LAW RELATING TO BAIL IN INDIA:

A CRITICAL ANALYSIS

Alok Singh
CrPC
B018
CrPC Research Paper

Abstract

In terms of its significance, bail is a crucial aspect of the criminal justice system since it allows
a person awaiting trial to be released from prison. The relevance of individual liberty as
provided by Article 21 of the Constitution comes into question while deciding on a bail
application because bail is about the release of a person. Furthermore, bail serves two goals:
individual liberty and societal good. When a person is released on bail, he has a better
opportunity of preparing and presenting his case than if he is detained.1 Detention, on the other
hand, should be devalued if public justice is to be advanced mechanically. The high cost of
keeping someone in jail when there is little danger of them disappearing. In non-bailable
instances, the judicial discretion must be exercised on just and humane grounds, as well as on
any legislated rule.

Keywords: Right to Bail, Liberty, Custody

Introduction

The term "bail" refers to the assurance that a detainee will appear in court. Granting bail has
the consequence of releasing the prisoner from the custody of the law and entrusting him to the
care of his sureties, who are obligated to produce him at his trial at a specific time and location.
Bail is usually granted, although it can sometimes be refused. A person charged with a bailable
offence is entitled to be freed on bail. Bail is required in the event of bailable offences. The
Code of Criminal Procedure distinguishes between bailable and non-bailable offences when it
comes to admission to bail. Bail is granted at the discretion of the court to a person accused of
a non-bailable offence. However, a person accused of a bailable offence who is detained
without a warrant at any point during the proceedings has the right to be released on bail.2

1
J.N. Panday, Constitution Law of India
2
Ratilal Bhanji Mithani v. Asstt. Collector of Customs, AIR 1967 SC 1939

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Research Methodology

The current study relies heavily on secondary data. Case studies from many sources have been
considered, and they have been thoroughly reviewed. It is also utilised to hold a panel
discussion with other lawyers.

Purpose of Bail

The goal of bail is to guarantee that the accused appears at trial and that if he is found guilty,
he is there to receive the penalty. The Hon'ble Supreme Court described the goal of bail in
Sanjay Chandra v. CBI3 as follows:

The goal of bail, in general, has been spelled forth in bail petitions since the beginning: to
ensure the accused person's attendance at his trial by a fair sum of bail. Bail is neither punitive
nor preventative in nature. Unless it may be necessary to assure that an accused person will
face trial when called upon, deprivation of liberty must be deemed a punishment. The notion
that punishment begins after conviction and that every man is presumed innocent until formally
tried and convicted guilty owes more than just lip service to the courts. It was recognised from
the beginning that confinement in custody until the completion of a trial may be a source of
tremendous suffering. Occasionally, it is necessary to hold certain unconvicted individuals in
custody until trial in order to ensure their participation at the trial, but in such circumstances,
'necessity' is the operative criteria. In this country, it would be in direct violation of the
Constitution's concept of personal liberty to punish someone for something for which they have
not been convicted, or to deprive them of their liberty under any circumstances based solely on
the suspicion that they will tamper with witnesses if they are free, except in the most
extraordinary circumstances. Apart from the issue of prevention being the focus of a refusal of
bail, it is important to remember that any imprisonment prior to conviction has a significant
punitive component, and it would be improper for any Court to refuse bail as a mark of
disapproval of previous conduct, whether the accused has been convicted or not, or to refuse
bail to an unconvicted person in order to teach him a lesson.

3
(2012) I SCC 40

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History of Bail

Bail dates back to 399 B.C., when Plato attempted to negotiate a bond for the release of
Socrates. The contemporary bail system originated in England. The operative procedure for
interim release of an accused was to get a surety to present the prisoner on the designated trial
date. If the accused does not attend as agreed, the surety will be tried in his place.4

The Indian judicial system is known to feature a bail mechanism that allows an accused
individual to be released after providing a guarantee. The usage of this method may be traced
back to the seventeenth century travelogue of Italian traveller Manucci, who was released on
bail after being imprisoned for a bogus theft allegation. He was given bail under Punjabi law
at the time, but Kotal only freed him after he provided a guarantor.

Under Mughal law, an interim release might be prompted by the possibility that if justice is
delayed in one's case, compensation claims against the judge for losses suffered by the
aggrieved party could be filed.

Definition of Bail

The word "bail" comes from the French word "daillier," which meaning "to govern, guard, or
provide." It also comes from the Latin term Taiulare, which means "to bear a load," as well as
Taiulus, which means "porter, carrier, or one who bears burdens" (for pay).

In Moti Ram v State of Madhya Pradesh, the Supreme Court ruled that the term "bail" included
both personal bond and surety release. 'Bail,' according to this definition, only refers to release
based on monetary guarantee, either one's own or third-party sureties.5

"The consequence of granting bail is not to leave the defendant (accused) free, but to entrust
him to the custody of his sureties who are pledged to produce him to appear at his trial at a
stated time and place," according to Halsbury's Laws of England. The sureties have the right

4
K.N. Chaturvedi, Rights of Accused under the Indian Constitution, 283 (1964)
5
https://www.etymonline.com/searchki=BAIL (last accessed in October,2019)

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to grab their principle at any time and release him by surrendering him to the custody of the
law, where he will be imprisoned.6

The Hon'ble Supreme Court held in Kamalpati Trivedi v the State of West Bengal7 that bail is
a technique for achieving a synthesis of two basic concepts of human values, namely the right
of the accused person to enjoy his personal freedom and the public interest; subject to which,
the release is conditioned on the survey to produce the accused person in court to stand trial.

In Veman Narain Ghiya v. State of Rajsthan, The Hon'ble Supreme Court held that bail
continues to be understood as a right for assertion of freedom against the State imposing
restaints. Since the UN declaration of Human rights of 1948, to which India is a signatory, the
concept of bail has found a place within the scope of human rights. The dictionary meaning of
the expression "bail" denotes a security for appearance of a prisoner for his release.
Etymologically, the word is derived from an old French verb "bailer" which means to "give"
or "to deliver", although another view is that its derivation is from the Latin term "baiulare",
meaning "to bear a burden". Bail is a conditional liberty.

Types of Bail:

• Bail in Bailable Offence

• Bail in non Bailable Offence
• Anticipatory Bail
• Default Bail

Bail in Bailable Offences

When a person who is not accused of a non-bailable offence is arrested or imprisoned, Section
436 states that he has the right to be freed on bail. In such instances, the man is generally free,
and he should only be detained if he is unable to provide such minimal security, if any, as is
needed of him for the purpose of securing his attendance before the court pending
investigation.8

The Hon'ble Supreme Court held in Rasiklal v. Kishore S/o Khanchand Wadhwani14 that the
right to bail for bailable offences is an absolute and indefensible right, and that no discretion

6
Halsbury's Laws of England, 1998 (Vol II).
7
AIR 1979 SC 777
8
Mir Hashamali, (1917) 20 bom, L.R. 121.

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can be exercised because the words of s. 436 Cr.P.C. are imperative and the person accused of
an offence has the right to bail. As soon as the bond is posted, he will be released.

Bail in Non-Bailable Offences

If the offence is bailable, bail is a matter of right; nevertheless, if the offence is not bailable,
bail is simply a matter of discretion in nonbailable situations. It will be observed that the
discretion's extent is determined by a number of factors.

• The score of the discretion varies in inverse proportion to the gravity of the crime. As
the gravity of the offence increased, the discretion to release the offender on bail gets
narrowed down.
• As between the police officers and judicial officers.
• Amount the judicial officers and courts, a high court or a court of sessions had far wider
discretion than that given to other courts and judicial officers.

In Gurcharan Singh v. State of Delhi, in this case, The Hon'ble Supreme Court held that when
any person accused or suspected of the Commission of any non-bailable offence is arrestded
or detained without warrant by an officer in charge of a police station or appears or is brought
before a court, or court of session, he may be released on bail (s. 437 (1). The word "may" have
in the above provision learly indicates that there are certain principal which should guide the
police officer and the courts in exercise of this discretion. It should be noted at the out set that
the object of the detention pending criminal proceedings it is not punishment and that the law
favours allowance of bail, which is the rule and refusal is exception.

Anticipatory Bail

Section 438 and its marginal notes do not contain the term "anticipatory bail." In fact, the term
"anticipatory bail" is a misnomer because it does not refer to bail granted in advance of an
arrest. When a court gives "anticipatory bail," it is making an order that in the case of an arrest,
a person will be released.

The defendant will be released on bond. Obviously, a person cannot be released on bond unless
he or she has proven their innocence is apprehended, and hence the order is only granted if he
is arrested. 'Anticipatory bail' is now in effect.

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The Hon'ble Supreme Court declared in Gurbaksh Singh Sibba v. State of Punjab9 that
ancitcipatory bail cannot be given to a person who is likely to be regarded as committing a
crime, even if the offender meant it to be an exercise of his rights. The difference between
conventional bail and bail in anticipation of arrest is that the former is awarded after the arrest
and so means release from police judicial custody, whilst the latter is granted before the arrest
and thus means release from non-judicial detention.

Default Bail

In circumstances when an investigation cannot be completed in twenty-four hours, judicial

magistrates might allow custody of an accused person under Section 167 (2) of the Criminal
Procedure Code, 1973. It specifies the maximum amount of time that can be held in custody.
It further states that if the inquiry is not completed within the allotted time, the accused must
be freed on bond, regardless of the gravity of the charges levelled against him.

Judicial Approach

In Moti Ram v. State of M.P.19, in this case, The Hon'ble Justice lay down a test to determined
"roots in the society" he emphasized on the following factors to be kept in the mind at the time
of granting of bail.

• His residence in the society

• His employment, family, tie and relationship
• His reputation, character and monetary position
• His prior criminal record
• The identity of responsible members of society who would vouch for his reliability
• The nature of offence charged the apparent probability of conviction and the likely
sentence.
• Any other factor indicating the ties of the community or bearing on the risk of wilful
failure to appear.

9
1978 Cri.L.J. 20 (P&H)

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Need for Reform in India

In India, where a person is accused of a serious crime and is likely to be convicted and punished
severely for such a crime, he would be prone to abscond or jump bail in order to avoid the trial
and consequential sentence. If such person is under arrest, it would be rather unwise to grant
him bail and restore his liberty. Further, where the arrested person, if released on bail, is likely
to put obstructions in having a fair trial by destroying evidence or by tampering with the
prosecution witnesses, or is likely to commit more offences during the period of his release on
bail, it would be improper to release such a person on hail. On the other hand, where there are
no such risks involved in the release of the arrested person, it would be cruel and unjust to deny
him bail.

Conclusion

The Law governing bail in India is inadequate and uncertain. The working of the system is also
unsatisfactory. The administration of criminal justice has recognized that a bail decision is a
recurring one which takes place through a number of distinct stages. It also recognizes that
pretrial releases by the police on bail are within the purview of the bail system. Further, bail
can be granted before the accused makes an appearance before the court or before the verdict
of the trial is passed and even after he has been declared guilty and convicted in order to enable
him to avail the appeal process.

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