Bail may The concept and philosophy of bail was discussed by supreme Court in
Vaman Narain Ghiya v. State of Rajasthan
, (2009) 2 SCC 281, thus bail
remains an undefined term in CrPC.
Nowhere else has the term been statutorily defined. Conceptually, it continues
to be understood as a right for assertion of freedom against the State imposing
Since the UN Declaration of Human Rights of 1948, to which India is a signatory,
the concept of bail has found a place within the scope of human rights.
The dictionary meaning of the expression "bail" denotes a security for
appearance of a prisoner for his release.
Etymologically, the word is derived from an old French verb "bailer" which means
to "give" or "to deliver", although another view is that its derivation is from
the Latin term "baiulare", meaning "to bear a burden".
Bail is a conditional liberty.
Stroud's Judicial Dictionary (4th Edn., 1971) spells out certain other
It states when a man is taken or arrested for felony, suspicion of felony,
indicted of felony, or any such case, so that he is restrained of his liberty.
And, being by law bailable, offer the surety to those which have authority to
bail him, which sureties are bound for him to the King's use in a certain sums
of money, or body for body, that he shall appear before the justices of goal
delivery at the next sessions, etc. Then upon the bonds of these sureties, as is
aforesaid, he is bailed that is to say, set at liberty until the day appointed
for his appearance."
Bail may thus be regarded as a mechanism whereby the State devolutes upon the
community the function of securing the presence of the prisoners, and at the
same time involves participation of the community in administration of justice
be regarded as a mechanism whereby the State devolutes upon the community the
function of securing the presence of the prisoners, and at the same time
involves participation of the community in administration of justice.
In bail applications, generally, it has been laid down from the earliest times
that the object of bail is to secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail is neither punitive nor
preventative. Deprivation of liberty must be considered a punishment, unless it
can be required to ensure that an accused person will stand his trial when
The courts owe more than verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be innocent until duly tried
and duly found guilty. From the earliest times, it was appreciated that
detention in custody pending completion of trial could be a cause of great
hardship. From time to time, necessity demands that some un-convicted persons
should be held in custody pending trial to secure their attendance at the trial
but in such cases, necessity
is the operative test.
In this country, it would be quite contrary to the concept of personal liberty
enshrined in the Constitution that any person should be punished in respect of
any matter, upon which, he has not been convicted or that in any circumstances,
he should be deprived of his liberty upon only the belief that he will tamper
with the witnesses if left at liberty, save in the most extraordinary
Apart from the question of prevention being the object of a refusal of bail, one
must not lose sight of the fact that any imprisonment before conviction has a
substantial punitive content and it would be improper for any Court to refuse
bail as a mark of disapproval of former conduct whether the accused has been
convicted for it or not or to refuse bail to an un-convicted person for the
purpose of giving him a taste of imprisonment as a lesson.
Hon'ble Supreme Court in case titled as Sanjay Chandra and Ors. Vs. Central
bureau of Investigation
dated 23-11-2011 made the following observations:
The basic rule may perhaps be teresly put as bail, no jail, except where there
are circumstances suggestive of fleeing from justice or thwarting the course of
justice or creating other troubles in the shape of repeating offences or
intimidating witnesses and the like, by the petitioner who seeks enlargement on
bail from the Court. We do not intend to be exhausitve but only illustrative. In
other non-bailable cases the Court will exercise its judicial discretions in
favour of granting bail subject to subsection (3) of Section 437 Cr.P.C. if it
deems necessary to act under it. Unless exceptional circumstances are brought to
the notice of the Court which may defeat proper investigation and fair trial,
the Court will not decline to grant bail to a person who is not accused of an
offence punishable with death or imprisonment for life.
A balance is required to be maintained between the personal liberty of the
accused and the investigational right of the police to investigate the case. It
has to dovetail two conflicting demands, namely on the one hand the requirements
of the society for being shielded from the hazards on 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 found guilty.
The law of bail like any other branch of law, has its own philosphy, and
occupies an important place in the administration of justice and the concept of
bail emerges from the conflict between the police power to restrict liberty of a
man who is alleged to have committed a crime and presumption of innocence
infavour of the alleged criminal.
An accused is not detained in custody with the object of punishing him on the
assumption of his guilt.
Further, in terms of the guidelines as laid down in Hasan Aziz Irani @ Jafrey
Vs. The State of Maharashtra
in Criminal Bail Application No. 1822 of 2019,
it has been mentioned that antecedents of accused by itself would not be a
ground to reject his application for bail.
Kashiram & Ors v. State
While dealing with the issue of grant of bail in non-bailable offences, it has
been held that a person is entitled to his liberty even in case he/ she is
accused of a Non-Bailable offence and the right of an accused person should not
be dealt with by a court in a superficial manner. In fact, CrPC provides that in
case the court has sufficient reason to believe that the case in hand requires
further investigation to prove the guilt of the accused; such person should be
enlarged on bail.
Ratan Singh Nihal Singh & Ors v. The State
It has also been the opinion of courts that since right to liberty is an
imperative right of a person, an application seeking Bail should not be decided
in a mechanical and perfunctory manner.
Hon'ble Supreme Court in Maulana Mohmmad Amir Rishadi vs. State of
U.P. and another
2012(2) Mh. L. J. (Cri.) 412 held that, merely on
the basis of criminal antecedents, bail cannot be denied.
In Sumit Vs. State of U.P
., 2010 Cri.L.J. 1435 (SC) it was held
that even if there are other criminal cases pending,accused should be
Gurucharan Singh vs State( Delhi Adminstration)
1978 Cr.L.J.129(S C.)
According to supreme court except in those cases where there are reasonable
grounds for believing that the person accused of an offence punishable with
death or life imprisonment has been guilty of such offence,in all other cases of
non bailable offences Judicial decision shall always be exercised by the court's
in favour of granting bail.
Venkataramanappa vs State of Karnataka
That merely the offence alleged against the petitioner is punishable with death
or imprisonment for life or that there is a prima facie case it will not be
sufficient ground for denying bail.
Court will have to see whether there is any possibility to tampering with
prosecution witnesses and also possibility of their absconding from law.
The principles, which the Court must consider while granting or declining bail,
have been culled out by this Court in the case of Prahlad Singh Bhati v. NCT,
(2001) 4 SCC 280, thus: "The jurisdiction to grant bail has to be
exercised on the basis of well-settled principles having regard to the
circumstances of each case and not in an arbitrary manner.
While granting the
bail, the court has to keep in mind the nature of accusations, the nature of the
evidence in support thereof, the severity of the punishment which conviction
will entail, the character, behaviour, means and standing of the accused,
circumstances which are peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial, reasonable apprehension of
the witnesses being tampered with, the larger interests of the public or State
and similar other considerations.
It has also to be kept in mind that for the purposes of granting the bail the
legislature has used the words "reasonable grounds for believing" instead of
"the evidence" which means the court dealing with the grant of bail can only
satisfy it (sic itself) as to whether there is a genuine case against the
accused and that the prosecution will be able to produce prima facie evidence in
support of the charge. It is not expected, at this stage, to have the evidence
establishing the guilt of the accused beyond reasonable doubt.
In State of U.P. v. Amarmani Tripathi,
(2005) 8 SCC 21, this Court held as
18. It is well settled that the matters to be considered in an
application for bail are:
- whether there is any prima facie or reasonable ground to believe that the
accused had committed the offence;
- nature and gravity of the charge;
- severity of the punishment in the event of conviction;
- danger of the accused absconding or fleeing, if released on bail;
- character, behaviour,
means, position and standing of the accused;
- likelihood of the offence being repeated;
- reasonable apprehension of the witnesses being tampered with; and
- danger, of course, of justice being thwarted by grant of bail
[see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.)].
While a vague allegation that the accused may tamper with the evidence or
witnesses may not be a ground to refuse bail, if the accused is of such
character that his mere presence at large would intimidate the witnesses or if
there is material to show that he will use his liberty to subvert justice or
tamper with the evidence, then bail will be refused.
We may also refer to the
following principles relating to grant or refusal of bail stated in Kalyan
Chandra Sarkar v. Rajesh Ranjan
: (SCC pp. 535-36, para 11)
The law in regard to grant or refusal of bail is very well settled. The court
granting bail should exercise its discretion in a judicious manner and not as a
matter of course. Though at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merit of the case need not be
undertaken, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the accused is charged
of having committed a serious offence.
Any order devoid of such reasons would suffer from non-application of mind.
is also necessary for the court granting bail to consider among other
circumstances, the following factors also before granting bail; they are:
State of Rajasthan, Jaipur vs Balchand
- The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence
- Reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant
- Prima facie satisfaction of the court in support of the charge
Justice Krishna Iyer pithily
reminded us that the basic rule of our criminal justice system is
bail, not jail.
in the case of State of Kerala Vs. Raneef
(2011) 1 SCC 784, has stated :"15. In
deciding bail applications an important factor which should certainly be taken
into consideration by the court is the delay in concluding the trial. Often this
takes several years, and if the accused is denied bail but is ultimately
acquitted, who will restore so many years of his life spent in custody?
Is Article 21 of the Constitution, which is the most basic of all the
fundamental rights in our Constitution, not violated in such a case?Of course
this is not the only factor, but it is certainly one of the important factors in
deciding whether to grant bail.
More recently, in the case of Siddharam Satlingappa Mhetre v. State of
, (2011) 1 SCC 694,
Court observed that:
Just as liberty is precious to an individual, so is the society's interest in
maintenance of peace, law and order. Both are equally important.
This Court further observed :
Personal liberty is a very precious fundamental right and it should be curtailed
only when it becomes imperative according to the peculiar facts and
circumstances of the case.
Court has taken the view that when there is a delay in the trial, bail should be
granted to the accused
[See Babba v. State of Maharashtra
, (2005) 11 SCC 569, Vivek Kumar v. State of
U.P., (2000) 9 SCC 443, Mahesh Kumar Bhawsinghka v. State of Delhi
, (2000) 9 SCC
In Babu Singh v. State of U.P
., (1978) 1 SCC 579, this Court opined:
Code is cryptic on this topic and the Court prefers to be tacit, be the order
custodial or not. And yet, the issue is one of liberty, justice, public safety
and burden on the public treasury, all of which insist that a developed
jurisprudence of bail is integral to a socially sensitized judicial process.
As Chamber Judge in this summit Court I had to deal with this uncanalised
ad hoc response to the docket being the flickering candle light. So it is
desirable that the subject is disposed of on basic principle, not improvised
brevity draped as discretion. Personal liberty, deprived when bail is refused,
is too precious a value of our constitutional system recognized under Article 21
that the curial power to negate it is a great trust exercisable, not casually
but judicially, with lively concern for the cost to the individual and the
To glamorize impressionistic orders as discretionary may, on occasions, make a
litigative gamble decisive of a fundamental right.
After all, personal liberty of an accused or convict is fundamental, suffering
lawful eclipse only in terms of procedure established by law
The last four words of Article 21 are the life of that human right. Thus the
legal principle and practice validate the Court considering the likelihood of
the applicant interfering with witnesses for the prosecution or otherwise
polluting the process of justice. It is not only traditional but rational, in
this context, to enquire into the antecedents of a man who is applying for bail
to find whether he has a bad record--particularly a record which suggests that
he is likely to commit serious offences while on bail. In regard to habitual,
it is part of criminological history that a thoughtless bail order has enabled
the bailee to exploit the opportunity to inflict further crimes on the members
Bail discretion, on the basis of evidence about the criminal record of a
defendant, is therefore not an exercise in irrelevance.
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 community good and State
necessity spelt out in Article 19. Indeed, the considerations I have set out as
criteria are germane to the constitutional proposition I have deduced.
Reasonableness postulates intelligent care and predicates that deprivation of
freedom by refusal of bail is not for punitive purpose but for the
bi-focal interests of justice to the individual involved and society affected.