THE RIGHT TO BAIL UNDER INDIAN CRIMINAL LAWS

In words of Krishna Iyer J. on the subject of bail:..... Belongs to the blurred area of criminal justice system and largely hinges on the hunch of
the bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court
prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice,
public safety and burden of public treasury all of which insist that a developed jurisprudence of
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bail is integral to a socially sensitized judicial process ."

The release on bail is crucial to the accused as the consequences of pre-trial detention are
extremely harsh and unforgiving. If right of bail is denied to the accessed it would mean that
though he is presumed to be innocent till the guilt is proved beyond the reasonable doubt yet he
would be subjected to the psychological and physical deprivation of jail life. Anyone who has
been to jail loses his job and becomes a social outcast.
Bail pending trial is a compulsory measure adopted by the Criminal Procedure Code (hereinafter
referred as code), 1973. It is one of the cherished rights, claims or privileges of the accused
person. The object of arrest and detention of the accused person is primarily to secure his
appearance at the time of his trial and to ensure that in case he is found guilty he is available to
receive the sentence. The laws of bail has to dovetail 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 other hand, the fundamental canon of criminal
jurisprudence viz. the presumption of innocence of an accused till he is found guilty. The, Bail
provisions blends the two conflicting claims- of individual freedom and interests of justice.

Gudikanti Narasimhulu v. Public Prosecutor, AIR 1978 SC 430.

Electronic copy available at: http://ssrn.com/abstract=1437977

The provisions of the bail restore the liberty of the accused person without jeopardizing the objective of
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the 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
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court of justice .
Bail has not been defined under the Criminal Procedure Code, 1973. It has been defined in the
Law Lexicon as security for the appearance of the accused person, on giving, he is released
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pending trial or investigation . The Code has classified all offences into two categories:

Bailable Offences- An offence which is given as bailable in the First Schedule or which is made
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bailable by any other law for the time being in force .

Non-bailable Offence- Any other offence falls under this category

BAILABLE OFFENCES

Where there are no reasonable grounds to believe that the accused is involved in the commission
of the non- bailable offence, the accused shall be released on bail under section 436 (1).This is an
imperative or mandatory provision. Under it, the Magistrate is bound to release the person on
bail. The power to grant bail vests in the Court before whom an accused appears and is brought
however, the same does not depend upon his competence to try the case but on the punishment
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prescribed for the offence .

The same position of law has been upheld by the Supreme Court in a number of judgments, such as State of

Madhya Pradesh v. Kajad, (2001)7 SCC 673; Intelligence Officer, Narcotics Beureu v. Sambhu Sonkar and Anr.,
(2001)1 SCR 821
3

State of Rajasthan v. Balchand, AIR 1977 SC 2447

Blacks Law Dictionary, 4th Edn., page 177

Section 2 (a) and Section 436, Criminal Procedure Code, 1973

Section 437 , Criminal Procedure Code, 1973

Aftab Ahmad v. State, 1990 CrLJ 1636 (All).

Electronic copy available at: http://ssrn.com/abstract=1437977

It has been held in plethora of cases with regards to non-bailable offences that when a person is charged
with commission of a bailable offence, he gets an absolute right of being enlarged on bail as soon as he
shows his willingness to give bail and the Court cannot impose any condition while enlarging an accused
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on bail in a case where bailable offence is alleged .An order refusing bail is not a final order. This

is so bail may be refused at one stage, but may be granted at later stage in the same proceedings,
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it can even be rescinded, modified or cancelled at any stage .

The right to be released on bail cannot be nullified indirectly by fixing too high the amount of
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bond or bail-bond to be furnished by the person seeking release . Provisions of the Code, as
well as various judgments specially provides that the amount of every such bond shall be fixed
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with due regard to the circumstances of the case and shall not be excessive , otherwise the same
would amount to unreasonable. 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), which provides that a
person who absconds or has broken the condition of his bail-bond, 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.
OTHER MANDATORY BAIL PROVISIONS
1. Right to be released on bail if investigations are not completed within the prescribed
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number of days - Where the accused has completed 60 or 90 days in detention and there
is no formal charge-sheet framed against them, the court is under constitutional and
procedural mandate to ask the detenu if he desires to be released on bail and if he can
furnish bail, he must be released on bail forthwith. This provision is applicable
irrespective of the fact that the offence of which he is accused of is bailable or a non-

Sultan Kamruddin Dharani v. Union of India, (2008)110BOMLR3273

Vasu AIR 1975 Ker 15

10

Moti Ram v. State of M.P, AIR 1978 SC 1594

11

Section 440 (1), Criminal Procedure Code, 1973

12

Section 167(2), proviso, Criminal Procedure Code, 1973

bailable offence. However the bail may be cancelled by the Court 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. This is what this Court
observed in Raghubir Singh v. State of Bihar

13

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2. Trial not concluded within 60 days - If, in any case triable by a magistrate, the trial of
the 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.
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3. Release on bail after conclusion of trial but before the judgment is delivered - If, at any
time before the conclusion of the trial of the person accused of a non-bailable offence and
before the judgment is delivered, the court is of the opinion that there are reasonable
grounds for believing that the accused is not guilty of any such offence, it shall release
the accused.

NON-BAILABLE OFFENCES
Section 437 of the Code provides for release on bail in cases of non-bailable offences. In such
cases, bail is not a matter of right. Any officer or court releasing any person on bail in a case of
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non-bailable offence is required to record in writing his/its reasons for doing so . Court has
sufficient discretion to deny or to grant bail. First Schedule to the Code provides the list of
bailable and non-bailable offenses. Further cases often arise under S. 437, where though the court
regards the case as fit for the grant of bail; it regards imposition of certain conditions as
necessary in the circumstances. To meet this need sub-section (3) of S. 437 provides that when a
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( 1986 ) 4 SCC 481; AIR 1987 SC 149

14

Section 437 (6), Criminal Procedure Code, 1973

15

Section 437 (7), Criminal Procedure Code, 1973

16

Kashi Nath Roy v. State of Bihar, AIR 1996 SC 3240

person accused or suspected of the commission of an offense punishable with imprisonment which may
extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the
Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to commit, any such offense, is
released on bail under sub-section (1), the Court may impose any condition which the Court considers
necessary: -

i. In order to ensure that such person shall attend in accordance with the conditions of the
bond executed under this Chapter, or
ii. In order to ensure that such person shall not commit an offence similar to the offence of
which he is accused or of the commission of which he is suspected, or
iii. Otherwise in the interests of Justice.
It will be noticed that: 1. The power to impose conditions has been given to the court and not to any police officer
2. The power to impose conditions can only be exercised
(I)

Where the offence is punishable with the imprisonment which may extend to
seven years or more or

(AI)

Where the offence is one under Chapter VI (Offences against the State),
Chapter XVI (offences against the human body), or Chapter XVII (offences
against the property) of I.P.C, or

(BI)

Where the offence is one of the abetment of or conspiracy to or attempt to

commit any such offence as mentioned above in (i) and (ii).

Criminal courts today, are extremely unsatisfactory and need a drastic change. In the first place it
is virtually impossible to translate risk of non- appearance by the accused into precise monetary
terms and even its basic premise that risk of financial loss is necessary to prevent the accused

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from fleeing is of doubtful validity .Various bail projects in the United States such as Manhattan
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Bail Project and D. C. Bail Project show that even without monetary bail it is possible to
secure the presence of the accused at the trial in quite a large number of cases. The Hon'ble
Supreme Court has laid down following guidelines
concerning the bail of the accused:

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that should be taken into account

1. The length of his residence in the community,

2. His employment status, history and his financial condition,
3. His family ties and relationships,
4. His reputation, character and monetary condition,
5. His prior criminal record including any record or prior release on recognizance or on
bail,
6. The identity of responsible members of the community who would vouch for
his reliability.
If the court is satisfied on a consideration of the relevant factors that the accused has his ties in
the community and there is no substantial risk of non-appearance, the accused may, as far as
possible, be released on his personal bond.
Of course, if facts are brought to the notice of the court which go to show that having regard to
the condition and background of the accused his previous record and the nature and
circumstances of the offense, there may be a substantial risk of his non-appearance at the trial, as
for example, where the accused is a notorious bad character or confirmed criminal or the offense
is serious (these examples are only by way of illustration), the court may not release the accused
on his personal bond and may insist on bail with sureties. But in the majority of cases,
considerations like family ties and relationship, roots in the community, employment status etc.
may prevail with the court in releasing the accused on his personal bond and particularly in cases

17

Mohd. Tariq v. Union of India, 1990 CrLJ 474

18

http://www.vera.org/content/manhattan-bail-project-official-court-transcripts-october-1961-june-1962

19

Rao Harnam Singh v. State , AIR 1958 Punj 123; Gurcharan Singh v. State, AIR 1978 SC 179

where the offense is not grave and the accused is poor or belongs to a weaker section of the community,
release on personal bond could, as far as possible, be preferred.

RECENT AMENDMENTS- Section 436A- Maximum period for which an under trial prisoner
can be detained
The new provision Section 436A was introduced in order to solve the problems of undertrials
who were languishing in jails as they will now be given an opportunity to be set free instead of
endlessly waiting for their trial to take place. This provides a makeshift arrangement of providing
justice and relief to undertrials prisoners. For this purpose section 436 A has been inserted to the
Code.
According to section, a person who has undergone detention for a period extending up to half of
the maximum period of imprisonment imposed for a particular offense, shall be released on
her/his personal bond with or without sureties. The procedure provided is that the Court has to
hear the Public Prosecutor and give its decision with reasons in writing. The Court may release
the applicant, or if not satisfied may order for the continued detention of the applicant. However,
no prisoner can be detained for a period longer than the maximum period of imprisonment
provided. The exception to the section is that it is not applicable to offenders who have been
sentenced to death.
However, it should be noted that the provision itself gives discretion to the Court to set the
prisoner free or to make him/her continue imprisonment. There is no mention of any applications
having to be filed under the section. The first part of the section states that any prisoner who has
served more than half the term of his/her imprisonment 'shall' be released. However, the proviso
puts a restriction on the mandatory provision by giving discretionary powers to the courts. This
raises questions regarding the implementation of the provision. There is every chance that a
prisoner may be sent back to jail to serve a period longer than the half term of his/her sentence.
Till the Judges give their written reasons for the same, one will not know on what grounds a
continuation of the term can be ordered as the section does not provide any guidelines.

SPECIAL POWERS OF THE HIGH COURT/SESSION COURT

Special powers have been given under section 429 of the Criminal Procedure Code to the High
Court and the Sessions Court to release an accused person on bail, but that discretion has to be
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exercised judicially . In cases where a person is accused of an offence punishable with life
imprisonment, the high court or the Sessions court, before granting bail to the accused, has to
give notice of the application for bail to the public prosecutor. That would be necessary unless
for reasons to be recorded in writing, the court finds it to be not practicable to give such notice.
where the offence is non-bailable, the court has to decide the question of grant of bail in the light
of such considerations as the nature and seriousness of the offence, character of the evidence,
circumstances which are peculiar to the accused, a reasonable possibility of presence of the
accused not being secured during the trial, reasonable apprehension of evidence including the
witness being tampered with, the larger interest of public or the state and other similar
considerations.
While considering the question of bail, it must be remembered that the bail pertains to the law of
procedure. It should not be used to punish an accused person because the purpose of the bail is
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merely to secure his presence during the trial . The test is to be applied with reference to the
following considerations amongst others: the nature of the accusation; the nature of the evidence
in support of the accusation; the severity of the punishment which conviction will entail; the
character of the sureties and the character and the behavior of the accused. The trial court and the
high court are equally empowered to cancel the bail of an accused person, if sufficient grounds
are made out for such cancellation.

ANTICIPATORY BAIL PROVISIONS

There is a provision of anticipatory bail under section 438 of the Code. The difference between
ordinary bail and anticipatory bail is that whereas the former is granted after arrest, the latter is
given in anticipation of arrest. The power to grant this bail rests only in High court and Sessions

20

Public Prosecutor v. George Williams, AIR 1951 Mad 1042

21

Aslam Baba Lal Desai v. State of Maharashtra, AIR 1993 SC 1

court. The person seeking it must satisfy the court of genuine apprehension of his arrest. It cannot be
claimed as a matter of right

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.While granting bail, the court may also impose such conditions and

give directions as it deems fit. Once granted bail, the accused cannot be arrested till he exhausts
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his right to appeal in the matter . This provision provides an effective check against the abuse
and arbitrary power of arrest. In the landmark case of Gurbaksh Singh Sibbia v. State of Punjab,
the Hon'ble Supreme Court has laid down various principles in this regard which are as follows:
1. The discretion granted upon the High Court/ Session Court is very wide and that the
limitations imposed in Section 437 are not relevant here. However the discretion granted
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is to exercised with care and circumspection .

2. Specific events and facts must be laid before the Court by the Accused in order to get an
anticipatory bail
3. The Court while granting bail may impose restrictions so as to balance out an individuals
right and investigational rights (Section 438 (2))
4. Although it is possible to pass an ex-parte order in this regard however, the court should
try and give prosecution a chance to present their side
5. It should be kept in mind that such an order is no blanket cover.
6. The section does not require filing of the case as a condition precedent for invoking the
said section
7. It is only applicable before the stage of arrest of the accused
8. Such a bail order is effective till the conclusion of the trial
9. The Court granting the bail is empowered to even cancel the bail on reasonable
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grounds .

22

State of M.P v. R.K. Balothia, AIR 1995 SC 1198

23

Directorate of Enforcement v. P.V.Prabhakar Rao, (1997) 9 SCC 187

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State (CBI) v. Anil Sharma , (1997) 9 SCC 187

10. Various considerations such seriousness of charges, reasonable apprehension to evidence being
tampered with, etc. must be kept in mind while granting such bail

The State of Uttar.Pradesh has no provision for anticipatory bail, and on the importance of the
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same, J. Markandey Katju has said that :

I make a strong recommendation to the Uttar Pradesh government to immediately issue an
ordinance to restore the provisions for anticipatory bail and empower the Allahabad High court
as well as the sessions courts in the state to grant anticipatory bail
CANCELLATION OF BAIL

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Even when a bail is granted, the Court granting such bail has the power under the Code to cancel
such bail on reasonable grounds. Cancellation of bail necessarily involves the review of a
decision already made and can by and large be permitted only if, by reason of supervening
circumstances it would no longer be conducive to a fair trail to allow the accused to retain his
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freedom during the trial .

RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID -: ARTICLES 21 AND 22 READ
WITH ARTICLE 39A

Article 21 of the Constitution is said to enshrine the most important human rights in criminal
jurisprudence. The Supreme Court had for almost 27 years after the enactment of the
Constitution taken the view that this Article merely embodied a facet of the Dicey on concept of
the rule of law that no one can deprived of his life and personal liberty by the executive action

25

Samunder Singh v. State of Rajasthan, (1987) 1 SCC 466

26

http://www.hindu.com/2008/01/31/stories/2008013159450600.htm

27

Section 437(5) and Section 439 (2), Criminal Procedure Code, 1973

28

State of Maharashtra v. A.C.Dighe, (1991) 3 SCC 209

unsupported by law. If there was a law which provided some sort of procedure, it was enough to deprive a
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person of his life and personal liberty .

In the Indian Constitution there is no specifically enumerated constitutional right to legal aid for an
accused person. Article 22(1) does provide that no person who is arrested shall be denied the right to
consult and to be defended by legal practitioner of his choice, but as interpreted by the Supreme
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Court in the celebrated case of Janardhan Reddy v. State of Hyderabad , this provision does not
carry with it the right to be provided the services of legal practitioners at state cost.

Also Article 39-A introduced in 1976 enacts that the state shall provide free legal services, to
ensure that opportunities for justice are not denied to any citizen by reason of economic or other
disabilities - this however remains a Directive Principle of State Policy which while laying down
an obligation on the State does not lay down an obligation enforceable in Court of law and does
not confer a constitutional right on the accused to secure free legal assistance.
The Supreme Court held in M.H. Hoskot v. State of Maharashtra

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and in Hussainara Khatoon's

case has held that a procedure which does not make legal services available to an accused person
who is too poor to afford a lawyer and who would, therefore go through the trial without legal
assistance cannot be regarded as reasonable, fair and just. It is an essential ingredient of
reasonable, fair and just procedure guaranteed under Article 21 that a prisoner who is to seek his
liberation through the court process should have legal services made available to him.Thus the
Supreme Court spelt out the right to legal aid in criminal proceeding within the language of
Article 21 and held that this is....
"a constitutional right of every accused person who is unable to engage a lawyer and secure
legal services on account of reasons such as poverty, indigence or incommunicado situation and
the State is under a mandate to provide a lawyer to an accused person if the circumstances of the

29

http://www.biharpolice.info/Right_To_Bail_in_india.html

30

AIR 1951 SC 227

31

AIR 1978 SC 1548

case and the needs of justice so require, provided of course the accused person does not object to the
provision of such lawyer.

In India, bail or release on personal recognizance is available as a right in bailable offences not
punishable with death or life imprisonment and only to women and children in non-bailable
offences punishable with death or life imprisonment. The right of police to oppose bail, the
absence of legal aid for the poor and the right to speedy reduce to vanishing point the
classification of offences into bailable and non-bailable, make the prolonged confinement of the
poor inevitable during the pendency of investigation by the police and trial by a court.
In some cases wherein the period of imprisonment of the under trials exceeded the period of
imprisonment prescribed for the offences they were charged with- these appalling outrages, were
brought before the Supreme Court in Hussainara Khatoon v. State of Bihar
Majumdar v. State of Bihar

33

32

. In Mantoo

,the Apex Court once again upheld the under trials right to personal

liberty and ordered the release of the petitioners on their own bond and without sureties as they
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had spent six years awaiting their trial, in prison . The travails of illegal detainees languishing
in prisons, who were uniformed, or too poor to avail of, their right bail under section 167
Criminal Procedure Code, was further brought to light in letters written to Justice Bhagwati by
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the Hazaribagh Free Legal Aid Committee in Veena Sethi v. State of Bihar . The court
recognized the inequitable operation of the law and condemned it"The rule of law does not exist merely for those who have the means to fight for their rights and
very often for perpetuation of status quo... but it exists also for the poor and the downtrodden...
and it is solemn duty of the court to protect and uphold the basic human rights of the weaker
section of the society.
Thus having discussed various hardships of pre-trial detention caused, due to unaffordability of
bail and unawareness of their right to bail, to under trials and as such violation of their right to
personal liberty and speedy trial under Article 21 as well as the obligation of the court to ensure
32

AIR 1979 SC 1360

33

AIR 1980 SC 846

34

Sandeep Jian v. State NCT of Delhi, ( 2000 ) 2 SCC 66

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(1982) 2 SCC 583

such right. It becomes imperative to discuss the right to bail and its nexus to the right of free legal aid to
ensure the former under the Constitution- in order to sensitize the rule of law of bail to the demands of the
majority of poor and to make human rights of the weaker sections a reality.

CONCLUSION
It is indisputable that an unnecessarily prolonged detention in prison of under trials before being
brought to trial is an affront to all civilized norms of human liberty and any meaningful concept
of individual liberty which forms the bedrock of a civilized legal system must view with distress
patently long periods of imprisonment before persons awaiting trial can receive the attention of
the administration of justice. Thus the law of bails must continue to allow for sufficient
discretion, in all cases, to prevent a miscarriage of justice and to give way to the humanization of
criminal justice system and to sensitize the same to the needs of those who must otherwise be
condemned to languish in prisons for no more fault other than their inability to pay for legal
counsel to advise them on bail matters or to furnish the bail amount itself.

While concluding, it seems desirable to draw attention to the absence of an explicit provision in
the Code of Criminal Procedure enabling the release, in appropriate cases, of an under trial
prisoner on his bond without sureties and without any monetary obligation. There is urgent need
for a clear provision. Undeniably, the thousands of under trial prisoners lodged in Indian prisons
today include many who are unable to secure their release before trial because of their inability
to produce sufficient financial guarantee for their appearance. The deprivation of liberty for the
reason of financial poverty only is an incongruous element in a society aspiring to the
achievement of these constitutional objectives.