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The concept of bail, which is an integral part of the criminal jurisprudence. Bail is broadly used to refer to the release of a person charged with an offence, on his providing a security that will ensure his presence before the court or any other authority whenever required. Krishna Iyer J., remarked that the subject of bail “….. belongs to the blurred area of criminal justice system and largely hinges on the hunch of the bench, otherwise called judicial discretion. The Code [1] 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 of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.”[2]


Bail, in law, means procurement of release from prison of a person awaiting trial or an appeal, by the deposit of security to ensure his submission at the required time to legal authority. The monetary value of the security, known also as the bail, or, more accurately, the bail bond, is set by the court having jurisdiction over the prisoner. The security may be cash, the papers giving title to property, or the bond of private persons of means or of a professional bondsman or bonding company. Failure of the person released on bail to surrender himself at the appointed time results in forfeiture of the security.


The law lexicon [3] defines bail as the security for the appearance of the accused person on which he is released pending trial or investigation .i.e., to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.

[4]To set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and a place certain, which security is called “bail,” because the party arrested or imprisoned is delivered into the hands of those who bind themselves for his forthcoming, (that is, become bail for his due appearance when required, in order that he may be safely protected from prison.


The release on bail is crucial to the accused as the consequences of pretrial detention are given. If release on bail is denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life. The jailed accused loses his job and is prevented from contributing effectively to the preparation of defence .Equally important, the burden of his detention frequently falls heavily on the innocent members of his family[5].


The Criminal Procedure Code, 1973, does not define bail, although the terms bailable offence and non-bailable offence have been defined in Section 2(a)of Cr.p.c. as follows: " Bailable offence means an offence which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offence means any other offence".    

Further, sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.p.c.. Thus, it is the discretion of the court to put a monetary cap on the bond. Unfortunately, it has been seen that courts have not been sensitive to the economic plight of the weaker Sections of society. The unreasonable and exorbitant amounts demanded by the courts as bail bonds clearly show their callous attitude towards the poor.


In India, where a person is accused of a serious crime and is likely to be convicted and punished severely for such a crime, he would be prone to abscond or jump bail in order to avoid the trial and consequential sentence. If such person is under arrest, it would be rather unwise to grant him bail and restore his liberty. Further, where the arrested person, if released on bail, is likely to put obstructions in having a fair trial by destroying evidence or by tampering with the prosecution witnesses, or is likely to commit more offences during the period of his release on bail, it would be improper to release such a person on bail. On the other hand, where there are no such risks involved in the release of the arrested person, it would be cruel and unjust to deny him bail.

The law of bails “has to dovetail two conflicting demands, namely, on one hand, the requirements of the 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 cannon of CRIMINAL JURISPRUDENCE, viz., the presumption of innocence of an accused till he is found guilty.” [6]


This particular provision assumes huge significance in light of the statistics revealed by the National Crime Records Bureau (NCRB) in 2006. That our prisons are overflowing is well known ( 1336 prisons across India house a total population of 3,73,271 prisoners as against a stipulated capacity of 2,63,911 prisoners). But what is not so well known is the nature of the inhabitants of these prisons. Some 67% of India’s prisoners are under trials, individuals as yet not held to be guilty by any Court of law. With our legal system having a presumption of innocence, we effectively spend 70% of our prison-space and resources for prison maintenance and development on innocents. The NCRB data reveals that 2, 45,244 of Indian prisoners are under trials. These under trials languish in jail due to inadequate legal aid, unsympathetic judges, a bail-system linked inextricably to property & financial wellbeing and a general lack of awareness about rights of arrestees. The single largest tragedy is the continued detention of individuals accused of bailable offences, where bail is a matter of right.


As per the explanation of Sec 436[7], if a person is arrested in connection with the commission of bailable offence and if he is not able to show the security for one week, he is has to be presumed an indigent person and bail should be granted to him on his personal assurance. It is popularly known as SELF BAIL.[8]

In Hussainara Khatoon case[9], the Court laid down an eight point alternative formula to the conventional grounds for grant of bail, usually offence related or finance related : 

(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 conditions,

(5) his prior criminal record including any record of 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 and the apparent probability of conviction and the likely sentence in so far as these factors are relevant to the risk of non appearance; and 

(8) any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear.

In JAYANDRA SARASWATHI SWAMYGAL v.STATE OF TAMILNADU[10]  & PRASANTH KUMAR SARKAR v.ASISH CHATERJEE[11] ,the Apex Court held that even in case of non bailable offences also the court while exercising  its discretionary power under sec. 437 of Cr.p.c can grant bail. But that power should be exercised fairly, justly & reasonably.

In 1977, Justice Iyer in the Gudikanti Narasimhulu case said "The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process.2 years later,  a Supreme Court Bench, headed by  the then Chief Justice Y V Chandrachud laid down first  principles of granting anticipatory bail in the Gurbaksh Singh v. State of Punjab[12], reemphasizing that liberty… – ‘A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent.’

All these landmark cases established a liberal bail philosophy in India’s jurisprudence

In State of Rajasthan v Balchand[13] , the accused was convicted by the trial court. When he went on appeal the High Court, it acquitted him. The State went on appeal to the Hon'ble Supreme Court under Art. 136 of the Constitution through a special leave petition. The accused was directed to surrender by the court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said that though while the system of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that in most cases an undertaking would serve the purpose.


The setting up of separate jails, or at any rate isolating undertrials from convicts, would prevent hardened criminals from exercising their deleterious influence over undertrials. Such segregation would also change the attitude of jail authorities and society at large towards under trials.

The under trials who have been charged with petty crimes can further be put in reformative homes instead and asked to do community service till the time they are released on bail. Elementary education facilities must be granted to those under trials who are uneducated and illiterate. Thus, I feel that the benefit of bail should not only be in the hands of a few, but, should be available to the masses including those who do not have the financial capacity to afford it.

The balance of personal liberty and societal impact has always a tough one to achieve. To conclude, in the words of Justice Chandrachud, in Gurbaksh Singh v. State of Punjab, [14]‘…no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail also in State of Rajasthan v. Balchand[15]’ bail is right and jail is an exception’.


[1] The code of criminal procedure 1973 ,herein after read as Cr.p.c

[2]  Gudikanti Narasimhulu V. Public Prosecutor,  AIR 1978 SC 430.

[3]  Law lexicon by Ramanth Iyer, (3rd ed).

[4] 3 Black's Law Dictionary 177 (4th ed.)

[5]  Moti Ram v.State of M.P.,(1978) 4 SCC

[6] Supt. & Remembrance of legal affairs v. Amiya Kumar Roy Choudhury (1974)78 Cal WN 320

[7] The code of criminal procedure ,1973

[8] The code of criminal procedure,2005 Amendment Act

[9] Hussainarakhatoon v. Home secretary,state of Bihar (1980)SCC(cri)23

[10] 2005 Cr.L.J 883(SC)

[11] 2011 Cr.L.J 302(SC)

[12] 1980 Cri LJ417(P&H)

[13] AIR 1977 SC 2447

[14] supra

[15] supra

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