Remands in Custody, London (1965). [15] Id. [16] BAIL APPLN.651/2011. [17] Unknown v. Tr. Nakeeran Gopal, Crl.OP No.26888 of 2018 and Crl.MP No.15519 of 2018. [18] AIR 1978 SC 1594. [19] (2001) 4 SCC 280. [20] Chellappan v. State of Kerala (1987 (1) KLT 435). [21] Code of Criminal Procedure Amendment (2005).

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