CHAPTER-5

BAIL: JUDICIAL TRENDS

The accused has committed two types of offenses: 1) Bailable offenses and 2) non-bailable offenses.
Infractions that are eligible for bail are subject of Section 436 of Criminal Procedure Code of 1973.
The offenses categorized as non-bailable are the subject of Section 437. If the offense falls under
section 436, bail is a right; however, if the offense falls under non-bailable offenses, the court has
power over whether to give or deny bail. Therefore, it is straightforward for the police or judicial
officer to grant bail to the indicted in a bailable offense. When granting or denying bail to an indicted
for a non-bailable offense, the judicial officer must use his discretion judiciously and not arbitrarily in
accordance with the law. This classification is on the premise that the bailable offence normally
treated as less serious, whereas non-bailable, the offence considered as graver and more serious.

A. In Bailable Offences

When a person appears or produced for a bailable offence before Magistrate or police, then there is
statutory duty imposed on the police officer and the court to acquit a person on bail, if he is ready to
seek bail. The Magistrate or the police officer can also absolve such person on furnishing his bond as
given in section 436. There appears to be no power or even discretion to restrain the indicted from his
enshrined liberty. There appears no compulsion on the court to cancel the bail when the offence is
bailable.

A person can be freed on bail prior to the police investigation under section 436. Only the bonds
properly filed in by the surety guaranteeing the accused timely production to the court are required for
a bailable offence. There is no requirement for a written bail request. Indicted can either himself or
through a lawyer apply even orally for bail.

The expression "appears or is brought before court" in section 436 means that when a person who is
indicted of an offence appears in court with a request for being freed on bail, he has to be immediately
put in custody and surrendered to the concerned authority. Application for release on bail can be
considered only when this has been done.

If a police officer refuses to free the indicted on bail in a bailable offence, he commits a felony under
section 342 I.P.C. A Magistrate act without jurisdiction and improperly refuses bail, he is not
protected. The court cannot while granting bail impose any situation except taxing of security with
sureties. It is not open to Magistrate to authorize detention of person arrested of bailable offence and
is prepared to give bail under section 167(2) of the code in the police custody for the objective of
investigation.
Section 436 applies to all security proceedings. A Magistrate has no jurisdiction to ask a person with
reference to whom order under section 111 of the code has been passed to furnish bail bond for
appearance in the court except when court intends to bind opposite party under section 116(3) of the
code.

Bail application for bailable offences should be disposed of on the same day. The bail bond asked to
be furnished must be reasonable. Right of the indicted to bail cannot be denied incidentally by
charging too much the amount of bond or bail bond to be supplied by person asking for release.

Though there is no special procedure for plea against refusal to grant bail under section 436(1), the
High Court and the Court of Sessions can be moved for bail under section 439.

B. In Non-Bailable Offences

When a person is arrested of non-bailable offence he has no right to be released on bail. But it does
not mean that indicted in non-bailable offence cannot be released in any way. Here judge in exercise
of his discretionary power may release a person on bail. While exercising discretionary power, a duty
automatically casts on the judge to keep a balance between the two conflicting demands i.e., shielding
the society from misadventure and presumption of innocence till he is found guilty. Therefore, when
deciding whether to grant the accused bail or not, the judge must use his discretion wisely and not
arbitrarily in accordance with the law. Each case's facts and circumstances, as well as the guidelines
established by the Supreme Court of India, must be taken into consideration by judges before they can
make a decision. Section 437 contemplates three stages, namely, first, at the time of accusation,
second is during investigation, inquiry or trial, third, after the conclusion of the trial and before
judgment. Under sub-section (1) of section 437, at the mere stage of accusation, bail may not be
refused, but if the accusation indicates that the person is involved in an offence punishable with death
or life imprisonment, bail may not be granted, then bail may be given only to persons under the age of
16 years, or a woman or sick or infirm person. If the case is under investigation, inquiry or trial and
there are no logical grounds to believe that the indicted is guilty of any non- bailable offence, he has
right to be released on bail. The Session Court may acquit a person on bail and by a consecutive order
cause any person to confine to bail, to be arrested and put to custody.

(i) Justifications for granting bail

Non-Bailable does not mean "Not Bail" or "Compulsory Jail"

The ordinary procedure of law is to permit bail rather than reject it and it should not be withheld as a
matter of punishment or for the sole objective of putting hurdles in the path of defence. If there is
likelihood of indicted being available at the time of trial and there are no chances of his jumping bail
then unless there are special circumstances the court should not refuse bail. Since the law assumes an
indicted as upright till his guilt is proved, he must be given a chance to take care his own case unless
the conditions is such that he should not be acquitted on bail. If the court is understood after taking
into account that the indicted has his roots in the community and is not likely to flee, it can certainly
release the indicted on his personal bond

Determining whether the defendant has social roots involves the following points:

1) Length of stay in the community;

2) Employment status, background and financial situation

3) His family ties and relationships;

4) His reputation.

It is now the general rule that if the purpose of detention has been met and the accused needs bail, bail
should be granted if the evidence provides no reason to fear violation or reduction of sentence.

(ii) Bail in Cases Requiring Identification

Section 437(1) presently explicitly sets out that the simple truth that a blamed individual might be
expected for being distinguished by observers during examination will not be an adequate ground for
denying bail assuming that he is generally be conceded and gives an endeavour that he will follow
such bearings as might be given by the court. Reasons to be taken care of while rejecting or granting
bail in non-bailable offences:

1) whether there are reasonable grounds to believe that the accused committed the crime;

2) Properties of charge and gravity

3) Circumstances specific to the defendant

4) The danger of abusing bail by repeating or continuing offence,

5) The danger winning over the prosecution witnesses,

6) The age or sex of the indicted,

7) His social status and necessity of presence in the house,

8) The character, means and reputation of the indicted,

9) Person charge with high corruption no justification for bail,

10) Delay in disposal of pending case, a good ground to grant bail.

(iii) Indicted to be granted Bail if in custody for a Long Time:

There are many cases in which the accused suffers in prison and the process moves very slowly. If the
accused is held for an unnecessarily long period of time, it is a crime that will not be released on bail
unless the accused is the cause of the delay then Courts can also release the defendant on bail on
account of unreasonable delay in obtaining testimony under Section 161 Criminal Procedure Code.
Defendants were even released on bail in murder cases when the investigation was blatantly flawed.
In the case of Vivek Kumar, the defendant said he had been in pretrial detention for more than eight
months and the date of the hearing was unknown. On the same basis it was decided that the indicted
must be released. In this case, the petitioner, who is currently in prison, should not be harmed by the
negligence of the attorney.

(iv) Benefits of Not Dealing with

A court need not consider the merits of a case when deciding whether to issue bail for an offense not
eligible for bail. Courts should only consider the apparent seriousness of the alleged crime, the
defendant's deep social ties, the likelihood of appearing during the trial, and the authority of the surety
over the defendant.

Bail cannot be denied if there is no indication that the accused is involved in another crime. In
deciding an application for bail, the court must address the minimum facts necessary to reach a
conclusion as to whether prima facie evidence exists and, where appropriate, the arguments presented
and may be dismissed at court request. There is need to go into details that only reach conclusions
based on facts and assumptions.

It is highly undesirable for a court to consider evidence before trial. The terms "sufficient belief" and
"evidence" are not interchangeable. The legislature deliberately used the word sufficient belief in
place of evidence.

Situations in which bail is required for non-bailable crimes:

1) if the investigation is not completed in a timely manner;

2) there are insufficient grounds for believing that the defendant is guilty of a non-bailable act;

3) if judicial proceedings are not completed within his sixty days;

4) after the conclusion of the trial but before sentencing, there are no good reasons to believe that the
defendant is guilty;

(v) Legalities while granting bail

Bail once granted cannot be reviewed mechanically:

An order of grant of bail issued by a court of competent jurisdiction under section 437 (1) of the Code
of Criminal Procedure cannot be automatically reviewed, revised, or set aside by the same court. The
aforementioned judge is not authorized to do so by any code provision. Bail in this manner must be
dropped under section 437 (5) of the code. In any case, such power can be practiced exclusively in
additional common conditions.

Equality in Bail Matters - Parity in Granting Bail:

If all other co-indicted of the case have been granted bail against whom there are similar allegations,
the petitioner must also be given bail. Even though Hon'ble Justice Saran made the observation that
the principle of granting bail on parity cannot be taken to an absurd or illogical conclusion in order to
force a judge into a tight and straight jacket formula to automatically grant bail, there may be
circumstances that call for an exception. For instance, a judge may not only take a different view from
the judge who granted bail earlier to a co-indicted, but if the judge's conscience revolts in granting
bail, he may choose to depart from. So, parity is not a ground to grant bail and indicted is not entitled
to bail only on ground that co-indicted of that case was granted bail.

In the following cases, the principle of parity does not lie:

1. When case against another indicted is stronger,

2. Previous criminal history of co-indicted indicates otherwise,

3. Evidence against such co-indicted is different,

4. Role of such co-indicted is altogether different.

Legal Obligation of Courts to Record Reasons for Granting/Denying Bail:

The duty to give reasons is a fundamental requirement of judicial proceedings. Magistrates and
Session Judges must show good reason to uphold their orders when granting or denying bail. This is
very necessary as their orders are often subject to scrutiny by the High Court. If the courts are
permitted to render orders without reasons, apart from arbitrariness there will be a potent danger for
non-consideration of facts which would encourage mechanical exercise of power.

Duty to give reasons is safety valve that protects arbitrary deprivation of the right of a litigant.
Reasons, however brief dispel all doubts about arbitrariness of the court. Under the constitution, the
parties are entitled to know the reasons for the decision.

They are entitled to know why their application has been rejected. In Ghanchi Rubina's case, it was
held that not only the lower judiciary, but also the High Court has duty to give reasons. In this case,
the trial court delivered bail on the grounds of availabilities of material to establish, prima facie case,
gravity of the offence and the possibility of the interference by the indicted with the investigation. The
High Court, however, released the indicted-on bail, without assigning any reason. Held that the High
Court ought to have at least briefly indicated the reasons which it thought entitled the accused to bail.
The High Court order was therefore reversed and the matter remanded for retrial. The basic principle
is that justice should not only be enforced, but should be seen clearly and unmistakably in
proceedings. Therefore, an order without cause for the court to grant or deny bail is unsupportable and
unenforceable.

(vi) Bail Application Disposed on the same day

The decision to grant or deny bail is a pre-trial stage, and the merits of the case will not be discussed
in detail at the bail hearing. Each defendant is presumed innocent until the matter is resolved.
Therefore, it is important not to postpone the bail hearing unless there is an important reason to do so.

In the case of Mahendar Pal Singh, the Allahabad High Court ruled that the Judge should adjudicate
the application on the same day or, in exceptional cases, the next day. The hearing should also decide
on the same day if earlier takes precedence, or the next day if later takes precedence. The question of
the defendant's personal liberties enshrined in our Constitution should be considered in court.

Bail requests will be processed as soon as possible in accordance with Article 21 of the Constitutional
Guarantee. Based on this idea, in Hidawat Hussain Khan's case, the Allahabad High Court again ruled
that the authority has the power to order a Judge to decide on the same day whether to grant bail. If
the judge does not do so, the defendant must be released on individual bail or provisional bail until the
bail request is approved.

B (a) Bail in Some Special Offences

(i) Offence under section 307 I.P.C.

Magistrate may sentence persons charged with criminal offences under Section 307 I.P.C. with life
imprisonment. A Magistrate has the power to bail before a defendant who has been implicated in a
crime that carries a life sentence, even if the crime can only be tried in a Session Court.

The prohibition on bail is limited to cases where the prescribed punishment is the death penalty or life
imprisonment and is provided for in Article 437 of the Penal Code.

Petition for regular bail allowed in a cross-version case where investigation is complete and the
petitioner alleged to have used 'Jailly' as blunt weapon. It was held that there was no intention to cause
any grievous injury.

(ii) Offence of Murder:

Even if a person is charged with a serious crime such as murder, a person's liberty must be protected
by the courts. There is no hard and fast rule that bail is never granted for heinous crimes like murder.
Liberty must be ensured through a judicial process that considers the interests of the defendant and the
victim's family, how the crime was committed, the defendant's likelihood of escaping trial, and the
history of the case. Factual excerpts from mind and research.

In the case of Parameshwarappa, the manner in which the victim was done to death and the
background in which the incident occurred and the fact that even two eye witnesses were afraid of
disclosing the same until the police came, would make it difficult to grant bail, because these
circumstances clearly indicates that present witnesses would likely to be intimidated by the petitioner
if he is released on bail. Hence the bail was refused in this case.
(iii) Offence under NDPS Act:

Crimes under the NDPS Act are very serious and those who indulge in such crimes are truly
devastating to the health of the world's population. Legislature thought it would provide very
compelling penalties for such crimes. Crimes that are very detrimental to people's health must always
be dealt with harshly, and those found to have committed such crimes usually do not deserve bail.

Bail allowed in an NDPS case where there was recovery of 63 kgs of Poppy husk from the house of
the petitioner. Independent witness not joined in this case. It was held that benefit of doubt would go
to the petitioner if question arises whether provisions of Section 100 of the Code were complied with
or not. Even otherwise, the petitioner is in custody for the last 8 months and only 2-3 prosecution
witnesses have been examined.

If the defendant is released on bail, the court must establish that there are reasonable grounds to
believe that the defendant is innocent of the alleged crime. When an indicted is already in custody for
17 months in respect of recovery less than commercial quantity in an offence under NDPS Act, bail
should be allowed. Bail granted in NDPS case, where co-indicted already on bail under section
167(2) of Criminal Procedure Code and the petitioner is in custody as under trial for 14 months and
the trial is not likely to conclude soon.

(iv) Offences of Tax Evasion

If an individual has been charged with income tax evasion and the priority of tax evasion is very high,
the issue of bail should be seriously considered and not taken for granted. High tax evasion certainly
puts the economy of the entire country at risk and is a serious rate of economic crime. Anticipatory
bail may not be granted.

(v) Other Considerations while granting bail

Section 437(1) of Criminal Procedure Code express that the court may order bail if the person referred
to in paragraph (i) or (ii) is under the age of 16, is female, or is sick or infirm. However,
notwithstanding this provision, if all other considerations must be considered and, based on those
considerations, the court determines that the person should not be released on bail, the court is under
no obligation to release a person just because he or she is under reservation due to section 437(1).

Sometimes, it is argued that the word 'May' in sec. 437 needs to be read as 'shall or must. In the
decision of Shakuntala Devi's case, it was held that the word 'may has been used in proviso to sec 437
of the code to mean 'shall or must'. The expression is mandatory, not directory. But this view doesn't
find support in the B.S.Rawat's case, where it is said that it is necessary to consider other factors. So,
if 'may' will be interpreted as 'must', other factors need not be considered and it shall not a good
practice. So 'may' in sec. 437 is directory not mandatory.
Generally, Magistrate has no jurisdiction if the offence is punishable with imprisonment of life-or-
death penalty and the offence is exclusively triable by the Court of Sessions. But if it is covered by the
proviso attached to Sec. 437(1) Criminal Procedure Code, Magistrate has jurisdiction to grant bail.

(vi) Where the Indicted is above 70 Years:

The defendant was over the age of 70, was charged under the provisions of the Narcotics and
Psychotropic Substances Act 1985, and was held when age was not grounds for bail. It was observed
here that when the indicted was prima facie engaged in business of Narcotic Drugs at this age, his age
cannot be a ground to release him.

(vii) Mother of Seven month old child:

The indicted petitioner was a lady, mother of seven months old child. She was not named in FIR nor
was involved in the case. The husband was also in jail. Hence it was thought fit to release her on bail
at last in the interest of child.

(viii) Sickness as Contemplated in Section 437 (1) of the Code:

Not all illnesses qualify defendants for bail. The sickness under section 437 involves risk or danger to
life of the indicted. There may be cases where the indicted requires specialized treatment and the
continuation of jail may be harmful. The averments of illness etc. needs to be taken in bail application
and should be supported with medical certificate and necessary documents. It is not sufficient to
produce a medical certificate indicating a particular disease, what is definitely needed is that the
health will suffer if not released. Bail may be denied if appropriate treatment is available in prison.

(ix) Infirmity as Envisaged under Section 437(1)

Infirm means physically weak, especially through age. But age may not be sole criteria for the grant
of bail.

(x) Young Students with no case History

Young petitioners with no history should be entitled to bail. In a case, the occurrence was due to some
quarrel between two groups of students and it was not the result of pre-meditation. Indicted was in jail
for three months. Court granted bail because continuance of detention would suffer his studies and
would ultimately affect his career.

(xi) Grant of Bail - Indicted Person need not to be under Detention

For grant of bail under section 437 Criminal Procedure Code by the Magistrate, the indicted need not
be under detention or Custody of any authority and it is sufficient if he appears before the court.

(xii) Compassionate Grounds for Bail

Bail can be granted on compassionate and humanitarian grounds such as serious ailment of mother,
wife etc. But it cannot be ground for bail that the indicted is not accustomed to the condition of jail. It
may be that if an indicted is delicately nurtured and he, being a man of position, was brought up in
luxury, but this could not be ground in serious offences like murder and rape.

In Marie Andre's case, where the indicted was suffering from cancer at secondary stage and was in
very delicate stage of health, indicted wants to go to her country to meet her parents for treatment.
Here, the Supreme Court was of the view that on humanitarian grounds, it is desirable that the
petitioner should go after filing an undertaking.

C. Anticipatory Bail: Meaning and Definition

Anticipatory bail is a means of ensuring personal liberty. This facility is classified in Section 438 of
Criminal Procedure Code. The term advance was introduced in the 41st Report of the Law
Commission. Pre-bail is neither a passport nor a shield against charges of any kind. Anyone who has
reason to believe that he/she may be arrested on a false but hostile charge has the right to apply for
bail in a Session or High Court. The Law Commission, in its 41st report, said that mainly influential
people tried to embarrass their rivals or put them in prison for several days for other purposes, and
then implicated their rivals in false affairs. A normal bail order is different from a bail order that is
made after an arrest, the former being made in anticipation of an arrest and taking effect immediately
after the arrest.

The old Criminal Procedure Code did not contain a specific provision equivalent to advance bail.
There has been disagreement among the various High Courts of our country as to the court's authority
to grant prior bail. The majority felt they had no such power. In its 41st report, the Judiciary
Commission emphasized the need to make provisions for pre-granting bail. The Law Commission's
recommendations were accepted by the central government. Also, clause 437 was added to the law,
confirming an explicit provision for pre-bail. This will become Section 438 when the bill is
incorporated into the new law.

The provisions for allowing bails in accordance with section 438 Criminal Procedure Code should not
be applied mechanically. The nature and severity of the circumstances under which the crime was
committed, the position and standing of the accused relative to the victim and witnesses, the
likelihood of the accused fleeing trial, the likelihood of the accused falsifying witnesses, and the
public and investigation Here are some of the considerations that a court must take into account when
deciding on an application for parole. Civil liberties are certainly a top priority, but fair and fearless
investigations into serious cases are just as important. The court will refrain from exercising
discretionary powers in favour of the defendant under Section 438 of the Code of Criminal Procedure
if it would adversely affect the investigation or the public interest.

(i) Guidelines for granting Anticipatory Bail

The power of granting anticipatory bail, vested in the High Court or a Court of Sessions, is a power of
extra-ordinary nature and is supposed to be exercised in exceptional cases. Any how this benefit
should not be refused merely because the prosecution claims that the indicted is wanted in police
custody for the purpose of investigation. It is the responsibility of the Court of Session or High Court
that a balance must be made to uphold the dignity of the law and to see whether the interest of justice
demands custodial interrogation or not. The courts are also to see that the dignity of individual may
not be downgraded simply that opponents want. The court should always see that public doesn't lose
faith in the administration of justice on account of the persons involved in heinous crimes be set at
large.

In an application under Sec. 438 of the code, the candidate should show that he has motivation to
accept that he might be captured for non-bailable offense and justification for such conviction should
be equipped for being analysed by the court equitably. Since it is then alone, the court can decide if
the candidate has motivation to accept that he might be captured. Therefore, a vague and general
allegation cannot be used to invoke Section 438(1) because doing so would result in an excessive
number of applications for anticipatory bail.

The High Court or the Court of Session must examine a request for anticipatory bail on its own and
determine whether a case has been made for granting such a respite. According to code section 437, it
cannot leave the matter up to the concerned Magistrate to decide. Section 438's very purpose will be
defeated by such a course.

Anticipatory bail can be granted as long as the applicant has not been arrested, and the filing of the
F.I.R. is not required for section 438 power to be exercised.

Section 438 order cannot be invoked after the suspect has been arrested. If the defendant wishes to be
released on bail after being arrested, he must appeal under Article 437 or 439 of the Code.

Orders under section 438 may be made without notice to the public prosecutor. However, such notice
should be given immediately and the issue of bail should be reconsidered in the light of the parties'
respective claims at that time.

Order granting anticipatory bail should be a speaking order furnishing salient features of case and the
factors which weighed with the court while finally making up its mind. This would be a guarantee
against arbitrariness. A mere general allegation of treason in a petition is insufficient, and the court
must be content with physical evidence that the allegation of treason is material and that the allegation
appears false and unsubstantiated.

(ii) Imposition of Unnecessary Restriction on the Scope of Section 438

The court should avoid imposing irrelevant limitation on the scope of section 438 because denial of
bail amounts to personal liberty deprivation, especially considering that the legislature did not impose
any such restrictions in the terms of that section. Because the person has been convicted of the crime
for which bail is sought, he or she is entitled to a presumption of innocence, and Section 438 is a
procedural provision dealing with a person's right to personal liberty. Imposing such restrictions or
conditions not found in Section 438 could render that provision constitutionally weak. For the right to
individual liberty cannot be conditioned upon unreasonable restrictions. Hence, the court may impose
such directions which it may think fit and can impose condition as mentioned in sub-section (2) of
438 are:

1. A condition that allows cross-examination by a police officer if necessary.

2. A requirement that no person, directly or indirectly, be familiar with the facts of the case, shall be
offered, promised, or caused to prevent disclosure to a court of law or to the police;

3. The condition that one cannot leave India without prior permission of the court.

any additional restrictions that may be outlined in subsection (3) of section 437, as if that section
granted the bail.

(iii) Concurrent Powers: Approaching Lower Court First

Section 438 gives concurrent power to High Court and Sessions Court, but it is desirable that the
petitioner should move the lower court i.e. Sessions Court first. It is only in exceptional circumstances
that a request for bail should be made directly to the High Court and in the absence of special
circumstances, the application should not be entertained directly by the High Court.

This is because the Sessions court is near the suspect, easily accessible, has the same expected bail
remedies, is under the same section, and there is no reason to believe that the Sessions court will not
act in accordance with the law.

Therefore, it is only in exceptional circumstances that the High Court can deal directly with such
applications, and such circumstances must be truly exceptional, bypassing the Sessions Court and
turning to the High Court. There must be a valid and compelling reason to do so. The High Court may
also, in exercise of its discretion, entertain directly the application for anticipatory bail where the
public prosecutor can act without calling the investigation officer.

(iv) Whether Anticipatory Bail can be applied more than once

Under section 438, a person has the right to request early bail if the allegation threatens arrest. The
accusation for which the indicted petitioner has reason to believe cannot vary from time to time in a
particular case. He cannot apply more than once in respect of same accusation. Second application
even on new grounds is not maintainable. Allowing second application will generate immorality in the
proceedings. The successive applications will overcrowd the courts and the object of law will be
frustrated than achieved.
Hence, the boundary of section 438 is limited, if analysed with sec. 439 of Criminal Procedure Code,
after rejection of his earlier bail as the language employed in sec. 439 are, 'that any person indicted of
an offence and in custody be released on bail.' This suggests without any doubt that the indicted in
custody charged with offence prima facie has a legitimate right to repeat his prayer for bail at any
time. Legislature put this expression in 439 and while drafting the structure of sec. 438, it omitted the
expression as appearing in section 439.

(v) Whether an anticipatory Bail can be retained as a penalty;

Any court, Sessions Court or High Court, cannot withhold anticipatory bail as a form of punishment.
In the case of Bhagirath Singh Jadeja, the Supreme Court stated that other factors cannot be taken into
account if there is no prima facie case. But even with prima facie evidence, the court's approach to
bail should be to ensure presence of accused before court to face trial and not to withhold bail as a
punishment.

(vi) The local jurisdiction that will consider the prospectus of bail application;

Anticipatory bail lies in the court within whose jurisdiction offence was committed, but not where the
delinquent resides or apprehends his arrest. The language of sec. 438 used the expression ‘the High
Court or the Court of Session’. The section does not say ‘any High Court or any Court of Session.
Hence 'the High Court or the Court of Session means such a court within whose territorial
jurisdiction, the accusation of having committed a non-bailable offence arises or is made. The clear
mandate of the language of sec. 438 and inherent limitations of territorial jurisdiction cannot be
overridden by any construction.

The focal point is the spot of commission of the offence and not the flying movements of a fugitive
offender. The residence of indicted is wholly irrelevant with regard to the jurisdiction of the criminal
courts for inquiries and trial. An anticipatory bail given by a competent authority without giving
notice to the State is illegal. In the case of Dr. Brojen Gogal,, it turns out that the issue of granting bail
to a person allegedly involved in the crime in question must actually be examined by the High Court
of the state concerned. If the High Court concerned has not heard, the anticipatory bail can be set
aside on that ground only.

(vii) During Pendency of Anticipatory Bail, right to approach for Ordinary Bail

The law doesn't allow that person when enlarged on anticipatory bail could have any right to apply for
an ordinary bail. It has not been provided by the court that a person can enjoy both anticipatory bail
and an ordinary bail. If it is allowed to do, the anticipatory bail will be reduced to a mockery as it can
never be the source for bail under sec. 437. There is no nexus between the two sections 437 and 438,
both stands on an independent footing, the considerations, in both the sections, are different. It is not
complimentary to each but factually, legally and mutually is exclusive of each other. One relates to
pre-cognizance stage while the other relates to post-cognizance stage. Section 437 of Criminal
Procedure Code brought into play to enlarge any person on bail, who was neither arrested nor
detained and who is enlarged on anticipatory bail. Where the anticipatory bail is already subsisting,
there could be no valid reason to wield jurisdiction under section 437 of the Criminal Procedure Code.

Conflict between an order of Anticipatory Bail and execution of Non-Bailable Warrant issued by the
Magistrate. The conflict between a non-bailable warrant and an order of anticipatory bail must be
resolved pragmatically, striking a balance between the individual's right to personal liberty, the
invocation of the police's right, and a procedure that must be followed by a Magistrate. After a
Magistrate issues a non-bailable warrant of arrest, the police officer in charge of executing the warrant
is obligated to arrest the person and bring him in front of the Magistrate, who is then obligated to
handle the indicted person in accordance with the anticipatory bail order.

(viii) Exercise of Power under Exceptional Circumstances

Section 438 doesn't confer unguided power upon the High Court or the Court of Session to pass an
order for anticipatory bail. The power cannot be exercised in a routine manner or for the purpose of
bypassing the provisions of sec. 437. If a person is referred under section (438) for bail if arrested for
an offense punishable by death or life imprisonment, the section 438 court shall determine if the
person is such a person. A person cannot be released if there are reasonable grounds to believe that the
act committed was an offence.

Of course, anticipatory bail should not be granted in all cases where an applicant has reason to believe
that he could be arrested for a crime not eligible for bail. The power under Section 438 is to be used
sparingly and in exceptional cases, using the discretion on the facts of each case.

(ix) Refusal to Grant Anticipatory Bail

In any event, the court is free to reject anticipatory bail if there is evidence to support such refusal. In
considering the question of bail, court must extend equal considerations to the cause of public justice,
as to the cause of liberty of the indicted. Anticipatory bail shall not be granted if granting prior bail
would obstruct enforcement of justice.

If the court did not find any exceptional or sufficient ground for issuing a direction under Sec.438, it
can refuse the bail. Also, if there is no material to show, except mere allegation, that the accusation
against the petitioner was made with some ulterior motive with object to humiliate him by having him
arrested, the Court may refuse anticipatory bail in such a case.

(x) Blanket Order of Anticipatory Bail

No directive should be issued under Section 438(1), which states that the applicant will be granted
bail "whenever arrested for any offence whatsoever." A "blank order" of anticipatory bail is one that
serves as a blanket to cover or protect any and all alleged illegal activity, as well as any eventuality,
likely or not, about which there is no concrete information. According to Section 438(1), the
applicant's belief that he may be arrested for a non-bailable offence is the basis for an order. In order
for a court to determine the reasonableness of an applicant's conviction, the applicant must disclose
certain events and facts in order to exercise the powers of the section.

This is a violation of law and rights because a pre-bail order involving any type of purported
misconduct would prevent the police from apprehending an applicant, even if the applicant has
committed a murder in public. It must amount to significant interference for both and impede police
duties in investigations. This applies regardless of the type of crime, the applicant is alleged to have
committed. Such a request can then turn into a person of wilderness and a weapon to smother brief
examination concerning offences which could never be anticipated when the request was passed. As a
result, the court that grants anticipatory bail must be careful to specify the specific crime or crimes for
which the order will only be effective.

(xi) Interference by Supreme Court in Anticipatory Bail

The Supreme Court generally should not interfere with bail or pre-bail grant or denial orders. This is
because the High Court is usually the final arbitrator in the matter. Special jurisdiction of the Supreme
Court may be invoked for the purpose of correcting serious miscarriages of justice, but such cases are
exceptional in the nature.

The High Court can grant bail with a surety of Rs.10 Lakh from the first applicant and Rs.5 Lakh
from the second applicant. The Supreme Court has ruled that this condition is onerous. The order has
been amended to provide Rs. 50,000 /- equally by each as surety.

(xii) Anticipatory Bail in NDPS cases

While dealing with NDPS Cases, grant of anticipatory bail under sec. 438 Cr. P.C. is subject to sec.
37 of the NDPS Act. The court may grant bail only if it determines that the applicant has reasonable
grounds to believe that he or she has not committed a drug offense.

(xiii) Cancellation of Anticipatory Bail

Anticipatory bail given by Sessions Court can only be cancelled by High Court under Sec. 439(2).
The Magistrate or Sessions Judge has no authority to cancel the bail granted by the High Court.
Magistrate has no authority to take an indicted into custody, to whom bail has been granted under sec.
438 Criminal Procedure Code by High Court.

D. Bail by High Court or the Court of Session

In the area of grant of bail to the indicted, the role of judges is of immense significance, as the judges
enjoy wide powers to give or not to give bail. Though the power has to be used judicially yet the
scope of discretion differs from judge to judge. So, the judges have to involve themselves actively and
with an open mind to discover the truth of the matter not only in bail matters, but in all cases tried
before them.

Section 439 of Criminal Procedure Code deals with the power of High Court or Court of Session
regarding bail. The High Court and the Court of Session have been granted these special powers as
superior courts. This section gives an unrestricted power to High Court or the Court of Session to
admit an indicted to bail. However, the discretion is not to be used judicially.

In practicing discretion, the High Court and Sessions Court shouldn't limit its consideration just to the
inquiry whether the detainee is or alternately isn't probably going to slip away, yet different other
thought too. Under Section 437, the Magistrate's authority is narrower than that of the High Court and
Court of Session. However, unless there are unusual conditions, the High Court or the Sessions Court
should not deviate from the legitimate restrictions outlined in section 437(1), which are based on the
rule of prudence. Therefore, the authority granted to the High Court and the Sessions Court must be
exercised with extreme caution, balancing an individual's valuable right to liberty with the interests of
society as a whole. In giving or declining the bail, the courts are expected to show, might be
momentarily, the explanations behind award or refusal of bail. The exercise of the jurisdiction cannot
be careless or arrogant. As the High Court and Sessions Court have concurrent jurisdiction, there is no
bar for directly going to High Court for bail. But ordinarily High Court will not entertain a petition
under section 439 Criminal Procedure Code, unless the subordinate court of concurrent jurisdiction
has been approached in the first instance. Though the power of High Court in granting bail under
section 439 CrPC, is entirely unfettered by any condition, it is only in unusual conditions, that a
request for bail should be made directly to the High Court. In such a case, applicant must show the
exceptional circumstance which justify not moving the lower court in the first instance. So, as a rule
of practice, the applicant seeking bail should first go to Sessions Court if an application is made to
High Court and if High Court passed order refusing the bail, then a new request cannot be made
before Sessions Court. Whereas, if the bail application refused by Sessions Court, then there is
remedy to the person to file a fresh bail request to the High Court. Sessions judge, as subordinate to
High Court, cannot examine the correctness of the order on the ground that it has concurrent
jurisdiction and that there is nothing in the section 439 to prevent Sessions Court to do so. So ,unless
and until exceptional and completing circumstances arise, High Court cannot be tried directly.

The High Court or the Sessions Court while giving bail can impose condition and can set aside or
modify conditions and can decrease the bail desired by a police officer and Magistrate. High Court
and Sessions Court can reject a bail given by any other court. They have been given this power to
protect misuse of procedure of any court or to obtain the end of justice. They have ample powers to
deal effectively with indicted acquitted on bail. They can exercise this power at any stage of
proceeding during trial or the pendency of appeal before them.
The court cannot, when giving bail under section 439 of the code, go into detail about the clue to
determine whether it will be enough to prove the indicted guilt beyond a reasonable doubt. At this
point, it is not relevant to determine whether the prosecution's case will result in a conviction or not.
The question that needs to be answered is whether the prosecutor can present evidence that supports
the appearance of the allegations, rather than evidence that proves the defendant's guilt beyond a
reasonable doubt.

Before granting bail, the High Court and the Sessions Court will serve requests for bail to the
prosecutor in two cases:

a) before giving bail to a person charged with an offence adjudicated only by a civil court;

b) before giving bail to a person charged with a criminal offence punishable by life imprisonment;

If in the opinion of the court, it is not reasonable to give notice to the public
prosecutor, no such notice shall be given, but the court must record the reasons in writing for not
giving notice.

(i) Jurisdiction to grant Bail

It is only the court having power to try the case which can release the accused on bail.
Thus, a second-class Magistrate cannot enlarge an accused on bail that he cannot try according to first
schedule of Criminal Procedure Code. He can only forward the indicted to a Magistrate having such
jurisdiction. A police officer should ordinarily produce the indicted before theMagistrate vested with
power to try the case.

If the court means any court, then it would mean that an indicted can go to any Magistrate, in any
district, even if the case has not been registered in that district and apply for bail whether or not he
could take the cognizance of the case. This was not the intention of law. In that case, it would mean
that overlapping of orders of different High Courts. Even if an arrest is made in another district and
the indicted is produced before the executive Magistrate of that district for transfer to other district
where he is to be tried, then Magistrate should not release on bail. It should only be forwarded to the
responsible district judge according to section 81 of Criminal Procedure Code. In a case, when an
irresponsible Magistrate obtains a bail bond from an indicted person for his appearance in another
court, outside the jurisdiction and subsequently, it was found that the Magistrate was not competent
to do so, then all the proceedings done by the Magistrate shall be nullity. In case of an order passed
without jurisdiction, a Magistrate must immediately detain the indict and commit him to custody.

Also, when a non-bailable warrant is given by the court and it is to be applied in another district, the
court, as required by section 78(2), shall forward alongwith warrant, substance of information and
other relevant evidence in accordance with section 81 Criminal Procedure Code, about the person to
be arrested, to enable the court acting under section 81 to decide whether or not to grant bail to the
said person. The Chief Judicial Magistrate or Sessions Judge of that district where arrest is made on
such a warrant can release the accused on bail.

(ii) Sessions Trial

There are no legal barriers to a magistrate's consideration of a bail application of an indicated person,
arrested for a crime exclusively triable by the Court of Session, even then the magistrate should direct
the accused to approach the Sessions court for bail. If a magistrate exercises this power under section
437 with respect to an offence exclusively triable by the Court of Session, then he has reasonable
ground to form the opinion that the defendant is not guilty of an offence punishable with death or life
imprisonment. If there are sufficient grounds to show that defendant has committed a criminal
offence punishable with death or life imprisonment, he will be deemed ineligible to grant bail. Since
the powers of magistrates to deal with bail applications are governed by the penalties prescribed for
the crimes for which bail is sought. Where the penalties prescribed for the crimes are generally the
death or life imprisonment, then bail application is to be heard only by a Court of Sessions and
Magistrates do not have jurisdiction to grant bail unless the matter falls under a section 437.

When an accused is granted bail by a Magistrate in such a situation, the bail is only granted for the
duration of the inquiry before the Magistrate. When the case is transferred to the Court of Session, the
indicted is re-arrested and brought before the Court of Session, where he must apply for fresh bail
once more. In that circumstance, the indicted person experiences a lot of inconvenience as a result, but
there is no corresponding benefit for the administration of the criminal justice system also. However,
there is a provision in section 441, sub-section 3 of the code of Criminal procedure, makes the
situation easy wherein an indicted person can be granted bail that requires him to appear in front of
the Court of Session. This means that if he is committed, he won't have to be re-arrested and brought
before the Court of Session again. The section 209, clause (b), also makes it abundantly clear that
even in cases, where the offence is triable by the Court of Session, the Magistrate has power to set
free the accused on bail during and after the trial.

While deciding the bail matter, Magistrate should act judicially. A bail order issued by a Magistrate
determines the right of state and accused and is issued by the Magistrate after application of mind
and, therefore in the performance of his judicial duty and constitutes a judicial act.

After the High Court grants the release of a suspect, the Sessions Court may not revoke bail already
granted by the High Court unless new circumstances arise in the course of the proceedings. If the
accused is granted bail by the Sessions Court, then state has two options either to seek cancellation of
bail from the same court or to approach to the Hon’ble High Court.

Under Section 439 of the Code, no person can apply for bail, unless he is in custody. When he
surrenders before the court and follows its orders, he is said to be in judicial custody. One of the
healthy standards, in giving bail is that the court should be satisfied that accused, being released on
bail, would not tamper with the evidence.

(iii) Power of High Court and Supreme Court to Grant Bail

Bail is usually a matter over which the High Court should have final authority. Section 439(2) permits
the detention of a person released on bail by any court, including Sessions Courts as it deems fit. High
Court has jurisdiction to grant bail in Habeas Corpus petition filed against orders of detention passed
under rule (3). The exercise of said jurisdiction is inevitably circumscribed by the considerations
which are special to such proceeding and which have relevance to the object which is intended to be
served by orders of detention passed under the said rule.

The Apex Court can only intervene in a limited class of cases involving major legal matters requiring
final determination for the entire country, where there is a violation of principles of natural justice.
Supreme Court justices should not shut their eyes to injustice but they should also avoid keeping their
eyes wide open to involve in petty matters, otherwise, the Supreme Court will be unable to play the
noble and luxurious role that the Constitutional framers believe it should play. The Supreme Court has
made rules to exercise its discretion over orders granting or denying bail or advance bail when special
leave requests are made for these reasons.

(iv)Indicted Refused Bail by Sessions Court. Whether can Approach High Court for Bail
without Challenging Order of Refusal by Sessions Court:

When Sessions Court rejects a request for bail on merits under section 439(1), an order refusing the
grant of bail would be a judicial order and such order govern the field until set aside and substituted
by an order made by the High Court. If the indicted wants to approach High Court by filing fresh
application, then he has to challenge the order of refusal of Sessions Court. The proper course for the
applicant is to challenge that order and simultaneously pray for bail to High Court. If the High Court
finds that the order passed by Sessions Court is unjust, the High Court can set it aside and grant bail in
exercise of its power under section 439.

High Court granted –bail, Magistrate not Releasing Indicted on Technical Grounds:

If the High Court has directed the applicant to set free on bail on his submission of bonds to the
satisfaction of the Magistrate, the Magistrate cannot refuse the indicted to release on bail on the
ground that the order has some technical mistake, such an order has some technical mistake like order
does not indicate crime number in which the applicant was arrested etc., because when the identity of
the prisoner ordered to be released was not in dispute or doubtful, the technical ground by magistrate
is wholly unjustified. There are records to show that indicted is released many times in the absence of
crime number. The reason is that the hyper-technical view in matters like bail, which directly relates
to liberty of the citizen, must always be avoided.
Whether the Judge Can Act as Prosecutor?

No, the Magistrate cannot, under any circumstances, act as prosecutor. The judge has such broad
powers that he must actively participate in the trial to uncover the truth and safeguard the weak and
innocent. Magistrate must ask questions that do not frighten, coerce, confuse or intimidate the
witnesses.

The inherent risk if a judge adopts much strict attitude towards witnesses have been narrated by Lord
Justice Birkett: "The people accustomed to the procedure of the court are likely to be overawed or
frightened or confused or distressed, when under the ordeal or prolonged questioning from the
presiding judge."

(iv) Bail by Police

In accordance with the procedure of the code, in bailable offences, the police are empowered to accept
bail, if the indicted is ready to furnish the bail. Then the police have no power to detain him or
produced him before the Judicial Magistrate, and in such a situation, the police officer detaining him
also become liable to penal action under the procedure of the Indian Penal Code for illegal detention,
besides civil liability. If a person in bailable offence does not want to go to the police, as is generally
the case, he can appear before the Judicial Magistrate of the police station concerned, in the open
court, make application and get himself bailed out without any problem and harassment.

The bail taken will be for the indicted to appear in the court of “Illaqa” Magistrate. Ordinarily two
bonds, surety bond and bail bond most commonly known as “Muchalka” are taken. The police have
no power to take bail from the indicted for his appearance before the police officer. The object of
Sections 436, 437, 444 Criminal Procedure Code is for appearance of the indicted before court and
not before police.

Section 170 Criminal Procedure Code authorises the officer-in-charge of the P.S. to take security in
bailable cases for his presence before such Judge on a day fixed and for his attendance on daily basis
before such Judge until otherwise dictated.

The police officer can also release on bail:

 a. U/s 42(3), on arrested in a non-cognizable offence committed in his view, when the
person tells his true name etc.

b. U/s 43(3), when produced before him by a private person and the offence made out is
non-cognizable or bailable.

c. U/s 170 Criminal Procedure Code, when sending challan in bailable case.

d. U/s 436 (1) proviso, he can release on bond only in bailable case.

In non-bailable case, the officer in charge of a police station can release the indicted on bail for
offence except those which are punishable with death or imprisonment for life under section 437(1)
Criminal Procedure Code. If during the investigation of a case, there are no reasonable grounds for
believing that the indicted has committed any non-bailable offence, the officer in charge can release
the indicted on bail under section 437(2) Criminal Procedure Code This power is also given to the I.O.
or officer in charge of police station, under section 169 Criminal Procedure Code These officers can
release on bail the indicted who has been arrested but against whom there is no major evidence or
legitimate grounds for suspicion to support the forwarding of indicted to a Magistrate. This power can
only be exercised before taking remand under section 167 Criminal Procedure Code

It must also be noted that even in those cases, in which bail is taken by police, the indicted is required
to submit fresh bail when he is required to appear before judicial/metropolitan Magistrate. So, it is
useful to get bail from the judicial /metropolitan Magistrate.

The bail however under section 437(1) Criminal Procedure Code should be very cautiously and
sparingly done by the officer in charge. It is not a mandatory provision and as such, these powers are,
only permissive and not obligatory. These should therefore, be exercised with caution. Police officers
must be confident that bail is unlikely to unduly impede law enforcement or lead to the escape of a
prima facie offender. It is also further provided in these rules. "In every case of release on bail or
recognizance whether under section 169 or 497 (437) Criminal Procedure Code, full reasons shall be
recorded in a case diary and the police officer concerned shall preserve the bond in form 26 until it is
discharged either by the appearance of the indicted person or by the order of a competent court."

The police officer has no right to reject the bail given by itself as there is no procedure under section
437(5) Criminal Procedure Code to this effect. The bond taken by the police officer is valid only up to
the date and time given in it. If the indicted does not appear in court on that date, it is liable to be
forfeited under section 446 Criminal Procedure Code. If he appears on the said date, then the bond
become invalid and the court will take a new bail bond.

A police officer shall not have the power to re-arrest a defendant released on bail under section 437 of
the Code of Criminal Procedure if arrest is deemed necessary and the police shall apply to the
competent court for release of bail and comply with section 437 (5) of Code of Criminal Procedure.
E. Power of Appellate Court in Respect of Granting Bail

While any appeal against conviction is pending, the appellate court may terminate the execution of the
punishment, and if the convicted is in confinement, the appellate court may release him on bail or on
his own bond. The court shall, however, record its reasons for taking any such action under section
389(1). The order for bail under section 389(1) is for limited period only and is applicable only to
'convicted' persons and not to those who are bound over. The appellate court has no power to enforce
personal presence of the appellant by issue of warrants or otherwise, especially in a case where
sentence imposed on him is of fine only.

As the discretion in these matters is to be exercised judicially, the appellate court must i.e. consider (i)
Whether there is prima facie evidence to raise serious doubts about the conviction. and (ii) whether
administration of the remedy could be unduly delayed. It has been found that, with few exceptions,
one year is generally a reasonable period for hearing a substantive appeal of a pending capital action
in the High Court.

Where an order granting bail by the High Court to the indicted sentenced for the offence under section
302, 201, 331 read with 34 IPC, during pendency of appeal, was set aside by the SC and remanded to
decide afresh, bail granted after considering the following points: -

(a) Appellants have raised some arguable points,

(b) The petitioner presented good prima facie evidence,

(c) Applicant surrendered shortly after Supreme Court revoked bail.

(d) The appeal is not likely to be heard for a long time.

According to the above rules, the appellate court may have the power to grant bail to a convicted
person only after an appeal has actually been filed. Therefore, the court of first instance that convicted
the defendant may, in certain circumstances, grant the time to defendant to file an appeal and to
receive a bail order from higher court. Defendant must be released on bail to give him sufficient time
for filing of Appeal. The circumstances under which a convicted person wishing to file an appeal
against his conviction, should be released on bail by the court of first instance are:

1) if the person is released on bail to imprisonment for not more than three years, or

2) when the convicted offence is released on bail and is on bail; [S. 389(3)].

An appeal against an acquittal can only be filed to the High Court under Section 378. If such an
appeal is made, the High Court may issue an arrest warrant for the acquitted defendant and imprison
him pending appeal or release him on bail (S 390). The discretion conferred on the court in granting
bail to the defendant shall normally be exercised by the court in connection with any crime involving
the death penalty, and the defendant's appeal against acquittal shall be subject to pending appeal. It
shall be deemed appropriate provided there are serious and exceptional reasons for their detention.

If bail is granted by the Court of Appeal or Court in first instance, will find that there appears to be no
provision in the Code to reverse bail. This omission is a serious hole in code. However, for the sake of
justice, the High Court may, in exercise of its inherent powers under Section 482, grant bail in such
cases if it deems fit. When the defendant was convicted of murder and the court of first instance
granted bail because the defendant was on bail at trial. Bail orders may be overturned because trial
courts do not recognize exceptional circumstances to grant bail. Regarding order of bail in murder
cases, court considers relevant factors such as the nature of the charges against the defendant, the
manner in which the crime was allegedly committed, the seriousness of the crime, and the desirability
of the defendant released on bail after conviction.

As powers to release on bail have been given to appellate courts, so also, the courts exercising
revision jurisdiction, namely the High Court and the Court of Session, have similar powers to release
on bail during the pendency of revision proceedings as mentioned in Section 397(2). It has, however,
been held that the Supreme Court is not an appellate Court as contemplated under section 389(1) and
the provisions of section 389 will not apply in the case of appeals to the Supreme Court.

F. Recent Supreme Court Judgements Relating to Bail

In Muhammed Rafi v. Satheesh Kumar Con. Case, the Court opined “we deem it necessary to
remind you that the State's police officers have the authority to arrest people at various stages
of the criminal justice system, but this authority cannot be used as a tool of punishment or
harassment without taking into account the protections outlined in Section 41 of the Criminal
Procedure Code. We warn the relevant authorities that any effort to disobey a court order is
disrespectful to the very dignity of the court and the administration of justice. The Supreme
Court's directives in particular must be followed exactly as written, with no exceptions or
justifications. The directions so issued are binding and must be obeyed by the parties and all
concerned stricto sensu.clx

“The Apex Court in Mohammed Zubair v. State of NCT of Delhi & Ors Writ Petition
(Criminal) No 279 of 2022clxi held a public interest in upholding both the rights of the
indicted and the criminal justice system. By imposing requirements that are excessive in
comparison to the requirements necessary to guarantee the presence of the indicted, the
proper conduct of the investigation, and ultimately to guarantee a fair trial, the human right to
dignity and the protection of constitutional safeguards should not become illusory. The court
may set requirements, but those conditions must be proportionate to the goal of those
conditions. Each situation calls for a careful assessment of the type of danger that the grant of
permission, as requested in this instance, poses. The mere fact that the charges brought
against the petitioner relate to tweets he posted on a social media site does not warrant the
issuance of a broad anticipatory injunction prohibiting him from tweeting. Given the
objective of establishing bail terms, a broad injunction forbidding the petitioner from
expressing his opinion, which he is lawfully permitted to do as an involved citizen, would be
excessive. Such a requirement would effectively be a gag order against the petitioner. Gag
orders limit people's ability to speak freely. The petitioner asserts to be a journalist and co-
founder of a fact-checking website that uses Twitter as a communication tool to reveal false
information in this age of morphing images, clickbait, and personalized videos.clxii

Recently in Arnab Manoranjan Goswami v. State of Maharashtra Criminal Appeal No. 742 of
2020 (Arising out of SLP (Cr) No.5598 of 2020)clxiii The Apex Court held the following
points:

“1. To ensure the goals of justice, a court must issue the necessary orders to carry out the
provisions of the Criminal Procedure Code, stop the misuse of any court's procedure, or in
other ways. The High Courts must exercise caution when exercising the jurisdiction granted
to them under Section 482 in accordance with this court's rulings. The decisions of this Court
are based on the fundamental concept that the indicted should not utilize artifices and
methods to prevent the proper implementation of criminal law, which is why we emphasize
that the High Court must exercise this jurisdiction with moderation.clxiv

2. Even one day of liberty restriction is one day too many. We must constantly be aware of
the broader systemic effects of our choices. Justice Krishna Iyer famously stated in the case
State of Rajasthan, Jaipur v. Balchand (1977) 4 SCC 308 that "bail, not jail" is the
fundamental tenet of our criminal justice system. This Court may intervene at any moment if
the High Courts and Courts in the district court of India fail to put this concept into practice.
These comments of Justice Krishna Iyer have been routinely applied in this Court's rulings
for many years and are not isolated silos in our jurisprudence.

3.Pendency before the High Courts with regard to Bail Applications is 91,56842 and
Pendency before the District Courts with regard to Bail Applications are1,96,861.

4.We sincerely hope that our courts will demonstrate a keen understanding of the need to
increase the scope of liberty and adopt our method as a guiding principle when making bail
decisions in the future.”clxv
Recently The Apex Court in Satender Kumar Antil v. Central Bureau of Investigation
(SC)2022 AIR (Supreme Court) 3386clxvi held that "it equally responsible for preventing the
criminal code from being used as a tool for the targeted harassment of citizens is the district
judiciary, the High Courts, and the Supreme Court. The necessity to assure the appropriate
application of criminal law on the one hand, and the need, on the other hand, to ensure that
the law does not serve as a pretext for targeted harassment, should be recognized by courts at
both ends of the spectrum. Liberty is as flimsy as flimsy can be across human eras. Liberty
endures thanks to the watchfulness of its people, the din of the media, and the stale hallways
of the courts where the rule of (and not by) law is alive. Yet, much too often, liberty is a
casualty when one of these components is found wanting.”clxvii

And The Apex Court recently too in Siddharth v. State of Uttar Pradesh Criminal Appeal
No.838 of 2021 (Arising out of SLP(Crl.) No.5442 of 2021)clxviii held, “We should be aware
that a key component of our constitutional mandate is personal liberty. When a custodial
investigation is required because of a serious crime, there is a chance that the witnesses might
be influenced, or the indicted would flee, there is cause to make an arrest. It does not follow
that an arrest must be made just because it is legal to do so. There must be a distinction
between the existence of the authority to arrest and the reason for using it. A simple arrest can
do enormous damage to a person's reputation and self-esteem. We find it difficult to see why
the investigating officer should be required to make an arrest if there is no reason to suspect
that the indicted will elude capture or refuse to follow a summons, and the indicted has
actually cooperated with the inquiry throughout.”