LIST OF ABBREVIATIONS

AB: Anticipatory Bail

C to D of M Contributing to the Delinquency of a Minor

CAID Criminal Activity In Drugs

CAR B Car Breaking

CAR PROWL Car Prowling

CC ABUSE/USE Credit Card Abuse

CCDW Carrying Concealed Deadly Weapon

CCF Carrying Concealed Firearm

CCW .Carry Concealed Weapon

CD Conditional Discharge

CDW Carrying Dangerous Weapon

LTIC Long-Term Investors Club

NABBI National Association of Bail Bond Investigators

NBPD Newport Beach Police Department

NCCF North County Correctional Facility

NJC North Justice Center

OR Orange Recognizance

OCJ Orange County Jail

PJI Pretrial Justice Institute

1
 List of cases

CASE NAME CITATION

Abu Anas v. National Investigation Agency, (2016) S.C.C. OnLine Del. 6129.

Anvar P.V v. P.K Basheer, (2014) 10 S.C.C. 473.

Abdul Halim v. State, (2010) S.C.C. OnLine Ker. 4867.

Adri Dharamdas v State of West Bengal AIR 2005 SC 1057.

Amar Nath Singh v The State of Jharkhand Case No.4644 of 2016

Atul Tripathi V. State of UP Crl. Appeal No.NO.1516/2014

Babu Singh v. State of U.P (1978) 1 SCC 579

Balchand Jain v. State of M.P AIR 1977 SC 2447

Deepak Bajaj v State of Maharashtra (2008) 16 SCC 14

Deepak Khosla v state of NCT of Delhi & Ors CRL.M.C.--663/2017.

Dhiren Prafulbhai Shah v State of Gujarat 2016 CriLJ 2217

Dolat Ram v. State of Haryana (1955) 1 SCC 349.

Dr Subhash Kashinath Mahajan v The State Of Maharashtra And Anr CRIMINAL APPEAL
NO.416 OF 2018.

Fasih Mahmood v. State, (2016) S.C.C. OnLine Del. 1073.

Golan Daulagupu v. National Investigating Agency, (2012) 5 G.L.T. 739.

Govind Prasad v. State of West Bengal. 1975 CriLJ 1249.

Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240.

Gurbaksh Singh Sibbia v. State of Punjab. AIR 1980 SC 1632

2
Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118.

Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 S.C.C. 602.

Hussainara Khatoon Vs. Home Secretary, State of Bihar (AIR 1979 SCR 532).

Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 2 SCC 42 K

amlendra Pratap Singh v State of U.P. (2009) 4 SCC 437.

Kanhaiya Kumar v State of NCT of Delhi W.P.(CRL) 558/2016.

Lal Kamlendra v State (2009) 4 SCC 437.

Lalita Kumari v State of U.P (2014) 2 SCC 1.

Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra, (2015) 7 S.C.C. 440

Moti Ram and others Vs. State of MP (AIR, 1978 SC 1594).

Md Shahabuddin v State of Bihar Cr.Misc. No.35785 of 2016

Moti Ram v. State of M.P (1978) 4 SCC 47

Mohd. Maroof v. State, (2015), Cr. M.C. No. 3644/2014.

Mr. Areeb S/o Ejaj Majeed v. National Investigation Agency, Criminal Appeal No. 630 of 2015.

Mr. Enrita N. Marak v. The State of Meghalaya, (2013) S.C.C. OnLine Gau. 3.

Mufti Abdus Sami Qasmi v. National Investigation Agency, (2017) S.C.C. OnLine Del. 11188.

Mohd. Maroof @ Ibrahim v. State, (2015) S.C.C. OnLine Del. 9509.

Malsawmkimi v. National Investigation Agency, (2012) S.C.C. OnLine Gau. 897.

Ms. Purnima Upadhyay v. State of Maharashtra, (2015) S.C.C. OnLine Bom. 5989.

Nirmal Jeet Kaur v State of Madhya Pradesh and Ors. (2004) 7 SCC 558

Pragyna Singh Thakur v. State of Maharastra, (2011) 10 S.C.C. 44.

3
Prahlad Singh Bhati v. NCT (2001) 4 SCC 280

Puran vs. Ramvilas AIR 2001 SC 2013.

R.J Sharma Vs. R.P. Patankar 1993 Cri.L.J. 1993 [Bombay].

Rakesh Kumar Paul vs. State of Assam SLP (CRL.) NO. 2009 OF 2017

Ram Govind Upadhya Vs. Sudarshan Singh 2002 Cr.L.J 1849 (S.C.)

Rasiklal v. Kishore s/o Khanchand Wadhwani AIR 2009 SC 1341

Rojen Bor v National Investigation Agency, (2016) S.C.C. OnLine Gau. 823

Saraswati Rai v. Union of India, (2011) S.C.C. OnLine Cal. 1227.

Syed Shahid Yousuf v. National Investigation Agency, 2018 S.C.C. OnLine Del. 9329.

Sanjay Chandra v CBI (2012) 1 SCC 40

Sanjay Dutt v. State, Through CBI (1994) 5 SCC 410.

Shakuntala Devi v State of UP 1986 CriLJ 365.

Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694

Siddharam v State (2011) 1 SCC 694.

State of Kerala v. Raneef (2011) 1 SCC 784

State of M.P. & Anr. v. Ramkishan Balothia (1995) 3 SCC 221.

State of Rajasthan v. Balchand (1977) 4 SCC 308

State of U.P. v. Amarmani Tripathi (2005) 8 SCC 21.

State of U.P. v. Laxmi Brahman AIR 1983 SC 439

Suddu kumar vs. State of Bihar Criminal Appeal (DB) 583 of 2015

4
Sukhwant Singh v State (2009) 7 SCC 559.

Suresh Jain v. State of Maharashtra (2013) 3 SCC 77.

Vaman Narain Ghiya v. State of Rajasthan (2009) 2 SCC 281

Y.S. Jagan Mohan Reddy v. C.B.I, A.I.R. (2013) S.C. 1933.

5
 INTRODUCTION

The procedure of gaining a person's release from custody while they are pending a trial or an
appeal by posting a bond to ensure his prompt surrender to authorities is known in law as bail.
The monetary sum is decided by the court that has jurisdiction over the prisoner or more
specifically, the bail bond, of the bail. Cash, property title documents, a bond from a wealthy
individual, a seasoned bondsman, or a bonding business are all possible forms of security. The
security is forfeited if a person released on bail doesn't show up at the appointed time. Bail is a
post-arrest remedy that enables the individual who has been arrested to be freed until his trial.
Bail maintains the traditional right to liberty prior to the finding of guilt. Bail is permitted in
order to prevent innocent persons from being imprisoned, which would otherwise constitute a
pre-trial punishment, and to give an accused person the opportunity to prepare a defence to the
accusations made against him, which is based on the common law presumption of innocence.
When considered objectively, the criminal jurisprudence that India has embraced is really a
reflection of the Victorian legacy that the British left behind. Only a few changes occasionally
have been made over time to appease pressure groups and ballot banks. Probably no
consideration has been given to whether these laws, which have been in place for close to seven
decades, have taken into account the misery and socioeconomic circumstances of the 70% of this
country's population that is living in abject poverty. India, a developing nation plagued by
poverty, required something other than a carbon duplicate of the laws in place in developed
western nations.The above-mentioned problems also apply to the bail idea, which is a crucial
component of criminal law. In general, the term "bail" refers to the release of a person accused of
an offence in exchange for a security guaranteeing his appearance before the court or any other
authority as needed.

Bail is typically any type of asset that is placed with or pledged to a court in order to convince it
to release a suspect from custody, with the understanding that the suspect would either return for
trial or forfeit the bail (and may face charges for failing to appear in court). 1 Even if the

1
Dr.Nilanchala Sethy,M.A.(Pol.Sc.), LL.M., RGNF, NET, Ph.D. in Law, Faculty, Lingaraj Law College, A
Constituent College of Berhampur University , Bhanja Bihar, Berhampur , Ganjam ,Odisha 760010, Email:
nila_llm@rediffmail.com

6
defendant is found guilty or not of the alleged offence, in some circumstances, bail money may
be refunded at the conclusion of the trial if all required court appearances are performed. The
cost of the surety bond, if a bondsman is employed and one has been obtained, is the same as the
cost of the insurance policy purchased and is non-refundable. Bail is frequently granted in
several nations. However, even in these nations, some courts may refuse to grant bail in specific
situations, such as when it is anticipated that the accused will not show up for trial regardless of
bail. Legislatures may also specify which crimes, such as capital offences, are not subject to bail.

Since ancient times, different nations around the world have used the system of bail in line with
their respective local legal systems; evidence of bail can be discovered as early as the beginning
of civilization. It is challenging to determine the precise day and hour that bail was introduced or
started to be used, but if we look back through the ages of our global culture, we can find
allusions to bail being used from their inception in many different places of the world.

The right to bail is granted by laws, and bail law is a significant component of the criminal
justice system. Offenses that are subject to bail and those that are not are distinguished clearly.

Although bail may be granted in both types of charges, it is done so at the judge's discretion in
nonbailable cases and as a right to the accused in bailable ones.

In the Criminal Procedure Code of 1973, bailable and non-bailable cases are not defined; rather,
they are simply declared in relation to the crimes by declaring that an offence would be bailable
or nonbailable as specified in the first schedule or proclaimed in any other act. The second
classification in the first schedule of the Criminal Procedure Code, 1973, will apply if the crime
is not declared to be bailable or nonbailable as per the relevant law, and the offence will be
nonbailable if the sentence is less than three years. Bail is primarily a matter of balancing the
collective interest with the individual liberty of the accused. Individuals have a stake in
maintaining their personal freedom through the use of bail, but society has an interest in societal
safety, or a fair and effective trial.

Bail is typically a pre-conviction measure pertaining to a suspect's level of personal freedom.

Bail is essentially intended to balance two conflicting objectives. The first is the arrestee's
interest in personal liberty, which calls for his release from custody in exchange for some form

7
of security, such as Monterey or another guarantee. The society's interest in protecting its
members from antisocial behaviour is the other interest.

The debate over "police control" and how to restrict the freedom of a man who has been found
guilty of a crime vs the presumption of innocence to defend him gives rise to the concept of
"bail." The word "bail" derives from the obsolete French verb "baillier," which signifies "giving
or conveying." In English Common Law, "bail" refers to the process of releasing or putting at
liberty a man who has been apprehended or held in exchange for security or an assurance for his
appearance on a specific date and location. As a result, bail is the release of a person who has
been arrested to his sureties in exchange for their guarantee that he would come before the court
and submit to its ruling at the designated location and time. The surety is called "bail" due to the
fact that the person who has been apprehended or detained is placed in the custody of those who
will either bail him out themselves or move in that direction if necessary. Sureties must be
qualified individuals who can post bail for a captured person and require them to appear in court
on a certain date. The person who has been arrested or detained is bailed, or put at liberty until
the day of his appearance, based on the promises of those sureties. The effect of granting bail
isn't to release the detainee from custody or prison; rather, it frees him from legal oversight and
places him under the authority of his sureties, who will definitely deliver him to appear in court
at a scheduled time and location.2 The crucial conclusion is that the sureties are motivated to
seize the inmate whenever and however he chooses to release himself by turning him over to the
legal system, which would result in his subsequent detention.

American "bail" laws originated from a long line of English laws and procedures. Americans
relied on the bail system that had been established in England several years earlier during the
provincial era. Understanding the English bail system and how it developed up until the time of
American independence is essential if one is to attempt to appreciate the significance of the
American sacred bail arrangements and how they were designed to supplement a larger statutory
bail structure. Techniques to ensure that those accused would appear for trial were just as
important in mediaeval England as the criminal proceedings themselves. However, up until the
thirteenth century, the local sheriffs controlled the circumstances under which a plaintiff could be
imprisoned prior to trial or released with guarantees that he would return. The sheriff had the
2
. Institute for Criminal Policy Research , “World Prison Brief” , available at : http://www. prison Studies . org/
country / india (last visited on Dec. 23, 2016).

8
authority to release or imprison offenders since he served as the territorial representative of the
crown. At the end of the day, the sheriffs had complete discretion over the criteria they used to
determine whether to grant a suspect bail. This essay's goal is to examine "Bail" in India and how
it is processed in accordance with Cr. P.C.

1.2. THE BAIL CONCEPT

It is not specifically stated in the law, yet laypeople and pre-conviction inmates frequently post
bail. Conceptually, it continues to be seen as the affirmation, assumption, and denial of the state's
restrictions on personal freedom. Making sure the accused is present and prepared to receive
punishment if found guilty is the main goal of the arrest. The accused may be released on bail
and granted their right to liberty throughout the trial if they promise to appear at every hearing in
their case. An accused individual may be released from detention and spared from serving time
in jail using bail, which is one of the available options. Bail means "appearance of the prisoner to
be released" in English. The verb bailer, which means "to give" or "to deliver," is the ancestor of
the word bail. That it derives from the Latin verb "bajulare," which meaning "to carry a weight,"
is still another explanation. Bonds in sureties, as previously mentioned.

Bail is a type of conditional release that is given to an accused person in order to ensure that they
or a representative will be present at the trial. One's right to personal liberty is under doubt. Bail
is essentially intended to balance two conflicting objectives. First is the arrestee's interest in
personal liberty, which calls for his release from custody in exchange for some form of security,
such as Monterey or another guarantee. The society's interest in protecting its members from
antisocial behaviour is the other interest.3 The purpose of the accused person's arrest and
detention is largely to assure his presence at the trial and that, should he be found guilty, he will
be present to accept the penalty. If his attendance at the trial could be reasonably guaranteed by
means other than it would be unfair and wrong to deny the accused his freedom while the legal
action against him is pending, despite his arrest and custody. The provisions regarding the
issuance of summons, those relating to the arrest of the accused person with or without a warrant,

3
Jason Gilbert, “Blame our bail system for overcrowded Ottawa jail” The Ottawa Sun (Jan. 14, 2016) available at:
http://www.ottawasun.com/2016/01/14/blame-our-bailsystem-for-over crowded -ottawa-jail (last visited on Jan.
25, 2017)

9
or those relating to their release on bail are all intended to ensure that the accused is present at
his trial without impairing his freedom in an unreasonable or unjustifiable manner. The accused
needs to be released on bail since pre-trial incarceration has ramifications. The accused would be
subjected to the psychological and physical hardships of prison life even though he is presumed
innocent until his guilt is proven beyond a reasonable doubt if release on bail is denied. When
someone is charged with a serious crime and faces a high likelihood of conviction and
punishment, they are more likely to flee the scene or jump bail to avoid the trial and the ensuing
punishment. It would be rather foolish to grant him bail and return his freedom if he is already in
custody. It would also be improper to release an arrested person on bail if they were likely to
obstruct the fairness of the legal process by destroying evidence or tampering with prosecution
witnesses, or if they were likely to commit more crimes while out on bail. The law governing
bail "must reconcile two conflicting demands, namely, on the one hand, the needs of society to
be protected from the dangers of being exposed to the misadventures of a person alleged to have
committed a crime, and on the other hand, the fundamental principle of criminal jurisprudence,
viz., the presumption of innocence of an accused until he is found guilty."

The legislature, in its wisdom, has provided some specific instructions for granting or not
granting bail in order to serve the aforementioned objectives. In cases where the law permits
discretion in the granting of bail, that discretion must be used in accordance with the rules laid
out by the law. In addition, the courts have developed specific standards for the proper use of
such discretion.4

Bail is defined as follows:

In terms of the law, bail refers to securing the release from custody of a person awaiting trial or
an appeal by the deposit of security to secure his timely submission to the appropriate authorities.
The amount of the security, commonly referred to as the bail, or more precisely, the court with
jurisdiction over the prisoner sets the bail bond. Cash, documents proving ownership of property,
personal bonds from well-off individuals, professional bondsmen, or bonding companies are all
acceptable forms of security.

4
1 .id, see also principle 5(1), UN Body of Principles for the protection of all persons .., Rules 6(i),Standard
Minimum Rules for treatment of Prisoners.

10
The security is forfeited if the subject of a bail release fails to appear for court at the scheduled
time. According to the law lexicon1, bail is the conditional release of an accused person pending
trial or inquiry in exchange for a guarantee of the accused's appearance.

When it comes to those who are detained on criminal charges, courts have more leeway in
deciding whether to grant or deny bail. For example, bail is typically declined when the accused
is suspected of murder. In order to "procure the release of a person from legal detention, by
undertaking that he/she shall appear at the time and place appointed and subject himself/herself
to the jurisdiction and judgement of the court," bail is intended to be given.

Bail is described as "a security such as money or bond notably security required by a court for
the release of a prisoner who must appear at a future date" in Black's Law Dictionary.5

According to the law dictionary, "bail is the security for the accused person's appearance upon
payment of which he is released pending trial or investigation."

Bail is described as "a temporary release of a person in exchange for security granted for the
prisoner's attendance at a later hearing" in the Webster's Law Dictionary.6

"To release a person who has been detained or locked up, or whose appearance is being secured
for a specific day and location. Because the person who has been arrested or imprisoned is
handed over to someone who will bind themselves to bail him out of prison if he must appear in
court when required.

In Kamlapati v. State of West Bengal 7, the Supreme Court defined bail as "a technique which is
evolved for effecting the synthesis of two basic concepts of human value, namely the right of an
accused to enjoy his personal freedom and the public's interest on which a person's release is
conditional on the surety to produce the accused person in the Court to stand the trial." "Bail" is a
guarantee provided by for the timely appearance of a man who has been arrested or jailed in
order to secure that person's brief release from legal custody or detention. A person who has been
accused is considered to have admitted to bail under precedent-based law when they are released
from the care of the court officers and is entrusted to the care of individuals known as his or her

5
Black's Law Dictionary 177 (4th ed.)
6
Webster‟s Law Dictionary of Law, India Edn. 2005, p. 41
7
AIR 1979 SC 777

11
sureties, who will unquestionably deliver the defendant at a set time and location to answer the
charge against them. If the sureties fail to do so, they run the risk of having to forfeit the amount
of money that was specified when the bail was approved. Therefore, the customary and
consistent origination of bail in a legal manner entails the release of a person from custody or
detention and their conveyance under the care of sureties who endeavour to produce them in
court on a designated day. In terms of criminal law, "bail" refers to a person who has been
accused of a crime being released from custody or confinement and placed in the care of others
in exchange for their promise to be in charge of that person's attendance at a predetermined time
and location to answer the allegation.

1.4. The Value of the Bail Concept

The fact that the bail instrument has been made available to restore a person's liberty from the
initial stage of an accusation at the police level to the Supreme Court, as well as from a directive
for anticipatory bail to special powers of the high court and court of session to grant bail and
issue writs of habeas corpus and certiorari, shows the importance of the bail instrument.

Individual interests may be sacrificed for the good of society since bail is against society's best
interests. As a result, the bail document is cautiously approved by the authorities. The rule of law
is the only standard to correctly maintain the balance between these two competing rights, which
is a herculean task. The words "due process" from the Fifth and Fourteenth Amendments of the
United States Constitution are the source of the phrase "rule of law." Bail is frequently granted in
several nations. However, even in these nations, certain courts may refuse to grant bail in some
situations, such as when it is anticipated that the accused will not show up for trial regardless of
bail. Legislatures may also specify which crimes, such as capital offences, are not subject to bail.

12
 HISTORY

The Evolution of Bail in England

Bail has its origins in both English and American legal systems. In Britain during the Middle
Ages, the idea of circuit courts was prevalent. The judges would then periodically preside over
cases in these circuit courts. The convicts were left in a harmful and remorseless condition
during the undertrials, which led to their getting numerous ailments. The under trials were
disturbed by these circumstances, and they requested and were given a cell apart from the
accused. This eventually led to the practise of only releasing inmates after they provided a surety
to guarantee that they would show up on the day of their hearing. Over time, the concept of
monetary bail developed. Those who were granted bail or were released from prison were
required to post a monetary bond, which would be forfeited if the released individual failed to
appear before the appropriate authority8.

The Magna Carta, which originally granted rights to its inhabitants in 1215, stated that no
individual might be imprisoned without also being subject to peer or legal review. Then, in 1275,
the Statute of Westminster was passed, dividing offences into those that could be released on bail
and those that could not. Additionally, the Habeas Corpus Act of 1677 was added to the 1628
Right of Petition. This Act gave a defendant the right to know the charges brought against him
and the reason for his arrest. Additionally, it gave him the right to know whether or not the
charges against him could be released on bail. The Bail Act later went into effect in 1976. It
established the fundamental legal guidelines for bail that are now in use in England. There is a
general recognised right to bail, with the exception of the cases stated in the First Schedule of the
Act.

Change in America

Few historical sources claim that Peter P. Mc Donough established the first bail bonds in San
Francisco. He instituted a system in which an individual had to pay a percentage to an executive

8
See Mittan Hagjer &Action Dismasa V. State of Assam, 2009 Cri LJ 4370(Gau); Prasant kumar v. C.I. of police, Hill
palace Cri LJ 4793 on Proviso Section 167(2) Crpc

13
benefactor who put up his own money as a guarantee that the individual would appear in court
on his relevant date of hearing. Through the fifth, sixth, and eighth Amendments, the Bill of
Rights was included into the United States Constitution later in 1791. The Bill guaranteed the
fundamental legal rights of American people, including protection from excessive bail amounts,
just and equitable trials, and due process of law. Currently, every defendant under American law
is entitled to bond unless there are good reasons to deny it. The Bail Act of 1976 lists the
important grounds for which bail may be denied.

The Indian Legal System's Approach to Bail

Bail in the Classical Era

It is possible to trace the origins of bail in India to the ancient Hindu Jurisprudence that
mandated the swift resolution of conflicts by the officials in charge of administering justice. No
laxness might given in the situation because it involved consequences for the functionaries.
Thus, an accused person was not unnecessarily detained or imprisoned thanks to judicial
interposition. In fact, this came up with workable solutions for both securing the presence of the
wrongdoer and sparing him from excessive restrictions on his personal freedom9.

Bail during the Mughal Era:

The zamindari system was introduced during the Mughal Era to guarantee proper tax collection
at a time when the power and influence of the Mughal rulers were waning. After the Mughals
conquered Bengal, the term "zamindar" evolved to refer to a broad range of individuals, from
autonomous or semi-autonomous chieftains to peasant-proprietors, who held various types of
landholdings, rights, and obligations. Under the Mughals, all zamindar groups were obligated to
carry out specific military, judicial, and law enforcement tasks.

Under the Mughals, zamindars served more as public servants than as revenue collectors.
Zamindaris were permitted to be passed down through families, but the owners were not
regarded as the owners of their lands.

In this time period, the Muslim Criminal Jurisprudence recognised the rights of the accused in
one way or another, leading to the development of strategies to guarantee a fair trial for anybody
9
R.P. Kangle (ed), Kautakiya Arthshastra 4 Ch. 9 (1963, R.P.)

14
accused of a crime. As a result, during the Mughal era in India, the right of an accused person to
be freed on bail did exist.

Manucci was imprisoned by the governor of Lahore, Mohammad Amin Khan, under the pretext
of a false theft accusation; nevertheless, the governor, Fidal Khan, granted bail for Manucci's
release by issuing an order of release. He was still obliged to provide surety by the Kotwal
despite his release order.10

The institution of bail and the procedure of releasing an accused individual after providing a
guarantee were both part of the Indian legal system throughout the Mughal era. The employment
of this procedure is mentioned in the travelogue of Italian traveller "Manucci" from the
seventeenth century. Manucci himself was released on bail after serving time for a bogus theft
accusation. The Kotwal released him only when he provided a surety, despite the fact that the
then-ruler of Punjab had granted him bail.11

The ability to be released on bail and with security was prohibited during the Mughal era, and the
Kotwal in charge of the arrest had the authority to detain anyone accused of committing a crime
that may be prosecuted or reported to the Qazi for decision-making.

Prime facie evidence prior to arrest was stressed by Aurangzeb, who also cautioned the court
against keeping a guy on trial for any longer than was strictly required.

Bail during the British Empire

The East India Company's growing influence over Mofussil's Nizamat Adalats and other
fouzdary courts facilitated the progressive integration of English criminal procedure and law into
the Indian legal system of the time. Because of this, as British power over India spread, common
law ideas and practises that were well-known to the British were gradually adopted.

During the British era, the criminal courts used two clearly known and defined types of bail to
release someone who had been detained.

They were referred to as "Zamanat" and "Muchalaka." A written declaration or release made on
a solemn promise was known as a "Muchalka," which was an obligatory or criminal bond
10
Manucci, 2, p. 198
11
William Irivine, Mughal India, Vol. 2, 198 (1907)

15
typically extracted from inferiors under duress. In essence, it was only a simple
acknowledgement of the bail principle.

The accused was likewise freed under British authority with "Zamanati" sureties who took
responsibility for the accused. A judgement on the grant of bail or refusal of bail or the form of
release did not present much difficulties because of the discretionary powers granted to courts
under the notion of tazeer in Muslim criminal law. However, the passage of the Code of Criminal
Procedure in 1861, followed by its re-enactment in 1872 and 1898, respectively, replaced the
local process and statutorily incorporated the structure and provisions of the British concept of
bail into the Indian legal system. Its most recent manifestation is the enhanced bail provisions in
the Code of Criminal Procedure, 1973, which were preceded by the ratification of the
Constitution in 1950 and a few Law Commission suggestions published in the 41st report in
1969. Another type of judicial release was known as a "Zamant," which was a security with
sureties under which the zamanti (Surety) took responsibility for the accused on the basis of a
written document depositing him with the trial court.

The current bail laws in India:

With the passage of the Code of Criminal Procedure in 1861, the British institution of bail was
statutorily incorporated into the Indian legal system. It was then reenacted in 1872 and 1898,
respectively. Its most recent manifestation is the enhanced bail provisions in the Code of
Criminal Procedure, 1973, which were preceded by the ratification of the Constitution in 1950
and a few Law Commission suggestions published in the 41st report in 1969. The terms "bailable
offence" and "nonbailable offence" are defined as follows in section 2(a) of the Criminal
Procedure Code, as amended in 1973 (hereinafter referred to as the "Cr.P.C."): "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 nonbailable offence means any other offence."
Additionally, sections 436 to 450 outline the procedure for issuing bonds and bail in criminal
proceedings. The level of security need to be specified in the Cr.P.C. The Courts' outrageous and
absurd demands for bail bonds amply demonstrate their callous attitude toward the
impoverished. As a result, the Court has the authority to cap the amount of the bond.
Unfortunately, it has been seen that courts have not shown much concern for the poorer members
of society's economic situation. The Bail Act of 1976 went into effect in 1976. It outlines the

16
fundamental legal stance on bail that is now in effect in England. It outlines that, with the
exception of situations covered by the First Schedule of the Act, there is a basic right to bail.
Although there are depending on the nature of offence, there may be multiple reasons to deny
bail; nonetheless, for all crimes punishable by imprisonment, the two main reasons are those
outlined in the O'Callaghan judgement. However, there is a second reason why bail may be
refused if the court determines that there are "strong grounds for thinking" that the defendant, if
released on bail, will commit an offence while out on it.

According to section 5(3) of the Bail Act of 1976, the court that denies bail must provide
justification so that the defendant can think about submitting an application.12

However, in actuality, the justifications provided by English courts on a variety of standard

forms are typically brief and not specifically founded upon specific facts and causes. Stone's
Justices' Manual advises magistrates to announce any refusal of bail by briefly stating the legal
justifications and arguments.13

English administrative law further mandates that, in cases where there is a requirement to
provide justification for a decision, the justification must be adequate, unambiguous, and address
all relevant concerns.14

The causes and explanations for not granted bail are noted through check boxes in English
courts. A common pattern is employed, outlining the many justifications for refusing to release
the defendant on bond. These forms differ in their exact layout, but they are all fundamentally
the same in that they list the grounds for denying bail in one column and a variety of potential
explanations for the conclusions drawn from those grounds in the other. By checking the
appropriate box next to each column, the decision is recorded. However, the choices made on
standard forms run the risk of being deemed "abstract" or "stereotyped" and ineffective. The
effectiveness of the decision-making process is directly reflected in the calibre of the
justifications offered.
12
Legislation has recently been enacted which, when brought into force, will require magistrates? courts and the
Crown Court to give reasons for their decisions where they grant bail after hearing representations from the
prosecutor in favour of withholding bail (Criminal Justice and Police Act 2001, s 129). Such a requirement has the
potential to promote thoughtful decision-making and the proper consideration of the risks that a defendant might
pose if granted bail.
13
Stone's Justices? Manual 2000, para 1-432.
14
H W R Wade and C F Forsyth, Administrative Law (8th ed 2000) pp 918-919.

17
In its 78th report, which was released on April 1, 1977, the Law Commission of India noted that
1,01,083 (or 55%) of the 1,84,169 convicts were undergoing trials. One of the reasons the under-
trials are in prison is the widespread poverty that the vast majority of people in our nation
experience. Rural India's widespread phenomenon of fragmented land ownership is what causes
this poverty. A family of eight to ten people relies on a small plot of land for sustenance, which
is a significant contributor to covert unemployment. When a member of this family is accused of
a crime, the only option to save the situation is to pay the bail sum, either by selling the land or
by mortgaging it. They would be further ensnared by poverty as a result. Instead of getting
released on bond, this would prefer to be in prison.

An examination of the incidents provided below will show how the poor are negatively impacted
by India's unjust bail system. In State of Rajasthan v. Balchand15, the accused was found guilty
by the trial court but was exonerated after filing an appeal with the High Court. Under Act 136 of
the Constitution, the State appealed to the Hon'ble Supreme Court through a special leave
petition. The accused was told to turn himself in by the Supreme Court. Then he made a bail
request. Justice Krishna Lyer then spoke out against this unjust system of financial bail for the
first time. The time has arrived to reevaluate this system.

Although the offences are divided among those that are and are not subject to bail, there is no
definition of bail in the legislation. Justice Krishna Iyer once more came up against the unjust
bail system that was in place in India in Maneka Gandhi v. Union of India 16. Justice P.N.
Bhagwati further discussed how unfair and discriminatory the bail system is when seen from the
perspective of an individual's economic circumstances. Even when the magistrate sets a lower
bail amount for some defendants, discrimination still occurs. Most people who are taken before
the courts in criminal matters are so impoverished that posting bail, no matter how small the
amount, would be difficult for them.

In the case of Hussainara Khatoon and others v. Home Sec, State of Bihar 17, the court ruled
that a man should be released if he has been imprisoned for a lengthier period of time than the
punishment to which he is entitled.

15
AIR 1977 SC 2447
16
AIR 1978 SC 571
17
AIR 1979 SC 1360

18
There is not a single instance of the word "bail" in Indian law. However, it is widely accepted
that this system was inspired by the English and American bail systems. Bail is defined by the
Supreme Court as follows in the case of Kamlapati v. State of West Bengal:

"a method that arose to achieve the synthesis of two fundamental human values, namely the right
of an accused to enjoy his own freedom and the public's interest, whereby a person's release is
conditioned on the assurance to bring the accused before the Court to stand trial."

In Prahlad Singh Bhati v. N.C.T., Delhi & Anr., 18the Supreme Court established established
principles that when granting bail in India, the Courts need to consider certain factors, such as
the significance of the evidence, the nature of the accusations, the character, and reputation of the
accused, as well as the appropriate likelihood of obtaining the accused's presence at the time of
his trial and related deliberations.

The Indian Legal System's Approach to Bail

There is not a single instance of the word "bail" in Indian law. However, it is widely accepted
that this system was inspired by the English and American bail systems. Bail is defined by the
Supreme Court as follows in the case of Kamlapati v. State of West Bengal:

"a method that arose to achieve the synthesis of two fundamental human values, namely the right
of an accused to enjoy his own freedom and the public's interest, whereby a person's release is
conditioned on the assurance to bring the accused before the Court to stand trial."

In Prahlad Singh Bhati v. N.C.T., Delhi & Anr., the Supreme Court established principles that
when granting bail in India, the Courts need to consider certain factors, such as the significance
of the evidence, the nature of the accusations, the character, and reputation of the accused, as
well as the appropriate likelihood of obtaining the accused's presence at the time of his trial and
related deliberations.

18
Prahlad Singh Bhati v. N.C.T., Delhi &Anr., AIR 2001 S.C. 324

19
Reports of law commission of India

1. Law Commission of India's 41st Report

The Law Commission of India's 41st report made suggestions, and the recommendations
regarding bail were taken into account and implemented by Parliament while the Code of
Criminal Procedure, 1973—which was intended to replace the Code of Criminal Procedure 1898
—was being created. In its findings, the Law Commission reiterated the need to uphold the
fundamental bail principles and made some recommendations for alterations to the way the
system functions.

The Law Commission organised the bail suggestions into the following principles:

i) Bail is only a matter of right if the offence is one that can be released on bail; otherwise, it is a
matter of discretion.

ii) Bail should not be granted if the offence carries a death sentence or a life sentence.

iii) The session's court and the High Court should have even more latitude in the question of
granting bail in cases involving crimes punishable by death or life in prison19.

Bond is based on the presumption that those who have been charged with significant crimes that
carry the death penalty or a sentence of more than seven years may commit new serious crimes
or tamper with evidence while they are out on bail. According to the Law Commission's report,
bail can be revoked where the accused's freedom would otherwise be abused20.

2. 48th Report of the Indian Law Commission

19
Ibid
20
Lawcomissionofindia.nic.in/reports/Report268.pdf

20
The provisions of the issuance of anticipatory bail are discussed in Paragraph 31 of the 48th
Report of the Law Panel of India. The commission noted in its report that anticipatory bail
should only be used in extremely unusual circumstances. The law Commission also held the
opinion that the final ruling should only be made after the public prosecutor has been notified in
order to prevent the provision of anticipatory bail from being misused or abused at the instance
of dishonest petitioners. Additionally, the Law Commission stipulated in Paragraph 33 that the
court's initial order addressing anticipatory should only be a temporary one.

The directive may be given for reasons to be noted in the relevant section, and only if the court
determines that doing so is necessary in the interest of justice. The Law Commission said, it will
also be practical to stipulate that the Superintendent of Police will be notified of both the interim
order and the final orders.21

3. India's Law Commission's 154th Report

Chapter VI of the 154th Report of the Law Commission of India addresses bail, anticipatory bail,
and other matters including sureties.

Chapter XXXIII, Sections 436 to 450 of the 1973 Code of Criminal Procedure explain provisions
relating to bail. Bail, in its most basic sense, refers to the court's discretionary release of an
accused for either minor or serious offences so that the accused may participate in court
proceedings by posting a bond with sureties promising to show up whenever the court summons
him for the trial or while conducting an investigation into the matter with which he is charged.

The Commission took into consideration the fact that the bail system disadvantages the poor,
who are unable to provide a bail bond due to their inability to pay, while it is simple for wealthy
individuals to obtain a bail bond since they can afford the money.

21
48th Law Commission Report. http://lawcommissionofindia.nic.in/1-50/Report48.pdf

21
The bail encompasses both releases on one's own bond and releases without securities, according
to the Supreme Court in the case of Moti Ram v. State of Madhya Pradesh.22

4. India's Law Commission's 203rd Report

The Code of Criminal Procedure (Amendment) Act, 2005, which revised Section 438 of the
Code of Criminal Procedure, 1973, was the subject of the Law Commission of India's 203rd
report. In general, section 438 is referred to as the application of bail prior to arrest.

Recommendations under Clause 38 to amend Section 438 of the Code of Criminal Procedure
code, stating that: The Court of Session or High Court shall only exercise the power of granting
Anticipatory bail; If the Court of Session or High Court does not reject the Anticipatory bail
applications and makes an interim order of bail, it should give notice to the Superintendent of
Police and Public Prosecutor and the questions of bails would again be reexamined in the Co
Subject to specific circumstances, it is crucial for a person requesting anticipatory bail to appear
in court.

COMMITTEES ON BAIL AND LIBERTY

22
1979 SCR (1) 335.

22
 CH-3 CONCEPT OF BAIL IN INDIAN CRIMINAL JUSTICE SYSTEM

3.1 UNDER CrPC

1. Article 436. When should bail be taken?

1. When a person other than someone charged with a crime for which there is no possibility of
bail is taken into custody by an officer. If a person is prepared to post bail at any point while they
are in custody of a police officer, or while they are appearing in court or being held on a charge
at a police station, they will be released on bail:

The following is provided: Provided that such officer or Court, if he or it thinks fit, [may, and
shall, if such person is indigent and in unable to provide surety, discharge him on his execution
of a bond without sureties for his appearance as hereinafter provided, instead of taking bail] from
such person:

Justification. - For the purposes of this proviso, it is sufficient for the officer or the Court to
assume that a person is impoverished if they are unable to post bail within a week of the date of
their arrest.

2. Despite what is stated in subsection (1), if a person has violated the terms of the bail-bond
with regard to the time and place of attendance, the court may refuse to release him on bail when
he returns to court or is taken into custody later in the same case. Any such refusal shall not
affect the court's ability to order any party to the bond to pay the penalty for the violation.

23
A person who cannot post bail for an offence that is subject to bail must remain behind bars until
the case is resolved. The Court shall release the arrested person on his execution of a bond
without sureties if he is accused of a crime for which bail is authorised, is impoverished, and is
unable to provide surety, as required by the amendment to subsection (1).23

If jurisdiction under Article 136 is refused to be exercised, the Supreme Court does not interfere
with an order granting bail but judicial discipline will be sacrificed on the altar of judicial
discretion; Section 436 A in State of Maharashtra v. Captain Buddhikota Subha Rao24.

Maximum time a prisoner who is awaiting trial may be held.

When a person has been detained for up to half the maximum period of imprisonment specified
for an offence under a law during the course of an investigation, inquiry, or trial under this Code
(and the offence is not one for which the punishment of death has been specified as one of the
punishments under that law), the court may release him on his personal bond with or without
sureties:

With the caveat that the Court may, after speaking with the Public Prosecutor and for reasons
that must be documented in writing, order that this person be held in custody for a duration
longer than half of the allotted time or be released on bail in lieu of posting a personal bond with
or without sureties:

Furthermore, no such individual shall ever be imprisoned for a period longer than the maximum
time allowed by law for the relevant offence during the course of the investigation, inquiry, or
trial.

Explanation: The time spent in imprisonment due to the accused's delays in the legal process
shall not be included in calculating the term of incarceration under this section for the purpose of
granting bail.

In certain cases, convicts awaiting trial have been held in custody for longer than the maximum
sentence allowed for the alleged offence. Section 436a has been added as a corrective measure to
state that any prisoner who has been held without charge for a period of time equal to one-half
23
154th Law Commission report
24
(1989) Cr LJ 2317: AIR 1989 SC 2292

24
the maximum sentence allowed for the alleged offence should be released on his own personal
bond, with or without sureties, unless he is accused of a crime for which the death penalty has
been prescribed as one of the punishments. Additionally, it has been stated that a prisoner who is
awaiting trial would never be held longer than the maximum sentence for the alleged crime for
which he can be found guilty. The provisions of this section impose a legal obligation on the
official in charge of the police station to release a person who was charged with a crime that
qualifies for bail. The authority to release a person on bail or a personal recognisance, or bonds
without sureties, lasts as long as the accused is in that officer's custody. Only when the person
who is being held in custody is willing and able to post bail does the accused person's right to be
released become applicable. Unless he is unable or unwilling to post bail or sign a personal bond,
he cannot be taken into jail.25

3. Section 437: When bail may be granted for offences not subject to bail.

(1) Anyone who is accused or suspected of committing a non-bailable offence and is arrested or
detained without a warrant by a police officer or appears in court outside of the High Court or
Court of Session may be released on bail, but- I they cannot be released if there are reasonable
grounds to believe they committed an offence that carries a death sentence or life in prison.

4. Instructions for granting bail to someone anticipating arrest are found in Section 438.

[(1) Anytime a person has cause to suspect that he or she may be arrested. He may apply to the
High Court or the Court of Session for a direction under this section that, in the event of such
arrest, he shall be released on bail. That Court may, after taking into account, among other
things:

(i) The nature and gravity of the accusation;

(ii) The applicant's antecedents, including the fact as to whether he has previously been
imprisoned on charges related to the non-bailable offence; and in relation to any cognizable
offence;

(iii) The potential for the applicant to elude justice; and

25
The Crown Vs. MakhanLal48 Cr. L. J. 656.

25
 (iv) Where the accusation has been made with the intent to harm or humiliate the applicant by
having him so arrested, reject the application immediately or issue an interim order for the grant
of anticipatory bail: Provided, however, that where the High Court or, as the case may be, the
Court of Session, has not passed any interim order under this subsection or where the applicant
has not been.26

(1)A) The Public Prosecutor must be given a reasonable opportunity to be heard when the
application is finally heard by the Court. Therefore, whenever the Court grants an interim order
under subsection (1), it must immediately cause a notice of at least seven days notice, along with
a copy of the order, to be served on the Public Prosecutor and the Superintendent of Police.

(1B) If, in response to a request from the Public Prosecutor, the Court determines that the
applicant's attendance is required in the interest of justice, that applicant's presence shall be
required at the time of the application's final hearing and the passing of the court's final order.

(2) The High Court or the Court of Session may add any conditions to a direction it issues under
subsection (1), taking into account the facts of the specific case, including the following: I A
requirement that the person make himself available for questioning by a police officer as needed;
(ii) A requirement that the person not, directly or indirectly, offer any inducement, threat, or
promise to any person in question.

(3) If the accused person is subsequently detained without a warrant by a police officer in charge
of a station and is willing to post bail either at the time of detention or at any other time, he will
be released on bail. Additionally, if the Magistrate who hears the case determines that a warrant
should be issued against the accused person in the first instance, the Magistrate must issue the
warrant in accordance with the Magistrate's instructions (1).

The provisions of Section 438 have been changed so that

(i) the Court of Session or High Court should exercise its authority to grant anticipatory bail after
taking into account specific circumstances; and

26
Anil Sharma v. State of Himachal Pradesh (1997) 3 Crimes 135 (HP).

26
(ii) if the Court does not reject the application for the grant of anticipatory bail and issues an
interim order of bail, it must immediately notify the Public Prosecutor and Superintendent of
Police so that the issue of bail may be reexamined in the context of those new circumstances.

5. Section 439. Special bail-related powers of the High Court or Court of Session.

(1) The High Court or the Court of Session may issue an order.

(a) That anyone detained on suspicion of an offence be released on bail; if the offence is one
covered by section 437's subsection (3), it may also impose whatever conditions it sees fit to
further the objectives of that subsection (a) That any restriction put in place by a magistrate when
releasing someone on bail be lifted or changed:

The High Court or the Court of Session must notify the Public Prosecutor of the application for
bail before granting it to a person accused of a crime that can only be tried by the Court of
Session or that, even if not, carries a life sentence. This is true unless the court determines, for
reasons that must be recorded in writing, that it is not practical to give such notice.

(2) A High Court or Court of Session may order the arrest and custody of any individual who has
been granted bail under this Chapter.

6. Section 440: Bond amount and bond reduction.

(1) Each bond executed in accordance with this chapter must have a specific amount that is
reasonable given the circumstances of the transaction.

(2) The High Court or Court of Session may order a police officer or magistrate to reduce the
amount of bail they are requesting.

When a Magistrate determines that it is necessary in the interest of justice to inquire into a crime
punishable under sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, or
228 of the Indian Penal Code, or any crime described in sections 463 or punishable under
sections 471, 475, or 476 of the IPC that appears to have been committed in retaliation for

27
another person Under this clause, the complainant court has the authority to keep in jail or
release on bail after the court has recorded its findings and decided to file a complaint.

If the alleged offence is one that is subject to bail, the court may require adequate security for the
accused's appearance before the transferee magistrate; alternatively, if the alleged offence is one
that is not subject to bail, the court may, if it deems it necessary, send the accused to such
magistrate in custody.

However, the court lacks the authority to decide whether the alleged offence qualifies for bail or
not, or whether to take the accused individual into jail or not, until it has ultimately decided that a
complaint should be filed.

47A prisoner's remedy if a judge has unlawfully detained them, that is, without issuing a
definitive order about filing a complaint, is through a writ of habeas corpus rather than under
section 439 of the Criminal Procedure Code.

Bond for the defendant and sureties.

(1) A bond for the amount the police officer or court, as the case may be, deems sufficient must
be executed by the subject of the release, as well as by one or more sufficient sureties in the case
of a release on bail, with the condition that the subject will appear at the time and location
specified in the bond and will continue to do so until the police officer or court, as the case may
be, directs otherwise.

(2) The bond must include any conditions that are placed on someone's release after posting bail.

(3) If the circumstances call for it, the bond must also obligate the person granted bail to show up
when summoned to the High Court, Court of Session, or other court to address the matter.

(4) The court may accept affidavits as proof of the facts contained therein relating to the
sufficiency or fitness of the sureties, or, if it deems it necessary, may either hold an inquiry itself
or may cause an inquiry to be made by a Magistrate subordinate to the court, as to such
sufficiency or fitness, for the purpose of determining whether the sureties are sufficient or fit.

Section 441 A. Sureties' declarations.

28
Guaranteed declaration. Those who stand surety for an accused person's release on bail are
required to make a declaration before the court listing all the parties, including the accused, to
whom they have provided suretyship27. Cr PC (Amendment) Act, 2005 now has Section 441A,
which mandates that anyone acting as a surety for an accused person must report how many
cases he has already handled on their behalf.

Discharge from custody, Section 442

(1) As soon as the bond is carried out, the person for whose appearance it was performed is
released; if they are detained, the court that admitted them to bail will issue an order of release to
the jail's officer, who will then free them once they receive it.

(2) No provision of this section, section 436, or section 437 shall be interpreted as requiring the
release of anyone who may be held in custody for a reason other than the one for which the bond
was executed.

When the initial bail is insufficient, the court has the authority to set a higher amount.

If insufficient sureties have been accepted or if they later become insufficient due to error, fraud,
or another reason, the court Ins. under Act 25 of 2005, sec. 39 may issue a warrant of arrest
directing that the person out on bail be brought before it and ordered to obtain adequate sureties;
if he fails to do so, the warrant may be used to put the person to jail.

Discharge of sureties, Section 444.

(1) All or any sureties for the attendance and appearance of a person released on bail may at any
time apply to a Magistrate for a full or partial discharge of the bond.

(2) After receiving such a request, the Magistrate will issue a warrant for the arrest of the subject,
ordering that they appear before him.

(3) The Magistrate shall direct the bond to be discharged either wholly or so far as it relates to
the applicants upon the appearance of such person pursuant to the warrant, or upon his voluntary

27
Ins. by Act 25 of 2005, sec. 39

29
surrender, and shall call upon such person to find other sufficient sureties, and, if he fails to do
so, may commit him to jail.28

Section 445: Recognizance in lieu of deposit.

Except in the case of a bond for good behaviour, any court or officer that requires a person to
execute a bond with or without sureties may also allow that person to deposit a sum of money or
government promissory notes in the amount that the court or officer deems appropriate in lieu of
executing the bond.

Procedure when a bond is forfeited, Section 446.

(1) When a bond under this Code is for an appearance before a court or for the production of
property, and it is proven to that court's satisfaction or to any court to which the case has since
been transferred that the bond has been forfeited, or when it is proven to the satisfaction of the
court by which the bond was taken, or to any court to which the case has since been transferred,
or to the court of.

To explain: A condition in a bond requiring an appearance or the production of property before a

court shall be interpreted to include a condition requiring an appearance or, if applicable, the
production of property before any court to which the matter may subsequently be moved.

(2) If insufficient justification is not provided and the fine is not paid, the court may act to
recover the amount as if it had been imposed by it in accordance with this Code:

The person bound as a surety may be sentenced, by order of the court ordering the recovery of
the penalty, to incarceration in a civil jail for a duration that may extend to six months if the
penalty is not paid and cannot be recovered in the way mentioned29

(3) The court may remit any portion of the aforementioned fine and only require partial payment
after documenting its justifications.

(4) If a guarantor to a bond passes away before the bond is forfeited, his estate is released from
all responsibility for the bond.30
28
152nd Law Commission report
29
Ins. by Act 63 of 1980, Sec. 6 (w.e.f. 23-9-1980).
30
Ins. by Act 63 of 1980, Sec. 7 (w.e.f. 23-9-1980).

30
(5) If a person who provided security under Sections 106, 117, or 360 is found guilty of an
offence that violates the terms of his bond or of a bond executed in lieu of his bond under
Section 448, a certified copy of the judgement entered by the court that found him guilty of the
offence may be used as evidence in proceedings against his surety or sureties, and if such a
certified copy is used, the surety or sureties will be held liable.

When a bond for presence before a court is forfeited, the court records the reasons for such proof
and orders the parties to the bond to pay a fine, according to subsection (1) of section 446.

or to provide justification as to why it should not be paid. The Court, however, retains the right
to waive any portion of the fine and simply require partial payment. Subsection (3) has been
changed to require the Court to record reasons before reducing the punishment in order to ensure
that such a penalty is reduced liberally.

COMMENTS

If a bond is forfeited, each surety will be held liable for the amount they agreed to in the bond
they signed. Since either surety may be held responsible for payment, neither can claim to split
the sum equally; Karnataka State v. Mohd. Kunju, 31.

When an offence as defined in Sections 175, 178, 179, 180, or 228 of the I.P.C. is committed in
front of or in the presence of a Criminal Court, the court may decide to proceed under Section
116 of the I.P.C. rather than Section 345 of the Cr.P.C.

Bond and bail bond cancellation is covered by Section 446A.

Without limiting the provisions of section 446, when a bond under this Code is for a person's
appearance in a case and it is forfeited because of a condition:

(a) The bond that person and any sureties, if any, executed in that case shall stand cancelled; and
(b) No such person shall thereafter be released solely on his own bond in that case, if the Police
Officer or the court, as the case may be, for appearance, so orders.

31
AIR 2000 SC 6: 2000 Cr LJ 165

31
Procedure in the event of a surety's bankruptcy, demise, or forfeiture of a bond, according
to Section 447.

If a surety to a bond issued under this Code goes bankrupt

The court by whose order the bond was taken, or a Magistrate of the first class, may order the
person from whom the security was demanded to furnish new security in accordance with the
directions of the original order. If such security is not furnished, the court or Magistrate may
proceed as if there had been a default in complying with such original order.

Section 448: Minor must post a bond.

When a minor is asked to sign a bond by a court or officer, the court or officer may accept a
bond that has only been executed by a surety or sureties.

Section 449: Appeals from section 446-related decisions.

All orders issued under Section 446 are subject to appeal, including:

(i) orders issued by Magistrates to the Sessions Judge; and

(ii) orders issued by Courts of Sessions to the court from which an appeal may be lodged.32

Power to order the levy of money owed on certain recognizances is found in Section 450.

Any Magistrate may be instructed by the High Court or Court of Session to levy the sum owed
on a bond for appearance or attendance at such High Court or Court of Session.

AS A MATTER OF RIGHT OR DISCRETION, "BAIL"

A person has the right to be released on bail if they are detained or arrested for an offence that is
subject to bail. But even if the crime cannot be solved with bail, that a person accused of such an

32
Ins. by Act 25 of 2005, sec. 53

32
offence is not entitled to release on bond, but in this case, the court has the discretion to give bail,
which is not a matter or a right. For the purpose of determining whether the accused Person
should be released on bail, offences have been divided into those that are and are not subject to
bail. Further investigation is required if the threshold decision is not in his favour before deciding
whether to release him on bail.

Because the court (or even the police) are legally required to release a person on bond if they are
willing to post money, bail in bailable offences can be requested as a matter of right rather than
as a favour. The words "such individual shall be released on bail" 1 ° are essential, therefore
there is no question of any discretion in granting bail in cases when bail is allowed. However,
Section 437 envisions two categories of non-bailable offences, including those that are
punishable by death or life in prison and those that are not. Subject to the first proviso of sub-
section (1) in cases of prior class of offences, the Court has the power to grant or deny bail. This
provision expressly forbids bail. Bail in non-bailable offences is therefore not a right that may be
asserted and is instead a concession made to the accused, with the understanding that this
privilege would not be misused in any way. It is true that the Court's decision on whether to grant
bail in non-bailable offences is discretionary.

A Magistrate has broad authority under Section 437 of the Code of Criminal Procedure, 1973 to
order release on bail for offences that are not subject to bail. However, there are two limitations
that govern this authority. i.e., According to subsection (1)(i), the accused (who is not a person
under the age of sixteen, a woman, or an ill or infirm person) shall not be released on bail if there
appears to be reasonable cause to believe that they have committed an offence that carries a
death sentence or a life sentence. Unless the court is convinced that it is just and proper to do so
for any other reason, subsection (1), (ii) states that the court should not grant bail if the accused
is charged with a cognizable offence and he has previously been convicted on two or more
occasions of a non-bailable and cognizable offence. On the other hand, Subsections (2), (6), and
(7) stipulate that the accused will be freed on bail in the situations specified in them. Therefore,
pursuant to subsection (2), the accused shall be released on bail if it appears that there are no
reasonable grounds for suspecting that the accused has committed a non-bailable offence but
additional investigation is still deemed required.

33
According to subsection (6), if the trial of a person accused of a non-bailable offence is not
completed within sixty days of the first day set for taking evidence in the case, that person will
be released on bail if he is in custody for the entirety of that time, unless the magistrate orders
otherwise for reasons that must be recorded in writing. When the Court concludes the trial and
determines that there are reasonable grounds to believe that the accused is not guilty of any non-
bailable offences, as stated in subsection (7), the accused is released and permitted to remain on
bail until the verdict is rendered. The Court has complete power to issue bail, subject to the
limitations indicated in subsections (1), (2), (6), and (7).

However, the High Court and the Court of Session have broad discretion in deciding whether to
grant bail under section 439 of the Criminal Procedure Code of 1973. On the whole, the
restriction ought to apply under section 439 even though the decision is not constrained by the
limitations in section 437(1). Court, not magistrate, is the phrase used in section 437(1). In
accordance with Section 437, the Court may comprise of both the High Court and the Court of
Session (1). When exercising their authority under section 439, the High Court and the Court of
Session are always reluctant to issue bail if there is good reason to suspect that the accused has
committed an offence that carries a death sentence or a life sentence. Other factors that should be
taken into account before releasing someone on bail include making sure the person being
released is present, so they may participate in the trial and serve their sentence if the judge
sentences them to prison.

The crucial element is the character of the accusation, and the nature of the proof is equally
relevant.

The issue also depends on the punishment that the offender could face in the event that they are
found guilty or have their conviction upheld. Another important consideration is whether the
person seeking the Court's benign power to set himself free temporarily might obstruct the
administration of justice. As a result, both theory and practise support the Court's decision to take
into account the probability that the applicant would influence prosecution witnesses or
otherwise obstruct the administration of justice. Investigating a man's past to see if he has a
criminal record—especially one that suggests he is likely to conduct severe crimes while on bail
and jeopardise the wider interests of the public or the State—is not just customary in this
situation; it is also logical. As a result, this discretion cannot be used indiscriminately; rather, it

34
must be used carefully and in accordance with established rules that take into account the
particulars of each instance.

13 There are a number of factors the court weighs before granting bail for an offence that is not
subject to bail. Given that the court must assess each case's unique circumstances, it is
challenging to provide an entire list of bail concerns. According to Justice Boys, a fairly
comprehensive list of the factors the Court typically takes into account when considering
whether to grant a bail application is as follows:

I. Reasonable grounds to believe that the applicant committed the crime for which he was
charged;

II. The seriousness of the charges;

III. The severity of the degree of punishment that might result in the specific circumstances in
case of conviction;

IV. The risk that the applicant will flee if released on bail; and

V. The applicant's character, means, and standing.

If the accused is found guilty of committing the alleged crime previously, there is a risk that the
offence will be continued or repeated. There is also a risk that witnesses will be tampered with.
The applicant has the opportunity to prepare his defence. Finally, there is a risk that the trial will
be delayed.

Numerous other factors exist in addition to those on this list, such as the public's and the state's
overall interests. The applicant's social standing, the fact that he is the only male in his family,
the character and behaviour of the accused in court, as well as the sureties' character, including
their independence or reliance on the applicant for indemnification, as well as their extreme
youth, old age, sex, and infirmity, as well as their social standing. Additionally, there are risks to
the applicant's own life associated with the case's potential conviction. The chance of the accused
fleeing if released on bail, the possibility of the accused tampering with prosecution evidence,
and the threat of the crimes being continued or repeated are the three most crucial elements that

35
the court must take into account when considering whether to grant bail. The other factors come
in second.

Since the main goal of detaining someone is to ensure that they appear in court, one factor in
giving them bail is to ensure that they do so without fail whenever it is necessary. As a result, the
Court must determine whether there is a good faith suspicion that the accused may flee after
being granted bail. Bail should typically be granted by the court if it determines that there is no
probable cause to suspect that the defendant would flee. In light of this, Coleridge J. states:
"Consider that the magistrate's decision to commit a person to prison before a trial is based on
the idea that this will guarantee their appearance at the hearing. It is not a matter of the prisoner's
guilt or innocence. Simply because of this, it is critical to determine how serious the offence was,
how solid the supporting documentation was, and how severe the punishment was "

The likelihood of the accused tampering with the evidence against him is another significant
consideration that the Court must take into account while determining bail. An accused
individual has a strong tendency to try his hardest to influence the prosecution witnesses and win
them over. Where the accused is powerful and wealthy or a man of questionable moral character,
the risk of tampering with a prosecution witness is even higher. As a result, the Court must take
this into account, and in the right circumstances, it can be a solid reason to deny bail. The Court
must also make sure that the accused is not unjustly imprisoned and prevented from presenting a
strong defence simply because it is claimed that he would tamper with the evidence. It would not
be sufficient to just suspect an offender of tampering with witnesses or fabricating evidence after
release; there must be evidence to back up this suspicion. The mere fact that the accused is an
important and wealthy man does not prove beyond a reasonable doubt that he will tamper with
the evidence against him. His social standing and reputation must undoubtedly be taken into
consideration while determining whether or not to issue bail.

The risk of the offence being repeated or perpetuated is the next crucial factor in determining
whether to grant bail. Bail may be denied when the court determines that the accused is likely to
commit similar or other significant offences. J. Atkin is correct when he says: "Some crimes are
not likely to be committed again while the case is pending, thus there might not be any
opposition to bail in those circumstances. However, some are, and home breaking in particular is

36
a felony that, if a prisoner is released on bond, is very likely to be repeated, particularly in the
case of a man who has a history of housebreaking "

Justice Krishna Iyer has the following to say about this: "It is both customary and reasonable in
this situation to look into a man's past to see if he has a criminal record, especially if that record
indicates that he is likely to commit significant crimes while out on bond. Regarding habitual
offenders, it is part of criminological history that a careless bail decision allowed the bailee to
take advantage of the chance to commit more crimes against members of society. Therefore,
deciding on a bail amount based on a defendant's previous history is not an irrelevant exercise "

BAIL AND CUSTODY – A COUNDRUM

Classification of offences- bailable/Non- Bailable offences

1. The two primary kinds of offences are defined under the code of criminal process.

namely,

i. Bailable

ii. Non-bailable

This classification is based on the seriousness of the offence and the associated punishment.
Typically, a bailable offence is seen as less serious and grave than a non-bailable one. Clause (a)
of Section 2 of the Criminal Procedure Code defines an offence as follows: (a) "Bailable
Offense" refers to an offence that is indicated as being subject to bail in the First Schedule or that

37
is made subject to bail by any other law currently in effect; and "non-bailable Offence" refers to
any other offence;33

To determine which offences are bailable and which are not, it is crucial to know that every
offence under the Indian Penal Code has been specifically stated as either being bailable or not in
the first portion of the first Schedule to the Cr.P.C. In the absence of such a declaration under the
parent Act, the general principles listed in the second part of the first Schedule of the Cr. P.C.
must be consulted to determine the offence's classification.

Depending on the level or gravity of the offences and the punishment the Code (of 1973)
imposes, the Cr.P.C. divides offences into two categories: bailable or nonbailable. Section 436 of
the Law (of 1973) contains the principal provisions relating to bail in bailable offences, and
Section 437 of the code contains those relating to non-bailable offences.

The division of offences into these categories can be stated as follows:

i. Offenses that are eligible for bail are typically seen as less serious and grave than those that
are not. It is abundantly obvious that S. 436 of the Criminal Procedure Code (of 1973)
acknowledges the right to release on bail of a person accused of a bailable offence.

ii. According to Section 2(a) of the Criminal Procedure Code, bailable offences are those that are
indicated as such in the first Schedule or those that are made so by any other law in effect at the
time. Any offence that is not one of those listed above is a non-bailable offense. 34The first
portion of the first schedule of the Criminal Procedure Code deals with offences under the Indian
Penal Code, and the second part deals with offences under any other legislation. The second
portion states that a crime can only be tried by any Magistrate and be released on bail if it carries
a sentence of less than three years in prison.

2. Different Bail Provisions for Bailable and Non-Bailable Offenses:

The Cr. P.C. distinguishes between offences that are eligible for bail and those that are not.
According to Section 437 of the Criminal Procedure Code (1973), the decision to grant bail to a
person accused of a non-bailable offence is discretionary, and the person who has been released

33
0 The Code of Criminal Procedure, 1973, (2 of 1974)
34
KanubhaiChhagnlalBrahmbhatv. State of Gujarat, 1973 Cri LJ 533 at p. 536 (Guj)

38
on bail may be detained once more upon the order of the High Court, Session court, or court that
granted the bail. A person may be released on bail under this Section, and the High Court or the
Court of Session may later order his rearrest. Someone accused of an offence that qualifies for
bail is handled differently.35 He has the right to be freed on bail at any time while being held
without a warrant and at any point throughout the proceedings before the court where he is
brought.

The High Court has the authority to order a person to be rearrested and commit him back to
custody for however long it sees fit if it is determined at any point in the case that the person
accused of a bailable offence is interfering with, intimidating, or attempting to flee from the
prosecution witnesses.

It is clear how Sections 436 and 437 of the Criminal Procedure Code differ. If the defendant is
willing to post bail, the Magistrate must grant bail under Section 436; however, under Section
437, the Magistrate may refuse to release the defendant on bail based on specific facts that may
be brought to his attention. If the offence qualifies for bail, Section 436 requires that bail be
granted; if not, the courts must decide whether to grant bail while taking into account factors
such as the;

i) nature and seriousness of the offence,

ii) the likelihood that the accused will be present at the trial,

iii) the likelihood that the evidence will be tampered with and the extent of the punishment.

iv). The first issue to be addressed by the court when a bail application is made is whether or not
the charge the accused was given is one that qualifies for release on bail. Bail will be given in
accordance with S.436 of the Code if it is bailable. If the crime cannot be punished with bail, the
Court will need to weigh additional factors before deciding whether to grant or deny release.
Additional factors include;

 the offense's seriousness and character.

 The nature of the evidence.
 Particular circumstances related to the accused.
35
Ezinearticles.org

39
  A substantial chance that the accused will not be present at the trial,
 a reasonable suspicion that witnesses will be manipulated, or the wider interests of the
state or the public. And similar issues that come up in court when someone is requested
for bail for an offence that is not bailable.

3. Classification of Crimes Not Subject to Bail.36

i. If the crime is not punishable by death or life in prison. The accused individual might be
granted bail.

ii. If there are no reasonable grounds to suspect that the person has committed a crime carrying a
death or life sentence. Bail could be used to release the accused.

iii. If there are solid reasons to suspect that the defendant committed a crime carrying a death or
life sentence. Bail cannot be used to release the accused.

iv. If the accused person is under the age of 16, a woman, or is ill or infirm and there are good
reasons to believe they are guilty of a crime carrying a death or life sentence. The accused person
can be given bail and released.

v. If there are adequate grounds for additional investigation into the accused's guilt but no
reasonable grounds for the accused to suspect that the accused has committed a crime for which
bail is not available. The accused will be granted bail and released.

vi. If the trial of a defendant charged with a non-bailable offence is, in any event triable by a
magistrate, not ended within sixty days of the initial date set for taking evidence and the
defendant has been held throughout, The accused will be granted bail and released.

vii. If the court determines that a defendant accused of a nonbailable offence is not guilty of that
offence after the trial is over and before the verdict is handed down. The accused will be granted
bail.37

Thus, it will seem that the only circumstances in which the court may utilise its discretion in
favour of or against the accused are those covered by clauses I (ii), and (iv), as otherwise the

36
indiankanoon.com
37

40
legislature has adopted a liberal stance on the subject. It is asserted that a defendant in a case
falling under (iii) cannot be freed by the Magistrates. The fact that there are plausible grounds to
suspect that someone is involved in crimes that are punishable by death or life in prison has no
bearing on the power of the courts of Session or the High Court.

As a result, it has been determined in an Allahabad case that a Magistrate lacks the authority to
issue bail where there are initial indications that the accused is guilty of attempted murder
(section 307, I.P.C). However, the Sessions Judge may still grant bail to the accused in this
situation by using section 439 of the Criminal Procedure Code. While discussing the range and
application of section 439 of the code's provisions, the question was fully addressed.

In addition to the factors listed above that a court will take into account when deciding whether
to grant bail in a case where bail is not appropriate, there may be additional circumstances that
will affect the court's choices.

Making the legislation surrounding bail reasonable will undoubtedly require classifying crimes
into bailable and non-bailable offences and recognising the right to bail in bailable crimes as a
matter of right. Only for offences that are not subject to bail, the court's decision on bail is up for
debate. The magistrate before whom the accused is produced or surrendered cannot release him
on bail, even if the offence carries a death sentence or a life sentence in prison, unless specific
conditions are met, and for that reason the responsible magistrate must give reasons for granting
bail. All these rules have been implemented to make the bail statute fair and reasonable, however
even with regards to offences punished by death or life in prison, the sessions judge and the high
court have been allowed greater authority in matter of bail. According to section 304 of the
Criminal Procedure Code, the court is required to provide a lawyer for any accused who requests
legal help but lacks the financial means to do so.

4. Case is changed from a bailable to a non-bailable offence: In the case of Hamida v. Rashid,
bail was given to the accused on the day of their arrest for offences under Sections 324, 352, and
506 IPC (which were bailable offences). After the victim passed away from his injuries, the
crime was upgraded to a S. 304 IPC offence. The accused submit a S. 482 petition to the High
Court asking for a ruling allowing them to remain free on bail even after the crime was upgraded
to a S. 304 IPC offence.

41
Their request was granted by the High Court. The Supreme Court ruled in an appeal that the
accused might have reapplied for bail once the offence was upgraded to a violation of Section
304 IPC. They purposefully failed to do so and instead filed a petition under section 482 of the
Criminal Procedure Code in order to get around the requirement that they surrender because the
bail application could only be considered and heard if the accused was in custody in Talab Haji
Husain v. Madhukar Purshottam Mondkar38, and RatilalBhanji Mithani v. Asst. Collector of
Customs.39

It was determined that the High Court made a clear legal error by considering a petition under
Section 482 of the Criminal Procedure Code and ordering the subordinate court to accept sureties
and bail bonds for the offence under Section 304 of the IPC in light of the fact that no court had
issued a decision against the accused, and there had been no injustice or illegality. It was noted
that the order issued by the High Court had the effect of the accused receiving an order of bail in
their favour even after the injured party had passed away and the case had been converted into
one under Section 304 IPC without any court examining the case on merits, as it stood after
conversion of the offence, after receiving bail for an offence under Sections 324, 352, and 506
IPC on the very day they were taken into custody. Although the accused may have requested bail
under Section 439 of the Criminal Procedure Code, they chose not to do so, and it is obvious that
the High Court's use of its authority under Section 482 of the Criminal Procedure Code was
unlawful. As a result, the High Court's aforementioned order was reversed.

In the aforementioned case of Hamida v. Rashid 40

, the High Court had permitted the
continuation of the same bail that had been given to the accused in a bailable offence even after it
had been converted into an offence under S. 304 IPC in a petition under S. 482 Cr.P.C. The High
Court entertained the petition under Section 482 Cr.P.C., and the end result was that the order of
bank granted in favour of the accused for an offence under Sections 324,352 and 506 IPC was set
aside by the Supreme Court, despite its repeated declarations that inherent power under Section
482 Cr.P.C. should be exercised sparingly and with caution in rare cases and that too when
miscarriage of justice is done. The accused were granted the right to bail under sections 304 and
302 of the IPC despite not spending even a single day in detention or seeing a sessions judge or

38
AIR 1958 SC 376
39
Bombay, 1967 Cri LJ. 107 (2008) I SCC 474
40
108 (2008) I SCC 474

42
chief judicial magistrate to request it. This was possible thanks to the High Court's judgement.
The Supreme Court held that the ends of justice would be better served if valuable time of the
High Court is spent in hearing those appeals rather than entertaining petitions under Section 482
Cr. P. C. at an interlocutory stage, which are frequently filed with some oblique motive in order
to circumvent the prescribing law. The Supreme Court emphasised that the dockets of the High
Court are full and that there is a long pendency of murder appeals in the High Court from which
the instant case In one instance, the accused were detained for committing a crime that qualified
as bailable, and the magistrate subsequently granted them release on bail. Later, the charge was
changed to include S. 307 IPC, which cannot be released on bond and can only be tried by the
Court of Session. The police only detained the suspect on that basis; the court didn't cancel the
bail. In other words, the police did not ask the court to revoke the bail or present evidence
proving their necessity for an offence in violation of S. 307 of the IPC. Consequently, the
police's actual arrest was unlawful. When the accused were later brought before the magistrate,
the magistrate did not take into account the fact that they had previously been discharged by the
same court for the same crime number.41

Therefore, the Magistrate should have thought about whether or not to reject the accused's bail
application before remanding them. The aforementioned decision was unlawful since it did not
revoke the accused's bail, which had already been granted by the same court, and remand him
without giving a reason. If the police are given permission to detain an accused person who has
been granted bail by the court, it will have devastating repercussions because they will be able to
detain the same person under the same criminal number by changing the section to make it a
non-bailable offence. Therefore, if the accused is released on bail, the prosecution must request
cancellation of bail by establishing a prima facie case for non-bailable offences or for detaining
him due to the seriousness of the offence, etc. before the accused is re-arrested under the same
criminal number. If the bail is revoked by the court in accordance with S. 437(5) or S. 439(2) of
the Criminal Procedure Code, as applicable, the accused may be taken into custody. If the
accused is re-arrested and brought before the magistrate, it is his responsibility to check into
every relevant detail; only when he is satisfied may he issue orders in accordance with the law.
In Nathuram v. State of Rajasthan34, the petitioners were the target of a case that was initially
filed under Section 447 of the IPC. Ss. 307 and 325 IPC were later added to the case, though.
41
Rati Singh v State of Bihar AIR1988, SC 457

43
They applied to the High Court under S. 482 Cr. P. C., claiming that the police had deprived
them of their right to bail because the insertion of these sections had turned the offence into one
that was not subject to bail. According to the High Court, there should be no attempt made by the
Court to stifle or impinge upon the progress of the investigation unless the salient features of
illegality, irregularity, or mala fide, misuse of power by the police conscientiously persisted
throughout the investigation as long as it is conducted in accordance with the mandates of the Cr.
P.C., the domain of investigation circumscribed by the provisions of the Cr.P.C. Additionally, it
was made clear that upon being suspected of being arrested by the police, citizens have the right
to request anticipatory bail for any grounds permitted by the facts and circumstances.

WHO CAN GRANT BAIL (POLICE, MAG. HC, SESSION,SC…)

The Police are granted extensive authority to make arrests under the 1973 Code of Criminal
Procedure. The Code also grants police authority to release an arrested person on bond, which is
parallel to the magistrate's authority.

1. Bail by Police:

There are two situations in which a police officer may be able to release someone they have
arrested on bail: (a) when the arrest was made without a warrant, and (b) when the arrest was
done in accordance with a warrant of arrest.

Sections 42, 43, 56, 59, 169, 170, 436, and 437 of the Code as well as Schedule I Column 5 of
the Code may be used to determine the police's authority to give bail under head

(a).The Code's Section 71-endorsed directives govern the police's ability to grant bail under head
(b). Even when the warrant of arrest does not contain a directive to that effect, Section 81 of the
Code permits a police officer to take bail when the person who has been detained or produced
before him has been charged with committing a crime that is subject to bail. When an offence is
not subject to bail, the warrant's endorsement must be scrupulously adhered to. However, the
warrant's endorsement should be signed by name.

44
bail when an unwarranted arrest occurs (i) Section 42 of the Criminal Procedure Code governs
bail. A police officer may only be arrested for a non-cognizable offence under Sections 41 and
42 of the Criminal Procedure Code. However, this authority may be used under the
circumstances outlined in the section. Section 41 listed nine sorts of circumstances in which a
police officer could make an arrest without a warrant or a magistrate's permission. Only those
who are charged with crimes, are under investigation for crimes, or are suspects in crimes are
eligible for warrantless arrest by the police. A person who was allegedly in possession of an
illegal weapon in the past cannot be considered an accuser or a suspect at this time.

When the offender refuses to provide name and address or provides information that the police
officer believes to be false, Section 42 Cr. P.C. 1973 may be used. Both the issue of arrest and
the issue of bail won't come up if the police officer is aware of those specifics. If he is willing to
sign the required bonds, the police officer can no longer detain him once his name and address
have been verified. The provisions of Sections 56 and 59 will go into effect if for whatever
reason it takes more than 24 hours to determine the genuine name and address of the individual
who was arrested. This clause has the unique aspect of requiring the surety or sureties whose
home is in India to guarantee the bond of an offender who is not an Indian resident. The other
provisions of the Code do not have any restrictions akin to this one regarding a surety's
residency. Because this section was enacted to address a specific non-cognizable offence, it does
not restrict a police officer's ability to enlarge a person on bail once the correct name and address
have been established. The authority to arrest and release on bail may be used by any police
officer, not just the officer in charge of the police station.

The Code of Criminal Procedure allows for the arrest of a person by a private person as well,
although his arresting authority is severely constrained. (ii) Bail under section 43 Cr. P.C. Only
when a person is declared an offender or when they conduct a non-bailable and cognizable
offence in their presence may a private individual make an arrest.

The person who has been arrested should be immediately given over to a police officer, or
brought to the closest police station if he is not present. The police officer's assessment of the
person who has been brought before him will determine the issue of bail;

45
1. The individual who has been arrested must be immediately released if there is insufficient
evidence to suspect that they have committed any crimes.

2. A police officer must re-arrest the suspect if there is grounds to believe that they fall within
the provisions of Section 41. At that point, the usual investigative process will begin, during
which it will be decided whether or not a case is strong enough to warrant a release on bond.

3. He shall be released as soon as his name and place of residence have been determined, in
accordance with section 42 of the Criminal Procedure Code, if there is grounds to suspect that he
has committed a non-cognizable offence.

BAIL WHEN A WARRANT-BASED ARREST IS MADE BY THE POLICE

Sections 71 and 81 of the Criminal Procedure Code include the pertinent procedural provisions
related to the aforementioned topic.

i) Bail under Section 71 of the Criminal Procedure Code

If the arrested individual is to be released on his own bond, a police officer cannot demand
sureties from the prisoner. This is because when a police officer executes a warrant under this
section, they are not allowed to exert any authority beyond what is specified in the endorsement.
The decision to order the arrested person's release on bail or not is completely up to the judge
issuing the warrant issued under this provision. A court may not make such an order, even for a
crime that is subject to bail. The instruction on the taking of bail expires if a person who has been
detained is not taken into custody until the day when he must appear in court. However, the
arrestable party can still be detained after the date on which he was supposed to appear in court
because the warrant itself is still valid under section 70 (2) of the Criminal Procedure Code.

This clause makes it crystal clear that a magistrate has the authority to issue an arrest warrant for
a specific person's appearance before his own court, not a police officer. Any other police officer
whose name is endorsed on the warrant by the officer to whom it is addressed or endorsed may
also carry out a warrant that is directed to that officer (Section 73 Cr. P.C.).

2. BAIL BY MAGISTRATE:

46
 According to the 1973 Code of Criminal Procedure, the term "bail" is still not defined. Nowhere
else has the term been theoretically defined by statute; it continues to be considered as a right to
advocate freedom in opposition to governmental constraints. Bail has become a recognised
component of human rights since the 1947 U.N. Declaration of Human Rights, to which India is
a signatory. If the police need the individual who was arrested at any moment for the purpose of
the case's investigation, they may legitimately restrict their right to be admitted to bail.
According to the Code of Criminal Procedure, a suspect in a cognizable offence may be
remanded to police custody. When an arrest is made without a warrant, the formal arrest of the
defendant precedes the request for detention. Within 24 hours of his arrest, each person who has
been detained by a police officer must appear before the judicial magistrate. If a person commits
an offence that is subject to bail, the magistrate will usually give him bail; but, if the person
commits an offence that is not subject to bail, the magistrate will decide whether or not to grant
the person's request for bail. The ability of a judicial magistrate to give bail is covered by
Sections 59, 44 (1), 88, 167, 436, 437, and others.

3. BAIL BY COURTS

A. Bail by Sessions Judge

Session judge has the authority to consider an accused person's bail application under Section
439 of the Criminal Procedure Code.

The Sessions Judge at the inquiry stage has rejected the accused's bail while the case is still
ongoing. The Sessions Judge's authority and the High Court's authority are complementary.
Section 439 gives the Sessions Judge or High Court the authority to increase the accused's bail in
the same manner as an original court. However, the Sessions Judge has the authority to set
reasonable bail terms.

In accordance with Section 439, the Sessions Judge may also amend or annul any requirements
that the magistrate placed on the admission of the accused on bail.

In Sangappav State of Karnataka42, the Karnataka High Court ruled that the magistrate's
authority under section 437 of the CR.P.C. is narrower than that of the session or high courts

42
ILR (1978) 1 Kant 891.

47
under section 439. Additionally, save in exceptional circumstances, the Court of Sessions or the
High Court should not typically deviate from the reasonable limitation in section 437 (1) even in
those circumstances.

The Supreme Court has distinctly distinguished between the powers of the magistrate under
section 437 and those of the Court of Session of High Court under section 439 of the Civil
Procedure Code in Gurcharan singh v. State 43. A magistrate will not have the power to issue
bail if a person has been arrested by a police officer and there is probable cause to suspect that he
has committed an offence that carries a life sentence or the death penalty.

B. Bail by High court

The High Court has been given extensive authority to grant bail in its capacities as a Trial Court,
a Court of Appellate or Revision, as well as a Court of Superior Jurisdictions. The High Court
has also been given the authority to modify a bail order issued by a magistrate or a Sessions
Judge if it determines that the amount of bail is excessive. It also has the authority to reverse a
bail order issued by a magistrate or a Sessions Judge if it determines that the order was
improperly issued, taking into account the facts and circumstances of the case and the need for
the public's order and a fair trial. The High Courts have been granted extensive latitude in
deciding whether to grant or deny bail. 17 \

C. Bail by Supreme court

The Supreme Court is granted a limited appeal jurisdiction by the Indian Constitution's Articles
134 and 136. According to Article 142 of the constitution, the Supreme Court has the authority to
carry out its rulings and other orders. According to Article 145, the Supreme Court has the
authority to establish regulations that will broadly control how the code is used and how it is
conducted. A High Court's judgment, final order, or sentence in a criminal proceeding may be
appealed to the Supreme Court under Article 134.

The Supreme Court may grant special leave to appeal any judgment, decree, determination,
sentence, or other legal decision made by any Indian court under Section 136.

The Supreme Court's decision in Article 142 is binding legislation for the entire country of India.
43
AIR 1978 SC 179.

48
CONCURRENT POWER OF HIGH COURT AND SESSION COURT

It is now well-established that a party may approach the High Court or the Sessions Court with
an application for ordinary bail under Section 439, Cr PC, without facing any legal obstacles.
The authority conferred by Section 439 to the High Court or the Sessions Court is a separate
authority, and when the High Court uses that authority, it does so in accordance with its original
unique jurisdiction to grant bail rather than any revisional jurisdiction.

Due to the concurrent jurisdiction between the High Court and Sessions Court under this clause,
the Sessions Court's refusal of bail does not prevent the High Court from considering an
application with a similar claim based on the same facts and for the same offence.

A few recent examples

Gujarat State v. Kirankumar Vanmalidas Panchasara 44(2022)

Facts

According to the case's circumstances, a FIR was filed against the petitioner for violations of
Sections 3 of the Gujarat Protection of Depositors' Interests (In Financial Establishments) Act
from 2003 and Sections 406, 420, 114, and 120(B) of the IPC. In response to the aforementioned
FIR, the petitioner was detained, and a standard bail application was made in accordance with
Section 439 of the CrPC. The trial court concurred, although with a few restrictions. The
petitioner had two weeks after being released from detention to show a bank guarantee for Rs.
33,06,695 as the first requirement. The second condition stipulated that the bank guarantee
would be forfeited in favour of the aggrieved state if the I.O. failed to recover the money.

Issue

44

49
the question of whether the Gujarat Protection of Interest of Depositors (In Financial
Establishments) Act, 2003, might be used as a substitute for the Court's authority under Section
439 of the CrPC to impose a condition.

Judgment

The Act itself has an inbuilt system for dealing with offences linked to the Act, the Court found
after analysing the provisions of the Act. The Designated Court had the option of either making
an order of attachment absolute or releasing some or all of the assets or money recovered from
the attachment, or of cancelling the order of attachment, following the completion of the
necessary steps by the Competent Authority in relation to the financial establishment. Because
the trial court's requirements amounted to usurping powers as anticipated by Section 10(6) of the
Act without adhering to any authorised procedure, it was ruled that they were entirely outside the
scope of the trial court's authority.

It was decided that the court could not set any conditions while executing its Section 439 of the
CrPC powers since doing so would equate to the court exercising its other enacted powers. The
court determined that any such requirement would fall entirely outside of its purview.
Consequently, the order was changed.

The case is Gujarat State v. Narugahr Songhar Goswami (452022)

Facts

Briefly stated, 69 bags of poppies straw totalling 1371.72 kg were taken from a 66-year-old
man's home. For violations of Sections 15, 25, and 29 of the NDPS Act, a FIR was subsequently
filed. After learning that numerous persons were moving alcohol from one vehicle to another in
an abandoned Essar Company gas station, the police filed the FIR in 2020. A truck and many
other vehicles, as well as people moving products, were found by the police. Later it was
discovered that the products being transferred were not booze but poppy straw. According to the

45

50
petitioner, neither he nor anybody else was found at the crime scene, and neither was he
identified in the FIR. He didn't use the illegal substance, and he didn't start or take part in these
acts either consciously or through an illegal omission.

The applicant, one of the property's owners, was the one who raised an objection to this claim on
the grounds that he had allowed the use of the property's premises for the commission of the
crime. As a result, the Act's Sections 25 and 37 were applicable.

For allowing property, etc., to be utilised in the commission of an offence, Section 25 imposes
penalties. The Act's Section 37, which outlines stringent bail requirements when recovered
contraband is in commercial quantities, was also taken into consideration by the court.

Issue

Can an elderly citizen who wasn't at the crime scene or in the immediate area be granted bail by
the court?

Judgment

The 66-year-old man, whose property the contraband (Poppy Straw) worth Rs. 16.6 lakh was
confiscated from, had his application for regular bail under Section 439 of the Criminal
Procedure Code denied by the Gujarat high court.

The elderly man was the property owner, thus even though he was not present at the crime scene
or in the local vicinity, Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985,
was applied to the case.

ANTICIPATORY BAIL

Provision 438 does not specifically specify "anticipatory bail," but it is clear that this is the
section's focus. The phrase "anticipatory bail" is actually deceptive. It's not like the court is
currently approving bail in a readiness for an arrest In essence, when a judge orders "anticipatory

51
bail," it is directing that a person be released on bail in the event of an arrest. A person obviously
cannot be released on bond before they are taken into custody.46

Anticipatory bail is granted prior to an arrest and ensures freedom until the court rules on the
regular bail application. In order to avoid being imprisoned, a person who has a good faith belief
that they will be arrested by the police for a crime for which there is no set amount of bail may
make an application for anticipatory bail with the relevant court. Upon presenting the court's
order for anticipatory bail when the police arrive to make the arrest, the person will be released
on bail if his application is approved. Every person who is suspected of committing or taking
part in a crime or offence for which bail is not permitted has the option of posting anticipatory
bail. when a judge approves.

14 anticipatory bail, it is almost never a mandatory clause; instead, the court has the option to
grant or deny anticipatory bail to a prisoner. Siddhram Satlingappa Sibbia v. State of
Maharashtra,47. The court may grant the application if it determines at any moment that
anticipatory bail may be granted.

Precautions must be made in order to avoid an act occurring in the future that is anticipated. The
term "anticipatory" refers to the assumption or anticipation of something. If the court permits
anticipatory bail, it means that upon arrest, the person will be freed on bond; anticipatory bail is
only effective at the time of arrest48.

A person is given anticipatory bail if they are suspected of being arrested before they are actually
detained. Observations made by the Supreme Court regarding the granting of anticipatory bail.,
Hari Kumar v. State Of Bihar49

The only difference between Sections 438 and 439 of the Criminal Procedure Code is that under
Section 438, bail is granted before the accused is taken into custody, but under Section 439, bail
is granted after the accused has either surrendered or been taken into custody. The sole difference
between the privileges granted to the accused under the two clauses is stage. "Due to the
modifications and alterations made to Section 438 Cr.P.C., the petitioners' accused must appear

46
Bail Law and Practice in India, Chapter 13. (2019). Indian Law Institute in India
47
AIR 2011 SC 312
48
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016 at p. 246.
49
( 2003) 8 SCC 77

52
before the court in question if anticipatory bail is granted 50. When anticipatory bail is only
granted for a short time, such as until the charge sheet is submitted, the petitioner must again
request bail because, on an earlier occasion, he was required to appear in court and provide a bail
bond. As a result, once the charge sheet is submitted, the petitioner is no longer eligible for
anticipatory bail because they have already appeared in court and provided a bail bond. He no
longer meets the requirements for anticipatory bail, leaving him with no choice but to appear
before the appropriate court for the issuance of normal bail. 51 In accordance with Article 88. In
non-bailable cases, anticipatory bail is given in advance of arrest; however, this does not mean
that the regular Court, which will try the offender, is being avoided. For this reason, the High
Court very correctly set the outer date for the continuation of the bail and instructed the
petitioner to approach the regular Court for bail on the day on which it was set to expire.

"...... anticipatory bail orders should only be issued for a short time, and usually after that time
has passed or is extended, the court issuing the order should defer to the regular court, which will
then adjudicate the case after reviewing the evidence that has been presented to it after the
investigation has advanced or the charge-sheet has been filed. Realizing that an order of
anticipatory bail could be obtained even in cases of a serious nature, such as murder, it is crucial
that the duration of that order be limited. Typically, the court granting anticipatory bail should
not act in place of the original Court that is expected to handle the offence. The Court will next
have to decide whether the accused is eligible for bail in light of the evidence that has been
presented to it.

DURATION OF ANTICIPATORY BAIL

Any individual has the right to report themselves when they have grounds to suspect that they
may be arrested on trumped-up or false charges, or because they are at odds with someone, or
they are concerned that a false case may be made against them.

50
Hari Kumar Jhav State Of Bihar, ( 2003) 8 SCC 77
51
Siddhram Satlingappa Sibbia v. State of Maharashtra AIR 2011 SC 312.

53
In the case of his arrest, he may apply to the court of Sessions or the High Court under Section
438 of the Code of Criminal Procedure for the granting of bail; the court may, if it sees proper,
order that he be released on bail.

An anticipatory bail shall not be granted to an accused who has been designated as an
absconder/proclaimed offender in accordance with Section 82 of the Criminal Procedure Code
and has not cooperated with the investigation. In State of M.P. vs. Pradeep Sharma (criminal
Appeal No. 2049 of 2013 dt. 06-12-2013), the Hon'ble APEX Court ruled that "a person against
whom a warrant had been issued and is absconding or concealing himself in order to avoid
execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is
not entitled to the relief of anticipatory bail."

Siddharam Satlingappa Mhetre52,

The Hon. Supreme Court ruled that certain limitations put in place by the High Court were
unnecessary and went against the terms of anticipatory bail.

As long as the bail is not cancelled, the accused is free. On a motion made by the complainant or
the prosecution, the High Court or Court of Session may order that any individual who has been
released on bail be arrested and committed to custody.

In Gurbaksh Singh Sibbia v. State of Punjab53, the Hon'ble Supreme Court stated that "the
distinction between an ordinary order of bail and an order of anticipatory bail is that the latter is
granted in anticipation of arrest and, therefore, is effective at the very moment of arrest, whereas
the former is granted after arrest and therefore means release from the custody of the police."

When interim anticipatory bail is approved by higher courts and the case is pending, no regular
bail may be granted:

The Hon'ble Supreme Court recently instructed Trial Courts not to grant regular bail to an
accused if they have already received an interim anticipatory bail from a superior Court and the
case is still pending before the higher Court in Rukmani mahato vs. state of Jharkhand 54. In its
ruling, the court stated that "Once a regular bail is granted by a subordinate Court on the strength
52
(2011) 1 SCC 694
53
AIR 1980 SC 1632
54
S.L.P Criminal no.2411 of 2016 dt.03-08-2017

54
of the interim/pre-arrest bail granted by the superior Court, even if the superior Court is to
dismiss the plea of anticipatory bail upon fuller consideration of the matter, the regular bail
granted by the subordinate Court would continue to hold the field, rendering the ultimate
rejection of the pre-arrest bail by the superior Court meaningless."

Mandatory bail: The Criminal Procedure Code of 1973's Section 167(2) gives judicial
magistrates the authority to order the detention of an accused individual in situations when the
inquiry will take more than twenty-four hours to complete. It specifies the longest amount of
time of custody that may be permitted. It additionally stipulates that the accused must be released
on bail regardless of the nature of the charges against him if the investigation is not finished
within the maximum time frame allowed.

With the following exceptions:

(a) No Magistrate shall authorise the detention of the accused person in custody under this
paragraph for a total period of time exceeding:

(i) ninety days, where the investigation relates to an offence punishable by death, life
imprisonment, or both; or

(ii) one hundred and twenty days, in any other case, where the investigation relates to an offence
punishable by death, life imprisonment, or both; or

(iii) one hundred and twenty days, in any other

(b) The magistrate's authority to hold the accused in jail and release him on bail once the
prescribed time has passed is covered in Section 167(2). It is obvious that the proviso gives the
magistrate the authority to release the offender on bond. The Supreme Court's ruling has
effectively resolved the situation. 55. Contrary to popular belief in some legal circles, only the
sessions court has the authority to grant an accused person bail under section 167(2) when the
offence calls for a sessions court trial. When exercising authority under section 167(2), the
magistrate is not subject to limitations placed on his or her ability to award ordinary bail under
section 437 of the Code.

55
State ofU.P. v. Laxmi Brahman, AIR 1983 SC 439

55
The Honourable Supreme Court emphasised in Natbar Parinda 56
that even in terrible and
horrifying forms of crimes, the accused has a right to be released on bail under this Article.

The 90 or 60 day period would start to run on the day that the magistrate in the first instance
remanded the accused to detention.

Date of remand to custody may not always coincide with the date of arrest because the individual
who was arrested must appear before a magistrate within 24 hours after being detained. The total
amount of time that the magistrate may order someone held in custody by the police or the court
is 90/60 days.

Our illustrious Supreme Court ruled in the case of Union of India v. Nirala Yadav 57that the
Magistrate must decide the application for statutory bail the same day it is filed.

In Thangavel Ravi Vs. State of A.P 58, our Hon'ble High Court ruled that the case fell under the
first part of Section 307 IPC, prescribing imprisonment that could last up to ten years and the
maximum period of detention in custody would be 60 days as provided by the proviso (a) (ii) of
Section 167(2) of Cr.P.C. The petitioner in that case was alleged to have committed the offence
punishable under Section 307 IPC As a result, the petitioner is qualified to be released on bond if
the charge sheet is not submitted within 60 days after the date of arrest.

The main issue in this case was "whether the accused is entitled to bail under Section 167(2) of
the Code of Criminal Procedure 1973 due to default on the part of the investigating agency in not
filing the charge sheet within sixty days in a case regarding offence for which the punishment
imposable may extend up to ten years?"

The Hon. Apex Court said, "Offenses punished by imprisonment for a period of not less than 10
years have been held in one compartment, equivalent to offences punishable by death or life
imprisonment. Even if the maximum penalty is more than 10 years in jail, this category of
offences unquestionably warrants a further look because they offer a lower minimum sentence.

Delhi State v. Sushila Agarwal59

56
Natabar Parinda v. State ofOrissa, AIR 1975 SC 1465
57
AIR 2014 SC 3036
58
2017(1) ALD (Cri.)449
59
2020 SCC OnLine SC 98

56
While rendering the historic judgement, the honourable court had great pleasure in posing the
following 2 questions:

1. Should the protection provided by Section 438 of the Criminal Procedure Code be time-
limited to allow the subject to appear before the trial court and apply for ordinary bail?

2. Whether the life of anticipatory bail should cease when the accused is called before the court
and at what point.

Held

In response to the first query, the Constitutional Bench of the Supreme Court held that the court
granting anticipatory bail cannot establish a time limit for it. The unanimous ruling by the five-
judge panel that "the protection accorded to a person under Section 438 Cr.PC should not
invariably be restricted to a particular period; it should inure in favour of the accused without any
restriction on time" was received with pleasure.

In response to the second query, the Honorable Court decided that "An anticipatory bail order's
life or length typically does not terminate when the accused is called before the court or when
charges are filed, but rather it may last until the conclusion of the trial. Again, the court is free to
set a restriction on the duration of anticipatory bail if any unique or unusual circumstances call
for it."

In response to the second query, the Supreme Court exercised caution by providing the trial court
discretionary powers to limit the duration of the anticipatory bail in the event of unique or
distinctive case circumstances.

Therefore, We can infer from reading Section 438 of the Code that it shouldn't be time-limited.

Additionally, once it has been granted, it will remain in effect until the conclusion of the trial and
can only be revoked by invoking Section 439. However, the Supreme Court has ruled that having
a limited scope is crucial. The time frame for anticipatory bail. And when the time period has
passed or if it is prolonged, the court granting the bail must transfer control of handling

57
anticipatory bail to a regular court, which will assess the evidence after looking into the situation
or receiving a charge-sheet60.

Under Section 482 of the Code, the High Court has the authority to grant an interim bail in
specific circumstances.61 In situations where the jurisdiction is in doubt, a temporary anticipatory
bail may be given. Additionally, in situations when an application for anticipatory bail is ongoing
in court, the court may award an interim order of anticipatory bail. The applicant may then apply
to the Court of Sessions for an ordinary bail order, but only with the High Court's consent.

DIFFERENCE BETWEEN ANTICIPATORY AND REGULAR BAIL

Anticipatory bail: A person is given anticipatory bail when they fear being arrested in a
criminal matter. Depending on the seriousness of the allegations, anticipatory bail may allow a
person to avoid arrest. Even before a First Information Report (FIR) has been filed against a
person, that individual may still request anticipatory bail.

Regular Bail: A person who has already been detained by the police and placed under arrest
frequently receives a daily bail. The accused has the right to be released from such custody under
Section 437,439 of the Criminal Procedure Code. A daily bail effectively releases an accused
person from detention to ensure his appearance at the trial. The accused must file a bail
application with the court, regardless of whether the offence is one that is subject to bail or not.
The court will then set a date for the hearing and issue a summons to the opposing party. The
court will hear arguments from both sides on the scheduled hearing date and render a ruling
based on the facts and circumstances of the case.

DIFFERENCE BETWEEN BOTH THE TWO:

Regular Bail

The Indian Penal Code's Sections 436 and 437 discuss regular bail in detail.

60
Saluddin Abdul Samad Shaikh v State of Maharashtra. ( 1996 1 SCC 667 (668)
61
Anant Vasant Joshi v State of Maharashtra (1986 (1) Crimes 170 (Bom))

58
According to Section 436, any person who is arrested or detained without a warrant by a police
officer in charge of a police station, or who appears or is brought before a court, and who is
willing to post bail at any time while in the custody of that officer or at any point in the
proceeding before that court, shall be released on bail:

1. Provided that such officer or Court may, if it so determines, free such person upon his
execution of a bond without sureties for his attendance as hereby provided, in lieu of taking bail
from such person: Furthermore, nothing in this section shall be interpreted to modify the terms of
Section 116 Subsection (3) or Section 446A.

2. Despite what is stated in sub-section (1), if a person has not complied with the terms of the
bail-bond with regard to the time and place of attendance, the Court may refuse to release him on
bail when he appears before the Court again in the same case or is taken into custody. Any such
refusal shall be without prejudice to the powers of the Court to require any person bound by such
bond to pay the penalty thereof under the terms of the bail-bond.

When bail may be taken in cases of non-bailable offences is stated in Section 437. A person may
be released on bail when he is charged or suspected of committing any non-bailable offence and
is arrested or held without a warrant by a police station officer, or when he appears in court
before a court other than the High Court or Court of Session.

I Such a person will not be freed if there are reasonable reasons to suspect that he committed a
crime carrying a death or life sentence;

(ii) Such a person shall not be so released if the offence is one that is cognizable and he has
previously been convicted of a crime punishable by death, life in prison, or a term of
imprisonment of seven years or more, or if he has previously been convicted twice or more of a
crime that is not subject to bail and is cognizable: With the caveat that the Court may order that a

59
person mentioned in clauses I or (ii) be released on bail if they are under the age of sixteen, a
woman, or are ill or infirm:

Additionally, if the Court determines that it is just and appropriate to do so for any other unique
reason, it may also order that the individual mentioned in clause (ii) be released on bail:
Furthermore, if an accused person is otherwise eligible for release on bail and provides an
undertaking that he will follow any instructions the court may issue, the mere possibility that
witnesses may need to identify him or her during the course of the investigation shall not be
grounds for refusing to grant bail.

2. When a person is granted bail under subsection (1) and is accused or suspected of committing
an offence punishable by imprisonment for up to seven years or more, an offence under Chapter
VI, Chapter XVI, or Chapter XVII of the Indian Penal Code, or of conspiring to commit an
offence of any kind, the court may impose any conditions that the court deems necessary.

(a) to ensure that they attend in accordance with the terms of the bond issued in accordance with
this Chapter, or

(b) to prevent them from committing an offence similar to the one they are accused of or the one
they are suspected of committing, or

c) in any other situation where it would be just.

3. Any officer or court that releases a person on bail in accordance with subsection (1) or
subsection (2) must document their reasoning—including any unusual circumstances—in
writing.

4. Any court that has granted someone bail pursuant to subsection (1) or subsection (2) may, if it
deems it appropriate, order that person to be arrested and placed in custody.

5. Regular bail, on the other hand, is money that is given to a person by the Court after they have
been arrested. Any person who commits a cognizable offense—one for which police can detain
them without a warrant—and an unbailable one will be detained by them. The offender must be
taken to jail once any period of police custody expires. Such a suspect has the right to be freed
from custody under sections 437 and 439 of the Criminal Procedure Code.

60
2. Anticipatory Bail

According to Section 438, a person may apply to the High Court or the Court of Session for a
direction under this section if they have reason to believe they will be arrested on suspicion of
committing a crime for which there is no provision for bail. If the court deems it appropriate, it
may order that the person be released on bail in the event of an arrest.

When the High Court or Court of Session issues a direction under subsection (1), it may include
any conditions it deems appropriate in light of the facts of the specific case, such as:

(i)a requirement that the individual make himself accessible for questioning by a police officer
as and when necessary;

(ii) a restriction that prohibits the person from, directly or indirectly, offering any enticement,
threat, or promise to anybody who is aware of the case's facts in an effort to discourage him from
disclosing those information to the court or to any police officer;

(iii) a requirement that the person not depart India without the Court's prior approval;

(iv) any additional requirements that may be imposed in accordance with subsection (3) of
section 437, as if the bail were authorised by that section.

(3)If the accused person is subsequently detained without a warrant by a police officer in charge
of a station and is willing to post bail either at the time of detention or at any other time while in
the custody of that officer, the accused person will be released on bail; additionally, if a
magistrate who has jurisdiction over the alleged offence determines that a warrant should be
issued against the accused person in the first instance, the arresting officer will issue a bailable
warrant in accordance with the court's.

Anticipatory bail is bail that is given to a person even before they are arrested in the hope that
they will be apprehended soon for a certain crime. These days, influential people may drag their

61
rivals into baseless legal disputes in an effort to harm their reputations or imprison them
temporarily in order to gain what they want, making bail an absolute necessity.

An application for anticipatory bail can be made without a First Information Report (FIR) being
filed against the applicant. Before filing a FIR, a person may seek for anticipatory bail if they
believe that there are good reasons for their arrest.

Even after filing a FIR, a person has the option to request anticipatory bail, but only before being
taken into custody. After being arrested, a person must immediately file an application for
ordinary bail or interim bail, as applicable.

LEGAL CONSEQUENCES OF BAIL

The circumstances under which bail may be granted for an offence that is not subject to bail are
covered by Section 437. If an accused or suspected person is charged with a crime for which bail
is not permitted, if they are detained by police without a warrant or if they appear in court before
a court other than the High Court or Court of Session, they may be freed on bail under the
following conditions:

If there are compelling grounds to suspect that a person has committed a crime carrying a death
or life sentence, they shall not be freed.

The court may order that a person be released on bail if they have been convicted of a crime that
is cognizable and punishable by death, life in prison, or a sentence of seven years or more in
prison, or if they have been found guilty twice or more of a crime that is both non-bailable and
cognizable.

if the individual is a woman, under the age of 16, ill, or disabled.

62
It is decided that it is appropriate to release a person on bail if there is any other justification.

The possibility that the witness might be asked to identify the accused person during an
investigation shouldn't be a good enough reason to deny him bail if he otherwise qualifies and
provides a promise to follow whatever instructions the court issues.

If the accused is suspected of committing an offence under Chapter VI, Chapter XVI, or Chapter
XVII of the Indian Penal Code, 1860, or of conspiring to commit, or aiding in the commission
of, any offence, the accused may be granted bail under subsection (1) of Section 437. The
following requirements may be imposed by the court:

 to make sure the person shows up and complies with the conditions of the bond that was
issued.
 to ensure that the individual in question does not commit an offence comparable to the
one he is charged with or suspected of committing.
 For the sake of justice

The extraordinary grounds for releasing a person on bail under paragraph (1) or subsection (2)
must be documented in writing by the officer or the court.

Any court that has granted someone bail under subsections (1) or (2) may, if it sees fit, order that
person to be arrested and held in jail.

DEFAULT BAIL

It is not an absolute or unassailable right to be released on bail on default under Section 167(2)62
CrPC if the charge-sheet is not submitted within 90 days of the date of the first remand. 63
Explanation 1 was added to the proviso (a) in 1978, making it explicit that the accused would be
released after 60 or 90 days, depending on the circumstance, but that he would only be released
after posting bail.64

62
Code of Criminal Procedure, 1973 § 167 (2)
63
Pragyna Singh Thakur v. State of Maharastra, (2011) 10 S.C.C. 44
64
II, Sohoni, Code of Criminal Procedure 1056 (21st ed. LexisNexis, 2014).

63
It could be argued that a simple delay in filing the charge sheet is insufficient justification for
releasing the petitioner on bail.65

Therefore, the default bail provided for by the proviso is subject to conditions, previous rulings,
judicial norms, and other legislative enactments and cannot be used simply because the 90-day
period has passed as an absolute entitlement. According to Section 61 of the Code of Criminal
Procedure, 1898 (the "Old Code"), a person apprehended without a warrant could not be held by
a police officer for more than 24 hours. If the investigation could not be finished within the 24
hours specified by Section 61 and there were reasons to believe that the accusation or
information was well-founded, Section 167(1) of the Old Code required the police officer to
transfer the accused to the nearest Magistrate.

The Old Code's Section 167(2) provided:

"The Magistrate to whom an accused person is submitted under this section may, from time to
time, permit the detention of the accused in such custody as such Magistrate sees proper, for a
length not exceeding 15 days overall, whether or not he has jurisdiction to try the case. In the
event that he lacks the authority to try the matter or commit it to trial and determines that
additional detention is not essential, he may order that the accused be sent to a magistrate with
the necessary jurisdiction:

Accordingly, the Supreme Court emphasised that the legislative assumption was that the
investigation would typically be finished in less than twenty-four hours. The aforementioned
legal requirement is still in effect today. Furthermore, regardless of the crime or the punishment,
Section 167 of the Old Code required that investigations be finished in 24 hours or 15 days
outside of court.

There was no other provision that, in plain or express language, conferred the power of remand
to a Magistrate beyond the said period of 15 days in total during the pendency of investigation
and before taking cognizance on the submission of the chargesheet, as noted by the Supreme

65
Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra, (2015) 7 S.C.C. 440

64
Court in Natabar Parida v. State of Orissa 66. However, Section 344 of the Old Code gave the
Magistrate the authority to delay the start of any investigation or trial for any justifiable reason.

The following is the rationale for the aforementioned Section 344 of the Old Code:

"If enough evidence has been found to generate a reasonable suspicion that the accused may
have committed an offence, and it looks possible that additional evidence may be gathered via a
remand, this is a reasonable cause for a remand," the court ruled.

The Hon'ble Supreme Court held in two judgments, A. Lakshmanarao v. Judicial Magistrate,
First Class Parwatipuram67 and Gouri Shankar Jha v. State of Bihar & Ors.,68despite
differences of opinion among the High Courts, that even though Section 344 was listed under
Chapter XXIV, which dealt with inquiries and trials, it did not follow that it did not apply in
situations where the process of gathering In Gouri Shankar Jha (supra), the Supreme Court
outlined how a Magistrate could impose police or jail detention under Section 167 for a total of
no more than 15 days at a time. However, under the aforementioned Section 344, a Magistrate
may remand an accused person to custody for a period not to exceed 15 days at a time if there is
enough evidence to suggest that the accused may have committed an offence and it is likely that
more evidence will be discovered as a result of the remand. However, the custody under the
aforementioned section 344 was only allowed for jail custody.

According to Aslam Babalal Desai v. State of Maharashtra 69, the Law Commission suggested
in its 41st Report that the time frame for finishing investigations be extended to 60 days.
However, it was also anticipated that even though this rise would become the norm, the practise
of filing a preliminary charge-sheet and requesting remand under Section 344 might not be
stopped. Therefore, the Joint Select Committee believed that the maximum amount of time that

66
(1975) 2 SCC 220
67
(1970) 3 SCC 501
68
(1972) 1 SCC 564
69
(1992) 4 SCC 272

65
the investigation must be completed must be specified in the statute and that the accused should
be given the right to be freed on bail if the investigation is not finished within the specified
amount of time. Therefore, it added the proviso defining the time frame within which the
investigation must be finished and, upon failure thereto, conferring a right upon the accused to be
released on bail, which shall be deemed to be one under the provisions of Chapter XXXIII of the
Code. It did this while keeping sub-section (2) of Section 167 in the same language.

The rationale behind the inclusion of the proviso was laid out in the Statement of Objects and
Reasons, which was cited in the preceding case and included the following information, as
highlighted in Raghubir Singh & Ors. vs. State of Bihar70:

"At the moment, Section 167 allows the Magistrate to approve holding an accused person in
custody for a period of time that does not total more than 15 days. There is a complaint that this
clause is honoured more frequently in violation than in observance and that, in reality, the police
inquiry takes far longer. The practise of filing a "preliminary" or incomplete charge-sheet and
asking the court for a remand under Section 344, which is not intended to apply to the stage of
investigation, has become more common. It cannot be denied that there may be legitimate
situations where it may not be practical to finish the investigation within 15 days, even though in
certain cases the delay in the investigation may be the police's fault. The Commission suggested
that the time frame be increased to 60 days, however if this were to happen, 60 days would
become the standard and there is no assurance that the above-mentioned illegal behaviour would
stop. When he is satisfied that sufficient grounds exist for approving such custody, it is thought
that extending the length of detention beyond 15 days would be the most satisfactory solution to
the issue.

Additionally, the Supreme Court noted in M. Ravindran vs. The Intelligence Officer,
Directorate of Revenue Intelligence71 that the Statement of Objects and Reasons of the Code of

70
 (1986) 4 SCC 481
71
2020 (12) SCALE 190

66
Criminal Procedure, 1973 demonstrated that the Government had taken the following crucial
factors into account when assessing the Law Commission's recommendations:

The Government carefully considered the Commission's recommendations, keeping in mind,

among other things, the following fundamental considerations:

(i) A defendant must receive a fair trial in conformity with recognised natural justice principles;

(ii) every effort should be taken to prevent inquiry and trial delays, which are detrimental to both
the parties concerned and society at large; and

(iii) The process shouldn't be overly complicated and should give the less fortunate members of
the community the best chance at success.

The Old Code was repealed on April 1st, 1974, with the enactment of the Code of Criminal
Procedure, 1973 ("CrPC,1973"). In the situations listed in clauses (a) through I of sub-section 1
of the CrPC, 1973, any police officer is authorised to make an arrest without a warrant or a
magistrate's order. Furthermore, unless there is a specific order of the Magistrate under Section
167, no police officer shall retain a person in custody who has been arrested without a warrant
for longer than 24 hours under Section 57 of the aforementioned CrPC. In Chapter XII under the
heading "Information to the police and the power to investigate," Section 167 of the CrPC, 1973
has made several significant changes from the Old Code. The situation with Section 309 of the
CrPC, 1973, which corresponds to Section 344 of the Old Code, is similar.

Proviso (a) had been added to sub-section (2) of Section 167, keeping the need that the accused
be forwarded to the nearest Magistrate and allowing the Magistrate to remand the accused to
either police or judicial custody for a period of time not to exceed 15 days.

The CrPC, 1973's section 167(2) and proviso (a) are given that –

In the proviso, the term "the Magistrate" refers to the Magistrate who has jurisdiction to try the
matter.

According to Section 309(2) of the New Code

67
"If the Court, after receiving notice of an offence or the start of a trial, determines that it is
necessary or advisable to delay the start of, or adjourn, any inquiry, or trial, it may, from time to
time, for reasons to be recorded, delay the same on the terms it thinks fit, for the amount of time
it considers reasonable, and may by a warrant remand the accused if in custody:"

As long as the accused person is not held in custody under this Section for more than fifteen days
at a time. In light of this, only Section 167(2) and Section 309(2) of the New Code's proviso (a)
grant the authority to remand a person to judicial or jail custody while an inquiry is ongoing.
Only after an offence has been adjudicated or the trial process has begun does the new Code's
Section 309(2) come into play. The Court may only remand the accused if they are in custody,
according to section 309(2) of the new Code. If the offender is already out on bail, it does not
provide the court the authority to remand him. Additionally, it does not give the Court the ability
to effectively cancel a bail.

Thus, proviso (a) to section 167 (2) of the Criminal Procedure Code of 1973 served as the first
legal precedent for the idea of default or statutory bail. According to the said proviso, the
Magistrate may authorise the detention of the accused person beyond the period of 15 days
specified in sub-section (2) if the Magistrate is satisfied that there are sufficient grounds to do so.
However, no Magistrate shall authorise the detention of the accused person for a total period
exceeding 60 days, and upon failure of the prosecution to file chargesheet before expiration of
the said period of time.

A few years later, in 1978, it was deemed necessary to revise Section 167 of the New Code by
tying the investigation's completion duration to the offence as well as prolonging that period.
Since then, the section in question has remained unchanged.

Section 167(2) of the new Code, as amended, states the following in its pertinent portion:

When an investigation cannot be finished in 24 hours, procedure 167 should be followed.

assuming that—

and if the accused person is willing to post bail and does so, he will be released on bail at the end
of the specified period of 90 days, or 60 days, as the case may be. Every person released on bail
under this sub-section will be considered to have done so for purposes of Chapter XXXIII;

68
Explanation I: "For the avoidance of dispute, it is hereby announced that the accused shall be
retained in jail so long as he does not furnish bail, regardless of the passage of the time period
specified in paragraph (a)."

The Supreme Court has read the aforementioned Explanation I to suggest that even though the
time period has passed, the accused would still be considered to be in legal custody as long as he
does not post bail.72 The Supreme Court, however, has ruled that the phrase "the accused does
furnish bail" in Section 167(2) and Explanation I thereto cannot be interpreted to mean that the
accused's continued detention in custody is authorised even if he was ready and willing to post
bail but was unable to do so because his bail application was pending before the Magistrate or
because his appeal of the Magistrate's decision to deny bail was pending before a higher forum.73

74
Rakesh Kumar Paul vs. State of Assam

Facts: According to Section 167(2) of the Criminal Procedure Code, a person may be detained
for 90 days if the offence they committed carries a minimum 10-year sentence. The court denied
the petitioner's request for ordinary bail under section 439 of the Criminal Procedure Code on the
grounds that the petitioner still had 90 days of custody to serve. Contentions Of The Petitioner
And Respondent: The Prevention of Corruption Act of 1988 resulted in the petitioner's arrest and
detention. The state countered that the petitioner was detained for 90 days since the crime
entailed a sentence of at least 10 years in prison; as a result, the petitioner submitted a "normal
bail," which was denied. The case was taken to the SC, where the petitioner's attorney contended
that because the petitioner had not requested "default bail" on or before a specific date, his right
had been forfeited with the submission of the charge sheet.

Judgement: The court overturned the High Court's judgement after ruling that the petitioner
should receive "default bail" in light of the facts and circumstances of the case. Since it deals
with an individual's personal liberty, the Supreme Court has held that even an oral application by
an accused seeking "default bail" would be sufficient, according to Justice Madan B. Lokur's
majority opinion. The Supreme Court further held as follows:

72
Para 82 of the concurring judgment by Hon’ble Justice Deepak Gupta in the case of Rakesh Kumar Paul vs. State
of Assam, (2017) 15 SCC 67
73
M. Ravindran vs. The Intelligence Officer, Directorate of Revenue Intelligence
74
(2017) 15 SCC 67

69
"How to acquire default bail"

1. Consequently, it is not as if the petitioner did not want default bail; if not verbally, then
undoubtedly in writing, the petitioner did request default bail before the High Court. In our
perspective, we cannot and should not be overly technical in discussions about personal liberty
and must err on the side of liberty. Therefore, it makes no difference whether the accused
submits a written application for "default bail" or an oral application for "default bail." The
relevant court must consider the statutory requirements when deciding how to proceed with such
an application, including whether the deadline for filing a charge-sheet or challan has passed,
whether the charge-sheet or challan has been filed, and whether the accused is willing to post
bail and actually does so.

2. We adopt this stance while keeping in mind that it is not always advisable to be formalistic or
technical when discussing matters of personal liberty and Article 21 of the Constitution. A
petition for a writ of habeas corpus or other writs being entertained even on the basis of a letter
addressed to the Chief Justice or the Court is part of the history of personal liberty cases decided
by this Court and other constitutional courts.

Cancellation of default bail

It can be cancelled by court under section 439 (2) of Cr.P.C. The High Court or Court of Session
has the authority to revoke any bail that has been granted by it or another criminal court in
accordance with Chapter XXXIII, re-arrest him, and place him in custody, in accordance with
Section 439's subsection (2). Bail shouldn't be cancelled too frequently. An order for bail
cancellation may be made if it appears to the superior court that the court granting bail acted
without exercising its judgement or on irrelevant facts, or if the court omitted to consider any
statutory prohibition against giving bail. When deciding whether to grant a request for bail
cancellation, the court must take into account all relevant circumstances.

The Supreme Court has categorically held in the cases of Mahipal v. Rajesh Kumar @ Polia and
another (2020) and Neeru Yadav v. State of Uttar Pradesh (2016) that the court may use its
authority under Section 439(2) of the CrPC to revoke the bail granted in favour of the respondent
if the order in question is utterly perverse and wholly without foundation.

70
According to section 439(2), the High Court and the Sessions Court have the authority to revoke
bail orders issued by those courts as well as by other courts below them. The authority to reverse
a bail order was granted by itself by the High Court or the Sessions Court can only be used when
the individual released on bail is found guilty of abusing the freedom provided by the court or
when there has been a significant change in the facts of a case.

However, no such limited interpretation is acceptable in the case of the revocation of bail order
issued by a court that is subordinate to it. Any individual who has been released on bail under
this Chapter may be arrested and committed to imprisonment by a High Court or Court of
Sessions, according to Section 439(2). Therefore, a High Court or Court of Session may review
and consider a bail order granted by a court below it on the merits and determine whether the
order is valid under the law or not.

The subsequent order may be issued by the magistrate in any way that alters, amends, or deletes
the terms of the initial bail order.

Such authority is implicitly granted to him by Section 437(5) of the Cr.P.C. As a logical
implication, it follows that if the Magistrate has the authority to revoke his order, he also has the
authority to modify or carry out required changes, short of rescission, to the earlier bail order he
had issued.75

It is now established law that the complainant may always challenge the bail order if the latter
was improperly issued. It's not as if the only option after a court has granted bail is to have it
revoked due to abuse. The merits of the bail order may also be examined 76. On the grounds that
police need to question the accused in custody, bail previously granted cannot be revoked.

BAIL TO UNDERTRIALS

MEANING

Undertrials inmates who have been held in custody during the course of an investigation, inquiry,
or trial for the crime they are accused of committing are referred to as "Under-trial" prisoners.
75

76

71
According to the National Crime Records' report titled "Prison Statistics India 2015," According
to the National Crime Records Bureau (NCRB) in October 2016, 67 percent (or two thirds) of
the inmates in Indian jails are awaiting trial, totaling more than 200,000 prisoners.

Bail

According to Section 436, the trial court must release an undertrial imprisoned for minor
offences on a PR Bond if they have been detained in custody for longer than a week following
the issuance of their bail order. According to Section 436A, the trial court must release the
defendant on a PR Bond if they have served more than half of the maximum sentence that can be
imposed on them for the serious offence for which they have been charged. The Supreme Court
has instructed high courts and NALSA to regularly check on the issue and has ordered the
release of as many undertrial detainees who are eligible for release. The apex court's orders,
however, have placed more stress on Section 436A than on Section 436. It's likely that there
aren't many Section 436A cases—undertrials who serve more than half of the maximum sentence
—thanks to the nation's constant attention on the plight of prisoners awaiting trial. We might
have a lot more people incarcerated for less serious offences who could be freed on a PR Bond in
accordance with Section 436.77 The number of under-trial detainees continues to be roughly the
same since the courts do not give Section 436 cases enough attention. The length of the trial
procedure is the third factor in question. This, in turn, is connected to India's extremely low
judge-to-population ratio, which is 14 judges per million people, compared to between 35 and 50
judges per million people in other developed nations. Fast track courts were an impromptu
attempt to boost the judge-population ratio by temporarily establishing additional courts to hear
cases at the session court level and hiring judges on a contract basis. Because of this innovation,
the number of cases pending at the sessions courts level has significantly decreased over the past
ten years; yet, it has come at a cost, thus some would say that it has been premature. These courts
have placed a greater focus on expeditious case resolution than on "due process." Despite the fact
that both courts use the same legal procedure, it has been shown that these fast track courts have
far greater conviction rates than the ordinary courts. Defense attorneys claim that judges in fast-
track courts frequently disregard the maxim of proving a case beyond a reasonable doubt because
they are eager to wrap up the trial. In addition to significantly increasing the judge-to-population

77
Section 436 of Code of Criminal Procedure.

72
ratio, we will also need to strengthen the court's infrastructure and add more personnel if we are
serious about lowering the backlog of cases in our courts. These steps must be taken in
conjunction with other ones, such as decriminalising minor offenses, employing police arrest
with greater discretion, implementing the police's ability to grant bail while a suspect is in
custody for a bailable offense, computerising the criminal justice system, and promptly
dispatching police escorts to transport suspects to court on their scheduled court dates. Other
measures include putting the Probation of Offenders Act into effect, which calls for releasing
offenders who commit less serious offences back into society on a "bond of good behavior" or
under the supervision of a probation officer for a set period of time (typically between one and
three years), rather than imprisoning them.

BAIL DURING APPEAL

A person who has been found guilty of a crime has the option to challenge their conviction. They
might have pointed out a trial-related procedural mistake, for instance, or they might claim that
their constitutional rights were violated. Even if you have already received a punishment for a
crime, you might be able to post bail and avoid being detained while your appeal is pending. In
contrast to when you are awaiting a trial in a criminal matter, you do not have a constitutional
right to bail during the appeals process. The law of your state will determine any bail choices you
have while filing an appeal. Some states don't even offer post-conviction bail, while others give
judges a lot of leeway in deciding if it's necessary and how much it should be. If a judge denies
bail or sets a large amount, you can appeal, but you probably won't be successful unless the
judge didn't take all relevant considerations into account.

Examining the Crime and the Punishment

The onus is on the defendant to demonstrate that bail after a conviction is reasonable. When
deciding whether to issue bail, the court will take into account the offence for which the prisoner
was found guilty and the punishment they were given. If the defendant was convicted of a very
serious offence, such as homicide or a sex crime, the state may occasionally rule out the option.

73
This is due to the defendant's loss of the presumption of innocence and the possibility that, given
their violent past, they could present a threat to the neighbourhood. A court could be reluctant to
release a prisoner on bail if they have been given a lengthy jail sentence because they would be
more likely to run away if their appeal is unsuccessful. In any circumstance where the term is
less than the amount of time needed for the appellate court to examine the conviction, several
jurisdictions offer post-conviction bail. The defendant would have spent longer in jail than the
term of their sentence if they had remained in custody during that time. If their appeal is
successful, this will result in an unfair outcome. The majority of offences may fall into this
category because an appeal may take many months or perhaps a year to complete.

Additional Considerations for Setting Bail During an Appeal

The judge may also take into consideration the same considerations that are important in post-
arrest bail determinations in addition to these two main ones. For instance, they might take into
account the defendant's criminal background, any instances of them missing court dates in the
past, their work situation, and any local family ties. A defendant is less likely to be granted bail
while filing an appeal if they had previously behaved recklessly or irresponsibly. The judge will
undoubtedly determine that they are a danger to the community and might commit more crimes
while their case is being appealed. (This can be a strong argument even if these offences are less
serious than the one for which they were found guilty.) Additionally, the judge will take into
account a few post-conviction-related factors. They must be convinced that the defendant won't
tamper with witnesses or evidence while they are out of custody in order to grant bail. This might
have an impact on any future trials they are given. The judge may occasionally consider the
merits of the appeal while making a ruling. The judge is likely to deny bail if it has no merit at
all.

POST CONVICTION AND PRE APPEAL BAIL (SEC-389)

74
Transit bail

A person who is anticipated to be detained for an alleged non-bailable offence in a separate

jurisdiction from where the complaint is filed can only be given transit bail for a short amount of
time. The high court must ensure that the accused complies with the requirements set by the
court for granting bail in certain circumstances so that the case can move forward.

The court's order must be for a sufficient amount of time to allow the accused to appear before
the court with the proper jurisdiction and proceed with the case.

The 5 judge bench of the Calcutta high court reached its decision in Sailesh Jaiswal v. State of
West Bengal 78(1998). The petitioner worked as an iron merchant at a Kolkata mill. While he
was gone conducting business, some people identifying themselves as police officers demanded
the petitioner's presence in connection with a criminal matter in Allahabad. The petitioner
requested anticipatory bail and explained to the court why his presence was entirely unjustified
and unlawful.

Interim Bail

Another provision enables the accused to apply for bail if they have a good reason, and this is
usually granted to those charged with crimes that require travel, as well as to women, children,
and those over the age of 70. Exam-taking students; in these circumstances, temporary relief or
bail may be given. Keeping in mind that regular bail may only be granted on the basis of merit,
interim bail does not ensure that regular bail will be granted in the future.

Only crimes that carry a death penalty are exempt from the interim bail rule; however, this
restriction has been loosened for women, children, and the elderly.

The ordering authority is not allowed to impose any restrictions on the accused's release after
issuing an order of interim bail.

SECTION 441: ACCUSED'S BOND AND SURETIES

(1) A bond for the amount of money the police officer or court, as appropriate, requires before
any individual is freed on bail or released pursuant to his own bond the case may be, thinks
78
1998 (2) ALD Cri 924

75
sufficient shall be executed by such person, and, upon his release on bail, by one or more
sufficient sureties subject to the condition that he appear at the time and location specified in the
bond and maintain that appearance until otherwise directed by the police officer or court, as the
case may be.

(2) The bond must include any conditions that are placed on someone's release after posting bail.

(3) If the circumstances call for it, the bond must also obligate the person granted bail to show up
when summoned to the High Court, Court of Session, or other court to address the matter.

(4) The court may accept affidavits as proof of the facts contained therein relating to the
sufficiency or fitness of the sureties, or, if it deems it necessary, may either hold an inquiry itself
or may cause an inquiry to be made by a Magistrate subordinate to the court, as to such
sufficiency or fitness, for the purpose of determining whether the sureties are sufficient or fit.

Section 441 A. Sureties' declarations.

Those who stand surety for an accused person's release on bail are required to make a declaration
before the court listing all the parties, including the accused, to whom they have provided
suretyship. The 111 Cr PC (Amendment) Act, 2005 now has Section 441A, which mandates that
anyone acting as a surety for an accused person must report how many cases he has already
handled on their behalf.

Discharge from custody, Section 442

(1) As soon as the bond is carried out, the person for whose appearance it was performed is
released; if they are detained, the court that admitted them to bail will issue an order of release to
the jail's officer, who will then free them once they receive it.

(2) No provision of this section, section 436, or section 437 shall be interpreted as requiring the
release of anyone who may be held in custody for a reason other than the one for which the bond
was executed.

When the initial bail is insufficient, the court has the authority to set a higher amount.

76
The court may issue a warrant of arrest directing that the person released on bail be brought
before it and may order him to find sufficient sureties, and on his failure to do so, may commit
him to jail. This is because if insufficient sureties have been accepted due to error, fraud, or
another reason, or if they later become insufficient, the court may order that they be replaced.

Discharge of sureties, Section 444.

(1) All or any sureties for the attendance and appearance of a person released on bail may at any
time apply to a Magistrate for a full or partial discharge of the bond.

(2) After receiving such a request, the Magistrate will issue a warrant for the arrest of the subject,
ordering that they appear before him.

(3) The Magistrate shall direct the bond to be discharged either wholly or so far as it relates to
the applicants upon the appearance of such person pursuant to the warrant, or upon his voluntary
surrender, and shall call upon such person to find other sufficient sureties, and, if he fails to do
so, may commit him to jail.

Section 445: Recognizance in lieu of deposit.

Except in the case of a bond for good behaviour, any court or officer that requires a person to
execute a bond with or without sureties may also allow that person to deposit a sum of money or
government promissory notes in the amount that the court or officer deems appropriate in lieu of
executing the bond.

FORFEITURE OF BAIL BOND

Procedure when a bond is forfeited, Section 446.

(1) When a bond under this Code is for an appearance before a court or for the production of
property, and it is proven to that court's satisfaction or to any court to which the case has since
been transferred that the bond has been forfeited, or when it is proven to the satisfaction of the
court by which the bond was taken, or to any court to which the case has since been transferred,
or to the court of

77
To explain:79

A condition in a bond requiring an appearance or the production of property before a court shall
be interpreted to include a condition requiring an appearance or, if applicable, the production of
property before any court to which the matter may subsequently be moved.

(2) If insufficient justification is not provided and the fine is not paid, the court may act to
recover the amount as if it had been imposed by it in accordance with this Code:

The person bound as a surety may be sentenced, by order of the court ordering the recovery of
the penalty, to incarceration in a civil jail for a duration that may extend to six months if the
penalty is not paid and cannot be recovered in the way mentioned.

(3) The court may remit any portion of the aforementioned fine and only require partial payment
after documenting its justifications.

(4) If a guarantor to a bond passes away before the bond is forfeited, his estate is released from
all responsibility for the bond.

(5) If a person who provided security under Sections 106, 117, or 360 is found guilty of a crime
that violates the terms of his bond or of a bond executed in lieu of his bond under Section 448, a
certified copy of the judgement entered by the court in which he was found guilty of the crime
may be used as evidence in proceedings against his surety or sureties. If such a certified copy is
used as evidence, the person who provided the security will be held liable.

Procedure in the event of a surety's bankruptcy, demise, or forfeiture of a bond, according

to Section 447.

The court by whose order the bond was taken, or a Magistrate of the first class, may order the
person from whom the security was demanded to furnish new security in accordance with the
directions of the original order. If such security is not furnished, the court or Magistrate may
proceed as if there had been a default in complying with such original order.

Section 448: Minor must post a bond.

79
Asim Pandey, Law of Practice and Procedure, Second Edition, 2015, Lexis Nexis.

78
When a minor is asked to sign a bond by a court or officer, the court or officer may accept a
bond that has only been executed by a surety or sureties.

Section 449: Appeals from section 446-related decisions.

All orders issued under Section 446 are subject to appeal, including: I orders issued by
Magistrates to the Sessions Judge; and (ii) orders issued by Courts of Sessions to the court from
which an appeal may be lodged.

Power to order the levy of money owed on certain recognizances is found in Section 450.

Any Magistrate may be instructed by the High Court or Court of Session to levy the sum owed
on a bond for appearance or attendance at such High Court or Court of Session.

PAROLE VS. BAIL

A prisoner is released on parole for a set amount of time. Before the maximum sentence period is
served, a number of conditions must be satisfied. It speaks to the period following a defendant's
release from custody. Several of the same limitations and an offender on parole would be subject
to the same precautions as someone on probation. Parole is always granted to inmates who have
served a specified period of time in prison. It must strictly follow the rules, otherwise they will
be returned to custody and given more time for parole violations. The procedure of freeing
prisoners from custody while they await trial is known in law as posting bail. It ensures that they
will show up for the trial. The suspects' bail will be forfeited and they will face criminal charges
if they fail to show up for court.

Once the trial is over and the suspect has been in all of their required appearances, their bail will
be reinstated. When the trial is over, the bail money may in some cases be restored. A person
accused of a crime is given bail prior to a trial in order to be released from custody until the start
of the trial. The cost of bail is set by the court. 10% of the bail amount must be paid up front, and
the bail bondsman will negotiate on your behalf. Due to the circumstances, a full payment will be
due.

DISTINCTION BETWEEN PAROLE AND BAIL

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In a court of law, parole and bail each have distinct meanings. The particular form in which the
application is submitted, along with the petition submitted and approved, are identifying factors
that determine its type. Both bail and parole have specific legal definitions. Chapter XXXIII of
the Code of Criminal Procedure deals with the bail and bond rules. 80If bail is granted, the
accused is released from custody, but the court continues to have constructive control over him
throughout that period. The Halshbury Laws in England 81despite the fact that both bond and
parole have the legal effect of releasing a person from detention or custody, parole has a distinct
connotation than bail. Parole is a type of brief release from custody that has no bearing on the
severity of the sentence. Detention, on the other hand, allows for conditional release from prison
and modifies how the punishment is administered.

The problem of parole is not covered by any legislative laws in India. In accordance with the
government's parole legislation or administrative directions, parole may be granted as a
temporary release. Although this clause does not affect the high court's or Supreme Court's
ability to order the detainee's temporary release under Articles 32, 136, or 142 of the Constitution
while he or she is on parole and not a free man, the court cannot often grant temporary release.
As a result, the total amount of time spent in custody must take the inmate's time on parole into
account. The time the prisoner spent free cannot be added to the duration of confinement and
must be subtracted from it when determining the total length of custody if the interruption of
imprisonment is not permitted by law. If the individuals can only be kept and the custody is
justified for the amount of time that is judged necessary, preventive detention is based on the
suspension of individual liberty based on an imposed sentence of the court's judgement by
ordinary trial.

BAIL UNDER OTHER LAWS

1. NDPS ACT

Analysis of the NDPS Act's bail clauses

80
Section 436 to 450 of the Criminal Procedure Code, 1973
81
Crimes 480 (1986) All L.J. 1253 (1986) 2 Cr. L.C. 669.Vol. 11, 4th ed. para 166. (Halshbury Law of England is a
uniquely comprehensive encyclopaedia of law and provide the complete narrative statement of law in England and
Wales. It covers all areas of laws drawing on authorities including Acts of United Kingdom

80
Infractions that are cognizable and non-bailable are included in Section 37 of the NDPS Act.
Despite any provisions of the 1973 Code of Criminal Procedure, Section 37 states:

". No one charged with an offence punishable for offences under Sections 19, 24, or 27A, as
well as offences involving commercial quantity, may be released on bail or on his own bond
unless

(i) the Public Prosecutor has been given a chance to object to the application for such release,
and

(ii) the court is satisfied that there are reasonable grounds for believing that the accused is not
guilty of such offence in the event the Public Prosecutor objects to the application.82

The NDPS Act's treatment of offences as cognizable offences is the first thing that draws our
notice. An offence that allows for warrantless arrest of the suspect is one that is cognizable. This
demonstrates that the NDPS Act's offences are viewed as grave and serious in character.

Additionally, Section 37 states that those charged with violating Sections 19 (embezzlement of
opium by cultivator), 24 (external dealings of narcotics drugs and psychotropic substances), and
27A (financing of illicit drug traffic and harbouring offenders) as well as offences involving
commercial quantities may only be released on bail under the following two circumstances: a)
Where the public prosecutor has had a chance to object to the application for release; and b)
Where the cursory reading of Section 37 reveals that there is no requirement that guilt be proven
beyond a reasonable doubt; rather, it is necessary to provide reasonable grounds prima facie that
give rise to the opinion that the accused is innocent.

The definition of "Reasonable Grounds" is fairly broad. Courts have repeatedly attempted to
define "Reasonable Grounds." The Supreme Court ruled in State of Kerala v. Rajesh that
"Reasonable Grounds" includes strong probable cause to believe that the accused is not or would
not be found guilty of any offence covered by the Act. To eliminate any doubt about the accused
committed the crime, the facts and circumstances of the case should be clear.

82
R.V. Kelkar, R.V. Kelkar's Criminal Procedure, seventh edition 2021

81
The court ruled in Municipal Corporation of Greater Mumbai v. Kamla Mills Ltd. that
"reasonable foundation" simply means "in keeping with reason." The final determination of
whether the accused's action was reasonable or not will depend on the facts. After carefully
considering the evidence, the courts must wisely render their decision.

When defining what was "fair" in Shiv Shankar Kesari, the court noted that:

According to page 2258 of the fourth edition of the Stroud's Judicial Dictionary, it would be
unreasonable to anticipate an exact definition of the term "reasonable'. The results reached by
reason depend on the individual's quirks, as well as the situations in which he thinks. The
reasoning behind the old school logic now sounds like a child's toy jingling."

This demonstrates how each case's facts and circumstances affect how the term "Acceptable
Grounds" is interpreted, and how what would be reasonable in one set of circumstances might
not be reasonable in another.

The link between the bail provisions specified under Section 437 of the Code of Criminal
Procedure, 1973 and the bail provisions under the NDPS Act is another feature of these
provisions (CrPc). Kishan Lal v. Narcotic Control Bureau 83According to the court, Section 37
of the NDPS Act will take precedence over CrPC, 1973 in the event of a conflict. The phrase
"Notwithstanding anything" alludes to the Section's non-obstante clause. The main clause of the
cited section is written in the negative, forbidding the extension of bail to anyone charged with
committing an offence under the Act unless both requirements are met84. In the recent case
Union of India v. Niyazuddin & Anr, the Supreme Court ruled that, in addition to the restrictions
imposed by the CrPC and other laws, the court must first satisfy two requirements outlined in
section 37 of the Act. The overlap between Sections 437 and 37, however, is precarious because
numerous opposing rulings have also been made. In Matthew v. State of Kerala, the Kerala High
Court, for example, decided that although though Section 37 uses the word "non-bailable," this
does not imply that all offences under the NDPS Act are non-bailable.

83
AIR 1990 SC 71 (paras 12, 13): (1989) 3 SCC 532 . Note: In.4stow Babalal Desai AIR 1993 SC 1 :
84
P.V. Ramakrishna, Law of Bails, Universal Law Publishing, Ninth Edition, 2016 at p. 246

82
If there are good reasons to believe that the accused is guilty, the restriction on the power to
release someone on bail in Section 437 of the Criminal Procedure Code is in the form of a
constraint on that power. However, Section 37 of the N.D.P.S. Act places restrictions on this
power and functions as a prerequisite for its use, stating that an accused person cannot be freed
on bail unless the court is convinced that there are good grounds to think that he is innocent. In
order to trigger the restriction on the ability to grant bail under Section 437 Cr. P.C., the
prosecution must establish that there are sufficient grounds for believing the accused is guilty;
however, under Section 37 N.D.P.S. Act, the accused is required to establish those same grounds
in order to fulfil the prerequisite and end the restriction on the ability to grant bail85.

This demonstrates that Section 37 is stricter in nature than standard bail provisions under the
CrPC because it places the burden of proof on the accused.

The CrPc gets to work as soon as the bail is approved in accordance with Section 37. The bail
cancellation request may be made for any of the typical reasons that bail is typically revoked,
including the accused abusing his freedom, interfering with the investigation, tampering with the
evidence, etc.

2. SCs/STs ATROCITIES ACT

The Prevention of Atrocities Act, which was passed by the Indian government in 1989, defines
certain crimes against the SC and ST as atrocities. Defines tactics and penalties for coming
across such conduct or crimes after that.

The Act seeks to end the harmful practise of untouchability while also reducing and prosecuting
violence against SC and STs. This emphasises the improvement of their community.

The Prevention of Atrocities Act has offences that are both cognizable and non-bailable. This
suggests that if any offence against the SC/ST is committed in violation of this Act, police have
85
The Bombay Law Reporter: Reports - Volume 72 - Page 810

83
the authority to make an arrest without a warrant. Additionally, if the criminal is apprehended
pursuant to the Act, no bail may be given.

Prior to making arrests in atrocity instances, there had never been a preliminary investigation.
The Supreme Court changed the clause that said that no arrests could be undertaken without
prior authorization per a judge's bench order. Additionally, anticipatory bail rules were also
abandoned. The social justice and empowerment minister declares that bail will only be
permitted if there was no prima facie case following a ruling by the Supreme Court. Unless the
Magistrate receives a bail request. In the event that any criminal was committed in violation of
the Atrocities Act's provisions, you may submit a bail application to the Sessions Court. The
Court of Session has jurisdiction over the offences. In the event that the Sessions Court denies
the accused's request for bail, the accused may file a petition with the High. In accordance with
the most recent revision, the accused must make a criminal appeal to the High court in order to
receive regular bail under section 14(A)2 of the Prevention of Atrocities Act.

Ch- 5

Different "Bail" Case Laws in India: 1947 to 2018

According to Indian criminal law, a person may ask the court for anticipatory bail if they believe
they will soon be arrested on suspicion of committing a crime for which there is no provision for
relief. The Criminal Procedure Code's Section 438 refers to anticipatory bail.

1. In 1982, Digendra Sarkar Cal HN 317: 16 Cri LJ 2197 at p. 2199 (Cal)

84
It was decided that even in cases where there is no "First Information Report" and no case has
been filed against a person for committing a nonbailable offence, the anticipatory bail provision
in Section 438 of the Code is still applicable. If a person has cause to think that, notwithstanding
the absence of a "First Information Report" against him, he may be detained on suspicion of
committing a non-bailable offence, he may appear before the court and request an order
authorising his release on bail in the event of his arrest.

2. State v. Suresh Vasudeva86

It was noted that only non-bailable offences are covered under S. 438(1) of the Criminal
Procedure Code. The clause specifically states that any order issued under this section shall not
take effect until the subject individual has been apprehended. It is not necessary for the offence
to have been reported. The applicant must only have a reasonable perception that he may be
arrested on suspicion of committing a crime for which there is no possibility of bail. Whether the
applicant has the required "reason to believe" will depend on the specifics of each instance. This
"reason to believe" is not reliant on the case's mere registration.

3. State of A.P. v. K. Rajasekhara Reddy87

It has been decided that the police are not required to file an F.I.R. or register a crime before
using their authority under Section 438 of the Criminal Procedure Code. Any person may claim
the High Court's jurisdiction, even if the crime hasn't been reported, and providing the criminal
number as such isn't necessary. Additionally, it is not necessary to provide a copy of the F.I.R. in
order to consider the application made in accordance with S. 438 of the Criminal Procedure
Code.

4. Central Bureau of Investigation v. Sanjay Chandra, 88:

86
1978 Cri LJ 677, pp. 681–682 (Del):

87
State of A.P. v. K. Rajasekhara Reddy, 1999 Cri LJ 1933, at p. 1935 (AP):

88
Central Bureau of Investigation v. Sanjay Chandra, (2012) 1 SCC 40:

85
It was decided that the purpose of bail in most bail applications has generally been established
since the very beginning as securing the accused person's appearance at his trial by a reasonable
sum of bond. Bail has neither a punitive nor a preventive purpose.

Unless it can be required to assure that an accused person will stand his trial when required,
deprivation of liberty must be deemed a punishment. The idea that punishment only starts after a
conviction and that every individual is presumed innocent until proven guilty requires more than
just lip service from the courts.

5. State of Rajasthan v. Vaman Narain Ghiya89:

It was decided that the term "Bail" is still not defined in the P.C. The phrase has not been given a
legal definition anywhere else. Since the 1948 U.N. Declaration of Human Rights, to which India
is a signatory, the notion of bail has found a position within the realm of human rights, it
continues to be viewed conceptually as a right for assertion of freedom against the State
imposing limitations. According to the dictionary, "bail" refers to a guarantee that a prisoner will
show up in order to be released. The word's etymology states that it comes from the old French
verb "bailer," which means "to give" or "to deliver." However, another theory holds that the
word comes from the Latin verb "baiulare," which means "to bear a burden." Bail is a form of
restricted freedom.

6. Sukhwant Singh and Others v. State of Punjab,90 (2009) 7 SCC 559:

It was decided that a court hearing a regular bail application has the inherent authority to grant
interim bail pending final disposition of the bail application.

This follows the ruling of this Court in the case of Kamlendra Pratap Singh Vs. State of U.P.
and Others 91. In our opinion, this is the correct perspective given that Article 21 of the Indian
Constitution safeguards each person's life and freedom.

89
2009) 2 SCC 281
90
Sukhwant Singh and Others v. State of Punjab, (2009) 7 SCC 559:

91
(2009) 4 SCC 437
86
7. In the case of State of U.P. Through C.B.I v. Amarmani Tripath, 92(2005) 8 SCC 21, it was
decided that in an application for cancellation, only the circumstances that have arisen since the
applicant was released on bail are relevant. However, in an appeal against the granting of bail, all
factors that were pertinent under Section 439 read in conjunction with Section 437 Cr. P.C.
remain pertinent. We do agree, however, that in cases where the accused has been on the lam for
a while, the post-bail behaviour and any supervening circumstances will need to be taken into
account when evaluating and ruling on appeals against the grant of bail. However, just like in the
case of applications for bail cancellation, they are not the only grounds to be taken into account.

8. It was decided in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Others, 93
that it is common knowledge that personal freedoms cannot be taken away except in conformity
with the legal process. A guarantee of the constitution is individual freedom. However, Article
21, which upholds the aforementioned right, also allows for the restriction of personal freedom
through a legal process. A person charged with a crime in this country that is not subject to bail
is subject to being held in custody while the case is pending unless he is granted a legal increase
in bond.

Since such imprisonment is permitted by law, it cannot be argued that it violates Article 21.

9. In Ram Govind Upadhyay v. Sudarshan Singh and Others94,

It was determined that, despite being a discretionary ruling, granting bail requires that the
discretion be used wisely and not routinely. Without a compelling justification, a bail order
cannot be upheld. It should go without saying that the Court's consideration of the relevant
contextual facts, which vary from case to case, will determine whether or not bail will be
granted. While the position of the accused in society may be taken into account, it cannot serve
as the deciding element when determining whether to give bail. Rather, it should always be
evaluated in conjunction with other factors that support the grant of bail.

10. State of M.P. v. Akhtari Bi (Smt.),95:

92
2005) 8 SCC 21
93
2005) 2 SCC 42,
94
(2002) 3 SCC 598
95
2001) 4 SCC 355:
87
According to the ruling, the right to prompt justice is a fundamental one that derives from Article
21 of the Constitution. Without the accused's fault, prolonged delays in the conclusion of trials
and subsequent appeals in criminal cases give the latter the opportunity to request bail. This
Court has often reminded the executive of their duty to appoint the necessary number of judges
in order to handle the mounting burden on the current judicial system. Due to the statutory right
to appeal, the trial court's decision remains in effect while the appeal is pending, therefore for all
intents and purposes, the man's trial is still considered to be ongoing despite his conviction. It is
regrettable that despite the High Court's current staffing levels, a sizable number of open
positions are not being filled, causing criminal defendants to linger in cells without any of their
own doing. The high courts have a responsibility to find ways and means to ensure that criminal
appeals are resolved, particularly those where the accused are in jail, that the matters are resolved
within the specified period not exceeding 5 years in any case, in the absence of prompt action
under the constitution to fill the vacancies. Such appeals may be listed for final disposition on
regular benches that handle criminal cases.

11. State of the NCT of Delhi v. Sushila Aggarwal96

Because Parliament has not deemed it suitable to restrict people' rights and the ability of courts to
issue anticipatory bail, Justice Bhatt asserted during the judgment-handing process that it is not
in the public interest to weaken these forces and restrict citizens' freedom. Citizens have
unrestricted, fundamental rights. The bench made an effort to connect anticipatory bail to the
fundamental rights guaranteed by the Indian constitution.

12. Public Prosecutor v. Gudikanti Narasimhulu, High Court of A.P.97

The provision of bail, according to the Supreme Court of India's ruling in this case, clearly links
to and sustains the ideal of liberty and freedom inherent in Article 21 of the Indian Constitution.

96
[2020 5 SCC 1]

97
1978 AIR 429, 1978 SCR (2) 371

88
13. State of Punjab v. Gurbaksh Singh Sibbia98

The petitioner in this case, who was the then-Minister of Punjab's Irrigation and Power, was
denied anticipatory release due to suspicions of corruption. This clause should only be used in
exceptional circumstances, the court said. In order to protect the public interest, they said that the
court shouldn't exercise discretion in cases of serious economic crimes including brazen
corruption.

The five-judge panel of the Supreme Court later rejected this judgement on appeal because of
past precedents and judicial interpretation.

14. Maharashtra State v. Siddharam Mhetre99

Based on the precedent set forth in the Sibbia case, the Supreme Court reversed the High Court's
decision in this case and granted anticipatory bail to the accused. They added that the clause
could be approved if the defendant is prepared to cooperate with the investigation and has no
intention of leaving before the case is concluded.

Both of these decisions grant the accused the right to life, hence Bhadresh Seth v. State of
Gujarat utilised this case as precedent.

98
(1980) 2 SCC 655.
99
(2011) 1 SCC 694

89
 CRITICAL ANALYSIS OF EXISTING BAIL SYSTEM

India lacks uniform bail laws, in contrast to other countries, hence the bail requirements are
dispersed among several particular laws. The Unlawful Activities (Prevention) Act, 1967 (the
"Act"), specifically addresses the process for granting bail to someone who is charged with
engaging in terrorism under Chapters IV and VI of the Act in Sec. 43D(5). The Act's Section
43D(5) has come under fire for violating citizens' fundamental rights and making it extremely
difficult to obtain bail. Over 67% of those charged under this provision, many of whom are
detainees, are ultimately found not guilty, demonstrating the courts' arbitrary interpretation of the
availability. This heightens the danger of pre-trial detention, in which the suspect is held for a
number of years before being ultimately cleared of all charges.

43D(5) OF THE ACT AND HOW THE COURTS APPLIED IT

A person suspected of participating in terrorist activities cannot be granted bail under Section
43D(5) if the public prosecutor has not had a reasonable opportunity to be heard. The proviso to
the provision specifies a circumstance under which the accused would not be granted bail.
According to the law, the accused cannot be released on bond if the court determines that the
claims against them are unquestionably true after reviewing the case diary or report. The latter
clause is the only one that is covered by the paper since it has repeatedly been misapplied by the
State and misunderstood and applied incorrectly by the courts.

KENYAN MODEL ADOPTION IS RECOMMENDED.

It is suggested that Sec. 43D(5) be changed. The sentence that begins, "The accusation against
such person is clearly true," has to be changed. It is preferable to implement a custom that is
similar to the Kenyan model since it is predicated on the prosecution establishing the interests
outlined in Part III rather than merely determining the likelihood of guilt at the stage of a bail
application.

90
According to Kenyan law, the prosecution must provide strong evidence before denying bail to
an accused person, even if they are suspected of horrific crimes like terrorism. If there are good
reasons to think the accused will run away, tamper with witnesses, evidence, or the investigation,
or commit a crime while out on bail, they are considered strong arguments. Bail may also be
denied if keeping the accused in custody is required for his security, when the accused may be a
minor for his welfare, or if the person who was granted conditional bail has broken that
condition. Kenyan law does not permit detention only on the basis of the likelihood that the
accused committed the crime.

ANALYSIS OF SATNDER KUMAR ANTIL (2022) JUDGMENT

The Supreme Court explained when bail should be given in instances when the accused was not
in custody when the chargesheet was issued in the Satender Kumar Antil v. CBI decision100. In
some instances, the ruling saves needless harassment when a person is later detained despite not
being arrested during the investigation merely because it is over. According to a chargesheet
submitted by the Central Bureau of Investigation (Anti-Corruption Branch), Ghaziabad, Satender
Kumar Antil was accused of soliciting bribes while employed as an Assistant Provident Fund
Commissioner at the regional office of the Employees Provident Fund Organization, Noida, in
violation of Section 120-B of the Penal Code (punishment of criminal conspiracy) and Section 7
of the Prevention of Corruption Act (offence relating to public servant being bribed). He was not
detained at any time during the investigation. After acknowledging the chargesheet, the trial
court issued a summons for Antil to appear in court.

A warrant that could be released on bond was issued after he failed to appear, and a non-bailable
warrant was issued when he failed to appear for the trial court once again. Since Antil had not
appeared before the trial court and was employed as an Assistant Provident Fund Commissioner
in the relevant office at the time the bribe money was seized, the Allahabad High Court declined
his request for anticipatory relief. Antil had feared arrest and had submitted the request after
learning of his situation. In opposition to this order on 1-7-2021, he petitioned the Supreme
Court for a special leave of absence.

100
2022 SCC OnLine SC 825.
91
Furthermore, the Supreme Court found it difficult to approve the common practise of locking up
the accused even when two prerequisites were satisfied—that they were not imprisoned
throughout the inquiry and that they cooperated with the investigating agency. Three steps were
taken to develop the regulations. Guidelines were given that separated the offences into four
categories while accounting for the two circumstances. The four categories are as follows: (a)
crimes punishable by imprisonment for a term of seven years or less that are not covered by
categories (b) or (d); (b) crimes punishable by death, life in prison, or imprisonment for a term
exceeding seven years; and (c) crimes punishable by special Acts with stringent bail
requirements, such as the PMLA, the Narcotic Drugs and Psychotropic Substances Act, 1985.

It might be stated that the following consequences could be expanded when the same is analysed:

1. The decision highlights a number of persistent problems, such as the overcrowding of jails
with pre-trial detainees who shouldn't have been held in the first place, the colonial mindset of
investigating authorities, the disregard for rules like "bail is the rule while jail is the exception,"
and more. The real litmus test will be if the ruling is upheld.

2. This is not the first time that the Supreme Court-mandated requirements for needed bail have
been violated by the police and subordinate courts. A precedent-setting decision that only exists
on paper and is primarily meant for scholarly discussion is the Supreme Court's decision in D.K.
Basu v. State of W.B101.which provided detailed conditions for arrest and imprisonment.

3. Similar to this, the laws are frequently broken even though they were reiterated in the recent
decision and outlined in Arnesh Kumar v. State of Bihar 102. In State of Rajasthan v. Balchand,
the Supreme Court established the popular legal maxim "Bail is the rule, jail is the exception,"
although this maxim is rarely put into effect. In view of the previous precedents that were
disregarded, it is necessary to look at the Satender Kumar Antil provisions, which the Supreme
Court has frequently affirmed but which are rarely enforced.

4. One of the main reasons for the non-compliance with bail laws is the judge's discretion.
Judges frequently follow their own unique sense of fairness, which occasionally undermines the
core purpose of bail.

101
(1997) 1 SCC 416 : AIR 1997 SC 610.
102
(2014) 8 SCC 273.

92
5. For the Vijay Madanlal Choudhary case103, the recent judgement on bails and their relevance
in relation to fundamental rights, which will be discussed further below in order to provide a
clearer picture of the judiciary's recent position on the same, the judgement under discussion
serves as an important precedent.

REFORMS NEED IN THE EXISTING BAIL SYSTEM

Separate Law for Bail: The court emphasised that the CrPC substantially maintains its
fundamental framework as drafted by a colonial power over its subjects, despite revisions since
Independence.

The court emphasised this fact to show that, despite its judgments, the Code does not,
structurally, treat arrest as a fundamental liberty concern in and of itself.

It also emphasised the fact that judges may not always use their discretionary powers in the same
way. The cornerstones of judicial dispensation are consistency and predictability in the court's
rulings.

The same court and various courts may never treat someone accused of the same crime
differently.

Such behaviour would be a serious violation of Articles 14 and 15 of the Indian Constitution.

The court supports the creation of a distinct law that addresses the granting of bail.

Untargeted Arrests:

The court stated that it is unjustified to make so many arrests, particularly for offences that are
not immediately apparent.

It emphasised that even for actions that are punishable by law, arrest is not required and must be
"necessary."

103
2022 SCC OnLine SC 929

93
This is required to stop any more crimes from being committed, to facilitate a thorough
investigation, and to stop the person from either eluding capture or tampering with the evidence.

He or she may also be detained in order to prevent them from coercing, threatening, or promising
anyone in exchange for information in an effort to stop them from reporting that information to
the police or to the court.

When a person's attendance is required after an arrest for court production and cannot be
guaranteed, an arrest may be necessary on another cause.

According to its conclusion, subordinate courts must determine whether these requirements have
been completed since "Any non-compliance would entitle the accused for grant of bail."

Application for Bail: When evaluating an application for relief under Sections 88, 170, 204, and
209 of the Code, there is no requirement that a bail application be made.

These sections deal with different parts of a trial where a magistrate can decide whether to grant
an accused person's release.

These include the magistrate's ability to issue summonses and take a bond for an attendance
(Section 88). (Section 204).

According to the Supreme Court, magistrates in these situations must routinely consider
releasing a defendant on bond without insisting on a separate bail application.

State directions:

In order to comply with the directions and prevent indiscriminate arrests, the SC also ordered all
State governments and Union Territories to enable standing orders.

The CBI has already informed the special judges under its purview of earlier directives of the
Court.

This will undoubtedly end arbitrary detentions as well as the backlog of bail applications before
various Courts since they would not even be necessary for offences up to seven years in length.

Reforms to Bail for Indigent Persons

94
The concept of bail also helps to prevent jail overpopulation brought on by untried inmates.
Justice Bhagwati made a comment in the case of Hussairana Khatoon, where the predicament of
prisoners awaiting trial was discussed, in which he questioned the criminal justice system and
pointed out that the impoverished are unable to post bail on a personal bond without sureties.
The Code was altered in 2005 to address the predicament of these convicts awaiting trial at the
legislative level.

Two new components were introduced to the Code in 2005: First, a person who is impoverished
and has no sureties can be granted bail on a personal bond. The second change was the addition
of provision 436A, which broadened the scope of the right to apply for bail when the accused is
detained for the duration specified in the provision. The purpose of the amendment is admirable.
These clauses simply broaden the rights associated with bail, nevertheless. A person who is
impoverished or who has completed the maximum sentence allowed by law for the offence has
the right to ask for bail, but they are not allowed to be released on bail because of the additional
financial burden. Released by the court on a personal bond with or without sureties is the
prerequisite.

This amendment to the "provision relating to bail" reform has not been advantageous. According
to the 2009 National Crime Records Bureau, 2, 50, 204 (or nearly 66%) of the 3, 76, 696 inmates
were awaiting trial. According to data from the Law Commission of India's 268th report
published in 2017, 67% of convicts are awaiting trial. According to Lawyers' Right Watch
Canada's Handbook on Pre-trial, which the Law Commission cited in its report, if a nation has
more than 50% of its detainees who are awaiting trial, there is a problem with the criminal justice
system. Poor people are occasionally unable to pay the bail bond sum, even without sureties, and
organisations like Amnesty International (India) are lobbying for bail changes, but the issue still
exists. It suggests that the adage "bail is a rule; jail is an exception" only applies to wealthy
individuals. The fundamental idea is to place financial pressure on the accused in order to force
him to comply with bail requirements and assure his appearance in court. The issue is that, when
imposing these limitations, the courts occasionally failed to consider the person's financial
situation.

95
The report of a committee led by Justice Krishna Iyer in 1973 correctly handled this issue. The
committee proposed a liberal solution to the issue, releasing a poor person on his or her own
recognisance, without the need for sureties or financial risk, with the threat of penalty under the
Code in the event of a violation. The person's financial obligations were placed on him, but the
main goal was to make sure he followed the terms set down when the bail was granted. [v]
Freeing someone from debt or other risks could result in a rise in absconding, which can't only
be stopped by enforcing the Code's punishment provisions.

In its 268th report, the Law Commission stressed that each bail application case should be
handled individually. Depending on the circumstances, the person may be freed with or without a
financial commitment that is reasonable. For instance, the court can request that a person who
works as a driver and is charged with a crime deposit his driver's licence as a prerequisite for
release. The commission suggests that placing a financial responsibility on a person should be
the very last step in the bail-granting process to address the issue of a destitute person not
receiving bail. The court should give the person an attested and certified copy of the document in
the event that it asks them to deposit their licence or another similar document while retaining
the original copy on file.

The issue of evading justice is relevant while evaluating the bail reforms. Before approving or
rejecting bail, the court must consider the person's situation and the surrounding circumstances.
The court should, among other things, inquire about the defendant's family history, employment
history, and community ties. These suggestions followed a similar pattern to the Moti Ram Case
judgement written by Justice Krishna Iyer, which addressed the bail system's shortcomings.

It is important to verify these bail conditions, for example by asking the police to check on the
subject. The commission's eventual recommendations may call for greater work and personnel
resources. The court should take a more inquisitorial stance when examining the defendant's

96
past, social position, and other pertinent factors. To put this reform into practise, a highly
committed police apparatus is also required. However, the court may, as a last option, impose a
surety requirement in addition to a financial obligation while taking into account the person's
capacity. The committee provided a non-exhaustive list of the possible conditions in its proposal.

This approach by the commission might not forward the goal of bail, which is to guarantee the
person's appearance. In the given example, if a motorist has his licence seized and obtains a
certified copy of it from the court that serves the same purpose as the original, there is no
responsibility, financial risk, or other circumstance that ensures his appearance in court. The law
commission's reform and the current law can be evaluated from two different angles. A more
effective alternative for improvements can result from a balanced approach between the two
viewpoints. First, under the current system, the bail bond that the court determines should reflect
a realistic sum imposed to furnish bail.

When a mason was required to provide a one million rupee bail bond in the Moti Ram Case, the
Supreme Court said in its ruling that it "shook the conscience of the court." The Supreme Court
lowered the sum to 1,000 rupees. The amount of bail bonds can be determined at the discretion
of the courts. Before deciding on the bail bond amount, the court should consider the accused's
financial situation. There is no issue with the current law because the court has this power and
Section 436 provides for personal bonds. The amount will be determined by the court after
considering the job and economic situation. However, using the second viewpoint as a guide, one
can argue that the bail should be set at 200 or 100 rupees. Then, however, even a sum as tiny as
$100 becomes crucial to the person's survival. Now, perhaps the commission's advice on bail for
a destitute person can be taken into consideration in this circumstance. When comparing the two,
it becomes clear that we require something akin to a balance that serves as a reform to lessen or
eradicate the above-mentioned farce of justice for the poor.

Is a Separate Law Required?

97
There have been contentious discussions about regulations relating to bail during the past few
years. It is essential to simplify the bail provisions in the Code due to a number of circumstances.
The value of bails has diminished as a result of the courts' varied approach to granting bail and
numerous other aggravating factors. Prior to the Supreme Court hearing the appeal in the Pappu
Yadav case, 10 bail requests had been previously denied due to the gravity of the crime, keeping
the accused in custody for more than seven years. In a previous case, Natabar Parida Bisnu
Charan v. State of Orissa, the court determined that an accused person's right to be released on
bail is unaffected by the severity or heinousness of the crime he committed. It went against the
fundamental presumption of innocent principle. However, it may be argued that bail should be
given in every circumstance. Additionally, factors including the seriousness of the offence, the
available evidence, etc. are taken into consideration before approving bail. Since the prosecution
had finished gathering evidence in the Pappu Yadav case, there was no issue of possible
evidence manipulation. The Supreme Court disregarded the trial's delay, which led to the
person's deprivation of liberty.

Once more in 2012, the Delhi High Court's actions in the case of Sanjay Chandra were more
subtly camouflaged as an arbitrary than a discretionary one. When the inquiry was finished, the
judge permitted pre-trial detention. Furthermore, the court was not presented with any significant
evidence showing evidence manipulation. As a result, the accused was held in custody for six
months without being charged in accordance with the Code and was given the defence of an
economic crime involving millions. The Supreme Court upheld his Article 21 right to liberty by
granting the bail in an appeal. However, P Chidambaram's anticipatory bail motion in the
Supreme Court and the bail application in the Delhi High Court were both denied in the INX
Media Case. It was noted that economic offences are in a different category, and issues relating
to bail in these cases should be handled differently. It demonstrates inconsistencies with regard
to how the bail law is applied.

The Law Ministry requested the Law Commission in 2015 to analyse and investigate whether
separate bail laws were necessary. The Advisory Council for Justice Delivery and Legal
Reforms, however, determined at its 10th meeting that there is no need for separate legislation to
regulate India's bail system and that changes should instead be included into the Code. Since

98
there was no longer a need for a separate statute, the law commission of India recommended the
modifications as an amendment to the Code in its report.

BAIL AS HUMAN RIGHT IN UDHR

The idea of bail has become part of the human rights framework ever since the 1948 U.N.
Declaration of Human Rights, to which India is a signatory. The Hon. Supreme Court 104 has
observed that in articulating the human rights perspective of bail, Article 21's relevance and
scope make it the taking of liberty is a serious concern and only permitted when the law
approving it is rational, impartial, and focused on the objectives of the common welfare and
State necessity described in Article 19. Reasonableness assumes careful consideration and
establishes that denying bail is not done to punish the offender but rather to serve the twin
objectives of justice for both the offender and the impacted community. Subject to the
requirement to ensure the bail applicant's presence, we must assess the opposing factors in order
to pass the test of reasonableness. If public justice is to advance, mechanical detention should be
downgraded; see also Rashika v. Kithu. It makes sense to suppose that a defendant out on bail
has a better opportunity to prepare or plead his case than one who is remanded in custody.105

It is important to note that in the United States, which has a constitution similar to ours, the role
of bail is restricted, the importance of the applicant's "community roots" is emphasised, and
monetary surety ship is eroding as a result of the Vera Foundation's Manhattan Bail Project. The
significant public expense of keeping someone in custody if there is little risk of abduction or
commotion is not insignificant. Equally significant is the appalling state, almost the Refusal of
bail is illogical, and a policy favouring release is justifiably sensible due to the inhumanity of our
sub-jails and the unrewarding harshness and expensive confinement of unnecessary detention.
The addition of Section 167(2) Cr.P.C. mandates that the investigating agency carry out the task
of conducting the investigation and submitting the charge sheet within the allotted 60 or 90 days,
as the case may be. If the aforementioned is not finished within the specified time frame, the
accused will have a very important right. In that case, the accused is qualified to be released on
bond. As it is implied in Article 21 that every accused has a right to an expeditions disposal of
104
Sanjay Chandra Vs. CBI (Cr. Appeal No. 2179 of 2011).
105
Rasik Lal Vs.Kishore (2009 2 SCC 338).

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his case, it would be clear that the entire purpose of imposing a time limit under Section 167(2)
Cr. P.C. on the investigation agency to complete the investigation was to ensure that the accused
received prompt treatment from the criminal justice system. The time limit set forth in Section
167 has drawn criticism because it only applies to the investigation phase and leaves out other
aspects of the criminal justice system, defeating the purpose of the statute (a rapid trial).
Furthermore, it is believed that Section 167(2) serves the paradoxical purpose of granting
freedom to some dangerous offenders who would not otherwise be allowed to do so under our
system (for instance, they might not otherwise be eligible for bail due to the nature and
seriousness of the crime). In view of the foregoing, it is possible to dispute whether Section 167
of the Criminal Procedure Code actually accomplishes the aim set forth in Article 21 of the
Constitution.

Contrary to what was said in the Hussainara Khatoon24 case, the Hon. Supreme Court noted,
among other things, that the under trial inmates who were languishing in jail were likely in that
situation because no action application for bail had been made on their behalf, either because
they were unaware of their right to be released on bail or because they were too poor to provide
bail. Thus, the current bail system functions according to what has been called a property-
oriented paradigm. In order to revive the bail system and make it equitably responsive to the
requirements of impoverished inmates as well as the rich, it was therefore no longer necessary to
implement a comprehensive and dynamic legal assistance programme. As a result, the right to
unrestricted legal representation must be regarded as implicit in Article 21's provision of
reasonable, just, and fair procedures for those who are accused of crimes. So, using the language
of Article 21, the Supreme Court defined the right to legal assistance in criminal proceedings.

BAIL SYSTEM IN U.K

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In Britain's mediaeval era, the idea of circuit courts was present. Judges used to frequently go
"on circuit" to different regions of the nation to hear cases. Thus, the words "sessions" and
"quarter sessions" come from the times when such courts were held. The under trials were
housed in jail while they awaited their trials. The extremely unsanitary and brutal conditions in
which these convicts were housed contributed to the spread of numerous diseases. The
undertrials became angry as a result, and they were divided from the accused. This resulted in
their release contingent upon obtaining a guarantee, ensuring that they would show up on the
scheduled court date. If he failed to show up, his surety was held responsible and brought to
court. Slowly, the idea of monetary bail emerged, and those facing trial were required to post a
monetary bond that would be forfeited in the event that they failed to attend.

The Magna Carta, which was signed in 1215, was the first document to grant citizens rights. It
was said that no man may be seized or put in prison without first having his actions reviewed by
his peers or the law of the land.The Statute of Westminster, which classified offences as bailable
and non-bailable, was then passed in 1275. Additionally, it established which judges and
authorities had bail decision-making authority.

The Habeas Corpus Act, which was added to the Right of Petition of 1628, guaranteed the
defendant the right to be informed of the charges against him and the right to know whether or
not those charges were subject to bail. According to the Habeas Corpus Act of 1679, "A
Magistrate shall discharge prisoners from their imprisonment taking their recognisance, with one
or more Surety or Sureties, in any Sum at the Magistrate's discretion, unless it shall appear that
the Party is committed for such matter offences for which the Prisoner is not bailable."

The English Bill Of Rights, which offered protections against judges imposing excessive bail,
was introduced in 1689. It declared that "To avoid the benefits of the laws designed for the
subjects' liberty, enormous bail has been demanded of those charged with crimes. Large amounts
of bail shouldn't be necessary."

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Current Technique

The Bail Act of 1976 went into effect in 1976. It outlines the fundamental legal stance on bail
that is now in effect in England. It outlines that, with the exception of situations covered by the
First Schedule of the Act, there is a basic right to bail. Although there are various reasons for
rejecting the right to bail depending on the crime, the two main reasons are those outlined in the
O'Callaghan decision for all crimes that are punishable by imprisonment. However, there is also
an extra justification for refusing bail if the court determines that there are "strong grounds for
thinking" that the defendant will commit an offence while out on bond if released on bail.

According to section 5(3) of the Bail Act of 1976, the court that denies bail must provide
justification so that the defendant can think about submitting an application. However, in
actuality, the justifications provided by English courts on a variety of standard forms are
typically brief and not specifically founded upon specific facts and causes. Stone's Justices'
Manual advises magistrates to announce any refusal of bail by briefly stating the legal
justifications and arguments.

Defendants awaiting trial may be admitted to bail after being accused in the UK (the nation from
which the majority of U.S. bail laws are derived). As a result, they are free to leave jail until their
initial court appearance.

The system is largely the same, however defendants in the UK are subject to additional
restrictions, including providing their passports to law enforcement and reporting to police
stations multiple times per week. The following individuals cannot post bail:

 being accused of armed robbery

 Previously convicted of a severe offence
 who were previously found guilty of violating the terms of their bail
 who the court anticipates will miss their court appearance
 who could commit new offences while out on bail

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Similar to the United States, UK courts may want sureties that a defendant won't skip bail. In this
case, a surety offers a quantity of money on behalf of the defendant, which they must forfeit if
they fail to appear for their trial.

BAIL UNDER U.S.A. CONSTITUTION

In essence, judges try to hold people who they think will commit more crimes while releasing
people who do not pose a threat to public safety. However, what do judges consider in Choosing
which criminal defendants to grant bail? Can judges actually predict which defendants would
commit a crime after being released? Using data from my empirical research, this chapter
focuses on the answers to these questions and indicates that judges can anticipate with some
degree of accuracy which defendants would commit crimes as well as the main considerations
they provide when determining which ones to release. When deciding whether to release a
criminal, courts are most concerned with whether the offender is dangerous or likely to commit a
violent crime.

This chapter also looks at how judges make these decisions and if they are doing a good job of
identifying those who would conduct violent crimes if given the chance. It also takes into
account the current national release rate of defendants and how courts might be able to release
more defendants without an increase in violent crime, which is what judges are most concerned
about when setting bail. Judges frequently release and jail the incorrect categories of persons,
according to my empirical research that is based on the last fifteen years of pretrial detention
practises. According to the findings, around half of those who are in jail are less likely than most
of those who are released to commit a violent crime before trial.

With the use of my suggested methodology and this data, judges could make more effective
choices and release more persons pending trial without endangering the public.

According to the San Francisco News and the SF Chronicle, Tom and Peter P. McDonough
founded the first modern bail bonds company in the United States in San Francisco in 1898. A
bail bondsman is paid a percentage in exchange for putting up money as a guarantee that a
defendant will show up for court. In fact, the Congress passed the Judiciary Act in the same year
that the Bill of Rights was introduced in England. This imposed restrictions on a judge's power in
establishing bail and outlined which offences were eligible for bail. According to the Act, bail is

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available for all non-capital offences, and the judge has the discretion to decide whether to hold a
suspect pending trial in capital offences. The Fifth, Sixth, and Eighth Amendments to the United
States Constitution, adopted in 1791, guaranteed citizens' rights to due process of law, a prompt
and fair trial, and protection against exorbitant bail. Although it states that "excessive bail shall
not be required," the Eighth Amendment to the United States Constitution does not grant an
absolute right to bail.

A defendant has the right to bail under existing law unless there is a good cause not to.
According to the Release Act of 1976, the main grounds for denying bail are that there are strong
indications that the prisoner may flee, conduct additional crimes while free on bail, or interfere
with witnesses. The granting of bail may be subject to conditions, such as needing to reside at a
specific address, paying a fine to the court, or providing a surety. When a person is released on
bail, it's commonly referred to as police bail because the police released them rather than a judge.

Being remanded into custody is an alternative to being granted bail (also called being held on
remand).Every accused person in America has a right to a hearing where the amount of bail will
be decided based on the evidence pertinent to his specific case. The amount of bail needed in
each specific situation cannot be determined by a clear guideline. Bail must be set based on the
specifics of each case. The trial court should normally exercise sound discretion in this situation.
Although the trial court's decision may be challenged on appeal for abuse of discretion, the
appellate courts typically won't get involved if the trial court's sum was fair and not excessive.

Naturally, the amount of a bond should be sufficient to guarantee the defendant's appearance in
court when necessary. The bond should be set at a level that requires constant watchfulness on
the part of the sureties to ensure that the defendant shows up in court when summoned. [6]

State and federal constitutions each have clauses against excessive bail. Bail that is set by a
federal court or a state court that exceeds what is necessary to ensure that the accused will show
up for trial and submit to a sentence if found guilty is excessive and is prohibited by the federal
constitution or the constitution of the particular state, depending on which court set the bail.
However, there are currently no set standards for what constitutes an appropriate bail amount and
an exorbitant bail amount. That the bail is reasonable, which, given the nature of the crime, the

104
punishment associated with it, and the likelihood that the defendant is guilty, appears to be more
than enough to ensure his or her appearance.106

In the end, the amount of bail is not a reliable indicator of excessiveness. What might be a fair
amount of bail for one offender may be outrageous for another.107 As stated below, important
considerations in assessing whether bail is exorbitant include the defendant's prior criminal
history, the crime committed, and the appropriate punishment.

The fact that bail in one case is fair when taken on its own does not make the total sum required
in the various cases where there are two or more cases ongoing against the defendant reasonable.

The main challenge a court faces when determining bail is how to establish it at a level that will
reasonably ensure the defendant's appearance when it's needed while also avoiding an amount
that is exorbitant by comparison to what is reasonably calculated to achieve this goal. Under the
circumstances surrounding each specific accused, the general practise in federal courts is to
attempt to strike a compromise between the necessity for a tie to the jurisdiction and the right to
freedom from needless restraint before conviction. [9] In other words, both the rights of the
accused and the interests of the general public should be taken into consideration while deciding
the amount of bail.

It has been stated that the following factors should be taken into account when determining the
amount of bail:

(1) the accused's capacity to post bail,

(2) the nature of the offence,

(3) the penalty for the offence charged,

(4) the accused's character and reputation,

(5) his or her health,

106
Braden v Lady (Ky) 276 SW2d 664
107
Stack v Boyle, 342 US 1, 96 L Ed 3, 72 S Ct 1; Bennett v United States (CA5 Fla) 36 F2d 475

105
 (6) the character and strength of the evidence,

(7) the likelihood that the accused will appear at trial,

(8) the forfeiture of other bonds, and

(9) whether the accused was a wanted felon at the time the case was filed

It should also be taken into account if the defendant gets bailed out to appear in court in other
matters.

The character and prior criminal history of the offender are important considerations when
setting the bond amount in a current case. It has been decided, however, that a person's criminal
behaviours and proclivities do not justify setting a bail amount that is excessive in order to keep
him incarcerated for a charge of vagrancy.

Voluntary surrender may be taken into account when establishing the amount of bail as proof
that the criminal has no intention of eluding justice. On the other hand, it is also appropriate to
take into account factors like the defendant's prior run-away while facing an indictment or the
fact that they were a fugitive from justice at the time of their apprehension when imposing a
larger bond amount.

Even in cases where bail is a matter of right, the fact that a person has in the past forfeited bail is
a factor to be taken into consideration when determining the amount of bail; in such a case, bail
may be set in an amount that will reasonably ensure the defendant's appearance at court, although
bail may not be completely refused.108 The defendant's actions or inactions while on parole from
jail following a prior criminal conviction may be taken into account by the court while setting
bail.The likelihood that guilt will be proven at trial or whether there is any doubt about the
accused's guilt should be taken into account when setting the bond amount. Therefore, a judge
may take the kind and weight of the evidence supporting the charged crime into account when
deciding the amount of bond.

Given that what is appropriate bail to a man of wealth may be tantamount to denying the right to
bail if demanded of a poor man charged with a similar violation, a court should take the
108
In addition to a higher bail, the court may require additional sureties after a prior forfeiture of bail. Wallace v
State, 193 Tenn 182, 245 SW2d 192, 29 ALR2d 941

106
prisoner's financial situation into consideration.109An accused person cannot be denied release
from imprisonment due to indigence; nonetheless, they are legally entitled to release on their
own recognisance when other pertinent criteria make it likely that they would abide by the
court's orders.

The simple fact that the accused was unable to secure bail in the necessary amount did not,
however, constitute the bail exorbitant. In other words, if the accused had no means of his own
and no friends who were able or willing to act as sureties for him, the amount of his financial
capacity to provide bail would not be controlling, and if it were, the fixing of any amount, no
matter how small, would constitute an excessive bail case and would allow him to leave on his
own recognisance. The violation of both due process and equal protection requirements is the
imprisonment of those who are unable to pay specified money bail conditions, without
significant examination of other potential alternatives.

In a typical treatise, the current American approach is described as follows: "The court has the
authority to release the offender without bond or on his own recognition."

INDIA'S LEGAL SITUATION

The terms "bailable offence" and "non-bailable offence" have the following definitions in section
2(a) of the Criminal Procedure Code of 1973 (hereinafter referred to as the "Cr.P.C. "),
respectively: "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 enforced, and non-
bailable offence means any other offence." Additionally, sections 436 to 450 outline the
guidelines for the issuance of bonds and bail in criminal proceedings. The Cr.P.C. does not
specify how much security the accused must provide to obtain his release. Therefore, the
decision to cap the bond's value is up to the judge. Unfortunately, it has been seen that courts
have not shown much consideration for the poorer socioeconomic groups. The courts' outrageous

109
McCoy v United States, 123 App DC 81, 357 F2d 272; Beddow v State, 259 Ala 651, 68 So 2d 503; People ex
rel. Sammons v Snow, 340 III 464, 173 NE 8, 72 ALR 798; Green v Peit, 222 Ind 467, 54 NE2d 281; State v
Mastrial, 266 Minn 58, 122 NW2d 621, certden 375 US 942, 11 L Ed 2d 274, 84 S Ct 349; Royalty v State (Miss)
235 So 2d 718; Ex parte Royalty v State (Miss) 235 So 2d 718; Ex parte Malley, 50 Nev 248, 256 P 512, 53 ALR
395.

107
and ridiculous demands for bail bonds amply demonstrate their callous attitude toward the
impoverished.

According to the Law Commission's 78th report, as of April 1, 1977, 1,01,083 inmates—or
nearly 55%—of the 1,84,169 total prisoners—were awaiting trial. According to other sources,
there are 80% uncompleted trials in Secunderabad Central Jail, 78% uncompleted trials at Surat,
and 66% uncompleted trials in Assam, Tripura, and Meghalaya.

As was already noted above, the widespread poverty that affects the majority of the population in
our nation is one of the causes of this. In rural India, the division of land holdings is a frequent
occurrence. A family of eight to ten people depends on a small plot of land for their survival,
which also contributes to covert unemployment. When a member of such a family is accused of a
crime, the only way they can pay the bail and ensure his release is by either selling the land or
mortgaging it. They would be deeper entrenched in poverty as a result of this. This is the specific
reason why the majority of those facing trials remain behind bars rather than being released on
bail.

Justice Trend

An examination of the ensuing instances demonstrates how the poor are negatively impacted by
India's unjust bail system. In State of Rajasthan v. Balchand [14], the trial court found the
defendant guilty. The High Court upheld his acquittal after he filed an appeal. In accordance with
Article 136 of the Constitution, the State filed a special leave petition to appeal to the
Honourable Supreme Court. The judge ordered the accused to show up. Then he made a bail
request. Justice Krishna Iyer spoke out against this unjust bail management system at that point
for the first time. Although the practise of financial bail has a long history, he claimed that it is
time to reconsider. It's possible that an endeavour would be useful in most situations.

In Moti Ram and Ors. v. State of M.P. 110

[15], the poor mason accused was found guilty.
Without providing any details on sureties, bonds, or other conditions, the Chief Judicial
Magistrate was directed to grant him a larger bail amount by the Supreme Court. The CJM
claimed full responsibility for the situation, set a surety and bond amount of Rs. 10,000, and
further refused to allow his brother to serve as a surety because of the location of his property in
110
AIR 1978 SC 1594

108
the neighbouring hamlet. The Supreme Court heard MR's petition once more, and Justice
Krishna Iyer criticised the CJM's actions and urged judges to be more inclined toward granting
bail than imprisoning people.

Further, the court established in Hussainara Khatoon and Others v. Home Sec, State of Bihar that
a man shall be released from custody if he has been imprisoned for a period of time that exceeds
the term to which he is entitled.

HABEUS CORPUS
Generally, state or federal inmates who contest the constitutionality of the application of federal
statutes utilised in the judicial proceedings that led to their detention invoke habeas corpus as a
post-conviction remedy. Immigration and deportation cases, issues involving military detentions,
court trials before military commissions, and military court convictions are some more situations
when habeas corpus may be used. Last but not least, habeas corpus is used to resolve preliminary
issues in criminal cases, including: I whether there is a sufficient reason for detention; (ii)
removal to a different federal district court; (iii) the denial of bail or parole; (iv) a claim of
double jeopardy; (v) the failure to provide for a speedy trial or hearing; or (vi) the legality of
extradition to a foreign country.

In order to determine the justifications or justifications for restraint and imprisonment, the writ of
habeas corpus is usually used as an inquiry. By requiring the accountable enforcement agencies
to give good cause for the detention, the writ serves as a safeguard against the imprisonment of
those who are being held in contravention of the law. The writ is therefore intended to achieve
quick relief from wrongful impeachment by mandating immediate release unless there are
sufficient legal grounds and justifications.

The writ of habeas corpus is a procedural tool that allows judicial review of executive, judicial,
or other governmental constraints on personal liberty. It is a vital tool for defending individual
freedom from arbitrary and unlawful state action. The goal of a habeas corpus petition is to
challenge the validity of a prisoner's existing custody, not to evaluate the guilt or innocence of
the prisoner. To put it another way, the writ of habeas corpus only serves to test jurisdictional
flaws that may render the legal authority to detain the person ineffective, and the reviewing court

109
only looks at the governmental authority's power and authority to detain the person and does not
look at the accuracy of the authorities' reasoning behind the decision to detain the person.

The habeas corpus is not a limited, static, or formalistic remedy; rather, it must be able to adapt
to many forms and procedural complications that may be used to imprison or detain a person.
Therefore, the writ of habeas corpus is a versatile writ that can be used to secure release from
unlawful confinement with initiative and flexibility. There are several restrictions to the habeas
corpus rule, despite the fact that it is a versatile tool for securing a person's release from
detention when they are being held unlawfully. For instance, a general concept of Supreme Court
habeas corpus jurisprudence cannot be refined or sharpened into a specific legal rule that the
Supreme Court has not yet stated through circuit precedent.

Furthermore, the rule against applying new constitutional interpretations retroactively in

instances involving habeas corpus does not apply to capital sentencing; rather, it only applies to
situations involving capital penalties. This basic rule of retroactivity has only two uncommon
exceptions:

1) When a subsequent ruling exempts a particular act or defendant from the application of the
criminal legislation that resulted in the defendant's conviction.

2) When a later decision upholds a crucial procedural right, which can have a big impact on the
possibility of a proper conviction.

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 SUGGESTIONS AND CONCLUSION

SUGGESTION

It is proposed that a portion of the funds the government transfers to the panchayat for that
organization's development activities be set aside and kept to cover the bail amount for pending
cases involving that panchayat or block. This portion would come from the various government
programmes for rural employment, loans to farmers, etc. The district collector's/district
magistrate's representative would be a member of the system, and it would be up to them to
decide how to use this fund. This would go a long way toward securing the release of several
defendants who would then be able to contribute to society, play a significant role, and become a
part of the mainstream of the country. In such a scenario, the burden of jail overcrowding would
be lessened.

Hardened criminals wouldn't be able to exert their negative impact on undertrials if separate jails
were established, or at the very least, convicts and undertrials would be separated. The attitude of
jail officials and society at large toward people who are being tried would likewise shift as a
result of this segregation.

Petty crime defendants who are currently awaiting trial may also be placed in reformative homes
and required to perform community service prior to their release on bail. Those who are
undergoing trials and are ignorant and illiterate must be provided with elementary education

111
facilities. Therefore, I believe that everyone should have access to the advantage of bail,
including those who cannot afford it. Bail should not only be in the hands of a select few.

CONCLUSION

it is clear that the current bail system is inefficient and does not provide justice for the
underprivileged. The presumption of innocence, which is a cornerstone of the legal system,
should be upheld by the court at all times. When deciding whether to grant or refuse bail, the
court should strike a balance between social objectives and personal interests. The Law
Commission found that India's bail system is "inadequate and ineffective" in its 131-page report.
The Law Commission has noted numerous aspects of the bail reforms that are covered in the
report and has emphasised how urgently the reforms must be put into place. However, the Law
Commission put out a 9-page amendment that needs to be handled right away because it was
opposed to the idea of separate legislation.

The Supreme Court has made the historic decision to hear bail applications before a single bench
(and transfer of cases). This is a commendable start, but the Code does not allow for a bail appeal
to the Supreme Court. Under Article 136, one can only appeal through a special leave petition.
Therefore, this bail system reform is required for a bail appellant jurisdiction that is correctly set
up. It is important to not take bail decisions lightly when a person's fundamental rights are
involved. In the past, there has been a great deal of ambiguity and inconsistency among the
courts as well as serious flaws in the legislation governing bail proceedings. Instead of changing
the existing laws, there should be proper standalone legislation, such in the US (Bail Reforms
Act) or the UK (Bail Act), which improves the clarity of the bail system.

Because every criminal offence is an offence against the state, society has a vital interest in
whether bail is granted or denied. The bail decision must strike the appropriate balance between
the competing interests.

Justice Dalveer Bhandariin stated, "interests, namely, the sanctity of individual liberty and the
interest of society."

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According to Article 21 of our constitution, personal liberty is of the utmost significance. The
Constitution requires that any restriction on personal freedom be supported by the most
important factors pertinent to society's welfare goals. Even though the country's laws and the
honourable Higher courts have attempted to interfere and have also established specific rules to
be followed in a number of situations, but sadly nothing has been done. A thorough examination
of the bail system is also urgently needed, bearing in mind the socioeconomic circumstances of
the vast majority of our population. When deciding whether to issue bail, the court must also
consider the socioeconomic situation of the accused and show compassion for them. It is
possible to thoroughly investigate the accused to see if his ties to the neighbourhood would
prevent him from escaping the court.

According to the Law Commission of India's 268th report, effective measures about how an
arrested individual was treated must be adopted if our criminal justice system hopes to achieve
any credibility with fair and equitable rules and laws. The Commission verifies what we already
know: the wealthy and renowned enjoy favour, while the underprivileged face persecution. The
legal definitions of bail and various decisions make it abundantly evident that the courts'
approach to bail depends on the particular facts and circumstances of each case. In India, 67
percent of those incarcerated are awaiting trial. One of the causes of the overcrowding in jails
across the nation and the difficulties facing the state and the prison system is the inconsistent
nature of the bail system. The wealthy, powerful, and influential now often receive quick and
simple bail while the underprivileged languish behind bars. A flaw in the bail system is that it
forces the underprivileged to either post bail or pay for pretrial confinement with the help of
brokers or industry titans. It is also obvious that the trial court's view on bail differs from the
High Court's. The trial court seems to favour denying bail frequently. The accused must thus
knock on the doors of the High Court and Supreme Court to request bail.Due to the mishandling
of bail, prisons are currently overflowing with inmates awaiting trial. The Supreme Court's bail
ruling and the trial court's bail order both make plain the differences between the constitutional
provision and the law of bail. According to the Supreme Court, there is no crime under criminal
law for which bail cannot be given, but the trial court's status has been established by a court that
can only sentence people, not grant them bail. The trial court acts in the exact opposite manner in
those situations where the Supreme Court and the High Court have the authority to issue bail. If a
thorough examination and investigation of the legislation of When it comes to bail of the

113
Supreme Court, High Court, and Court of Judgment, the judicial process appears to be distinct at
each level.

The Hon'ble Court handling bail applications must strike a balance between the offender's
individual constitutional rights and the interests of society, keeping in mind that neither the
accused's right to a thorough defence nor the prosecution's right to present its case should suffer
at the hands of the other. Bail is a law, and detention is an exception. The bail process in the
nation is arbitrary and unjust, and it has to be changed, according to all the agencies working for
reform. Despite this, only a few small exceptions to the law of anticipatory bail were observed.
This is despite the widespread belief that significant reforms must be made if India is to convince
the world that its human rights protection is on par with that of other Western nations.

Recognizing the importance of bail in the criminal justice system benefits the court, the
government, and the accused. We will uphold the fundamental principles of the Indian
constitution and the rights of the people by granting bail.

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