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This article has been written by Mridul Tripathi, currently pursuing BBA LLB from Vivekananda Institute of Professional Studies. This article juxtaposes the right to bail that persists during normal times to the shape it has taken in the wake of the CoronaVirus.


In an order dated 23rd March 2020, the Supreme Court exercising its suo motu cognizance issued a direction to all the states and UTs to form High-Level Committees in order to determine the class of prisoners that could be released on parole or on interim bail. The period for which they would be granted parole is to be decided by the committee. This direction has been issued to decongest the prisons in the wake of the Coronavirus. 

‘Indian prisons are overcrowded’, the top court has relied upon a report of the NCRB (National Crimes record Bureau) to substantiate this statement. The report has mentioned the occupancy rate of Indian prisons to be as high as 117.6%. In Uttar Pradesh, this ratio shoots up to 176.5%. This data alone is enough to prove the need for steps to be taken to decongest the Indian prisons.

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Right to Bail as a right during normal times

Before we move on to analyse the right to bail in the wake of the Coronavirus, we need to understand what the right entails during the normal times i.e. not during the time of a crisis.

Let’s start with the definition of the term ‘bail’ as provided u/s 2(a) of Cr.P.C. 


Bailable offence, as defined u/s 2(a) of Cr.P.C, means any offence mentioned in the first schedule of the Code or any other offence made bailable under any other law in force. After a study of the schedule it could be said that mostly the offences that have punishment lesser than that of 3 years are bailable while the rest are non-bailable.

Bailable Offences

The right of an accused to demand and to be granted bail has been mentioned in Section 436 in the case of bailable offences. In bailable offences, when a person is detained or arrested without a warrant, by an officer in charge, at any stage of the proceeding, such a person can file an application to be released on bail. The section also states that if the person subsequently fails to comply with the conditions mentioned in the bail bond then his bail can be cancelled, and he can also be made liable to pay a fine.

Non-Bailable Offences 

There are several grounds laid down under Section 437 as to when bail can and cannot be granted for a non-bailable offence. 

When can the bail not be granted 

Section 437(1) states that a person (arrested or detained without a warrant) can not be granted bail when there appears to be a presence of either of these two grounds.

If there exist reasonable grounds to believe that the person has been guilty of an offence punishable with death or imprisonment for life. If the person has committed a cognizable offence and had been previously convicted of an offence punishable with death, imprisonment for seven years or more, he had been a convict for more than two times of a non-bailable and cognizable offence. However, the proviso to this subsection states that the person can be released on bail if the court is satisfied that it is just and proper for a special reason to release him on bail.

Provisos to this subsection also state that the person might be released on bail despite the presence of above-mentioned grounds in case of a non-bailable offence if the person is under the age of sixteen years are sick, a woman or an infirm. The accused cannot be denied bail only for the purpose of making him be present for identification by the witnesses during a police investigation.

When can the bail be granted for a non-bailable offence 

Section 437(2) states that if the reason to believe that such person has committed any extinguishes during the trial or investigation, so does extinguishing the reason to deny him bail even if there are sufficient grounds to hold him up for further investigation. 

Subsection (6) puts a bar on the number of days in which the trial of a non-bailable offence should end failing which the person accused will be granted bail (the magistrate can deny granting bail but the reasons should be recorded in writing). The bar is set to be 60 days from the date of the collection of first evidence. 

After the end of the trial and before the deliverance of judgement, if the court is of the opinion that the accused has not committed the offence, he shall be released. If he is in the custody of the police, he should be released on the execution of a bail bond without sureties.

Anticipatory Bail (Sec 438 of Cr.P.C) 

The right to grant anticipatory bail has only been vested only in the High Court and Sessions Court. As the name suggests, when any person anticipates an arrest for committing a non-bailable offence, he may apply to either of these courts for a direction that he should be released on bail in the event of such an arrest. It is a discretionary power vested in the courts. Subsection (2) has mentioned certain conditions that might be considered while delivering the order. An application for Anticipatory Bail can be filed even before filing of an FIR. 

Interim Bail

Interim Bail or Temporary Bail is granted when the accused’s application for a grant of regular bail or anticipatory bail is pending before the Courts.

Right to Bail in the wake of Coronavirus

Is there any alteration in the rights

In the wake of the Coronavirus, the Supreme Court issued regulations in its order, In Re: Contagion of COVID-19 in prisoners suo motu Writ Petition (C) NO. 1/2020, dated 23rd March, which has stated that a High-powered Committee should be set up in every state and UT that would decide on the matters in which the parole and interim bail should be granted for a period that might be thought appropriate. The paroles and interim bails so granted are being granted in order to facilitate decongestion and to ensure social distancing amongst prisoners. The committee shall be constituted of:

  • State Legal Services Committee’s Chairman,
  • The Principal Secretary of the Prison/Home,
  • Prison’s Director-General.

Any specific alteration to the rights has not been clearly mentioned in the judgement. The High Powered Committee is supposed to exercise complete discretion in deciding which class of prisoners are to be released on parole or who should be granted interim bail. 

However, keeping it completely open for the high powered committee to decide, the basis of judging the matters are set to the following grounds: 

  • The nature of the offence,
  • The number of years to which the prisoner has been sentenced, or 
  • The severity of the sentence with which a person is charged and is facing trial or any other relevant factor.

Via an order dated 16th March 2020, the SC of India had issued a show-cause notice to various Government of States and Union Territories that why shouldn’t a direction be issued to States and in a reply to it, every State has enumerated the steps that it has taken. Steps mentioned included letting the visitors communicate to the inmates through telephones or video calls only, building temporary places near the prison to keep the prisoners, identifying the group of prisoners which faces more risk of contracting the virus (based on their age and past ailments) and providing extra protection to the group etc.
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Offences for which bail was offered

The Supreme Court has directed that the States and Union Territories could consider the release of prisoners convicted or an accused undertrial for offences whose prescribed punishment is lesser than 7 years with or without fine, and the prisoner got convicted for lesser years than the maximum. 

Bail granted to prisoners

Since the day the Supreme Court’s Order came out, various High Courts have come up with their own procedure to implement this guideline. ‘Only the urgent matters are being heard’ is being reiterated by every court but what ‘urgent’ means is still not clear. There is no uniform pattern or a nexus observed between cases deemed as urgent. The Supreme Court on the 23rd of March cancelled all proximity cards and lawyers only for special reasons can enter the premises, after being authorised by Supreme Court Bar Association.

Patna High Court announced that the interim bail applications would be treated as urgent but the no of cases listed every day is too less to make a change. Madras High Court has been especially lenient in delivering these bail orders according to the reports by the various media houses. It was reported that bail was granted (bond of Rs 10,000) to a 40-year-old woman who was accused of committing the murder of her abusive husband. 

The High Court has stated that it is impossible for it to answer every individual application made online or via mail due to the inadequacy of the staff. It is only entertaining urgent bail applications based on special reasons. 

Offences for which bail was denied in light of the crisis

There isn’t a group of offences specified by the Supreme Court that would straightaway be rejected or wouldn’t get considered for a grant of interim bail. As observed through various media reports, the following cases are the ones that were denied bail even in the light of the crisis: 

  • Madras High Court has refused to grant interim bail to an accused under the POCSO Act, 2012 (Prevention of Children from Sexual Offences).
  • 59 yr old Christian Michael, one of the accused as middlemen in the Agusta Westland Scam approached the SC for a grant of interim bail in cases booked against him by the CBI and the Enforcement Directorate. He has gone to the apex court as the Delhi High court didn’t consider his plea as an ‘urgent’ matter on the ground that his age has made him more vulnerable to catch the virus as compared to others in the jail. The Supreme Court refused to entertain the plea and asked him to move again to the High Court.
  • Interim Bail was denied by the Gujarat High Court to Asaram Bapu, who is a self-styled godman of 84 years. His application was denied on the grounds of the seriousness of the offences committed and the contention of the State to use the rejection of applications of regular bail by the High Court and the Apex Court as a precedent, was also accepted. There appeared no reason to grant him an interim bail due to any urgent reasons.
  • A Special Court (Patiala House Courts) rejected Deepak Talwar’s (who is above 60 years of age) interim bail application. Deepak Talwar (an aviation consultant) is accused of diverting money received by his NGO from a European Defence Manufacturer. Talwar complained a sore throat and tried to make the court take into consideration his ailments to grant him interim bail. The court denied this contention citing the medical report that showed that the accused was given all the medical facilities and was stable. Deepak Talwar is accused of lobbying with officials of the Ministry of Civil Aviation to provide favourable rights to the companies at the cost of Air India.


There clearly seems to be a ruckus in the working of the Courts in various States as there doesn’t seem to be any uniform structure. The Supreme Court hasn’t yet come up with clear guidelines like with definitions of important terms such as ‘urgent’ or with a list of offences that should be clearly rejected or not considered. 

COVID-19 for sure has tested the preparedness of the courts in the country and with the reports popping from different States, it cannot be said that it is faring well. Looking at the brighter side, one can only say that the Courts though minimally yet somehow have managed to work through video conferencing. But indubitably, a clearer picture and certain reforms are overdue.


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