NATIONAL LAW UNIVERSITY ODISHA

LEGAL METHODS

PROJECT ON

TOPIC: BAIL INTRODUCTION

Made under the guidance of:

Mr. SUBHAPRAD MOHANTY

Submitted by:

SWAYAM SAMBHAB MOHANTY (2022BA090)

SRISHTI SINGH (2022BA096)

PRAYAN KASHYAP (2022BA071)

I SEMESTER (BA2)

B.A. L.L.B (HONS.)

TABLE OF CONTENTS

ACKNOWLEDGEMENT.......................................................................................................3
INTRODUCTION....................................................................................................................4
DEFINITION OF BAIL UNDER THE INDIAN LAW.......................................................5
PERSONS FROM WHOM BAIL OR SECURITY MAY BE TAKEN..............................6
CIRCUMSTANCES UNDER WHICH POLICE MAY MAKE ARRESTS WITHOUT
A WARRANT OR A JUDGE'S APPROVAL.......................................................................7
OFFENCES..............................................................................................................................8
Bailable Offence...................................................................................................................8
Non-Bailable Offence...........................................................................................................8
Bail in case of Bailable Offence...........................................................................................9
Principle underlying this principle.....................................................................................9
The prerequisites and considerations for the grant of bail under the Section.............10
Bail in Case of Non-bailable Offence................................................................................10
Types of bail............................................................................................................................13
How people are misusing Anticipatory bail.....................................................................14
The Procedure of getting bail............................................................................................16
Cancellation of bail............................................................................................................16
Validity of a bail.................................................................................................................16
Bail conditions....................................................................................................................17
Who grants bail?................................................................................................................17
Who can oppose bail?........................................................................................................17
Is bail a right or a privilege?.............................................................................................18
Bail in Ancient Period............................................................................................................18
Bail provision in Mughal era.................................................................................................19
The Provision of Bail Under British Rule............................................................................19
Bail provisions in ancient America.......................................................................................21
 ACKNOWLEDGEMENT

The contribution of many people must be acknowledged and thanked for the effective
completion of this project. These challenging times required for unequivocal support from
the faculty members and Mr Subhaprad Mohanty provided the necessary support. I am
greatly thankful to his incredibly prompt responses and assistance in these difficult times.
Without his crucial support, this report would not have been feasible.
Additionally, I would like to express our gratitude to the library department for its unofficial
support. Moreover, they provided the resources and materials that were necessary for this
project to succeed, without them, it would have been a titanic task.
At last, I would like to take a moment to thank my parents for their continuous support which
helped me in keeping up my motivation to finish this project.
 INTRODUCTION

The term bail is derived from a French word bailier which means to give or to deliver and a
latin word bajulare which means to bear a burden.

In Judicial Dictionary “bail” is defined as follows:

“Bail is when a man is taken or arrested for felony, suspicion of felony, indicted of felony or
any such case, so that he is restrained of his liberty. And, being by law bailable, offereth
surety to those which have authority to bail him, which sureties are bound for him to the
King's use in a certain sum of money, or body for body, that he shall appear before the justice
of Gaole, delivery at the next Sessions, etc. Then upon the bonds of these sureties, as is
aforesaid he is bailed, that is to say, set at liberty until the day appointed for his appearance.”1

1
Greenberg D and Stroud F, Stroud's Judicial Dictionary of Words and Phrases (10th ednSweet &
Maxwell 2022)
 DEFINITION OF BAIL UNDER THE INDIAN LAW

The terms "bailable crime" and "non-bailable offence" have been defined in sections 4(1)(b)
and section 2 of the "Code of Criminal Procedure", respectively, although the word "bail" has
not (a). In the latter clause, "bailable crime" is defined as "an offence indicated as bailable in
the first schedule, or which is rendered bailable by any other legislation now in effect"; "non-
bailable offence" is defined as "any other offence.”2

The concept of “bail” implies “a form of previous restraint”. So The definition of "bail" is the
payment of security in exchange for the release of someone who has been arrested, detained,
or is otherwise restrained.3

2
Srivastava AB, “1,” The code of criminal procedure, 1973 (Law Publishers (India) 2006)

3
“SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR.
”(27955_2021_5_1505_36261_Judgement_11-Jul-2022.pdf - REPORTABLE IN THE SUPREME
COURT OF INDIA CRIMINAL APPELLATE JURISDICTION MISCELLANEOUS APPLICATION |
Course HeroJuly 11, 2022) <https://www.coursehero.com/file/161254614/27955-2021-5-1505-36261-
Judgement-11-Jul-2022pdf/> accessed October 18, 2022
 PERSONS FROM WHOM BAIL OR SECURITY MAY BE TAKEN

Persons from whom bail or security may be taken are:

(i) persons under arrest;
(ii) persons in judicial custody during the trial of a case;
 (iii) persons convicted by a court;
(iv) persons who are found lunatics by court;
(v) persons sought to be prosecuted by a court in relation to the proceedings in that court;
(vi) persons detained in private or public custody;
(vii) persons who wish to move court for transfer of case;
(viii) persons who are entrusted with the custody of property;
(ix) persons in respect of whom security proceedings are launched;
(x) persons who stand as sureties.

The provisions relating to bail and security cover a very wide area and not restricted only to
the persons arrested or under the custody of the court. They extend to the persons
(a) who are likely to be arrested known as anticipatory bail,
(b) who are witnesses,
 (c) who desire to file appeal or revision petition against their conviction and sentence, 
(d) who are approvers, or
(e) who are not accused.
 CIRCUMSTANCES UNDER WHICH POLICE MAY MAKE
ARRESTS WITHOUT A WARRANT OR A JUDGE'S APPROVAL 

Section 41 of the Cr PC, inter alia, provides that any police officer may without an order of a
magistrate and without a warrant, arrest any person:
“(i) who has been concerned in any cognisable offence or against whom any reasonable
complaint has been made of his having been so concerned, or
(ii) who is a proclaimed offender, or 
(iii) in whose possession stolen articles are found, or

(iv) who has in his possession any implement of housebreaking, o (v) who obstructs a police
officer in the execution of his duties, or

(vi) who is a deserter from the Armed Forces of the Union, or

(vii) who has been concerned in any act committed at any place out of India which, if
committed in India, would have been punishable as an offence and for which he is, under any
law relating to extradition or otherwise, liable to be apprehended or detained in custody in
India, or 
(viii) who, being a released convict, commits a breach of any rule of the state government for
notifying his residence or its change or his absence from such residence, or 
(ix) for whose arrest a written or oral requisition has been received from another police
officer provided such person might lawfully be arrested without a warrant by the officer who
issued the requisition. The arrest of the petitioners was made under s 41 of the Cr PC for
offences under sections 148, 302, 325 of IPC. The magistrate rejected the applications for
bail several times. The period of custody was extended a number of times for test
identification parade for which also bail was not granted.”4
Indian Penal Code, 1860 (referred to as IPC) provides the offences and penalties, while the
Code of Criminal Method, 1973 provides the procedure (hereinafter referred as CrPC). Under
the CrPC, the offences are primarily divided into two categories: those that are subject to bail
and those that are not.

4
Srivastava AB, “5,” The code of criminal procedure, 1973 (Law Publishers (India) 2006)
 OFFENCES

Indian Penal Code, 1860(hereinafter referred as IPC) provides the offences and punishments,
and the Code of Criminal Procedure, 1973(hereinafter referred as CrPC) provides the
procedure . Under the CrPC, the offences are primarily divided into two categories:
1.Bailable offences and
2.Non-bailable.
BAILABLE OFFENCE

Section 2(a) of CrPC defines bailable offences as “the offence that has been shown in the
First Schedule as bailable or which is made bailable by any other law for the time being in
force.”5 The first schedule of the CrPC is broken up into two sections, the first of which deals
with crimes listed under the IPC and the second of which deals with crimes listed under other
laws. According to the First Schedule's last item, a crime must only be penalised by a fine or
a sentence of less than three years in jail in order to qualify for bail. Common offences that
are subject to bail include: “Simple Hurt (Section 337; IPC)”, “Bribery (Section 171E; IPC)”,
“Public Nuisance (Section 290; IPC)”, “Death by Rash or Negligent Act (Section 304A;
IPC)”.

NON-BAILABLE OFFENCE

As per Section 2(a) of CrPC, “non-bailable offence includes all those offences which are not
included in bailable offence in the First Schedule. Further, the First Schedule in its Second
part at its end has defined non-bailable offence as the offences which are punishable with
death, imprisonment of life or imprisonment for more than seven years.”6

BAIL IN CASE OF BAILABLE OFFENCE

As per section 436 of the Cr PC bail can be taken-

(1) “When any person other than a person accused of a non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station, or appears or is brought

5
Srivastava AB, “1,” The code of criminal procedure, 1973 (Law Publishers (India) 2006)
6
Srivastava AB, “1,” The code of criminal procedure, 1973 (Law Publishers (India) 2006)
before a Court, and is prepared at any time while in the custody of such officer or at any stage
of the proceeding before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such
person, discharge him on his executing a bond without sureties for his appearances as
hereinafter provided:

Provided further that nothing in this section shall be deemed to affect the provisions of sub-
section (3) of section 116 or section 446A.

(2) Notwithstanding anything contained in sub-section (1), where a person has failed to
comply with the conditions of the bail bond as regards the time and place of attendance, the
Court may refuse to release him on bail, when on a subsequent occasion in the same case he
appears before the Court or is brought in custody and any such refusal shall be without
prejudice to the powers of the Court to call upon any person bound by such bond to pay the
penalty thereof under section 466.”7
PRINCIPLE UNDERLYING THIS PRINCIPLE

An accused person is legally considered to be innocent until and until he is proven guilty, and
this concept underlies the grant of bail as it is described in this section. He is thus qualified
for freedom as a presumed innocent person. All possibilities must be provided for him to
handle his case. In the event of bail being granted, he will have a better chance of defending
himself than he would if he had been held in custody. The question of granting bail must be
viewed in the context of the fact that the criminal jurisprudence that governs the courts
presumes the accused to be innocent, despite the fact that the presumption of innocence in
favour of the accused does not arise until the end of the trial and after the appreciation of all
the evidence has been presented.
THE PREREQUISITES AND CONSIDERATIONS FOR THE
GRANT OF BAIL UNDER THE SECTION

The section outlines three requirements that a person must meet before the issue of giving
him bail is taken into consideration. The three requirements are: 

7
Srivastava AB, “33,” The code of criminal procedure, 1973 (Law Publishers (India) 2006)
(i) he was detained without a warrant by a police officer in charge of a police station, 
(ii) he appeared in court or was brought before it without a warrant, and 
(iii) he was willing to post bail at any time while in the custody of that officer or at any point
during the proceedings before that court.
In granting bail however, a condition that the accused should surrender his passport in court
cannot be imposed, as it is not a condition for bail.

BAIL IN CASE OF NON-BAILABLE OFFENCE

“Section 437 of the Cr PC” says about when can someone take bail in case of non bailable
offence.
It says, “(1)When any person accused of, or suspected of, the commission of any non-bailable
offence is arrested or detained without warrant by an officer-in-charge of a police station or
appears or is brought before a Court other than the High Court or Court of Session, he may be
released on bail but8

(1) such person shall not be so released if there appears reasonable grounds for believing that
he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had
been previously convicted of an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been previously convicted on two or more
occasions of a non -bailable and cognizable offence: 
Provided that the court may direct that a person referred to in clause (i) or clause (ii) be
released on bail if such person is under the age of sixteen years or is a woman or is sick or
infirm:
 Provided further that the Court may also direct that a person referred to in clause (ii) be
released on bail if it is satisfied that it is just and proper so to do for any other special reason
Provided also that the mere fact that an accused person may be required for being identified
by witness during investigation shall not be sufficient ground for refusing to grant bail if he is

8
Srivastava AB, “33,” The code of criminal procedure, 1973 (Law Publishers (India) 2006)
otherwise entitled to be released on bail nors and gives an undertaking that he shall comply
with such bony directions as may be given by the court. 
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as
the case may be, that there are not reasonable grounds for believing that the accused has
committed a non-bailable offence, but that there are sufficient grounds for further inquiry into
his guilt, the accused shall, subject to the provisions of section 446A and pending such
inquiry, be released on bail, or at the discretion of such officer or court, on the execution by
him of a bond without sureties for his appearance as hereinafter provided. 
(3) When a person accused or suspected of the commission of an offence punishable with
imprisonment which may extend to seven years or more or of an offence under Chapter VI,
Chapter XXVI or Chapter XXVII of the Indian Penal Code or abetment of, or conspiracy or
attempt to commit, any such offence is released on bail under sub-section (1), the court may
impose any condition which the court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the
bond executed under this Chapter, or 
(b) in order to ensure that such person shall not commit an offence similar to the offence of
which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) Any officer or a Court releasing any person on bail under sub section (1) or sub-section
(2) shall record in writing his or its reasons or special reasons for so doing.ro (1) senda i os
(5) Any Court which has released a person on bail under sub section (1) or sub-section (2),
may if it considers it necessary so to do, direct that such person be arrested and commit him
to custody. (6) If, in any case triable by a magistrate, the trial of a person accused of any non-
bailable offence is not concluded within a period of sixty days from the first date fixed for
taking evidence. in the case, such person shall, if he is in custody during the whole of the said
period, be released on bail to the satisfaction of the magistrate, unless for reasons to be
recorded in writing, the magistrate otherwise directs. 
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable
offence and before judgment is delivered, the Court is of opinion that there are reasonable
grounds for believing that the accused is not guilty of any such offence, it shall release the
accused, if he is in custody on the execution by him of a bond without sureties for his
appearance to hear judgment delivered.”
 TYPES OF BAIL

We have three types of bail –

1. Regular bail – is the court order given to an accused who is already under the police
custody. It is given under section 437 and 439 of the Code of Criminal Procedure,
1973. Section 437 talks about granting of bail in non bailable offence while section
439 gives power to High Court and Session Court to administer any person who has
been released on bail under this chapter be arrested and sent to custody.9
2. Interim bail – is a sort of temporary bail. It is granted by courts for the time being bail
application is pending before the court. If the time period of interim bail expires and
the person does not give confirmation for continuation of interim bail, his freedom
will be taken away and he will be taken to custody.10
3. Anticipatory bail – is taken by a person when there is apprehension that he might be
arrested for an offence in the following days. Section 438 of the Code of Criminal
Procedure, 1973 gives power to the High Court and the Sessions Court to grant
Anticipatory bail.11

Default bail12 – is the right to bail given to an accused when the police after arresting
the person fails to file the chargesheet within 60 days (in most cases) or 90 days (in

9
Mongia AS, “Types of Bail in India” (Legal Services India - Laws in India, Supreme court judgments,
lawyers in India) <https://www.legalservicesindia.com/> accessed October 20, 2022

10
garg rachit, “Interim Bail” (iPleadersOctober 17, 2022) <https://blog.ipleaders.in/> accessed October
20, 2022

11
dalmia vijay pal, “Anticipatory Bail” (Lexology) <https://www.lexology.com/> accessed October 20,
2022

12
Vikram Hegde·October 15 2022 and others, “Default Bail” (The Leaflet – An independent platform for
cutting-edge, progressive, legal, and political opinion.2022) <https://theleaflet.in/> accessed October 20,
2022
 cases where punishment of death sentence, or life imprisonment or a jail term of more
than 10 years is prescribed) depending upon the nature of the crime. Section 167(2) of
the Code of Criminal Procedure, 1973 expresses that an individual has an indefeasible
right to default bail, when the police could not complete its investigation on time. This
section also states that the magistrate would have no authority to keep a person behind
the bars beyond the statutory period of 60/90 days. After this term of 60/90 days, the
magistrate needs to pass an order for the release of the person on bail. Even after
passing of such an order, the accused can be kept in custody till the time he does not
furnish bail. The default bail can be given in any case whether it is a bailable or a non
bailable offence.

HOW PEOPLE ARE MISUSING ANTICIPATORY BAIL

The work of anticipatory bail is to prevent a person from going to jail even before his arrest.
There were cases when influential people used to book their opponents in false case to
defame them so that they could take advantage of that. As a result of which innocent people
were sometimes deprived of their liberty and were subject to humiliation. Because of this
reason, the concept of anticipatory bail was introduced after 41 st Law Commission Report to
protect people from false cases. But in recent time, rich and influential people are misusing
anticipatory bail. As soon as they get any information that they are going to be arrested for an
offence, they immediately file for anticipatory bail and try to escape their liability. The
Supreme Court’s statement in Sushil Aggarwal v. State of NCT 13 of the Delhi case that no
time limit is required to be set while granting anticipatory bail and that it can be continued
until the end of the trial, paves way for even more misuse of anticipatory bail. If anticipatory
bail can be extended, then it would be injustice done to the party which is at a loss. The other
area where anticipatory bail is being misused is that it can be given even in case of non
bailable offences. People after committing non bailable offences, apply for anticipatory bail
and then flee to another country, try to manipulate witnesses, tamper with the evidences, as a
result of which victims are the ones who suffer the most because they are not provided with
adequate justice on time.

13
Mishra Arun, “Sushil Aggarwal v State of Nct of Delhi ”<https://indiankanoon.org/> accessed October
19, 2022
There was a case in which FIR was filed against Bhartiya Janta Party leader, Manoj Kamboj.
The case was in relation to a bank loan of 52 crores that was taken from Indian Overseas
Bank by a company in which Manoj Kamboj was one of the three directors. A complaint was
lodged against the three directors of the company since the managers stated that the amount
was not utilized for the purpose as stated. Kamboj applied for anticipatory bail which was
challenged by the Mumbai police on the grounds that the accused has used his ‘political
clout’ to make the bank withdraw its complaint. The contentions of the Mumbai police were
that if he could use his political power to force the bank to withdraw its complaint then he
could easily manipulate the witnesses and evidences.14

If we see the case of Vijay Mallya, the owner of the Kingfishers airlines, he was involved in a
money laundering scam, but was given anticipatory bail and he ran away to London in 2016.
Till now, the police have not been able to catch hold of him or the due amount of Rs 9000
crores.

Anticipatory bail was granted to Karti Chidambaram, son of Congress leader and former
finance minister, P Chidambaram in the money laundering case. After which he was able to
fly to Europe along with his family since the court had kept his warrant in abeyance.
However, the Central Bureau of Investigation (CBI) alleged that he had used his father’s
influence to get bail. Similarly, in another money laundering case, Robert Vadra, the brother-
in-law of Congress president Rahul Gandhi, was granted anticipatory bail easily. 15

So, we see a shift from how anticipatory bail could save people from injustice to how
anticipatory bail became a reason for serving injustice to the people. But one thing that
remains constant is the upper hand enjoyed by influential people – before and after the
introduction of anticipatory bail. Therefore, the courts need to exercise caution when granting
anticipatory bail so that they sustain a balance between personal liberty of an individual and
public interest at large.

14
Thakur A (ed), “Latest News, Breaking News Today - Bollywood, Cricket, Business, Politics -
Indiatoday: Indiatoday” (India Today) <https://www.indiatoday.in/> accessed October 20, 2022

15
Thapliyal N, “Supreme Court News, Latest India Legal News, Supreme Court Updates, High Courts
Updates, Judgments, Law Firms News, Law School News, Latest Legal News” (Live Law)
<https://www.livelaw.in/> accessed October 20, 2022
 THE PROCEDURE OF GETTING BAIL

In bailable offences – bail is a matter of right, and it can be provided by : Police officer who
is the in charge of the case or the Judicial Magistrate Court when there is a person who gives
surety for the accused. Surety can be any person. It is not necessary that it has to be a family
member of the accused. Same is provided in chapter 33 of the Code of Criminal
Procedure,1973 that need not be a family member or a person related through blood. In order
to apply for bail, the accused needs to fill form 45 in the second schedule of the Code of
Criminal Procedure, 1973.

In non bailable offences – bail is not a matter of right and it depends on the pleasure of the
authorized person. It can be provided by : police officer who is in charge of the case has to
mention the reason for granting bail and has to furnish the bail bond. The police have no right
to grant bail in offences involving the maximum punishment of life imprisonment or death
penalty. In such a case, the accused has to approach the Sessions court or the High court.

CANCELLATION OF BAIL

The High Court and Sessions Court can cancel the granted bail under section 439(2) and
437(5) of the Code of Criminal Procedure, 1973. The court uses this power when due care
has not been provided in granting of bail or it is in violation of any substantive or procedural
law.

Grounds for cancellation of bail : if a person gets involved in a similar crime and abuses the
liberty given to him, hampers the investigation process, attempts to run away to another
country or attempts to place himself beyond the reach of his surety.

VALIDITY OF A BAIL

The bail is valid till the next date of appearing in the trial court. The person just needs to be
present on the fixed date in the trial court. If the investigation is not finished within 90 days
for offences carrying a sentence of more than 10 years in prison or within 60 days for
offences carrying a sentence of less than 10 years in prison, the accused may be released on
bail, according to section 167 of the Code of Criminal Procedure, 1973.

Bail conditions
There are certain conditions which needs to be considered while granting bail: the possibility
that the accused committed the crime; the nature and seriousness of the charge; the severity
of the punishment; the risk that the accused will flee if released on bail; the accused’s
personality, conduct, and position; the likelihood that the crime will be committed again; the
risk of tampering with witnesses; and the risk that granting bail will interfere with the
administration of justice.16

If there is evidence that the accused would use his liberty to tamper with the evidences of the
case, then bail will be refused.

WHO GRANTS BAIL?

The bail can be given by the police or the court when the accused has committed a bailable
offence as per provisions thereof given in section 436 of the Code of Criminal Procedure,
1973. But the police can grant bail after he has submitted the file to the magistrate. While in
case of non bailable offence, it is given by the court in most of the cases. The police officer
can also give bail in non bailable offence provided he is an officer in charge of the station and
he has to give reasons for doing so. This is given under section 437 (2) and 437 (4) of the
Code of Criminal Procedure, 1973.

WHO CAN OPPOSE BAIL?

The bail can be opposed by the complainant. The Supreme Court of India held in Lakhimpur
Kheri case that the kin of the complainant can also oppose the bail application even in case of
heinous crimes.

IS BAIL A RIGHT OR A PRIVILEGE?

Bail is not defined as a right in our Indian Constitution but we may say that it has been stated
as a right under article 21 and 22 of the Constitution because article 21 talks about personal
liberty of an individual whereas article 22 talks about protection of an individual against
arrest and illegal detention. Bail should be a right since you cannot put a person behind the
bars till the time police takes its time to investigate. If the trial takes a lot of time in its
completion and a person is put in the prison till the time trial is completed then it would be a
wrong done to that person because then we would be infringing that particular person’s right
to life and personal liberty which is given under article 21 of the Indian Constitution. In

16
Banka N, “Bail Conditions” (Legal Services India - Laws in India, Supreme court judgments, lawyers in
India) <http://www.legalservicesindia.com/> accessed October 20, 2022
bailable offences, “bail is a matter of right” but same is not the case with non bailable
offences. In non bailable offences an individual is accountable to be in the custody of the
police and his detention cannot be said to be a violation of article 21 because it gets
authorization by law. In certain cases, bail can be granted in non bailable offences as well
when the court is satisfied that the prosecution could not establish a prima facie case against
the individual or when there is a need to release that person. The right to life and personal
liberty has been given a lot of importance in our constitution, even article 13(1) and 13(2) of
our constitution mentions that right to life and personal liberty cannot be taken away by the
state without due process of law. There have been many instances when a person who was
accused of a crime and was put behind the bars for more time than that was prescribed for
that particular offence since his case was not tried and he was not given bail, thus infringing
his right to life and personal liberty.
 BAIL IN ANCIENT PERIOD

The history of bail in India can be traced back to the ancient Hindu legal system, which
compelled those in charge of administering justice to settle cases quickly. Since there were
consequences for the officials, there could be no room for complacency in this situation. 1 As
a result, a court interposition took care to prevent an accused individual from being held or
imprisoned needlessly. In fact, this came up with workable ways to prevent the offender from
suffering unnecessary restrictions on his personal freedom while still ensuring his presence.
 BAIL PROVISION IN MUGHAL ERA

During the Mughal Era, as the Mughal emperors' authority and power were waning, the
zamindari system started to secure adequate tax collection. 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-owners, who held various types of
landholdings, rights, and obligations. Under the Mughals, all zamindar groups were obligated
to carry out certain military, judicial, and law enforcement tasks. Under the Mughals,
zamindars served more as public servants than as tax 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 accused of a crime. As a result, throughout 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 required to provide surety by the Kotwal notwithstanding his release order.
2 The concept 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 Empire. The
employment of this method is mentioned in the travelogue of the Italian voyager "Manucci"
from the seventeenth century. Manucci himself was released on bail after serving time for a
bogus theft accusation. The Kotwal freed him only when he provided a guarantee, despite the
fact that the then-ruler of Punjab had granted him bail. 3 The ability to be released on bail and
with security was prohibited during the Mughal period, and the Kotwal in charge of the arrest
had the authority to detain someone who had been suspected of committing a crime that
might be prosecuted or reported to the qazi for approval. Prime facie evidence prior to arrest
was stressed by Aurangzeb, who also cautioned the court against putting a guy on trial for
any longer than was absolutely required.
 THE PROVISION OF BAIL UNDER BRITISH
RULE

The East India Company's growing influence over Mofussil's Nizamat Adalats and other
fouzdary courts allowed for a slow but steady infiltration of English criminal procedure and
legislation into the country's then-dominant legal system. When a result, as British control
over India began to take hold, common law ideas and practises were more accepted. During
the British era, there were two well established and defined types of bail that were used by
criminal courts to free detained individuals. "Zamanat" and "Muchalaka" were the names of
these. It was known as "Muchalka," which was a required or punitive bond often forced upon
inferiors. A solemn agreement or written declaration served as the foundation for the release.
Essentially, it was only a nod to the bail notion. The defendant was also set free during the
British era with "Zamanati" sureties who assumed liability for the defendant. The decision of
whether to grant bail or refuse it, or how to release a defendant, did not present many
difficulties because of the judges' discretion provided under the tazeer principle in Muslim
criminal law. However, the Code of Criminal Procedure, which was first passed in 1861 and
then revised in 1872 and 1898, made it possible for the Indian legal system to statutorily
absorb the structure and rules of the British institution of bail in place of regional systems.
The Code of Criminal Procedure's 1973 expanded bail provisions, which were preceded by
the Constitution's ratification in 1950 and certain recommendations made by the Law
Commission in its 41st report in 1969, are its most recent example. Another kind of judicial
release was a "Zamant" security, where the Surety assumed responsibility for the accused
based on a written deed that was submitted with the trial court.
 BAIL PROVISIONS IN ANCIENT AMERICA

The American Colonies initially embraced virtually all of England’s bail rules and
administered the process in nearly identical ways. Only in the last 180 years has the Bail
system of America which was borrowed from England started changing in two fundamental
ways.

To begin with, release relied on personal sureties, but by the 1800s, America had run out of
people who were willing to assume responsibility for defendants without getting paid.
Throughout the 1800s, American judges wrestled with the problem and began placing
secured money conditions on defendants hoping they could “self-pay.” As a result, those
defendants claimed the amounts were excessive when they were unable to pay, and at this
point, American courts could have read the excessive bail clauses to mean that any amount
beyond the reach of the defendant was unconstitutional. Instead, however, those courts came
to the opposite conclusion—that is, they declared that an amount was not excessive simply
because it was unattainable.1

As a result of the problem of losing personal sureties, other countries found alternative
solutions—for instance, England passed a law allowing courts to release defendants without
sureties—but, in roughly 1900, when the longstanding rules against profit and
indemnification at bail were slowly discarded, America was the only common law country to
allow commercial sureties.1

Commercial bonds were introduced primarily to get the bailable defendants out of jail, but
the new model had an unintended consequence: it changed the nature of the financial
situation of bail. Specifically, throughout the history of bail, the financial terms of bail have
always been what we would now call “unsecured” financial terms in the form of a promise
of payment. However, the shift to cash and trade guarantees in the US now means that most
financing terms will be what we would now call “secured” financial terms. ‘Secured financial
terms’ - usually in the form of cash or bonds - require most defendants to pay some amount
before being released from prison.
This increased use of financial safety nets has kicked off a decades-long reform movement in
the US, once again designed to seek to release otherwise bailable defendants. This first
generation of bail reform in the United States began in the 1920s and culminated in the 1960s
with the Federal Guarantee Reform Act of 1966. 1 Among the noteworthy features of this
generation were significant social science research to assess the risk of flight, the creation of
pretrial services to assist courts in deciding whether to release and detain prisoners, and the
increased use of nonfinancial conditions and personal recognizance bonds.17

Secondly, the American system started to change when courts began to see defendants on bail
in the 1960s and 1970s who, although "bailable" and granted release, fled or occasionally
committed crimes while out on bail. However, American law did not allow for deliberate
detention of noncapital defendants, and public safety was not even regarded as a valid reason
to restrict pretrial freedom. This sparked a century-long second wave of bail reform that
focused on processes and boundaries of deliberate detention for flight and whether public
safety should factor into bail decisions.

17
Schnacke TR, “A Brief History of Bail - Supreme Court of Ohio” (Judges' Journal2018)
<https://www.supremecourt.ohio.gov/sites/PJRSummit/materials/bailHistory.pdf> accessed October 20, 2022
 CONCLUSION

Bail serves as a crucial check and balance to guarantee that no one is penalised unless and
until they are found guilty. The nation's convoluted bail system, however, often fails to
recognise this. Bail may be granted or denied depending on circumstances that have only a
tenuous relationship to the strength of the case. It is crucial to put into practise the bail reform
suggestions made by the Law Commission in its 268th report in order for our criminal justice
system to develop a fair and open bail system. The protection of the rights to life and liberty
established in the Indian Constitution will be greatly aided by this.