The great Lord Denning once said, whenever one of the King's Judges takes his
seat, there is one application which by long tradition has priority over all
others. Counsel has but to say & My Lord, I have an application for a writ of
habeas corpus or an application of bail, but whatever form it takes, it is heard
The same level of sensitivity as that of Lord Denning was seen recently when in
a case of Satender Kumar Antil vs CBI (2022), a division bench of Supreme Court
speaking through Justices Sanjay Kishan Kaul & MM Sundresh observed that there
should be a Bail Act in India on the line of enactment of United Kingdom to
streamline the cases of bail.
The observation of the Supreme Court came at a time when NCRB data shows that
the 2/3 of total prisoners in various jails of India are undertrial. Most of
such inmates are poor and fail to hire the legal service. The concept of free
legal service is effective more on papers than ground.
The famous legal doctrine, Bail is Rule and Jail is Exception, as laid down by
Justice v Krishna Aiyer in the landmark case of State of Rajasthan vs Balchand
(1977) and further reiterated in Moti Ram vs State of MP (1978) should be the
guiding principle for courts while granting the bail to accused. The doctrine is
based on the sound principle of law that every accused person is innocent unless
The objective of granting the bail is not to set the accused free, but to
release him from custody to entrust him to his own bond and to the custody of
his sureties so that he can be produced at appropriate time and place.
But unfortunately, this legal doctrine is neither followed in letter nor in
spirit. The courts, and more specifically, the subordinate judiciary pass the
order of bail mechanically. For the purpose of bail, the courts enjoy very wide
discretion. In the entire Code of Criminal Procedure, the word 'Bail' is even
not defined. You may have observed quite frequently that on the same facts, some
of the accused are granted while some may not get the benefit of bail.
It is correct that this is for the court to apply its judicial mind based on
facts of every case and there cannot be a straight-jacket formula for granting
the bail but this also cannot be denied that judges are not immune to fallacy.
In want of any specific legislation on the subject matter under discussion,
there are possibilities that judges may inadvertently use the discretion
provided to them to the disadvantage of an accused. It was therefore rightly
recommended by the Apex Court to introduce a separate Bail Act.
Why is the Separate Bail Act needed?
By and large, the bail in Indian Criminal Jurisprudence is regulated by Code of
Criminal Procedure 1973 (CrPC). The court itself observed in the above-mentioned
case of Satender Kumar (supra), that the CrPC as it exists today is a
continuation of pro-independence legislation with modifications.
Chapter XXXIII of CrPC deals with provisions of bail. These provisions have been
amended from time to time by legislation keeping the intricacies involved in
view. Section 436 talks about bail in bailable offences. Similarly, sections 437
and 439 are about the provision of bail in non-bailable offences by magistrate
and Session/High Courts respectively. Section 438 is about anticipatory bail and
the accused may approach the session court or High Court concurrently if he has
apprehension of arrest.
Seeing the menace of a large number of undertrials languishing in jail, section
436A was inserted in the code (2006) that requires the release of undertrials on
bail if he has undergone more than one half of maximum sentence provided for
that particular offence. Besides chapter XXXIII, the High Courts use the
inherent power under 482 CrPC prohibiting the state from any coercive action
against the accused.
The effect of such stay is a kind of bail that is not provided in any
legislation. Section 167(2) of CrPC also mandates default bail if the
investigating agency fails to file the chargesheet against the accused in a
prescribed period of 60 or 90 days as the case may be. Some of the major lacunae
in CrPC that prompted the supreme court for their recommendation to union of
India regarding separate bail Act are discussed below:
Written By: Hari Mudgil
- The major faultline that exists in present code in respect to bail is
its lack of uniformity. In a nation with 1.4 billion population, where
people still repost their faith in judiciary, the differential outcome of
bail application is not a good sign. It shakes the faith of the general
public, though maybe, without any reasons. The general public does not
understand the complex legality of a case but wants to see the justice being
This is the responsibility of the state to ensure that the faith of the
public remains intact with the judiciary. The supreme court in the case of
Arnesh Kumar vs State of Bihar (2014) has categorically stated that
the requirement of section 41 and 41A is mandatory. The top court has given
direction for appropriate action against the police officers who breach the
mandate of section 41 and 41A.
But to the dismay of fair principles of law, the lower courts pass the order
of detention mechanically as and when the accused is produced before it.
Sending an accused to 14 days of judicial custody has become a norm. Nothing
in CrPC or any other law for the time being in force prohibits the
magistrate from releasing the accused on bail on the very first day of his
production. But this is rarely seen in the normal course of action at
magistrate level. The detention of any person even for one day without
proper and justful procedure is an attack on his constitutionally guaranteed
- Section 436 of CrPC (bail for bailable offence ) has failed to serve its
purpose as it has unnecessarily given discretion to the magistrate for
furnishing the surety. The requirement of surety in case of bailable offence
is inherently a bad idea. The Supreme Court has also criticized this aspect
of section 436 in which a magistrate denies the bail in bailable offence
when a person fails to give appropriate surety (Moti Ram Vs State of MP).
The explanation attached to section 436 which provides that if a person
accused of bailable offence fails to give bail within seven days then his
indigency shall be presumed, is unnecessary. There is no reason why a person
should remain in jail just to get benefit of presumption of his indigency in
case of bailable offence. In bailable offences, bail must be given
mandatorily at the time of arrest of a person once his residential address
is confirmed. It is also seen, many times, that lower courts impose
conditions of bail in cases of bailable offences which is contrary to the
provisions of law in CrPC.
- A very absurd provision given in CrPC is section 309. The Law Commission
of India in its 268th report (2017) recommended the amendment of this
section. The sub-clause 2 of section 309 CrPC has an apparent loophole as it
suggests that when there is adjournment of case or the case is delayed,
court may remand the accused in custody. It has not mentioned that the
accused can be set free on bail, which necessarily leads to an assumption
that remand to custody is only an exclusive outcome under section 309 of
- Similarly, the provisions of default as provided under section 167(2) of
the code are not free from infirmities. This provision mandates that if a
police report under section 173 of code is not filed within the stipulated
period of time by the investigation agencies, then the accused shall be
enlarged at bail. But this benefit of bail due to inaction of the
investigation agency can be taken only if the accused has filed an
application under this section. It is pertinent to assert that when the
default bail under this provision is termed as the indefensible right of
accused, then why not it should be given by default without formalities of
Why not a synchronized mechanism be set by court with jail authorities to
ensure that if a police report is not filed within a given time, the accused
shall be released from jail subject to bail bond, sureties or conditions
imposed. As mentioned above, thousands of undertrial are languishing in jail
due to lack of legal representation in court of law. It is bizarre to expect
that such accused will rush to courts immediately as and when the time-limit
for investigation is ended. The default bail has been restricted as a right
of the privileged class only.
- One more factor, in which courts enjoy a huge discretion is imposition
of bail conditions. The Law Commission in its report as mentioned
hereinbefore, also talks about nuances of conditions imposed on bail. We
have seen from the distribution of religious books to social works in
different organizations as the bail conditions.
The report recommended curtailing the power of authorities to impose the
restrictions on the accused in the form of bail conditions that may affect
his livelihood and day to day life. The bail conditions unnecessarily should
not violate the rights of accused protected under the constitution of India.
This area in jurisprudence of bail is gray and needs to be addressed by
From the above discussion, it can be inferred easily that a lot of work is
yet to be done by parliament towards the law of bail as it is directly
related to life and liberty of a person. The Supreme Court has rightly
invited the attention of the state towards the formulation of the Bail Act
to ensure more fairness and to streamline the cases to bail with a fixed
timeline. It is appropriate time for parliament to act on the suggestion of
the top court and should come-up with an enactment concerning matters of
- A Delhi Based Lawyer & Research Scholar