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This article has been written by Nehal Misra, a student at Nirma University, Ahmedabad. In this article, she discusses the extent of bail provisions in criminal jurisprudence.


India’s criminal jurisprudence is a product of the Victorian legacy. Over time, only a few changes were seen to appease interest groups and vote banks. Perhaps no thought has been given as to whether these rules, which have existed for nearly seven decades, have taken into account the plight and socio-economic circumstances of 70 percent of this country’s population living in absolute poverty. India being a poverty-stricken developing country needed anything but a blind copy of the legislations prevalent in developed western countries. The bail concept is an integral part of criminal jurisprudence, and it also suffers from drawbacks. Bail is commonly used to refer to releasing a person charged with a crime, having protection to guarantee his or her appearance before the court or some other authority whenever possible. 


Bail, in law, means procuring a person awaiting trial or an appeal to be released from prison by depositing security to ensure that his submission to the legal authority is made at the time required. The monetary value of the security is set by the court with jurisdiction over the prisoner, also known as the bail, or, more accurately, the bail bond. The security may be in the form of cash, papers giving title to the property, or bonds through private persons or by a professional bondsman or bonding firm. Failure to surrender the person released on bail at the appointed time results in forfeiture of the security. The lexicon of law, in the case of Wallace v. State, defines bail as the security of the accused person’s appearance on which he is released pending trial or investigation. In the case of McCoy v. United State, it was stated that what the bail contemplates is to “procure the release of a person from legal custody, by undertaking that he/she will appear at the designated time and place and submit him/herself to the court’s jurisdiction and judgment.”

Black’s Law Dictionary (4th ed.) defines bail as “procure the release of a person from legal custody by undertaking to appear at the designated time and place and submit him/herself to the court’s jurisdiction and judgment.” The Third New International Dictionary of Webster defines ‘bail’ as “the process by which a person is released from custody.” Law lexicon by Ramanth Iyer, (3rd ed.) defines bail as “the security for the appearance of the accused person on which he is released pending trial or investigation.” The Code of Criminal Procedure, 1973, doesn’t define bail. However, the terms bailable offence and the non-bailable offence have been specified in the Code as “Bailable offense means an offence that is shown to be bailable in the First Schedule or that is made bailable for the time being by any other statute, and non-bailable offense means any other offense. “Section 436 to 450 of the Code of Criminal Procedure sets out the rules for a grant.

Bail Provisions In India

The Code of Criminal Procedure, 1973 (“CrPC”), does not define the term “bail.” However, it is attempted to provide slight clarity on the meaning of the bail through judicial interpretation. According to the Hon’ble Madras High Court (Natturasu v. State, 1998 Cri LJ 1762), bail connotes the process of obtaining the release of an accused of a certain offense by ensuring his future trial attendance at the Court and obliging him to remain within the jurisdiction of the Court. The bail provision goes back to Magna Carta itself (Nikesh Tarachand Shah v. Union of India), which provides that no free man shall be seized or imprisoned or deprived of his rights or possessions, or outlawed or exiled, or otherwise deprived of his status, nor shall we bring force against him or send others to do so, except by the legitimate judgment of his equals.

Grant of bail also has a direct correlation with the principle of “presumption of innocence until proven guilty,” a fundamental principle underlying criminal law enshrined in Article 11(1) of the Universal Declaration of Human Rights. Parts 436 to 450 CrPC, Chapter XXXIII, deals with the laws concerning bail and bonds. Crucial among them are the provisions of Sections 437 and 439 of the CrPC, which provide for the granting of regular bail by the Magistrate and the Sessions and the High Court, and Section 438 of the CrPC, which deals with provisions relating to the granting of anticipatory bail by the Sessions Court and the High Court. Courts in India (Shri Gurbaksh Singh Sibbia and Ors. v. Punjab State, AIR 1980 SC 1632; Nikesh Tarachand Shah v. Union of India (UOI) and Ors., AIR 2017 SC 5500) have worked steadfastly on the theory, ‘Grant of bail is a law and denial is an exception.’ The importance of temporary bail can not be sufficiently emphasized. Courts in India have consistently recognized that interim bail acts as a means of protecting the reputation of a person until the adjudication on the main bail application, which is susceptible to being dented by the mere event of such person’s arrest and the associated stigma.

The Hon’ble Supreme Court, in Lal Kamlendra Pratap Singh v. the State of U.P, has addressed the extent of temporary bail and held that “In appropriate cases, interim bail should be granted until the final bail application is disposed of, since the arrest and detention of a person may cause irreparable loss to the reputation of a person”. Similarly, Delhi’s Hon’ble High Court in Parminder Singh and Ors v. The State, 95(2002) DLT 410, the pendency of an anticipatory bail demand. It is observed that ‘where there is no possibility of the accused escaping from justice or manipulating facts, or where there is no reasonable cause for custodial questioning and the appeal for the grant of anticipatory bail cannot be considered at an early date, temporary protection would usually be given to these accused persons.

It is established law that the bail grant or refusal is based upon the Court’s discretion. Such power must, however, be “judicial,” that is to say, a sound power directed by law. “It must be regulated by law, not by humour; it must not be arbitrary, abstract, fanciful, but lawful and normal”, held in the case, Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240. Such a judicious exercise is even more important at the stage of determining a prayer/request for interim bail, for the simple reason that the Court may not fully appreciate the merits and severity of the case at that stage. Given that such power is exercised in the interregnum and based on minimal facts and circumstances brought to the Court’s attention, it is not quite unusual for unscrupulous litigants / accused to also abuse such a Court power. 

There may be many instances of such misuse and violence, ranging from violation and neglect of bail conditions to serious, elopement from the law process. In Rukmani Mahato v. The State of Jharkhand,(2017) 15 SCC 574, the Hon’ble Supreme Court recognized one such instance of misuse of interim bail. In this case, the Hon’ble Apex Court deprecated the subordinate court’s practice by granting regular bail on the strength of the Superior Court’s interim/pre-arrest bail. The Hon’ble Court held that “even if the Superior Court were to deny the plea of anticipatory bail after further consideration of the case, the standard bail granted by the Subordinate Court would continue to hold the land, making the Superior Court’s ultimate denial of the pre-arrest bail meaningless.”

One such situation might be where a convict, post-arrest, may receive a temporary bail release for a limited period on his/her representation. While evading arrest, however, such accused blatantly disregards bail conditions and even fails to appear before Court, after such duration expires. Such instances are nothing but an abuse of the Court’s process and must be dealt with in severity. When dealing with a similar instance of judicial misconduct, the Rajasthan Hon’ble High Court held that in such a situation, an evading accused can not seek recourse under Section 482 CrPC to the inherent jurisdiction of the High Court(s), nor is the remedy available under Section 438 CrPC

Simultaneously, as stated by the Hon’ble Supreme Court, even the power under Section 439 CrPC can not assist such accused error unless such accused / person surrenders and is in custody. Though relying on the judgments of the Hon’ble Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote and Gurbaksh Singh v. The State of Punjab 1980, the Hon’ble High Court ruled, “They can not be granted bail under section 439 Cr. P.C. unless, as mentioned above, they surrender to the Court and submit to its direction unless, as explained above, they surrender before the Court and submit to its directions. They cannot invoke the aid of section 438 Cr. P.C. either, because, as already stated, they were arrested by the police. The law is well settled, that anticipatory bail can be granted so long only as the applicant has not been arrested.” 

Instances, where fraudulent accused, have attempted to abuse/misuse the inherent power of the High Courts is also not unusual invoking Section 482 CrPC provisions to seek remedy for interim bail/protection. In that regard, in the case State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770, the Hon’ble Supreme Court clarified that the power of the High Court(s) under Section 482 CrPC can not be resorted to when there are clear provisions under the law to remedy the grieved party’s grievance or where there is an alternative remedy available. The Hon’ble Court in Savitri Goenka v. Kusum Lata Damani, (2007) 14 SCC 373 strongly disapproved of the procedure of converting the request according to Section 482 CrPC to that according to Sections 438 and 439. It has been a consistent position of the Hon’ble Supreme Court that there should be limited interference by the High Courts in matters relating to criminal prosecution/arrest/investigation/ etc. while exercising their powers under Section 482 CrPC (the State of Rajasthan v. Ravi Shankar Srivastava, (2011) 10 SCC 632).

Conclusively, life and personal freedom are a right that is too precious to be handled lightly. Indian legal and judicial systems have repeatedly stressed the importance of such indispensable individual rights, including cases of bail grants and refusals. The courts must also be cautious, however, that where the judicial instruments become a means of misuse and abuse by dishonest litigants/persons, the same must be dealt with strictly. Unquestionably, the law helps and assists the honest and can not be used to help or perform the fraud scheme. In conditional security for the interregnum, temporary bail, as the name implies, can not be extended to circumvent the legal process entirely. Any such law abuse process must be handled strictly by the Courts.

The right to personal freedom is a fundamental right of every citizen as recognized in Article 21, the Indian Constitution. But this right is not absolute; it can be curtailed to maintain a balance between the interests of the individual and of society at large. To ensure, however, that a person’s individual right to freedom is not unreasonably restricted, its curtailment requires a law-established procedure to be followed. The procedure laid down in the Code of Criminal Procedure to curtail a person’s freedom ensures that a person is not detained unreasonably if his detention is not required to secure ends of justice. Justice Krishna Iyer raised the issue of the unequal bail scheme in India for the first time in the State of Rajasthan v. Balchand and proposed a rethink on the matter.

Again in Moti Ram and Others v. State of M.P. Justice Iyer’s landmark judgment stipulated that judges would be more inclined to bail rather than to prison. While exercising, the Hon’ble Supreme Court again addressed the need for a balance between individual rights and public order. Power of arrest in relation to Arnesh Kumar v.State of Bihar. It was held that all such cases in which the crime is punishable by imprisonment for a term that may be less than seven years or may extend to seven years, whether with or without fine; police officers shall not arbitrarily detain the accused, and Magistrate shall not allow casual and mechanical detention.

In addition to making the police officers involved liable for departmental punishment, failure to comply with these orders would also make them liable to be disciplined for contempt of court. Judicial Magistrate authorizing the detention without recording reasons shall be liable by the appropriate High Court for the departmental action.

Criminal jurisprudence of bail provisions

The Code of Criminal Procedure, 1973 (hereinafter Cr. P.C.) does not define bail although the terms bailable offence and non-bailable offense are defined in Section 2(a) Cr. P.C. “Bailable offense means an offence which is deemed to be bailable under the First Schedule or which is deemed to be bailable under any other law for the time being, and any other offence is deemed to be non-bailable.” Sections 436 to 450 Cr.P.C. establishes provisions relating to the grant of bail and bonds in criminal cases. No mention is made in the Cr. P.C of the amount of security to be paid by the accused to secure his release. Thus, it is the court’s discretion to lay a monetary cap on the bond. Unfortunately, the court was seen as not being sensitive to the economic plight of the weaker sections of society. The unreasonable and exorbitant amounts that the courts demand as bail bonds demonstrate their callous attitude toward the poor.

The following cases illustrate the poor’s adverse situation as regards India’s unequal bail scheme. The accused was convicted by the trial court in the State of Rajasthan v. Balchand. It acquitted him as he went on appeal to the High Court. Under Art. 136 of the Constitution, the State appealed to the Hon’ble Supreme Court by way of a special leave petition. The accused was directed by the court to capitulate. Afterwards, he filed for bail. It was then that Justice Krishna Iyer raised his voice against this unjust bail administration scheme for the very first time. Though the pecuniary bail system has a tradition behind it, he said, the time has come for rethinking.

In Ram Moti and Ors. v. State M.P, the accused convicted was a poor mason. A sketchy order had been passed by the apex court, referring it to the Chief Judicial Magistrate to extend it on bail, without making any specifications as to assurances, bonds, etc. The CJM claimed full authority on the matter and set Rs. 10,000 as protection and bond and further declined to allow his brother to become a guarantor as his property was in the village adjacent to him. MR appealed to the apex court once more, and Justice Krishna Iyer condemned the CJM ‘s act and said the judges should be more inclined towards bail rather than jail.

In Maneka Gandhi v. Union, Justice Krishna Iyer once more spoke out against the unjust bail scheme that existed in India. There was no definition of bail in the code although the offenses are classified as bailable and non-bailable. Further Justice P.N. Bhagwati also spoke about how unfair and discriminatory the bail system is when viewed from a person’s economic criteria, this discrimination arises even if the amount of bail fixed by the magistrates is not high for some, but a large majority of those brought before the courts in criminal cases are so poor that they would find it difficult to provide bail, even if it were difficult for them to obtain bail. 

In Hussainara Khatoon and others v. Home Sec, State of Bihar, the Court further established the ratio that if the man is in prison for a period longer than the sentence he is liable for then he should be released.


The Code of Criminal Procedure contains sufficient provisions to protect an accused from unreasonable detention in prison, but many accused who are entitled to bail have languished for years in prison. So not only are laws essential to secure a person’s right to liberty, but their successful implementation is equally important. A perusal of the above cases highlights the Indian criminal justice system’s deep, anti-poor bias. Although the courts have tried to intervene in some cases and have also laid down certain guidelines to be followed, alas nothing has been done about it. 

There is also a strong need for a comprehensive review of the bail system taking into account the socio-economic status of the majority of our population. The court must also recognize the socio-economic condition of the suspects before granting bail, and must also have a sympathetic attitude towards them. A proper review can be required to decide whether the accused has his origin in the group that would dissuade him from leaving the trial.



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