A CRITICAL ANALYSIS OF RIGHT

TO BAIL IN INDIA, U.K & U.S.A

A Dissertation Submitted in Partial Fulfillment of the

Requirements for the Award of the Degree of

Bachelor of Law(Hons.)

by
LOVE KUMAR GUPTA
(Reg. No.1216018.)

Under the Guidance of

Dr. MALLAIAH M.R
ASSISTANT PROFESSOR

School of Law
CHRIST UNIVERSITY
BENGALURU, INDIA
March, 2017

Approval of Dissertation
Dissertation entitled A CRITICAL ANALYSIS OF RIGHT TO BAIL IN

INDIA, U.K & U.S.A by Love Kumar Gupta, Reg. No. 1216018 is

approved for the award of the degree of Bachelor of law [BALLB

(Hons.)] in

Examiners:

1. ___________________ ___________________

2. ___________________ ___________________

3. ___________________ ___________________

Supervisor(s):

___________________ ___________________

Chairman:

___________________ ___________________

Date: ___________
(Seal)
Place: Bengaluru
 DECLARATION

I Love Kumar Gupta hereby declare that the entire work embodied in the particle
paper title Critical Analysis of Right to Bail in INDIA, U.K, & U.S.A is a record
of original research work undertaken by me for the award of the degree of
Bachelor of Law [B.A L.L.B (Honours)] submitted to Christ University, School
Of Law, and Bangalore.

I also declare that this dissertation has not been submitted for the award of any
degree, diploma, associateship, fellowship or other title. It has not been sent for
any publication or presentation purpose. I hereby confirm the originality of the
work and that there is no plagiarism in any part of the dissertation.

Place: Bengaluru
Date:

Love Kumar Gupta

Reg. No.1216018
School of Law
Christ University
Bengaluru
 CERTIFICATE

This is to certify that the Dissertation Thesis entitled Critical Analysis of Right to
Bail in INDIA, U.K, and U.S.A submitted by Love Kumar Gupta, Reg. No.
1216018, is a record of original work undertaken by her during the academic year
2016-2017 under my supervision in partial fulfilment for the award of the degree
of Bachelor of Law [B.A L.L.B (Honours)].

This dissertation has not been submitted for the award of any degree, diploma,
associateship, fellowship or other title. It has not been sent for any publication or
presentation purpose. I hereby confirm the originality of the work and that there
is no plagiarism in any part of the dissertation.

Place: Bengaluru
Date:
Dr. MALLAIAH M.R
ASSISTANT PROFESSOR
School of Law
Christ University, Bengaluru
DR.SOMU C S
Head of the Department
School of Law
Christ University, Bengaluru

ABSTRACT
The first impact of Criminal Procedure upon the offender alleged or actual is
arrest .Although the word "arrest is nowhere defined in criminal Procedure Code
it rather describes the modus operandi of arrest as ,physical restraint on liberty.
The main purpose of arrest to ensure the availability of the accused to the courts
for the purpose of criminal justice The justifiability of detention from the point of
arrest to the disposal of the case by the court was felt a cruelty by the law and so
the concept of bail arose in criminal procedure Bail and arrest represent the
diametrically opposed views of ,liberty and restraint ,which has made to
differentiate the offences in to bailable and non-bailable in the Code of Criminal
procedure .
The Indian Criminal Justice System from the days of British Raj is based on the
premise, innocent till proved guilty! Yet the reality is exactly opposite
overcrowding of jail is the central and critical issue for prison administration in
the country and remember this is a jail for under-trails who are supposed to be
innocent till proven guilty. It is been rightly said that effective bail system reflects
the effective criminal justice system. In this work attempt has been made to
analyse the bail laws, and to find out the inadequacies of the law and the
difficulties faced in the actual implementation of the bail law. Attempt is also
made to find out whether there is a need to rebuild a new bail mechanism and, the
present work also scrutinizes the role and responsibility of the police.
Bail or Jail? at the pre-trail or post-conviction stage belongs to the blurred area of
the criminal justice system .It was often argued that it is largely hinges on the
hunch of the bench otherwise called judicial discretion .In the present research
attempt has been made to find out whether this discretionary power causes
miscarriage of justice? And it is only after scrutinizing all these facts concrete
recommendations are made.
Attempt has been made to trace Concept of bail; anticipatory bail, estimate of bail
Mechanism and Bail Process .The present work also consist of Roles and
responsibilities of police and international perspective of bail.
ACKNOWLEDGMENT
I would like to place on record my thanks to the following people, without whose
support this record could not have been completed successfully.
First, I thank Fr. Benny Thomas, Director, School of Law, Christ University, and
Dr. Somu C.S., Associate Dean and Head of the Department, School of Law,
Christ University, for giving me the opportunity to complete this Dissertation.
I would also like to extend my gratitude to Dr. Sandeep S. Desai, Faculty
Coordinator, School of Law, Christ University, for his help and support.
I also thank Dr. Mallaiah M.R. for his constant support and guidance during the
conduct of this course.

TABLE OF CONTENTS
APPROVAL OF DISSERTATION ii
DECLARATION iii
CERTIFICATE iv
ABSTRACT v
ACKNOWLEDGEMENT vi
TABLE OF CONTENTS vii
CHAPTER I
1 INTRODUCTION
1.1 Statement of problem 1
1.2 Research question 3
1.3 Significance 3
1.4 Objective 4
1.5 Scope 5
1.6 Methodology 6
1.7 Limitations 7

CHAPTER II
2.1 Literature Review 8
CHAPTER III
3 CONCEPT AND SYSTEM OF BAIL
3.1 Concept of Bail 13
3.2 Origin and evolution of Bail 14
3.3 Philosophy of Bail 17
3.4 Right of Bail: Nature 19
3.5 Present Scenario & Need for balancing values 24
CHAPTER IV
4 ANTICIPATORY BAIL
4.1 Nature, Purpose and Scope 29
4.2 Procedural practicalities in Anticipatory bail 31
4.3 Judicial Approach in granting and Rejecting Anticipatory Bail 36
CHAPTER V
5 JUDICIAL TRENDS FOR GRANTING OF BAIL IN INDIA
5.1 Bail as a facility under Criminal Justice system 37
5.2 Statutory Aspect of Bail 39
5.3 Judicial Perspective 39
5.4 Remand 41
5.4.1 What is arrest? 41
5.4.2 What is Custody? 43
5.4.3 What is Remand? 44
5.4.4 Duty of the magistrate while remanding accused to police
custody 44
5.4.5 Investigatory Custody: A Requiem on Personal Liberty 45
5.4.6 Judicial Custody: A Requiem on Personal Liberty 45
5.5 Judicial Conscience and use of discretion 46
5.5.1 What is judicial discretion in the context of bail? 46
5.5.2 Judicial Conscience 47
5.5.3 Limitation on use of Bail Discretion 53
5.5.4 Bail with Condition 56
5.5.5 Rational behind cancellation of Bail 58
5.5.6 Guidelines for exercise of discretion 65
5.6 Prescribing the forms and modes of bail 69
CHAPTER VI
6 COMPARITIVE ANALYSIS OF BAIL LAWS IN INDIA, U.K,
U.S.A
6.1 Human Right & Bail 70
6.2 Laws Relating to Bail in UK 74
6.3 Laws Relating to Bail in USA 78
6.4 Comment 81
CHAPTER VII
7 CONCLUSION & RECOMMENDATIONS
7.1 Evaluation of Law of Bails 83
7.2 Pre-conditions for Bail Reforms 88
7.2.1 Bail Reforms 91
7.3 New Approach to Bail Laws 95

BIBLIOGRAPHY 100
 CHAPTER-1

Introduction

The reality of this caricatures of equal justice under the law, hereby the poor and
the priced out of their liberty in the justice market, is the grievance of the
petitioner. He does not stay in jail because any sentence has passed. He does not
stay in jail because he is likely to flee before trial. He stays in jail for only one
reason because he is poor1.
This sentence shows that although court has given discretionary power to grant
bail it has become only a lip service because justice is so expensive that it can be
hired only by the rich people and not by the poor, indigent and downtrodden
person. Even though there is equality before law and equal protection of law, poor
person has lost his liberty because he has no money to buy it.
The significance and sweep of article 21 makes the deprivation of liberty a matter
of grave concern. It is only permissible when deprivation is reasonable and in the
interest of the state. The refusal of bail is not for punitive purposes but for the
bifocal interest of justice of the individual involved and society affected.
Man on bail has a better chance to prepare or present his case than one remanded
in custody and if public justice is to be promoted, mechanical detention is to be
demoted. To release a person facing criminal charge, on bail is necessary to give
him a free opportunity to defend himself.
Bail is very vital institution in criminal justice system. It carries twin objective of
enabling an accused to continue with his life activities and at the same time,
providing a mechanism to seek to ensure his presence on trial. It is not always just

1 Krishna Iyyar J in Motiram & Others v. State of Madhya Pradesh (AIR 1978 SC
1594)
1
or advisable to confine the accused before conviction. Only the sovereign interest
or threat to social order may necessitate such an action. Ordinarily detaching an
individual from society ads to the problem rather than solving them. The option of
jail is limited. Generally the jails are overcrowded, and mismanaged which is a
burden very difficult to shoulder. The maintenance of the dependants of the jailed
person is another problem with multiple dimensions. There is a possibility of
developing delinquent tendencies. Thus jail does not always serve the social
interest. The current problem of under trails too is an outcome of a large number
of indiscriminate arrests and the nonuse of the option of bail in preference to jail.
The law of bails no longer limited to code of criminal procedure, has been
evolving becoming many sided and complex requiring a more detailed analysis,
comparative estimate and critical assessment based on the judicial
pronouncements. The Law of Bails is not a static law but is growing all the time,
molding itself with the exigencies of the time. Thus in times of war and crisis it
leans in favour of society and the government and in times of peace and
tranquility in favour of individual and the subject. It is however significant that in
spite of multifarious new development, the law has not strayed from the basic
presumption of innocence which is the corner stone of the criminal justice.
As society is not static. It keeps changing and so as to govern this unsteady
society laws should also keep pace with the society. With a problems arising in the
fast changing law and order situation in the wake of socio-economic crisis and
political uncertainties so as to prevent miscarriage of justice judicial
pronouncements also changes by discovering new aspects analyzing the impact of
the constitution, distinguishing and correlating old and the new in their
interpretations. Though there is a paradigm shift from monetary criterion label
against the grant of bail, but the post 1970 dictum stating bail a rule and jail an
exception may still remain a lip service.
This therefore becomes a concern to analyze the concept bail and its changing
notions in the context of contemporary laws and jural response while granting
bail.

2
1.1 Statement of problem

The study on right to bail has been undertaken in view of the emerging
significance of the bail law in the country. As the human right jurisprudence is
growing giving a wider connotation to the right to life and personal liberty it
become imperative to deal with the subject of bail afresh?
Bail is a very vital institute in criminal justice system. The administration of
justice is not an easy task. It needs a well-founded system developed after taking a
due note of the realities from which the idea of bail has been conceived. The
existing system of bail is inconsistent and unconvincing. An accuseds arrest
before conviction and the societys apprehension of harm from an unarrested
suspect or his non availability on trial are the most crucial questions to be seen.
The position of the accused need to be considered in view of advancements in
human rights jurisprudence. And it is also necessary that the accused should not
be victimized by someone else in the grab of advancement of social interest.
Effective bail mechanism reflects effective criminal justice system of that country.
The present study may provide a reference plane for evaluating the utility of the
existing bail system both in terms of individual freedom and the upkeep of social
order. It may enable us to formulate the lines of modifications and the changes
necessitated thereby.
1.2 Research question

One side is the social need that crime shall be repressed, on the other the social
need that law shall not be flouted by the insolence of the office there is danger in
any choice. Therefore the object of the research is to find out-
1. Whether protection of the individual would be gained at a disproportionate
loss of protection for society?
2. Whether right to anticipatory bail is a necessity or anomaly?
3. Whether remand curtails liberty of the citizen guaranteed under the
constitution?
4. Analyze the discretionary power of the court while granting bail?
5. To analyze whether the bail mechanism is effective? Whether there is a
need to rebuild a new bail mechanism?
3
1.3 Significance
Justice Brandeis, a celebrated judged of the supreme court of the America uttered
these memorable words Liberty is the secrete of happiness and courage is the
secrete of liberty it is a fundamental right under article 21 of the constitution of
India Article 22 of the constitution protects a person against the arrest and
detention in certain cases. The procedural law of bails ensures that subject to
certain limitations no person shall be kept in custody without lawful cause and
thereby diminishes the restrictions on personal liberty. As is well known bail is but
an incident of the law of crimes and criminal procedure, but such an important
incident that an error made may easily lead to failure of justice. The grant or
refusal of bail is of course discretionary but the discretion that the court has to
exercise is not arbitrary but is founded on judicial principles. On the one side it is
the rule that a person shall be presumed innocent until conviction, on the other it
is equally authoritative rule that the administration of justice shall not be allowed
to be thwarted and defeated by culprit remaining at large. It is therefore necessary
to study these conflicting principles2.
The study on right to bail has been undertaken in view of the emerging
significance of the bail law in the country. As the human right jurisprudence is
growing giving a wider connotation to the right to life and personal liberty it
become imperative to deal with the subject of bail afresh?
Bail is a very vital institute in criminal justice system. The administration of
justice is not an easy task. It needs a well-founded system developed after taking a
due note of the realities from which the idea of bail has been conceived. The
existing system of bail is inconsistent and unconvincing. An accuseds arrest
before conviction and the societys apprehension of harm from an unarrested
suspect or his non availability on trial are the most crucial questions to be seen.
The position of the accused need to be considered in view of advancements in
human rights jurisprudence. And it is also necessary that the accused should not

2 Iyer, Mitter and Anands, Law of Bails (4th ed., Law Publishers (India) Pvt.
Ltd. 1991) at Preface.
4
be victimized by someone else in the grab of advancement of social interest.
Effective bail mechanism reflects effective criminal justice system of that country.
The present study may provide a reference plane for evaluating the utility of the
existing bail system both in terms of individual freedom and the upkeep of social
order. It may enable us to formulate the lines of modifications and the changes
necessitated thereby.
1.4 Objective
Working of the general law and its administration is now being compared with the
standards of human right jurisprudence. It has an impact because considerable
emphasize on personal liberty by higher judiciary has largely come out. It has
provided justification for having a fresh look on the working of the bail system.
In bailable offences bail granted as a matter of right but in non bailable offences
and in bails on conviction, the court trying the case or hearing the appeal or
revision has discretion in the matter of grant of bail. This discretion is a hard nut
to crack, and all the case law naturally must be centered round this. It is said that
it is a judicial discretion. But judicial discretion is difficult to define. Object of the
research is to find out whether this judicial discretion causes miscarriage of
justice?
Following are the objectives of the research-
1. To bring out inadequacies of the law and the difficulties faced in the actual
implementation of the law contained in the code
2. Analyzing bail provision in the constitutional context
3. One side is the social need that crime shall be repressed. On the other the
social need that law shall not be flouted by the insolence of the office.
There is danger in any choice; therefore the object of the research is to find
out whether protection of the individual would be gained at a
disproportionate loss of protection for society?
4. To analyze whether right to anticipatory bail is a necessity or anomaly
5. To find out whether remand curtails liberty of the citizen guaranteed under
the constitution
6. To analyze the discretionary power of the court while granting bail
7. To analyze whether the bail mechanism is effective. Whether there is a
need to rebuilt a new bail mechanism

5
1.5 Scope
This research facilitates to have a quick review of the bail laws so as to analyze in
context the notions of statute and also the judicial response. The study is further
aimed to find out the paradigm shift in the bail procedures and the powers in
granting bail. It is also furthered to critically evaluate whether bail is a rule and
jail an exception remains a lip service. The attempt has been made to give an
overview of the law relating to bail, effectiveness of the bail mechanism, roles and
responsibility of the police and judicial response to the bail provisions. It also
studies functional aspect as well as statutory aspect of bail laws in India and
accordingly suggestions and recommendations are given only after estimating and
evaluating the existing bail mechanism in India. The researcher has taken in to
account Indian scenario and the Indian laws are compared with USA and UK.
1.6 Methodology
In the context of the present research Doctrinal research methodology is used,
which is also known as arm chair research. Attempt has been made to utilize this
methodology for analyzing and criticizing the present legal scenario and to
pinpoint loopholes in the law, evolution of law cause and effect of its efficiency or
non-efficiency in the Indian perspective.
In arm chair research most of the data is taken from library and more emphasis lay
down on standard material. For some clarification on point comparative approach
is also applied. This approach is particularly undertaken at the time of comparison
of bail laws between USA, UK and India.
1.7 Limitation
The provisions relating to bail are scattered over several sections in the Criminal
Procedure Code. Even though Chapter XXXIII is entitled of Bail it is not
exhaustive of all the provisions relating to bail. There are several sections in other
chapters of the criminal procedure code which contains provisions governing the
grant of bail under various circumstances, in this research all these provisions are
not taken into consideration. In this research more emphasis is given on chapter
XXXIII of the Criminal Procedure Code. The researcher has not taken in to
account bail in special laws as the time constrains and also to avoid lengthiness.

6
The present research is designed to concentrate on analyzing and criticizing bail
laws. But for the sake of the convenience the research is limited to Bail provisions
in India, UK and USA.
As the time constraint it is impossible to refer each and every book, articles and
judgments delivered by High Court and Supreme Court. There is also limitation of
availability of resources. The critical analysis is relied only on few landmark
judgments delivered by Supreme Court and High Court within the territory of
India.

CHAPTER 2

7
 2.1 Literature Review

The research has thrown light on right to bail, and to achieve the end result of this
research, researcher has scrutinized the existing material available pertaining to
this present research. The contribution made by various authors pertaining to the
research topic, helped in understanding the primary notion historical evolution of
many concepts, some part of constitutional debate mentioned in the reference
book written by different authors and tried to gauge their basic intent behind their
work.
Anthea Huklesby in his article written in Handbook of the criminal justice
process, edited by, Mike Mc Conville and Geoffrey Willson, has pointed out
that, there is a presumption in favour of bail in England and Wales which is based
on two fundamental premises: that people are innocent until proven guilty and that
innocent people have a right to freedom.
However, the researcher is not agreeing with this because, in reality the right of
victim and society must also be considered, and the law should be such that which
will maintain balance between the right of the individual and interest of the
society. It is then and then there will be Rule of Law otherwise there will be
Rule by Law.
This article has also discussed the issued which arise from the question of what to
do with the defendants who have been accused of committing an offence but who
are trial and thus are legally innocent. The article also demonstrates how the right
to bail in England and Wales has been eroded since the early 1980s.
The study of right to bail has been under taken by the Indian Law Institute in
the book Right to Bail, edited by S.K. Verma 2000 Ed. in a view of the
emerging significance of the bail law in the country. The institute had earlier
published the study on the subject but as the law of the bail is not a static concept
and because of the growth of human right jurisprudence giving a wider
connotation to right to life and personal liberty, it became imperative to deal with
8
the subject of bail afresh and the book is published after reorientation, re-
empirical testing and updated results in 2000. The books deal with the different
aspect of the subject. The author has analyzed the concept of the bail,
inadequacies in bail mechanism, and reviewed the bail process.
Moreover the book also gives an appraisal of the defects in forms and modes of
release, fixation of bail amount and professional sureties. The assertions are
supported by the empirical findings and the case law till date. The books ends
with a concluding part giving precise evaluative account of the facts identifying
major defects in the system and a proposal to rebuilt a new cogent bail system.
The court trying the case or hearing the appeal or revision has discretion in the
matter of grant of bail. This discretion is a hard nut to crack; therefore the
researcher is agreed with the author that criteria for exercise of judicial discretion
and grant of bail with conditions invoke perceptional quizzing in the light of
conventional guidance and the constitutional authority. The researcher is also
agreed with the author that Law Commission must look into these matters and
help the legislature come out with a candid policy and calcified formulation for
rebuilding a new bail mechanism.
The researcher is fascinated by empirical study made by the author who gave
fairly understanding the ground realities. And the researcher appreciates
commendable efforts of the editor of Right to bail, which is published by Indian
Law institute in 2000. The depth study of the author has glorified the researcher.
In another book called Law on Arrest and Bail by M.S. Adil, published by
Capital publishing house, 2005 edition, the author has discussed the remedies
related to arrest and bail in precise manner. In this book the author has rightly
pointed out that the purpose of criminal justice system is to balance out between
the interest of the society and of the individual. The researcher is agree with the
author on the point that while the liberty of the individual is zealously protected
by various safeguards and bail provisions, on the other hand the law enforcing
agencies have been conferred with very wide power to arrest. The sacred purpose
behind the power of arrest is misused by law enforcing agencies, sometimes under
compulsion and sometimes for their vested interest and overzealous personnel.

9
In this book the author has reviewed the recommendations given by the Law
Commission of India but has not provided concretized reformative measures. The
author has also thrown light on the bail laws in USA and UK. Thus although he
has given international prospective he failed to compare them, and he has shown
inability to, what is to adopted by India from other countries in the context of the
bail laws. The author has failed to give comparative approach and has failed to
conclude that which laws are more effective. But Book he has garnished the
researcher by throwing light on human rights aspect of the bail.
Another book called Bail Law and procedure by Janak Raj Jai, Published
by Universal Law publishing company, Edition 2004, has contributed to
research by giving theoretical base. The author has suggested guidelines which are
to be exercised by the judiciary while granting bail. The author has also analyzed
the constitutional aspect of the bail by studying writ of Habeas corpus, amount of
bail bond. The author has correctly discussed that by imposing high amount of
bail court denies the right to bail to the applicant thereby denies right to life and
personal liberty.
But at the same time the researcher is disagree with the author on the point.
According to researcher high amount on bail can be imposed by the court in case
of economic offences for insane in White collar crimes. And also after considering
the status and economical condition of the accused so as to prevent the incidents
of bail jumping.
Another book called The Law of Bails by P.V. Ramkrishna published by
Universal Law Publishing Co. 7th Ed. 2008 contains very valuable contributions
on the facets of right to bail, the cancellation of bail, the right of the accused to
legal consultation, and free legal aid etc. The author has made comprehensive
study of Law of Bails.
The researcher is agreed with the author on the point that the Law of Bails,
unlike many other laws, is growing continuously to adapt itself to changing times
as in times of exigencies, or in times of peace and tranquility, with the law leaning
in favour of the society and the government in times of emergencies or internal
crisis and with the individuals and the subjects in time of peace and harmony.

10
The researcher is also agreed with the author on the point that Conditions may be
imposed not to cripple but to protect the applicant: such is the holistic jurisdiction
and humanistic orientation by judicial discretion, correlated to the values of our
constitution.
The work of the author has helped the researcher to understand philosophy and
concept of bail. The depth study of the author on conflicting views of High Court
and Supreme Court on Bail matters has glorified the researcher. And it has given
fairly comprehensive understanding of the Bail Laws.
In Combat Law, March-April 2008 Vol. 7 Issue 2, Kiran Bedi, once as
Delhis Inspector General of Police (prison) while answering to the question as to
whether Video-conferencing (instead of producing under-trails before the court is
being opted for) meet the legal requirement or standards? replied in affirmation
and said that, prisoners have full liberty to speak in front of the camera. It is
absolutely legal. And I am in support of it But the researcher is having contrary
views and disagree with her, since prison officers are present in the prison video-
linkage rooms, the prison grievances are not reaching the magistrates and it seems
that non-production of under-trails physically in the courts is substantially
reducing their capacity to negotiate for bails with the judiciary and arrange for the
sureties. The system is also erasing the wide difference between the convict and
under-trail.
In another book called Criminal Procedure a Contemporary perspective, by
Jamers Acker & Davice Brody, An Aspen Publication, 1999 Ed, It is according
to author, Decisions made during the pre-trail process can affect jail
overcrowding and the size of the trail Court docket. The researcher is agree with
the author as this sentence is truly applicable to India as it is criticized that Indian
Bail Laws are a Judge-made Law rather than a Statutory Law.
Mallik M.R. in his book Bail: Law and Procedure Eastern Law House, 3 rd
Ed. 1999, says that Bail Law of our country is in few section of Code, Sections
436 to 439, but basically it is a judge made law. It stands as a distinct law
inextricably interlinked with fundamental freedom & liberty, a part of
fundamental right enshrined in our constitution.

11
The researcher is absolutely agree with the author as in India Judges has given
wider power to grant and refuse bail, and this judicial discretion is nowhere
defined. The book also deals with various authorities to grant bail, bail during
investigation, trail, and appeal. Anticipatory bails have been dealt with thoroughly
and critically.
M.D. Rijhwani, in his book Law of Anticipatory bail & Bail, Law and Rules
Publication, 1st Ed. 1999, said that Vast powers are being missed by the police.
The process of granting bail and Anticipatory bail is subverted by vested interest,
passionate biases and indifferent attitudes. We are going back in the middles age,
the barbaric times by conceding vast power to investigating agency and in the
mystic judicial discretion to judges.
The researcher is absolutely agree with the writer as in India police are misusing
their powers, they use to take bribes from the arrestee, and dont even inform that
arrested person about his rights, thus for them Arrest, has become one of the
instrument to extract money from the arrestee, At the same time wide
discretionary powers are vested with the Judge but what is judicial discretion is
nowhere described. The term judicial discretion is a hard nut to crack.

CHAPTER- 3

12
 CONCEPT AND SYSTEM OF BAIL

3.1 Concept
Bail though primarily a legal term it is used both by law men and lay men.
However it is not statutorily defined. The main purpose of arrest of an accused is
to secure his presence on trial and to ensure his being available for punishment on
conviction. The arrest endangers liberty which is the pivotal need of the human
existence. One of the ways to prevent unnecessary deprivation of the liberty of an
accused is bail.
Literally the expression bail denotes a security for appearance of a prisoner for his
release. Emologically the word is derived from an old French verb bailer which
means to give or to deliver3 Although another view is that its derivation is
from the Latin term bajulare meaning to bear a burden 4. Bail has been defined
in law lexicon as to set liberty a person arrested or imprisoned a security being
taken for his appearance on a day and place certain, which security is called
bail.
BLAKSTONE defines bail as a delivery or bailment of a person to his occurs
upon their giving (together with himself) sufficient security for his appearance: he
being supposes to continue in their friendly custody instead of going to jail5.
While the giving of a bail as a general rule restores a person to his freedom yet
technically he is considered as being delivered in to the custody of his sureties
which are chosen by himself as his own jailors and who have control and
dominion over him.

3 Websters New International dictionary, C/F Edt. by S.K Verma, Right to bail,
(2nd Ed., Indian Law institute, 2000) p.5
4 Shorter Oxford English dictionary

5 Edt. By. Bryan A. Garner, Blacks Law Dictionary, 7th Ed. at p.136
13
In Gurbaksh6, the Honble Supreme Court of India held that a person is said to be
admitted to bail when he is released from the custody of the officers of law and
entrusted to private custody of person called his bail. The dictionary meaning of
bail is to release a person from the custody of prison or detention or under some
kind of restraint and deliver he in to the hands of sureties called bail who binds
themselves for his due appearance when required. Bail is basically released from
restraint more particularly released from the custody of the police. An order of
bail gives back to the accused freedom of his movement on condition that he will
appear to take his trail. Personal recognizance, surely ship, bonds and such other
modalities are the means by which an assurance is secured for his presence at the
trail.
Bail may thus be regarded as a mechanism whereby state devolutes upon the
community the function of securing the presence of the prisoner and at the same
time involves participation of the community in administration of justice.
3.2 Origin and Evolution of Bail
The system of bail is a very old one. The question of what to do with an accused
person between arrest and judgment poses a severe conflict for any system of
criminal law. Pre-trial imprisonment means imposition of punishment before
determination of guilt, disruption of family and employment relationship, obstacle
in preparing the defence etc. On the contrary conditional release affords the
opportunity to the person to flee, to engage in criminal activity or to thwart trial
process by intimidating witnesses or destroying evidence. Bail as a mechanism by
which a balance is struck between these two competing demands goes back to
very ancient time.
The system of bail in some form or other was prevalent in ancient India. The
Indian system is stressed back to ancient Hindu jurisprudence which required an
expedient disposal of disputes by the functionaries responsible for administration
of justice. Judicial interposition took care to ensure that an accused person was not
unnecessarily detained or incarcerated. To avoid the pretrial detention Kautilyas
Arthashastra also advocated speedy trial of the accused. The bail system was also

6 Gurbaksh Singh Sibba v. State of Punjab, AIR 1980 SC 1632

14
prevalent in the form of muchlaka i.e. personal bond and Jamanat i.e. bail on
furnishing surety during Moghul Period7.
According to the English law operational mode of Bail law is based on the
recognized principle of law that a body could be detained for the body released.
The concept of bail under the English common law concerned itself with personal
freedom as well as that of the security of the politico legal system. The concept of
bail in England has been traced back to the system of Frank pledges adopted in
England following Norman Conquest. Under that system the community was
required to pledge its property as a security for the appearance of the accused at
the trial. The concept of community responsibility was eventually dissolved by
replacement of some third party responsibility and thus there still remained the
capacity of the accused to remain in freedom pending trail by posting security.
Thus under the English common law, a system of interim release of an accused on
surety was prevalent and surety had to be bound to produce the accused to attend
his trial on the date appointed on such a date for the trial and if the accused failed
to remain present on the appointed day surety himself would stand trial in his
place. This has subsequently been replaced by the issue of forfeiture bond of
security and imposition of penalty upon the security for failure to bring the
accused to trial on the appointed day8.
With the advent of British rule in India the common law rule of bail was
introduced in India. Such a common law institution of bail had been statutorily
recognized in the code of criminal procedure of 1861. It was followed in the code
of Criminal Procedure of 1872 and in the code of 1898 and also in the code of
1973.
The Law commission of India in its 41st Report on the code of criminal procedure
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 all citizen

7 M.R. Malik, Bail: Law & Practice, 1999 at p.7

8 Jamer R. Acker, Davice C. Brody Criminal Procedure a contemporary

perspective An Aspen Publication Ed. 1999 at p. 660
15
of India. The law commission has recognized bail as a matter of right if the
offence is bailable but it is a matter of discretion if the offence is non bailable.
The institution of bail derives from the basic presumption of innocence upon
which our system of criminal justice founded.
Criminal procedure code 1861:

It was for the first time provisions regarding bail were incorporated in this code
under section 216 and 258 for bailable and under section 156 and 212 for non
bailable cases.
Criminal procedure code 1872:

Under this code numerous other sections were added to the bail matters viz,
sections 128, 194, 204, 388 and 393 (for bailable offences) and section 128 and
389 (for non bailable offences).
Criminal procedure code 1898:

This code also kept alive the same distinction with principles governing the grant
of bail i.e., section 496 for bailable offences in which bail claimed were a matter
of right.
Criminal procedure code 1973:

Under this present code again there are two sections i.e. section 436 dealing with
bailable offences and section 437 to deal with non bailable offences. Besides this
there was an introduction of section 438 to deal matters regarding anticipatory
bail. But barring some few changes and alterations are the verbatim reproductions
of sections of section 496 and 497 of the Criminal procedure code 1898. The
interpretations in 1898 code are repeated in the present code of 1973. Justice
Goswami has observed:
We may repeat the two paramount considerations viz, likelihood of the accused
fleeing from justice and his tampering with the production of evidence relating to
the ensuring of fair trial of the case in the court of justice. It is essential that due
and proper weight should be bestowed on these two factors part from others.
There cannot be an inexorable formula in the matter of granting bail. The facts
16
and circumstances of each case will govern the exercise of judicial discretion in
granting or cancellation of bail9.
Sections in relation to bail matters in the contemporary code:
Provisions of sections 71, 81,117,121,167/2,170, and 436 to 500 of the criminal
procedure code are related to the bail and sureties matters. Extra ordinary
jurisdiction under Article 226 and 227 of the constitution for issuance of writs of
Habeas Corpus and Certiorari is also available in specific facts and circumstances.
3.3 Philosophy of bail
Objects of bail:
Bail as vital instrument in the criminal justice system, carries twin objectives viz
Enabling mechanism to seek to ensure accused presence in the trial
Enabling the accused proceed with his daily affairs

We very much brag about it is better those ten guilty men should go free rather
than one innocent man should be convicted. However, we do not hesitate to let
people languish in jail before trial. It is high time that we consider that if a person
is wrongly deprived of his liberty, the minimum that the society should do is to
compensate him. There are several compelling reasons why pre-trial detention
should be avoided.
A. Presumption of innocence:

Imprisonment before conviction has a punitive content and even those who are
guilty should not be punished before they have been convicted. As the criminal
justice system basis its footings on this presumption how then can an accused be
denied bail? But the paradigm statistics of under-trial prisoners 10 exhibits
ironically the ignorance of this presumption of innocence.
B. The effect of detention on the prisoners private life:

It is universally recognized that the economic consequences on the prisoners

family may be disastrous. Detention, even for a short period, is bound to cause

9 Gurucharan Singh v. State, (1978) 1 SSC 118 & 129

10 The Indian Express on 23rd of June 2006, Pune Ed, Prisoners of State apathy
by Maja Daruwala
17
disruptions in his private life. As dean Roscoe Pound has analyzed that the norms
must be effectuated with minimum friction, but bail if not granted would lead to
more friction in individual and the society.
C. Prospect of acquittal becomes more bleak:

Michael Zander11 mentions that the possibility of the chances of acquittal may be
less for that in custody than for that on bail is confirmed by results both in United
States and Canada. The American bail system has been under serious criticism as
failure charged with three specific failures: (1) that it keeps in jail defendants who
would have returned to courts if they would have been released, some of whom
are not even convicted (2) that it releases defendants who should not have been
released (3) that the very fact of pretrial detention increases the likelihood that
defendants will be convicted, will receive a custody sentence12.
If such is plight of the developed nations its obvious the results would maintain
its status quo in India too.
D. Higher ratio of plea of guilty:

Studies conducted in England suggested that there is a higher ratio of pleas of

guilty among the under trial prisoners who are on bail. Similar studies should be
made in India, so that the effect of indiscriminate detention can be brought home
to our courts of law. Recent felony report in United States has expressed great
concern over 97% of conviction rate on the basis of plea-bargaining, which
ironically means no trial! Is this Justice under Due Process Clause?13
E. Effect on morale of the accused:

It is easy to understand that the accused that has been at liberty will have a better
morale just because he has the support of his family and friends. This would give

11 See S.D Balsara, Bail Not Jail-Empty the Prisons, VOL-22, Journal of the
Indian Law Institute, at p. 343
12 C/f. Hans Zeisel, Bail Revisited, www.Google.com as visited on 15th Jan
2017 on 3.00pm
13 See James A. Inciardi, Criminal Justice, Jerome H Skolnick, Outcome of
Felony indictments in New York city in 1990, 4th Edition
18
him a better prospect for release on admonition or on probation or fine than the
accused that goes to court from custody. The pathological model shows that the
prisoner should be reformed to regularize him back in society, but if bail is
ignored the moral to strengthen individuals roots in society is jeopardized.
F. Effect on prison population:

According to government approximately 3.2 lakh prisoners are lodged in our jails
built to accommodate 2.2 lakh. Tihar touted as a showpiece has 14000 prisoners
when it can hold only 8500. In some smaller prisons, overcrowding can reach
600%14. The Hussainara Khatoon15 judgment also exhibits the same pathetic plight
of prisons, which lead to the release of under trials leading to jurisprudence of
prisoners rights.
Hence all the explanations above state the importance of bail to accelerate the
release of prisoners and secure the aspects of liberty. One side is the social need
that crime shall be repressed, on the other the social need that law shall not be
flouted by the insolence of the office. There is danger in nay choice. Hence law
dealing with arrest of the offender and bails should be such that which will
maintain balance between the individual liberty and social interest.
3.4 Right of bail: nature of:
Blacks Law Dictionary16 defines Life protected by the Federal Constitution
includes all personal rights and their enjoyment of the faculties acquiring useful
knowledge, the right to marry, establish a home, and bring up children, freedom of
worship conscience, contract, occupation, speech, assembly and press. Liberty is
one of the facets if the concept Life and liberty is most precious of all the rights.
Article 21 of the constitution of India reads No one shall be deprived of his life
and personal liberty except according to the procedure established by law.

14 C/f. The Indian Express, on 23rd June 2006, Pune Edition, prisoners of state
apathy by Maja Daruwala
15 Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360

16 Edt, By Bryan Garner, Blacks Law Dictionary, 7th Ed, at p. 695

19
The object of article 21 is to prevent encroachment upon personal liberty by an
appropriate authority, except in accordance with law and in conformity with the
provisions thereof. The Constitution is comprehensive. All laws must be in
consonance with the constitutional provisions they must be with constitutional
limitation and restrictions. Citizens rights are guaranteed irrespective of his cast,
creed, religion and his political believes.
In yet another case, Menaka Gandhi v/s Union of India 17 it was held that law must
be right, just and fair and not arbitrary and fanciful or oppressive, otherwise it
would be no procedure at all and the requirements of article 21 would not be
satisfied.
After Menaka Gandhis case18 the Supreme Court has been adding new
dimensions to the concept of liberty as enshrined in article 21 of the constitution,
to mention few of them these are-
1. The right to privacy
2. The right against solitary confinement
3. Right against bar fetters
4. Right to legal aid
5. Right to speedy trial
6. Right against hand cuffing
7. Right against delayed execution
8. Right against custodial violence
9. Right against public hanging
10. Right to shelter
11. Right to doctors assistance

The right of bail even though not expressly guaranteed it is implied from section
21 of the Constitution. Right of an arrested person to post bail to obtain release
from custody is an inherent right19.
The provisions regarding bail are essentially part of law of procedure and as such
must be regulated by the law under which a particular trial is held. The
commission of an offence does not ipso facto carry with it a right of bail. Such a

17 AIR 1978 SC 597

18 Ibid

19 Stack v. Boyle, 342 U.S. 1 (1951)

20
right is dependent on a provisions contained in a statute Bail is a matter of
procedural privilege at the most and not an accuseds right at least until it is
granted.
The prayer for grant of bail to some extent can be equated with equitable relief
and by nature it can be said to be an urgent matter warranting speedy disposal20.
It will also be noticed that the provisions relating to bail are set out in the criminal
procedure code 1973 independently of the provisions relating to trials.
That in its nature it is not a part of the trial procedure is evident from the
circumstanced that bail is contemplated even before the trial commences and also
after the conviction21.
The matter of bail is not merely a procedural right but substantive fundamental
right as engrafted and enshrined in article 21 of the constitution of India. Any
procedure providing for either abridging the liberty of the citizen or temporarily
depriving of his freedom has to stand the test of article 21 and 20. The procedure
which article 21 contemplates is a procedure which must be just, fair and
reasonable and not arbitrary, fanciful and oppressive, otherwise it would be no
procedure at all.
Liberty is the most precious of all the human rights. It has been the founding faith
of the human race for more than 200 years. Both the American Declaration of
Independence, 1776 and the French Declaration of the rights of man and citizen,
1789 spoke of liberty being one of the natural and inalienable rights of man. The
universal Declaration of Human Rights adopted by General assembly of the
United Nations of December 10 1948, contains several articles designed to protect
and promote liberty of individual, so does the international covenant on civil and
political right, 1966 above all article 21 of the constitution of India proclaims that
No one shall be deprived of his life and personal liberty except according to the
procedure established by law22.

20 Madan Mohan Choudhary v. State of Bihar 1985 Cr. LJ 1754 at p. 1756

21 Iswar Chand v. State of Himachal Pradesh 1976 Cr. LJ 386 at p. 391

22 M.S. Adil, Law on Arrest & Bail, (Capital Law House, 2005), preface
21
It is for the securing the liberty of an individual or for maintaining the peace and
law and order in society law is essential. Not only there should be a proper law,
there should also be proper implementation of law. In short the society should
govern by the Rule of Law and not by the rule of an individual. It is therefore
required of law that it should try to promote both these contending concepts and to
maintain a balance between them, the balance between the necessity to protect and
promote the liberty of the individual and the necessity to maintain peace law and
order in the society23.
Arrest is an instrument awarded by the society to its servants to infringe the most
cherished protected fundamental right of liberty of its constituent the individual to
protect the other constituents from his criminal wrong and to compel wrong doer
to be dealt in accordance to the law. On the contrary Bail is a mechanism to
restore the liberty of the arrested person by entrustment or bailment person either
to himself or to some credible person willing to stand surety, that the arrested
person shall face the trial and behave in a manner, which shall not be prejudicial
to the administration of justice and the interest of the victim24.
Bail is a very vital institution in the criminal justice system. It carries a twin
objective of enabling an accused to continue with his life activities and at the
same time providing a mechanism to seek to ensure his presence on trial. It is not
always just or advisable to confine the accused before conviction. Only the social
interest or threat to social order may necessitate such an action.
Generally jails are overcrowded and mismanaged and which is a burden very
difficult to shoulder. The maintenance of the dependants of the jailed persons is
another problem, which can also develop delinquent tendencies. Thus jail does not
always serve the social interest. The current problem of under trials is too is an
outcome of large number of indiscriminate arrests and the nonuse of the option of
the bail in preference to jail25.

23 Ibid

24 Ibid

25 Ibid
22
Personal liberty is deprived when bail is refused, which is too precious value of
constitutional system, recognized under article 21 that the crucial power to negate
it is a great trust exercisable not casually but judiciously. The significance and
sweep of article 21 make the deprivation of liberty a matter of grave concern and
permissible only when the law authorizing it is reasonable, even handed and
geared to the goals of the community good and necessity spelt out in article 19,
this is observed by J. Krishna Iyer in Babu Singh v/s State of U.P.26 while
delivering the judgment.
It is true that there is a constitutional sanction behind punitive proceedings in
order to achieve security and the larger interest of the public. Even so the personal
liberty of the accused is fundamental and can be circumscribed only by some
process sanctioned by law.
The power to release person on bail during investigation, enquiry and trial is
contained in section 436,437,438,439, when fall under chapter XXXIII of the
criminal procedure code 1973.
The above provisions do indicate that ordinarily a person arrested or taken in to
custody if offers to be released on bail may be so released. The release may be
refused only in cases where the offence is punishable with death or imprisonment
for life and that too when there appear reasonable grounds for believing that he
has been guilty of such an offence. Circumstances may change and person earlier
found not entitled to be released on bail may subsequently become so entitled due
to those changed circumstances, for instance if an accused being tried on a charge
of murder applies for his release on bail. The application may be rejected before
trial as court may find that the documents filed under section 173 criminal
procedure codes contain statements of persons claiming to be eye witnesses may
not support the prosecution and thus may disappear the very foundation for
believing that he has been guilty of that offence. This may give rise to an occasion
for re-consideration of bail application during the pendency of that case itself and
the court may under these changed circumstances form an opinion that reasonable
grounds do not exist for believing that he is guilty of that offence although the

26 1978 Cri. LJ 651

23
trial may till then be not over. The accused in that event shall become entitled to
be released on bail, that the accused shall not be released during the pendency of
the trial making of such an order will not only be contrary to the express
provisions contained in section 436,437,439 of criminal procedure code but will
also tantamount to taking away the personal liberty of the accused as it has no
sanction of law behind it27.
Thus it is not permissible to make an order to the effect that the applicant cannot
be released on bail on any terms whatsoever till the disposal of the case against
him28.
Thus apparently the provisions of law do not seemed to be arbitrary but there is a
wide scope for judicial discretion in non-bailable offences. What is judicial
discretion is nowhere defined. And this judicial discretion is a hard nut to crack.
This judicial discretion necessitates application of judicial mind while dealing
with such a cases which otherwise leads to miscarriage of justice.
The traditional right to freedom before conviction permits the unhampered
preparation of a defence and serves to prevent the infliction of punishment prior to
conviction unless this right to bail before trial is preserved, the presumption of
innocence, secured only after centuries of struggle would lose its meaning29.
3.5 Present Scenario
The mechanism of providing bail to an arrested person is thus geared on the twin
principles of securing the presence of any accused person in a criminal trial as
well as to place only a minimum of restraint on the freedom of the individual.
However, the application of the law of bails has been given an extended scope as a
result of over emphasis on personal freedom, which has grown as a result of
conscious assertion of individual rights in recent years. This has led the criminal
law administration agencies to face some responsibilities not within their
traditional comprehension.

27 P. Venkateshs Law of bails 2nd ed. premier publishing Co. at p. 4

28 Ram Sahodar v. State of Madhya Pradesh, 1986 Cri. LJ 279 at pp. 280-282

29 Gilbert Stuckey, Procedure in the justice System, 5th Ed., 1989 at p. 80

24
It is true that while the value of individual freedom cannot be minimized, it is
necessary to consider to what extent the freedom of an accused can be regulated
within the bail system in the interest of criminal justice. In actual practice, serious
deviations are reported affecting credibility and utility of the bail system. There
has also been a noticeable trend of bail jumping.
The extended emphasis on the individual freedom, which has grown as a result of
conscious assertion of human rights in recent years, has posed some problems
having a direct bearing on the law and practice of bail. In the operation of the
system of bail some professional bondsmen or sureties have emerged as an
adjunct to the processes of criminal justice. These professional bondsmen readily
volunteer to furnish sureties for an accused and receive payment for such services.
The availability of such professional sureties on payment of a certain percentage
of the bail amount brings in corruption and abuses the process of bail in countless
ways.
The mode of verifying the character, status and property of a surety has always
been obligatory. The courts are engaged in judicial work and have very little time
to pay attention to supervisory duties in this regard. They also lack resources to
deal with this type of work. Furthermore, court officials are often blamed of
colluding with interested parties in getting necessary legal formalities pushed up.
It enables questionable sureties to get acceptance for expeditious release of the
accused. Consequently, a band of bogus sureties, with questionable antecedents
and spurious identities have come to stay as an integral part of the system of
release on bail.
There are other factors which contribute towards confusion about the utility of the
system of bail in criminal case. One such factor is the malpractices prevailing
extensively amongst law enforcement agencies already brought to the notice by
the National Police Commission30. The abuse of criminal law has been a result of
these malpractices, which in turn have created greater sensitivity towards human
rights. This trend is a healthy development in our constitutional system for
reinforcing personal liberties of an individual. Working of the general law and its

30 National Police Commission, Third Report, 33 (1979)

25
administration is now being compared with the standards of human rights
jurisprudence. It has an impact because considerable emphasis on personal liberty
by higher judiciary has largely come out in the nature of a backlash to the high
handedness shown by authorities to an individual in the course of law
enforcement. Its effect has provided a justification for having a fresh look on the
working of the bail system and the aberrations, if any, caused to it. The requisite
equilibrium in the system can be produced only with a better political
understanding of the system by the police and the public. The obnoxious practices
which have crept in may also call for a frontal attack both administratively and by
legislation in order to redeem the institution of bail.
Need for Balancing the Values:
Passionate pleas for personal liberty are often being made while seeking release of
an accused person in pretrial cases. This approach is in keeping with the growing
awareness about individual rights and is also expressive of the conscious assertion
to protect them. The global march of human rights movement and the countrys
accountability in various UN fora for having adopted civilized standards,
imperatively require the need to keep a watchful eye on such actions and
behaviour of official agencies of the government hat tend to erode basic human
dignity.
Tales of unlawful and arbitrary actions being numerous, the increased sensitivity
towards the personal freedom and emphatic judicial pronouncements thereon have
accorded further legitimacy to assertion of human rights. The accelerated leaning
towards human rights jurisprudence has also been due to excessive police high
handedness in effecting indiscriminate arrests, as well as an extreme insensitivity
shown towards under trial prisoners, together with the abuse of criminal process
for corrupt gains and the like. Moreover, the human rights jurisprudence, studded
on constitutional bases, has been used by courts to contain oppressive actions and
correct deviant officials. This all is an irradiation. However, any euphoric zeal to
view the aspect of human rights alone may have a tendency to rob the efficacy of
measures designed for social protection. The institution of bail also seeks to serve
it. Co-mingling human rights with procedural penal laws, designed to meet an

26
administrative need or functioning of criminal law administration, has stirred up
some problems for which the administration has to prepare itself. Looking to
realities of the situation, it would be worthwhile to administer effective but
gradual doses of human rights to the ailing system of criminal law and justice for
its correction and recovery, while devising punitive and preventive actions against
erring officials.
The incidental impact of human rights jurisprudence on the legal plane of social
defence as contained in the procedural and substantive criminal law is inevitable,
until the administration itself undertakes to eliminate aberrations which make
inroads into the working of criminal judicial administration. An elimination of
these aberrations is also necessary for enabling the existing system if release on
bail to respond properly to needs of administration of criminal law and justice.
The National Police Commission has pointed out that the use of police power is
considerably abused. The present police practice is to make indiscriminate arrests
in the course of investigation. This becomes a source of annoyance and
harassment to arrested persons and their families. Likewise, the threat of
handcuffs on persons under arrest is another source of corruption and harassment.
Threats emanating from authorities are necessarily to be countered by the
judiciary.
In the wake of meeting evil challenges from guardians of social defense, courts
per force resort to the theme of human rights; and put a check on the use of their
power. This has however an effect of diluting legal processes of arrest and
remand. The controls on regulated freedom of the accused also get loosened. All
those added to the discomfort of an honest police professional, while it makes
hardcore of criminals joyful. The gains achieved by the community, on the front
of personal liberty get generally distributed as dividends amongst dangerous
depredators at the cost of social interests. In the context of bail, it has been found
that the poorer sections of the society are generally unable to avail of the benefits.
It is an irony that to avail his freedom the less resourceful accused is fleeced of his
moneys by touts and the professional sureties prowling around courts.

27
The extra-legal institution of professional sureties operates as some kind of cartel
for exchange of prisoners with the courts. In this way the basic purpose of
securing the safe custody of an accused is frustrated and operation of the bail
system gets devoid of its utility in the scheme of administration of criminal
justice.
Thus bail in bailable offence is an inherent right of the accused, but in non
bailable offences it is at the discretion of the court, and person can seek bail only
after the arrest by the police. But what if the person has mere apprehension that he
will be arrested or belief in the mind that he would be arrested on the basis of an
accusation of non bailable offence. Whether this right is an ingredient of article 21
of the constitution or not? Whether this anticipatory bail is a necessity or
anomaly? All these issues are to be discussed in the next chapter.

28
 CHAPTER-4

Anticipatory Bail

4.1 Nature, Purpose and Scope

Section 438 provides for conditions under which person apprehending arrest on an
accusation of having committed non-bailable offence may apply for bail. This
provision of anticipatory bail was not present in the original code. It was included
in the code in law commission of India in its 41 st Report recommended that there
was a need of such provision.
Before such provision was incorporated there were lots of discrepancies regarding
the power of court in absence of express provision to grant bail when an
application of such nature was made. However in most of such cases the High
court granted anticipator bail using its inherent powers31.
Section 438 is mainly a procedural provision which deals with personal liberty of
an individual who has not been convicted of the offence in respect of which he
seeks bail, so he must be presumed to be innocent. The law commission observed
that the necessity for granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in to false case for the purpose of
digressing them. Apart from false cases, where there are reasonable grounds for
holding that person accused of an offence is not likely to abscond or otherwise

31 State v/s Kailash, AIR 1955 ALL 98

29
misuse his liberty while on bail, there seems to be no justification to require him
to first submit to custody, remain in prison for some days and then apply for
bail32.
Therefore person to this recommendation section 438 was put in to the code in
order to insure that the life and liberty of an innocent person was not jeopardized
on flimsy and frivolous grounds at the instants of an irresponsible and crooked
person or an officer who may be in charge of the prosecution.
The Central government in pursuance of the aforesaid recommendations of the
Law commission introduced clause 447 in the Draft Bill of the new code of
criminal procedure, 1970. For the purpose of conferring express powers to grant
anticipatory bail on the high court and sessions court. The law commission again
considered this provision in its 48th report, which ultimately appeared in the form
of section 438 of the code of criminal procedure, 1973.
Scope of the Doctrine
The power to grant anticipatory bail is of an extra ordinary character and must be
exercised sparingly and only in exceptional cases. Observations of P.N. Bhagwati,
J. are pertinent to be noted:
the power of granting anticipatory bail is somewhat extra ordinary in character
and it is only in exceptional cases where it appears that a person might falsely be
implicated for a frivolous case might be launched against him, or there are
reasonable grounds for holding that a person accused of an offence is not likely to
abscond or otherwise misuse his liberty while on bail that such power is to be
exercised33.
As section 438 immediately follows section 437, which is the main provision for
bail in respect of non bailable offence, hence the conditions imposed vie section
437 (1) are implicitly contained unguided powers to pass an order for anticipatory
bail. The words for a direction under this section and court may, if it thinks
fit direct clearly shows that the court has to be guided by a large number of

32 Law Commission of India, 41st Report, 1969

33 Balchan Jain v/s State of MP AIR 1997 SC 366

30
considerations including those mentioned in section 437 of code of criminal
procedure, 1970.
Right to anticipatory bail is not an ingredient of article 21 of the constitution. But
right to get compensation in case of established unconstitutional deprivation of
personal liberty or life is now an ingredient of article 21 of the constitution34.
The anticipatory bail cannot be invoked as a matter of right35. It cannot be used to
thwart investigation or to defeat an exercise of proper police power needed for the
purpose of investigation. However, police action when prejudicially tend to tilt the
balance against a party whose personal liberty is likely to be jeopardized without
fuller justifications under the law court can exercise discretion to issue direction
of anticipatory bail. This facility remains confined to persons apprehending arrest
during pendency of investigation of non bailable offence.
Bail and Anticipatory bail difference between:
The distinction between an ordinary order of bail and an order of anticipatory bail
is that where the former is granted after arrest therefore means release from the
custody of the police, the latter is granted in anticipation of arrest and is, therefore
effective at the moment of the arrest.
An order of an anticipatory bail continues, so to say, an insurance against police
custody following upon arrest for offence or offence in respect of which the order
is issued. In other words unlike a post arrest order of bail, it is pre arrest legal
process which directs that if the person in whose favour it is issued is thereafter
arrested on the accusation in respect of which the direction is issued, he shall be
released on bail. Direction under section 438 is intended to confer conditional
immunity from arrest or confinement under section 46 (1)36.
4.2 Procedural Practicalities in Anticipatory Bail
Conditions for grant of Anticipatory Bail

34 Nilabati Behara v/s State of Orissa, AIR 1993 SC 1960, D.K. Basu v/s State of
West Bengal AIR 1997 SC 610
35 State of M.P. Ramkrishan Balathia v. 1999 Cr.LJ 2076 (SC)

36 P.V. Ramkrishna, Law of bails Universal Law Publishing Co. 7th Ed. 2008 at
p. 282
31
After having a thorough view of section 438 it is crystal clear that there is no such
word as anticipatory bail. However it is clearly discernible from the provisions of
this section that the word anticipatory bail is a misnomer. The fact was highlighted
by P.N. Bhagwati, J. in Balchan Jain v/s State of M.P37. We do not find this
section the words anticipatory bail but that it is clearly the subject with which the
section deals. In fact anticipatory bail is misnomer when the court grants
anticipatory bail, what it does is to make an order that in the event of arrest the
person shall be released on bail it is power exercisable in case of anticipated
accusation of non-bailable offence
The following two conditions must exist before the petitioner, namely, can invoke
the power of the court under section 438:
1. There must be accusation of the petitioner having committed a non-
bailable offence. Obviously, this accusation must be an existing one or in
any case stemming from the facts already in existence
2. There must be reasonable apprehension or belief in the mind of the
petitioner that he would be arrested on the basis of such an accusation. The
simultaneous existence of both these conditions is a sine qua non for
invoking courts jurisdiction

Thus we may deduce to understand that the conditions prerequisite for the courts
exercise of its discretion under section 438 of the code is that the person seeking
such relief must have a reasonable apprehension of his arrest on an accusation of
having committed a non-bailable offence.
Condition that can be imposed in order of anticipatory bail, some instances:
The High Court or the Court of Session may include such conditions which are
there under 437 (3) of Criminal procedure code, 1973 in the light of the facts of
the particular case, as it may think fit, including:
a) That applicant should surrender himself to the police for a brief period if a
discovery is to be made under section 27 of the evidence act

37 AIR 1997 SC 366

32
 b) The order of anticipatory bail will remain in operation only for a week or
so until after the filing of the FIR in respect of matters covered by the
order, or
c) Conditions for securing the attendance of the accused as and when
required either by the investigating officer or by the court, or
d) For securing the right of the investigating agency to proceed with the
investigation fairly and properly, or
e) For securing a fair trial by the witnesses, who may be examined during the
trial, being free and not interfered with by the accused

Conditions that cannot be imposed in order of anticipatory bail, some instances:

a) Condition that the applicant should aid the investigating officers by
accompanying them to any particular place, or
b) That he should make himself available for interrogation by the police as
and when required, or
c) That he should truly answered all the questions that may be put to him by
the police even if the answers should incriminate him, or
d) That he should show the place or places from where the police recovered
the properties concerned in the case, or
e) That he should make a confession before a magistrate as from the remand
report it is cleared that the applicant had already confessed before the
police38
f) That the applicant should deposit Rs. 15,000 with the investigating officer
with the direction that he should pay the same to the complainant39

It should be noted that where the High Court or Court Sessions has not passed any
interim order under this section or has rejected the application for grant of
anticipatory bail, it shall be open to an officer in charge of a police station to
arrest, without warrant the applicant on the basis of the accusation apprehended in
such application.
The anticipatory bail cannot be granted after a Magistrate has issued warrant. The
presence of the applicant seeking anticipatory bail shall be obligatory at the time

38 Shaikh Layak v/s State 1981 Cr. LJ 954, 958 (AP)

39 Bhanwar Lal v/s State of Rajasthan 1979 Raj LW 483

33
of final hearing of the application and passing of final order by the court, if on an
application made to it by the Public Prosecutor, the court considers such presence
necessary in the interest of justice.
When can a Person Apply?
When any person apprehends that there is a move to get him arrested on false or
trump up charges, or due to enmity with someone, or he fears that a false case is
likely to be built up against him. He has the right to move the Court of Session or
the high court under section 438 of the Cr.P.C for grant of bail in the event of his
arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he
shall be released on bail40.
If such person is thereafter arrested, and is prepared either at the time of arrest or
at any time while in the custody of such officer to give bail, he shall be released
on bail and the magistrate taking cognizance of such offence decides that warrant
should be issued against that person, he shall issue a bailable warrant in
conformity with the direction of the court granting anticipatory bail.
Anticipatory Bail should not be a Blanket Order:
The applicant must show by disclosing special facts and events that he has reason
to believe, that he may be arrested for a non-bailable offence so that the court may
take care to specify the offence or offences in respect of which alone the order
will be effective and it is not a blanket order covering all other offences.
Cancellation:
An accused is free on bail as long as the same is not cancelled. The High Court or
Court of Session may direct that any person who has been released on bail be
arrested and commit him to custody on an application moved by the complainant
or the prosecution.
Who is competent court?
Under section 438 only the high court and the sessions court have a jurisdiction
to entertain an application for anticipatory bail. The courts have been given wide
discretion while deciding such application because it is legislatively impossible to

40 C/f, http://www.helplinelaw.com/docs/anticipatorybail.anticipatorybail.php, on
10th Feb 2017
34
lay down all the possible cases where anticipatory bail can be granted and
therefore such a competence is given only to the higher judiciary. As more
experienced and more competent judges preside over such a court it was intended
this would act as safeguard against any abuse of such powers in the favour of the
connected accused.
The next issue for consideration regarding jurisdiction under section 438 is as to
whether accused is supposed to move the Court of Session before applying to the
high court. The words used in the provisions are high court or Court of Session.
Ordinarily a matter is brought before the lowest court competent to hear it and
therefore an application for anticipatory may be made to the high court only after
the court of sessions rejects it. Under the provision both courts are empowered to
pass an order under section 438. The petitioner may choose one of the two courts
and apply to the court of his choice.
The use of the word or shows that the jurisdiction of the court is concurrent but,
application is normally to be made to the Court of Session and not to the high
court. The word or has created lot of practical difficulties. Most of the time the
accused moves both the high court and court of sessions for an order under section
438. Owing to the limitations under which judiciary works in India, it is not
possible for either court to know that such an application iis pending before the
other court unless so informed by the prosecution. It is submitted that such
practices totally against the interest of justice and legislative intention.
Considerations for court while granting or refusing anticipatory bail
The provision of grant of anticipatory bail under section 438 of the code of
criminal procedure is not to be mechanically applied. Following points shall be
taken into consideration while granting anticipatory bail41:
Nature and gravity of the circumstances in which offence was committed
The position and status of the accused with reference to victim and
witnesses
The likelihood of accused fleeing from justice possibility of accused
tampering with the witnesses and
41 Rohit Bhagat Chand Karnavat v/s State of Maharashtra 2002 All MR (Cri)
1699
35
 Larger interest of the public
Criminal antecedents of if any of such applicants
Whether by such a relief granted the prosecution would be in obstacles or
prejudiced for going to the trail
Whether by grant of anticipatory bail the process of investigation would be
hampered or put to jeopardy.

Investigation and there are some of the considerations which must weigh with the
court while deciding the application for grant of anticipatory bail. Liberty of
citizen is of paramount importance but at the same time fair and fearless
investigation of a case of serious nature is of no less importance. The court shall
refrain from exercising its discretion in favour of an accused u/s 438 of the Cr.P.C,
if it adversely affects the investigation and larger public interest.
The discretionary power under section 438 of the code is not an exercise of
independent jurisdiction. But is dependent on seriousness of the accusation. The
considerations in respect of grant of anticipatory bail are similar to the ones which
are in respect of grant of bail after arrest i.e. under section 437 and 439 of the
criminal procedure code.
4.3 Judicial Approach in granting and rejecting anticipatory bail
Judicial approach to the exercise of discretion has been a cautious one. It does not
exercise the power on the assumptions that frivolous accusations may be at the
back of proposed or initial criminal proceedings. The nature of accusation is likely
to be determining the attitude of the court in this regard. The discretionary power
is to be exercised only after a notice to the public prosecutor is given and
necessary reasons are recorded if the court considers granting of bail necessary in
the interest of justice.
In Balchand v/s State of M.P.42 the Supreme Court noted that the legislature
enshrined in section 438 of the CrPC applies only to non-bailable offences and it
was to see that the liberty of the subject is not to put in jeopardy on frivolous
grounds at the instance of unscrupulous or irresponsible persons or officers. But

42 1977 Cr. LJ 225 (SC)

36
at the same time court stated that this being an extra ordinary power should be
exercise sparingly and only is special cases.
Thus anticipatory bail cannot be invoked as a matter of right. It cannot be used to
thwart investigation or to defeat an exercise of proper police powers needed for
purposes of investigation.

CHAPTER-5

JUDICIAL TRENDS FOR GRANTING OF BAIL

IN INDIA

5.1 Bail as a Facility under Criminal Justice system

The availability of the facility of bail under the existing bail mechanism is
anchored to a system of classification of offences into bailable and non bailable
rather than any express directive about liberty permissible to an accused in a given
case. A lay consideration gives the impression that the accused can claim bail in
bailable offences and not in non bailable cases. Bail can, however, be granted in
both the cases. In non bailable cases the grant of bail is by way of concession to
the accused and the power to grant bail can be exercised by the court in the
interest of justice43.
Bail in Non- Bailable Offence:
The system of release on bail is thus also operative in non-bailable cases. In case
of non-bailable offences, the question of bail arises at three different stages: (a)

43 S 437 (1), Code of Criminal procedure, 1973

37
when a person is sent for remand during the stage of police investigation (b) when
a person is remanded under section 309 of the code of criminal procedure, before
or after a charge sheet is filed and (c) during the trial stage.
During the stage of police investigation, the question of granting bail arises when
a person is sent for remand by the police under section 167 of the code of criminal
procedure, 1973. When a police officer sends an accused for remand, he has to
send a copy of entries in the case dairy. In deciding the question whether a person
has to be remanded to custody or not, the magistrate will be guided by the
evidences already collected by the investigating officer and has to examine the
prospects of getting further evidence regarding the offence. If an accused person is
brought for remand for the second time, the court has to look for more direct
evidence which may connect the accused with the crime. With each police request
for remand: the necessity for production of implicating proof becomes stronger. A
remand of the accused in police custody can be ordered in such cases where the
magistrate considers on the facts placed before him that there are really good
grounds to allow detention of the accused in police custody44.
The second stage of granting bail arises when an accused person is remanded to
custody under section 309 of the code of criminal procedure, 1973. After a
magistrate takes cognizance of a case, it may become necessary to postpone
commencement of the inquiry or trial and thus to adjourn the case. In the
meantime the accused may be released on bail by the court, or he may be
remanded to custody. An accused person may be remanded to judicial custody
from time to time under section 309 before filing of the charge sheet, to enable the
prosecution to obtain further evidence.
The aspects that are to be considered in deciding whether a remand should be
granted or not under section 309 of the code are:
(I) Whether sufficient evidence have been obtained to raise suspicion that
the accused person may have committed the offence, and it appears

44 Kampu Kutti, II CWN 554, 557: also Nather Paridd v/s State of Orissa, 1975
Cr. LJ 1212 (SC)
38
 that further evidence may be collected by the investigating agency
during remand, and
(II) Whether the time asked for by the police for remand is, in the
circumstances of the case, reasonable or not.

An order of remand can be passed by a magistrate without having the prisoner

produced before him and such remand is not invalid45.
However, such practice is highly unsatisfactory46 because it denies the accused an
opportunity to ask if he wishes anybody to represent his case, and takes away
from him an opportunity to explain as to why he should not be further remanded.
Police custody cannot be granted on the lapse of the first fifteen days after arrest 47.
On the expiry of the order of remand, another court order granting further remand
can only justify further detention48. In exercising the power to grant remand, the
court applies its judicial mind. This arrangement to place the accused in the police
custody for a declared objective of facilitating the investigation is a judicial act
done by the court in its exercise of judicial function.
5.2 Statutory Aspect of bail
Statutorily, standards have been prescribed for refusal or grant of release on bail in
section 437 and in the First schedule (col. 5) of the code. To understand these
standards for the operation of the bail mechanism, reference must be made,
besides section 437, to section 2 (a) of the code which purports to define bailable
offence. The words merely explain that it is an offence which is shown bailable in
the first schedule or which is made bailable by any other law for the time being in
force, and that non-bailable offence means any other offence.
A look into the first schedule shows that the classification has been done in two
parts. Part I deals with offences under the Indian Penal code, Part II deals with the
offences under other laws. The tabular details in part I of the First schedule

45 Gauri Shankar v/s State of Bihar (1972) Cr. LJ 505 (SC)

46 S.K. Dey v/s Officer incharge Sakchips 1974 Cr. LJ 740

47 Delhi Administration v/s R.K. Bhatnagar (1982 Cr, LJ 1103, 1105-6 (Delhi))

48 Ram Narayan Singh v/s State of Delhi, AIR SC 277

39
indicate the kinds of offences in column I. Further in column 5 of the Table,
itemized offences of the Indian Penal Code have been enumerated and are
characterized as bailable or non bailable.
5.3 Judicial Perspective

A strong judicial perspective sustains that bail in bailable offences is a matter of

right and detention in lock-up is only the alternative and not the order 49. It is also
asserted that discretion which refuses bail has no place in the system 50. In some
cases the courts have even disapproved the use of discretion to grant bail with
conditions51. Jong Bahadur Singh v. State52 however, represents a different
perspective, according to which the court has not only power to impose conditions
on the grant bail, but also duty to see that the concession not misused by the
accused

The court is thus guided by the functional character of the bail. It enables the
right of an accused to be enlarged on bail to be treated as concession granted by
the court in the course of administration of justice. This approach endorsees the
view that the grant of bail, even in statutorily classified bailable case is merely a
administrative facility, granted to an accused in exercise of discretionary power of
the society avowedly to fulfil the obligation of the criminal administration.
Accordingly in the administration of bail, bailable offences are at par with non-
bailable offence and in both cases, the grant of bail becomes a concession to the
accused. The obsolescence of bail as a right to concession however, vests the court
to deny consideration to the issue of liberty of a person. Deliberation and care has
to be gone into while the decision is made on the basis of relevant considerations
concerning the person of the accused, the society requirements of justice.

49 Raghunandan Prasad v/s Emperor, ILR 32 Cal. 180: Badri v/s State, AIR 1953
Cal. 28
50 In Re District Magistrate, Vizagapatnam, AIR 1949 Mad. 77

51 Raja Ballam Singh v/s Emperor, AIR 1943 Pat. 375

52 52 Cr. LJ 1080 (VP)

40
 The operation of the bail system does not basically rest either on the on the
legislative classification of offences, or on the mere judicial inclination towards
personal liberty but bail is a process, which operates through a mechanism that
recognition in the legal provisions, and is geared to the requirement of criminal
justice and rights of the accused. In Talab Haji Hus'sin v. M.P Mondkar53, the
Supreme Court has rightly cautioned against any risk to the process and summed
up that the classification of offences into bailable and non- bailable would not,
have any material bearing in dealing with the effect of the conduct of accused
persons on the continuance of a fair trial itself. If an accused by his own conduct
puts the fair trial into jeopardy, it would be the primary and paramount duty of
criminal courts to ensure that the risk to the fair trial is removed and criminal
courts are allowed to proceed with the trial smoothly and without any interruption
or obstruction. That would be equally true in cases of bailable as well as non-
bailable offences.
5.4 First Phase: Police Arrest
Detention denotes confinement, which practically implies keeping back or
restricting ones liberty. Law enforcement, in certain situations necessitates holding
back an accused in social interest. The desirability of detention, in view of
personal liberty is judged by administrative recognizance and judicial scaling
through the process of bail, which is not a simple procedural exercise but a
complex mechanism intertwined with the power and privileges of police. The
most vexed issue is the balancing of urgency to detain with the right to be free.
The process of bail involves Arrest, Custody and Remand therefore it necessary to
study in detail all these concepts.
The first phase of the process of bail, therefore, begins with the act of detention.
In actual practice the detention may consist of holding back a person at the very
place of confrontation or taking him to the police station for further investigation.
Such detention may be designated as arrest for investigation in which the person
is booked on suspicion rather than on the nose. It may simultaneously include the

53 AIR 1958 SC 376

41
acts of frisking and questioning, rationalized as an administrative exigency and
exercise of investigating power.
5.4.1 What is arrest?
Arrest is a technical term referring to the patterned phenomenon of apprehension,
restraint or deprivation of ones personal liberty.
As applied to criminal proceedings the word arrest signifies the apprehension or
detention of the person or stopping, seizing or apprehending him and restraining
his liberty in order to bring him to answer for an alleged or suspected crime or to
prevent the commission of criminal offence54.
The restraining of the liberty of mans person in order to compel obedience to the
order of a court of justice, or to prevent the commission of a crime, or to ensure
that a person charged or suspected of a crime may be forthcoming to answer it55.
The taking in to custody of a person, or person and goods under some lawful
command or authority56.
Under procedural law arrest consists in taking into custody under the authority of
law and holding or detaining him to answer a criminal charge or to prevent the
commission of a criminal offence57. The Full Bench of the Madras High Court in
Roshan Beevis case58 laid down the following essentials in order to constitute an
arrest:
i. That there must be an authority to arrest
ii. The authority must intend to make an arrest
iii. The intention of arrest be expressed by a seizure or detention of the
person
iv. The seizure or detention be in a manner known to the law
v. The foregoing acts and events must convey to the person arrested that
he is being put under arrest and
vi. The same be understood as such by the person arrested

54 Ed. By, Bryan A. Garner Black Law Dictionary, 7th Ed. 122

55 P. Ramnath Aiyar, Law Lexicon, 2nd Ed. 2006 at p. 142

56 Supra note 22, at p. 4

57 Roshan Beevi v/s State, 1984 Cr. LJ 134, 142 (Mad.) (FB)

58 Ibid
42
Some other judicial opinions exist in this respect. An utterance of a guttural
sound, or a gesture or any demonstrative expression to the effect of controlling
ones movement, may well be conveying to the person a meaning that he has lost
his liberty59. And, that would suffice to hold the person in custody by way of an
arrest60. The mode of arrest prescribed under section 36 (1) of the criminal
procedure, 1973, viz., the touching or confinement of body of the person to be
arrested, is applicable in cases where the person to be arrested does not submit
himself to the authority of the arrestor61.
Thus arrest is a lawful mode to hold a person in custody to answer a criminal
charge for an alleged offence committed by him. This lawful mode also
comprehends that the person can be held in custody for his designs to commit an
offence which otherwise cannot be prevented by a police officer in whose view
the offence is likely to be committed62. An escape from lawful custody entitles the
custodian to pursue and retake the escaped accused back in custody63.
5.4.2 What is Custody?
The term custody is not co-extensive with the term arrest, though the physical
restraint resulting in the loss of liberty is a common feature to both. Sections 43,
44 and 46 of the code of criminal procedure empower a private person, a
magistrate and a police officer respectively to arrest a person for committing an
offence on view, as well as to take him into custody or make him submit to the
custody.
The expression custody also appears in differing contexts in sections 54, 57, 60,
113 and 439 of the code of criminal procedure, 1973. Section 442 of the code uses
the expression in the marginal note. These provisions relate to custody of the
person. Section 451 uses the term in the context of property in custody.

59 State of U.P. v/s Deoman Upadhyaya AIR 1960 SC 1125

60 Harbans Singh v/s State, 1970 Cr. LJ 325 (Bm)

61 Roshan Beevi v/s State, 1984 Cr. LJ 150 (Mad.) (FB)

62 S. 151, CrPC, 1973

63 S. 60 (1), CrPC, 1973

43
Other statutes have also used the word custody. Thus, section 223 of the Indian
Penal Code, 1861 makes a public servant punishable if a person lawfully
committed to his custody escapes the confinement due to an act of negligence on
the part of the public servant. Under sections 26 and 27 of the Indian Evidence
Act, the word has, however, been used in another context.
In the context of criminal judicial administration, the use of the word custody is
generally understood in conjunction with the term arrest although the actual
physical restraint resulting in the loss of personal liberty has not always been
construed as an arrest. In Niranjan v/s Prabhakar 64, Supreme Court said that the
custody in the context of Section 439 of the Criminal procedure code is physical
control or at least physical presence of the accused in court with submission to the
jurisdiction and order of the court. He can be in custody not merely when the
police arrest him, produce him before a Magistrate and get a remand to judicial or
other custody. A custodial confinement by any agency by way of an arrest is
meant to keep the person in custody till judicial interposition is made for proper
orders and directions.
5.4.3 What is Remand?
Section 56, 57, 167 and 309 of the code of Criminal Procedure, 1973 deal with the
procedure to be adopted in relation to grant of remand (judicial as well as police).
A remand in fact is an authorized detention or custody of a person arrested. The
remands are of two types-
a) Judicial remand or Judicial Custody
b) Police remand or police custody

The Magistrate exercises its power under the code while granting judicial remand
or police remand.
Detention without authority is illegal:
The law is very zealous of the liberty of the subject and does not allow detention
unless there is a legal sanction for it65.
The police cannot keep any person accused of an offence in its custody for more
than 24 hours section 57 of the code of criminal procedure, 1973, specially

64 In Niranjan v/s Prabhakar, AIR 1980 SC 785

44
prohibits a police officer from detaining the arrested person for more than 24
hours in police custody. In Dr. K.S. Rao v/s State of Hyderabad66 it was held that
In remanding an accused to police custody for magistrate ought to follow the
provisions of section 167 of the code of criminal procedure 1973 and should give
proper reasons for handing over the accused to the police custody.
5.4.4 Duty of the Magistrate while remanding accused to the police
custody
Grant of police remand for the following purpose is improper-
a) For pointing out the places through which the accused passed on his
way to commit dacoity
b) For compelling the accused to give a clue to the stolen property
c) For obtaining the identification of the accused in the village
d) For verifying the confessional statement of the accused recorded under
section 161 of the code of the criminal procedure, 197367

5.4.5 Investigatory Custody: A Requiem on Personal Liberty

The percepts of personal freedom and the preservation of public order there lay
the administrative necessity of holding a suspect in the investigatory custody of
police. The practice, which has erroneously assumed the appellation remand,
operates seemingly as a legal process with evident abusive characteristics. It is
resorted to by law enforcement officers for sifting culpability and complicity of
persons suspected to have committed offences.
5.4.6 Judicial Custody: A Requiem on Personal Liberty
In all such a cases, it is only the warrant of the under trail prisoner that goes to the
court from the jail and the period of remand to judicial custody is routinely
extended without giving any chance to the accused to make any request to the
court in person. This is not only a grave violation of a mandatory provision of the
law but a violation of right of the prisoner, who bares the presumption of

65 Dr. Janak Raj Jai, Bail law and procedure with tips to avoid
police harassment, Universal Law Publishing Co. Pvt. Ltd, 3rd Ed.
2003 at p. 141

66 AIR 1957 AP 416

67 Ibid
45
innocence and is being constantly denied the occasion to put up any lawful
request to the trying court.
Precisely this amount to violation of three kinds-
I) That the jailor who was bound by the production warrant to produce
the remanded prisoners before the court on due date has conveniently
(and with impunity) fail to obey the direction of the court
II) That the State which enjoys the prerogative of taking away of liberty
of person has failed to process him through the established criminal
justice procedure on the pretention of lack of sufficient resources to
provide appropriate police force to escort the accused to the court as
demanded by section 167 (2) (b) of the criminal procedure code.
III) That the jailor who is not the party to the case has requested the court
to extend the period of remand of the accused, and the court routinely
extends it without realizing its detrimental effects on the life of the
accused and his dependent family

Section 167 of the criminal procedure code is needs to be stringently followed

even in the matter or putting up challan against the accused under trial prisoner.
Video Linkage in prisons
The criminal justice system enthusiastically welcomes the video linkage facility
between court and the prisons in 2001. This system was intended to overcome the
problem of non- production of under trial prisoners regularly before the
Magistrate in compliance of section 167 CrPC, due to non-availability of police
escort.
Simply put the video linkage has replaced the substance of judicial hearing. The
system is just saving some time and expenditure of criminal justice system. In the
whole process the ends of justice are getting defeated for the accused prisoners.
Video conferencing seems to subvert the intent and spirited of section 167 of the
Cr.P.C beside this there has been no decries in the number of undertrials at the end
of five years after the introduction of video linkage of courts and prisons68.
5.5 Second Phase: Judicial Conscience and Use of Discretion

68 Combat law, Vol. 7, Issue 2, March-April 2008, at p.41

46
The facility of bail mainly aims oat social defence and individual correction. To
monitor the system there is a need for firm mental equipoise and non-deflection
from law. Since a developed jurisprudence of bail is integral to a socially
sensitized judicial process69. The judicial discretion is an appeal to the judicial
conscience of the community reflected through a court of justice, which must not
be subject to caprice. Discretion cannot be arbitrary, vague and fanciful but legal
and regular. In the case of granting bail, the discretion of the judge must be
exercised not in opposition to, but in accordance with the established principles of
law.70
5.5.1 What is judicial discretion in the context of bail?
According to Benjamin Cardozo The judge even when he is free still not wholly
free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in
pursuit of his own ideal beauty or of goodness. He is to draw his inspiration from
consecrated principles. He is not to yield to spasmodic sentiment to vague and
unregulated benevolence. He is to exercise a discretion informed by tradition,
methodized by analogy, disciplined by system and subordinated to the primordial
necessity of order in the social life, wide enough in all conscience is the field of
discretion that remains.71
Lord Camden said that The discretion of judge is the law of tyrants. It is always
unknown; it is different in different man. It is casual and depends upon
constitution temper and passion. In the best it is often times caprice, in the worst it
is very folly and passion to which human nature is liable.72
Some jurist has regarded the term judicial discretion as a misnomer. Nevertheless
the vesting of discretion is unspoken but in escapable silent command or judicial
system and those who exercise it, will remember that discretion when applied to

69Krishna Iyer, J., in Gudikant Narsimhulu v. Public Prosecutor, AIR 1978 SC

429
70 State v. Veerapandy & Ors., 1979 Cr. LJ 455, 458 (mad.)

71 The Nature of Judicial process- Yale university press (1921)

72 I Bovu, Law Dictionary, Rawles III Revision, 885 Quoted in judicial

Dictionary National College of the State Judiciary Renu Nevade at p.14
47
court of justice means should discretion guided by law; it must be governed by the
rule, not by humor. It must not be arbitrary, vague and fanciful but legal and
regular73.
5.5.2 Judicial conscience
In granting bail magistrate can proceed under section 437 of the Cr.P.C. and their
discretion is regulated by the provisions of that section. There is no hard and fast
and no inflexible principle governing such discretion. The only principle that is
established is that there should be a judicial exercise of that exercise of that
discretion.
It is not any one single circumstance that necessarily concludes the decision but it
is cumulative effect of all the combined circumstance that must weight with the
court74. In case of a non-bailable offence, bail is a matter of judicial discretion.
Bail shall not be granted by the magistrate if the offence is punishable with death
or imprisonment of life if he is of the view that there appear reasonable grounds
for believing that the person accused or suspected of commission of the offence
has been guilty of such an offence, provided that, he may in his discretion grant
bail to a women, or a minor under the age of 16 or a sick or infirm person75.
Under the English Law, bail in treason or felony is discretionary in the High
Courts or Courts having jurisdiction to try the offences. The Court has discretion
in misdemeanors as well as in felonies76. There is no difference between English
and the Indian practice. In both the countries Bail is not to be withheld merely as a
punishment but only to secure the presence of it at the trial, But in England, a
person charged with murder is under no circumstances, released on bail.

73 Tingle v. Dally 14 NW 146

74 Supra note 36, at p. 156

75 State of Orissa v. Md Abdul Karim 1984 Cr. LJ 905

76 R v. Platt 1 Leach 157: R v. Philips 128 LT 113, R v. Salisbury (1898) 2 QB

615
48
The Supreme Court in the leading decisions of Moti Ram v. State of M.P.77 and
Balchand v. State78 has outlined that an applicant with the status of an accused,
can claim judicial liberation pro tempore on mere recognizance except where the
circumstances are suggestive of thwarting the curse of justice. Reliance on
precedents to uphold or reject a plea for the grant of bail may be a useful
guideline. But disposal of bail applications has become a routine mechanical
affair, the decisional process on the issue of bail or jail at the pre-trial or post-
conviction stage largely hinges on the hunch of the Bench which may be pivoted
on the courts conscience79.
In Emperor v. Hutchinson80, Boys, J., enumerated the circumstances which ought
to be considered for disposal of bail applications. These are:
i. The nature and gravity of the charge
ii. The severity of degree of the punishment which might follow in the
particular circumstances in case of a conviction
iii. The danger of the applicant absconding if he is released on bail
iv. The character, means and standing of the applicant
v. The danger of the alleged offence being repeated, assuming that the
accused us guilty of having committed that offence in the past; and
vi. The danger of witness/ witnesses being tampered with

The enumeration of factors as may be considered necessary for inclusion in the

judicial conscience can be dictated by changing needs and experiences.
However, the balance between social interest and individual liberty should be
maintained with the least abridging of personal liberty.
The offences for which bail cannot be granted are the ones which are of serious
nature in terms of the interest of the as well as in terms of the quantum and nature
of the punishment. Arrested persons accused of such offences which may carry
severe sentences such as life imprisonment, or imprisonment for fourteen years or

77 AIR 1978 Cr. LJ 1703 (S.C)

78 AIR 1977, SC 366

79 Justice Krishna Iyers observation in Moti Ram v. State, AIR 1978 Cr. LJ 1703
(S.C)
80 AIR 1931 All. 356
49
death is not to be bailed out. But any refusal to admit a person to bail can be made
only if a prima facie case is substantiated against him.
While entertaining the bail application, not only the nature of the offence that is
bailable or non-bailable is to be taken in to consideration but, what will be the
impact on society after the grant or refusal of bail, is also taken in to consideration
by the court. Accordingly the seriousness of the offence is to be determined on the
basis dastardly act or the ghastliness of crime allegedly committed by the accused.
Unless the seriousness of an offence is of such a magnitude, the courts may not be
justified in holding that the serious nature of the offence provides sufficient
ground for the refusal of bail. Thus in Bhagwa Singh Judeja v/s State of Gujarat81,
the Supreme Court observed that seriousness of the offence is not a material
consideration for the grant or refusal of bail but it is the probability of the accused
being available to face the trial. In fact both the factors are to be considered while
exercising the discretion in bail matters. The High Courts are unfettered in the
exercise of their power under section 439 of the code of criminal procedure to
grant bail in non-bailable cases, despite the restrictions laid down in section 437
of the code82.
Courts have also been restrictive in granting bail merely on the ground of parity
without a judicious consideration of the case 83. The word may in the first proviso
to sub-section (I) of section 437 is not to be read as mandatory, the discretion
given to the judge by this section is very wide but to be used judiciously84.
Parity can be ground for grant of bail where the cases of the applicants are
identical but the court may look into other matters of conduct and security also.
The court in Chandra v/s State of U.P.85 followed the same line of thought taking
parity not as the sole ground for grant or cancellation of bail. However, grant of

81 1984, Cr.LJ 160 (SC)

82 Nilamony Satpathy v/s Jayashankar Bhoi & Ors. 1967 Cut. L.T 67

83 Nanho S/o Nabhankar v/s State of U.P 1993 (All)

84 Ibid

85 (1998) All LJ 870 (867 DB)

50
bail on the ground of parity was held by the court as proper in Yunis v/s State of
U.P.86 Thus, every case has its own merit; every case needs an independent
application of mind on its particular set of facts.
For purpose of exercising judicial discretion, the parameters are thus considerably
laid down. A bail can be granted as an interim relief to a person who has been
incarcerated in a criminal action but the indictment is devoid of any prima facie
charge of endangering the security, safety and interests of the. It has to be assessed
simultaneously that his release does not tend to cause miscarriage in the
conducting, accomplishing and dispensation of justice which is essentially a
requirement of bail. This framework, however, does not contemplate that the
judicial liberation of an accused can be negative merely by over emphasising the
interest of the. Some prohibitions are imposed in the exercise of judicial discretion
which is discussed below. It may be reiterated that the discretion has to be
exercised in accordance with the established principles of law.
In Babu Singhs case87, the matter of bail was considered from the constitutional
perspective of personal liberty. Justice Krishna Iyer conceded that the freedom can
be abridged on the basis of evidence about the criminal record of a defendant
whose release on a thoughtless bail order may enable the bailee to exploit the
opportunity thus provided to him to inflict further crimes on the members of the
society.
In Hussainara Khatoon v/s State of Bihar88 the constitutional jurisdiction of the
Supreme Court was invoked and the issue of pre-trial detention was deliberated
upon from the, perspective of personal freedom of the poor judicial notice was
taken of the fact that the bail system, as it operates today is a source of great
hardship to the poor and if we really want to eliminate the evil effects of poverty
and assure a fair and just treatment to the poor in the administration of justice, it is
imperative that the bail system should be thoroughly revised so that it should be

86 (1998) 22 Cri. R 356

87 Babu Singh v/s State of U.P, AIR 1978 AS 527, 528

88 1979 Cr. LJ 1036 (SC)

51
possible to the poor, as easily as the rich, to obtain pre-trial release without
jeopardizing the interest of justice.
With this object in view, the court scored out some factors for use in granting bail
to the poor, as follows:
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
7. The nature of the offence charged with and the apparent probability of
conviction and the likely sentence in so far as these factors are relevant to
the risk of non-appearance
8. Any other factor indicating the ties of the accused to the community or
bearing on the risk of willful failure to appear89

But these factors have not been able to solve the problem of pre-trial releases of
the poor in the way in which the Supreme Court is now thinking aloud. A perusal
of the above factors would indicate that if the poor under trial prisoners could
affirmatively respond to these factors they would cease to be classed as poor.
Most of the poor prisoners belong to the class of migratory and uprooted
individuals who have no economic base in the community. Amongst them are to
found the unemployed with a murky past and poverty stricken way of life. Their
desire to secure justice does not lie in the Freedom model of the bail system by
testing the bail laws in the terms of Article 21 of the constitution but perhaps it
may be in the socio-economic programmes of our welfare. The innovative
approach o law of bails in terms of constitutional freedom has thus no meaningful
purpose to serve the programmes of criminal judicial administration wherein
besides the elimination of offence, preventive and rehabilitative measures are also
sought to be implemented90.
89 1979 Cr. LJ 1030 (SC)

90 Supra note 67, at p. 123

52
As stated above, the courts have evolved tests for the use of judicial discretion.
Various tests have been laid down for the purpose by several judicial decisions,
which the courts have been applying while considering bail applications. R.K.
Soonavala, in his Treatise on the law of bails 177 (1968) 91, has compiled a list of
such tests which are enumerated below. Normally the courts apply these tests,
though the list cannot be said to be exhaustive. The tests are:
1. The nature of the accusation
2. The nature of the evidence in support of the prosecution
3. The severity of the punishment which conviction will entail
4. The character, behaviour, means and standing of the accused
5. Whether facts disclose a bailable offence
6. Likelihood of the accused or any of them absconding, if released on bail
7. The possibility of the same offence being repeated, if the accused is
released on bail
8. The danger of the accused overawing or threatening prosecution witnesses,
if released on bail
9. The possibility of the accused creating an atmosphere hostile to the
conduct of the case
10. The possibility that the accused on release may convey information to
other accused who are not arrested or charge-sheeted
11. Opportunity to the accused to meet his counsel and legal adviser for
purposes of his defence
12. Age and sex of the accused
13. His past conduct and his apprehended behaviour, if released on bail; the
protracted nature of the trial and the fact that he is languishing in jail since
a long time
14. The fact that though a long time has elapsed the police have not submitted
a charge-sheet
15. The protracted nature of trail and the fact that he is languishing in jail
since a long time
16. The failing health of the accused when he is languishing in jail as an under
trial prisoner

The exercise of discretion can best be affected if the information is made available
to the court on the basis of above tests. For purposes of enabling the court to

91 Ibid, at p. 124
53
gather relevant data, it is incumbent upon the prosecution and the defence to put
forth details covering the possible heads of information. This mechanism can be
useful in avoiding an ad hoc decision and help to discern the exercise of the
discretion in an intelligible way. The order of the court in a bail matter thus gets
sustenance on account of its being based on reasons deduced from the relevant
data gathered on prescribed lines.
5.5.3 Limitation on use of Bail Discretion
Since judicial discretion in the matter of granting or refusing bail has not to be in
opposition to, but in accordance with the established principles of law 92 it is
evident that principles relating to criminal trial, and also such procedural rules as
are applicable to safeguard the interests of the accused in an adversary system of
trial are to operate as a bar in the exercise of discretion. The established doctrine
of presumption of innocence in criminal proceedings forecloses an option of the
court to use its discretion although information on the record may disclose the
supposed guilt of the accused93. The court may test the probability of the accused
taking up the trial instead of relying on the supposed guilt. The underlying idea of
imposing such prohibition is that no prejudice is caused to an accused.
Another limitation on the use of discretion is that it should not rest on vague and
fanciful grounds of general character. The allegations have to be specific and the
material relied upon for leveling the said allegations must be well defined and
properly substantiated. Thus, in D.R. Guru v/s Emperor94, it was held that in the
absence of some evidence of the offence under the Explosives Act showing the
seriousness of the alleged offence, a detention of the accused cannot be justified.
The vagueness of the material on record does not enable the court to scrutinize
and find reasonable grounds for ascertaining whether the evidence discloses all
offence punishable with death or imprisonment for life or another non-bailable
offence for which the court has to apply other relevant tests too. Prima Facie
conclusions which are relevant for purposes of exercising power under section
92 State v/s Veerpandy & Ors., 1979 Cr. LJ 455, 458 (mad.)

93 Sant Ram v/s State, AIR 1952 J & K 28

94 AIR, 1930 Bom, 484

54
437 (1) (2) and 439 of the code of criminal procedure can validly be reached only
when the court applies its mind to the qualitative evidence produced by the
investigation agency. The court cannot go into question of ascertaining the guilt or
innocence of the accused at this stage. The idea underlying the above exercise is
to achieve the object of bail in securing the attendance of an accused without
making the process a penal one till the guilt is proved and the accused is
convicted.
The police point of view about the prospective misconduct of the accused if
enlarged on bail and his bad police record may be admissible pleas but these are
not to operate as convenient grounds for the refusal of bail. In the exercise of
discretion the courts have also to reckon the fact of congested court dockets which
keeps the trials pending unduly long. With a view to mitigating the rigors an
abundant caution is required in the exercise of discretion so that bail process does
not turn into a penal process95.
Thus a restriction on the freedom by way of bail is untenable if it requires an
accused to appear before the police commissioner 96, or requires a person not to
make speeches97 during the period of his release or not to enter any disputed
land98. The power of the court to impose conditions, while granting bail cannot be
denied, but the condition imposed should not be in conflict with such
constitutional and legal rights of the person as are available to him otherwise as a
citizen.
Further, the conditions are not to be extraneous in nature as they may have no
bearing to the object of bail. Thus, in Jangbahadur Singh v/s State99, the court said
that it has the power to impose conditions on the grant of bail, and has duty to see
that the concession is not misused by the accused on being enlarged on bail. If the

95 Mohan Singh v/s Union Territory, Chandigarh, AIR 1978 SC 1095, 1096

96 Harsh Sawhnery v/s Union Territory, AIR 1978 SC 1016

97 Omesh Saigal v/s R.K. Dalmia AIR1969 Del. 214

98 In re Kota Appalakonda, 44 Cr. LJ 202 (mad) (1943)

99 52 Cr. LJ 1080 (V.P.) (1951)

55
condition imposed seeks to promote the objective and purpose of bail and directs
an accused that he should not misuse his freedom for thwarting the course of
justice by his non-appearance or the intimidation of witnesses or tampering with
the evidence or the like, such exercise of power on the part of the court is within
its jurisdiction. What has been put as prohibition in the discretionary exercise of
power to grant bail is the imposing of extraneous conditions that do not have any
relevance to the purpose and object of bail.
The judicial mind appreciates that an erroneous decision to refuse bail or any
erroneous decision to grant bail may defile the criminal judicial system to the
extent that it might erode the credibility which sustains the system itself. Judicial
decisions have already provided that the seriousness of the offence for which a
person is accused not a sufficient ground for refusal of bail and the controls under
the code need not fetter the exercise by the court of the discretion to use the power
in an appropriate and just manner 100 so that a refusal of bail does not become a
punishment101. The probability of the accused taking his trial is the criterion to
determine the decision to grant bail and not the supposed guilt or innocence of the
accused102. The delay that is likely to be caused by way of trial is also another
consideration which the court has to look into before arriving at the decision to
grant bail103.
5.5.4 Bail with condition
In some cases a release on bail can be granted with certain restrictions imposed on
the freedom of the accused. Section 436 and 437 of the code provide that
conditions can be imposed while granting release to an accused. The conditions
are to be incorporated in the bail bond which the arrested person executes for the
purpose of his release. These conditions are in the nature of restrictions to be
complied with by an accused in order to facilitate the course of justice. The

100 Bhagwanth Singh v/s State of Gujarat 1984 (1) Crimes 354

101 Babu Singh v/s State of U.P, AIR 1978 AS 527, 528

102 Public Prosecutor v/s M. Sanyasayya Naidu, AIR 1925 mad. 1224

103 Babu Singh v.s State of U.P, AIR 1978 AS 527, 528
56
conditions may require the accused to make himself available for investigation of
the case, or be of such nature as may insure his presence for purpose of trial 104. In
other words, restrictions cannot be of such a nature as may be unrelated to the
basic purpose of bail. In the match-fixing case the accused was granted bail with
the condition of their not leaving the country without prior permission and their
passport to continue to remain with the investigating officer105.
Recently in one of the application of anticipatory bail which was filed by Mr.
Agarwal who was the owner of five star hotel Lee Meridian, sessions court had
granted anticipatory bail and ordered him to deposit sum of Rs. 2 corers in the
name of his daughter-in-law as she has registered FIR against her in-laws as well
as husband under section 498 of the IPC106.
The conditional release has thus come to be recognized under the law of bails.
Conditional bail is, however, contradictory in terms, Justice Horwell of Madras
High Court rightly expressed that conditional bail is illegal in as much as the non-
compliance of the condition amounts to refusal of bail. Where the court directed
the accused to appear before the police commissioner, as and when required it was
held to be an unlawful exercise of discretion 107, though it may be permissible if
notice is given to the accused to present himself 108. The asking for attendance of
an accused in a non-bailable offence is, however, valid. An accused, which has
been granted bail, need not be asked to appear in the court till a charge-sheet is
filled by the prosecution.
Section 441 of the code provides that where any condition is imposed for the
release of any person on bail, the bond shall contain that condition. The terms in
the bond cannot be of penal nature nor can there be a condition of such a nature as
may impinge upon other freedoms of the person granted bail. Thus, the Calcutta

104 Hazari Lal Gupta v/s Rameshwar Prasad, (1972) I S C W R 71

105 S 436 (2) of the CrPC; see the times of India, May 11, 2000

106 See the Times of India, Pune Ed. 5th April 2008

107 Public Prosecutor v/s Raghuramaiah, (1957)1 MLJ (Cr.) 609

108 K.D. Wadhwa v/s Mulchandani, AIR 1940 Send 146

57
high court released the accused on bail and freed the accused of the imposed
condition that he would not leave the limits of his town 109. Likewise, a condition
imposed in the grant of bail that the accused would not take part in any
demonstration or make speeches is unreasonable although such undertaking can
be volunteered by the person seeking bail. Conditions imposed on the grant of bail
which have no nexus with the object and purpose of bail and tend to be in the
nature of harassment to the individual with overtones on ones constitutional and
legal rights cannot be brought within the purview of the lawful exercise of
discretion.
Bail bonds for attendance of the accused can be demanded by the court and the
amount of the bond has also to be determined by it. Imposing of an excessive
amount of bail is an invalid condition of release. Where a person in custody
applies for reconsideration of the quantum on account of change of circumstances
that can be considered by the court for his release de novo110. The requirement that
the bail amount be furnished in cash has also been held to be illegal111.
The conditions can be imposed within the framework mentioned above. However,
restrictive enjoyment of freedom on bail is directed towards the larger societal
interests who are also in consonance with the obligations of the court to
accomplish the judicial process pending conclusion of trial. The requirement to
produce oneself before the police for the completion of investigation or to take
measures for dissociating the accused from communicating with his criminal
associates are well within the objectives of bail and hence can reasonably be
imposed as conditions in the bail.
The delicate light of the law favour release unless countered by the negative
criteria necessitating that course. The corrective instinct of the law plays upon

109 Kamala Pandey v/s king emperor, 50 Cr. LJ 1009 (Cal.)

110 Asst. Collector of Customs, Bombay v/s madam ayabo attenda, 1992 Cr. LJ
3569 (Bom.)
111 Rajballam singh v/s emperor, 45 Cr. LJ 340 (Pat)
58
release orders by strapping on to them protective and curative conditions. Heavy
bail from poor man is obviously wrong112.
5.5.5 Rationale for cancellation of Bail
Section 437(5) of the Cr P.C. gives power to the court which grants bail to an
accused to take him back in custody, when he tries to impede the course of justice
or hamper its administration in any manner. As bail is a valuable right in the
accusatorial system which facilitates the accused to defend his case properly and
to prove his innocence before court, more care and circumspection is expected
from the court while exercising the power of cancellation of bail. The decisions of
the Hon'ble Supreme Court and of various High Courts have emphasis the
importance and distinction of cancellation of bail.
The distinction between granting of bail and cancellation of bail has been
articulated by Justice Chandra in Delhi administration v. Sanjay Gandhi 113. It is
easier to reject a bail application in a non-bailable case, than to cancel a bail
granted in such case .cancellation of bail necessarily involves the review of a
decision already made can by and large be permitted only if any reason of a
supervening circumstances.

What are the supervising circumstances is a question haunting the courts day. In
Aslam Babalal Desai v State of Maharashtra114, It is observed that the following
are the grounds for cancellation of bail.
1. The accused misused his liberty by indulging in criminal activity.
2. interferes with the course of investigation
3. Attempts to tamper with evidence or witnesses.
4. Threatens witnesses or indulge in similar activities which would hamper
smooth investigation.
5. There is likelihood of his feeling to another country
6. Attempts to make himself scares by going underground or becoming
unavailable to the investigating agency, and
7. Attempts to place himself beyond the reach of his surety
112 Article written by Sunil umar Garg R.H.J.S District and Session Judge

113 1978 Cri LJ 952

114 1992 Cri LJ 3712

59
This shows that the cogent and overwhelming circumstances are to be for
cancelling the bail. Vague and general allegation that the accused would tamper
with the evidence is not the sound reason. Considerations applicable to the grant
of bail and considerations for cancellation of an order of bail are independent and
do not overlap each other115. It must also be remembered that rejection of bail
stands on one footing but cancellation of bail is a harsh order because it interferes
with the liberty of the individual and hence it must not be lightly resorted, too.
Hence the apparent distinction in the approach of the Court while granting bail
and cancelling bail there must be material to substantiate the allegation. And the
allegations ought to be proved by such evidence as could be tested on the
touchstone of cross examination116.The Punjab High Court not coy affirmed but
also went further in State v. Surendra Singh Kairon 117 that merely filling affidavits
by the stating that the witnesses were intimidated by accused is not enough. The
court has also suggested that affidavit by witnesses who were alleged to have been
intimidated should be filed, and if the desires he could cross examine them and
shake their credit.
Thus before an order for cancellation can be passed the prosecution has to show
act or conduct of the accused from which a reasonable inference may be drawn
that he has tampered with the prosecution witnesses or has in any ether misused
the liberty allowed to him118.
One question that needs to be addressed here is whether once an accused released
on bail by the thrust of the proviso to section 167 (2) is there mere fact that the
subsequent to his release a challan has been filed sufficient to cancel his bail? It
has been held that in such a situation his bail can be cancelled that considerations
germane to cancellation of bail under section 437 (5) or for matter Section 439 (2)

115 Banerjee, J., Ram Govinda Upadhay v/s Sudarshan Singh, 2002 Cri. LJ 1849

116 Sant Ram v/s State, AIR 1952 J & K 28 at p.28

117 1966, Cri. LJ 863 (Punj)

118 Cancellation of bail emerging trends by swarnika Prasad Cri. LJ 2004 (3) at
p. 205
60
exist119. That is because the release of a person under Section 167(2) is equated to
his release under Chapter XXXILL of the Code. Once he accused has been
released on bail his liberty cannot be interfered i.e. on the ground that the
prosecution has subsequently submitted a charge sheet such a would introduce a
sense of complacency in the investigating agency and would destroy the very
purpose of instilling sense of urgency expected by Ss 57 and 167 (2) of the Code.
Who is entitled to file Petition for cancellation of bail, is a question to be looked
in to with much importance? A plain reading of s. 439(2) shows that there is no
prohibition that an application for cancellation of bail cannot be made by a private
person. In Gaya Singh v. Kedar Singh120, the Patana High Court opined that
ordinarily in a police case it is the State which should move for the cancellation of
bail, but there is nothing to prohibit a private person from applying for
cancellation of bail. It is not a healthy practice to accept third party's petition in
this regard121.
Cancellation of bail under section 439(2) .Cr.P.C C at the instance of the private
party was rejected by Delhi High Court Rajendra Prasad v. Mahesh 122. Similar
view was taken by the Mysore High Court in Ganpati v. State of Mysore 123. In
this case the court observed that once the charge sheet is filed the police against
the accused the court is not justified in entertain any petition filled by private
person and acting upon it, cancelling the bail granted to the absence. This
observation is quite correct and in e with the accusatorial values.
It is seen that the District and sessions Court are entertaining petitions of parties
seeking cancellation of bail granted to an accused, Acting upon such cancellation
of bail without giving an opportunity to the person for petitions whose benefit it
was made is denial of natural justice. At least the court should the courtesy to
119 Bashir v/s state of Haryana, MR 1978 Cri LJ 173

120 1973 Cri LJ 1626 at p. 1628

121 Cancellation of bail anathema to natural justice by P.C John, Cri LJ 1993 at
p. 76
122 1984 2 Crimes 101

123 1972 Cri. LJ 471

61
require the investigating agency's report when third party's petition is entertained.
This is being followed by at least some High Courts. For example In Sant Ram v.
Kalicharan124, the Delhi High Court allowed the third party's petition for
cancellation of bail, because the counsel for the State supported the petition and
urged for the cancellation of bail.
If there is clinching evidence to show that the accused is abusing its liberty and
the State is moving for the cancellation of bail, the court may consider
cancellation. But the Court must show much care and circumspection in
entertaining third party's petition for cancellation of bail. In such circumstances it
would be appropriate if the accused is permitted to disprove the petitioner's
allegation. Because the value of liberty is much higher than anything. The
principle underlying the various provisions in Criminal procedure Code 1973
signifies that the liberty of the individual is of the most cherished value 125. That is
why a caution has been given by the Hon'ble Supreme Court in entertaining
petitions seeking cancellation of bail in Aslam Babalal Desai v State of
Maharashtra126. It must also be remember that rejection of bail stands on one "It
because it interferes with the liberty cancellation of bail is hard order to" the
individual and hence it must not be lightly resorted to.
The Calcutta High Court in A.K. murmur v. Prasenjit Chowdhury 127 the matters of
consideration on the question of cancellation under anted under section 439(2) by
the high court of anticipatory bail granted under section 438 or under section
439(1) by the sessions judge
1. An order granting anticipatory bail under Section 438 section 439(1) is
amenable to appellate/revisional scrutiny and may be cancelled if it was made
exercise arbitrary or improper (and not judicial) excessive of the discretionary
power or was made without application of upon without consideration of all

124 1977 Cri. LJ 486

125 Supra note 171 at p.76

126 1992 Cri. LJ 3712

127 199 Cr. LJ 3460

62
relevant circumstances or was based irrelevant considerations or was vitiated by
any basic error of law or was otherwise perverse.
2 An order granting bail may be cancelled in case new or supervening
circumstances arise after the release on bail such as abuse of the liberty by
hampering the investigation or tampering with witnesses or by committing same
or similar offence but existence of any supervening circumstance following the
grant of anticipatory bail or bail is not the only criterion for cancellation of such a
bail.
3. Although the discretionary power to cancel bail is extraordinary and is to be
exercised sparingly, nevertheless, it is meant to be exercised in appropriate cases,
however few those cases might be.
4. Order granting anticipatory bail or bail must not tantamount to interference
with efficient exercise of statutory functions when dealing with economic offences
such as those under the FERA.
5. Advantage of custodial interrogation should be taken into account in granting
anticipatory bail or bail.
The law is sentinel of the rights of the society and the individual. The rights of the
criminal defendant will be zealously guarded as the cause of public justice. Pre-
trail detention i itself not an evil not opposed to the basic presumptions of
innocence. Pronouncements of Supreme Court have recognised investigation, as
much as the rights of the accused. It was considered justifiable exercise to deny
the liberty to criminal defendant to ensure justice. Ensuring security and order is
permissible non punitive objective, which by pre-trail detention when there is a
dire need of denial of bail, it has to be denied128.
The Law Commission has however recommended more stringency in dealing
with cases where an accused out on bail can interfere with the witnesses /evidence
against him .The commission suggested the incorporation of a new proviso to S.
437 giving opportunity to the Public Prosecutor to oppose the bail. Dealing with
sureties required for the grant of bail, it observed that the sham sureties and touts
are making a mockery of the bail procedure in courts. To prevent such collusion

128 Supra note 115, at p. 148

63
between professional sureties' the Commission recommended the mission the
inclusion of a new s. 441 into the Code making it mandatory upon every accused
to declare all the relevant particulars of the persons who are standing surety for
him. In this regard it also suggested that the Courts under s. 446 before reducing
the liability of a surety, shall record its reasons for so reducing the liability129.
Cancellation of bail in other jurisdictions
England

S 23 of the Criminal Justice Act, 1967 provides for the arrest of persons granted
bail Schedule 1 provides for the non-release on bail if the person is accused of
tampering with the evidence or witnesses in the case130.
United States

The right to bail has been safeguarded through the Eighth Amendment, which
states that "excessive bail shall not be required." In the landmark case of Stack v.
Boyle131 the Supreme Court has interpreted the interpreted the right to bail to be a
part of the presumption innocence enshrined in the due process of law. The US the
however, as regards Cancellation of bail, adopted a utilitarian approach holding
the interests of society above those of an individual. The Bail Reform the Act of
1984 allows the authorities a wider discretion in denying bail.
The Bail form Act allows courts to detain an arrestee pending trial if the
Government demonstrates by clear and convincing evidence after an adversarial
hearing that no release conditions will reasonably assure the safety of the
community. In United States. v. Salerno132 the Supreme Court held that pre-trial
detention of a defendant based solely on risk of danger to the community does not
violate due process or the Eighth Amendment. There exists a rebuttable

129 Law Commission of India, 151st Report on the CrPC, 1973, 1996

130 Archbolds Pleading, Evidence and practice in criminal cases 165 (42nd edn.,
Stephen Mitchell and P.J. Richardson eds., London: sweet and Maxwell, 1985)
131 Chief Justice Vinson in the 1951 US Supreme court decision of Llyod L.
Weinreb, leading cases on criminal justice 8 (new york: foundation free inc. 1990)
132 481 US 739, 754-55
64
presumption of dangerousness in certain offences133. If the defendant successfully
rebuts the presumption, the presumption may still be considered in release or
detention determinations.
Pre-trial conditions of release remain in effect during trial unless the court
determines that custody or imposition of other conditions is necessary to assure
the defendant's presence during the trial or to assure the defendants conduct will
net obstruct the orderly and expeditious progress of the trial 134. A defendant who
violates a condition of release-may be subject to revocation of the release order,
imposition of a detention order, or prosecution for contempt of court. If a
defendant released on bond violates a condition of bond, the Government may
begin a civil proceeding against the defendant by petitioning the Co art to declare
a forfeiture of the bond.
South Africa135

The application of the bill of rights to criminal procedure in South Africa of

another case where rights of the accused are sought to be balanced vis-a-vis social
interest. There exists a provisional cancellation of bail, which becomes accused
fails to satisfy the court that his non-appearance which was due to his fault. In the
case of cancellation of bail, the onus is upon the State to satisfy Court on a
balance of probabilities that there are sufficient grounds for cancellation of bail in
terms of Section 68.Consequently, the accused might have his cancelled despite
the existence of a reasonable doubt The standard is the at required at the bail
application where the prosecution must establish on a balance of probabilities that
it is in the interests of justice to refuse bail. It asserts that the failure to appear or
remain in attendance can best be explained by the accused himself. The onus
imposed on an accused is justified in the circumstances for the reason that bail
should never be granted lightly, especially in cases of serious offences.

133 Amy Ryan Preliminary Proceeding: BIL, 86 (1988) Geo LJ 1445

134 Amy Ryan Preliminary Proceeding: BIL, 86 (1988) Geo LJ 1445

135 cancellation of bail emerging trends by Swarnika Prasad Cri. LJ 2004 (3)
at p. 208
65
The study of the aforementioned jurisdictions revels the reformist trend that has
been visible in criminal law jurisprudence concerning bail for some time now.
Particularly in the European jurisdictions, an emphasis on personal liberty of an
individual has led to measures consistent with the granting of more and more
privileges that enable an accused to preserve his independence from, constraint,
until his guilt is completely proven in a Court of law.
5.5.6 Guidelines for Exercise of Discretion
The discretion is to be exercised in accordance with established principles
discretion of law which are the only proper guidelines. These guidelines may be in
the nature or in the nature of judicial policies laid down of legislative formulations
from time to time by the court. The issues of public policy are equally valid this
regard.
The role of discretion on bail matters has a direct bearing on the purposeful
functioning of the bail system. The objective of the functioning of the system
emphasises the need to harness the consideration for furthering the interests of
criminal justice in a manner that interests of the society of the accused are evenly
balanced. It is for this singular purpose of bettering the course of criminal justice
that a proper use of discretion is most significant for it eliminates the conditions
which are otherwise conducive for the growth of discretionary justice between
those who are bailed out and those who confined in custody till trial.
The laws of arrest and detention in custody in the hands of the law enforcement
agencies need a judicious regulation to preserve the co-equal values of liberty and
security. This can be done by the use of judicial power right from de point of
incarceration of the individual A mechanical and perfunctory application of the
law has necessitated the demand for personal liberty which, in cannot be given an
undue emphasis in a system of criminal justice which seeks to curb the anti-social
tendencies and to punish the wrongdoers. The active role of the courts through the
use of discretion in the bail process thus becomes significant. The courts need to
be reminded in each case of their role and responsibilities so as to enable them to
strike a balance between the contending interests. No dogmatic approach is
warranted by the law or the policy. The judicial discretion is to channelize itself

66
between the diverse interests of security and liberty without giving undue
emphasis to either. While the recent Supreme Court pronouncements have
asserted fully in favour of personal liberty, the judicial trend in criminal
proceedings continues to endorse the fact that the preservation of personal liberty
does not necessarily mean that anti-social elements be facilitated to destroy the
very fabric of the social order136.
The discretion is to be used for implementing the law and policy under levying
the process of bail and the bail system is concerned mainly with those are accused
of an offence. Since the mechanism of bail has been to meet the problems of an
apprehended accused, the system excluded the convicts who have been sentenced
by a court. A convict who has been sentenced to life imprisonment is under a
disability to secure release on bail. The inherited powers of the high court do not
comprehend the use of bail power in such a case. It is only when the Supreme
Court has granted a person special leave under article 132(2) or article 136 that
the discretion to grant bail can be exercised. It may even include a certificate of
fitness given by the high court under Article 154(l) (c).
Keeping statutory considerations in view, the courts refrain from granting bail to
those charged with such felonious acts as are punishable with the sentence death
or life imprisonment. A person who has been a without warrant is having
reasonable grounds for his detention for the felony is entitled to get release on bail
in terms of the legislative guidelines laid down in section 437(1) the Code. The
policy of law is also served if persons circumstanced in of stations of disability or
infinities are enlarged on bail even though the accusations against them may be
serious ones. The purpose and policy of the law is to give differential treatment to
a class of accused persons like the old and sick, juvenile or a woman but each case
has again to be considered in the light of connected facts and the criteria may not
by themselves be deemed sufficient grounds for enlarging them on bail.

136 Krishna Iyer J., in Babu Singh v/s State of U.P AIR, 1978 SC 527, 528
67
It may be noted that in Uthaman v/s State137, the Kerala High Court held that the
disability arising out of conviction of life sentence cannot be a bar for being
enlarged on bail till his appeal is disposed of.
The same may not be tenable where reasonable grounds exist of one's
involvement in a serious offence of murder and abetment thereof because the
release may cause hardship to the investigating machinery. The distinguishing
features of each case are to be discerned judicially to exercise the discretion
though differing standards may be called for in granting bail at the pre-trial and
post-trial stages respectively.
The paramount considerations for refusing an accused bail are the likelihood of
his fleeing from justice and justice and possibility of his tampering with the
prosecution evidence. These are not to be taken as presumptions against the
accused until the prosecution can show that there are circumstances present in the
from which it can reasonably be inferred that the accused is prone to such
conduct, otherwise there cannot be any justification to deprive him of his personal
liberty by refusing to enlarge him on bail. What is important for the court is to
bear in mind that the administration of criminal justice is its prime for which the
appearance of the accused can be secured and his cooperation ensured.
The consequences of pre-trial detention must be appreciated as too grave and
serious for the accused. Often he is subjected to psychological and physical jail
life. He loses his job and is prevented to prepare his defence. In case of indigent
persons it is a constitutional right to have effective legal-aid and advice. It is a
necessary adjunct of criminal trial. Innocent members of his family are forced to
shoulder the burden resulting from his being in detention. These cognate issues of
law and public policy need to be taken note of while exercising the power to grant
bail and appropriately be reckoned with while using the same.
A delayed disposal of proceedings is an ordeal to the accused. As long as the
court is not in a position to determine criminality of an accused within a
reasonable period of time, it should ordinarily release the accused person on bail.

137 1983 CR. LJ 74 (Ker)

68
Corollary, where a speedy disposal of the criminal proceedings is assured, the
grant of bail can be withheld.
Right to speedy trial is a fundamental right and if the trial is delayed it would
amount to the denial of justice and entitle an accused to be admitted to bail. But,
the court must find out the reason behind the delay, if the delay is caused by the
accused himself then bail should not be granted to him. Delay in trial is important
factor and no court can take a prejudiced view in this regard but at the same time
it cannot be magnified to exclude the role played by the same time it cannot
accused in causing the delay.
Accused released on bail be not compelled to appear before court on every day of
hearing till filling of charge-sheet. It leads to unnecessary expenses,
inconvenience and hardship. As long as charge-sheet is not filled the presence of
the accused is not required as the court cannot proceed with the case.
This judicial pronouncement places an onerous responsibility on the court matter
of exercising discretion in granting or refusing bail to an accused. The court has to
take into consideration number of interests involved in a case. It has to reckon the
need for personal liberty of the accused, the requirements of administration of
justice, the issues of public safety and the need for relieving the burden on the
public exchequer.
A judicial response to the objective conditions prevailing in the society cannot
escape notice which must be reflected in the exercise of the discretion. Thus, an
act like heavy bail amount from poor men is obviously wrong. Poverty is
society's malady and sympathy, non-severity is the judicial response 138, But while
deciding the amount for bail heavy amount can be imposed in economic offences
or white collar crimes like counterfeiting of stamps, that also after taking into
consideration, status of the accused his, economic conditions, so as to taking in
prevent the incidents of bail jumping. Recently in an application seeking
anticipatory bail by Agarwal family members who are the owners of the one of the
five star hotel, Hotel Le Meridian, Sessions Court ordered to deposit 2 crore in the

138 Moti Ram v/s State AIR 1978 Cr. LJ 1703 (S.C)
69
name of their daughter-in-law ,as she had filed FIR under section 498-A of the
Criminal Procedure Code, 1973139.
It must be kept in mind that bail is not to be withheld as a punishment but that the
requirements as to bail are merely to secure attendance of the accused.
Section 441 of the Code of Criminal Procedure lays down the valuable principle
regarding the amount of bond executed under chapter XXXIII and enacts that the
amount of every bond shall be fixed with due regard to the circumstances of the
case and shall not be excessive.
The court rightly emphasised the geographical unity of India and disapproved the
long standing practice of rejecting sureties from persons not owning property
within the jurisdiction of the court concerned. No amount of bad practice can
make good law.
While exercising the discretionary power, the need for liberal interpretation in
areas of social justice, individual freedom and indigents right must be kept in
mind.
If a bail has not been granted by the court initially, it can be given at later stage
too. There can be no dispute that bail, once refused, can be given later. Likewise a
bail once granted can subsequently be cancelled. Each case has its own merit;
each case has to be decided on the facts and circumstances arising at the relevant
time. The use of discretion in refusing bail is as important as for granting of bail.
However, where a bail is refused it is incumbent upon the court to record reasons
thereof. In fact, a reasoned order at every stage of the trial is implicit in the
concept of fair trial. The additional obligation of the court, in cases of refusal of
the implementation of constitutional rights regarding accused's representation by a
competent lawyer and recourse to speedy justice.
5.6 Third Phase: Prescribing the Forms and Modes of Bail
THE CODE of Criminal Procedure, 1973 contains several provisions which deal
with the release of an accused from custody with the condition of his appearance
in the court for trial. The pre-trial release is generally affected through bail. The
Code has used various expressions like bail, bond, security, surety, etc. which

139 Times of India, Pune Ed, 5th April 2008

70
indicate the forms and modes of release of a person from custody and to ensure
his appearance in due time before a court. Thus, it can be said that the Code
prescribes various forms of release on bail. Out of these provisions, the court may
prescribe or the other or even more than one form for granting bail to an accused.
Practically, the forms of release under the Code can be:
(i) Security, (ii) security with bail, (iii) security with bail and bond, (iv) security
with bond with or without surety, (v) security with or without authority (vi)
security with bond and surety (vii) security with bond without surety (viii) bail
(ix) bail with sureties (x) bail with bond (xi) bail with bond.

CHAPTER 6

COMPARITIVE ANALYSIS OF BAIL LAWS IN

INDIA, U.K, U.S.A

6.1 Human Rights and Bail

Liberty is the most precious of all the human rights both the American declaration
of independence, 1776 and the French declaration of the rights of man and the
citizen, 1789 spoke of liberty being one of the natural and inalienable rights of
man. The universal declaration of human rights adopted by general assembly of
the United Nations on December 10, 1948 contains several articles designed to
protect and promote the liberty of the individual. So does the individual covenant
on civil and political rights 1966. Above all article 21 of the constitution of India
proclaims that no one shall be deprived of his life and personal liberty except in
accordance with the procedure prescribed by the law liberty along with equality is
the most fundamental of human rights and the fundamental freedoms guaranteed
by our constitution.

71
Arrest is an instrument awarded by the society to its servants (law enforcing
authorities) to infringe the most cherished and protected fundamental right of
liberty of its constituent the individual to protect the other constituents from his
criminal wrongs and to compel wrong doer to be dealt in accordance to the law.
On the contrary bail is the mechanism to restore the liberty of the arrested persons
by entrustment or bailment his person either to himself or some other credible
person willing to stand surety that the arrested person shall face the trial and
behave in a manner which shall not be prejudicial to the administration of justice
and interest of the victim.
Human Rights are a concept to uphold the dignity and liberty of human beings
along with other natural rights, which have to be acquired by the human being by
his birth. Bail is a legal process to restore the legally infringement of right of
liberty, as such human rights are supportive to the right of restoration of liberty
and have its consideration in deciding or rejecting the plea of bail.
Historical Background of Human Rights
The concept of human rights has existed under several names in European thought
for many centuries, at least since the time of King John of England. After the king
violated a number of ancient laws and customs by which England had been
governed, his subjects forced him to sign the Magna Carta, or great charter, which
enumerates a number of what later, came to be thought of as human rights. Among
them were the rights of the church to be free from governmental interference, the
rights of all free citizens to own and inherit property and be free from excessive
taxes. It established the right of widows who owned property to choose not to
remarry and established principles of due process and equality before the law. It
also contained provisions forbidding bribery and official misconduct.
The political and religious traditions in other parts of the world also proclaimed
what have come to be called human rights, calling on rulers to rule justly and
compassionately, and limits on their power over the lives, property and activities
of their citizens.
In the eighteenth and nineteenth centuries in Europe several philosophers
proposed the concept of natural rights, rights belonging to a person by nature and

72
because he was a human being not by virtue of his citizenship in a particular
country or membership in a particular country or membership in a particular
religious or ethnic group. This concept was vigorously debated and rejected by
some philosophers as baseless. Others saw it as a formulation of the underlying
principle on which all ideas of citizens rights and political and religious liberty
was based140.
The term natural rights eventually fell into disfavor, but the concept of universal
rights took root. Philosophers such as Thomas Paine, John Stuart Mill, and Henry
David Thoreau expanded the concept. Thoreau is the first philosopher to use the
term, human rights, and does so in his treatise, civil disobedience. This work has
been extremely influential on individuals as different as Leo Tolstoy, Mahatma
Gandhi and Martin Luther King. Gandhi and King, in particular, developed their
ideas on on-violent resistance to unethical government actions from this work.
Other early proponents of human rights were English philosopher John Stuart
Mill, in his essay on liberty and American political theorist Thomas Paine in his
essay, the rights if man141.
Universal Declaration of Human Rights
Article 1
All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of
brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a person

140 Russel Weaver, Les Abramason, Ronald Baeigal, Joun Burkoff, Donald
Lively, Catherine Hancock, Criminal Procedure Cases, Problems & Exercise,
American case book series, West 660
141 Supra note 238
73
belongs, whether it is independent, trust, non-self-governing or under any other
limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and security of person.
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal
protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to such
discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and obligations and of
any criminal charge against him.
Article 11
(1) Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence.

74
(2) No one shall be held guilty of any penal offence on account of any act or
omission which did not constitute a penal offence, under national or international
law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, or to attacks upon his honor and reputation. Everyone has the
right to the protection of the law against such interference or attacks.

6.2 Laws relating to bail in U.K.

A. Introduction

The admission of a defendant to bail is the defendants release from custody in

exchange for a pledge of something of value that the defendant will appear in
court and will comply with the courts orders in a pending case. Bail is the Anglo-
American criminal justice systems answer to the issue of what is to be done with
an accused, whose guilt has not been proven, during the time period between
arrest and trial. Conceptually, the use of bail is to accommodate the defendants
interest in pretrial liberty (consistent with the presumption of innocence) and
societys interest in assuring that the accused is present for trial.
Theoretically, in each case a judge decides whether to grant pretrial release, and if
so, what monetary amount and/or conditions of release will guarantee the
defendants presence at trial, a judges discretion to make pretrial release available
is limited, however, because most state constitutions expressly guarantee pretrial
release before conviction. While the United States constitution contains no right to
pretrial release, both state and federal constitutions implicitly recognize the
fundamental nature of the right to bail by their express prohibition of excessive
bail. The eighth amendment states that excessive bail shall not be required. Bail
becomes excessive when a court sets it higher than reasonably necessary to assure
a defendants appearance at trial142.

142 Stock v/s Boyle, 342 U.S 1, 72 (1951)

75
Several limited legislative or judicial exceptions to pretrial release exist. First, in
states which use capital punishment, the denial of bail occurs in capital cases if
the prosecution can show that the proof is evident or the presumption is great that
the defendant is guilty. Second, the denial of bail frequently is authorized in cases
in which a prisoner has escaped and is recaptured. Third, denial of bail also may
be authorized in cases of criminal contempt. Finally, in response to a growing
problem of defendants committing crimes during the period of pretrial release,
state legislatures and the congress have enacted laws prohibiting pretrial release
due to a defendants criminal history or to the nature of the pending charges.
The amount of monetary bail is determined by the court. The defendant may
pledge real or specified kinds of personal property, cash or its equivalent, or
merely the creation of a personal obligation. The qualification and sufficiency of
proposed sureties are subject to regulation and supervision. Once given, bail
remains in effect until it is modified by the court or until the termination of the
proceedings for which it is given. If the defendant fails to comply with the terms
of the pledge, the country may take action to enforce the liability of the surety and
may proceed to have the defendant arrested.
A bail bond or recognizance bond is a form of contract. While it need not be in
any exact form, it must be sufficient to show generally the terms of the
undertaking. Either the bond or the court records must show that the defendant
was lawfully in custody, charged with a public offense, and was released in return
for a pledge by the defendant or a surety of something of value to insure his
appearance before the court at some future date.
The bail may be taken by a clerk of the court in which the defendant is held to
appear or by some other authorized and bonded local official if a clerk is
unavailable. The defendant and the defendants sureties, if any, must sign the
bond. The court may also impose non-financial conditions, which are incorporated
into a written order and signed by the defendant.
B. Types of Release

Personal Recognizance: Release on personal recognizance may not fall within the
technical definition of a bail bond. Upon acquiring control over the person of the
76
defendant, the court merely allows the defendant to be at liberty in return for a
written promise to return and to comply with the orders of the court throughout
the case. Because the defendant has this duty anyway and the only thing the
defendant pledges is the surrender of liberty which is already under the power of
the court, a release on personal recognizance is not a contractual undertaking for a
consideration in the classical sense.
Release on personal recognizance has long been a practice in the courts, and for
good reason. If the defendant has ties to the community and will likely return to
court without the imposition of liability or other conditions, the requirement of a
bond accomplishes none of the purposes of bail but rather imposes a substantial
hardship upon persons of limited resources. Perhaps for this reason, the law not
only acknowledges the power of the courts to release a defendant on recognizance
but indeed entitles a defendant to release in this manner unless the court finds that
something more is required to insure the defendants appearance in court.
Unsecure bond: An unsecured bond is a pledge by the defendant alone to be liable
for a specified sum if the defendant should breach a material condition of release.
Unlike the release on personal recognizance, the unsecured bond is a contractual
undertaking in the true sense. The unsecured bond undoubtedly has an advantage
over the release on personal recognizance in the case of a defendant of means who
has long term ties to the community. The bond gives the defendant a financial
stake in obeying the orders of the court and thus helps insure the defendants
appearance. On the other hand, the theoretical civil liability of an indigent
defendant upon an unsecured bond provides no real stake in the proceedings.
Release on Nonfinancial Conditions: Release on non-financial conditions may not
technically be a separate kind of bail or undertaking. However, the court has the
power to annex non-financial conditions to the basic bond agreement that the
defendant will be responsive to the orders of the court. Courts should impose the
least onerous conditions which will insure the presence of the defendant in court.
Such conditions may include but are not limited to placing the defendant in the
custody of a person or agency, placing restrictions upon travel, association or
place of abode, or requiring confinement during specified hours.

77
Cash Bond: A defendant may be released from custody by depositing cash in the
amount of the bail with the court. The money is deposited by the clerk in an
escrow account, and is available for forfeiture or for application to indebtedness
upon judgment in the case. A major advantage of the cash bond is that it gives the
defendant an immediate stake in the court proceedings. The cash may be returned
only if upon compliance with the terms of the bond. The defendant thus faces an
immediate financial loss, rather than some sort of distant civil liability, as would
be true under an unsecured bond. A further advantage of the cash bond is that it
creates a visible asset which can be assigned to counsel for a fee. Thus, the money
can do double duty, and the private bar is able to obtain employment in cases
which are otherwise assigned to appointed counsel due to depletion of resources
in order to obtain release on bail.
Percentage Bond: Instead of a total cash bond, a court may permit the defendant
to deposit only a percentage of the total amount of the bond. The money deposited
is generally handled in the same way as a full cash bond. However, a portion of
the deposit is kept by the court for operating costs. The percentage bond can be
used effectively to permit the release from custody of defendants of limited means
and still provide adequate assurance that they will appear in court.
Property Bond: The pledging of real property or of stocks and bonds as security
for a bail bond is permitted. The proposed pledge of security must be justified by
a detailed statement filed with the court. If the pledge is of real estate, it is
recorded as a lien. Upon the failure of the defendant to comply with the terms of
the bond, security in the form of real property or of stocks or bonds may be
forfeited in whole or in part. On the other hand, if the defendant is discharged
from the obligations of the bond, the stocks or bonds are returned to their owner,
and any lien on real estate is released.
Surety bond: The court may require the bond of a defendant to be underwritten by
one or more sureties. In this classic bonding situation, the surety is undertaking an
indebtedness to insure the conduct of another. However, unlike the surety offering
security for a property bond, the surety on a surety bond is not required to create
an encumbrance on property and enforcement of the obligation is essentially the

78
same as any other civil action for debt. The officers before whom bail may be
taken shall ascertain that the amount deposited is no less than the amount fixed by
the court. In the case of a surety bond, the surety or sureties must demonstrate by
affidavit a net worth at least equal to the amount of the undertaking.
Guaranteed arrest bond certificate: A guaranteed arrest bond certificate is a
printed card or certificate of an association obligating the association and a
licensed surety to guarantee the appearance in court of the member whose
signature appears on the certificate and to pay any fine or forfeiture imposed upon
the member, not to exceed a certain amount of money/ Such a certificate may not
be accepted for certain violations, such as the laws regulating motor carriers or for
the offense of driving under the influence of an intoxicant. Such a certificate may
be accepted for any traffic offense in lieu of a cash bond not to exceed five
hundred dollars.
The court in United States v/s Mantecon Zayas 143, held that a court can impose a
financial condition exceeding defendants means as long as the judge finds that
the bail is reasonably necessary to assure the defendants presence at trial.
Although the nature of the crime and the weight of the evidence are relevant to a
courts decision about whether to authorize preventive detention, note that the
court also must consider them in deciding the proper conditions of release. Under
3142 (g), the court determines whether the charged offense is a crime of violence
or involves narcotics, and weight of the evidence against the defendant.
6.3 Laws Relating to bail in U.S.A

The question of bail can arise twice, firstly at the police station and again when
the accused has to appear before a court. When bail is granted, it means that a
person who is suspected or accused of a crime is released from detention until his
case is heard.
Bail is defined as the release of a person subject to a duty to surrender to custody
at a particular time and place.

143 949 F. 2d 548 (1st Cir. 1991)

79
Suspects remanded in custody awaiting trial are more likely to plead guilty, be
convicted and to be given a custodial sentence, than others released on bail. If a
person has been arrested by warrant, the warrant will have provisions included as
to whether bail should be granted; this decision is made by the magistrate who
issues the warrant. If arrest is not under warrant the police must act in accordance
with the provisions contained in the police and criminal evidence act, 1984. Under
PACE the custody officer is responsible for deciding whether to continue the
detention of a suspect who has not been charged. The custody officer will be able
to do this if he thinks it is necessary in order it secure or preserve evidence
relating to an offence for which he is under arrest or to obtain such evidence by
questioning him. A person who has been charged must be released unless:
The police cannot discover the persons name and address or believe that
the information given is false
The police reasonably believe that detention is necessary for the persons
protection or to prevent the person causing harm to someone else or
interfering with property
The police reasonably believe that the person will jump bail, interfere with
witnesses or otherwise obstruct the course of justice.

A juvenile can be detained in custody in his own interests. Any person who is
detained in custody must be brought before a magistrates court as soon as is
practicable. Criminal statistics indicate that there is a large percentage of people
granted bail by the police following an arrest. In 1986 the figure was
approximately 90 %.
Bail from court
The granting of bail from court is governed by the bail act 1976. This legislation
was passed in response to the wide discretion that magistrates previously had to
grant bail and in order to increase the number of defendants released on bail
before trial.
Right to bail
Section 4 Bail act 1976 governs the accuseds right to bail. However, this section
does not relate to all stages in the proceedings. Section 4 gives a right to bail in

80
those cases which do not come within Schedule 1 of the Bail act. It would be up to
the defense in those cases to plead for bail; there is no statutory right in favour of
it.
The exceptions to bail are classed in two lists:
The first list will apply if the defendant is charged with an offence which
carries a possible custodial sentence
The second list applies if the offence is one which does not carry a
custodial sentence. If it is an imprisonable offence, a court does not have
to grant bail if it believes that the defendant may:
a) Fail to surrender to custody; or
b) Commit an offence while on bail; or
c) Interfere with witnesses or otherwise obstruct the course of justice144

An accused person who is charged with an imprisonable offence may also be

refused bail if the court requires reports to be made concerning the accused and
deems it fit that he remains in custody while these reports are being compiled.
Bail can also be refused if the defendant has previously failed to surrender to the
court/police and there is a possibility this will occur again.
If a court grants bail they can also impose conditions on the defendant e.g.
reporting at regular intervals to a police station, residing at a stated address, or
surrendering a passport. The court can still require a surety a person who will
agree to pay the court a sum of money if the defendant fails to appear.
If a defendant is refused bail, he must be informed of the reasons why this
decision was made. If the accused is not legally represented and bail is not granted
the defendant must be informed of his right to appeal to a higher court.
Appeal against refusal to grant bail
If an accused person is not granted bail a record must be made of the reasons why
and the defendant can if he so wishes obtains a copy. An accused person can
appeal against a magistrates decision not to grant bail to the High Court. The
High Court has the power to grant bail or vary any of the conditions attached by
magistrates145. An accused person not granted bail can also appeal to the crown
court which can grant bail if:
144 Supra note 29 at p. 80 to 99
81
 The magistrates have remanded the defendant in custody after a full bail
application has been made
If the magistrates have committed the defendant to the crown court for
trial or sentence, or
If the magistrates have convicted the accused and refused him bail pending
appeal to the crown court

Reform
There has been much public concern about the number of offences committed by
persons who are released on bail, so called, bail bandits, and the government is in
the process of reforming bail procedures. There is now to be an automatic refusal
of bail in homicide cases and in cases of rape or attempted rape, where the
defendant has been convicted of a similar offence previously and was given a
custodial sentence. Further, if the defendant is already on bail and is charged with
an indictable offence, or triable either way offence, the right to bail will be
refused146.
6.4 Comments

Article 21 of the constitution, article is corresponding to:

1. Magna Carta of 1215
2. The fifth amendment of the constitution of USA
3. The article 40 (4) of the constitution of Eire 1937
4. Article XXXI of the constitution of Japan 1946
5. Article 103 of the constitution of Federal Republic of Germany
6. And closely related to
i. Article 3 and 9 of the Universal Declaration of Human Rights 1948
ii. Article 9 of the U.N Covenant on civil and political right 1996
iii. Article 2 of the European Convention on Human Rights 1950

Although right to bail is not expressly demarcated in the provision it can be

implies from article 21 of the Constitution.
In USA although no classification is made as to bailable and non bailable as well
as cognizable and Non cognizable, the present Federal rules of criminal

145 (s.22 Criminal justice act 1967)

146 Supra note 29, at p. 87

82
procedure, rule 46 (a) (1) U.S.C.A Federal law has unequivocally provided that
the person arrested for a non-capital offence shall be admitted to bail. Thus Indian
laws of Bails are more specific, clear and unambiguous than US laws.
This traditional right to freedom before conviction permits the unhampered
preparation of defence and serves and to prevent the infliction of punishment
prior. Unless this right to bail before trail is preserved, the presumption of
innocence, secured only after centuries of struggle would lose its meaning147.
Moreover rule 46 (c) of the Federal Rules of Criminal procedure provides that
AMOUNT, if the defendant is admitted to the bail amount thereof shall be such
as in the judgment of the commissioner or court or judge or justice will insure the
presence of the defendant, having regard to the nature and circumstances of the
offence charged, the weight of the evidence against him, the financial ability of
the defendant to give bail and the character of the defendant. Bail set at a figure
higher than an amount reasonably calculated to fulfill this purpose is excessive
under the eighth amendment148.
Thus regarding the amount of bail American law is more precise and clear than
Indian Law. Section 440 of the criminal procedure code, 1973 says that the
amount of every bond executed under this chapter shall be fixed with due regard
to the circumstances of the case and shall not be excessive. The high court and
the court of sessions have a power to reduce this amount under this section.
Whereas section 445 provided that when any person is required by any court or
officer to execute a bond with or without sureties such a court of officer may,
except in the case of a bond for good behavior, permit him to deposit a sum of
money or governments promissory notes to such amount as the court or officer
may fix in lieu of executing such a bond. Thus Indian laws on bail do not specify
as how the amount of bail is considered and it depends on which circumstances?
No standard amount is defined under the bail rather it is a discretionary power of
the court to decide the amount of the bail. Thus we can say that law of bail is a
judge made law.

147 Stack v/s Boyle, 342 U.S 1, 72 S.Ct. 196 L. Ed. 3 (1951)

148 Ibid
83
Although the bail laws are more specific in USA imprisonment rate in our country
is around 30 per one lakh population, and is quite low as compared to U.S with
750 per one lakh population149. This shows that rate of criminality is much more in
USA. Now here question arises as to whether police system is more efficient or
criminality has increased to that exist?
Human rights should be protected by rule of law. The procedural law of bails
should be just fair and reasonable. Which will recognize the inherent dignity and
of the equal and inalienable rights of all members of human family. Recognition
and protection of human rights is the foundation of freedom, justice and peace in
the world.
One side is the social need that crime should be repressed while on the other side
liberty of the individual is also to be protected and if the balance between the two
is maintained, then and then only there will be Rule of law otherwise there will be
Rule by law. In the forthcoming chapter evaluation of bail laws is made and thus
how the new approach to bail laws is to be given is discussed thoroughly.

149 Combat Law, March-April 2008 Vol. 7, Issue 2 at p. 33

84
 CHAPTER- 7

CONCLUSION & RECOMMENDATIONS

7.1 Evaluation of law of bails

The Practice
The law governing bail in India is inadequate, uncertain. The working of the
system is also unsatisfactory. It also recognizes that pre-trial releases by the police
on bail are within the purview if the bail system. Further bail can be granted
before the accused makes an appearance in the court or before the verdict of the
trial is passed and even after he has been declared guilty and convicted in order to
enable him to avail appeal process.
The practice of releasing on bail has assumed the form wherein an accused enters
into a bond specifying a sum of money which he is liable to forfeit if he fails to
perform any of the obligations imposed on him by the court. Generally, the
guarantee in terms of money in a bond is not deposited in cash in a court, though
the practice to do so in the case of a police bail may be a valid one.
In addition to the bond, the release condition on bail may require a surety (or
sureties), who has also to behind himself to pay a specified sum of money in the
event of the failure of an accused to appear before the police or the court on the
appointed day. In the common law, a surety was essential to bailout a person,
which was later dispensed with. However, the code of criminal procedure never
85
spelled out the requirement of a surety as a precondition for release on bail though
in practice the courts grant bail only on the accuseds furnishing a bond with a
surety.
Law does not define the nature and extent of the conditions which may be
imposed by courts on grant of bail. The condition prescribed under the law is the
preparedness of an accused to give bail. A person is entitled for his release on his
readiness to offer bail on bond which he can only miss if he is unwilling or unable
to offer bail or lacks the capacity to execute bail bonds. Fixation of the amount of
bail for the accused and surety bonds are lawful conditions that can be imposed
while exercising the powers to grant bail. The bail amounts ought not to be
excessive and the demand for verification of surety not unreasonable. The amount
can be changed with change in circumstances. Condition may be imposed on the
accused about his attendance in the court on a fixed date and place.
However, no statutory limits exist on the amount of bail bond or the number of
sureties that may be required. The entire matter is left to the discretion of the court
without giving any guidelines.
The imposition of conditions can, therefore, be in the nature of prescribing certain
requirements to be fulfilled for securing a release. A sum demanded by way of
stipulation is to determine the economic status and social position of the accused
with a view to ascertaining his roots in the community.
A condition imposed must have a bearing with the nature or purpose of the bail,
which for all practical purposes is a process of the system of criminal justice
besides being a mode to secure the accuseds freedom.
The courts have been putting unwarranted restrictions on the freedom of an
accused even after he had fulfilled lawful conditions for securing his release on
bail. In the context of article 19 of the constitution of India, the exercise of
judicial power to impose conditions as stated above ought not to be deemed valid
since such actions collide with one or the other freedoms guaranteed to an
individual under the constitution. But it is doubtful whether such conditions can
be raised as unconstitutional and invalidated. From this, it is apparent that the bail

86
order with conditions, even though it may be an unreasonable restriction on the
persons fundamental rights, would remain untouchable and the conditions valid.
Precedents continue to show that it is well within the courts jurisdiction to
impose some restrictions on the freedom secured by an accused who has been
granted bail, irrespective of the fact whether these restrictions really relate to the
purpose of the bail or not. Unreasonable restrictions on freedom, however, cannot
be justifiably imposed in any case.
A court cannot impose conditions which may restrict the freedom granted to the
accused on bail under section 436 of the code. The bail in bailable cases can be
fettered only by the requirements of the willingness and capacity of the accused to
furnish bail bond and such other conditions as are provided under section 436 (1)
and (2). The prescribed requirements may not be enough to give credibility to the
working of a bail system and perhaps leave some lacunae but this may not be
allowed to put the bail system to an abuse through the judicial practice.
The courts power to impose conditions on the grant of bail in bailable cases may
frustrate the very purpose for which the bail is sought by an accused. Hence such
power has neither been given nor needs to be given. However, in order to
strengthen the bail system, the law requires that courts be vested with such
discretion as may call for the use of such conditions as may promote the policy
and purpose of bail in ensuring the accuseds attendance before the court while on
release and also that his behaviour during the period of release conforms to such
norms as may not cause prejudice in the minds of the court and the community
that his freedom on bail may jeopardize the criminal process with a view to
frustrating the interests of justice. The limited discretion thus vested may be
helpful in tailoring a bail order to the requirements of a particular case and to a
particular accused. It is. However, not to be used to put unnecessary restrictions
on the enjoyment of such freedom of the person as are guaranteed to him under
the constitution150.
It has been reiterated that the arrangement to free an accused is a mere facility that
the system of criminal justice provides by way of bail, subject to such limitations

150 Supra note 67, at p. 174

87
as may be warranted by the exigencies of administration of justice. The law and
practice provide only a hazy picture in this regard. This area of the administration
of criminal justice, therefore, calls for an in depth study to bring meaningful
reforms. The extent and limit of the courts power and discretion have to be
mapped out keeping in view the need of grant of bail as well as the right of the
accused to enjoy his freedom once he is out on bail.
The application of law and discretion in the matter of grant or refusal of bail has
introduced another issue as well. It is the doctrine of presumption of innocence
that is sometimes taken as a plea for dissuading the courts to exercise their
discretion against the accused. An accused is presumed innocent until it is proved
to the contrary. A refusal of bail, therefore, tends to become a punitive measure for
which the law does not accord sanction. It can result in injustice to the individual
by way of his loss of employment, his inability to support his dependants,
disruption of his social and family relationships and difficulties in arranging for
his own defence.
The present law is uncertain as to how far the bail process does affect the
presumption of innocence. In practice the use of, the doctrine has been seldom
made and whenever the plea is forwarded, the courts bypass it on being satisfied
that the proof of guilt in police possession outweighs the claim of the
presumption. The application of the presumption of innocence for purposes of
considering the issue of pre-trial release may become redundant if release is
considered only as a policy in the administration of justice for the limited purpose
of ensuring the presence of the accused without getting the co-equal values of
freedom and security disturbed151.
If bail laws are not efficiently applied it will affects criminal justice system in
many ways. Congestion is caused in prison houses, where the remanded prisoners
are housed. The cost of confining and maintaining them is borne by the state. By
adopting a reckless attitude towards the welfare of the dependants of the accused,

151 Supra note 67, at p. 174

88
the welfare state may also not conform to the standards of social justice which it
declares to profess.
Competing considerations have to be accommodated in the law of bails. The
opportunity granted to an accused by way of bail is sometimes abused by him in
several ways. It may be either to save himself from the impending culpability or
engage himself in other activities of crime in order to improve his financial
position or continue to his career of crime which he has chosen for himself. Public
concern gets warped as a result of the abuse of such freedom. The incidence of
bail-jumping and an increase in the number of proclaimed offenders do no good
either to the public concern or to the system of criminal justice.
All these call for a review of considerations which have so far been exist in the
law for purposes of grant or refusal of bail. The inadequacy of infrastructure to
enable the court to get information about the accused and the verification of
sureties and other related information may have to be removed may call for
installation of a policing sub-agency under the control of the country for finding
ways and means to get wider and effective public participation on the lines
unfolded by the Manhattan Bail project152.
7.2 Pre-conditions for Bail Reforms
Reformulation of bail provisions in the code may alone be not sufficient to make
the system of bail function with a purpose. A serious effort of securing public
support and participation in the administration of criminal justice, coupled with
necessary legislative, executive and judicial powers to act effectively are most
warranted. Such an effort alone can help in fulfilling the pre-conditions required
for smooth operation of the bail system.
Urgent attention in this regard is needed towards the:
a) Proper functioning of police power
b) Speedy trial of the accused
c) Availability of legal aid and legal service from the preliminary stage to the
terminal end of criminal process

Proper functioning of police power

152 Supra at p. 123

89
The code of criminal procedure vests police with necessary powers of detention of
an accused and investigation of the crime he is suspected to have committed.
However, confusion should not be made between these two powers. Police should
not consider every arrested person as an accused. They should keep in mind the
principle of presumption of innocence. They should keep in mind that bail comes
under trial process and not under penal process.
Their behaviour should not be such that it will create a consequent threat of
human rights of innocent persons. It does not mean that the police should fold up
their hands and remain inactive while dealing with antisocial elements but the
means adopted by them must be as good as the ends.
As an important component of the criminal judicial administration, police has to
be cloned to their newer obligations and role in a democratic social order. All
these would necessarily usher in changed police behaviour towards the issue of
dignity and freedom of the individual and lead them to behave professionally and
scientifically in their investigatory activities of evidence collection.
A useful device to check arbitrary and unlawful action could be through civil
actions for statutory breaches committed by those policemen, who are in a
reckless and illegal manner misuse their power.
The functioning of the entire judicial system and would thus secure to the people
the kind of qualitative justice everyone is now looking for in an otherwise awry
system of criminal justice
Speedy trials
Right to speedy trial is a fundamental right and if the trial is delayed it would
amount to the denial of justice and entitle an accused to be admitted to bail. In
criminal cases recourse to speedy trial can be had by observing the provisions of
section 437 (6) of the Cr.P.C, which provides that if a trial cannot be concluded
within a period of ninety days from the date fixed for taking evidence in the case,
the persons in custody be released on bail unless for reasons to be recorded in
writing the magistrate directs otherwise.
Furthermore, if the judicial machinery is slow in moving the wheels of justice to
the detriment of the valuable rights of an individual facing criminal proceeding,

90
alternatives have to be evolved. It be suggested that in criminal trials the
concerned agency, viz, the police, prosecutor, or the trial court, must be made
answerable to the Supreme Court, where it may be brought to notice that the
fundamental right to speedy trial is being denied or has been denied to a person.
Mere directions and passing of severe structures alone are not sufficient devices
for implementation of this right.
The concept of fairness, a necessary ingredient of article 21 of the constitution,
has been emphasized by the Supreme Court in almost all aspects governing the
application and administration of criminal laws.
The recommendation of the Mali math committee 153 suggesting that, investing
agency should be separated from that of agency maintaining law and order should
be implemented so that there will be less burden on investigating authority which
will increase their efficiency and even the quality of the work which will make the
criminal justice process speedy.
Legal aid and services
Besides promotion of human values as enshrined in the constitution, state
governments are under constitutional responsibility to provide free legal services
in the course of administration of criminal justice. In Kadra Pehadiya v/s State of
Bihar154, the Supreme Court directed the sessions judge, that four persons, who
had been rotting in jail as under trial prisoners for a period of over eight years, be
provided legal representation by fairly competent lawyers at the cost of the state.
Legal aid in a criminal case has thus been held to be a fundamental right which is
implicit in article 21 of the constitution.
In 1987 the parliament of India enacted the Legal Services act which was
amended after a nationwide debate and brought to effect in November, 1995. The
act provides a uniform base for constituting legal service authorities at the state,
district and taluka levels, headed by national legal services authority. Cover of the
legal services is extended alongwith others to persons in custody also. In a true

153 Committee on reformation of criminal justice system, government of india,

ministry of home affairs, march 2003
154 (1981) Cr. LJ 481 at 4823 SC
91
quest to seek gains the role of all governmental agencies. NGOs, lawyers and the
police has to be positive. Till date lethargy and willful ineptitude continue.
The High courts and Supreme Court are committed to upholding the constitutional
right of poor defendants to legal assistance. Despite this, the system of legal aid
needs practical reform to ensure that defendants really to achieve equality of arms
in the court room. Advocates acing on legally aided cases are paid very badly. The
current fee structures for legal aid cases dates back to 1997. Advocates are paid
Rs. 50 per hearing in the magistrates court and Rs. 150 per hearing in the
sessions court. If we are to recognize, as the court have that legal aid is a
fundamental cornerstones of a fair criminal justice system, the fees paid to
advocates taking on legal aid cases must be increased from these measly sums to
encourage experienced lawyers to represent the poorest defendant.
Legal aid really can mean the difference between life and death. For the poorest
defendants to have truly equal standing before the law, incentives must be given to
encourage experienced and capable lawyers to represent the neediest.
There should be accountability in the legal aid system to ensure that the advocates
who volunteer to take an legal aid work do actually carry out the work they have
been assigned. One possible way of doing this would be to ask all advocates to
make an undertaking to represent their clients to the best of their ability.
7.2.1 Bail Reforms
Bail should be granted as a matter of course except in case of serious offences and
except in certain specified circumstances. It was suggested that except in case of
serious offences against the state, the bail provisions should be made liberal and
that bail should be granted almost as a matter of course except where it is
apprehended that the accused may disappear and evade arrest or where it is
necessary to prevent him from committing further offences or to prevent him from
tempering with witnesses or other evidence of crime.
Though the subject of bail does not strictly fall within the ambit of the law
relating to arrest, its close connection with the law of arrest cannot be denied. We
are concerned herein with the question of bail pending investigation. For ensuring
proper protection of the constitutional and legal rights of the accused, it is

92
necessary not only to clarify and circumscribe the power of the police to arrest
without warrant, it is equally necessary to deal with the question in what
circumstances a person arrested by the police without warrant is entitled to bail.
The objective of the provisions relating to bail contained in Cr.P.C is recognition
of the fact that pending investigation, as well as pending trial, the accused should
not be kept in police custody or in jail unless it is necessary for the purpose of the
case. In other words, unless it is apprehended that the accused, if granted bail,
would make himself scarce and it would be difficult to apprehend him again or
where it is necessary to keep him in the police custody for the purpose of
investigation or where it is necessary to keep him under confinement with a view
to prevent him from committing further offences, bail ought to be granted as a
matter of course. This rule is of course subject to the general exception that in the
case of serious offences like murder, dacoity, robbery, rape and offences against
the state and so on, the grant of bail should be scrutinized by the court as at
present.
The question of bail arises not only when the accused is in judicial custody but
also when he is in police custody. When the accused is in police custody, bail
should be a matter of course except where his continuing presence in police
custody is necessary for the purpose of investigation. Even if the offence is a
serious one, the accused must be sent to judicial custody and not be kept in police
custody unless required for the purpose of investigation. Similarly the
apprehension that the accused, if enlarged on bail, may disappear and evade arrest
or that it is necessary to keep him confined to prevent him from committing
further offences or from tempering with witnesses and evidence or to ensure his
own safety can be grounds for keeping him in judicial custody but certainly not in
police custody.
Police custody should be allowed and is justified only in cases where the presence
of the accused in police custody is necessary for the purpose of investigation. In
all other cases he must be sent to judicial custody. Then again, bail should be a
matter of course except in the situations mentioned above, namely, where he is
likely to make himself scarce and it will be difficult to rearrest him or where it is

93
necessary to prevent him from committing further offences or from tempering
with witnesses or other evidence of crime or where it is necessary to keep him
confined in the interest of his own safety.
In this connection, we may refer to certain observations in the preface to the
publication of the Indian Law Institute, Right to Bail. It is stated therein:
Bail is a very institution in criminal justice system. It carries a twin objective of
enabling an accused to continue with his life activities and, at the same time,
providing a mechanism to seek to ensure his presence on trial. It is not always just
or advisable to confine the accused before conviction. Only the sovereign interest
or threat to social order may necessitate such an action. Ordinarily, detaching an
individual from society adds to the problems rather than solving them. The option
of jail is also a limited one. Generally the jails are overcrowded and mismanaged
which is a burden very difficult to shoulder. The maintenance of the dependents of
the jailed persons is another problem with multiple dimensions, including the
possibility of their developing delinquent tendencies. Thus, jail does not always
serve the social interest. The current problem of under trials, too, is an outcome of
a large number of indiscriminate arrests and the non-use of the option of bail in
preference to jail.155
The following observations too are relevant:
The existing law on bail is inconsistent and unconvincing. The subject has
received only an adhoc treatment at the hands of the legislature. The nature and
extent of the conditions which may be imposed by courts on grant of bail have not
been defined. Most agonizing is ones failure to trace out even a definition of bail
in the whole set of provisions of law relating to bail. The practice of bail is highly
characterized by the recurrence of extremism on the part of the law enforcement
agencies as well as the advocated of liberty. The reason on the side of enforcers is
a need of stringent legal action, frequent bail jumping and emergence of a clan of
professional sureties. The opposite stance is supported by practice of prolonged
investigations, delayed trials and torture. An unending debate, whether bail in
bailable offences is a matter of right or a mere privilege conceded to an accused

155 Supra note 67, at p. 5

94
through the exercise of discretionary power, is continuing without a visible end in
sight156.
In this connection, it may be mentioned that the recommendations made by the
law commission on the question of bail in its 41 st report on the code of criminal
procedure, are fully in accord with what we have recommended hereinabove.
The 78th report of the law commission on congestion of under trial prisoners in jail
was concerned with the plight of large number of under trial prisoners in Indian
jails and recommended various measures to deal with the problem.
The commission recommended, inter alia, expanding the category of bailable
offences, releasing on bond without sureties, obligation to appear and surrender,
violation of which was to be an offence. It referred to position in England where a
presumption is drawn in favour of the right to bail for all offences.
In the light of the above discussion, it may be stated as a general proposition that
in offences punishable up to seven years imprisonment, with or without fine, the
normal rule should be bail and the denial thereof an exception i.e., in any of the
situations mentioned hereinbefore. In other serious offences, the matter has to be
left to the discretion of the court to be exercised having regard to the totality of the
circumstances and keeping in mind the necessity to maintain a balance between
the interests of the society as a whole in proper maintenance of law and order and
the constitutional, legal and human rights of the accused. The relevant provisions
in the Cr.P.C may have to be amended accordingly. It may also be provided that in
case of offences punishable with seven years or less, the police officer or the court
shall not insist on sureties unless there are special reasons for imposing that
condition. The release should be on personal bond as a general rule.
No person shall be detained merely for the purpose of questioning; such arrest or
detention amounts to unwarranted and unlawful interference of the personal
liberty guaranteed by Article 21 of the Constitution.
The arrest should not be made in a casual manner but only on the basis of some
material on the basis of which, the police officer is reasonably satisfied that arrest
of such person is necessary. It cannot be that the police are permitted to detain

156 Supra note 67, at p. 6

95
anyone they like and question him with a view to find out whether he has
committed any cognizable offence. Such an absolute power cannot be conceded
under our constitutional system. If questioning any person suspected of
committing a cognizable offence is found necessary for the purposes of
investigation, he may be questioned by the police officer either at the residence of
the person or at such other place as may be indicated by the person and agreed to
by the police officer.
7.3 New Approach to Bail Laws: Recommendations
Reform of the existing bail law would require enactment of a comprehensive code
to replace the existing law on the subject. The proposed code must reflect the
basic philosophy, utility and guidance for grant and refusal of bail.
In view of the emergence of certain issues under the human rights jurisprudence,
specific mention of arrangements has become necessary about dealing the cases of
minors, lunatics and those detained for preventive purposes under special laws.
Procedural clarity and comprehensiveness are waning in the existing statutory bail
scheme. The reformation of bail law must, therefore, replace this vagueness and
uncertainty by clarity and consistency.
Matters relating to jurisdiction, the successive stages necessary for availing of the
freedom on bail, the extent and power of various courts in their hierarchical order
to grant, refuse or cancel bail, the discretion to grant bail and prescribing the
prohibitions in cases where bail ought not to be granted, must be well
comprehended under the scheme.
Bail with or without conditions, and the guidelines to be followed for purposes of
imposing conditions together with the nature and purpose thereof are also to be
spelled out. The modes and forms of release will have to be rationalized,
explained and streamlined, so as to enable an accused to ask for a specific form of
release commensurate with his capacity and circumstances of the case. The
proposed code would thus remove all confusions in the provisions relating to
procedure, enforcement and appeals.
Bail may be appropriately viewed as a presumption which seeks to favour the
release of an arrested person. Consequently, this would require the defendant to

96
rebut the prosecution presumption that he may be failing to appear before the
court on the appointed day or that he would commit an offence or obstruct the
course of justice by interfering with witnesses or by tampering with the evidence.
Any presumption in favour of bail would, however, terminate upon conviction of
the accused.
Since the basic objective of bail is not to confine anyone before conviction and
also to ensure attendance of the accused in the court to stand his trial, the latter
can reasonably be met by constituting the default of appearance as an offence
punishable by imprisonment. The use of financial bonds from the defendants or
the sureties can then be abolished. A mechanism based on voluntary participation
of citizens or organizations in the trial process could be given legal recognition.
Such citizen or organisation can take up the responsibility presenting an accused
that has been enlarged on bail.
On Republic Day, Independence Day, the State could release tens of hounds of
poor persons; Dalits, Muslims and women accused in offences other than gave
crimes. A large scale release of woman accused of convicted of offences of
murdering their husbands could be done. A study of women languishing in prison
will show how unjust our criminal justice system is. Many have killed their
husbands as a result of the battered women syndrome where the husband come
home drunk and beat his wife and children day after day. How many women
languish in Indian prison today on a charge of murder in failed attempts to commit
suicide where the baby children in their arms perished and they survived how
many dalits are in the jail resisting atrocities and the forcible taking of their lands?
A sociological study of these languishing prisons will affirm what everybody
knows that the criminal justice system victimizes the victim. That the rich can get
away with every conceivable crime by bringing the police and prosecutor is
common knowledge.
Indulgence can be shown to the concept of bail as a matter of right in cases where
the offence charged is of non-imprisonable nature or the alleged offender, when
convicted, is entitled to non-custodial punishment.

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However, conditions could be imposed in such cases and their breach may make
the person liable to be arrested and put into custody.
Courts should be empowered to impose reasonable conditions but these may not
be statutorily listed. However, it can be provided that the conditions must have a
bearing to the object and purpose of bail, viz, ensuring the presence of the accused
on the appointed day and that he does not obstruct the courts of justice.
Two important aspects of the bail process must be taken into consideration while
formulating a new bail law. They are: (i) the police power to grant bail and (ii) the
police power to arrest and seek remand. In case of the former, the law may
specifically provide for the grant of police bail in cases of arrest under a warrant,
unless the release is imprudent on grounds that may be recorded. This principle
can be made applicable to summary offences as well. The right to be bailed in the
above cases may be accompanied by a police right to ask for a surety. In the latter
case, where initial police arrest is either illegal or without a warrant, police
request for the grant of remand should be given consideration only on the basis of
the guidelines which must be legislatively provided in the code.
A number of court decisions have already crystallised the factors which are
relevant to assess risks involved in releasing arrested person on bail. These factors
together with other necessary ones may be catalogued to set up noticeable criteria
for use by the courts while exercising their discretion.
The procedure for bail hearing needs a specific treatment. The court may be
empowered to conduct any bail hearing in private. It may also be empowered to
receive such information or material as may be relevant despite the question of its
admissibility under the rules of evidence.
Refusal to grant bail or where the court seeks to impose conditions on the grant of
bail must be followed by reasoned orders; the reconsideration of bail on
successive applications at various stages should be on merits, notwithstanding the
refusal of bail at an earlier stage in any other court. Judicial review for modifying
or revoking a bail order of the court of first instance has to find a significant place.
The right of appeal against the bail order, both by the accused and state, should
also be incorporated.

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The existing law on sureties is rather unsatisfactory. It is a policy issue to decide if
the law on the subject is to be inter-woven around any community based
organisation like the Manhattan Bail Project157.
In any case, the law relating to sureties must take into account the capacity,
integrity and the proximity of the surety (in relation to kinship, place of residence
or work, etc) as well as his suitability in terms of moral worthiness. In case of
individual sureties, a procedure for verification of the antecedents, capacity and
their suitability shall have to be provided for. This can be a check on the growth of
a clandestine channel of professional sureties.
The financial capacity of the person to stand as surety needs not to be given a
place of primacy. However, a surety should be under a duty to ensure attendance
of the accused at the appointed time and place. On breach of a condition already
agreed to by a surety, the accountability should be in terms of imposing a
monetary fine on him.
The foregoing suggestions merely outline an approach so that the new law on
bails could be subjected to a methodical treatment. A separate legislation is
urgently needed firstly, to remove the prevailing confusion and then to lay down a
sound mechanism for smooth working of the bail system. It is indeed a major task
to overhaul the existing law and practice of bail. Rationalism of the law of bails
requires debate and thinking on the basic premises in favour of the grant of bail
with risks appurtenant to it, as well as the determining of factors relevant to
assessment of risks. The stages where the presumption in favour of grant of bail
should cease to operate calls for considerations. The study on the nature of bail
and the mode to procure it are to be prescribed. Statutory list of conditions to be
imposed rob the efficacy of bail process. Instead the matter is left largely to
judicial discretion to ensure the presence of the accused, as well as the smooth
functioning of the course of justice in completing the trial. In any case the practice
of requiring financial bonds from arrested persons need be abolished.

157 Supra at p. 123

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Incidental to the reformation of bail law, the police power and practice of arrest
also need scrutiny and review. This power also needs prescribing of civil rights
action through the use of civil and criminal proceedings by the person aggrieved
or the state, along with instituting of effective departmental proceedings.
Another major area that calls for consideration is about the surety an important
component of the bail process. The substituting of surety by newer ventures, as
disclosed by the Manhattan Bail Project158 or by the hostel system for under trials
as obtains in some Scandinavian countries, can also be taken note of for purposes
of experimentation in certain cases. The duration, variation and revocation of bail
order also require elaboration particularly with a view to enable a prosecutor to
apply for variation of the terms of conditions of bail granted, or where the breach
of or likely breach of conditions become imminent to cause difficulties for those
entrusted to assist the courts of justice, in the fulfillment of their obligations to
speedy trial.
The law and practice relating to remand, police bail, successive bail applications
on refusal of bail, detention release of juvenile, women, sick and old persons as
well as host of related matters would necessarily call for discussion, debate and
reformulation of the rules. The task is extensive. It is also vital for utilitarian and
civilized functioning of the administration of criminal justice.
In sum, the reformulation of bail law is not a mere revision of the law. It is a
prelude to nay commitment to reform the administration of criminal justice. This
study has shown that the law of bails contained in the code of the criminal
procedure remains cloudy in sundry legislative provisions as well as in a plethora
of judicial precedents. Obscurity prevails both. The net result is that the law lacks
the clarity in its understanding and application without having a properly
organized base of rules through the use of doctrines and principles the aberrations
in the law of bails would continue. Accordingly the reform calls for generating
total efforts.

158 Supra at p. 123

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