UNDERSTANDING BAIL AND JAIL

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Abstract-

Personal liberty is the central pillar of our constitutional democracy. It often comes into question while discussing the provisions of bail. In India, both Police and Judiciary have been given the power to grant bail. There are many diverse and distinguished intellectual discourse on the jurisprudence of bail and the role of judiciary. Volumes have been written and thousands of judgements delivered on bail by the judiciary. Yet, the provisions of bail remain ambiguous in India. This article tries to explain the provisions of bail present in The Code of Criminal Procedure, 1973 in a simplistic manner along with some suggestive remarks. Part I introduces the subject. Part II, III, IV discuss further about the topic by defining the topic. Part V deals with bail in case of bailable offences and part VI deals with bail under Section 436-A. Part VII deals with bail in non-bailable offences and part VIII deals with Anticipatory bail and Part IX deals with Default bail and Part X deals with powers of the High Court/ Court of Sessions. Part XI concludes the discussion with a few suggestive remarks.

liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body.”

 –  Justice H.R. Khanna

I. INTRODUCTION

Whenever a crime takes place, the first agency that comes into play is the police. The crime is then investigated which in turn leads to ‘arrest’. Such arrested persons are mere suspects at this point, ergo they are ought to be afforded a ‘presumption of innocence’. At this stage comes the entry of a liberty hero called ‘Bail’. Bail comes to the rescue of such arrested persons and helps them by ending their detention and guarding their Constitutional and statutory right, enshrined in Article 22(2) of the Constitution of India and in the Code of Criminal Procedure,1973(hereinafter CrPC). But this does not mean that this rescue will always be successful. The said constitutional right has to be measured against the interest and security of the society, which is left for the Indian Judiciary to decide. Now, imagine a situation where people are unaware about the powers of this liberty hero or where the powers are rendered so weak that actualizing them is only for the strong. Such imaginations alarmingly stand to be real for some in India. In an attempt to bring forth clarity, the provisions of bail in CrPC are discussed in the following paragraphs.

 II. WHAT IS BAIL?

The term ‘bail’ which shows its presence in The Code of Criminal Procedure, 1973, has nowhere been defined within its broad ambit of 226 pages. The Supreme Court in Vaman Narain Ghiya[1], had distinctly brought to light the fact that the term ‘Bail’ is an undefined term in the CrPC. It was also made known that the term Bail has not been defined in any other legislation as well.

The word bail has originated from the Old French word ‘Baillier’, which means “to control, to guard, deliver”. It also finds existence in the Latin words ‘Baiulare’, which means “to bear a burden” and ‘Bailus’ which means “porter, carrier, one who bears burden (for pay)”.[2] According to Halsbury’s Laws of England, “the effect of granting bail is not to set the defendant (accused) free, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of the law and he will then be imprisoned.”[3]

The Law Commission in its 268th Report (2017) states that “ ‘Bail’ essentially means the judicial interim release of a person suspected of a crime held in custody, on entering into a recognisance, with or without sureties, that the suspect would appear to answer the charges at a later date; and includes grant of bail to a person accused of an offence by any competent authority under the law.”[4] The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘bail’ is surety.[5]  In Moti Ram v. State of Madhya Pradesh[6], the Supreme Court held that the definition of the term bail includes both release on personal bond as well as with sureties. Bail may be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners and at the same time involves participation of the community in administration of justice.[7]

That being the case, to state in general terms, bail means the release of a person, accused in a criminal case, from the custody of State for a temporary period and for the purpose of such release, a security must be deposited before the court.

III. THE BALANCING LINE BETWEEN BAIL AND JAIL.

To preserve an equilibrium between the constitutional rights of the accused on one hand, meanwhile also ensuring measures for a fair trial whilst also upholding the interest and security of the community on the other; can be a tricky thing to do, so tricky that no exact dictum  can be given by the courts regarding bail because the grant or refusal to grant a bail depends on facts and circumstances surrounding each case. To understand this in a general sense, let us take an example. Mr. X is accused of committing a ‘murder’ and for the same he was arrested by the police. Now the denial of bail to him would amount to infringement of his constitutional rights as he is merely an accused at this point and is considered innocent until proven guilty. On the other hand, if he is granted bail it could be against the safety of the community/state.

Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but it has to be balanced with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the Police, there must be minimal interference between them. It links two conflicting ideals, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime, and on the other, the fundamental cannon of criminal jurisprudence, viz., the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have.[8]

Bail is a balancing act between personal liberty of an individual and security of community/state. Where this balance lies between the two, is to be decided by the court depending on the facts and circumstances of the case. Taking an example, there can be a case where a person accused of the offence of murder is granted bail while some other person accused of the same offence of murder is denied bail. This art of fine balancing is carried out by our Judiciary depending upon case to case.

IV. BAILABLE AND NON-BAILABLE OFFENCES.

As mentioned earlier, the term bail is not defined anywhere in the CrPC, but it does define the term bailable offence and non-bailable offence. According to this, ‘bailable offence’ means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and ‘non-bailable offence’ means any other offence. This definition is not very clear and is the same as saying that, cruelty means an act which consists of cruel things, and the rest of the acts does not amount to cruelty.

The Code has not given any test or criteria to determine whether any particular offence is bailable or non-bailable. To understand what actually is a bailable offence and what is non-bailable offence one needs to look at the First Schedule of the CrPC. Going by the First Schedule, one can say that bailable offences are generally regarded as less grave and serious and non-bailable offences are generally graver and more serious.

The classification of offences into bailable and non-bailable offences has been devised for making a threshold decision as to whether the accused person should be released on bail. If this threshold decision is not in his favour, further probing is necessitated before making a decision as to his release on bail.[9]

The Supreme Court in Talab Haji Hussain[10] expressed doubt on categorization of offences as bailable and non-bailable offences. The court observed:

“3…. The classification of offences into the two categories of bailable and non-bailable offences may perhaps be explained on the basis that bailable offences are generally regarded as less grave and serious than non-bailable offences. On this basis it may not be easy to explain why, for instance offences u/s. 477, 477-A, 475 and 506 of the Indian Penal Code should be regarded as bailable whereas offences under Section 379 should be non-bailable…”

So, basically a bailable offence is one where an accused ‘shall’ be released on bail and bail is a matter of right in such offences, and non-bailable offences are those where an accused ‘may’ be released on bail and bail is the discretion of the court.

There is no consistency between the term of imprisonment for offences and their classification as Bailable and Non-Bailable. For example, subjecting a married woman to cruelty is punishable with 3 years of imprisonment (Section 498-A IPC) and is non-bailable, whereas committing the offence of falsification of accounts u/s 477-A is punishable with 7 years of imprisonment and is bailable.

V. BAIL IN CASE OF BAILABLE OFFENCE.

Section 436 of CrPC provides for grant of bail when a person is not accused of a non-bailable offence. Under this section bail can be claimed as a matter of right. Section 50(2) of the CrPC makes it obligatory for the police officer who arrests a person without a warrant, to inform the person whom he has arrested for a bailable offence of his right to be released on bail and to arrange for sureties on his behalf. Both the police officer (officer in charge of a police station) and the court are empowered to grant bail u/s 436. Section 436 touches on three scenarios. First, when a person is arrested or detained by a police officer, second when a person appears before the court on his own and third when a person is brought before the court. In the first scenario, when a person who is accused of a bailable offence is arrested or detained by a police officer without a warrant, the police officer has no discretion to refuse bail if the accused is prepared to furnish surety. The proviso to Section 436 allows an officer to discharge an indigent person by executing his bond rather than taking bail from him. The explanation under this provision allows an officer to presume that a person is an indigent when he/she is unable to give bail within a week from the date of his arrest. This provision reflects on the matter that a person should not be detained on the mere ground of not having financial resources. The police officer has no power to refuse to release an accused person even when he has failed to comply with the conditions of the bail. This power is only vested with the courts. The only case where an accused person can be denied bail is when he is unwilling to offer bail or to execute a personal bond.

Let us understand this scenario with an example; Person X is an accused under Section 143 (being member of unlawful assembly) of the IPC which is a bailable offence and is arrested by a police officer. Here the police officer has an obligation u/s 50(2) of CrPC to inform Mr. X of his right to be released on bail and to arrange for sureties. On doing so, Mr. X is entitled to bail.

The other two scenarios are when an accused is brought before the court or he appears before a court on his own, in either of these situations the court has no discretion[11] while granting bail under this section, it cannot impose any other condition except the demanding of security with sureties. The court can not impose any condition (For example – condition not to enter into a particular disputed land or accused should appear before police[12]or police commissioner[13], surrender passport[14], not to participate in public demonstration[15]) on the accused while granting a bail u/s 436. The maximum a court can do is demand a security (bail-bond) with surety. Even so the court can not impose any conditions on the accused but if during any subsequent proceedings it is found that the person has absconded or has broken the conditions of his bail-bond upon which he was released in a bailable case on a previous occasion, the court may then refuse to further grant him any bail.The right to claim bail granted by section 436 is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of section 436 are imperative.[16]

In Monit Malhotra v. State of Rajasthan,[17] It was decided by the Rajasthan High Court that a person who has been released under Section 436 by a police officer need not obtain release on fresh bail and bonds from the court inasmuch as the bail bond submitted before the police officer are for the purpose of appearing before the court. However, keeping in view Section 209 of the CrPC, Allahabad High Court in the case of Haji Mohd Wasism[18] is of the view that fresh bail should be taken from the court as well for bailable offences.

The right to be released on bail can’t be attacked by fixing the amount of bail-bond too high. Section 440(1) provides that such amount can’t be excessive and section 440(2) empowers the Court of Session or High Court to reduce such amount. In Talab Haji Hussain v. Madhukar Purshottam Mondkar[19] the Supreme Court made it clear that:

“We have no doubt that, even in regard to persons accused of bailable offences, if the amount of bail fixed under Section 496 (now section 436) is unreasonably high the accused person can move the High Court or the Court of Sessions for reduction of that amount. Similarly, a person accused of a bailable offence may move the High Court or the Court of Sessions to be released on bail and the High Court or the Court of Sessions may direct either that the amount should be reduced or that the person may be admitted to bail.”

A perfect example of an excessive amount of bail can be seen in the case of Moti Ram[20] where it was held that asking a mason to arrange a surety of Rs 10,000 is excessive. (It should be noted that this is in the year 1978). The Supreme Court decided that Rs 1000 could be a reasonable amount.

There is no specific provision of appeal from an order of refusal under section 436. If bail is refused for bailable offence under Section 436, the accused should move the High Court or Court of Session for regular bail. Such an order of refusal of bail in a bailable offence is an illegal detention. It is an offence under Section 342 of the IPC and is an attack on Fundamental Right of Personal Liberty granted under Article 22 of the Constitution.

Additionally, the inherent powers of the High court u/s 482 are not in any way affected by the provisions of this section. The High Court can, therefore, in a proper case, u/s 482, cancel the bail given to an accused person under this section and re-arrest him[21] or to put it in other words, if any subsequent stage of proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witness or is attempting to abscond, The High Court has inherent power to cause him to be arrested. This power can be invoked in only exceptional circumstances as and when the High Court is satisfied that the ends of justice will be defeated if the above is not done.[22]

VI. BAIL UNDER SECTION 436-A

The Legislature by the CrPC (Amendment) Act, 2005 inserted Section 436-A of the CrPC, being mindful of the large number of under-trial prisoners. According to the Prison Statistics India (2019), published by the National Crime Records Bureau in August 2020, there are 3,30,487 undertrial prisoners (69.05%) out of a total of 4,78,600 prisoners, and the actual capacity of prisons in India is 4,03,739. This indicates that the number of undertrial prisoners is close to the actual capacity of prisons in India. What could be more appalling than this?

Section 436-A serves the twin objective of reduction in the undue delay of justice and of over overcrowding in prisons. It states that the undertrial prisoners who have served more than one-half of their maximum sentence provided for the alleged offence, have the right to bail on his/her personal bond with or without sureties. In such cases the Public Prosecutor should be heard and on recording the reasons the court may order continued detention beyond one half of the said maximum punishment or release him. But in no case can a person be detained beyond the maximum period of imprisonment prescribed for the offence. This provision, however, does not come to the rescue of those undertrials who are facing death sentence. In Bhim Singh v. Union of India[23], it was observed that the Central Government in consultation with the State Governments must take steps in fast tracking all types of criminal cases so that criminal justice is delivered timely and expeditiously. In the same case, in a further Order it was noted that more than 50% of the prisoners in most jails are undertrial prisoners. In spite of incorporation of Section 436-A in the CrPC, undertrial prisoners continue to remain in prisons in violation of the mandate of the said Section. Accordingly, this Court directed the jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge to hold one sitting in a week in each jail/prison for 2 months for effective implementation of Section 436-A. Again, in Re Inhuman Conditions in 1382 Prisons, reference was made to the advisory issued by the Ministry of Home Affairs to all the States for implementation of Section 436-A CrPC stipulating constitution of a review committee in every district under the chairmanship of the District Judge. It was noted that 67% of the prisoners in the jails were undertrial prisoners.

This further brings uncertainty as to whether the provision will come to the rescue of the undertrial prisoners who are detained before 2005, since this amendment does not have a retrospective effect. The Supreme Court taking a progressive, though limited step, in the case of Pramod Kumar Saxena[24] tried to clarify this question. It was held that though section 436-A doesn’t have retrospective effect yet keeping the hard reality in sight, limited relief of grant of bail was granted to the petitioner who had 48 cases against him in 6 states and was languishing in jail for over 10 years. The court observed, “The learned counsel for the respondents are, prima facie, right in submitting that no retrospective effect has been given to the said provision and as such Section 436-A does not directly apply to the facts of the case. In our opinion, however, the hard reality equally important also cannot be lost sight of, the fact that the petitioner is in jail since more than ten years. It would, therefore, be appropriate if limited relief is granted to the petitioner.”

VII. BAIL IN CASE OF NON-BAILABLE OFFENCE.

Section 437 of the CrPC provides when bail can be granted by a court other than the High Court or Court of Session. The introduction to sub-Section (1) states that a person accused of any non-bailable offence may be released on bail, this indicates that bail is not a right here. Section 437 unlike Section 436 is discretionary in nature. But this discretion depends upon various considerations and it cannot be applied in an arbitrary way. Let us understand the circumstances mentioned in Section 437 with the help of the table below.

                        CIRCUMSTANCES           CAN BAIL CAN BE GRANTED?
If the offence is not punishable with death or imprisonment for life.YES
If there are reasonable grounds for believing that the person accused is guilty of an offence punishable with death or imprisonment for life.  NO
If there are no reasonable grounds for believing that the person accused is guilty of an offence punishable with death or imprisonment for life.  YES
If there are reasonable grounds for believing that the person accused is guilty of an offence punishable with death or imprisonment for life but the accused person is under 16 years of age,is a woman or is sick or infirm.    YES
If the accused person has been previously convicted of an offence punishable with death,imprisonment for life or imprisonment for 7 years or more ,or he had been previously convicted on 2 or more occasions of a cognizable offence punishable with imprisonment for 3 years or more but less than 7 years.      NO
If the accused person has been previously convicted of an offence punishable with death,imprisonment for life or imprisonment for 7 years or more ,or he had been previously convicted on 2 or more occasions of a cognizable offence punishable with imprisonment for 3 years or more but less than 7 years but the court is satisfied that it is just and proper to do so for any other special reason.        YES
If there are no reasonable grounds for believing that the accused person has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt.  YES    
If, in any case triable by a Magistrate, the trial of a person accused of a non-bailable offence is not concluded within 60 days from the first date fixed for taking evidence and such person was in custody during this whole period.    YES
If after the conclusion of the trial of a person accused of a non-bailable offence and before judgement is delivered the court is of the opinion that the accused is not guilty of any such offence.   YES  

It should be noted that the objective of detention pending criminal proceedings is not punishment and that the law favours allowance of bail, which is the rule, and refusal is the exception.[25] Such detention should be given only after careful application of judicial discretion. There is not any fixed formula for applying judicial discretion. The object of the detention is, to secure the appearance of the accused to abide the sentence of law and the principal inquiry is, whether a recognizance would affect that end.

To quote Justice V.R. Krishna Iyer in Gudikanti Narasimhulu[26]

“1 “Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion.”

3.“What, then, is “judicial discretion” in this bail context? In the elegant words of Benjamin Cardozo: “The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life”. Wide enough in all conscience is the field of discretion that remains.”

In Chamna Lal[27], the Supreme Court again emphasized that the court whilst dealing with the application of bail is required to exercise its discretion in a judicious manner and not in a matter of course. Finally, “…it is useful to notice the tart terms of Lord Camden that: the discretion of a Judge is the law of tyrants: it is always unknown, it is different in different men; it is casual, and depends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion to which human nature is liable…. ”[28]

Some of the circumstances which can be looked into by the court while considering the question of bail:

  • Whether there is any prima facie or reasonable ground to believe that the accused has committed the offence.
  • The threshold for granting bail should be ‘reasonable ground to believe’ and not evidence.
  • Nature and gravity of the charge.[29]
  • Severity of the punishment in the event of conviction.
  • Danger of the accused absconding or fleeing.
  • character, behaviour, means, position and standing of the accused.
  • Likelihood of the offence being repeated.
  • The danger of witnesses being tampered with.
  • The health, age and sex of the accused.
  • Avoid overcrowding during a pandemic (as seen in COVID-19 case)
  • Interest of the society
  • Opportunity to the applicant for preparation of his defence.

[ This list is not exhaustive and is prepared from the various decisions of the Supreme Court.]

In Kalyan Chandra Sarkar v. Rajesh Ranjan[30] the following was laid down:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 , 2002 SCC (Cri) 688 and Puran v. Rambilas (2001) 6 SCC 338 , 2001 SCC (Cri) 1124.) ”

An interesting question which arises regarding Section 437 is, can a police officer grant bail in case of non-bailable offences? On bare reading of the said section it can be seen that the word ‘officer’ appears in the section a total of three times. The introduction to sub- section (1) talks about ‘officer in charge of a police station’ whereas sub-section (2) uses the words ‘if it appears to such officer or court at any stage of investigation…’, be released on bail, or at the ‘discretion of such officer or court’ and sub-section (4) uses the words ‘an officer or a court releasing any person on bail under sub-section(1) and sub-section(2)…’ The introduction to sub- section indicates that if a person is accused of a non-bailable offence and is arrested by an officer in charge of a police station, sub-section (2) and (4) uses the word such officer. As no other officer except for police officer in charge of a police station is mentioned, this indicates that seb-section (2) and (4) are also talking about police officer in charge of the police station. In addition to this the words used in Form Number 45 attached to the Second Schedule of CrPC use the words ‘bond and bail-bond for attendance before officer in charge of the police station.’ All these things point towards the conclusion that a police officer is also empowered to grant a bail to the accused person in case of a non-bailable offence.

In 1922, Sapru Committee proposed its amendments in the old Code of CrPC (1898).The Select Committee says: ‘What we have done is to allow the court or police officer to release on bail in a non-bailable case unless there appears to be reasonable ground for believing that the accused has been guilty of an offence punishable with death or transportation and as some safeguard against this we have provided for a review by the Sessions Court or the High Court of any order admitting to bail in a non-bailable case.’

To quote R.V. Kelkar in his book ‘Criminal Procedure’[31];‘… he may be released on bail. [Sec 437(1)] The word ‘may’ in the above provision clearly indicates that the police officer or the court has got discretion in granting bail. However, there are certain principles which should guide the police officer and the court in the exercise of this discretion.’

Even Durga Das Basu in his book expresses that the police officer holds this power. He writes: ‘Who may grant a bail for non-bailable offence; 1. Two authorities are empowered to grant bail in non-bailable cases, relating to different stages of investigation: (a)the officer in charge of a police station (b) an inferior court.’

This leads to the conclusion that either these powers of police officer are not widely known and therefore, not used or are known but not used in the fear of abuse of power by police officer.

VIII. ANTICIPATORY BAIL

Section 438 of the CrPC deals with the provision of anticipatory bail. The release of a person on bail prior to his arrest is known as anticipatory bail. Law Commission in its 268th Report[32] stated that, “Anticipatory bail is an extraordinary privilege and it must be granted bearing in mind the guidelines laid down by the Supreme Court. The courts must exercise extreme caution in bestowing this privilege and not grant anticipatory bail in a mechanical or perfunctory manner. Over the years, anticipatory bail has been misused by persons accused of any offence to disrupt the investigation and obstruct the course of justice. Given that the provision is increasingly misused, it is at such times important to remember that the intention of the legislation was to protect the innocent from being unnecessarily subjected to harassment.”

The intention of Section 438 is to confer conditional immunity from the ‘touch’ or ‘confinement’, which is necessary to make an arrest, as mentioned in Section 46(1), CrPC. To take an example, Mr X is accused of an offence and he is anticipating an arrest and he approaches the High Court for grant of anticipatory bail and it is granted by the court after giving due consideration to the facts and circumstances. This bail will come into force only when he is arrested, it is just a deterrence from arrest.

In Siddharam Satlingappa[33] the Supreme Court while clearing the doubts, reiterated the things laid down in Sibbia Case. “This Court in Sibbia case laid down the following principles with regard to anticipatory bail:

(a) Section 438(1) is to be interpreted in the light of Article 21 of the Constitution of India.

(b) Filing of FIR is not a condition precedent to exercise of power under Section 438.

(c) Order under Section 438 would not affect the right of police to conduct investigation.

(d) Conditions mentioned in Section 437 cannot be read into Section 438.         

(e) Although the power to release on anticipatory bail can be described as of an “extraordinary” 

 character this would “not justify the conclusion that the power must be exercised in exceptional cases only”. Powers are discretionary to be exercised in the light of the circumstances of each case.

(f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be

 issued forthwith and question ought to be re-examined after hearing. Such ad interim order must

conform to requirements of the section and suitable conditions should be imposed on the Applicant.”

One of the most debated questions regarding anticipatory bail is the operational time of anticipatory bail. Until when does the protection under anticipatory bail last? The CrPC does not provide for any such operational time. The Supreme Court in the case of Gurbaksh Singh Sibbia[34] observed that it is not necessary that orders passed under Section 438(1) be limited in point of time. However, the Supreme Court left it to the discretion of courts on the facts and circumstances of the case. This lead to great judicial indiscipline and 16 years after the judgement of Gurbaksh Singh Case, a three judge bench in Salauddin Abdulsamad Shaikh[35] held the fort and blanket anticipatory bails were granted which seriously undermined investigations. Finally, in 2011 a two-judge bench in Siddharam Satlingappa Mhetre[36] held the case of Salauddin Abdulsamad Shaikh per incuriam as it was passed without considering the larger bench decision in Gurbaksh Singh Sibbia Case. The Supreme Court in Siddharam Satlingappa Mhetre case held as under:

“107. The Apex Court in Salauddin case held that anticipatory bail should be granted only for a limited period and on the expiry of that duration it should be left to the regular court to deal with the matter is not the correct view. The reason quoted in the said judgment is that anticipatory bail is granted at a stage when an investigation is incomplete and the court is not informed about the nature of evidence against the alleged offender. The said reason would not be right as the restriction is not seen in the enactment and bail orders by the High Court and the Sessions Court are granted under Sections 437 and 439 also at such stages and they are granted till the trial.

108. The views expressed by this Court in all the above referred judgments have to be reviewed and once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.”

Also, the Law Commission in its 268th Report recommended that Anticipatory Bail must not only be granted with caution but must also be made operative for a limited period of time. The authors do not agree with this recommendation of the Law Commission because it is antithetical to the letter and spirit of the constitutional bench in Gurbaksh Singh Case, which has stood the test of time.  Anticipatory Bail should not be treated as some alien procedure, rather it should be treated as part and parcel of the bail family where the only difference is that it can be obtained even when someone is anticipating an arrest. The second recommendation made by the law commission is that any order passed under this section must be accompanied with reasons for rejecting or granting anticipatory bail, given the special position that Section 438 of CrPC enjoys in the Code and the potential for misuse, this recommendation is highly appreciated.

Furthermore, in 2014, a question came up for consideration before the Supreme Court as to whether an application under Article 226 of the Constitution can be made as a substitute for an anticipatory bail?[37] It was held that as in the case of the State of Uttar Pradesh wherein the Section 438 Crpc has been removed under the State Amendment and thus there stands no provision of anticipatory bail in that State. In such a case, it was held that, the High Court could grant pre-arrest relief, where not granting such relief would lead to gross miscarriage of justice. However, the Supreme Court has cautioned that this power should be exercised in an appropriate manner and only in a few deserving cases so as the vast power under Article 226 are not exercised liberally to bring back Section 438 by back door.

IX. DEFAULT BAIL

Article 22(2) of our Constitution states that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest and that no person shall be detained in custody beyond that period without the authority of the Magistrate.

Section 57 of CrPC provides that without warrant a person arrested cannot be detained for more than 24 hours.

Section 167 of the CrPC provides for situations when investigation cannot be completed within 24 hours. In such a situation a person who is arrested and detained in custody , and it appears that the investigation cannot be completed within the period of 24 hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded ,then such a person is to be transmitted to nearest Judicial Magistrate with a copy of the entries in the diary and his detention can be extended from time to time for a period not exceeding 15 days. The Magistrate may authorise detention of the accused person, otherwise than in the custody of the police, beyond a period of 15 days if he is satisfied that adequate grounds exists for doing so. Magistrate can authorise the detention of the accused person in custody for a total period not exceeding- (i) 90 days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years. (ii) 60 days, where the investigation relates to any other offence. On the expiry of the said period of 90 and 60 days, the accused shall be released on bail if he is prepared to and does furnish bail.

This type of bail is called Default Bail and is an indefeasible right of the accused person. The Supreme Court in Rakesh Kumar Paul[38] while discussing the significance of 60 and 90 days, held that: “17. The significance of the period of 60 days or 90 days, as the case may be, is that if the investigation is not completed within that period then the accused (assuming he or she is in custody) is entitled to ‘default bail’ if no charge sheet or challan is filed on the 60 or 90 day, the accused applies for ‘default bail’ and is prepared to and does furnish bail for release…”

In the case of Sanjay Dutt[39], the Constitutional bench held that this indefeasible right is enforceable only up to the filing of a charge sheet or challan and does not survive after the charge-sheet or challan is filed in the Court.

In Uday Mohanlal Acharya[40] case, the Supreme Court held that, “If the accused is unable to furnish the bail as directed by the Magistrate, then on a conjoint reading of Explanation I and the proviso to sub-section (2) of Section 167, the continued custody of the accused even beyond the specified period in para (a) will not be unauthorized, and therefore, if during that period the investigation is complete and the charge-sheet is filed then the so-called indefeasible right of the accused would stand extinguished..”

Default Bail is not merely a statutory right but it is a part of the procedure established by law under Article 21 of the Constitution of India. 

Recently, two important observations were made by the Supreme Court on the notion of default bail, first, a three-judge bench of the Supreme Court in Bikramjit Singh v. State of Punjab[41], while dealing with a UAPA case wherein the accused was denied a plea for default bail, held:

“We must not forget that we are dealing with the personal liberty of an accused under a statute which imposes drastic punishments. The right to default bail, as has been correctly held by the judgements of this Court, are not mere statutory rights under the first proviso to Section 167(2) of the Code, but is part of the procedure established by law under Article 21 of the Constitution of India, which is, therefore, a fundamental right granted to an accused person to be released on bail once the conditions of the first proviso to Section 167(2) are fulfilled.” Then, an important question “Can a condition to deposit money be imposed while granting Default Bail?” was answered by the Court in Saravanan v. State through Inspector[42], while considering a petition against the decision of the Madras High Court where an accused was directed to deposit a sum of Rs 8 lakhs as a condition for granting Default Bail. The Court held, “Imposing such a condition while releasing the accused on default bail/statutory bail would frustrate the very object and purpose of default bail under Section 167(2).”

X. SPECIAL POWERS OF HIGH COURT OR COURT OF SESSION

By the power vested in Section 439, Crpc, the High Court or Court of Session have an unfettered discretion to admit an accused person to bail. Factors to be taken into consideration for the grant of bail under this section are substantially the same as those u/s 438. The only difference is that u/s 438, the person approaches the court before he is arrested whereas u/s 439, he approaches the court after he is arrested[43].

XI. CONCLUSION (SUGGESTIVE REMARKS)

In the last few decades, the societal contexts, its relations, changing patterns of crimes, arbitrariness in exercising judicial discretion while granting bail have been a compelling reason to examine the issue of bail and to chart a roadmap for further reform.[44]

A country’s criminal system is known to be ideal when the right balance is struck between the rights of both parties. But instead there has been a recent trend of arbitrariness in exercising discretion by the Courts which has led to a serious roadblock in achieving the ends of justice. The arbitrariness of the courts in interpreting the provision has been exemplified by the fact that over 69% of the total prisoners are undertrials. This adds to the menace of pre-trial detention where the accused is detained for several years only to be found not guilty in the end. Then there’s also the issue of 437A which even holds back acquitted persons.

To state some more examples: media trials, cases involving high profile individuals wherein bail is granted without considering the enormity of the case. It has become, if one may dare to say a norm in India, for the rich and influential to go scot free by obtaining a bail promptly whereas the poor/ the mass rot and languish in jails. Thus, in the opinion of the author the courts in India must take precaution in ensuring that this power of discretion does not ultimately defeat its very own purpose.

While the bail laws in India have been tried to be refined in many ways through developments in law, a great deal remains to be accomplished. The courts in India tend to reject the bail application in non-bailable offences. The law relating to bail which was introduced to ensure personal freedom became a constraint on the same. The direct consequence of denial of bail and insisting on preventive mechanism is overcrowding in prisons, custodial deaths, custodial torture, inhumane conditions, increased burden on the State exchequer and many more. Moreover, the stigmatisation that is attached with putting someone in prison even for one day has far greater consequences on personal life and liberty. We should also take into account the effect that prisons have on under-trials. Prisons are terrible places where novices become hardened criminals. They are definitely not meant for under-trials; then how can they be put behind the bars just to satisfy the public sentiments.

Contrary to many foreign dominions, India does not have a uniform legislation on Bail, rather the provisions for the same are found in various special laws. For example, NDPS, UAPA, etc. All have different provisions to grant bail. In fact, the Ministry of Law and Justice had even asked the Law commission of India to ponder and reflect upon the need for a uniform bail act in India like in the UK and other countries. However, it was decided later that there was no need for a standalone Bail Act and rather the idea to reform the existing statutes was suggested. Accordingly, this article seeks to recommend for the reconstruction of a few provisions so that the rationale behind providing such a measure which fails mostly can be reconciled with the public interest and an effective balance can be sought between the rights of both i.e. accused and the society. Here are some of the suggestive measures:

  1. The viability and need for a special bail act should again be considered extensively.
  2. There is a need to maintain the consistency between the term of imprisonment for offences and their classification as Bailable and Non-Bailable.
  3. A designated Triple Test should be designed for granting bail in non-bailable cases, the triplets should include conditions to secure fair trial, conditions to secure the liberty of the accused and conditions to secure the security of the society at large.
  4. Clarification should be made by the legislature with respect to the time period of operation of anticipatory bail and this should be done in accordance with the judgement laid down by the Hon’ble Supreme court in Gurbaksh Singh Sibbia Case which has stood the test of the time.
  5. The use of electronic tagging and monitoring should be tested, e.g. GPS enabled anklets. This measure would ensure full supervision, control and surveillance whilst also minimizing overcrowding in jails. This measure has seen tremendous success in western countries such as the US, New Zealand and has also been recommended by the 268th Law Commission.
  6. Sensitizing lower judiciary can prove to be a success. The magistracy or the courts of sessions are the place of original trial in criminal cases, and hence also the first institution, for the accused to approach and pray for bail. Therefore, it is necessary to sensitise these courts towards the liberty of people.
  7. Police should be made more aware about the objectives of the law and fundamental principles enshrined in our constitution. It is often found that the police is insensitive towards these things.
  8. There should be a provision of disciplinary action for non-observation of guiding principles laid down by the Supreme Court of India, by the magistracy or Court of Sessions.
  9. Pre-trial risk assessment; in words of the Commission, “Risk assessment constitutes a subset of risk management – the act of balancing the possible risks posed by the defendant and his/her constitutional rights”. This procedure may help save substantial police and Court time.
  10. The Commission recommends modification of Sections 436 and 436A of CrPC. It suggests that the language of the section be made clear and unambiguous to communicate that the bail under this section should not be trumped by imposing excessive or unfair sureties.
  11. 437-A: Section 437A of the CrPC provides that before conclusion of the trial and disposal of the appeal, the court trying the offence or the Appellate Court, shall require the accused person to execute bail bonds with sureties, to appear before the higher court as and when notice in respect of any appeal or petition filed against the judgment.

This section poses a problem as it does not let a person to be released even after he/she is found innocent unless they furnish a bail bond, with sureties. Adv.  Ajay Verma, a prison activist in an interview with The Hindu said that Section 437A needs a rethinking as even after suggestions from the Law Commission, this provision is still adding to overcrowding as person remains in jail even after acquittal.[45]

  1. The authors would like to emphasize on the need to examine the Kenyan model of bail in the Indian context. The Kenyan law is premised upon the prosecution having to prove ‘compelling reasons’ to deny bail to an accused including even those charged for heinous crimes. The positive light here being that the Kenyan law does not provide for detention based only on ‘the probability of the accused having committed the crime.’ This standard will help save the burial of the ‘presumption of innocence’ as it so happens in various cases and instead will help bring a more refined balance of interest between the rights of the accused against those of the State and society at large.
  2. Role of Media: When faced with a case where there are serious allegations, one finds that conversations are usually on the line of “How can you release murderers/ rapists/ drug-dealers/ robbers/etc. out on bail?” What most people ignore at this stage is that, there are only mere allegations uptill now and there doesn’t exist any proof of guilt. There is a need to strictly confine media regarding media- trials, crime reporting by media nowadays is seen to get out of hand when media houses try to play the role of judiciary. These things change public perception and can lead to pre-formation of minds even of the judges regarding a particular accused.

For a reasonably long time, Bail has been considered as a Rule and Jail an exception in the Indian criminal justice system but such are the times now wherein the courts have somewhat diminished this principle. The authors vide this article have sought to comprehensively explain the provisions of bail as dealt in the CrPC while also tracing the existing loopholes in our bail jurisprudence. The authors advocate for a few bail reforms by relying on the 268th Report of the Law Commission and the changing outlook of the society.


[1]Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SSC 281.

[2] https://www.etymonline.com/search?q=bail (last accessed on 15th September 2020).

[3] Halsbury’s Laws of England, Vol II para 166 (4th Edn., 1998).

[4] Law Commission of India, “268th Report on Amendments to Criminal Procedure Code,1973 – Provisions Relating to Bail” (page 22) (May,2017)

[5] Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023.

[6] Moti Ram v. State of Madhya Pradesh, AIR 1978 1594.

[7] Anwar Hussain v. State of Orissa Opposite Party, (1994) SCC ONLINE ORI 327.

[8] AK Gopalan v. State of Madras, AIR 1950 SC 27.

[9] R.V. Kelkar, Criminal Procedure 291 (Eastern Book Company, Lucknow, 6th Edn. ,2018)

[10] Tablab Haji Hussain v Madhukar Purshottam Mondkar, AIR 1958 SC 376.

[11] Rasiklal v. Kishore Khanchand Wadhwani, AIR 2009 SC 1341.

[12] Mir Hasim Ali v. Emperor, AIR 1918 Bom 254.

[13] TN Jayadeesh Devidas v. State of Kerala, 1980 Cr. LJ 906.

[14] Azeez v. State of Kerala, 1984(2) Crimes 413 (Ker).

[15] Public Prosecutor v. Raghuramaiah, 1958 Cr LJ 737.

[16] Rasiklal v. Kishore Khanchand Wadhwani, AIR 2009 SC 1341.

[17] Monit Malhotra v. State of Rajasthan, 1991 Cri LJ 806(Raj).

[18] Haji Mohd Wasim v. State of UP, 1992 Cri LJ 1299(All).

[19] Supra note 10 at 5.

[20] Supra note 6 at 3.

[21] Madhukar v Talab Haji Hussain, AIR 1958 Bom 406.

[22] Ratilal v Asst. Collector of Customs, AIR 1967 SC 1639.

[23] Bhim Singh v. Union of India, (2015) 13 SCC 603.

[24] Pramod Kumar Saxena v. UOI, (2008) 9 SCC 685.

[25] Rao Harnarain Singh v. State, 1958 Cri LJ 563.

[26] Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240.

[27] Chamna Lal v. State of UP, (2004) 7 SCC 525.

[28] Supra note 26 at 11.

[29] Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598.

[30] Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528.

[31] Supra note 9 at 5.

[32] Law Commission of India, “268th Report on Amendments to the Code of Criminal Procedure,1973-Provisions relating to bail” (May, 2017).

[33] Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694.

[34] Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565.

[35] Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667.

[36] Supra note 33 at 15.

[37] Hema Mishra v. State of U.P., (2014) 4 SCC 453.

[38] Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 6.

[39] Sanjay Dutt v. State, (1994) 5 SCC 410.

[40] Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 SCC 453.

[41] Bikramjit Singh v. State of Punjab, (2020) SCC OnLine SC 824.

[42] Saravanan v. State through Inspector, AIR 2020 SC 775.

[43] Devidas Raghu Naik v. State of Maharashtra, 1989 CrLJ 252 (Bom).

[44] Law Commission of India, “268th Report on Amendments to Criminal Procedure Code,1973 – Provisions     Relating to Bail” (May, 2017)

[45] Soibam Rocky Singh, “Inconsistencies in bail system”, The Hindu, Feb 25, 2019.

Author: Radhika Jalan

Editor: Kanishka VaishSenior Editor, LexLife India.

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