3.

Bail or no Bail during Investigation by the Police

a) Concept of Bail:
The concept of bail has a long history and deep roots in English and American laws. In Medieval
England, the custom grew out of the need to free untried prisoners from disease ridden jails while they
were waiting for the delayed trials conducted by travelling justices. Prisoners were bailed or delivered to
reputable third parties of their own choice who accepted responsibility for assuring their appearance at the
trial. If the accused did not appear at the trial, his bailor or surety was accountable and would stand in the
trial in his place. Eventually, it became the practice in England; the property owners accepted
responsibility for accused persons and forfeited money when the accused persons failed to appear for trial.
Thus, developed the practice of posing a money bond through a commercial bondsman who received a
cash premium for his service and eventually demanded some collateral as well. In the event of nonappearance of accused persons, the bond was forfeited after a grace period of a number of days during
which the bondsman may produce the accused in court. In American Jurisprudence, the power is vested in
the court to release the defendant without bail or on his own recognizance or personal bond. Here, bail in
popular sense meant a generic expression used to describe judicial release from custodia juris.
The concept of bail in England has been traced back to the system of frank pledges adopted in
England following Norman Conquest, wherein the community as a whole was required to pledge its
property as a security for the appearance of the accused at the trial. But this concept of community
responsibility eventually dissolved by replacement of some third party responsibility and thus, there still
remained the capacity of the accused to remain in freedom pending trial by giving security. Thus, under
the English Common Law, a system of interim release of an accused person on surety was prevalent and
surety was bound to produce the accused to attend his trial on the date appointed for his trial. If the
accused failed to appear as stipulated, the surety himself had to face trial in his place. But later this was
subsequently replaced by the issue of forfeiture bond of surety and imposition of penalty upon the surety
for the failure to bring the accused to trial on the appointed date of trial.
Thereafter, with the advent of British rule in India, the common law rule of bail was introduced in
India and was statutorily recognized in the CrPC, 1861 and was followed in CrPC, 1872 and 1898. The
Law Commission of India in its 41st Report on CrPC has sought to streamline the law of bail in the
changed context of independent India guaranteeing personal freedom as one of the fundamental rights of
the citizens of India. The Law Commission recommended streamlining the procedural aspects of bail
keeping in view that the administrators of law and justice have mandate to function in a manner so that
the constitutional equilibrium between the freedom of individuals and interests of social order are
maintained effectively.
The Law Commission also recognized bail: as a matter of right if the offence is bailable;
as a matter of discretion if the offence is non-bailable;

not to be granted, if the offence is punishable with death or imprisonment for life but the court has
discretion in limited cases, wherein the accused is a woman, or a minor under the age of 16 years, or a
sick or infirm person, order release him on bail in respect of those offences also;
It also opined that even in respect of offences punishable with death or imprisonment for life, the Sessions
1
Judge or the High Court should have wider discretion in granting bail.
Thus, on the basis of the report of Law Commission, the CrPC, 1973 was enacted and in Sections 436,
437 and 439 of Chapter-XXXIII, the provisions of bail have been streamlined to strike a balance between
the personal freedom of the individual detained and the interests of the public at large.
However, the principal aim of bail is the removal of restrictive and punitive consequences of pretrial detention of an accused. This assurance is gathered in the form of bail-bonds or surety so that the
accused person remains available for the trial. The duty of the court in granting or rejecting bail is to
check whether the accused would be available for trial; he should not temper with the evidence and also
that there is no possibility of his jumping out the bail. The mechanism of bail is thus meant for
manoeuvring a best arrangement for custodial control of the accused in the system. Bail is a matter of
right for safe keeping of the accused to answer a charge. In order to implement this right, the custody of
the accused is delivered either to the accused himself or to a surety or to the State, but in each case the
accused is to be assured of the beneficial enjoyment of regulated freedom. 2 The question of what to do
with an accused person between his arrest and judgment, poses a severe conflict for any system of
criminal law. The accuseds pre-trial imprisonment means imposition of what amounts to punishment
before determination of his guilt, disruption of his family and employment, obstacle in preparing his
defence etc. On the contrary, conditional release pending investigation or trial, however, affords the
opportunity to the accused to flee, to engage in criminal activity or to thwart trial process by intimidating
witnesses or by destroying evidence. To avoid pre-trial detention, Kautilya Arthasatra also advocated for
speedy trial of the accused.
3

But Lord Boys in Emperor v. Hutchinson (popularly known as Meerut Conspiracy Case)
observed that the object of keeping an accused person in detention during trial is not punishment. The
only legitimate purpose to be served is to prevent repetition of the offence with which he is charged where
there is apparent danger of such repetition and to secure his attendance at the trial. Mukherji J. in his
concurring judgment upheld the saying that grant of bail is the rule and refusal is the exception. An
accused person is presumed under the law to be innocent till his guilt is proved. It goes without saying
that an accused person if he enjoys freedom, will be in a much better position to look after his case and to
properly defend himself than if he was in custody because of the fact that personal liberty is fundamental
and can be circumscribed only by some process sanctioned by law.
Liberty of a citizen is undoubtedly important but this is to balance 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. It must result in minimum interference with the personal liberty of the accused and the
right of the police to investigate the case. It has to balance two conflicting demands, namely, on one hand,
1

Law Commission of India, 41st Report, September 24, 1969, Vol. I, p.311.
Pandey, D. C., Release on Bail: Law and Practice, 1986, p.20.
3
AIR 1931 All 356.
2

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.4
The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in
the administration of justice and the concept of bail emerges from the conflict between the police power
to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in
favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on
the assumption of his guilt.

b) Object and Meaning of Bail:

Personal liberty is undoubtedly a precious right. It is also one of the most valuable fundamental rights as
guaranteed by the Constitution of India. The object of arrest and detention of the accused person is
primarily to secure his appearance at the time of trial and to ensure that in case he is found guilty, he is
available to receive the sentence. If his presence at the trial could reasonably be ensured otherwise than by
his arrest and detention, it would be unjust and unfair to deprive the accused of his liberty during the
pendency of the criminal proceedings against him. If release on bail is denied to the accused, it would
mean that though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he would
be subjected to the psychological and physical deprivations of jail life. The accused lodged in jail loses
his job and is prevented from contributing effectively for the preparation of his defence. Equally
important is that, the burden of his detention falls heavily on the innocent members of his family. Where
there are no risks involved in the release of such accused person, it would be cruel and inhumane to deny
him bail.
The law of bails has to unite two conflicting demands, namely on one hand, the requirements of the
society for being shielded from the hazards of being exposed to the misadventures of accused person; and
on the other, the fundamental canon of criminal jurisprudence viz. the presumption of innocence of an
accused till he is found guilty. Bail blends the two apparently conflicting claims - the freedom of
individual and the interest of justice. The provisions of bail restore the liberty of the arrested person
without jeopardizing the objectives of arrest. Therefore, the general rule is bail not jail. The basic rule
is to release him on bail unless there are circumstances suggesting the possibility of his fleeing from
justice or thwarting the curse of justice. 5
In order to subserve the above-said objectives, the legislature has given some precise directions for
granting or not granting bail. Bail can be granted in anticipation of arrest which would amount to an
insurance against police custody for the offence(s) in respect of which the order is issued. Bail is one of
the cherished rights, claims or privileges of an accused person. It is one of the most dignified institutions
in any civilized society in which human values, such as faith and trust, take precedence over everything
else. The release on bail is crucial to the accused person. The jailed accused, subjected to the

4
5

A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

State of Rajasthan v. Balchand, AIR 1977 SC 2447.

psychological and physical deprivations of jail life, loses his job and is prevented from contributing
effectively to the preparation of his defence.
The term bail has not been defined in the CrPC, 1973. It is derived from old French verb baillier
which meant to give or to deliver. According to the Concise Oxford English Dictionary, bail means
temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is
6
lodged to guarantee his appearance in court. According to Blacks Law Dictionary, bail means to
procure the release of a person from legal custody, by undertaking that he shall appear at the time and
place designated and submit himself to the jurisdiction and judgment of the court. It is to set at liberty a
person arrested or imprisoned, on security being taken for his appearance on a day and a certain place as
fixed by the concerned court, whose security is called bail because the party arrested or imprisoned is
delivered into the hands of those who bind themselves.
The word bail is used both as a verb and a noun under the CrPC, 1973. As a verb, it means to deliver an
arrested person to his sureties upon their giving security for his appearance, at the time and place
designated to submit to the jurisdiction and the judgment of the court. As a noun, bail is the person in
whose custody the arrested person is placed when released from jail and who acts as surety for arrested
persons appearance in court. Thus, it is a process to set a person free who is under arrest or detention by
taking security for his appearance. It is a security taken from a person accused of an offence to appear on
7
a day fixed by the court.
The literal meaning of bail means procurement or release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to legal authority.
Websters 7th New Judicial Dictionary defines bail as a security given for due appearance of a prisoner in
order to obtain his release from imprisonment, on giving which, he is released pending trial or
8
9
investigation. Whartons Law Lexicon dictionary provides bail to mean to set at liberty a person
arrested or imprisoned, on security being taken for his appearance on a date at a certain place, during
investigation or trial. According to Blacks Law Dictionary, what is contemplated by bail is to procure the
release of a person from legal custody, by undertaking that he/she shall appear at the time and place
designated and submit him/herself to the jurisdiction and judgment of the court.10
There is no definition of bail in CrPC, 1973, although the terms bailable offence and non-bailable
offence have been defined in Section 2 (a) CrPC, 1973.11 The First Schedule to CrPC provides for
classification of IPC offences into bailable and non-bailable. However, it can be generally stated that all
serious offences, i.e., offences punishable with imprisonment for three years or more have been
considered as non-bailable offences. But the basic difference between the two is that in respect of former

Soanes Catherine and Stevenson Angus, Concise Oxford English Dictionary, 11th edition, Oxford University Press.
Moti Ram v. State of MP, AIR 1978 SC 1594.
8
http://www.merriam-webster.com/concise/bail; last visited on 01/01/2014; time 11 am (IST); place: Meerut, Uttar
Pradesh, India.
9
Wharton, John Jane Smith, Law Lexicon Dictionary,7th ed. 20th Sept., 2006.
10
Garner, Bryan A., Blacks Law Dictionary, 9th ed. 2009.
11
Section 2 (a) CrPC, 1973: 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 enforce, and non-bailable offence means any other
offence.
7

there is a right of the accused to be released and in respect of the latter, it is the discretion of the court
whether to grant bail or not.
The CrPC, 1973 has classified all offences into bailable and non-bailable offences. The distinction
between them is as follows:
(i)
Bailable offence means an offence which is shown as bailable in the First Schedule of CrPC,
1973, or which is made bailable by any other law for the time being in force. On the other hand, nonbailable offences mean any other offence. 12
(ii)
Generally, serious offences, i.e., offences punishable with imprisonment for 3 years or more, have
been considered as non-bailable offences, while, petty offences are classified as bailable offences.
13

(iii)
A person accused of a bailable offence has a right to be released on bail. But if the offence is
non-bailable that does not mean that the person accused of such offence shall not be released on bail, but
here in such a case bail is not a matter of right, but only a privilege to be granted at the discretion of the
court.
(iv) The classification of offences into bailable and non-bailable has been devised for making a
threshold decision as to whether the accused should be released on bail.
14

In Vaman Narain Ghiya v. State of Rajasthan the Supreme Court observed that a person accused of
bailable offence is entitled to be released on bail pending the trial and the police officer or the court has
no discretion in the matter except to release the accused on bail when produced before them, if the
accused is prepared at any time while in custody of such police officer or at any stage of the proceeding
before the court to give bail. The court also has no discretion while granting bail under Section 436, CrPC
to impose any condition except the demand for security by the sureties. The sureties do not guarantee the
payment of any sum of money by the person who is released on bail but guarantees the attendance of that
person. They however, promise by the bond to pay a certain sum of money if the principal does not
appear at the appointed time and place in terms of the bond. Thus, bail is basically release from restraint,
more particularly from the custody of the police. The former SC Judge V R Krishna Iyer also remarked
that bail is the right of every accused and in all cases where charge-sheet is complete, investigation is
complete, then it is the right of the accused to get bail because in the eyes of criminal jurisprudence, every
man is innocent till proved guilty. 15 Justice Krishna Iyer viewed bail as a fundamental right and not just
an untidy gift from the judge deciding a bail application and if bail is denied, good amount of reasons
should exist for the same because personal liberty is denied when bail is refused.

12

13

Section 2 (a) CrPC, 1973

Section 50 (2), CrPC, 1973 makes it obligatory for a police officer arresting such a person to inform him of his
right to be released on bail.
14
(2009) 2 SCC 281.
15
Former SC Judge V R Krishna Iyers views positively quoted by General Secretary Digvijay Singh while referring
to Suresh Kalmadis case on 19th January, 2012 in connection with the scam surrounding the 2010 Common Wealth
Games.

The Supreme Court in State of Rajasthan v. Balchand16 has also upheld this basic rule and held that bail
should be refused only in cases where there are circumstances suggestive of fleeing from justice or
thwarting the course of justice or creating utter troubles in the shape of repeating offences or intimidating
witnesses. It was also observed that refusal of bail is a restriction on the personal liberty of the individual
guaranteed under Article 21 of the Constitution.
The above-mentioned rule was taken into account by the Delhi High Court which granted bail to Suresh
Kalmadi, MP and former chief of the Commonwealth Games Organizing Committee on 19 th January,
2012, who was accused in a corruption case related to the 2010 Commonwealth Games. The High Court
allowed bail to Kalmadi on a personal bond of Rs 5 lakh and surety of the like amount. He was arrested
on 26 April, 2011 for his alleged role in awarding a contract for installing the Timing-Scoring-Result
system to Swiss Times Omega at an exorbitant cost of Rs 141 crore, allegedly causing a loss of more than
Rs 95 crore to the public exchequer. The Central Bureau of Investigation (CBI) opposed the bail of the
accused. He moved the HC for bail on the observation of the SC in the 2G case that bail should be the
rule and jail an exception. In June last year, the trial court rejected Mr Kalmadis bail application, after
which he approached the HC. The accused individual and two companies in the case were charged under
various Sections of IPC for cheating, criminal conspiracy and forgery, and also under the Prevention of
Corruption Act.
If the presence of the accused could reasonably be ensured at the trial without arresting or detaining him,
then it would be unjust and unfair to deprive the accused of his liberty during the pendency of the
17
criminal proceedings against him. In Hussainara Khatoon v. State of Bihar the SC cautioned about the
pre-trial detention and opined that it should not be encouraged, nor even the pre-trial release on sureties is
encouragable, but if the court is satisfied that after taking into consideration that the accused has his roots
in the community and is not likely to abscond, he can safely be released on his personal bond. The issue
of utmost importance here is one of personal liberty of the accused as enshrined under Article 21,
Constitution of India, along with justice and burden on public exchequer, all of which insist upon the fact
that bail under the criminal justice system is integral to a socially sensitized judicial process. The release
of the accused on bail is crucial to him and accused is presumed to be innocent till the guilt is proved
beyond the reasonable doubt. He would be unnecessarily subjected to psychological and physical terror of
jail life, as was realized in the case of Kanimozhi in 2011, wherein she was arrested on 20th May, 2011 on
charges of being associated with the 2G spectrum scam on the basis of a report submitted by
Income Tax Department and was lodged in Tihar Jail after her repeated bail pleas were rejected. She
was finally granted bail on November 28, 2011 by Delhi HC after spending 188 days in judicial custody
on the directions of SC.18
Kanimozhi was accused of helping former Telecom Minister A. Raja accept Rs 214 crore kickbacks from
a company which was allegedly shown undue favour by him and, therefore, A. Raja was also arrested on
2-2-2011 being involved in the said scandal. She was facing charges ranging from criminal conspiracy to
criminal breach of trust, forgery to accepting bribe and abetting bribery under IPC and also under
16

AIR 1977 SC 2447.

AIR 1979 SC 1360.
18
Kanimozhi Karunanithi v. Central Bureau of Investigation, Bail Application No. 723/2011, decided on 8 June,
2011 (Delhi High Court).
17

Prevention of Corruption Act. When she was denied bail by the Special CBI court, she approached the
Delhi HC and stated that keeping her in custody for some more days would be a violation of her
fundamental rights. The Special CBI Judge O. P. Saini, who was handling the trial for telecom scam said
that her lawyers erred in suggesting that as a woman she was entitled legally to leniency; her privileged
background and her status as an MP did not make her an average woman prisoner; also that the offence
attributed to her was grave and the possibility of influencing the witnesses could not be ruled out. She
appealed for bail citing that she is a woman and mother of a young boy. But it was rejected considering
the reasons that she belongs to upper echelons of society and enormity of the crime committed which is
likely to affect the economy of the country. Judge O.P. Saini also observed that by no stretch of

imagination she could be said to be suffering from any discrimination on the ground of being a
woman and also that if a person knows that even after misappropriating huge funds, an accused
person could come out on bail, after spending a few months in jail, and thereafter he could
continue to enjoy the ill-gotten wealth obtained by illegal means, that would only encourage
many others to commit similar crimes in the belief that even if they had to spend a few months in
jail, they could lead lavish and comfortable lives thereafter, utilizing the public funds acquired by
them. In fact, no one would mind luxurious living for her and her family, even if it came at the
cost of spending a few months in jail. Judge Saini thus, tried to send a strong message to the
white-collared criminals and those who were waiting that in the long run, it did not pay to be on
the wrong side of the law. She and other accused persons moved the Delhi HC in the wake of the SC
order granting bail to five corporate executives, co-accused in 2G case on the ground of parity and it was
also the first instance when they were granted bail in the said case. But the Delhi HC on June 8, 2011

dismissed her bail plea after observing that she and her allies had strong political connections
and the possibility of them influencing the witnesses could not be ruled out. Thereafter, she
approached the SC for grant of bail. On June 20, 2011, the Division Bench of SC comprising of
Justice G.S. Singhvi and B.S. Chauhan rejected her bail plea observing that she could move for
bail after the framing of charges by the trial court which is hearing the 2G case. The CBI also
filed an affidavit in the apex court opposing her bail plea on the ground that if released, she could
tamper with evidence and influence the witnesses. The CBI contended that investigation into the
present case was at an advanced stage and it would not be proper for the apex court to grant bail
to the accused.
However, on November 28, 2011, Kanimozhi was granted bail by the Delhi HC in the said case. The HC
order stated that it had never been the case of the prosecuting agency that the petitioners were likely to
flee from the process of law. Almost all the accused persons in the said case had roots in the society.
Therefore, the Delhi HC found no chance of their fleeing from the process of law. The HC also disagreed
with Judge Saini who had said that because of her privileged background, she could not claim her gender
as a ground for bail. Therefore, where there are no risks involved in the release of the arrested person, it
would be cruel and unjust to deny him bail and in such a case the right of the accused for the grant of bail
under CrPC, 1973 arises.

c) Right to bail if investigations are not completed within statutorily prescribed number of days:

Sometimes, the accused acquires a statutory right of bail mainly on account of negligence or default of
investigating officer. Such a right of bail is commonly known as default bail. Under this heading,
circumstances leading to default bail along with other provisions of bail are chronologically discussed.
Whenever any person is arrested and detained in custody and it appears that the investigation cannot be
completed within the period of 24 hours of arrest as fixed under Section 57, CrPC, 1973, and there are
grounds for believing that the accusation or information is well-founded, the officer-in-charge of the
police station or the investigating officer, shall forthwith transmit a copy of the entries in the case diary to
the nearest Judicial Magistrate, and shall at the same time forward the accused to such Magistrate. 19 Such
magistrate may from time to time authorize the detention of the accused person in such custody as such
magistrate thinks fit, for a term not exceeding 15 days in the whole. The magistrate has full freedom to
order detention in any custody (eg., police or judicial or jail or asylum etc.) as he thinks fit. But detention
in police custody should not be allowed as a matter of course but only in special circumstances. The
period of 15 days begin to run immediately after the accused is brought before the Magistrate. The nature
of custody can be altered from judicial to police and vice-versa; but after 15 days, the accused can only be
kept in judicial custody or any other custody as ordered by the Magistrate, but not the custody of the
police.20
If the Judicial Magistrate is satisfied that further detention of the accused person becomes necessary for
the completion of investigation, he may authorize for the same. Such detention shall not exceed:
90 days where the investigation relates to an offence punishable with death, imprisonment for life or
imprisonment for a term of 10 years or more, and
60 days where the investigation relates to any other offence.
On the expiry of 90 or 60 days, as the case may be, the accused person shall be released on bail if he is
prepared to and does furnish bail and every person so released on bail shall be deemed to be released
under the provisions of Chapter XXXIII, CrPC, 1973.21 This provision is applicable irrespective of the
fact that the offence of which the detained person is accused of is non-bailable or the case is such that bail
cannot be granted according to the provisions of Chapter XXXIII, CrPC dealing with bail and bailbonds. The SC in Matabar Parinda v. State of Orissa22 observed that if it is not possible to complete the
investigation within 60 or 90 days, as the case may be, then even in serious and ghastly crimes, the
accused will be entitled to release on bail. This right conferred on an accused is considered to be an
absolute right, subject of course to the cancellation of bail. The main object of such a provision is to put
pressure on the investigating agency to complete the investigation expeditiously and within a reasonable
time.
However, Explanation I to Section 167 (2) makes it clear that notwithstanding the above-mentioned
period of 90 or 60 days, the accused shall be detained in custody so long as he does not furnish bail. The
prescribed period of 90 or 60 days has to be computed from the date of detention as per orders of the
Magistrate and not from the date of arrest by the police unless the Magistrate authorizes detention on the
19

Section 167 (1), CrPC, 1973.

CBI v. Anupam Kulkarni, (1992) 3 SCC 141.
21
Section 167 (2) proviso (a), CrPC, 1973.
22
(1975) 2 SCC 220.
20

very date of arrest of the accused. The day of arrest of the accused and the day on which he was
remanded, if different, both have to be excluded. Thus, the period of limitation under section 167 (2) is to
be counted from the next day of the arrest, as was laid down by the SC in the case of CBI v. Nasir Ahmad
Sheikh.23 In the case of State of MP v. Rustum24 the apex court explained that clear 90 days have to be
expired before the accused persons right to bail begins. In this case, the accused was sent to judicial
custody on 3-9-93 and challan/charge-sheet was submitted by the police on 2-12-93. The accused claimed
compulsive bail and the High Court granted it. But the SC held that the High Court erred in the matter of
computation of the period of 90 days, as in computing that period, one of the days on either side, ie., 4-993 and 1-12-93, has to be excluded as required under Section 9 and 10 of General Clauses Act. In other
words, the date on which the accused was remanded and the date on which his remand was due, had to be
excluded. Keeping this view in mind, the challan was filed within 90 days and hence, there was no
question of granting bail by default.
On the question of the accused persons right to be released on bail for the failure of the prosecution in
filing the charge-sheet within the maximum time limit allowed by Section 167 (2) proviso (a), there is a
conflict of opinion among the various High Courts. The Bombay HC has held that if the charge-sheet is
filed after the expiry of the statutory period, the accused does not continue to enjoy the right of being
released on bail under the said provision, if there was no order releasing him on bail prior to the filling of
the charge-sheet. Thus, the right accrued to the accused can be exercised under the said proviso only
25
before the charge-sheet is filed.
The Allahabad HC has however, held that the right of the accused to be released on bail if the chargesheet is not filed within the prescribed period is absolute and cannot be defeated on subsequent filing of
the charge-sheet. In default of non-filing of the charge-sheet within the prescribed period, the Magistrate
should pass an order releasing the accused on bail, whether an application for bail is moved or not moved
by the accused and should call upon the accused to furnish bail bonds.26 On the other hand, the Karnataka
HC held that where the charge-sheet was filed within 90 days, but the Magistrate had not passed an order
taking cognizance of the offence within that period, the accused was not entitled to seek bail under
Section 167 (2) proviso (a).27 On this point, the SC has also opined that if the accused person fails to
exercise his right to be released on bail, he cannot afterwards contend that he has an indefeasible right to
exercise it any time, notwithstanding the fact that in the meantime the charge-sheet is filed. But if he
exercises the right within time allowed by law and is released on bail under such circumstances, he cannot
be re-arrested on the mere filing of the charge-sheet. 28
It must be noted here that once the bail is granted under Section 167, CrPC, 1973, the provisions of
Chapter XXXIII, CrPC are made applicable for subsequent dealing with bail matters. For instance, the
court can cancel the bail under Section 437 (5) as if the bail was originally granted under Chapter
XXXIII. This legal fiction may enable the court to exercise judicial discretion in cancelling the bail in
granting of which it had no discretion whatsoever. In a case if it is found that the person released on bail
23

1996 CrLJ 1876 (SC).

1995 SCC (Cri) 830.
25
Baburao Raghu Patil v. State, 1994 CrLJ 192 (Bombay HC).
26
Dharamanand v. State, 1994 CrLJ 730 (Allahabad HC).
27
Dorai v. State, 1994 CrLJ 2987 (Karnataka HC).
28
Bipin Shantilal Panchal v. State of Gujarat, 1996 CrLJ 1652 (SC).
24

under the mandatory provision of Section 167 (2) proviso (a), is misusing his freedom by tampering with
the prosecution witnesses or by attempting to flee from justice by absconding, the bail may rightly be
cancelled in view of this legal fiction.
In Sanjay Dutt v. State through CBI, Bombay29 the SC was of the view that the indefeasible right of the
accused to be released on bail in accordance with Section 20 (4) (bb), Terrorist and Disruptive Activities
(Prevention) Act, 1987 read with Section 167 (2), CrPC in default of filing of the charge sheet within the
time allowed was a right which insured to and was enforceable by the accused only from the time of
default till the charge sheet was filed. This right did not survive or remained enforceable after the charge
sheet was filed.
In Directorate of Enforcement v. Deepak Mahajan30 the SC held that a person accused of an
offence under FERA or Customs Act shall be entitled to remand under Section 167 (2), CrPC. The
Magistrate can take the accused into custody on his being satisfied of three preliminary conditions,
namely, (a) the arresting officer is legally competent to make the arrest; (b) that the particulars of the
arrest or the accusation for which the person is arrested or other grounds for such arrests do exist and are
well founded; and (c) that the provisions of any special law in regard to the arrest of the person and the
31
production of the arrestee serves the purpose of Section 167 (1).
The scheme of Section 167 is intended to protect the accused from an unscrupulous police officer. The
main object is to see that persons arrested by the police are brought before the magistrate with the least
possible delay so that the magistrate could decide whether the person produced should further be kept in
police custody and also to allow the accused person to make such representations as he may wish to
make. 32 The entire object of Section 167, however, is to facilitate investigation and not detention without
trial. The idea is to prevent disappearance of material evidence and to prevent vexatious and belated
prosecutions, clearly in consonance with the concept of fairness of trial enshrined in Article 21 of the
Constitution of India.33

d) Trial not concluded within 60 days:

If, in any case triable by a magistrate, the trial of a person accused of any non-bailable offence is not
concluded within a period of 60 days from the first date fixed for taking evidence in the case, such person
shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the
magistrate, unless for reasons to be recorded in writing the magistrate otherwise directs. 34 This provision
has been enacted in order to avoid hardship to the accused persons in non-bailable cases where the
proceedings are prolonged unreasonably beyond a certain period, i.e., beyond 60 days. 35 In the case of

29

(1994) 5 SCC 410.

(1994) 3 SCC 440.
31
S. W. Nade v. State, 1994 CrLJ 780 (Bombay HC).
32
Chadayam Makki v. State, 1980 CrLJ 1195 (Kerala HC).
33
Y. Krishnappa v. State, 1993 CrLJ 3646 (Madras HC).
34
Section 437 (6), CrPC, 1973.
35
Law Commission of India, 41st Report, September 24, 1969, Vol. I, para 39.4, p.316.
30

Uday Mohanlal Acharya v. State36 it was held that after the expiry of period of 60 days for filing challan
the accused filed an application for being released on bail and was prepared to furnish bail. However, the
Magistrate rejected it on an erroneous interpretation. In the meanwhile the charge-sheet was submitted.
The SC held that the indefeasible right of accused being released on bail does not extinguish by
subsequent filing of charge-sheet. The accused can be said to have availed of his right to be released on
bail on the date he filed application for being released and offers to furnish bail.
Once the charge-sheet is filed after the completion of the investigation, the remand comes to an
end and consequently the provisions of Section 167 (2) proviso (a) cease to operate. In such a case, the
court will have to consider the grant or refusal of the bail. Section 167 (2) proviso (a) is applicable
irrespective of the fact that the offence with which the detained person is accused of is non-bailable or the
case is such that the bail cannot be granted according to the provisions of Chapter-XXXIII of CrPC, 1973.
But once the bail is granted under this provision, the provisions of Chapter-XXXIII have to be made
applicable for subsequent dealings with bail matters such as cancellation of bail, etc. Therefore, bail under
Section 167 (2) has the same incidents as the bail granted under Chapter-XXXIII. Thus, a bail granted
under Section 167 (2) could be cancelled by the court under Section 437, if it comes to the conclusion that
there are sufficient grounds that the accused has committed a non-bailable offence and that it is necessary
that he should be arrested and committed to custody. An order for the release of accused on bail is not an
order on merits but an order-on-default, i.e., default/defect of the prosecution in not filing the chargesheet in time and this order could be rectified for special reasons after the defect is cured. However, the
accused cannot claim any special right to remain on bail. If the investigation reveals that the accused has
committed a serious offence and charge-sheet is filed, the bail granted under Section 167 (2) proviso (a)
could be cancelled.
In cases where the investigations cannot be completed within 24 hours and no Judicial Magistrate
is available, then according to Section 167 (2A), the arrested person can be produced before an Executive
Magistrate who may order the detention of the accused person in custody for a term not exceeding 7 days
in aggregate.37 The proviso to Section 167 (2A) provides that before the expiry of the said period of 7
days, the Executive Magistrate is required to transmit to the nearest Judicial Magistrate, the records of the
case together with a copy of the entries in the case diary. The section further lays down that if the period
of detention so authorized expires and no further detention of the accused person is authorized by the
competent Judicial Magistrate, the accused person shall be released on bail. Where an order for further
detention is made, the period during which the accused person was detained in custody under the orders
made by an Executive Magistrate under this sub-section, shall be taken into account in computing the
period specified in Section 167 (2) proviso (a).
Section 167 sub-sections (5) and (6) have been introduced by the legislature with a view to see
that there is no unnecessary delay in investigation. An inordinate delay encroaches upon the right to
speedy trial of the accused person. Section 167 (5) lays down that if in any case triable by a Magistrate as
a summons case, and the investigation is not concluded within the period of 6 months from the date on
which the accused was arrested, the Magistrate shall make an order stopping further investigation of the
offences unless the officer making the investigation satisfies the Magistrate that for special reasons and in
36
37

2001 CrLJ 1832 (SC).

Section 167 (2-A), CrPC, 1973, inserted by 1978 Amendment Act, w.e.f. 18-12-1978.

the interests of justice the continuation of the investigation is necessary. Such a time schedule is to
commence either from the date of arrest or the date when he made his appearance in the court and not
from the date of first information. Thus, the duties casted by Section 167 (5) on the court and the police
officer are independent of each other. Therefore, the police officer making the investigation has normally
to move the court for an order permitting continuation of the investigation beyond the period of 6 months
before the Magistrate discharges his duty of stopping the proceedings which comes only after the expiry
of 6 months. However, it does not seem to follow that if application is moved beyond the period of 6
months but before the order of stopping the investigation has been passed by the Magistrate, the
Magistrate has no jurisdiction to deal with such a request of the prosecution. The failure on the part of the
court to stop the investigation on the expiry of 6 months will not ipso facto be deemed to be an implied
permission by the court to the investigating officer to continue the investigation as such a continuation
could be permitted by the court only for special reasons and in the interests of justice.
The Honble Judges of the SC have also shared their views on this point holding that the order
stopping further investigation into the offence and the consequential order of discharge are not intended to
be automatic sequel of the failure to complete the investigation within the period prescribed. The time
schedule provided under Section 167 (5) are not to be treated with rigidity and it is not mandatory that on
expiry of the period indicated therein, the Magistrate should necessarily pass the order of discharge. The
Magistrate at that stage must look into the record of investigation to ascertain the progress of the same
and if substantial part of it was by then over, he should seriously ponder over the question whether it
would be conducive in the interest of justice to stop further investigation and discharge the accused. 38
The bar under Section 167 (5) is for investigation and not for the court taking cognizance of the
case. The mere fact of the investigation having being continued beyond a period of 6 months without the
permission of the Magistrate does not automatically nullify the continuance of the trial. The only result in
such a case would be that the Magistrate will only look into the material which has been collected within
a period of 6 months and will ignore the other material and then decide whether to take cognizance or not.
The limitation period under Section 167 (5) does not bar the filing of the charge-sheet beyond the period
of 6 months. The Magistrate also cannot refuse to take cognizance of the case on the basis of the chargesheet duly filed merely on the ground that the investigation was not completed within the period of 6
months. Thus, an investigation beyond the period of 6 months may not necessarily vitiate the
proceedings. Non-stopping of investigation would be only a curable error. However, if Section 167 (5)
has been violated, the evidence collected beyond the period of 6 months may be rendered inadmissible, as
was opined by the Himachal Pradesh HC in the case of State v. Rahmat Ali.39
On the other hand, Section 167 (6) lays down that if the Magistrate orders the investigation to be
stopped under Section 167 (5), but the Sessions Judge is satisfied, on the application made to him or
otherwise, that further investigation into the offence ought to be made, he may vacate the order made by
the Magistrate and direct further investigation to be made into the offence subject to such directions with
regard to bail and other matters as he may specify. Thus, the upper limit of 6 months for the completion of
the investigation can, on the satisfaction of the Magistrate or the Sessions Judge, be extended, though,
only in exceptional cases.
38
39

Nirmal Kanti Roy v. State of West Bengal, 1998 CrLJ 3282 (SC).
2000 CrLJ 675 (Himachal Pradesh HC).

e) No Arrest No Bail:
The problem of bail arises only if the accused person is arrested by the police or if there is
reasonable apprehension of his arrest. However, if there is no situation of arrest, there is no need
to file a bail application. Section 41, CrPC, 1973 deals with the situation when a police officer
may without an order from a Magistrate and without a warrant, arrest any person in the situations
enumerated in clauses (a) to (i) of sub-section (1) of Section 41. However, clauses (a) and (b) of
sub-section (1) of Section 41, CrPC, 1973 were substituted by CrPC (Amendment) Act, 2008.
According to substituted clause (a) and (b), any police officer may without an order from a
Magistrate and without a warrant, arrest any person
who commits a cognizable officer in the presence of a police officer;
against whom a reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists that he has committed a cognizable offence punishable with
imprisonment for a term which may be less than 7 years or which may extend to 7 years,
whether with or without fine, if the following conditions are satisfied, namely: (i) the police officer has reason to believe on the basis of such complaint, information, or
suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary
(a) to prevent such person from committing an further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering
with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court
or to the police officer; or
(e) as unless such person is arrested, his presence in the court whenever required cannot be
ensured,
and the police officer shall record while making such arrest his reasons in writing.
A plain reading of above-mentioned S.41 and its clauses clearly show that in abovemention circumstances, if the police officer is going to arrest an accused person, he shall record
his reasons in writing.

A proviso was inserted after Section 41 (1) (b) by CrPC (Amendment) Act, 2010, w.e.f.
2-11-2010, which mandates that a police officer shall, in all cases where the arrest of a person is
not required under the provisions of this sub-section, record the reasons in writing for not making
arrest. It is submitted that if the police officer decides not to arrest an accused person, then such
accused person is absolved from the problem of arrest and bail.
A new Section 41-A was added in CrPC by CrPC (Amendment) Act, 2008, which says that the
police officer may (now shall40), in all cases where arrest of a person is not required under the
provisions of Section 41 (1), issue a notice directing the accused person to appear before him or
at such other place as may be specified in the notice. Where such a notice is issued to any person,
it shall be the duty of that person to comply with the terms of the notice. Where such person
complies and continues to comply with the notice, he shall not be arrested in respect of the
offence referred to in the notice unless, for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested. But if such accused person, at any time fails to comply with
the terms of the notice, it shall be lawful for the police officer to arrest him for the offence
mentioned in the notice, subject to such orders as may have been passed in this behalf by a
competent court. However, this last condition of failing to comply with the notice and
consequent arrest of the accused person has been deleted by CrPC (Amendment) Act, 2010.
Aforesaid discussion shows that if an accused person is not arrested in a cognizable offence
punishable with imprisonment upto 7 years, he will have no need to apply for bail.

f) In What Cases Bail may be given [Section 436, CrPC, 1973]

Where there are no reasonable grounds to believe that the accused was involved in the commission of a
non-bailable offence, the accused shall be released on bail under Section 436(1). As soon as it appears
that the accused person, who is arrested/detained without warrant by an officer-in-charge of a police
station, is prepared to give bail, the police officer or the court is bound to release him. It would even be
open to the officer or the court to discharge such person on executing his bond without sureties instead of
41
taking bail from him. Section 436 is an imperative or mandatory provision. Under it, the Magistrate is
bound to release the person on bail or recognizance, as it means release of a person from legal custody.
The power to grant bail vests in the court before whom an accused appears. The expression court means
the court which has power to take cognizance of the concerned case. The power of the Magistrate to grant
bail does not depend upon his competence to try the case but on the punishment prescribed for the said
offence. 42 An Executive Magistrate has no jurisdiction to grant bail except in respect of offences
punishable with fine or imprisonment up to three months. When the accused is released on bail by the
police, the Magistrate does not have the jurisdiction to order the furnishing of fresh bail bonds. 43 An order
refusing bail is not a final order and, therefore, bail may be refused at one stage, but may be granted at a
40

CrPC (Amendment) Act, 2010, w.e.f. 2-11-2010.

Section 436 (1) First Proviso, CrPC, 1973.
42
Aftab Ahmad v. State, 1990 CrLJ 1636 (Allahabad HC)
43
Monit Malhotra v. State, 1991 CrLJ 806 (Rajasthan HC)
41

later stage in the same proceedings. It can even be rescinded or modified or cancelled at any stage. When
there was successive bail applications filed, a fresh bail application under fresh conditions was held to
be maintainable by the Delhi High Court in the case of Rajendra Singh Sethia v. State.44
In the case of Moti Ram v. State of M.P.45 it was held that the bail can be made impossible by requiring
the petitioner to execute sureties in the sum much beyond what he can manage. Here the ordinary labourer
was asked to pay a sum of Rs. 10,000 and the magistrate refused to accept surety-ship of the petitioner's
brother because he and his assets were in another district. The Supreme Court held it to be a wrong
decision by reasoning that what a person of one State would do if arrested in other State? Section 440
(1) specially provides that the amount of every such bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive.
The court cannot impose any condition in a bail order under Section 436. The only exception to this rule
is stated in sub-section (2). It provides that a person who absconds or has broken the condition of his bailbond (e.g. failed to appear before the court on the date fixed) when he was released on bail in a bailable
case on a previous occasion, shall not, as of right, be entitled to bail when brought before the court on any
subsequent date even though the offence may be bailable. Further, the court can call upon any person
bound by such bond to pay the penalty thereof under Section 446.

g) Grant of Bail in cases where Non-Bailable Offences are committed

[Section 437, CrPC, 1973]
When any person accused of or suspected of the commission of any non-bailable offence is arrested or
detained/or appears or is brought before a court (other than the High Court/Court of Session), he may be
released on bail, but:
(i)
such person shall not be so released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or life-imprisonment;
(ii)
such person shall not be so released if such offence is a cognizable offence and he had been
previously convicted of an offence punishable with death, life-imprisonment or imprisonment for 7 years
or more, or he had been previously convicted on two more occasions of a non-bailable and cognizable
offence. 46
The above provisions are subject to the following provisos (exceptions):

44
45
46

1988 CrLJ 749 (Delhi HC)

AIR 1978 SC 1594

Section 437(1), CrPC, 1973

First - The court may direct that any person under the age of 16 years or any woman or any sick or infirm
person accused of such an offence be released on bail. The proviso applies to both clauses (i) and (ii).
Second - The court may direct that a person (habitual offender) referred to in clause (ii) be released on
bail if it is satisfied that it is just and proper so to do for any other special reason.
Third - The mere fact that an accused person may be required for being identified by witnesses during
investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be
released on bail.
Section 437 was thereafter substantially amended by the 1980 amendment which laid down that any
officer or court releasing any person on bail in case of non-bailable offence is required to record in
writing his/its reasons or special reasons for doing so. This requirement would enable the High Court or
Court of Session to see whether the discretion in the matter of bail was properly exercised.47 The
Supreme Court has pointed out that the courts exercising bail jurisdiction should refrain from giving
elaborate reasons in their orders for justifying the grant or refusal of bail. But this does not constitute a
48
glaring defect. When an accused surrenders in the court and applies for bail, the subordinate courts have
jurisdiction to release him on personal bond, pending disposal of his bail application. This should be
particularly so in the cases of women and children. The bail applications should also be decided as
expeditiously as possible. 49
Grant of Bail with Conditions: - The power to impose conditions can only be exercised:
(i)

where the offence is punishable with imprisonment (7 years or more),

(ii)
where the offence is an 'offence against the State', 'offence against the human body', or 'offence
against property' (I.P.C.),
(iii)
where the offence is one of the abetment of or conspiracy to, or attempt to commit any such
offence as mentioned in (i) and (ii).
The court may impose any condition which the court considers necessary in order to ensure that such
person shall attend in accordance with the conditions of the bond, or in order to ensure that such person
shall not repeat the offence, or otherwise in the interests of justice. 50

Discretion in granting Bail in Non-Bailable Offences:

Bail can only be a matter of discretion of the court if the offence is non-bailable. When any person
accused of or suspected of the commission of any non-bailable offence is arrested/detained or brought

47

Section 437 (4), CrPC, 1973

Kashi Nath Roy v. State of Bihar, AIR 1996 SC 3240
49
Issma v. State, 1993 CrLJ 2432 (Allahabad HC)
50
Section 437 (3), CrPC, 1973
48

before the court, he may be released on bail. 51 The word "may" in the above provisions 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 and the courts in the exercise of this
discretion. It should be noted at the outset that the law favours the allowance of bail, which is the rule,
and refusal is the exception. Further, the scope of the discretion depends upon various considerations - (i)
the scope of the discretion varies in inverse proportion to the gravity of crime. As the gravity of offence
increase, the discretion to release the offender on bail gets narrowed down; (ii) as between the police and
judicial officers, wider discretion to grant bail has been given to judicial officers; (iii) a High Court or a
Court of Session has far wider discretion than that given to other courts and judicial officers.
Principles/Guidelines to be kept in mind while granting Bail:
(i)
Nature and gravity of charge - If the accused is suspect of having committed the offence of
murder, conspiracy against the State, the court will reject the bail application.
(ii)
Severity of punishment which the conviction will entail - The accused faced with a grim prospect
of being convicted may be tempted to jump bail if he is released on bail and thus thwart the course of
justice.
(iii)

The danger of the accused person's absconding if he is released.

(iv)
The danger of witnesses being tampered with - If the accused belongs to a wealthy class or is a
man of status, he is in a position to cause obstruction in the way of the prosecution by pressurizing the
witnesses and by tampering with the evidence. He may be able to purchase the prosecution witnesses.
In Gurcharan Singh v. State,52 the appellants were suspended senior police officers who were accused of
the offence of murdering a notorious dacoit. They were released on bail by the trial court. The High
Court, however, cancelled their bail, as it felt that if they were released, there would be every likelihood
that they will not spare any chance of tampering with the evidence of the prosecution or pressurizing the
witnesses who belonged to humble class or had been working under these persons. The Supreme Court
also agreed with the High Court's decision.
The Supreme Court observed that in considering the question of bail of an accused person in a nonbailable offence punishable with death or life-imprisonment, it is necessary for the court to consider
whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant
factors. The two paramount considerations are likelihood of accused fleeing from justice and his
tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice. It is
essential that due and proper weight should be bestowed on these two factors apart from others.
(v)

The position and status of the accused with reference to the victim and the witness.

In Rao Harnarian Singh case, the court observed that the bad character of a man does not disentitle him
from being bailed out if the law allows, and on the other hand, the social position or status of an accused

51
52

Section 437 (1), CrPC, 1973

AIR 1978 SC 179.

should not be taken into consideration while granting bail merely because the accused is a respectable
person and is able to produce reasonable security.
(vi)
Health, age and sex of the accused - If the accused is a female or a male under 16 years of age, or
a sick, or infirm person, the bail is usually granted.
Bail must be given where the accused was below 16 years of age, unless the court has reasonable ground
to believe that his release was likely to bring him in association with any known criminal or expose him
to moral danger or his release would defeat the ends of justice. 53
(vii)
Prevention of offence being repeated - If the accused is a notorious criminal, there is every
likelihood that if he is released on bail, there will be repetition of the same or similar offences. Thus, the
previous convictions and the criminal record of the accused have to be taken into account.
(viii) Protracted nature of the trial - The accused has a right to claim speedy trial and if there is
unreasonable delay in the trial, such an accused may be released on bail rather than be allowed to languish
in jail (vide Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369). However,
delayed trial per se is not a valid ground for grant of bail and it all depends on the circumstances of each
case, as was held in the case of Mohd. Mian v. State.54
55

In Mool Chand v. State bail was refused by the apex court to an unauthorized dealer illegally dealing in
foreign exchange, commonly known as Hawala transaction and who have been instrumental in
transferring huge sums to militants in Jammu and Kashmir for use in terrorist activities, although there
was every likelihood that completion of investigation may take a long time. Bail was refused having
regard to seriousness of allegations against the accused.
(ix)

Opportunity to the applicant for preparation of his defence and access to his counsel.

(x)
Nature of the evidence in support of accusation/ nature and gravity of the circumstance in which
the offence is committed.
If a person is accused with the offences both of a bailable and non-bailable nature, the question of bail
should be considered in relation to the gravest offence i.e. non-bailable offence. Suppose a person kidnaps
a minor girl for the purpose of procuration, and wrongfully confines her at a certain place, then such a
person would be guilty of having committed three distinct offences - under Sec. 342, IPC (wrongful
confinement, a bailable offence), under Sec. 365, IPC (kidnapping with the intention of secretly and
wrongfully confining), and, under Sec. 366-A, IPC (procuration of minor girl). In such cases, the question
of bail should be considered in relation to the gravest of the three i.e. the last two offences which are nonbailable. The person accused of these offences may not be granted bail. The rationale behind it is that a
person accused of a non-bailable offence, may in order to claim bail, further commit a bailable offence.

53

Guddu v. State, 1990 CrLJ 1531 (Allahabad HC)

1993 CrLJ 2621 (Allahabad HC)
55
AIR 1992 SC 1618
54