Introduction: A bail hearing is a court proceeding that must be performed
fairly and judicially, as well as in compliance with legislative and
constitutional requirements. Bail is, at its core, a delicate balance between
the accused's right to liberty and the interests of society as a whole. Bail
refers to the release of a person from custody, whether on personal bond or with
sureties. Bail in India is now a debatable topic. A number of reports have been
published that discuss the state of India's criminal justice system.
The definition and meaning of bail: the term "bail" has not been defined in the
CrPC, but the word "bail" has been used in the CrPC. A bailable offence is
defined in Section 2(a)[i] of the Criminal Procedure Code as an offence that is
shown as bailable in the first schedule, or that is made bailable in the first
schedule, or that is made bailable by any other law currently in force. The term
"bail" literally refers to a guarantee of a prisoner's attendance in order for
him to be released. The word comes from the French word "bailer," which means
"gift" in English. Bail refers to the release of a person from custody, whether
on personal bond or with sureties.
According to the Supreme Court of India, bail is a mechanism for achieving a
synthesis of two key conceptions of human values, namely the right of an accused
individual to enjoy his own freedom and the public interest, subject to the
surety's promise to present the accused in court for trial.
The Supreme Court explained in Moti Ram V. State of Madhya Pradesh
[ii] that the
term "bail" includes both personal bond and surety release. It should be
underlined that, even under this broader definition, bail only relates to
release based on monetary assurance, either one's own or third-party sureties.
The concept of bail dates back to 399 BC, when Plato attempted to
create a bond for Socrates' release. The contemporary bail system arose from a
set of laws enacted in England during the Middle Ages. During the Mughal era,
the Indian judicial system was known to have a bail system that allowed an
arrested individual to be released after providing a surety.
The employment of
this procedure is documented in the 17th-century travelogue of Italian traveller Manucci, who was released on bail after being imprisoned for a bogus theft
charge. The then-ruler of Punjab gave him bail, but the kotwal only let him go
when he provided a surety. Under Mughal law, an interim release could be
triggered by the fact that if justice is delayed in one's case, a compensatory
claim against the judge for losses suffered by the aggrieved party could be
During the British Raj in India, criminal courts used two well-known and
well-defined types of bail to free people who had been detained. Zamanat and
Muchalka were their names. Its most recent manifestation is an upgraded version
of the bail rules in the Code of Criminal Procedure, 1973, which were enacted
prior to the ratification of the constitution in 1950.
The most common objective of the institution of bail is to ensure the
appearance of the individual accused of an offence at trial while maximising
personal liberty in conformity with constitutional norms. The Criminal Procedure
Code of 1973, as well as other legislation, must be amended to reflect these
constitutional obligations while also ensuring that justice and crime-prevention
measures are not compromised.
Bail provision in criminal procedure:
The term "bailable offence" is defined in
the Code of Criminal Procedure, 1973, as an offence that is shown as bailable in
the first schedule, or that is made bailable by any other law for the time being
in force; and the term "non-bailable offence" is defined as any other offence
other than a bailable offence.
The difference between bailable and non-bailable
offences is determined by the gravity of the crime, the risk of the accused
fleeing, evidence tampering, prior behaviour, the accused's health, age, and
sex. Non bailable offences are those that are punishable by a sentence of at
least three years in jail. A bail hearing is a court proceeding that must be
performed fairly and judicially, as well as in compliance with legislative and
The golden thread in criminal law jurisprudence is
the presumption of innocence and the prosecution's duty to show the guilt of the
person accused of an offence. Every person accused of a crime has the right to
be believed innocent unless they are proven guilty.
In India, depending on the stage of the criminal case, a person can ask for one
of three types of bail:
- Regular Bail: A person who has already been arrested and held in
police custody may be granted regular bail. A bail application for regular
bail can be filed by anyone.
- An interim bond is a bail that is granted for a set period of time.Before a
hearing for normal bail or anticipatory bail, an accused is given interim bail.
- Individuals who believe they will be arrested by the police for a non-bailable
offence can file an anticipatory bail application. It's similar to obtaining
bail in advance under Section 438 of the Cr.pc. A bail under Section 438 is a
bail before arrest, and a person cannot be arrested by the police if
anticipatory bail has been granted by the court.
The petitioner was accused of murder in Brij Nandan Jaiswal v. Meena Jaiswal[iii].
The session court reissued his bail. However, under Section 437 of the Criminal
Procedure Code, the High Court granted him bail. The complaint brought it into
question. The Supreme Court upheld the complaint's right, declaring that "it is
now recognised law that the complaint can always challenge the order granting
bail if the order is not validly passed." It's not as if, after a court has
granted bail, the only way to get it revoked is if it's been used
inappropriately. The legality of the bail order might be challenged. Also, the
court decided that the High Court granted bail automatically in this case, and
hence it was overturned by the Supreme Court.
In the case of P. Chidambaram, the Supreme Court remarked, "It is not a general
rule that bail should be rejected in all circumstances." The Delhi High Court
was correct in rejecting bail due to the seriousness of the crime. We disagree,
however, with the Delhi High Court's comments on the case's merits. " The goal
of bail is to ensure that an accused person appears in court when necessary, but
it is not always necessary to grant bail.
The basic rules for the grant or denial of bail can be summarised as follows:
- There are only two types of criminal offences: bailable and non-bailable.
- The accused has the right to demand and be granted bail in the case
of bailable offences under Section 436 of the Criminal Procedure Code.
- In situations involving non-bailable offences, section 437 CrPC lays forth
certain basic factors for the judge to consider when granting or denying bail.
The nature of the crime, prior criminal history, and the likelihood of guilt are
some of the criteria.
- In circumstances where there is a reasonable fear of arrest, Section
governs anticipatory bail. Even if the accused anticipates arrest, anticipatory
bail cannot be granted in circumstances where only bailable offences are
involved. The factors that go into granting anticipatory bail differ from those
that go into granting bail under sections 437 or 439.
Perspective From The Constitution: Article 21 of our Constitution states, "No
one shall be deprived of life or personal liberty except in accordance with the
law." According to the Commission of Inquiry Act of 1952, any procedure for
depriving a person of his life that is not fair, just, and reasonable would be
void as a violation of Article 21.
In the case of State of Maharashtra vs. Sitaram Popat Vital
[iv], the Supreme
Court of India held that a few factors must be considered before granting bail:
For the court to efficiently rule on the bail application, various things must
be investigated, such as:
- The nature of the accusation and the severity of the punishment
in the event of conviction, as well as the nature of supporting
- reasonable apprehension of a threat to the complaint.
- The court's prima facie approval in favour of the charge
- Whether or not there is a reasonable basis to believe that
the applicant committed the offence charged against him.
- The charge's composition and gravity
- The severity of the penalty that may be imposed in the event
of a conviction depends on the circumstances.
- If the applicant is freed on bail, the chance of him
- The applicant's character, wealth, position, and status
- The risk of the offence being continued or repeated
increases if the accused has previously committed the offence.
- The applicant's opportunity to present a merits-based
The case of Sanjay Chandra v C.B.I.[v], popularly known as the 2G Scam, involved
appellants facing accusations under sections 420-B, 458,471, and 109 of the
Indian Penal Code, as well as Section 13(1)(D) of the Prevention of Corruption
Act 1988, who were denied bail by the special court, the C.B.I., as well as the
The S.C. ordered the appellants to be freed on bail, subject to
specific restrictions, and held that the seriousness of the offence and the
harshness of the punishment should be considered when deciding whether to grant
bail. Bail should not be rejected just because the accused is disliked by the
community. Article 21 prohibits the indefinite detention of pre-trial detainees
in jail custody. Everyone who has been detained or arrested has the right to a
quick trial. If the applicants are convicted, it appears that they will have to
spend more time in jail than the period of custody.
Conclusions and recommendations are offered
Bail balances the interests claimed to be protected under criminal law
jurisprudence. Courts must use vigilance to ensure that discretion does not work
against them. Individual liberty and dignity are paramount, and courts must
consider the values of equality, good conscience, and fairness while granting or
refusing bail. Bail law needs to be overhauled with more powerful and effective
A system of checks and balances, in the shape of a competent authority, must be
put in place to prevent judges from acting arbitrarily. Bail proceedings for
those who are economically marginalised must be completed quickly and
efficiently. The current bail system is heavily influenced by economic status
and discriminates against the poor and uneducated. Suspected criminals,
under-trial detainees, and convicted criminals have rights that are more or less
outlined in India's criminal statutes, Constitution, Jail Manual, International
Covenants, and Judicial Pronouncements. The actual issue, however, is that the
state apparatus has failed to implement the plan.
- The Code of Criminal Procedure,1973sec. 2(a)
- 1978 AIR 1594, 1979 SCR (1) 335
- (1999) 9 SCC 104,
- (2004) 7 SCC 521
- (2012) 1 SCC 40