CHAPTER-1

INTRODUCTION
"Society has vital interest in grant or refusal of bail because every
criminal offence is an offence against the state. The order
granting or refusing bail must reflect perfect balance between the
conflicting interest namely sanctity of individual liberty and the
interest of the society."
Justice Dalveer Bhandari1

Life, Liberty and property rights of a person are basic rights guaranteed under
the Constitution of India in various forms. These rights are so important that the
Constitution of all the countries have recognised them.

Article 21 of our Constitution provides:-

“No person shall be deprived of his life or personal liberty except according to
procedure established by law.”

The object of Article 21 is to prevent encroachment upon personal liberty by an

appropriate authority, except in accordance with law and in conformity with the
provisions thereof.2 Personal liberty of the person who is incarcerated is to a great
extent curtailed by punitive detention. It is even curtailed in preventive detention. The
liberty to move, mix, mingle, talk, share company with co-prisoners, if substantially
curtailed, would be violative of Article 21 of the Constitution, unless the curtailment
has the backing of law. The protection of Article 21 is available to all persons arrested
or detained, a citizen or non-citizen and even to convicted person.But this freedom is
subject to limitation imposed by law.

The significance and sweep of Article 21 makes it clear that the deprivation of
liberty is a matter of grave concern permissible only when the law authorizing it just,
fair and reasonable, even handed and geared to the community good 3. A social system

1
S.S.Mhetre v. State of Maharashtra,(2011) 1 SCC 694
2
M. Gopalan v, State of Kerala,accessed on www.indiankanoon.org
3
Romana,”Concept of Bail and Article 21 of Indian Constitution.” Vol. 1, Vitasta Law Journal 115(2011)

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 Introduction

which abides by the rule of law, where it is imperative that the personal liberty of the
individual be subjected to the least regulation and reasonable restriction 4." No arrest
can be made because it is lawful for the police officer to do so. The existence of the
power to arrest is one thing. The justification for the exercise of it is quite another. The
police officer must be able to justify the arrest apart from his power to do so. Arrest and
detention in police lock-up of a person can cause incalculable harm to the reputation
and self-esteem of a person. No arrest can be made in a routine manner on a mere
allegation of commission of an offence made against a person. It would be prudent for
a police officer in the interest of protection of the constitutional rights of a citizen and
perhaps in his own interest that no arrest should be made without a reasonable
satisfaction reached after some investigation as to the genuineness and bona fides of a
complaint and a reasonable belief both as to the person's complicity and even so as to
the need to effect arrest. Denying a person of his liberty is a serious matter".5

Law has strong and compelling interest in the effective prosecution of crime but
so is its interest in the protection of the individual from oppression and abuse by the
police and other enforcing authorities. There is thus an inherent tension between
societal interest in crime prevention, crime detection and crime suppression on the one
hand and protection of the personal liberty and human dignity of an arrested and
detained person on the other. But as aptly observed by Lewis Mayers;

"to strike the balance between the needs of law enforcement on the one hand
and the protection of the citizen from oppression and injustice at the hands of the law
enforcement machinery on the other is a perennial problem of statecraft."

Thus the question is how to strike a harmonious balance between these two
conflicting interests. To quote Justice Cardozo:

"The question is whether protection for the individual would not be

gained at a disproportionate loss of protection for society. On the
one side is the social need that crime shall be repressed. On the
other, the social need that law shall not be flouted by the insolvence
of office. There are dangers in any choice. The rule of the Adams

4
R.Sharma , Human rights and Bail 74 (A.P.H Publishing Corporation, New Delhi,2002)
5
Joginder Kumar v. State of U.P. AIR 1994 SC1349

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 Introduction

case People v. Adams, 176, N.Y. 315, 68 N.E. 636 (1903) strikes a
balance between opposing interests. We must hold it to be the law
until those organs of Government by which a change of public
policy is normally effected shall give notice to the courts that
change has come to pass."6

The Supreme Court in Smt. Nandini Satpathy v. P.L. Dani also observed7

"We have earlier spoken of the conflicting claims requiring

reconciliation. Speaking pragmatically, there exists a rivalry
between societal interest in affecting crime detention and
constitutional rights which accused individuals possess that
emphasis may shift. depending on circumstances, in balancing these
interests as has been happening in America."

Although in the past the pendulum gravitated towards society's interest in

convicting law breakers, human rights movements at international and regional and
national levels have swung the pendulum to the right i.e. protection of the accused from
the arbitrary and unjustified arrest and pre trial detention. International human rights
law not only recognizes a number of rights of pre-trial detainees but also enjoins states
to use pre-trial detention only in those cases where it is absolutely necessary for the
purposes of the administration of criminal justice. Principle 36(2) of the Body of
Principles for the protection of All Persons under Any from of Detention or
Imprisonment (1988)8 provides:

"The arrest or detention of such a person pending investigation and

trial shall be carried out only for the purposes of the administration
of justice on grounds and under conditions and procedures specified
by law. The imposition of restrictions upon such a person which are
not strictly required for the purpose of the detention or to prevent
hindrance to the process of investigation or the administration of

6
People v. Defore, 242 N.Y. 13,24, 150 N.E. 583, 589 (1926). Cited in Joginder Kumar v. State of U.P.
(1994) 2 SCJ 230 at 233
7
(1978) 2 SCC 424
8
Adopted by General Assembly Resolution 43/173 of 9 Dec.1988; Compilation, Vol.I, p 265

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 Introduction

justice, or for the maintenance of security and good order in the

place of detention shall be forbidden"

Sometimes personal liberty of individual is curtailed and restricted by authority

of law in order to keep peace in the society and for the end of justice when there is
apprehension for committing an offence by a person. On the other hand, one important
purpose of arrest is to secure the presence of the accused person at the time of his
enquiry or trial and to ensure that he is available to receive the sentence on conviction9.
If this purpose can be achieved without forcing detention on the accused during enquiry
or trial, it would be an ideal blending of the two apparently conflicting claims, namely,
freedom of the individual and the interests of the justice10.The provisions relating to
bail aim at such blending. The basic concept of bail is to set at liberty to an arrested
person pending trial provided he is willing to give reasonable and sufficient assuarence
of his appearence in the court of law during the trial. In the concept of bail a technique
is evolved for effecting a synthesis of the two basic concepts of human value, namely
the right of an accused to enjoy his personal freedom and the public interest, on which
a person’s release is condition on the surety to produce the accused person in court to
stand the trial11. In the legal parlance, bail means "procurement of release from prison,
of a person awaiting trial or an appeal by the deposit of security to ensure his submission
at the required time to legal authority."

The Tokyo Rules12 aims to improve conditions for all pre-trial detainees by
recommending that the detention be used only where non custodial measures, such as
bail, supervision, recognizance and restriction of movement, cannot. These rules are
based on the premise that if the greatest possible number of detainees are released and
subjected to a non custodial measures overcrowding of facilities and lengthy or
inefficient pre trial investigation which are largely responsible for the abuses of pre-
trial detention will be overcome to the maximum extent.

9
K.N. Chandra sekharan Pillai, Lectures on Criminal procedure 108 ( Eastern Book Company, Lucknow
5th edition 2007)
10
Ibid
11
M.R.Mallick, Bail Law & practice.2 (Eastern Law House , Kolkata 5th ed.2014)
12
United Nations Standard Minimum Rules for Non Cutodial Measutres, Adopted by General
Assembly Resolution 45/110 of 14 Dec. 1990 Compilation, Vol I p. 336

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 Introduction

The Tokyo Rules provides that pretrial detention shall be used as a means or last
resort in criminal proceedings, with due regard for the investigation of the alleged
offence and for the protection of society and the victim. In order to provide greater
flexibility consistent with the nature and gravity of the offence, with the personality and
background of the offender and with the protection of society and to avoid unnecessary
use of imprisonment, the criminal justice system should provide a wide range of non-
custodial measures, from pre trial to post-sentencing dispositions. The number and
types of non-custodial measures, available should be determined in such a way that
consistent sentencing remains possible. Non-custodial measures imposing an obligation
on the offender, applied before or instead of formal proceedings or trial, shall require
the offender's consent.

The serious implications of pre-trial detention, for the human rights of the
accused are recognised not only by the international human rights instruments referred
to above, but also by indigenous criminal jurisprudence established by the Apex Court
in the post-Maneka era, which prohibits arbitrary or oppressive restrictions on the
personal liberty of the accused. It is a cardinal principal of criminal Jurisprudence that
the liberty of the accused can be deprived only in accordance with the procedure
established by law. Further, the procedure under which an accused person may be
deprived of his liberty will have to be just, fair and reasonable.Bail is a non-custodial
measure by which the release of a person from legal custody is procured without
jeopardizing the objects of arrests.

It is undisputable that the law of bail occupies an important place in the

administration of criminal justice and is, now an important branch of the law of
procedure. The concept of bail emerges from the conflict between the police power to
restrict the liberty of a man who is alleged to have committed a crime and the
presumption of innocence in his favour.13 The principle underlying in release on bail
is that an accused person is presumed in to be innocent till guilt is proved under the
law. Bail is granted on the basis of offences which have been classified into bailable
and non-bailable offences under section 2 of the Code of Criminal Procedure1973. In
bailable offences bail can be claimed as a matter of right, whereas in non-bailable

13
Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281

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 Introduction

offence it is at discretion of the Courts whether to grant bail or not. However, discretion
must be exercised in judicious manner not in an arbitrary manner.

The discretion is regulated by certain express provisions of the Code and the
guidelines laid down in the epoch making pronouncements of the Apex Court and High
Courts. However, the present bail system has been severely criticized by the Apex
Court. Law Commission and the Gujarat Legal Aid Committee on several Counts and
several suggestions and recommendations for reform have been made by these bodies
and institutions.

As a general rule a person accused of a non bailable offence is to be released on

bail. However unlike bailable offences a person accused of non bailable offences does
not have the right to be released on bail. In cases where the bail is not granted as a
matter of right, the court has to exercise his jurisdiction with great care and caution.
The court has been given vast discretion in matters of bail and exercise of this discretion
must be guided by rule of law according to the application of known rules and
principles.

In the case of Gudikanti Narasimhulu14 Justice Krishna Iyer cited Benjamin

Cardozo remark regarding judicial discretion that:

“The judge ,even when he is free ,is still not wholly free.He is not to innovate at
pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty
or of goodness.”

The Supreme Court and various High Courts have laid down guidelines to
follow while granting or refusing of bail. These guidelines are not strictly adhered to.
Therefore there is urgent need to have a critical analysis of the existing provisions and
statutory guidelines in this regard. A critical study of guidelines issued by Higher
Judiciary has been discussed in this research work.

1.1 Statistical data and analysis

The data collected from prisons in India reflects a troubling scenario. It means
that in India, 69.05 percent of the prison population is awaiting trial. One of the reasons

14
AIR 1978 SC 429

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 Introduction

for the over-crowding of prisons across the country and give rise to another set of
problems to the Prison Administration and 'State' could be inconsistency in the bail
system. Freedoms have an unique relationship with the ideas and goals enshrined in the
Preamble of the Constitution of India, as guaranteed by Part III of the Constitution i.e.,
Economic, social and political justice. It remains one of the solemn duty of the republic
and its realisation in its full sense is one of the cherished goal. It has become a norm
than an aberration in most jurisdictions including India that the powerful, rich and
influential obtain bail promptly and with ease, whereas the mass/ common / the poor
languishes in jails.

Table
Prisoners – Types & Demography15

Year No. of No.of Undertrial No.of Detenues No. of Other Total No. of
Convicts Prisoners Inmates Prisoners

2017 1,39,149 3,08,718 2,136 693 4,50,696

2018 1,39,488 3,23,537 2,384 675 4,66,084

2019 1,44,125 3,39,487 3,223 765 4,78,600

* Figures are as on 31 st December of each year

1. During the year 2019, a total of 18,86,092 inmates were admitted in various jails of
the country.

2. A total of (4,78,600) prisoners as on 31st December, 2019 were confined in various

jails across the country. The number of Convicts, Undertrial inmates and Detenues
were reported as 1,44,125, 3,30,487 and 3,223 respectively accounting for 30.11%,
69.05% and 0.67% respectively at the end of 2019. Other prisoners accounted for
0.2% (765 prisoners) of total prisoners.

A. Data Regarding Undertrial Prisoners

Data from National Crime Record Bureau shows that;

15
National Crime Record Bureau, Prison Statistics India( Ministry of Home Affairs 2019)

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 Introduction

(a) The number of undertrial prisoners has increased from 3,23,537 in 2018 to
3,30,487 in 2019 (as on 31 st December of each year), having increased by 2.15%
during this period.

(b) Among the 3,30,487 undertrial prisoners, the highest number of undertrial
prisoners was lodged in District Jails(50.5%, 1,66,917 undertrials) followed by
Central Jails(36.7%, 1,21,342 undertrials) and Sub Jails(10.6%, 35,059
undertrials) as on 31st December, 2019.

(c) Uttar Pradesh has reported the maximum number of undertrials (22.2%, 73,418
undertrials) in the country followed by Bihar (9.5%, 31,275 undertrials) and
Maharashtra (8.3%, 27,557 undertrials) at the end of 2019.

(d) Among the 3,30,487 undertrial prisoners, only 91 were civil inmates.

The issue of undertrial prisoners is a very serious one impacting the right to a
fair trial as borne out by statistics. The National Crime Records Bureau, Prison Statistics
in India 2019, shows that the number of undertrials is 3,30487, as compared to the
number of convicts which is 1,44,125.

1.2 Statement of Problem

The law of bail has its roots in the valuable right of man to be at liberty which
is universally recognized across the world. In the ancient time criminal justice delivery
system was quick and the trial was concluded within short span of time. With the
passage of time, the trial of accused got delayed day by day. As per the prison statistics
2016 reported by National Crime Record Bureau16, the number of undertrial prisoners
was 67% of the entire prison population and that the percentage was unacceptably high.
A total of 4,78,600 prisoners as on 31st december, 2019 confined in various jail across
the country. The number of Convicts, undertrial and detenue ere reported as 144125,
330487 and 3223 respectively accounting for 30.11% , 69.05% and 0.67% respectively
at the end of 2019.

It reflects that the provisions on bail are not well implemented. A major part of
the population in Indian prison is due to slow trials and bail not granted. So one pathetic

16
National Crime Record Bureau Prison Statistics (Ministry of Home Affairs 21st ed 2015)

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 Introduction

aspect of criminal justice administration in India has been an unduly large number of
under trial prisoners languishing in jails.

The under trials prisoners account for 69.05% of total prisoners, 30.11 % are
convicts. It usually means that the detention of criminal suspects is the rule rather than
exception.

The critical study of various bail provisions and the principles laid down by the
courts indicate that, the law governing bail in India is inadequate, uncertain and beyond
the ground reality. The working of the system is also unsatisfactory. The arrangement
to free an accused is a mere facility that the system of criminal justice provides by way
of a bail, subject to such limitation as may be warranted by the exigencies of
administration of justice. The law and practice provide only a hazy picture in this
regard.

The application of law and discretion in the matter of grant or refusal of bail has
introduced another issue as well. Though, there is an elaborate procedure employed to
deal with matters related to the grant of bail but the system has the general perception
among people that grant or denial is highly unpredictable the bail system is linked
inextricable to property and financial well being of the accused.

1.3 The Objectives of the Study

Passionate pleas for personal liberty are often being made while seeking release
of an accused person in pre-trial classes. The mechanism of providing bail to an arrested
person is thus geared on the twin principles of securing the presence of an accused
person in criminal trial as well as to place only a minimum of restraint on the freedom
of the individual.

Although the provision relating to bail in the Code of Criminal Procedure aim
at blending these conflicting demands, there is still ample scope for liberalizing the law.

The present work is being carried out keeping in view the following objectives:

 To understand the philosophy of the bail provision;

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 Introduction

 To critically examine the various provision of the Code of Criminal Procedure

relating to the law of bail in term of human rights perspective; and

 To figure out the lacunas and loopholes of the existing regulatory framework
and to come out with possible reformative suggestions.

1.4 HYPOTHESIS:

The present work proceeds with the hypothesis that the law relating to bail in
India is not adequate in dealing with certain issues and at par to the International
standards consequently many under trial accused persons are unable to get bail, in
practice, due to their poverty.
1.5 RESEARCH METHODOLOGY

The present work is comprised of the doctrinal form of research. Materials have
collected from the primary and secondary sources. This includes the Acts, Legislation,
Bylaws, Ordinances and the various judgements pronounced by the courts and principle
of laws laid down while granting the bail. Journal publications, various websites and
online available materials have also been referred in this study.
Against this background the present work makes an humble attempt to provide a
coherent picture of provisions of bail and presents a critical review of them. It also seeks
to point out the extent to which the provisions are in accord with the constitutional
values and the basic human rights of the accused and suggest appropriate remedial
measures for reform of the bail system in India.

1.6 FRAMEWORK OF THE STUDY

Considering all the aspects and to facilitate the discussion on the topic, the present work
is divided into seven chapters:

Chapter I: Introduction

The chapter consist of introductory remarks precisely introducing the problem,

objectives, hypothesis and the methodology of study.

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 Introduction

Chapter II: Bail: Policy and Law

The chapter presents discussion on meaning, object and policy of bail. The chapter
also discusses the philosophy of bail. Bail like any other branch of law has its own
philosophy. The concept of bail evolved to save a person from police custody which
may be for a longer period. The object of bail is to establish a balance between the
State's duty to protect its citizens from the onset of criminals and to protect the principle
of Criminal Law that no person can be convicted unless his guilt is proved. It also
focuses on the mechanism of bail. The mechanism of bail can be best understood by
studying the components that practically go into every bail decision, namely:

1. the circumstances leading to the arrest and detention of a person,

2. the factors considered for arriving at the bail decision like police records relating to
the offence, its bailable or non-bailable nature, the furnishing of the requisite
security by the accused, the need for surety and so on.

3. and lastly by interpreting the law relating to bail.

Chapter III: Human Rights and Bail

The chapter focuses on the nexus between human rights and bail. Human right
implicated by presumption of innocence, speedy and fair trial. When bail is denied to
an individual who is merely accused of a criminal offence, the presumption of
innocence is necessarily infringed.

There are many provisions regarding right to life, liberty, against arbitrary arrest and
detention enshrined in the various International Instruments and Conventions such as-
Universal Declaration of Human Rights 1948, International Covenant on Civil and
Political Rights 1966, European Convention on Human Rights 1950, American
Convention on Human Rights 1969etc.

Chapter IV: Constitutional issues relating to Bail

This chapter deals with the Constitutional aspects of bail system under the sub
heads : personal liberty, speedy trial and the right to free legal aid. It is followed by an

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 Introduction

discussion of the article 22 of the Constitution with regard to arrest and the rights of
arrestees.

Chapter V: Bail Law in India

This chapter discusses the provision of bail in bailable offences in detail. The
chapter also discusses meaning of bailable offences its distinction from non bailable
offences and scope of section 436 of Criminal Procedure Code.

This chapter also provides a detailed analysis of the legal framework of non-
bailable offences. In this chapter the discussion revolves around the imperative
provisions and discretionary provisions as to release on bail in non bailable offences.
This chapter also deals with the special powers of High Court or Session Court
regarding bail.

This chapter also discusses default bail and provisions of bail in special laws
e.g,bail in Narcotics drugs and Psychotropic substances Act 1985,Bail in economic
offence etc.

The discussion in this chapter brings into focus the statutory provisions of
anticipatory bail. This chapter also deals with object, nature and scope of anticipatory
bail. This chapter discusses legislative history and grounds for grant of anticipatory
bail.

It considers the statutory provisions regarding cancellation of bail and examines

that on what grounds bail can be cancelled. It also discusses grounds that can not serve
as a ground for cancellation of bail.

Chapter VI: Judicial Approach on Bail

This chapter considers the judicial approach on granting or rejecting bail. The
chapter also discusses guidelines given in vaious cases by Higher Courts.

Chapter VII: Conclusion and Suggestion

The last chapter concludes the work on the basis of whole of the study and
proposes accordingly suggestion on various issues.

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