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Bail jurisprudence

Criminal Justice system in any country is generally gigantic and complex bestowed with multifarious goals, amongst which the safety and society of its citizens is primary. In Indian criminal justice system, apart from many agencies involved, Police and its role in preventing and deterring crime has always been a central point of discussion.

Their role in the system become crucial by the fact that they form the link between the society members and the system whereby they not only conscientiously detect the crime and criminal but also ensures the fair application of law in doing so. A meticulous investigation has always been contended as a prerequisite for the fair trial in a due process model followed in India, wherein firstly, there is presumption of innocence (barring few) till the guilt is proved beyond reasonable doubt; secondly, the benefit of doubt is to be given to the accused. In the aforesaid model, unlike crime control approach, the detentions of the innocent are seen as double failure of the system.

A wrongful detention on one hand violate the rights of the person so detained and also leads to breach of the security of the society and therefore the strict adherence to this model emphasizes the prevention of unjustified detentions more than guilty going unpunished. Pre-trial Detentions as an integral part of investigations has always been questioned and despite the fact that Cr PC in the year 2005 has been amended for the purpose of decreasing the number of pre trial detentions, the frequency of arrest remains the same. Arrest and the associated stigma attached has been a point of concern amongst judiciary and is been highlighted by the apex court. Issuance of notice under sector 41A has been insisted by the judiciary for the offences punishable up to seven years rather than arresting a person.

Further, in addition, for mitigating the instances of unnecessary continued detentions, bail provisions in the code have played a vital role. Since the grounds for releasing the person are not exhaustively mentioned in the code, it leads to non-uniform application of the laws. Though courts have on various occasions while interpreting bail provisions in light of article 14, 19 and 21 reiterated that granting bail is a rule and its rejection is an exception but irony is that the data of under trial prisoners have time and again proved otherwise.

Reforms Of Bail Jurisprudence

The Law Commission made Recommendations to reform thirteen different areas of bail jurisprudence.

Firstly, it discussed the process of arrest. In its first recommendation under this category, the Commission argues that in order to prevent arbitrary arrest, Section 41 of the CrPC should be amended. The Commission suggests that Section 41 should make it mandatory for the Investigation Officer to record the reasons in the Case Diary and daily Diary Register, prior to making the arrest. The Section should be amended to also make it necessary for the Investigating Officer to obtain written approval by the Officer in Charge of the police station. These steps would go some way in checking the practice of arbitrary arrests.

In the second recommendation, it recommends amending Section 50 of the CrPC. This section asks the arresting authority to inform the arrestee in writing about the offence committed and the grounds of arresting. However, the language in which the notice is given to the arrestee must not necessarily be easy for the arrestee to understand. Every arrestee cannot be acquainted with the language known to the officials of the arresting authority.

There have been a number of bitter experiences where the arresting officials handed over notices to semi-literate arrestees, written in the Queen's English or, more accurately, in Indian bureaucratic legalese. Hence, the Commission recommends the language of writing to be one that is conveniently understood by the arrestee. This is a commendable suggestion. Section 50 should necessarily be amended to make it mandatory for the arresting authority/officials to inform the arrestee in a written language that he/she best understands.

The third category of recommendations is on default or statutory bail and remand. The Commission discusses the underlying problems majorly in two Sections of the CrPC. It talks about the intricacies and complexities of Section 167.

The Court in State of Punjab v Mehar Singh and Ors. observed that in the absence of a special order of a Magistrate, the non-completion of an investigation is not to be deemed to be sufficient cause for the detention of an accused person. The Court further observed that the remand to custody may be granted for compelling reasons when it is shown in the application that there is good reason to believe that the accused can possibly point out or assist the police in analyzing and cracking the case.

The Commission recommends considering the fact in the context of the remand by appropriate authorities and suggests that the accused should not be detained in the case when a special order of the Magistrate is absent and the investigation is non-complete. The mandatory consideration of this context by the arresting authority as well as the judiciary could be instrumental in preventing the arresting authorities to follow short-cuts and ensure relatively freer and fairer trial against the accused. Needless to add, the step would also check the power of arbitrary arrest by the arresting authorities.

In its second set of recommendations under the category of default or statutory bail and remand, the Commission recommends amending Section 309 of CrPC. It highlights loopholes existing in sub-section 309 (2) of CrPC, which deals with remand of the accused after cognizance of the offence has been taken by the court. Where the trial is adjourned or constantly delayed, the Court may remand the accused if he/ she is in custody. The provision nowhere mentions that the Magistrate may also release the person from custody. This creates the problem of suggesting that remand under the provision is a mandatory and also an exclusive outcome.

The Court should consider a two-way approach in order to ensure that the accused is not taken on remand through improper means as well as in determining whether the accused should be released or remanded. It should consider the compelling need for the accused to remain in custody as well as the duration of undertrial detention undergone by him/ her. The Commission recommends that section 309 (2) be amended and an explanation be added that in case an accused is in custody and the trial is getting postponed/ adjourned, the Court shall release him/her on bail or remand the accused to further custody, for reasons to be recorded in writing.

In another observation on Section 309 of CrPC, the Commission highlights the problem of increasing number of pending cases and the consequent logjam. Expressing its concerns on Section 309(1), it directs that the trial should be held as expeditiously as possible on a day-to-day basis when the examination of witnesses has once begun.

The Commission argues that the Trial Courts are already overburdened and it would be nearly impossible for them to expeditiously dispose off trials by holding them on a day-to-day basis. We should not forget that the position is no better at the District and lower court levels. In December 2018, over 2.72 crore cases were pending as arrears, about 5,135 vacancies against a sanctioned strength of 22,677 existed in the lower judiciary and approx one third of all High Court judicial posts were vacant.

Thirdly, the Commission made recommendations in the category of conditions that may be imposed in bail'. Under this category, the Commission talks about nuances of conditions imposed on bail. The category has rightly been dealt with by the Commission from an enhanced human rights perspective. The recommendations also try to check the powers of the authorities to impose restrictions on the accused that might affect his livelihood and day to day life while enlarged on bail. The Commission argues that a bail condition must not unreasonably violate the rights guaranteed by the Constitution.

The debate on conditions imposed on bail is an ongoing debate, dependent on a number of factors/facets and criteria. The challenge is to strike the ideal equilibrium between the sociological, psychological, criminological, socio-economical and judicial factors. Since ideal balances are difficult, if not impossible to achieve in real life, it is obvious that if errors are to be made or emphasis to be changed, they must err on the side of human liberty and human rights, encapsulating the fullness of all facets of those phrases.

Fourthly, the Commission proposes modifying the Classification in Schedule I of IPC. The Indian Penal Code, as well as the Code of Criminal Procedures, are both characterised by high degrees of incoherence and inconsistency in offences committed and terms of imprisonment awarded to the offender.

For example: According to Section 498-A of IPC, subjecting a married woman to cruelty is a Non-bailable offence, punishable with imprisonment of three years, whereas, according to Section 497, the offence of adultery is a Bailable offence, punishable with imprisonment up to five years and is Bailable. The classification of Bailable and Non-bailable offences as well as their relative seriousnesses (and consequent imprisonment) is frequently illogical and inconsistent. The Commission recommends that there should be consistency between the term of imprisonment for offences and their classification as Bailable or Non-Bailable.

Fifthly, the Commission makes recommendations regarding anticipatory bail. The Commission argues that the proviso in Section 438 on anticipatory bail must be retained, despite this being contrary to the recommendations of the 203rd Law Commission Report. The Commission argues that anticipatory bail must not only be granted cautiously, but must also be made operative for a limited period of time. Further, given the special position of Section 438 of CrPC and its potential for misuse, every order passed under the section must be accompanied with reasons for rejecting or granting anticipatory bail.

The Commission wants to treat anticipatory bail as an extraordinary privilege. It suggests the Courts exercise extreme caution in bestowing this privilege and not grant anticipatory bail in a mechanical or perfunctory manner. Nuanced and precise guidelines would ultimately have to be laid down by the apex court under Section 438 to reduce the penumbra of ambiguity surrounding the provision and to operationalise this wish of the Commission.

Sixthly, regarding economic offences, the Commission recommends that serious economic offences like the circulation of counterfeit currency, black money, customs offences, etc. have led to a need of change in approach towards grant/denial of bail in such serious offences. According to the Commission, there is a need to incorporate special provisions/statutes in CrPC for granting or refusing bail in serious economic offences.

In addition, there is also a need for classifications of such offences in IPC. Economic offences involve a number of related factors that could be lethal for the society, market, and nation at large. The amount of money, nature of scam/offence, impact on market/society, etc. should be considered, according to the Commission, as the decisive factors in granting/rejecting bail to offenders.

Seventhly, the Commission makes recommendations on bail reforms in special laws. It argues that since the offences dealt through special laws are serious and grave, the bail provisions be tough and stringent. It cites the example of The Narcotic Drugs and Psychotropic Substances Act (Statement of Objects and Reasons, The Narcotic Drugs and Psychotropic Substances (Amendment) Bill, 1988, seeking to amend the Narcotic Drugs and Psychotropic Substances Act, 1985), Courts often grant bail on technical grounds. To deal with the serious crimes dealt with by the Act as also to uphold and maintain the integrity of the act, unconditional bails must not be granted under the Act.

Eighthly, the Commission recommends modification of Sections 436 and 436A of CrPC. It suggests that the language of the section be made clear and unambiguous to communicate that the bail under this section should not be trumped by imposing excessive or unfair sureties.

Unsettled Precedents
The entire judicial system is based on precedents, where the question of law already decided is binding upon all the lower courts. Similarly, in the matters of bail, as part of the judicial discipline, there are several settled principles such as balancing equities, allowing the bail applications only when there is change in circumstances and so on.

It is quite settled that liberty of an individual must be zealously safeguarded by the Court. But a judge should not be unduly influenced by the concept of liberty, disregarding the facts and circumstances of the case.

In Shahzad Hasan Khan vs Ishtiaq Hasan Khan & Anr the first respondent and three others were alleged to have murdered the deceased. The first respondent absconded after the occurrence and surrendered in court later. The trial court rejected his bail application, and three successive bail applications were rejected by a Single Judge of the High Court. The first respondent made another attempt in the High Court to get bail.

Having regard to the judicial discipline and prevailing practice in the High Court, another Single Judge of the High Court, sitting as a Vacation Judge, ordered that the bail application be placed before the same learned Judge who had dealt with the case on earlier occasions. However, a few days later, the Judge, after recalling his earlier order, granted bail on the ground that the trial could not be commenced or completed as directed by another Single Judge and because of the delay the accused was entitled to bail, and that the liberty of a citizen was involved.

But the Supreme Court set aside this order of the High Court observing that:
the single judge has erred in recalling his previous order of placing the matter before the same judge who had decided the earlier bail petitions. The single judge failed to satisfy itself of the fact that the accused was capable of tampering with the evidence (as he had done earlier)

In Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr seven bail applications of the accused-respondent were dismissed by the High Court of Judicature at Patna and the same court allowed the 8th bail application and enlarged the bail to the accused-respondent respondent as he had undergone incarceration for a period of 3 years and that there was no likelihood of the trial being concluded in the near future and appeal filed against the said grant of bail came to be allowed in the Supreme Court on the ground that the High Court could not have allowed the bail application on the sole ground of delay in the conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of the prima facie case, gravity of offence, and the allegation of tempering with the witness by threat and inducement when on bail.

It is indeed a travesty of justice to keep a person for too long in prison and as seen above the delay may be one of the factor for consideration of the bail application but other factors must not be ignored. But the same court in Kashmira Singh v. State of Punjab has had a different finding altogether.

It observed:
"It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified?

Would it be just at all for the Court to tell a person: "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?"

What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal?

Would it not be an affront to his sense of justice? Of what avail would the acquittal to be such a person who had already served out his term of imprisonment or at any rate a major part of it?
It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence."

Also the Hon'ble Supreme Court in State of Kerala v. Raneef has observed that keeping a person in prison questions the liberty of that individual and delay in concluding the trail is not only one of the factor but the most important factor in deciding whether to grant bail. And the Hon'ble Supreme Court in Sanjay Chandra v. CBI has observed that the period of incarceration by itself would entitle bail to the accused. And on both the occasions the Hon'ble Supreme Court granted bail to the accused, thus leaving it for the respective courts to decide what is to be done depending upon the facts and circumstances.

Another important aspect of bail is that an accused can file subsequent bail application after the previous bail applications are dismissed but only if there are change in circumstances and this is a settled principle. The civil law concept of resjudicata and finality does not apply in the criminal law as it involves an important question of liberty of an individual. This allows the accused to get a favorable order of bail questioning the creditability of the court and pestering the judges.

And the words change in circumstances are of much relevance in subsequent bail petitions. In Kalyan Chandra Sarkar vs Rajesh Ranjan @ Pappu Yadav & Anr the accused had applied for his bail eight times which were sought to be dismissed by the High Court and further in appeal by the Supreme Court. Subsequently, his ninth bail application was allowed and the accused was enlarged on bail on the very same grounds on which he was previously denied bail and without there being any change in circumstances or new facts or grounds.

The Hon'ble High Court, thus had ignored the earlier orders of the Hon'ble Supreme Court which was violative of the principle of binding nature of the judgments of the superior court rendered in a lis between the same parties, and noted that such approach of the High Court in effect amounts to ignoring or over-ruling and thus rendering ineffective the principles enunciated in the earlier orders especially of the superior courts.

A person who anticipates his arrest for any offence can also file anticipatory bail. The difference between bail and anticipatory bail is that bail is a post arrest legal process, that is, it is granted only after arrest of the person whereas anticipatory bail is a pre-arrest legal process in anticipation of possibility of arrest of a person and bail is ordinarily granted as a matter of right in case of bailable offence and it may also be granted in non-bailable offences under Section 437, Cr. P. C. but power to grant anticipatory bail is of an extra-ordinary character which is to be used by the Court sparingly.

And the principles with respect to the same are also unsettled and its application may also vary from case to case basis. In Gurbaksh Singh Sibbia Etc v. State Of Punjab the full bench of the Hon'ble High Court of Punjab had held that larger interest of the public and State demand that in serious cases like economic offences involving corruption, which shakes the economic fabric of the nation, anticipatory bail cannot be granted.

But the Hon'ble Supreme Court held contrary observing that:
We find ourselves unable to accept, in their totality, the submissions of the learned Additional Solicitor General or the constraints which the Full Bench of the High Court has engrafted on the power conferred by Section 438. Clause (1) of Section 438 is couched in terms, broad and unqualified.

By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provisions which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep-grained in our Criminal Jurisprudence as the presumption of innocence.

But this very Hon'ble Supreme Court in P. Chidambaram v. Directorate of Enforcement vide two judge bench has reiterated what was observed by the full bench of the Hon'ble High Court of Punjab and observed that grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation and thus the same cannot be granted. It is important to note that the decision of the 5-Judges bench of the Hon'ble Supreme Court has been given a go-bye by the division bench of the same court. And as part of the judicial discipline the courts now would be bound by this very judgment and not the earlier judgment.

A country's criminal law system can be ideal when it strikes a balance between protecting the rights of individuals and rights of public at large. There are many practices intertwined in the practice of the criminal jurisprudence with the objective of maintaining law and order in the society. The provision of Bail is one such practice which has earned more criticism than appraisals in the recent past.

Recently, The Supreme Court Bench consisting of Justices R. Banumathi, S. Bopanna and H. Roya has granted Mr. Chidambaram, an ex -Minister bail in the INX Media Case. The case revolves around the grant of the FIPB (Foreign Investment Promotion Board) clearance to the INX Media Group in 2007. Justice Bopanna remarked that �Bail is rule, refusal is exception.�
This is the rule which most of the courts follow in deciding whether to grant bail or not because when bail is refused, a man is deprived of his personal liberty, which is of too precious a value under our constitutional system, recognized by Articles 19, 21 and 22.

What is Bail?
According to Black's Law Dictionary, Bail is defined as:
Procuring the release of a person from legal custody, by undertaking that he/she shall appear at the time and place designated and submit him/herself to the jurisdiction and judgment of the court.

A precise definition of bail was provided by the Supreme Court in Sunil Tulchand Shah v. Union of India in which it was held that Bail is a security obtained from a person arrested regarding an offence for the purpose of securing his presence during the course of trial.

In the case of Superintendent and Remembrance of Legal Affairs vs. Amiya Kumar Roy Chowdary, the Court held that the law of bails, has to be dovetail two conflicting demands, namely, on one hand, the requirements of society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz., the presumption of innocence of an accused till he is found guilty.

Historical development
The concept and usage of bail can be dated back to 339 BC. The system of bail was introduced with the practice of a concept known as circuit courts in Britain during medieval times. In India, the provision of bail is governed by the Code of Criminal Procedure, 1973, specifically, Sections 436 to 450.

It specifies the offences for which bail can and cannot be granted which depends on the intensity and severity of the offence. It is the discretion of the court to decide the bail amount on the basis of the offence and the economic status of the person. There are mainly three types of bail in India; Regular, Interim and Anticipatory Bail.

Grounds on which bail can denied
In many cases, the considerations and grounds for granting and refusal of bail have been interpreted by courts. The Hon'ble Supreme Court in the matter of State of Maharashtra vs. Sitaram Popat Vetal has stated few factors to be taken into consideration, before granting bail, namely:
  • The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence
  • Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant
  • Prima facie satisfaction of the Court in support of the charge.

Courts must deny bail only under three conditions:
  1. The person charged with the crime is likely to flee.
  2. The accused is likely to tamper with evidence or influence witnesses.
  3. The person is likely to repeat the same crime if granted bail.
These grounds should be considered by courts by evaluating the factors as provided in the S.P Vital case.

Problems with Indian Bail System
In the famous case of Narasimhulu v. Public Prosecutor, Justice Krishna Iyer remarked that:
The subject of bail belongs to the blurred are of the criminal justice system and largely hinges on the hunch on the bench, otherwise called judicial discretion.

It is imperative that discretion must be exercised with caution and care and must be applied by balancing the interests of both justice and personal liberty of individuals. It must not be arbitrary, vague and fanciful, but legal and regular.

The recent trend of arbitrariness in exercising discretion has been a serious roadblock in achieving the ends of justice. In cases involving high profile individuals, bail is granted without considering the enormity of the case.

These individuals walk free when the people affected by them reel in injustice. It has become a norm than an aberration in most jurisdictions including India that the powerful, rich and influential obtain bail promptly and with ease, whereas the mass/ common / the poor languishes in jails.

Another major problem in the bail system is the amount of bail bonds set by the court. The economic and financial situation of a person and must be considered before courts reach a decision regarding the amount of bail.

From the analysis of data and statistics in the Law Commission Report, it can be observed that a majority of under trial prisoners i.e, 70.6% are illiterate or semi illiterate which is an indicator of poor economic background.

They are trapped in the vicious cycle of poverty and illiteracy coupled with a continuous violation of their right to personal liberty and dignity. Accused person's economic status appears to have become the decisive factor for granting pre-trial release.

Suggestions and conclusions
The provision of bail plays an important role in balancing the interests sought to be protected under the criminal law jurisprudence. Courts must take precaution in ensuring that discretion does not defeat its own purpose. Protection of liberty and dignity of individuals is of utmost importance and courts must either grant or refuse bail by keeping in mind the values of equality, good conscience and justice. The bail jurisprudence needs to be revamped with stronger and effective reforms.

A system of checks and balances, in the form of a competent authority, has to brought into force targeting at the arbitrary exercise of discretion by courts. Bail procedures for the economically marginalized section of the society must be carried without much delay and formalities which would otherwise result in a flagrant violation of their Fundamental rights.

  1. M.P Jain, Indian Constitution Law (Eighth Edition 2019)
  • Taking Bail Seriously The State Of Bail Jurisprudence In India (2020). Edited by Salman Khurshid, Sidharth Luthra, Lokendra Malik and Shruti Bedi. Published by Lexis Nexis, Gurgaon, Haryana1st edn.- ILI Law Review Vol. II

Written by Nisha Halder -
Heritage Law College ,7 sem

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