Image source -

This article is written by Utkarsh Singh, a law student from Amity Law School, NOIDA. This is an exhaustive article which deals with the relationship between granting of bail to a person accused of a crime and his rights under Article 21 of the Constitution that is Right to Life and personal liberty. 


What do you think happens when someone commits or is suspected of committing some criminal offence? The answer is that he or she gets arrested. However, they can apply for bail in this case which is a remedy for a person to free him from legal custody. If the police are unable to find any strong evidence or the court is not able to prove that he is guilty then the time he stayed in jail would be the violation of one of the most important fundamental rights Article 21 which is right to life and personal liberty. It protects citizens when there is a threat to life and freedom. The time the suspect spent in jail until proven guilty becomes a violation of personal law.

The Indian society looks down upon those people who get arrested even when they are proven not guilty in front of the court; it affects the reputation of the family and destroys the career. Although, they are granted bail due to the absence of any evidence against them yet they are named criminals by society. It is important that we do not deny any citizen their right to personal liberty even if they are suspected to be a criminal. It was held in the case of Deepak Bajaj vs state of Maharashtra and Another that the reputation of a person is a valuable asset with regard to article 21 of the Indian constitution thus, it is important to maintain a balance between the personal liberty of an accused person and the police investigation rights.

Download Now

Granting of bail is a difficulty that requires a detailed discussion of the evidence and an elaborate documentation of the acts of the accused. When the offence is of a serious nature, bail can be granted only after keeping in mind the seriousness of the offence, character of the evidence, detailed process, and the larger interest of the public. This article will discuss the condition and the considerations of granting bail, the relation between bail and article 21, and anticipatory bail.

Conditions Imposed at the time of Granting Bail

Conditions at the time of writing of bail are described under Section 437 of the Code of Criminal Procedure. The court cannot impose on the accused, or suspect any kind of irrelevant conditions or any conditions that they know the accused cannot fulfil. Amendments are made under Section 437(3) which gives the court the power to impose a condition on the accused.

They are as follows-

  • The court has to keep in mind the kind of allegations against the accused and then analyze whether the evidence is in favour of the accused or not, this means if the kind of accusation and evidence is serious then the court has to consider the conditions which are imposed.
  • During the time of bail, the person who is accused should not carry out any similar offence or crime of which he is suspected of.
  • The accused on bail should not influence the witness or tamper with any evidence or talk about facts of the case that will affect the case.
  • Genuineness is an important element of granting bail and if there is doubt regarding the crime, is entitled to get the bail.

In the case of Sumita Mehta vs State of NCT of Delhi, as the amount set by the high court was very high and unreasonable so the Honorable Supreme Court overruled the decision of the High Court of Delhi where the bail applicant was directed to give one crore rupees in the fixed deposit in the name of complainant in the bank to keep the Fixed Deposit Receipt with the investigating officer.

In the case of Sheikh Ayub vs the State of M.P, as in this case, the Apex Court made a judgment that the High Court has the responsibility to consider all facts and circumstances before granting bail as in this the appellant granted the bail and Court said that to give two lakhs fifty thousand but after that, the Court asked him to give fifty thousand rupees as the surety, so the appellant claimed that two lakh fifty thousand was not warranted as the part of the condition of granting bail but only fifty thousand was.

In the case of Ramathal and others vs Inspector of Police and Another, the High Court of Punjab and Haryana set an amount of thirty-two lakhs which was unreasonable and a heavy amount which the appellant did not have the ability to give this huge amount so apex court said that the high court did not consider all the facts and circumstances properly so the matter was given back to the high court again.

Considerations at the Time of Granting Bail

When the court is granting bail then the court should only consider the evidence or the witness which are appearing to be true but in reality, they may be false, the court should not do the investigation on the reliability of the evidence, this should be checked in the trial. The credibility of the witness is to be questioned at the time of trial. If a person is accused of non-bailable crime or offence then the main consideration would be taken as the nature or significance of the offence or crime. While in the case of granting bail the court should only go to the evidence and witness which are present at that time. The apex court in the case of the state of Maharashtra vs Sitaram Popat vital has given some factors which should be considered before granting bail that is as follows:

  • The nature of the allegation and the gravity of punishment in the case of alleged and the character of the supporting evidence.
  • The sensible worry of tampering evidence or witness and giving threat to the complainant.
  • The court should be satisfied with the evidence and witness in support of the charge.

Sometimes the court has to investigate some factors before granting bail which is as follows-

  • There is or is not proper evidence and witness to be convinced that the accused has committed the offences that are charged against him.
  • The character and severity of the charges against him.
  • The seriousness of the punishment that may be present in some cases.
  • If the applicant will be able to run away when he is released from jail.
  • The past record of the applicant.
  • The possibility of doing the same offence when he is getting bail.
  • The possibility of the evidence and witnesses being tampered.
  • The opportunity of the applicant to get his defence on merit.

It is very important that the court should give sufficient time to the investigatory body to carry out investigation fully. It is essential that the court maintains a balance between this requirement and the equally gripping consideration that a citizen’s liberty is not violated until the facts and circumstances are justified. It is justified that Article 21 is one of the most important fundamental rights but there should be a balance between personal liberty and the liberty of society. Every right has reasonable restrictions and it can be imposed on them.

Grant of Bail Vis-vis Right to Life and Personal Liberty

The nexus between the grant of bail and personal liberty of an individual depends completely on maintaining a balance between preserving personal liberty of a person and ensuring proper investigation of the crime so that the principle of justice is upheld. Granting of bail saves the individual from violation of his freedom to life until proven guilty by the law. According to the provisions laid down under Section 57 of the Code of Criminal Procedure, when an investigation is not completed within twenty-four hours then the case is referred to the magistrate. Under Section 167(2) of the Court of Criminal procedure gives the magistrate the authority to detain the accused for a term not exceeding fifteen days on the whole.

However, as mentioned under article 21, the personal liberty of the accused is to be protected as he is a citizen of the country thus, the magistrate cannot authorize the detention of accused of more than 90 days in case of serious crime and 60 days in case of less grave crime. When this period expires the court has to grant bail to the accused. This is what was held in the case of Mantoo Mazumdar vs State of Bihar in which the Supreme Court said that after the expiration of the said period the accused will be released on bail once he is prepared to leave and the bail is furnished. Even though a person cannot be denied his fundamental right to personal liberty, it is the duty of the court to follow the judicial provisions and not be affected by personal whims. Whenever a person is accused of a bailable offence, he is arrested by the police without a warrant and can be released only on bail once bail is finalized neither the magistrate nor the officer-in-charge is authorized to keep the accused in their custody.

In the case K. Joglekar vs Emperor, it was stated that there are no specific rules regarding the discretion of the magistrate in granting bail. The only principle is that there should be a careful exercise of this discretion and it should be used for establishing justice and not violating the basic right of a person. Then in the case of Kashmira Singh vs the State of Punjab, it would be injustice and unfair to keep a person in jail for a period of 5 or six years for an offence which he did not even commit. The courts will never be able to compensate him for this wrong therefore, courts in India have adopted liberal measures for granting bail so that an individual’s personal liberty is not threatened.

Anticipatory Bail in lieu of Article 21

It is a different kind of bail-in that a person gets his order of freedom by the court on bail before the person is arrested or kept in legal custody. In this case, when a person has fear of getting arrested then he applies the application of bail before getting arrested so that he would not be able to get arrested. The necessity of anticipatory bail is that when some influential people make false cases against their enemy and want to lower the respect of their enemy party in society then the enemy party can apply for anticipatory bail.

When there is a logical reason not to put a person in legal custody as he will not commit any crime or misuse liberty then, in this case, the bail can be granted before time. Anticipatory bail can be applied before the FIR is written when a person is sure that he will get arrested. In the case of Gurbaksh Singh Sibba vs the State of Punjab, it was stated that the anticipatory bail should not be of the limited time limit; they can be imposed on a case to case basis. In the case of Vaman Narain Ghiya vs the State of Rajasthan, it was said that there should be a balance between the personal liberty of the accused and the investigation of the police. The suspect is not kept in legal custody with the objective of giving punishment when he is not proven guilty.


Article 21 is an essential right given to every citizen so that their right to life and personal liberty is not threatened. When a person is accused of a crime, it is important according to the legal procedure to keep that person in custody. However, until the accused is proven guilty, he is entitled to his right to personal liberty and no one can deny him this freedom. This is why granting bail is a necessary procedure of law. But it is also important that the accused gets punished for the crimes that he has committed. Thus, bail cannot be granted only on the basis of protecting the fundamental rights of the citizens. The investigation has to be strict and unbiased to decide whether the accused can be released on bail. A balance between these two has to be restored so that the principles of Liberty, Equality, and Justice enshrined in the Constitution can be abided.





LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here