GENESIS AND DEVELOPMENT OF CONCEPT OF BAIL

DISSERTATION SUBMITTED TO AMITY LAW SCHOOL IN PARTIAL

FULFILMENT OF THE REQUIREMENT FOR THE DEGREE OF
BA. LL. B(H).

Submitted By: Supervised by:

Name: RISHAB Name of Supervisor: Ms. Asha Meena
E.No: A50811117074 Designation: Assistant Professor
Batch: 2017-22 Amity Law School

AMITY LAW SCHOOL

AMITY UNIVERSITY HARYANA, GURUGRAM
(2017-2022)
 Genesis and Development of concept of Bail

DECLARATION

I declare that the dissertation entitled “Genesis and Development of concept of Bail” is the outcome
of my own work under the supervision of Ms. Asha Meena, Amity Law School, Amity University
Haryana.
I further declare that to the best of my knowledge this dissertation does not contain any part of any
work, which has been submitted for the award of any degree either in this University or in any other
University without proper citation.

Date:22 May, 2022 Name: Rishab

Place: Gurgaon Enrollment No.: A50811117074
 Genesis and Development of concept of Bail

CERTIFICATE

This is to certify that the research work entitled “Genesis and Development of concept of Bail” has
been carried out under my direct supervision and guidance, by Rishab, Enrollment No.
A50811117074. The techniques and methods described were undertaken by the candidate
herself/himself and observations have been periodically checked by me.
It is further certified that the candidate has also fulfilled all the prerequisites necessary for submission of
this dissertation in partial fulfillment of his BA.LL.B(H).

Date: 22 May, 2022 Name of Supervisor; Ms Asha Meena

Place. Gurgaon Amity Law School
Amity University Haryana

ACKNOWLEDGEMENT
 Genesis and Development of concept of Bail

I owe a deep sense of gratitude to Professor Asha Meena, Amity University Haryana, who has been
gracious in approving my dissertation on the topic “JENESIS AND DEVELOPMENT OF
CONCEPT OF BAIL” and who has the attitude and substance of a genius; She continually and
convincingly conveyed a spirit of adventure in regard to research.
I also acknowledge the kind co-operation of the staff of the Amity University. I have made my earnest
effort to do full justice to the up while writing the dissertation. The library staff of university who
have also been a constant source of infinite help and co-operation. They made available whatever
possible material required by me and I express my gratitude to them and thank them sincerely.

RISHAB

LIST OF ABBREVIATIONS
ABBREVIATIONS FULL FORMS

ADR Alternate Dispute Resolutions

Genesis and Development of concept of Bail

AIR All India Reporter

AIR Mad. All India Reporter Madras

ALJ Allahabad Law Journal

All Indian Law Reports Allahabad Series

All HC North-Western Provinces High Court Reports

Arb. L.R. Arbitration Law Reporter

Bom Bombay

Bom PJ Bombay Printed Judgements

CA Court of Appeals

Cal. Calcutta

DAC Delhi International Arbitration Centre

Del Delhi

ICSID International Centre for Settlement of Investment Disputes

HC High court

IAA International Arbitration Association

ICADR International Centre for Alternative Dispute Resolution

ILR Indian Law Reports

Ker Kerala

MIA Moore’s Indian Appeals (Eng)

MLJ Madras Law Journal

MoU Memorandum of Understanding

NAI Netherland Arbitration Institute

NSWLR New South Wales Law Reports

PC Privy Council
Genesis and Development of concept of Bail

RAJ Rajdhani Law Reporter

s. Section

SC Supreme Court

SCC Supreme Court Cases

SIAC Singapore International Arbitration Centre

SGHC Singapore High Court

SGCA Singapore Court of Appeal

SLP Special Leave Petition WLR Weekly Law Reports

(Eng)

v Versus
 Genesis and Development of concept of Bail

Table of Contents

DECLARATION.........................................................................................................
II CERTIFICATE .........................................................................................................
III
ACKNOWLEDGEMENT .........................................................................................
IV LIST OF
ABBREVIATION....................................................................................... V TABLE
OF CASES.................................................................................................... VI

INTRODUCTION........................................................................................................
9 HYPOTHESIS .........................................................................................................
22
OBJECTIVE ............................................................................................................
22 SCOPE OF
STUDY ................................................................................................ 23
METHODOLGY .....................................................................................................
23
CHAPTERIZATION SCHEME ............................................................................. 23

CHAPTER 1 - STUDY OF STATUTORY BAIL PROVISIONS AS GIVEN IN

Cr.P.C ...................................................................................................................... 24-
54
1.1 INTRODUCTION ..........................................................................................
24
1.2 BAIL IN BAILABLE OFFENCES ................................................................
26
1.3 BAIL IN NON-BAILABLE OFFENCES ......................................................
28
1.4 ANTICIPATORY BAIL .................................................................................
32
1.5 GREATER POWERS OF THE HIGH COURT AND COURT OF SESSION
ON MATTERS OF BAIL ............................................................................... 39
1.6 CANCELLATION OF BAIL .........................................................................
43

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 Genesis and Development of concept of Bail

1.7 BOND AND FOREFEITURE OF BOND ......................................................

44

CHAPTER 2 - ARTICLE 21 OF THE CONSTITUTION OFINDIA AND ITS

IMPACT ON BAIL ............................................................................................... 55-
74
2.1 AMBIT AND SCOPE OF ART. 21 ................................................................
55
2.2 ARTICLE 21 AND PRISONERS ...................................................................
64
2.3 INTERIM BAIL...............................................................................................
68
2.4 ANTICIPATORY BAIL VIS-a-VIS ORDINARY BAIL ...............................
71 CHAPTER 3 - GLOBAL SEARCH OF HUMAN RIGHTS AND ITS
IMPACT ON
GRANT OF BAIL IN INDIA ................................................................................ 75-
87

3.1 CONCEPT AND MEANING OF HUMAN RIGHTS ................................... 75

CHAPTER 4: RECENT TREND OF SUPREME COURT AND HIGH COURT ON

BAIL .................................................................................................................... 88-
100

CHAPTER 5: CONCLUSION AND SUGGESTION ....................................... 101-

108

BIBLIOGRAPHY ....................................................................................................
109

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 Genesis and Development of concept of Bail

Introduction
“Innocent until proven guilty yet languish in jail till released on bail”

Bail is practical device for relieving an accused person in custody of incarceration

and consequently, the state of the burden of keeping him, as well as for securing his
appearance at a criminal proceeding. The accused is freed from undue strains on his
personal liberty. The principal aim of bail is removal of restrictive and punitive
consequences of pre-sentence detention of the accused. Bail is granted to secure the
freedom of the world at large. Refusal of bail is not for punitive purpose, but for the
bifocal interests of justice to the individual involved and the society affected. A
person enlarged on bail is not under imprisonment so long as he is on bail, though he
cannot be regarded to be completely free. His personal liberty stands restricted even
when bailed out. Bail is thus a conditional liberty. A custodial arrangement is settled
and the custody of the accused is transferred from the state to either the self or his
surety, generally a friend or relative. Surety, in whose friendly custody the accused is
delivered, may be described as a ‘Jailor’ of his own choosing, who has dominion and
control over him and keeps him in good conduct during the period of bail. 1 Court still
restrains constructive control over the accused.2 In case of release of the accused on
his own bond, such constructive control is exercised through the conditions of the
bond secured from him. Thus, the mechanism of bail is used for manoeuring best
arrangement for custodial control of the accused, covering three types of situation,
namely;
• where the custody is deemed safe with the accused himself,
1 Public prosecutor v. George 1952 Cri.L.J. 213(mad)
2 Sunil Fulchand v.Union of India Jt 2000 (2) SC 230, 240
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 Genesis and Development of concept of Bail

• where it is delivered to the surety,

• where it is retained by the state by refusal of bail3

Prevention of crime is the end accepted by everyone. No polity can do without a

original justice system aimed at punishing criminals, ensuring at the same time that
innocent persons are not harassed. While protecting its general interests, any society
has to preserve an individual’s problem, personal liberty and dignity.
The proclaimed objective of our code of criminal procedure, which is the ruling law
concerning procedure applicable to all criminal proceedings is, depicted in the
following basic considerations.
An accused person should get a fair trial in accordance with the accepted principles of
natural justice; a every effort should be made to avoid delay in investigation and trial
which is harmful not only to the individuals involved but also to society; and
b The procedure should not be complicated and should, to the almost extent possible,
ensure fair deal to the poorer sections of the community.

That punishment must follow verdict of guilt arrived at after due consideration is the
basic premise of our justice system. An accused is presumed innocent till his guilt is
proved, regardless of the treatment programme and, therefore, the right to bail, i.e., the
right to be released from jail in a criminal case is recognized in every civilized society
as a fundamental aspect of human rights however, we shall later notice a wide schism
between the law at rest (in books) and the law in action in that a good many
individuals suffer injustice in the process of justice owing to their pretrial long term

incarceration.
Bail not jail, is the general expression of those who are concerned with the social
problems. But the determination of appropriate bail standards and its impact in the
society has rarely been studied. What is the comparable ratio, which can give the
proper weight to different factors. What consideration should be allowed to reach the
decision? Whether a liberal bail policy has reduced the crime rate in the society or
not? Whether jail to the accused has eliminated the crime rate? There is no evidence
which has been seriously studied in the Indian societal context.

3 Afzal wani, M., Right to bail, Indian law institute, (2000) p.7.
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 Genesis and Development of concept of Bail

Bail cannot be granted without proper standard, otherwise, it may be counter

productive in the society. Without proper identification of the different issues, the
court may not be able to decide either bail or jail correctly. How to develop the fixed
standard as to which variable or value shall be compared. The different cases shall
have different story. The criminal footing may be different in every event and cases.
The guidance to grant or refuse the bail can be drawn by the nature and seriousness of
the offence, but the effect in the society cannot be easily identified. What are needs of
the accused and what are the demands of the society and what are the legal hurdles?
These concepts are easy to explore, but appropriate answers thereto are rather difficult
to obtain.
The infrastructure of law relating to bail is not properly framed. The decision to grant
or refuse bail is based primarily on the premise that the accused shall appear to take
his trial. The refusal of bail is not a form of punishment. 4 This will further depend
upon the other factors; the seriousness of the charge and the possible severity of
punishment will also be borne in mind. There can be several reasons for the accused
to be released. He may have a job which would be lost if he were detained; he may
have a family to maintain; he may wish to prepare a defence; he may feel depression
and humiliation by the jail life, or other several reason. In criminal trail procedure, the
presumption of innocence, until proved guilty is more than a mere rule of evidence to
be applied at the trial. If there is no right to bail then there should at least be a right to
have one's case considered according to criteria that reduce, to the minimum, the risk
of holding in detention, persons who could be reasonably released. But even those
who are guilty should not be punished before they have been convicted. There is no
evidence of legal ingredients which shall consider the generally acceptable principle
of the criminal trial process for detention before conviction.
The important question, therefore, is to identify the problem and that is, how to
determine as to who can safely be released during the pendency of trial. What are the
proper standard and ingredients? Can one workout any basis for determining the
appropriate weightage to be given to the different factors that may legitimately effect
the question of pre-trail release? What consideration's ought to be allowed to enter
into the process of reaching the decision? There is no evidence which has been
properly evaluated before reaching the decision. Therefore, the main focus of the

4 R v. Rose 1898, 67 L.J.Q.B. 289

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 Genesis and Development of concept of Bail

present work shall be to pin-point the legal provision and its weakness to grant the

bail and also prepare conceptual justice system.

What is legal and illegal is an artifact of man per se. In the Nazi culture, it was illegal
to marry jews but legal to shoot them down with machine guns. The truth was an
enemy, Compassion a stranger, only the innocent were punished, only the guilty were
rewarded. Most of the victims were gassed to death by cyanide or torn apart by
machine guns. Others were frozen to death in ice water, placed in pressure chambers
until their lungs brust injected with gasoline and lethal does of typhus and forced to
inhale mustard gas.5 In the name of justice or punishment, why it happens? Who are
the criminals and who are the innocents? If a aperson arrested from street and tortured
to death in suspicion of criminal acts, and later on if he is found innocent, who will be
responsible? The growing problem of the conduct of man, is that this man, who can be
described fairly as one of the great criminals of our time, did bear no discernible
special malice toward the countless victims of thes atrocities.
Crime against humanity can be seen in the legal system itself, where the accused is
presumed innocent, until proven guilty. Whereas by accident that very indigent
accused sometimes had to spend indefinite periods in jail while awaiting trial because
he could not take bail. Early 1961, the attorney general (USA) Robert kennedy stated:
"I have a strong feeling that the law, especially in criminal cases, favours the rich man
over the poor in such matters as bail, the cost of defense counsel, the cost of appeals
and so on."6
Justice to the poor is one of the trouble spots in the criminal justice system. Equal
justice under law is a valid ideal but we can hardly expect to wipe out all the
advantages the rich defendant has over the poor. The little effort has been made to
guarantee fair treatment to the indigent. Here it is not merely the nature of society that
produces one kind of justice for the rich or the well connected and another, for the
poor. The difference in treatment is required by law itself. Release has its price one
might even interpret the law as saying that you get what you pay for and what you
can't pay for you don't get. It gives the serious threat to the legal infrastructure, which
must be people oriented, and the present work shall remain as the aforesaid area of the
issue regarding bail.

5 Garrison, Ralph slovenko., A heritage of stone (forward).,(1966),p.37.

6 Charles.E Are, Herbert sturz,,Bail and indigent Accused,(1962),Pp.57-60.
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 Genesis and Development of concept of Bail

Etymology and meaning of bail:

Websters 7th New Judicial Dictionary defines ‘bail’ as follows:
“Bail is a security given for the due appearance of a Prisoner in order to obtain his
release from imprisonment; a temporary release of a Prisoner upon security; on who
Provide bail.”
Wharton’s law lexicon defines bail to mean:
To set at liberty a person arrested or imprisoned, on security being taken for his
appearance on a date at a certain place, which security is called bail because the
person arrested or imprisoned is delivered into the hands of those who bind
themselves or become bail for his due appearance when required in order that he may
be safely protected from prison to which if they have, if they fear his escape, etc. the
legal power to deliver him.
In Stroud’s Judicial dictionary, 5th ed., the word ‘bail’ is define as follows:
Bail is when a man is taken or arrested for felony, suspicion of felony, indicated of
felony or any such case, so that he is restrained of his liberty. And, being by law
bailable offence suretly to those which have authority to bail him, which sureties are
bound for him to the kings use in a certain sum of money, or body for body, that he
shall appear before the justice of Goale-delivery at the next sessions etc.7 In both
concise oxford dictionary and chambers 20th Century Dictionary:
The meaning of ‘bail’ is a sum of money paid by or for a person who is accused of
wrong doing, as a security that he will appear at his trial, until which time he is
allowed to be free.
“The intent of the arrest being only to compel an appearance in Court at the return of
the writ, that purpose is equally quswesed, whether the sheriff detains his person or
takes sufficient security for his appearance called ‘bail’………”8

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

7 Public Prosecuter v. G. Moni Kyarao AIR 1959 AP 639

8 Black stone, Commentaries in the laws of England, vol III, p. 290
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 Genesis and Development of concept of Bail

According to the Supreme Court in concept of bail a technique is evolved for effecting
a synthesis of the two basic concepts of human value, namely, the right of an accused
to enjoy his personal freedom and the public interest on which a person’s release is
conditioned on the surety to produce the accused person in court to stand the trial.9
“The Principal aim of bail is removal of restrictive and punitive consequences of
pretrial detention of an accused. This is achieved by delivering him to the custody also
of his surety who may be a third party. Such custody may also be given to one’s own
self by way of his furnishing a bond that on demand made upon him to attend, he will
readily attend the court. Accordingly, the grant of bail for release may be allowed with
appropriate conditions which may resultantly cover three types of situations, namely,
a) where the custody is deemed safe with the accused himself.
b) Where it is delivered to the surety, and
c) Where it may be delivered to the state for safe custody.10
The system of bail namely, the release of an accused person on furnishing surety or
security is a very old one. The question of what to do with an accused person between
arrest and judgment poses a severe conflict for any system of criminal law.
The accused’s pre-trial imprisonment means imposition of what amounts to
punishment before determination of guilt, disruption of family and employment
relationship, obstacle in preparing the defence, etc. on the contrary, conditional
release pending trial, however, affords the opportunity to the person to flee, to engage
in criminal activity or to thwart trial processes by intimidating witnesses or destroying
evidence.
Plato in his laws has described how in murder cases the prosecution must demand bail
from the defendant and the latter shall provide three substantial securities to carry out
to produce him at trial and if a man is unable or unwilling to produce these sureties,
the court must take, bind and keep him and produces him at the trial of the case. The
system of bail in some from or other was also prevalent in ancient India.
However, to avoid pre-trial detention Kautilya’s Arthasastra also advocated speedy
trial of the accused. The bail system was also prevalent in the form of Muchlaka i.e.
Personal bond and Jamanat i.e. bail on furnishing surety during Mughal period.

9 Kamala Pati v. state of west Bengal AIR 1979 SC 777.

10 Afzal wani, M,. Release on bail, law and practice, Indian law institute, New Delhi (1986)p 56
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 Genesis and Development of concept of Bail

Historical perspective of bail:

In the annals of history the criminal law of England did not emerge as continuous and
connected theme. Appropriately Sir James Stephen describes that:
“The criminal law regarded as a whole is like a building, the parts of which have been
erected at different times, in different styles and for different purposes. Each part has a
history which begins at its foundation and ends when it reaches its present shape, but
the whole has no history for it has no unity.”11
The modern institution of release on bail pending trial has evolved from a practice
which goes back to Pre-Normal England. During the infancy of the administration of
justice arrest meant imprisonment without preliminary inquiry till the sheriff’s tourn
was held. In more serious cases it could be delayed for years till the arrival of the
Justice. To obviate the hardships thus caused a provisional release from the custody
was thought of and was desired. The right is recognized in general terms by Glanville,
while Bracton in referring to bail laid down significant guidelines. These were to the
effect that the sheriff must exercise a discretion in regard to balling the accused
persons, having regard to the importance of the charge, the character of the person,
and the gravity of the evidence against him.
The earlier authorities are somewhat vague in their approach perhaps because the
notion of wrong in terms of civil or criminal wrong had yet to branch out in the
English legal history. As the reign of Edward I marks an important era in the growth
of the law of crimes it will be interesting to locate the history of the statutes and
practice regarding bail since then. It is also because bail acquired its distinctive role in
criminal procedure about the 12th century.12
The sheriff was the local representative of the crown. He was responsible for the
administration of criminal justice which led the arrest of suspected persons. 13 He had
full discretion to grant bail and the discretionary power was often abused. The abuse
of power resulted in the enactment of statute of West Minister the First to deal with
the situation. It recited that before the enacting of the statute “it was not determined
which persons were replevisable and which not, but only those that were taken for the
death of man or by commandment of the King. Or of his Justices or for the forest”.
The English, Norman and French tradition seem all to point to an ancient and

11 Stephen, Sir J.F., A History of Criminal Law of England,( 1883) p 98.

12 De Haas, Antiquities of Bail, (1940) p. 39
13 Morris, the Medieval Sheriff,(1927) p. 88
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 Genesis and Development of concept of Bail

extremely rigorous form of suretyship or hostageship which would make the surety
liable to suffer punishment that was hanging over the head of the released prisoner. In
course of time, the granting or denying of bail in England became almost completely a
discretionary function of the judiciary, and remains so today.14
The power to grant bail gradually shifted from the sheriffs to justice of peace in the
succeeding two centuries. The statute of 1330 provided that persons indicted or taken
by the keepers of peace should not be let to mainprise by sheriffs. In 1360 A.D. the
Justices were given power to grant bail when the accused was indicted at the sessions.
The last statute which regulated the sheriff’s power of bailing was passed in the year
1444 A.D. it required the sheriffs in certain cases to bail, on terms which would make
their refusal to do so a well known abuse. In 1485 A.D. the statute empowered “every
justice of the peace to let such persons to bail and mainprise in the form as though the
said person was indicted thereof of record before the same justice in their session.”
The Criminal Justice Act 1967 is the most important legislative measure in the sphere
of criminal justice since the Criminal Justice Act of 1948. The Act provides for
imposition of special conditions when bail is granted 15 and extends the circumstances
in which the High Court may admit a person to bail or vary the conditions upon which
bail has been allowed by a lower court.16 It provides for arrest of persons who while
on bail break the conditions of their bail or are reasonably suspected by the arresting
constable of being likely not to appear at the trial or to break some other conditions of
their bail.17 On the top of it this Act for the first time mentions restrictions on the
power of the Magistrates to refuse bail. 18 It also makes radical changes in the powers
and procedure of the criminal courts and also effects important advances in sentencing
policy and the treatment of offenders.
The Criminal Justice Act 1967 had systematized the procedure for custodial release of
the accused persons. With a view to streamline the hitherto achievements on this
score, the Magistrates Court Rules 1968 were framed which, unlike the rules of 1952,
liberlised and widened the scope of being released on recognizance. 19 The progress is
inching further with the passage of the Powers of Criminal Courts Act 1973 which

14 Regina v. Campbell.., 1 Weekly L.R. 645 (Liverpool Crown ct. 1959).

15 The Criminal Justice Act 1967, Sec. 21
16 6id Sec. 22
17 id Sec. 23
18 id Sec. 18
19 )Magistrates Courts Rules, 1968.
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 Genesis and Development of concept of Bail

seeks to specifically prohibit the imprisoning of persons of 21 years which resultantly

would mean the custodial release and provides for the housing of such persons into
bail hostels. Thus the criss cross pattern of development of bail in English law seems
to be taking a shapely turn at last in this decade.

Bail provisions given under the criminal procedure code 1973

Sec. 436. In what cases bail to be taken.

(1) When any person other than a person accused of a non-bailable offence is arrested
or detained without warrant by an officer in charge of a police station, or appears or is
brought before a court, and is prepared at, any, time-, while-in, the custody of such
officer or at any stage of the proceeding before such court to give bail, such person
shall be released on bail:

Provided that such officer or court, if he or it thinks fit, may, instead of taking bail
from such person, discharge him on his executing a bond without sureties for his
appearance as hereinafter provided:

Provided further that nothing in this section shall be deemed to affect the provisions of
sub-section (3) of section 116 [or section 446A].

(2) Notwithstanding anything contained in sub-section (1), where a person has failed
to comply with the conditions of the bail-bond as regards the time and place of
attendance, the court may refuse to release him on bail, when on a subsequent
occasion in the same case he appears before the court or is brought in custody and any
such refusal shall be without prejudice to the powers of the court to call upon any
person bound by such bond to pay the penalty thereof under section 446. 437. When
bail may be taken in case of non-bailable offence.

[(1) When any person accused of, or suspected of, the commission of any nonbailable
offence is arrested or detained without warrant by an officer in charge of a police
station or appears or is brought before a court other than the High Court or
Court of Session, he may be released on bail, but-

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 Genesis and Development of concept of Bail

(i) Such person shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or imprisonment
for life;

(ii) Such person shall not be so released if such offence is a cognizable offence and he
had been previously convicted of an offence punishable with death, imprisonment for
life or imprisonment for seven years or more, or he had been previously convicted on
two or more occasions of a non-bailable and cognizable offence:
Provided that the court may direct that a person referred to in clause (i) or clause (ii)
be released on bail if such person is under the age of sixteen years or is a woman or is
sick or infirm:

Provided further that the court may also direct that a person referred to in clause (ii)
be released on bail if it is satisfied that it is just and proper so to do for any other
special reason:

Provided also that the mere fact that an accused person may be required for being
identified by witnesses during investigation shall not be sufficient ground for refusing
to grant bail if he is otherwise entitled to be released on bail and gives an undertaking
that the shall comply with such directions as may be given by the court.

(2) If it appears to such officer or court at any stage of the investigation, inquiry or
trial as the case may be, that there are not reasonable grounds for believing that the
accused has committed a non-bailable offence, but that there are sufficient grounds for
further inquiry into his guilt, [the accused shall, subject to the provisions of section
446A and pending such inquiry, be released on bail], or, at the discretion of such
officer or court on the execution by him of a bond without sureties for his appearance
as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable
with imprisonment which may extend to seven years or more or of an offence under
Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code 45 of 1860 or
abetment of, or conspiracy or attempt to commit, any such offence, is released on bail

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 Genesis and Development of concept of Bail

under sub-section (1) the court may impose any condition which the court considers
necessary-
(a) In order to ensure that such person shall attend in accordance with the conditions
of the bond executed under this Chapter, or

(b) In order to ensure that such person shall not commit an offence similar to the
offence of which he is accused or of the commission of which he is suspected, or

(c) Otherwise in the interests of justice.

(4) An officer or a court releasing any person on bail under sub-section (1), or sub-
section (2), shall record in writing his or its [reasons or special reasons] for so doing.

(5) Any court which has released a person on bail under sub-section (1), or sub-
section (2), may, if it considers it necessary so to do, direct that such person be
arrested and commit him to Custody.

(6) If, any case triable by a Magistrate, the trial of a person accused of any non
bailable offence is not Concluded within a period of sixty days from the first date
fixed for - taking evidence in the case, such person shall, if he is in custody during the
whole of the said period, be released on bail to the satisfaction of the Magistrate,
unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non
bailable offence and before Judgment is delivered the Court is of opinion that there
are reasonable grounds for believing that the accused is not guilty of any such offence,
it shall release the accused, if he is in custody, on the execution by him of a bond
without sureties for his appearance to hear judgment delivered. 438. Direction for
grant of bail to person apprehending arrest.

(1) When any person has reason to believe that he may be arrested an accusation of
having committed a non-bailable offence, he may apply to the High Court or the
Court of Session for direction under this section; and that court may, if it thinks fit,
direct that in the even of such arrest,he shall be released on bail.

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 Genesis and Development of concept of Bail

(2) When the High Court or the Court of Session makes a direction under sub- section
(1), it may include such conditions in such directions in the light of the facts of the
particular case, as it may thinks fit, including -
(i) A condition that the person shall make himself available for interrogation by a
police officer and when required;

(ii) A condition that the person shall not, directly or indirectly,- make any inducement,
threat or promise to any person acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the court or to any police officer,

(iii)A condition that the person shall not leave India without the previous permission
of the court;

(iv) Such other condition as may be imposed under sub-section (3) of section 437, as if
the bail were granted -under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a
police station on such accusation, and is prepared either at the time of arrest or at any
time while in the custody of such officer to give bail, he shall be released on bail, and
if a Magistrate taking cognizance of such offence decides that a warrant should issue
in the first instance against that person, he shall issue a bailable warrant in conformity
with the direction of the court under sub-section (1).

439. Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct.
(a) That any person accused of an offence and in custody be released on bail, and if
the offence is of the nature specified in sub-section (3) of section 437, may impose
any condition, which it considers necessary for the purposes mentioned in that
subsection;

(b) That any condition imposed by a Magistrate when releasing any person on bail be
set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a
person who is accused of an offence which is triable exclusively by the Court of

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 Genesis and Development of concept of Bail

Session or which, though not so triable is punishable with imprisonment for life, give
notice of the application for bail to the Public Prosecutor unless it is, for reasons to he
recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody.

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 Genesis and Development of concept of Bail

HYPOTHESIS
a Does the bail system work for the poor man as well as for the rich?
b Whether the judicial ambit or scope to grant the bail too restricted under CrPC?

c Is the present legal infrastructure of bail provisions appropriate?

OBJECTIVES
The present dissertation is being written with the following objectives in mind-

a To make a detailed study of the varied historical perspectives that relate to the
concept, genesis and development of the bail system. b To examine the statutory bail
provision of Cr. P.C. c To research Article 21 of Indian constitution and its impact on
grant of bail. d To learn global search of human Right and it impact on grant of bail. e
To study the law and practice of bail in U.K. and U.S.A. f To analyze recent trends of
Supreme Court and High Court on the matters of bail.

SCOPE OF STUDY

As the main focus of the present work will be to pin point the legal provisions and its
weakness to grant the bail and also prepare the conceptual justice system, several
issues will be examined. The major issues that this dissertation proposes to address are
what are the proper standards and ingredients in dealing with the bail.

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 Genesis and Development of concept of Bail

METHODOLOGY

The research methodology adopted for the present dissertation shall be centred
essentially around non-empirical, or doctrinal research. An in-depth analysis of the
articles, commentaries, and reports on the subject shall be undertaken. The relevant
decisions of Indian and foreign Courts shall also be analyzed to achieve the object of
scientific and systematic study of the topic at hand.

CHAPTERIZATION SCHEME
a) Chapter I : Study of statutory bail provisions as given in Cr.P.C

Chapter II: Article 21 of the constitution of India and its impact on bail

Chapter III: Global search of human rights and its impact on grant of bail

in India

Chapter IV: Recent trend of supreme court and high court on bail.

Chapter V: Conclusion and Suggestions

CHAPTER – 1 - STUDY OF STATUTORY BAIL PROVISIONS AS

GIVEN IN Cr.P.C

INTRODUCTION

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 Genesis and Development of concept of Bail

Bail by police
The Code of Criminal Procedure 1973 confers wide powers upon our police of
making arrests. In addition to the power of arrest, the Code bestows upon the police
powers parallel to the magistrate to release an arrested person on bail. It is regrettable
through that the police do not, in practice, exercise the powers of granting bail as
freely as they are entitled to or expected to do by the law.20

Power of police to grant bail in case of bailable offence:

Any person arrested by police without any order from the Magistrate and without a
warrant under the circumstances mentioned in section 41 has to release him on bail if
the offence with which he is concerned is a bailable offence.

In respect of the offences which are bailable under Schedule I of the Code of Criminal
Procedure, the accused in view of section 436, Cr.P.C has the right to be released on
bail. Therefore, when any person accused of a bailable offence is arrested or detained
without warrant by an officer-in-charge of a police station and is prepared at any time
while in the custody of such officer to give bail, such person shall be released on bail.
The officer-in-charge of a police station if he thinks fit, may, instead of taking bail
from such person, release him on his executing a bond without sureties for his
appearance. It is part of his duty to inform the person arrested that he is entitled to be
released on bail or to release him on bail without any move by or on behalf of the
arrested person.21

When a person is arrested in connection with a bailable offence, the only discretion
vested with the police officer is to decide on number and value of sureties on the
production of which he will release him.22 There is a statutory duty upon a police
officer and a court to release a person arrested for a bailable offence on bail as soon as
he is prepared to offer bail. They are even authorised to direct his release on a
personal bond by the arrested person without search. The section contemplates that
persons hauled up for a bailable offence cannot be taken into custody unless they are

20 Krishnamurthy, K., Police Diaries, Statements, Reports, Investigation and Arrest”, 2nd Edn. (1968).
P.336.
21 Bengal v. Zahir Ali, 63 Cal. 189, 37 Cr.L.J. p1070.
22 Mir Hashan Ali v. Emperor, 1918 Bom. 254.
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 Genesis and Development of concept of Bail

unable or unwilling to offer bail or to execute personal bonds. An improper refusal on

the part of an officer in charge of police station to grant bail in a bailable case is to be
regarded as a violation of duty. No needless impediments should be placed in such
case in the way of being admitted to bail. There is no question of imposing any
condition in the case of a bailable offence.

Release on bail by police in non-bailable offences:

The difference between bailable offence and non Bailable offence is that a person
accused of a bailable offence has the right to be released on bail. But the grant of bail
to a person accused of a non-bailable offence is in the discretion of the officer-
incharge of a police station or the Magistrate under section 437 Cr.P.C. The officer-
incharge of police station when arresting a person without warrant cannot release an
accused on bail if there appear reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment for life.
However, in order to exercise this power, the officer-in-charge of a police station has
to make proper scrutiny of the evidence so far collected to be satisfied about it and
while exercising the power under section 437(2) Cr.P.C. If it appears to the officer-
incharge of a police station at any stage of the investigation that there are not
reasonable grounds for believing that the accused has committed a non-bailable
offence, but that there are sufficient grounds for further enquiry into his guilt, the
accused shall be released on personal bond without demanding any sureties for his
release.The police officer has to record sufficient reasons in the case diary. Therefore,
the recording of the reasons in writing is mandatory as it puts the history of the case
on record for superior police officers and the court for review and for passing
comments.23

Offence subsequently becoming non-bailable one:

The officer-in-charge of a police station released the accused on bail under Section
436 Cr.P.C. when he was initially charged with committing the offence punishable
under Section 324 I.P.C. which is a bailable offence. Subsequently on the basis of the
medical report the offence was converted into one under Section 326 I.P.C., which is a
non-bailable offence. As soon as the offence was discovered to be one under section

23 Gurcharan Singh v. state AIR 1978 SC 179.

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 Genesis and Development of concept of Bail

326 I.P.C. section 436 Cr.P.C. ceases to be applicable to the case of the accused. The
investigating officer can in such circumstances take appropriate action to arrest the
accused if he desires to do so for investigating the case as a non-bailable offence.24

Arrest by private person and release on bail by police:

Section 43, Cr.P.C. empowers any private person to arrest any person who in his
presence commits a non- bailable and cognizable offence. Any private person can also
arrest any proclaimed offender. But in case of such arrest by a private person, the
person arrested has to be made over to a police officer if available or in the absence of
a police officer, take such person or cause him to be taken in custody to the nearest
police station. When there is reason to believe that such person comes under the
provisions of section 41, Cr.P.C., then a police officer before whom such person is
made over shall re-arrest him. If it is found that the alleged offence is a bailable one,
then the provisions of section 436, Cr.P.C. will be attracted and he shall be released
on bail with or without sureties if he is prepared to give the bail or can be released by
the police officer on his executing a personal bond.

BAIL IN BAILABLE OFFENCES

Scope of Sec. 436 Cr. P.C.:
When any person other than a person accused of a non-bailable offence is arrested or
detained without warrant by an officer-in-charge of police station or appears or is
brought before a court, and is prepared at any time while in custody of such officer or
at any stage of the proceeding before such court to give bail. Such person shall be
released on bail. This is the provision of bail for any person who is accused of a
bailable offence. Sec. 436 Cr.P.C. He has to be released on bail as a matter of right.
The Law Commission, in its report, has observed that the broad principles adopted in
the code of Criminal procedure in regard to bail are: a)
Bail is a matter of right if the offence is bailable;
b) Bail is matter of discretion if the offence is non-bailable.
c) Bail shall not be granted by the magistrate if the offence is punishable with death
or imprisonment for life; and

24 Babu Bombaj v. state of Rajasthan 1986 R& W 699.

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 Genesis and Development of concept of Bail

Bail right absolute:

If a person accused of a bailable offence is arrested without warrant, he has a right to
be released on bail. An arrest without warrant means that the arrest has been affected
otherwise than after judicial scrutiny.

The provisions of this section are mandatory and the court or the officer-in-charge of
the police station, as the case may be, is bound to release the person in custody who is
accused of a bailable offence on bail provided he is prepared to give it or on
recognizances. It may be recalled that section 50(2) makes it obligatory for a police
officer arresting without warrant any person other than a person accused of a
nonbailable offence, to inform the person arrested that he is entitled to be released on
bail and that he may arrange for sureties on his behalf.

Distinction between Bailable and Non-Bailable offences:

The essential distinction between a bailable offences and a non bailable offences are
that in the case of former, bail would be granted as a matter of course, if the arrested
person is willing to furnish bail bold; where as in the latter case, it is the discretion of
the court considering the application u/s 437 or 439 Cr.P.C., as the case may be, to
grant bail or not, which would obviously depend upon the facts and circumstances of
each case. It is no doubt true that even in a non-bailable case an accused can be
released on bail, but whether he would be so released would depend upon various
circumstances of the case and it cannot be assumed that he shall be so released as a
matter of course.25

Moti Ram Case a glaring example:26

‘The petitioner a poor mason from M.P. pending his appeal in the Supreme Court
obtained an order of bail in his favour “to the satisfaction of the Chief Judicial
Magistrate.” The direction of the Supreme Court did not mention the details of the
bail and so the Magistrate ordered that a surety in the sum of Rs.10,000.00 be
produced, which in actual impact was a double denial of bail benefit. The petitioner
could not afford to procure that huge sum or manage a surety of sufficient property.
Further the Magistrate demanded sureties from his own district. The petitioner moved
25 Jariabegam v. state of Tamil Nadu and Anr. 2007 Cr.L.J.(NOC)208(Mad.)
26 Moti Ram v. State of M.P., AIR 1978 SC 1594.
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 Genesis and Development of concept of Bail

the Supreme Court again to modify the order “to the extent that the petitioner be
released on furnishing security to the tune of Rs.2,000.00 or on executing a personal
bond.”

Justice Krishna Iyer delivering the judgment said in para 31:

“It shocks one’s conscience to ask a mason to furnish sureties for Rs.10,000/-. The
Magistrate must be given the benefit of doubt for not fully appreciating that our
Constitution enacted by ‘we, the People of India’ is meant for the butcher, the banker,
the candlestick maker, the bonded labourer and the pavement dweller’. Bail covers
both release an one’s own bond, with or without sureties. When sureties should be
demanded and what sum should be insisted upon are dependent on variables.”

The Supreme Court in Hussainara Khatoon has laid down guiding principles where
accused can be released on personal bond without sureties. “If the Court is satisfied,
after taking into account, on the basis of the information placed before it, that the
accused has his roots in the community and is not likely to abscond it can safely
release the accused on his personal bond.”

Maximum Period for which an undertrial prisoner can be detained:

There had been instances, where undertrial prisoners were detained in jail for periods
beyond the maximum period of imprisonment provided for the alleged offence. A new
section 436-A is being inserted in the code to provide that where an undertrial
prisoner other than the one accused of an offence for which death has been prescribed
as one of the punishments, has been under detention for a period extending to one half
of the maximum period of imprisonment provided for the alleged offence, he should
be released on his personal bond, with or without sureties.

BAIL IN NON-BAILABLE OFFENCES:

Definition of Non-bailable offence:
The definition of a non-bailable offence appears in Section 2(a) of Cr,P.C., 1973.
Sec.2 (a) “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 in force; and

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 Genesis and Development of concept of Bail

“non-bailable offence” means any other offences. By and large, offences punishable
with imprisonment for not less than three years are taken as serious offences and are
made non-bailable.

Provisions as regards bail can be broadly classed into two categories (1) bailable cases
and (2) non-bailable cases. In the former class, the grant of bail is a matter of course
as we discussed earlier. In non-bailable cases, the accused may be released on bail:
but no bail can be granted granted where the accused appears on reasonable grounds
to be guilty of an offence punishable either with death or with imprisonment for life.
But the rule does not apply to (i) a person under 16 years of age (ii) a woman, or (iii) a
sick or infirm person. As soon as reasonable grounds for the guilt cease to appear, the
accused is entitled to be released on bail or on his own recognizance.

The discretionary power of the court to admit to bail is not arbitrary, but is judicial,
and is governed by established principles. The High Court of Allahabad directed that
when a particulars person surrenders and makes an application for bail, it should be
considered the same day. However, if it has to be adjourned, the applicant should be
directed to appear on the date fixed with a further direction to the police not to arrest
him till disposal of his bail application.27 But it does not mean that the bail application
should be allowed invariably. It may be dismissed.
May be released on bail:
Sub-section (1) of S.437 which says that when any person accused or suspected of the
commission of a non-bailable offence is arrested or detained without warrant by an
officer-in-charge of a police station or is brought before a court, he may be released
on bail. The word ‘may’ clearly indicates that the police officer or the court has got
discretion to grant bail.

Liberty of individual and interest of society in general should be looked to exercise

direction in grant of bail28

27 Rajendra Prasad v. state of U.P., (1989) 26 Acc 57 (All)

28 Mansab Ali v. Irsan 2003 all (3) CrLJ 455.
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 Genesis and Development of concept of Bail

The words “or suspected of the commission of any non-bailable offence” make the
discretionary power available to not merely an accused person but also a suspect who
has been arrested or detained for the commission of a non-bailable offence. 29
Practically, before a person is formally charged by the Investigating Officer, he
remains a suspect. Upon being challaned, he comes to be called an accused. Normally,
the police practice is putting up challans after a month or so of the committal of the
suspect.

Restricted bail to habitual offenders:

Clause (ii) to sub-section (1) of Sec. 437 Cr.P.C. provides that if any person who has
been previously convicted of an offence punishable with death or imprisonment for
life or has been previously convicted on two or more occasions of a non-bailable
offence, is arrested without warrant for the commission of a non-bailable offence by a
police officer he shall not be released on bail. The clause restricts the discretion to
grant bail to habitual offenders who have been previously convicted of serious
offences. In Kartar Singh v. State of Haryana, on two earlier occasions, the accused
had been convicted under the Excise Act – which offences were bailable. On another
occasion he had been convicted under Section 457/511 of the I.P.C. which is a
nonbailable offence. The Magistrate refused bail on the mistaken impression that the
offences under the Excise Act were non-bailable. As the Magistrate was wrong,
Sec.437(1) was held inapplicable and the accused was granted bail. Where there was
allegation that the accused was a party to a criminal conspiracy which was hatched to
get the victim killed through contract killers, it was held that the non-disclosure of his
name as a conspirator in the remand application could not be a ground for disbelieving
the prosecution case. Evidence showed that he had handed over huge amount to
Contract Killers. Thus a prima-facie case was made out against him. The order
granting bail to him during investigation was not proper.

Section 437(2) of Cr.P.C.: If there are no reasonable grounds for believing: We

must take note of sub-section (2) of Section 437 Cr. P.C. 30 which is largely
responsible for the genesis and moulding of the beneficent approach of the courts.
Sub-section (2) of Section 437 reads as:
29 Sube tundi Kachi v. state 1963 (2) Cri.L.J. 1997 (MP)

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 Genesis and Development of concept of Bail

If the accused is not released at the initial stage of his appearance in a court, he can
still be released subsequently during investigation, inquiry or trial if there are no
reasonable grounds for believing that he has committed a non-bailable offence. The
principle to be deduced from these sections is that grant of bail is the rule and refusal
is the exception. This statement has been reiterated in many cases.
The question that arises here is that despite the beneficient approach of the courts in
laying down this rule, bail and not jail, why do we continue to hear heart rendering
cases like the Bhagalpur blindings case,31 Hussainara Khatoon,32 Mantoo
Mazumdar,33 Rudal Shah,34 Kadra Pahadia,35 Maksudan Singh36 etc. The ratio of
convicts to under-trials in India jails continues to be higher for undertrials.
Kumkum Chadha has prepared a statement of prison population in India on various
dates between the years 1975 to 198137. This study revealed the fact that undertrial
population has been increasing over the years, while the convict population has been
showing a downward trend. The 78th Report of the Law Commission of India has also
drawn similar conclusions.38

ANTICIPATORY BAIL:
This is a new provision made on the recommendation of the Law Commission. Under
the old code there was no specific provision for grant of "anticipatory bal". The view
of several High Courts was that unless a person was under a restraint, i.e. in legal
custody, no bail could be granted. The Law Commission observed:

"The necessity for granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false cases for the purpose of

30 “If it appears to such officer or court at any stage of the investigation, inquiry or trial, as the case
may be, that there are not reasonable grounds for believing that the accused has committed a non-
bailable offence, but there are sufficient grounds for further enquiry into his guilt, the accused shall,
subject to the provisions of Sec.446-A and pending such enquiry, be released on bail or, at the
discretion of such officer or court, on the execution by him of a bond without sureties for his
appearance as hereinafter provided.”
31 Khatri v.. State of Bihar, 1981, Cri. L.J. 470.
32 Hussainara Khatoon v.. State of Bihar AIR 1979 SC 1360.
33 Mantoo Mazumdar v. State of Bihar AIR 1980 Sc 847.
34 \Rudal Shah v.. State of Bihar AIR 1983 SC 1096 : 1983 Cri. L.J. 1644.
35 Kadra Pehadia v. State of Bihar AIR 1982 Sc 1167.
36 State v. Maksudan Singh, AIR 1986 Pat. 38.
37 Chadha, Kumkum., the Indian Jail- A Contemporary Document, (1983) P. 93
38 Law Commission of India, 78th Report on Congestion of undertrial Prisoners, Feb. 1979.
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 Genesis and Development of concept of Bail

disgracing them or for other purposes by getting them detained in jail for some
days…. Apart from false cases, where there are reasonable grounds for holding that a
person accused of an offence is not likely to abscond, or other wise misuse his liberty
while on bail there seems no justification to require him first to submit to custody
remain in prison for some days and then apply for bail"
The section applies to all non-bailable offences and not merely to offences punishable
with death or imprisonment for life. Its applicability is also not confined to offences
exclusively triable by the court of sessions.The provision is not applicable to bailable
offences.39

Anticipatory bail: a misnomer:

When the court grants anticipatory bail, what it does is to make an order that in the
event of arrest a person shall be released on bail. 40 Manifestly there is no question of
release on bail unless a person is arrested and, therefore, it is only upon arrest that an
order granting `anticipatory bail’ becomes operational. 41 The expression of
anticipatory bail is a convenient mode of conveying that it is possible to apply for bail
in anticipation of arrest.

Distinction between ordanary bail and anticipatory bail:

The distinction between an ordinary order of bail and an order of anticipatory bail is
that whereas the former is granted after arrest and therefore means release from the
custody of the police, the latter is granted in anticipation of arrest and is, therefore,
effective at the very moment of arrest. 40 An order of anticipatory bail constitutes
immunity against police custody and arrest. Unlike a post-arrest legal process which
directs that if the person in whose favour it is issued is thereafter arrested for the
offence in respect of which the direction is issued, he shall be released on bail. For
making an application for ordinary bail a person has to be in custody while see 438,
deals with “direction for grant of bail to person apprehending arrest.” 41 Power

39 R.K. Krishna Kumar v. State of Assam, AIR 1998 (SC) 530

40
Kekar, R.V., Code of criminal procedure' (1980), P. 202 41Balchand
Jain v. State of M.P., 1976, 4 SCC 572.
40 2Kailaspati v. State of Maharashtra, 1996 JT 363.
41 Adri Dharan Das v. State west Bangal 2005 AIR (SC)1057.
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 Genesis and Development of concept of Bail

exercisable u/s 438 Cr.P.C. is some what extra ordinary in character and is involved
only in exceptional cases42.

Why Anticipatory Bail?:

The necessity of granting anticipatory bail arises mainly because sometimes
influential persons try to implicate their rivals in false cases for the purpose of
disgracing them or for other purposes by getting them detained in jail for some days.43

Power exercisable U/s 438 is somewhat extra-ordinary in character and only to be

exercisable in exceptional cased of false implication or in case of reasonable ground
for holding that person accused of an offence is not likely to otherwise misuse his
liberty. Power U/s 438 Cr.P.C. being of important nature is entrusted only to higher
echelons of Judicial forums i.e. session court or high court – it is power exercisable in
case of an anticipated accusation of non-bailable offence – object of section that in
moment a person is arrested, if he had already obtained an order from court U/s. 438,
he shall be released immediately on bail without being set to jail.44

The Supreme Court through Justice Chandrachud in Gurbaksh S. Sibbia v. State of

Punjab has very convincingly justified the incorporation of the extraordinary remedy
of anticipatory bail in our Code:
“Police custody is an inevitable concomitant of arrest for non-bailable offences.
S.46(1) of the Code of Criminal Procedure, 1973, which deals with how arrests are to
be made, provides that in making the arrest shall actually touch or confine the body of
the person to be arrested unless there be a submission to custody by word or action. A
direction under S. 438 is intended to confer conditional immunity from the ‘touch’ or
confinement. It is the normal day-to-day business of the police to investigate into
charges brought before them and broadly and generally, they have nothing to gain, not
favours at all, by subjecting ordinary criminals to needless harassment. But the
crimes, the criminals and even the complainant can occasionally possess extraordinary
features. When the even flow of life becomes turbid, the police can be called upon to
enquire into charges arising out of political antagonism. The powerful processes of
42 D.K. Ganesh babu v. P.T. Manokaran and others, AIR 2007 SC 1450.
43 Law commission of India, 41st report, Sept. 1969.
44 Adri Dharan Das v. State of West Bangal, 2005 AIR (SC) 1057.
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 Genesis and Development of concept of Bail

criminal law can then be perverted to achieve extraneous ends. Attendant upon such
investigations, when the police are not free agents within their sphere of duty, is a
great amount of harassment and humiliation. That can even take the form of parading
of a respectable person in handcuffs apparently on way to a court of justice. The foul
deed is done when an adversary is exposed to social ridicule and obloquy, no matter
when and where convection is secured or is at all possible. It is in order to meet such
situations, though not limited to these contingencies, that the power to grant
anticipatory bail was introduced into the code of 1973

However, in State v.. Mangi Lal45 of the Madhya Bharat High court, A.H. Khan J held
that “There are cases when the police under the colour of its duty direct its energies
towards harassment and persecution of a person who ought to have been left alone. In
such cases even though the person may be eventually discharged or acquitted, but the
police in the meantime does cause him indignity and hardship which cannot be
adequately described. If in such circumstances, or others like it, a person were to
approach the court, there would be no harm if an anticipatory bail were allowed. The
bail in anticipation merely affords more convenience to the public and if the accused
were in any way to abuse the privilege, bail can always be cancelled.

In a subsequent case46 the same High Court held that anticipatory bail is repugnant to
the provisions of the code.
Raghubhai Dayal J. in State of U.P. v. Kailash said that the conception of bail is that a
person praying for bail is in custody and desires freedom, which he can obtain only
under an order of the court having jurisdiction over him. The unfettered power of the
court to grant bail under Section 438 does not contemplate the power to grant bail to a
person who is not in custody. Similarly, the Andhra High Court in Public Prosecutor
Vs. Manikya Rao held that the concept of bail implies some form of previous restraint.
The High Court or session court has no power to grant bail to a person who has not
yet been arrested on any charge of a non-bailable offence, or for, who has not
surrendered himself in court but merely apprehends that he might be arrested.

45 AIR 1952 Mad. 161.

46 State v. Shyam Lal AIR 1953 M.P.33
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 Genesis and Development of concept of Bail

In State v. Om Prakash49 the respondents’ contention before the trial court was that
they apprehended arrest as a case under Section 480, 467, 468 and 120-B of the Indian
Penal Code had been registered against them. The police was likely to arrest them at
any moment and the warrants had been obtained. They pleaded that being respectable
position before the public. The trial court granted anticipatory bail in spite of the
public prosecutor’s contention against the grant of anticipatory bail to the respondents.

The Himachal Pradesh High Court discussed the provisions relating to bail under
Section 436, 437 and 438 of the Criminal procedure Code 1898. Decided cases were
also examined. The court was of the view that the grant of bail of a person
presupposes that he is in the custody of the police or of the court. Accordingly, it
decided on the ruling of the Madhya Pradesh High Court in State of M.P. Vs. Narayan
Prasad Jaiswal50 where it was held that it is Unreal to talk of granting bail to any
person who is under no such restraint. Thus mere registration of a case and the
apprehension of the petitioner being put under arrest is not deemed sufficient to
invoke the powers of the court to grant bail.

1973 Cr. L.J. 824, H.P. 50AIR

49

1963 M.P. 26.

Wide Discretion in granting anticipatory bail:

The words “may, if it thinks fit” used in S. 438(1) of Cr.P.C. and the absence of any
specific restraints on the exercise of the power to grant bail clearly indicate that the
legislature intended to confer and has in fact conferred very wide discretion on the
High Court and the Court of Session to grant anticipatory bail.

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 Genesis and Development of concept of Bail

The object of using the words “if it thinks fit” in Sec. 438(1) of Cr.P.C., which are
absent in S. 437(1) is to confer wide discretion on the High court and the Session
court to grant anticipatory bail because (a) it would be difficult to enumerate the
conditions under which anticipatory bail should or should not be granted, and (b) the
intention was to give the higher courts a somewhat free hand in the grant of relief in
the nature of anticipatory bail.47

The view taken by some high Courts that the conditions imposed in Sec. 437 on
granting of bail are implicit in Sec. 438 and must be read into it has been rejected by
the Supreme court and is no longer good law for the purpose of canalizing the
discretion in granting anticipatory bail.48

Concurrent powers of the High Court and the Court of Session:

(a) Power conferred upon higher judiciary alone:
Section 438 lays down that the power to grant anticipatory bail has been conferred
only upon the High Court and the Court of Session as the courts of first instance. The
exclusion of other Courts is aptly explained by the Lordships of the Supreme Court in
Balchand Jain v. State of M.P. 49

”Now this power of granting anticipatory bail is somewhat extraordinary in character.

And this power being rather of an unusual nature, it is entrusted only to the higher
echelons of judicial service, namely a Court of Session and the High Court”.
The Supreme Court in Gurbaksh Singh v. State of Punjab 50 case has reasoned that the
power to grant anticipatory bail has been conferred upon the High Court or Court of
Session only because, firstly, these are higher courts manned by experienced persons,
secondly, their orders are not final but are open to appellate or revisional scrutiny.

(b) Concurrent Jurisdiction:

The words “High Court or Court of Session” indicate that the section confers
concurrent power to grant anticipatory bail upon both the High Court and the Court of

47 Ibid.
48 Ibid.
49 AIR 1977 SC 366 P. 369
50 AIR, 1978 P&H
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 Genesis and Development of concept of Bail

Session. The petitioner can approach any of these Courts for the grant of anticipatory
bail. The provision does no create any bar against moving the High Court without first
moving the session court.51 However it has been held that unless exceptional
circumstances exist, the court of session should be approached first. 5253 In the case of
Ramesh Chandra Vora v. State of Gujarat57 the question was whether the High Court
should directly entertain the applications for anticipatory bail or whether the petitioner
should be directed to move the Sessions Court first. The High Court held that S.
438(1) gives concurrent jurisdiction to the Courts and the petitioner can move any
court. Despite the statutory conferment of concurrent jurisdiction, Courts have
generally held that ordinarily the court of Session must be moved first. Numerous
High Courts have said:

“The ordinary practice should be that the court of Session must be moved first and
only on proof of exceptional circumstances would the High Court directly entertain a
petition under Section 438”

However the Full Bench judgment of the Allahabad High Court in Onkar Nath
Aggarwal’s case54 held that the section contemplated two forums for moving an
application and both the jurisdictions were concurrent and it was open to the petitioner
to choose either of the two. The Himachal Pradesh55 and the M.P.56 High
Courts have also held that the word “or” in S.438(1) gives the option to the person
concerned to move either Court first. There is a divergence of opinion among the
various High Courts on this issue.

Another important question is that if an application for anticipatory bail fails in the
court of Session, is it maintainable in the High Court which is superior? The Madhya
Pradesh and the Punjab and Haryana High Courts have repeatedly held that even after
a court of Session has rejected an application under section 438, the High Court can
be moved for the same relief. However, a contrary view has been expressed by the
Punjab and Haryana and the Calcutta High Courts which have held that if a person

51 Onkar Nath Aggarwal v. State, 1976 Cri. L.J. 1142 (All)

52 Haji Ali-sher v. State of Rajasthan 1976 Cri. L.J. 1658 (Raj)
53 Cri. L.J. 210, Guj
54 Onkar Nath Aggarwal v. State, 1976 Cri. L.J. 1142 Allahabad.
55 Mohan Lal v. Prem Chand 1980 Cri. L.J. 142, Himachal Pradesh.
56 Bhagirath v. State of M. P. 1980 Cr. L.R. 45, Madhya Pradesh.
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 Genesis and Development of concept of Bail

moved the court of Session under Section 438 and lost, he cannot again move the
High Court under Section 438. This view is not sound as in such a case, the person is
not invoking the revisional jurisdiction of the High Court, but applies under Sec.438
itself.

The question whether a second application for anticipatory bail lies after the rejection
of the first by the Sessions court was dealt with in a number of cases. The Punjab and
Haryana High Court.57 has held the second application was not barred. A second
application for relief under Section 438(1) cannot be rejected solely on the ground that
the earlier one for the same relief was rejected. The second application should be
considered on merits and there may be further developments and considerations to be
taken into account.58 In a case of Rajasthan High Court 59 the second application was
rejected as after the rejection of the first application, the applicant absconded and did
not surrender. In another case60 the fourth application was allowed though the earlier
three applications by the same applicant had been rejected. The observation of the
Supreme Court in Babu Singh’s case61 which related to release on bail of a convict, is
relevant here,
“an order refusing an application for bail does not necessarily preclude another, on a
later occasion, giving more materials, further development and different
consideration”.
GREATER POWERS OF THE HIGH COURT AND COURT OF SESSION ON
MATTERS OF BAIL:

Scope of Section 439:

Sec. 439 gives unfettered direction to the High Court or Court of Session to admit an
accused person to bail, but that direction must be exercised judicially. The power of
High Court and of a Court of Session to grant bail is not fettered by the restrictions
contained in Sec. 437 of Cr.P.C.62

57 Prahlad Singh v. U.T. Chandigarh 1975 Punj. L.J. cri, 186.

58 Ram Gopal v.State of Rajasthan 1983 Cri. L.R. 217.
59 Chhangaram v. State 1983 Cr. L.J. (Noc) 138.
60 Nahar Singh v. State of Rajasthan 1983 Raj Cri. Cases 48.
61 Babu Singh v. State of U.P. AIR 1978 SC 527.

62 Shanti Lal v. State of Rajasthan (1995) Raj 566

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 Genesis and Development of concept of Bail

From the contents of Sec. 439 of Cr.P.C., it is inferred that the scales of the
Legislature dip towards liberty more than towards restraint of an accused. By
specifically providing that even if a Magistrate refuses to grant bail to an accused
person, the High Court or the Court of Session may order for grant of bail in
appropriate cases, the legislature has reaffirmed the right to personal liberty granted
by our Constitution. Thus the High Court and the Court of Session can, by virtue of
Sec. 439 of Cr.P.C., revise the order of a trial court and hold that the court should
have exercised the discretion in favour of granting bail. The High Court and the Court
of Session can also reduce the amount of bail fixed by the Magistrate and can modify
or set aside any condition imposed on a bail order by the trial court. The powers under
this section are clearly unfettered by any conditions or limitations imposed by the
preceding Sec. 437 of Cr.P.C. In every case it is the cumulative effect of all the
combined circumstances that must weight with the court and those considerations are
for too numerous to be classified or catalogued exhaustively.

The scope of this section can be best understood if the distinction between trial courts
and appellate courts is clear. Common to all judicial systems is the distinction
between these courts. Each level of court has its own function: basically trial courts
are fact finding courts and appellate courts are law-reviewing courts. Trial courts are
the courts of first instance, the place where nearly all cases begin. They are
empowered to consider both the facts and the law in a case. Appellate courts normally
consider only the law. The difference between facts and law is significant. The facts
are what happened. The law is what should be done about the facts.
In an appeal the appellant court does not establish a new factual record. No more
testimony is taken. No more witnesses are called. The factual record established by
the jury or judge at the trial stands. The appellate courts’ task is to determine whether
the law has been applied properly in the light of the facts established at the trial. In
bail dispositions, proceedings in appeal courts are far more dignified as compared to
magistrates’ court. The law volume of cases, the lack of trials for summary offences,
much lesser noise and confusion and the high caliber of the personnel all contribute
to this difference.

Gravity of the circumstances in which the offence is committed; the position and
status of the accused with reference to the victim and the witnesses; the likelihood of
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 Genesis and Development of concept of Bail

the accused fleeing from justice or repeating the offence or tampering with witnesses
and other relevant grounds cannot be exhaustively set out. 63 It is true that when the
gravity of the offence alleged is severe, mere period of incarceration or the fact that
the trial is not likely to be concluded in near future either by itself or conjointly may
not entitle the accused to be enlarged on bail. Nevertheless, both these factors may
also be taken into consideration while deciding the question of grant of bail.64

In K.N. Joglekar v. Emperor ,65 the Allahabad High Court said that discretion under
this section is not in any manner affected merely because the Sessions Judge has
refused to grant bail. This refusal would become one of the considerations to be taken
into account in the exercise of the discretion by the High Court. 66 Petitioner who was
earlier granted temporary bail seeking extension there of ground of illness. Fact that
petitioner was suffering from disease diabetes which has now become a common one.
Petitioner can get treatment for same in Jail premises also where doctors were on
round the clock duty. Petitioner could be referred to civil hospital in case of
emergency. Disease suffered by Petitioner cannot be cured even for a life time and
therefore petitioner cannot be allowed to take treatment in hospital of his choice for
long duration in order to avoid detention in custody. Bail application refused.67
The practical effects of the procedure under Sec.439 of Cr.P.C.:

Thought the have been singing paens to the spirit of liberty under S. 439, we have
overlooked how a serious procedural problem is created by the division of
reasonability for setting bail which prohibits the trying magistrate from setting bail for
persons accused of an offence punishable with death, life imprisonment or seven years
jail or more as habitual offenders (S.437). Persons charged with these offences, after
being held at the preliminary hearing must procure a lawyer and make a formal
request for bail to the High Court or Sessions Court despite being handicapped by
their imprisonment.

The practical effect of this procedure is that it operates to deny bail. In common
parlance among police and magistrates the crimes for which the latter cannot set bail

63 Grucharan Singh v. State (Delhi Administration) 1978 1 SCC 118.

64 Chenna Boyanna Krishna Yadav v. State of Maharashtra and Anr., 2007 Cr. L.J. 782 (SC).
65 AIR 1943 All. 504.
66 Sheikh Mohammad Muzaffar v. State, AIR 1964 All. 127.
67 Gopal Bhai Chat Urbhai Amin. v. State of Gujrat 2007 Cr. L.J. (NOC) 172 (Guj)
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 Genesis and Development of concept of Bail

are described as “non-bailable” and there is ironic truth in this label. When a
magistrate holds such an offender at preliminary hearing, he will state “without bail
for court” and a substantial number of defendants do not understand that they may still
be able to obtain bail by going through the procedure outlined above. That is, they
must surmount the obstacles and delay inherent in the requirement of procuring a
lawyer despite being in jail. Our prisoners are ignorant absolutely of their right to
demand release on bail in non-bailable offences. Among prisoners interviewed during
this study who were being held in jail awaiting trial, 70% stated that they were not
aware of the possibility that they could obtain bail, a few were aware of this but
thought the exercise futile as they were unable to procure witnesses even if they could
manage the services of a lawyer. State governments frequently order summary trials
of lifers and others involved in non-bailable offences awaiting trial and in state
prisons so that they may at least be released on bail and may lessen the burden of the
prison population and the State Exchequer.68

Concurrent Jurisdiction of the High Court and the Court of Sessions:

Sec. 439 Cr.P.C. opens with the words, “A High Court or Court of Session may direct
– “...These words show that the High Court and the Sessions Court have concurrent
jurisdiction and although there is no hard and fast rule, it is desirable that the ordinary
practice should be that the lower court should first be moved, being the Court which is
going to try the case and where an expression of opinion by the superior court is likely
to prejudice the trial73 in the lower court. It has been reiterated, in Haji Alisher Vs.
state of Rajasthan74 that is it a recognized, and in any event a convenient principle that
when two forums have concurrent jurisdiction, the lower one should be approached at
the first instance, unless the party concerned gives special reasons for direct approach
to the higher forum such as extreme urgency or a momentous question of general
policy. Besides even if the usual practice is that a person desiring bail should first
approach the lower court, it is not an inflexible practice as Sec. 439 of Cr.P.C. gives
unlimited judicial discretion to the High Court in the matter of granting bail when it
uses the words ‘any person’ in this section.

It is important to note that the powers of the High Court and the Court of Session are
independent. Even after a bail application is rejected by a Court of Session a person in

68 R egistered Society v. Union of India, AIR 1996 SC 1619.

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 Genesis and Development of concept of Bail

custody can move the High Court for bail under Section 439(1) because in such cases
the High Court is not exercising any revisional power, but exercises a special power. 75
It is held in Varinder Singh Vs. Avdesh Kumar76 after the High Court rejected a bail
application, the Court of Session can entertain a bail application of the same accused
if any substantial grounds for bail arose after such rejection. On the other hand, if the
fresh application was meant to overcome the earlier order of rejection of bail by the
High Court, judicial decorum requires that the Court of Session should direct that
accused to approach the High Court. Another application on the same facts and for the
same offence can be made to the High Court. This is in accordance with the dictum of
the Supreme Court in Babu Singh Vs. State of U.P.77 that “an order refusing an
application for bail does not necessarily preclude another, on a later occasion, giving
more materials, further development and different considerations.

Under sub-section (1), clause (a) of the present section the High Court or the Court of
Session can direct that any person accused of an offence and in custody be released on
bail and may impose conditions if the offence is of the nature specpified in Sec.
437(3). Under clause (b) it can set aside or modify any condition imposed by the

73
Mathew Zacharia v. State of Kerala 1974 Ker Lt 42: 1974 Cri.L.J. 1198.
74
1978 Cr.L.J. 1658 (Raj.); Chajju Ram Godara v. State of Haryana 1978 Crl.LJ 608 (Pnb. and Hr.).
75
Vijay Narain v. State 1976 Cr.L.J. 68(H.P.).
76
1983 (U.P.) C.L.R. 415.

1978 Cr.L.J. 651: (1978) 1 SCC 579

77

Magistrate while granting bail to a person.

CANCELLATION OF BAIL:

'If the courts have the discretion or power to grant bail, they have also the power to
cancel it.'
Cancellation of bail necessarily involves the review of a decision already made and
can by and large be permitted only if by reason of supervening circumstances it would
be no longer fair to allow the accused to remain his freedom during the trial.
Admission to bail always involves a risk that the defendant will not reappear or a
criminal career might continue during liberty. If in a situation as above, the release on
bail is not revocable, the accused once release can do his bidding unchecked and

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 Genesis and Development of concept of Bail

invulnerable to the process of law. This would render our investigating agencies and
the judiciary helpless in the face of one abusing his liberty for he has armed himself
with an order of bail. The Legislature expressly provides for cancellation of bail to
meet such a situation. In the Code of Criminal Procedure, 1973, the provisions
relating to cancellation of bail have been provided for under Sections 436(2), 437(5)
and 439(2). The Code vests the power to revoke an order of bail in a judicial court
only and not in a officer-in-charge of the police satiation even though bail may have
been granted by the latter.

Cancellation of bail granted under section 437 Cr.P.C.:

Sub-Sec.(5) of Sec.437 deals with the cancellation of bail granted in regard to a

nonbailable offence. The granting of bail in a non-bailable offence is a concession
allowed to an accused person and it presupposes that this privilege is not to be abused
in any manner. It is a sort of trust reposed in him by the Court and if it is found that he
has betrayed this trust in any manner or that he has misused his liberty thus granted to
him by the court, he disentitles himself to the privilege so granted. 78 Where the
accused released on bail had violated the conditions imposed in bail order and
repeatedly committed offence therefore accused released on conditional bail as last

Emperor v. Jiwan Lal Gambe, AIR 1936 Lah. 730; Maibam Bidhu Singh Vs. Manipur Admn. AIR
78

1959, Manipur, p. 47
opportunity of correcting himself.69

The sub-section is designed to protect the interests of the administration of justice and
to prevent its being hampered in any manner in case the order of bail is infirm.
Accused committed murder during bail period, bail application cancelled by senior
judge. Direction issued to consider bail application on basis of evidence on record.70

We proceed to analyse the provisions of this section henceforth. It says that any court
which has released a person on bail under sub-sec.(1) or sub-sec.(2) of S.437, may, if
it considers it necessary to do, direct that such a person be arrested and commit him to
custody. The sub-section falls under S.437 which deals with bail in case of

69 Antaryami Das v. State of Orrisa, 2003 Cr.L.J. 2393 (Ori.).

70 Mansab Ali v. Isran, 2003 All Cr.L J. 993 (SC)
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 Genesis and Development of concept of Bail

nonbailable offences. It applies only to cases where bail has been granted under this
section and has no application where bail has been granted under Sec. 436 or 439(2)
of Cr.P.C. It was held in Crown Prosecutor Vs. N.S. Krishnan71 that the power
conferred by Sec. 437(5) of Cr.P.C. to cancel bail and re-arrest an accused is expressly
limited to cases in which the accused has been released under section 437 and that the
provisions of clause (5) of this section have no application to an accused person who
has been released on bail under Section 439.

BOND AND FOREFEITURE OF BOND:

The Code of Criminal Procedure, 1973 prescribes various forms of release of an

accused from custody and to ensure his appearance in due time before a court for his
trial. The Code mentions four provisions of release from custody – bail, security,
surety and bond. Courts use them either singly or in combination with one or more
forms for purposes of releasing an accused. Each of the above is essentially a
pecuniary undertaking.

Bond of accused and sureties:

Generally, release on bail is effected by the detenu entering into a bond with or
without sureties. A bond is an undertaking by an accused to pay a sum of money by
way of penalty if he does not appear before a court on a particular date. Sometimes
courts insist on surety bonds also before releasing an accused. This bond means an
undertaking by the surety apart from the accused to pay by way of penalty a sum of
money if he cannot fulfill his responsibility of producing the accused in court on a
particular date. It was held that Sec. 441 does not speak about deposit of cash surety
but in certain contingencies, Where accused unable to secure sureties, He is permitted
to deposit a sum.72 The accused is a foreign national and is not able to furnish a local
surety. The same does not debar her from being admitted to bail. The provision local
surety is no where mentioned in the code and surety can be from any part of the
country or without. Since the accused is a foreign national and is facing investigation
U/s 4,5, and 8 of ITP and willing to make a deposit in cash in lieu of the surety in
addition to a personal bond. Admit the petitioner to bail on her furnishing a personal

71 AIR 1945 Mad 250 at p. 251, 252; Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR
1958 SC 376 at p. 380.
72 Allaudin v. Inspector of Police, Vandhavasi Police Station, 2002(1) CRJ 196(Mad)
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 Genesis and Development of concept of Bail

bond in the sum of Rs. 20,000.0073 It is the legal duty of a surety to make sure that the
accused appears in the court as and when required. In case of default he has to pay the
stipulated sum and he may well be imprisoned if he fails to do so. 74 The bond and the
bail-bond contemplated by Sections 436, 437 and 441 are given in the Form No. 45 as
prescribed in the Second Schedule of the Code.

Security:

Security, like bail, is also one of the modes used by our courts to secure the presence
of an accused. Security proceedings require a person to execute a bond promising to
keep the peace or be of good behaviour until the completion of enquiry initiated
against him. In case of his defaulting, he undertakes to forfeit to the government a
particular sum of money.

Sometimes courts insist upon production of sureties also in security proceedings.

From the observations above, it is clear that these modes are multiple checks against
possible depredations while an accused is released from custody pending trial.

Pecuniary nature of bail bonds:

A bond taken under the Code as Security for performance of an act or promise must
necessarily include a money penalty for the breach of such promise. The payment of
money is practically the only form of penalty which the law can conveniently enforce
in case of breach.

Immediate release on executing the bond:

As soon as the bond is executed in terms of the provisions of Sec. 441, Cr.P.C., the
person for whose appearance it is executed must be released. The court has to
immediately issue an order of release to the jail authority and such authority in receipt
of the said order shall forthwith release such person (Sec.442). When the court orders
his release, it has no power to put any embargo or restrictions upon the movement of
the accused unless such restriction is imbibed in the orders granting bail.

New Section 441-A:

73 Shokishta v. State, 2006 (1) RCR (Criminal) 636 Delhi

74 Edmund N. Schuster v. Asstt. Collector of Customs, AIR 1867 Punj. 189.
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 Genesis and Development of concept of Bail

Sec. 441-It deals with declaration by the sureties as to the number of persons to whom
he has stood surety before the court in the bail matter of the accused that the court
may consider the solvency and character of the surety.

Amount shall not be excessive:

Sec. 440(1) of the Criminal Procedure Code, 1973, provides that “the amount of every
bond executed under this chapter shall be fixed with due regard to the circumstances
of the case and shall not be excessive”. There is no dearth of instances where this
specific directive has been ignored by courts.

Declaration of Sureties U/s 441-A of Cr.P.C.:

Every person standing surety to an accused person for his release on bail, shall make a
declaration before the Court as to the number of persons to whom he has stood surety
including the accused, giving there in all the relevant particulars.
Discharge of Sureties:
The sureties can move an application in the Court seeking discharge from
responsibilities in case they find that the accused is getting out of their control. Even
for other reasons the sureties have a right to be discharges with the permission of the
court.75

Forfeiture of Bond:
The Dictionary meaning of forfeiture is ‘confiscation of something as a penalty for a
mistake or fault’ or ‘to confiscate as punishment’.

Scope of Sec. 446 of Cr.P.C.:

Sub-sections (1) and (2) of Sec. 446 of Cr.P.C. contemplate two different stage in the
proceedings before the court. In the first stage, the court has to satisfy itself that a
bond has been forfeited. This means that the condition imposed upon the executant of
the bond and agreed to by him has been forfeited. The second stage relates to recovery

75 Sec. 444 of Cr.P.C.:- All or any sureties for the attendance and appearance of a person released on
bail may at any time apply to a magistrate to discharge the bond, either wholly, or so far as relates to
the applicants.
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 Genesis and Development of concept of Bail

of the amount of the forfeited bond. Non-affording of opportunity of hearing to

bailors before forfeiting bail bond venders order of forfeiture of bail bonds illegal.76

According to sub-section (1) of Sec.446 of Cr.P.C. the person executing bond in

favour of a court is entitled to have a notice for the purpose of enabling him to show
cause why the surety should not pay the amount of the bond. In the absence of any
material on record to show that surety is suffering from heart ailment, the order of trial
court awarding penalty of Rs. 5,000.00 for negligence of surety being fact and proper
requires no interference.77

No notice to show cause before passing order for forfeiture of the bond but notice
must to show cause why penalty should not be paid:

Section 446 of Cr.P.C. contemplates a notice to show cause why penalty should or
should not be paid after forfeiture of the bond. This section does not contemplate a
notice to show cause before passing order for forfeiture of the bail bond. Where the
bond is executed in order to see that the property released in favour of the accused be
produced before him when called upon by the court, the very fact that the accused did
not produce the property would result in forfeiture of the Indemnity Bond and there is
no necessity for issuing any note prior to forfeiture of the bond. As required by the
latter portion of Sec. 446(1) of Cr.P.C., after forfeiting the bond, the court has the
obligation to issue notice to the surety calling upon him to show cause why the
amount of the bond should not be ordered to be recovered. Under Sec. 446 of Cr.P.C.
notice should have been issued. And thereafter the order for recovery could have been
passed78

Before a surety whose surety bond is forfeited is called upon to pay penalty a notice in
the prescribed from intimating him that the bond had been forfeited and calling upon
him to pay the penalty or to show cause notice as to why penalty should not be paid
must be issued. It is only thereafter that the court would be competent to levy the
penalty and proceed to recover the same if sufficient cause is not shown or the penalty
is not paid. 79

76 P. Papamma v. State of Orissa, 2003 Cr.L.J. 2148 (Ori.)

77 K.S. Shivana v. State of Karnataka, 2003 Cr. L.J. 214 (Kant)
78 Ram Bharose and others v. State of U.P. 2003(1) J Cr. L.J. 316
79 Mahmood v. State of U.P. 1979, Cr. L.J. 1439
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 Genesis and Development of concept of Bail

Court to be satisfied that the bond has been forfeited:

Even though there is no provision for issuing a notice to show cause before a bond is
forfeited, the court must be satisfied and should record its satisfaction that the bond
has been forfeited. The court has to record the grounds of such proof and thereafter on
being satisfied it may call upon the person bound by such bond to pay the penalty
thereof or to show cause why it should not be paid. If this procedure is not followed,
the entire penalty procedure is illegal.

It has been held that when the Magistrate passed a single order for forfeiting the surety
bond and directing realisation of penalty, the order is a nullity.

In order that the forfeiture of the bond be valid, a notice to show cause has to be
issued as to why he should not pay the penalty. When order forfeiting bond and

levying penalty is made on the same date, such an order is void ab initio. The notice
should be to call upon the surety to pay the penalty or to show cause why it should not
be paid.80 The notice must state the grounds of forfeiture of the bond. 81 However, a
notice to surety cannot be issued unless the order of forfeiture is passed.82

Satisfaction to be recorded in writing:

Before surety is called upon to show cause as to why the amount of bond or penalty
thereunder may not be recovered from him, the court must first be satisfied that the
bond stood forfeited and reasons for the satisfaction must be recorded in writing.
However, it is not necessary that the court should separately and formally record the
grounds of proof. But it is sufficient if they exist and appear in the record of the
proceedings.

In this matter, the distinction has been drawn between bonds for appearance and other
bonds. When a bond for appearance is forfeited, the fact that the person bound over
has failed to appear is sufficient to enable the court to forfeit the bond and there need
not be any further record of proof nor the court will be required to record any
80 Dilnavaz v. State, 1980 Cr.L.J. 145 (Del.)
81 Sadananda v. State of Kerala, 1986 Cr.L.J. 756.
82 Bhoja Babu v. State of Maharashtra, 1984 Cr.L.J. 855.
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 Genesis and Development of concept of Bail

evidence at all. When the accused fails to attend to court on the date fixed, it is a
sufficient proof of the fact that the condition of the bond has been forfeited and no
further proof of inquiry is either necessary or contemplated.

When a bond furnished under the provisions of Sec.107, Cr.P.C. is alleged to be

forfeited, it is necessary for the Magistrate to record a finding that there occurred a
breach of the peace for the bond to be forfeited and that breach of the peace was due
to some specific activity of the executant of the bond. A bond to keep peace is
forfeited when the opposite party does something which causes a breach of the peace.
So, when the person bound to keep peace is guilty of causing hurt, then the bond is
liable to be forfeited.
No opportunity to surety to produce the accused:

Sec. 446, Cr.P.C. does not provide that opportunity should be afforded to the surety to
produce the accused because forfeiture of the bond takes place as soon as the accused
absents himself on a particular date of hearing. If, the surety is able to produce the
accused or produces the accused, the fact or circumstances may be taken into
consideration by the Magistrate who has taken action against the surety in regard to
leaving of penalty on the surety. In such circumstance, the Magistrate can even waive
levying of penalty.83 When a date for showing cause falls on a holiday, the notice
asking the surety to show cause is bad and forfeiture is not justified.

Grounds for invoking Sec. 446 of Cr. P.C.:

Sec. 446, Cr.P.C. regulates the procedure on forfeiture of bond. The following
ingredients have to be fulfilled for the bond to be forfeited and penalty to be
recovered:

a. It must have to be proved that the bond has been taken under the Code,
namely, under Sec. 87 of the Code, under several security proceedings,
sections, under Ch. VIII of the Code or relating to bail under Ch. XXXIII
of the Code.84

b. It must be proved to the satisfaction of the court that such a bond has been
forfeited.

83 Madhu v. State of Karnataka, 1982 CLJ 82 (Kar.)

84 Rameshwar Bharti v. State of Assam, AIR 1952 (SC) 405
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 Genesis and Development of concept of Bail

c. The court must record the grounds of such proof of forfeiture.

d. After such satisfaction is recorded, a show cause notice has to be issued by

the court to the person concerned as to why penalty should not be paid for
such breach.

e. If no sufficient cause is shown, or if the penalty is not paid, the court shall
proceed to recover the penalty.
Death of the accused:

There can be no doubt that when the accused dies, the sureties are discharged from all
the liabilities. In such a case the bail bond cannot be forfeited.

Arrest of the accused in any other case:

When the surety fails to produce the accused on the ground that the accused has been
arrested and detained in custody or in jail in some other criminal case, the bail bond
should not be forfeited.85

The Court which may forfeit the bond:

The Court before whom a bond for appearance under the Code is given can forfeit the
bond. Similarly a court before whom a bond for production of property under the
Code is given can forfeit the bond. The court to which the case has subsequently been
transferred can also now forfeit the bond in view of the clear provisions of Sec. 446 of
Cr.P.C. In respect of any other bond taken under the Code, the court by which the
bond was taken or any court to which the case has subsequently been transferred or
the court of any Magistrate of First Class can forfeit the bond.

Under Sec. 514 of the old Code corresponding to Sec.446 of the new Code, there was
a conflict of views as to whether the “Court” referred to in S.514 included a successor
court or a transferee court.

In view of the conflicting opinions clustering around Sec. 514 of the old Code, the
Law Commission has recommended restructuring of the provisions in its 41st Report.
The Law Commission in its 41st Report has observed as follows:

85 Allaudin v. Emperor, AIR 1925 Pat. 46.

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 Genesis and Development of concept of Bail

“A doubt has sometimes arisen whether, in the case of a bond for

appearance in a particular court, that court alone can forfeit, or whether
any Magistrate of the first class has the power. As a matter of policy we
think that the power should, in the case for bond for appearance before
a court, be confined to that court as that court is in the best position to
judge the gravity of the breach of conditions causing forfeiture.
Occasionally, some doubt has also arisen whether a bond for
appearance before a court can be forfeited by the order of a court to
which the case was later transferred. It is only proper that the transferee
court should have the same proper to deal with such a bond as the first
court had when the case was in that court. We propose to clarify both
these points by a suitable amendment.”86

These recommendations have resulted in the recasting of Sec. 446 of the new Code
providing expressly that a bond for appearance before a particular court can be
forfeited not only by that court but also by the court to which the case has been
subsequently transferred.87

Enquiry:

After the notice under S. 446(1) has been given, and the person appearing denies the
liability, then it is necessary for the Magistrate to give the person concerned an
opportunity to cross-examine the witness upon whose evidence the notice to show
cause has been issued. There must be a regular judicial enquiry before the punishment
can be inflicted. When no such proper opportunity has been given, the order directing
forfeiture of the bond is liable to be set-aside.

When the surety appears and in the enquiry that is held proves his bona fide, the
penalty cannot be imposed. Therefore, where the accused remained absent only on a
date and subsequently he appeared then on account of his absence for one day the
surety cannot be penalized. It is established that as soon as the surety came to know
about the absence of the accused on a particular day he took all steps to secure his
attendance and then surrendered before the court and suffered a suitable action against

86 Law Commission of India, 41st Report, Sept. 1969

87 Mallik, M.R., Bail Law in India, (1993). pp.441-442.
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 Genesis and Development of concept of Bail

him. So the imposition of penalty by the court is not justified. 88 When on enquiry it is
established that the absence of the accused on a date was not deliberate but due to
illness, the forfeiture of the bond disbelieving the medial certificate and imposing
penalty is not proper.89 When the surety on receiving the notice informed the court
that the accused had died and produced evidence in support thereof, the court is not
justified in disbelieving the evidence only on the ground that the witnesses produced
were not of the same village in which the accused resided. When the surety makes
genuine efforts to find the accused, the order of penalty should normally be in
consonance with the nature and gravity of the situation. When the personal bond of
the accused is forfeited and penalty is sought to be imposed, the Sessions Judge who
accepts the explanation of the accused for non-appearance cannot impose penalty for
violating the personal bond. When the accused released on personal bond fails to
appear in the court when the case is called but appears late, presents himself before
the court and offers explanation and seeks pardon and the pardon is granted, the court
cannot impose the penalty. When the absence of the accused was not willful and he
took caution in order to avoid proceedings under Sec. 446, Cr.P.C. the Rajasthan High
Court did not upheld the forfeiture of the bond.90 Cancellation
of Bail bond on forfeiture:
Sec.446A of Cr.P.C. has been inserted in the Code by the Criminal Procedure Code
(Amendment) Act 1980, with effect from 23.9.1980. The statement of objects and
reasons states that with a view to enabling the law enforcement agencies to deal
effectively with anti-social elements, habitual criminals and those creating enmity
between different groups and communities, the President promulgated the Criminal
Procedure (Amendment Ordinance) 1980, which has been subsequently replaced by
the Criminal Procedure Code (Amendment) Act 1980. This has been enacted to
amend the provisions regarding bail so as to make it more difficult for habitual
criminals, etc. committing serious offences to obtain bail. The Rajasthan High Court
has held that under Sec.446A of the Code the court can exercise the control over the
accused for his regular appearance by exercising discretion against him. It has also
been observed that as Sec. 446A of Cr.P.C. shall not in any way be affected either by
Sec. 436 or by Sec. 437 of the Code, Sec. 446A shall have over-riding effect. The

88 Mela Singh v. State of Punjab, 1981 Chg. Cr.P.C. 16 Pub. H).

89 Baiju v. State of U.P., 1989, All L.J. 742.
90 Gulam Nabi v. State of Rajasthan, 1990, Cr.L.R. (Raj.) 201.
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 Genesis and Development of concept of Bail

court has the power of demanding fresh security either under Sec. 447 or under Sec.
446A of the Code. It has, therefore, been observed that when a bond for appearance in
case of a person is forfeited for breach of a condition, his bond and surety bond shall
stand cancelled and such persons will not be entitled as of right to be released on bail
upon the execution of fresh personal or surety bond and it would be within the
discretion of the court either to release him or not to release him upon the execution of
fresh personal or surety bond.91 Where accused, charged with offence of murder was
granted bail, had not abused concession granted to him and also made no attempt to
interfere with due course of administration of justice therefore bail granted cannot be
cancelled.92

Prevailing Practices:
In actual practice of forfeiture of bail bonds is a rare phenomenon. If the proceedings
are initiated, they are commonly set aside. In the wake of those who abuse the bail
process by making use of false sureties, execution and forfeiture of bond are rendered
objects of ridicule.103 Professional sureties:
In a study conducted on the operation of bail in Delhi courts, 93 it was revealed that a
professional group of sureties is readily available to stand and furnish sureties on
payment of “fees” to them. The sum asked for a bail amount even in serious cases, is
not much of a deterrent because professionals are available to stand as sureties. They
charge a certain percentage of the bail amount asked by the court. The availability of
the sureties at a very economical cost tends to abuse the process of bail.
This system also renders the penalty of forfeiture useless. A number of times, due to
erratic verification into antecedents of sureties, courts are unable to recover any
amount upon forfeiture.
Recovery of Penalty:
If the penalty levied is not paid, the court may either order attachment and sale of the
property or issue a warrant of land revenue.94

91 Johny Wilson v. State, 1986 Cr.L.J. 1235 Raj.

92 Shaik Abdul Wali v. Shaik Shakeel, 2005 Cr.L.J. (NOC) 224 (AP)
103
Pandey, D.C., Release on Bail law and Practice,’ ( 1985 ),p.155.
93 Ibid

94 N.Narayan v. Distt. Collector,1993 Cr.L.J. 1318 Ker.

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 Genesis and Development of concept of Bail

CHAPTER-2
ARTICLE 21 OF THE CONSTITUTION OFINDIA AND
ITS IMPACT ON BAIL:

AMBIT AND SCOPE OF ART. 21:

No person shall be deprived of his life or personal liberty except to procedure
established by law. This is the guarantee enshrined in Art. 21 of the Constitution. In
Francis Coralie Mullin v. Administrator, Union Territory of Delhi,95 Bhagwati J.
Posed the question as to what was the true scope and ambit of the right to life
guaranteed. Under Art. 21 of the Constitution there is nothing like “a right to life”. In
what sense it is a right certainly not in the sense used by solmond or Hohfeld or other
authors on jurisprudence. According to Dias the word “right” connotes four different
ideas concerning the activity, or potential activity; of one person with reference to
another. Those relationship are designed “Jural Relations”.96
Hohfeld in his lable of Jural relations put right duly as jural relatives and right and no
claims as jural opposites. Jural relations between any two parties should be considered
only as between them, even though the conduct of one may create other jural relations
between him and some one else. 108 Any person on being born or in continuing to live
does not enter into any jural relationship with another.

Life and liberty under article 21 of the constitution:

As a result of the liberal interpretation of the words ‘life’ and liberty used in Art. 21 of
the Constitution of India, the meaning of the said words have been expanded. A most
remarkable feature of this expansion of Art. 21 of the Constitution is that many of the
non-judicial Directive Principles embodied in Part IV of the constitution have now
been resurrected as enforceable fundamental rights by magic want to judicial activism,
playing on the said article, e.g. right to pollution free water and Air, right to a
reasonable residence, right to food, clothing, decent environment, etc. The Supreme

95 AIR 1981 SC 746 (752)

96 Dias.,Jurisprudence, 4th Edn. P.33-34 108
Supra.
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 Genesis and Development of concept of Bail

Court in various cases, has also imposed a positive obligation upon the state to take
steps for ensuring to the individual a batter enjoyment of his life and dignity. 97
Constitutional philosophy of personal liberty:
The constitutional philosophy of personal liberty is an idealistic view, the curtailment
of liberty for reasons of States’ security, public order, disruption of national economic
discipline etc. being envisaged as necessary evil to be administered under strict
constitutional restrictions. In Ichhudevi v. Union of India, 98 Bhagwati, J. Spoke of this
judicial commitment:

“The court has always regarded personal liberty as the most precious possession of
mankind and refused to tolerate illegal detention, regardless of the social cost
involved in the release of a possible renegade."

Protection of personal liberty under Article 21:

The object of Art. 21 of the constitution is to prevent encroachment in the personal
liberty of citizens by the executive save in accordance with law and in conformity
with the provisions thereof and in accordance with the procedure established by law.
Before a person is deprived of his personal liberty by the executive, the provisions of
law must be strictly followed and must not be deviated from to the disadvantage of the
person affected. The right to live with human dignity is a fundamental right of every
citizen for pursuit of happiness and excellence.99 At the same time, it has been held in
Vinod Narain that no time bound direction U/Art. 226 of the constitution can be
issued for disposal of a bail application. The said view now stands fully endorsed in
P.Ram Chandra Rao100 by the Apex Court.

Deprivation of personal liberty if accused involved in a number of cases:

In a country like ours, if an accused is alleged to have deceived millions of
countrymen, who have invested their entire life’s saving in fictitious and frivolous
companies promoted by the accused and when thousands of cases are pending against
him in different parts of the country, he cannot at all complain of infraction of Art. 21,

97 Ajit Datt v. Ethel Walters,AIR 2001 All 109(131)

98 AIR 1980 SC 1983
99 Vinod Narain v. State of UP 1996 Cr.L.J. 1309 (1320)
100 P.Ram Chandra Rao v. State of Karnataka, 2002 (44) ACC 974
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 Genesis and Development of concept of Bail

on the ground that he is not being able to be released out of bail custody in view of
different production warrants issued by different courts. Issuance of production
warrants by the court and the production of accused in court, in case where he is
involved, is a procedure established by law and consequently, the accused cannot be
permitted to complain of infraction of his rights under Art. 21 of the constitution.101

Personal liberty and due process of law:

It should be kept in mind that personal liberty should be in conformity with the
provisions of Article-21 of the constitution of India which has widened the meaning
and scope of life and personal liberty.114

The expression “due process of law” has not been defined anywhere in the
Constitution of India, but this expression has been well defined under Section 6 (3),
Requisitioning and Acquisition of Immovable Property Act. 1952. In Hagar v.
Reclamation Distt.102, the Court observed:
“By ‘due process of law’ is meant that it must be adopted to the end to be attained,
whenever it is necessary for the protection of the parties, it must give them an
opportunity to be heard respecting the justness of the judgment sought."

The procedure prescribed by law for the deprivation of the right conferred by Article
21 must be fair, just and reasonable. This is far too settled by a number of cases 103 to
admit of any argument. Just as a malafide act has no existence in the eye of law, even
so, unreasonableness vitiates law and procedure alike. It is therefore essential that the
procedure prescribed by law for depriving a person of his fundamental right must
conform to the norms of justice and fairplay. Procedure, which is unjust or unfair in
the circumstances of a case, attracts the vice of unreasonableness, thereby vitiating the
law which prescribes that procedure and consequently, the action taken tender it. Any
action taken by a public authority which is invested with statutory powers has,
therefore, to be tested by the application of two standards: the action must be within

101 Narinder Jit Singh Sahi v. Union of India AIR 2001 SC 3810 (3827)
114
D.K.Basu v. State of West Bengal, AIR 1997 SC 610.
102 (1884) 111 us 701
103 E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

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 Genesis and Development of concept of Bail

the scope of the authority conferred by law and secondly, it must be reasonable. If any
action, within the scope of the authority conferred by law, is found to be
unreasonable, it must mean that the procedure established by law under which that
action is taken is itself unreasonable. The substance of the law cannot be divorced
from the procedure which it prescribes for, how reasonable the law is, depends upon
how fair is the procedure prescribed by it. If a law is found to direct the doing of an
act which is forbidden by Constitution or to compel, in the performance of an act the
adoption of a procedure which is impermissible under the Constitution, it would have
to be struck down.104
Article 21 in view of its expansive meaning not only protects life and liberty but also
envisages a fair procedure. Liberty of a person should not ordinarily be interfered with
unless there exist cogent grounds therefore.118
ILLEGAL INCARCERATION AND COMPENSATION:
In Rudul Sah v. State of Bihar,105 the Apex Court held that in exercise of the
jurisdiction under Article 32 of the Constitution, it can pass an order for the payment
of money in the nature of compensation consequential upon the deprivation of a
fundamental right to life and liberty of a petitioner. The Apex Court pointed out as
under:
“Article 21 which guarantees the right to life and liberty will be denuded of its
significant content if the power is limited to passing orders of release from illegal
detention. One of the telling ways in which violation of that right can reasonably be
prevented and due compliance with the mandate of Article 21 secured is to mulct its
violators in the payment of monetary compensation. Administrative sclerosis leading
to flagrant infringement of fundamental rights cannot be corrected by any other
method open to the judiciary to adopt. The right to compensation is some palliative
for the unlawful acts of instrumentalities which act in the name of public interest and
which present for their protection the powers of the State as a shield. Respect for the
rights of individuals is the true bastion of democracy. Therefore, the State must repair
the damage done by its officers to the petitioner’s rights. It may have recourse against
those officers."
PURPOSE OF CRIMINAL JUSTICE:

104 Olga Tellis v. Bombay Muncipal Corporation, AIR 1986 SC 180 (196-98)
118
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, AIR 2005 SC 2277.
105 AIR 1983 SC 1086 (1089)
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 Genesis and Development of concept of Bail

The paramount purpose of criminal justice is the protection of the innocent and
punishment of the offenders. A victim for securing this end has come to the Criminal
Court for punishing the offenders. But prolonged pendency of cases has created an
unsurmountable barrier in the dispensation of criminal justice. This has cast a serious
repercussion on the public at large. They have lost their faith in the present system of
the criminal justice administration. Huge numbers of criminal cases pending for years
together are creating an unbearable mental and economic pressure on the litigants of
criminal justice system. The disposal rate in comparison with the institution of
criminal cases is hopelessly meager.120

RIGHTS TO SPEEDY AND EXPEDITIOUS CRIMINAL TRIAL:

The right to speedy and expeditious criminal trial is one of the most valuable and
cherished fundamental rights guaranteed to our citizens under the Constitution. The
said right is an integral part of right to life and liberty and a necessary concomitant of
fundamental right guaranteed under Article 21 of our Constitution. The proceedings
had been lingering on for 10 years and proceedings would commence de novo because
the Presiding Officer has been transferred. On number of dates, the witnesses were not
present and the case did not make progress. The accused has a right for speedy trial
and delay in trial is infringement of his fundamental right. In suitable cases, the Court
must exercise its inherent powers to quash the proceedings to meet the ends of
justice.121
The State which is the prosecuting authority and which is the authority exercising full
control over all the authorities and departments, is obliged, as of necessity, to create
the necessary infrastructure for the purpose implementing constitutional guarantees,
and if there is failure on its part this regard, the constitutional safeguards shall prevail.
If a speedy cannot be ensured, the citizen’s liberty cannot be curtailed and he will,
therefore have to be set free. Where an accused who is facing a trial is in custody or
whether he is on bail are matters of little consequence in this regard because the
liberty of the citizen is still curtailed completely or partially this can only be done

2001 Cri. L.J. Section, 69 .

120

Kallu v. State of Rajasthan, 1998 Cri.L.J. 4247 (4248) (Raj): (1998) 2 Raj Cri. (566).
121

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 Genesis and Development of concept of Bail

within the framework of law.106 In Kartar Singh v. State of Punjab,123 a Constitution

Bench observed thus:

“The concept of speedy trial is read into Article 21 as an essential part of fundamental
right to life and liberty guaranteed and preserved under our Constitution. The right to
speedy trial begins with the actual restraint imposed by the arrest and consequent
incarceration and continues at all stages, namely, the stage of investigation, enquiry,
trial, appeal and revision so that any possible prejudice that may result from
impermissible and avoidable delay from the time of the commission of the offence till
it consummates into a finality, can be averred. In this context, it may be noted that the
constitutional guarantee of speedy trial is properly reflected in Section 309 of the
Code of Criminal Procedure 1973.
Of course, no length of time is per se too long to pass scrutiny under this principle nor
the accused is called upon to show the actual prejudice by delay of disposal of cases.
On the other hand, the Court has to adopt a balancing approach by taking note of the
possible prejudices and disadvantages to be suffered by the accused by avoidable
delay and to determine whether the accused in a criminal proceeding has been
deprived of his right of having speedy trial with unreasonable delay which could be
identified by the factors,—(1) length of delay; (2) the justification for the delay; (3)
the accused’s assertion of his right to speedy trial; and (4) prejudice caused to the
accused by such delay. However, the fact of delay is dependent on the circumstances
of each case because reason for delay will vary, such as delay in investigation on
account of the widespread ramification of crimes and its designed network either
nationally or internationally, the deliberate absence of witness or witnesses, crowded
dockets on the file of the Court, etc.”
In Abdul Rahman Antulay v. R.S. Nayak,124 the Constitution Bench of the Apex Court
dealt with this aspect of the matter and laid down certain guidelines. The relevant
passage in the judgment are as follows:
“Another question seriously canvassed before us related to the consequence flowing
from an infringement of right to speedy trial. Counsel for accused argued on the basis

106 R.Mahadevan Iyer v. State of Maharashtra, 1992 Cri.L.J. 1388 (1389) (Bom): (1992) 3 Crimes
388. 123 1994 Cri. L.J. 3139, referred in Raj Deo Sharma v. State of Bihar, AIR 1998 SC 3281 124AIR
1992 SC 1701
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 Genesis and Development of concept of Bail

of the observations in Sheela Barse’s case 107 and Strunk’s case108, that the only
consequence is quashing of charges and/or conviction, as the case may be. Normally,
it may be so. But we do not think that is the only order open to Court. In a given case
the facts—including the nature of offence may be such that quashing of charges may
not be in the interest of justice. After all, every offence—more so economic offences,
those relating to public officials and food adulteration—is an offence against society.
It is really the society—the State—that prosecutes the offender. We may in this
connection recall the observations of this Court in Champalal Punjali Shah's case 109. In
cases, where quashing of charges/convictions may not be in the interest of justice, it
shall be open to the Court to pass such appropriate orders as may be deemed just in
the circumstances of the case. Such orders may, for example, take the shape of the
order for expedition of trial and its conclusion within a particular prescribed period,
reduction of sentence when the matter comes up after conclusion of trial and
conviction, and so on.

In view of the above discussions, the following propositions emerge, meant to serve as
guidelines. We must forewarn that these propositions are not exhaustive. It is difficult
to foresee all situations. Nor is it possible to lay down any hard and fast rules. These
propositions are:
a) Fair, just and reasonable procedure implicit in Article 21 of the Constitution
creates a right in the accused to be tried speedily. Right to speedy trial is the right
of the accused. The fact that a speedy trial is also in public interest or that it serves
the social interest also, does not make it any the less the right of the accused. It is
in the interest of all concerned that the guilt or innocence of the accused is
determined as quickly as possible in the circumstances.
b) Right to speedy trial flowing from Article 21, encompasses all the stages, namely,
the stage of investigation, inquiry, trial, appeal, revision and retrial. That is
how, this Court has understood this right and there is no reason to take a restricted
view.
107 Sheela Barse v. State of Maharashtra, AIR 1983 SC 378.
108 Strunk v. United States, (1973) 37
109 State of Maharashtra v. Champalal Punjali Shah, AIR 1981 SC 1675

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 Genesis and Development of concept of Bail

c) The concerns underlying the right to speedy trial from the point of view of the
accused are,—
d) The period of remand and pre-conviction detention should be as short as possible.
In other words, the accused should not be subjected to unnecessary or long
incarceration prior to his conviction;
e) The worry, anxiety, expense and disturbance to his vocation and place, resulting
from an unduly prolonged investigation, inquiry or trial should be minimal; and
f) Undue delay may well result in impairment of the ability of the accused to defend
himself, whether on account of death, disappearance or non-availability of
witnesses or otherwise
g) At the same time, one cannot ignore the tact that it is usually accused who is
interested in delaying the proceedings. As is often pointed out, ‘delay is a known
defence tactic’. Since the burden of providing the guilt of the accused lies upon the
prosecution, delay ordinarily prejudices the prosecution. Non-availability of
witnesses, disappearance of evidence by lapse of time really work against the
interest of the prosecution. Of course, there may be cases where the prosecution,
for whatever reason, also delays the proceedings.

h) Therefore, in every case, where the right to speedy trial is alleged to have been
infringed, the first question to be put and answered is—who is responsible for the
delay? Proceedings taken by either party in good faith, to vindicate their rights and
interests as perceived by them, cannot be treated as delaying tactics nor can the
time taken in pursuing such proceedings be counted towards delay. It goes without
saying that frivolous proceedings or proceedings taken merely for delaying the day
of reckoning cannot be treated as proceedings taken in good faith. The mere fact
that an application/petition is admitted and an order of stay granted by a superior
Court by itself is not frivolous. Very often these stays are obtained on ex parte
representation.

i) (E) While determining whether undue delay has occurred (resulting in violation of
Right of Speedy Trial) one must have regard to all the attendant circumstances,
including nature of offence, number of accused and witnesses, the workload of the

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 Genesis and Development of concept of Bail

Court concerned, prevailing local conditions and so on-what is called, the systemic delays. It is true that
it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic
and practical approach should be adopted in such matters instead of a pedantic one.

j) We cannot recognize or give effect to, what is called the ‘demand’ rule. An
accused cannot try himself; he is tried by the Court at the behest of the
prosecution. Hence, an accused’s plea of denial of speedy trial cannot be defeated
by saying that the accused did at no time demand a speedy trial, if in a given case,
he did make such a demand and yet he was not tried speedily, it would be a plus
point in his favour, but the mere non-asking for a speedy trial cannot be put
against the accused. Even in U.S.A., the relevance of demand rule has been
substantially watered down in Barker110 and other succeeding cases.

k) Ultimately, the Court has to balance and weigh the several relevant factors—
’balancing test’ or ‘balancing process’—and determine in each case whether the
right to speedy trial has been denied in a given case.

l) Ordinarily speaking, where the Court comes to the conclusion that right to speedy
trial of an accused has been infringed the charges or the conviction, as the case
may be, shall be quashed. But this is not the only course open. The nature of the
offence and other circumstances in a given case may be such that quashing of
proceedings may not be in the interest of justice. In such a case, it is open to the
Court to make such other appropriate order—including an order to conclude the
trial within a fixed time where the trial is not concluded or reducing the sentence
where the trial has concluded—as may be deemed just and equitable in the
circumstances of the case.

m) It is neither advisable nor practicable to fix any time limit for trial of offences.
Any such rule is bound to be qualified one. Such rule cannot also be evolved
merely to shift the burden of proving justification on to the shoulders of the
prosecution. In every case of complaint of denial of right to speedy trial, it is
primarily for the prosecution to justify and explain the delay. At the same time, it

110 Raj Deo Sharma v. State of Bihar. AIR 1998 SC 3281 (3284)
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 Genesis and Development of concept of Bail

is the duty of the Court to weigh all the circumstances of a given case before
pronouncing upon the complaint. The Supreme Court of U.S.A. too has repeatedly
refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do
we think that not fixing any such outer limit in effectuates the guarantee of right to
speedy trial.

n) An objection based on denial of right to speedy trial and for relief on that account,
should first be addressed to the High Court. Even if the High Court entertains such
a plea, ordinarily it should not stay the proceedings, except in a case of grave and
exceptional nature. Such proceedings in High Court must, however, be disposed of
on a priority basis.

ARTICLE 21 AND PRISONERS:

The Courts possess, and must exercise, jurisdiction to review disciplinary decisions
until Parliament expressly says otherwise. Heavy stress is laid on the issues of
principle involved. While prisoners are subject to a special regimen and have a special
status, they are not entirely denuded of all the fundamental rights which are inherent
in our Constitution. The rights of a citizen, however circumscribed by a penal
sentence or otherwise, must always be the concern of the Courts unless their
jurisdiction is clearly excluded by some statutory provision. The Courts are in general
the ultimate custodians of the rights and liberties of the subject whatever his status and
however attenuated those rights and liberties may be as the result of some punitive or
other process…… An essential characteristic of the right of a subject is that it carries
with it a right of recourse to the Courts unless some statute decrees otherwise. What
should be the nature and measure of the relief accorded must be a matter for the
Courts. Public policy or expediency as well as merits may be factors to consider and
they may influence the answer to any application for relief; but to deny jurisdiction on
the ground of expediency seems to me…. to be tantamount to abdicating a primary
function of the judiciary.111
Release of under-trial prisoners on bail:
A comprehensive view was adopted in the decisions of T.L. Upadhyay v. State of

111 Modern Law Review, Vol. 42, p469.

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 Genesis and Development of concept of Bail

Andhra Pradesh,112 and “common cause”, a registered Society v. Union of India.113

The first of these cases dealt with under trial prisoners lodged in Tihar Jail and
directions were given to release them on bail depending upon the type of offence
alleged against them on the completion of period mentioned in the judgement. The
second case is more general in as much as it dealt with under-trial prisoners lodged in
various jails of the country. The Bench directed for their release on conditions laid
down in the order. It was stated that directions shall be valid in all in the states, in
Union Territories and would apply not only to pending cases but also to future cases.
The directions were, however, not made applicable to certain classes of cases
mentioned in the order.114
Even out of some of the unfortunate poor men, women and who have been
languishing in jail for years, some of them were ordered to be released on bail during
the pendency of their trial by various courts on certain conditions. There under-trial
prisoners could not be released despite release order not only for day or months but
for years for not fulfilling the conditions which were attached to the bail orders,
because of their extreme poverty and ignorance. The court in the larger interest of
justice, deemed it appropriate to depart from the practice of only giving general
directions but passed fresh bail order in all such cases after relaxing the conditions
attached to the bail order so that hundreds of these languishing under-trial prisoners
can be released forthwith who despite the bail orders could not be released.115

Accused sentenced to undergo life imprisonment under sec. 302 IPC and seven
years’ imprisonment under sec. 397 IPC – right of furlough:
While the prisoner convicted of an offence or robbery under Sec. 397 of IPC is
debarred from getting furlough, the petitioner convicted of an offence of murder U/s.
302 of IPC is not entitled to get furlough. The two offences are quite distinct for
which different punishments have been prescribed. Only because these two offence
have been committed in one incident, and, therefore, tried in one case they do not
cease to be distinct. The furlough cannot be denied to the petitioner only on the

112 (1996) 3 SCC 422.

113 AIR 1996 SC 1619
114 Rama Murthy v. State of Karnataka AIR 1997 SC 1739 (1741)
115 Shankara v. State delhi administration 1996 cri LJ (43-46) (P & H)
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 Genesis and Development of concept of Bail

ground that he continues to be in Jail as a result of concurrent sentence for other

offence.116

When bail to be given:

In the concept of bail a technique is evolved for effecting a synthesis of the two basic
concepts of human value, namely, the rights of an accused to enjoy his personal
freedom and the public interest on which a person’s release is conditioned on the
surety to produce the accused person in court to stand the trial.135

Information of ground of arrest and right to bail:

Sec. 50, Cr.P.C. is analogous to the provisions of sub-clause(i)of Art. 22 of the
Constitution of India. It envisages that the person arrested without warrant, be
informed of the grounds of arrest and of right to bail. The scope of this provision was
further expanded by the Apex Court while interpreting this cause in Sheela Barse Vs.
State of Maharashtra136. The Apex Court ruled that as soon as a person is arrested by
the police officer, the duty cast upon such officer is to obtain the name of any relation
or friend from the arrestee, whom he would like to be informed about his arrest, and
the police officer should get in touch with such relation or friend and inform him
about his arrest.117

Successive bail applications:

Personal liberty is a constitutional guarantee. However, Article 21 which guarantees
the above right also ‘contemplates deprivation of personal liberty by procedure
established by law. Under the criminal laws of this country, a person accused of
offences which are non-bailable is liable to be detained in custody during the
pendency of trial unless he is enlarged on bail in accordance with law. Such detention
cannot be questioned as being violative of Article 21 since the same is authorized by
law. But even persons accused of non-bailable offences are entitled for bail if the
Court concerned comes to the conclusion that the prosecution has failed to establish a
prima facie case against him and/or if the Court is satisfied for reasons to be recorded
that in spite of the existence of prima facie case there is a need to release such persons

116 Gorakh alias Baba Patale v. State of Maharashtra 1993 (Mah) L.J.
1423 135Kamlapati Trivedi v. State of West Bengal, AIR 1979 SC 777
136
Supra No.20.
117 Vinod Narain v. State of U.P. 1996 Cri L.J. 1309 (1315)
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 Genesis and Development of concept of Bail

on bail where fact situations require it to do so. In that process a person whose
application for enlargement on bail is once rejected is not precluded from filing a
subsequent application for grant of bail if there is a change in the fact situation. In
such cases if the circumstances then prevailing requires that such persons to be
released on bail, in spite of his earlier applications being rejected, the Courts can do
so. The principles of res judicata and such analogous principles although are not
applicable in a criminal proceedings, still the Courts are bound by the doctrine of
judicial discipline having regard to the hierarchical system prevailing in our country.
The findings of a higher Court or a co-ordinate Bench must receive serious
consideration at the hands of the Court entertaining a bail application at a later stage
when the same had been rejected earlier.

In such an event, the Courts must give due weight to the grounds which weighed with
the former or higher Court in rejecting the bail application. Ordinarily, the issues
which had been canvassed earlier would not be permitted to be re-agitated on the
same grounds, as the same would lead to a speculation and uncertainty in the
administration of justice and may lead to forum hunting. The decisions given by a
superior forum, undoubtedly, is binding on the subordinate fora on the same issue
even in bail matters unless of course, there is a material change in the fact situation
calling for a different view being taken. Therefore, even though there is room for
filing a subsequent bail application in cases where earlier applications have been
rejected, the same can be done if there is a change in the fact situation or in law which
requires the earlier view being interfered with or where the earlier finding has become
obsolete. This is the limited area in which an accused, who has been denied bail
earlier, can move a subsequent application. Therefore, it cannot be said that in view of
the guarantee conferred on a person under Article 21 of the Constitution of India, it is
open to the aggrieved person to make successive bail applications even on a ground
already rejected by Courts earlier including the Apex Court of the country. 118
INTERIM BAIL:

Bail is not merely a procedural right but is also a substantive involving liberty of the
person. Therefore, it is expected of the courts to dispose of bail petitions without any
loss of time when entire material is placed by the prosecution before the court. Time

118 Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav, AIR 2005 SC 921
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 Genesis and Development of concept of Bail

schedule for concluding bail proceeding cannot be fixed.119 In maintenance and other
matters, interim relief has been granted.120

Interim bail during pendency of bail application:

The courts do not possess jurisdiction to release on accused on interim bail pending
final disposal of the bail application. It is not possible to follow the decision in Haji
Peer Bux121 regarding exercise of such jurisdiction as it stands impliedly overruled in
Vinod Narain122 case.
A bail can be granted to a person who has been incarcerated but the indictment is not
such as to endanger security, safety and interest of the State. It has also to be assessed
simultaneously that his release does not tend to cause miscarriage in the conducting,
accomplishing and dispensation of Justice which is an essential requirement of bail. 123
The Magistrate has to exercise the discretion in accordance with the established
principles of law.124
Law regarding disposal of bail application:
The law relating to disposal of bail application is that when an accused surrenders in
the court or is arrested and produced before the court and applies for bail, the
subordinate courts shall deal with it expeditiously.
The case of Hidayat Hussain Khan v. State of U.P. 125 and Issma v. State of U.P.126,
which lay down to the contrary, are no more good law in view of the Full Bench
decision in Vinod Narain.147 The bail applications should be decided as expeditiously
as possible and should not be allowed to remain pending for long, but no outer limit
for the decision on the bail application can be fixed or directed.
Bail on the basis of parity:
If on examination of given case, it transpires that the case of the applicant before the
court is identically similar to the accused on facts and circumstances, who has been

119 Vinod Narian v. State of UP 1996 Cr.L.J. 1309 (1315)

120 S.M.D. Kiran Pasha v. Govt. of Andhra Pradesh 1990 1 SCC 328
121 Haji Peer Bux v. State of U.P., 1993 Cr.L.J. 3574 (All)
122 Vinod Narain v. State of U.P. 1996 Cr.L.J. 1309 (1309, 1320)
123 Mazahari Ali v. State 1982 Cr.L.J. 1223
124 State v. Veera Pandi 1979 Cr.L.J. 455 (Mad)
125 Criminal Misc. Writ No. 16259 of 1992
126 Issma v. State of U.P. 1993 Cr.L.J. 2432 (2436)
147
Supra. No. 37
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 Genesis and Development of concept of Bail

bailed out, then the desirability of consistency will require that such an accused should
be also released on bail.127
When the accused, who was identified in identification parade was released on bail,
then accused who was not identified can also be granted bail.128
Failure of justice may be occasioned if bail is granted to an accused on the basis of
parity with another co-accused whose bail order not contain any reason.129
The grant of bail is no doubt discretionary but, as said by Lord Mansfield in Tinglay
v. Dolbey,130131 discretion when applied to a court of Justice, means sound discretion
guided by law. It must be governed by rule, not by humours, It must not be arbitrary,
vague and fanciful, but legal and regular.

PERSONAL LIBERTY AND BAIL ON SAME DAY:

The scope of life and personal liberty has been expanded and put at the highest
pedestal by the Apex Court, by virtue of which personal liberty means to live with
human dignity and in view of the settled legal position that the moment a person in
arrested, and sent behind the bars his dignity is affected, hence in this context
considering the widest amplitude of Art. 21 of the constitution, there is no difficulty in
holding that with a view to preserve human dignity engrained under Art. 21, the bail
petition may be considered the same day in suitable cases where sufficient material is
made available to the court by the prosecution.
However, as directed in Hidayat Hussain Khan v. State of U.P. 152 fixed time schedules
for considering bail application cannot be directed by the court and maintaining
judicial discipline and dignity the court is bound under Art. 141 of the constitution to
respect and obey the pronouncement of the Apex Court as the law declared by the
Apex Court is also the law of the land and it operates as judgement in rem
consequently the ratio laid down by the Apex Court in Abdul Rehman Ahtulay v.
R.S. Nayak132 that time schedule for concluding criminal proceedings cannot be fixed

“is binding on court.

127 Nanha v. state of U.P. 1992 Cri LJ 1371 (1372, 1373)

128 Gaddu v. State of U.P. 1997 1 Crimes 568 (M.P.)
129 Chander v. State of U.P. 1998 Cr.L.J. 2374 (2380)
130 Chanda v. State of U.P. Cr.L.J. 2374 (2380, 238)
131 Cr.L.J. 3534
132 AIR 1992 SC 1701
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 Genesis and Development of concept of Bail

Right to get bail application expeditiously decided if possible on the same day
under article 21 of the constitution:
Provisions of Art. 226 of the constitution given widest powers to the High Court to
issue directions commanding the authorities to comply with the rights conferred by
the constitution. The dictum laid down in Maneka Gandhi v. Union of India, 133 in J.P.
Unnikrishanan v. State of Andhra Pradesh,134 in Olga Tellis v. Bombay Municipal
Corporation135 and in Sunil Batra v.Delhi Administration 136 makes it clear that right to
speedy trial includes the right to get bail application decided expeditiously. It has been
observed that the directions are issued under Art. 226 of the constitution to act in
accordance with the provisions of Sec. 437 of Cr.P.C.
In the decisions of Union Carbide Corporation v. Union of India137 and M.V. Elizabeth
v.. Harwan Investments Trading Co., Goa,138 considering the scope of Art.21 of the
constitution and exercising wide powers for dispensing sovereign Justice, necessary
orders were passed by the Apex Court. For this purpose while construing any
provision. The statement, object and reasons of the same be considered ignoring the
mechanical approach.139
GRANT OF BAIL OF UNDER TRIAL PRISONERS:
Where, the offence is non-bailable the accused cannot claim bail as a matter of right.
It is discretion to be exercised by the Session Judge while dealing with the bail
application made before him. The court has to find the question for the grant of bail in
the light of such further consideration as nature and seriousness of offence, the
character of the evidence, the circumstances which are peculiar to the accused, a
reasonable possibility of the presence of the accused not being secured at the trial, the
reasonable apprehension of the evidence being tampered with and the larger interests
of the public and of the state.140161

133 AIR 1978 SC 597 : (1978) 2 SCR 621

134 AIR 1986 SC 180
135 AIR 1978 SC 1675 : (1979) 1 SCR 392
136 AIR 1992 SC 248
137 AIR 1993 SC 1014
138 State of Himachal Pradesh v. K.C. Mahajan, AIR 1992 SC 277
139 .State v. Caption Jagjit Singh AIR 1962 SC 253
140 Cri LJ Noc 60 ( Punj)
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 Genesis and Development of concept of Bail

The Punjab High Court in Giani Zail Singh v. State of Punjab 141 has laid down the
following principles which would weigh with the court while considering the bail
application of under-trial prisoner pending trial:
a. The bail should not be refused as a matter of punishment

b. The accused should be presumed to be innocent till his guilt is proved beyond
reasonable doubt:

c. Nature of accusation and extent of punishment are relevant factors;

d. Bail is the rule and rejection is exception; and

e. Likelihood of jumping the bail and tempering with evidence are relevant factors.

Bail should be granted when the object of detention can be achieved by requiring the
accused to furnish security, more so when there is no reason to apprehend
abscondence or tampering with the evidence.142

Bail to be granted to the accused charge with gruesome murder:

When an accused is charged with gruesome murder such as bride burning, bail should
not be granted to such an accused.143 Grant of bail was refused to the accused charged
of murder having regard to the facts that though two eye witnesses had retracted their
statements, there were still eye-witness to the occurrence who directly connected the
accused and assigned him a specific role in the murder and that the ailment of the
accused was not of such nature as to require him to be released on bail.144

ANTICIPATORY BAIL VIS-a-VIS ORDINARY BAIL:

The expression “anticipatory bail” is a misnomer. It is not as if bail is presently
granted by the court in anticipation of arrest, than when the courts grants “anticipatory
bail” what it does is to make an order that in the event of arrest a person shall be
released on bail and manifestly there is no question of release on bail unless a person
is arrested and, therefore, it is only an arrest that the order granting “anticipatory bail”
becomes operative.145 The distinction between ordinary order of bail and an order of

141 Rattan Chand v. State of H.P. 1977 Cr.L.J. (NOC)183

142 Rattan Chand v. State of H.P. 1977 Cr.L.J. (NOC)183
143 Pushpabati v. State, 1986 Cri L.J. 1532 (Del)
144 Pawan v. Ram Prakash, 2002 Cr.L.J. 2940 (SC)
145 Bal Chand Jain v. State of M.P. AIR 1977 SC 366.
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 Genesis and Development of concept of Bail

anticipatory bail is that where as the former is granted after arrest and, therefore,
means release from the custody of police jail, the later is granted in anticipation of
arrest and is, therefore, effective at the moment of arrest.
Anticipatory bail not to be granted on mere asking:
An anticipatory bail intrudes in the sphere of investigation of crime, some very
compelling circumstances have to be made out for grant of anticipatory bail to persons
accused of serious offence.146
RELEVANT CONSIDERATIONS OF GRANT OR REFUSAL OF
ANTICIPATORY BAIL:
Several questions arise while deciding whether to grant anticipatory bail in a
particular case or not while dealing with such an application the court has to bear in
mind the following circumstances, viz.
a) What is the type of case in which the anticipatory bail is prayed for;
b) What is the stage of the case of which or until which anticipatory bail may be
granted;
c) What should be the duration of anticipatory bail;
d) What are directions to be imposed;
e) Whether notice should be given to public prosecutor; and
f) Whether interim order should be passed.147

Blanket order of anticipatory bail:

A blanket order of anticipatory bail, namely, an order which serves as a blanket to
cover or protect any or every kind of alleged unlawful activity, in fact or any
eventuality, likely or unlikely, regarding which no concrete information can possibly
be had, cannot be passed because such a blanket order is bound to cause services
interference with the function of police.148
NEED TO REFORM OF THE PRESENT BAIL SYSTEM BECAUSE THIS
SYSTEM OF BAIL IS A SOURCE OF GREAT HARDSHIP TO THE POOR:
The bail system as it operates today is a source of great hardship to the poor and for
eliminating the evil effects of penalty and assuring a fair and just treatment to the poor
in the administration of justice, it is imperative that the bail system should be

146 Pokar Ram v. State of Rajasthan AIR 1985 SC 969

147 Arun Sharma v. State of Assam (1956) 2 Crimes 61
148 Gurbaksh v. State of Punjab AIR 1980 SC 1632
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 Genesis and Development of concept of Bail

thoroughly reformed so that it should be possible for the poor as easily as the rich to
obtain the pre-trial release without jeopardising the interest of justice. 149 Rethinking
should now be done on the subject of demanding pecuniary bail which has got set
deeply as a tradition of our legal system.171

The bail system administered in the criminal courts today is extremely unsatisfactory
and needs drastic changes. In the first place it is virtually impossible to translate risk
of non-appearance by the accused into precise terms and even its basic premise that
risk of financial loss is necessary to prevent the accused from fleeing is of doubtful
validity. There are several considerations which deter an accused from running away
from justice and risk of financial loss is only one of then and that too not a major one.
The experience of enlightened bail projects in the United States such as Manhattan
Bail Project and D.C. Bail Project shows that even without monetary bail it has been
possible to secure the presence of the accused at the trial in quite a large number of
cases. Moreover, the bail system causes discrimination against the poor since the poor
would not be able to furnish bail on account of their poverty, while the wealtheir
persons otherwise similarly situated would be able to secure their freedom because
they can afford to furnish bail. This discrimination arises even if the amount of bail
fixed by the Magistrate is not high, for a large majority of those who are brought
before the courts in criminal cases are so poor that they would find it difficult to
furnish bail even in a small amount.150 In the report of the Legal Aid Committee
appointed by the Government of Gujrat, the evil of the present bail system has been
highlighted and the relevant extract of the said report has been reproduced by the
Supreme Court in Moti Ram v.. State of M.P.151 The evil of the bail system is that
either the poor accused has to fall back on touts and professional sureties for
providing bail or suffer pre-trial detention. Both these consequences are fraught with
great hardship to the poor. In one case the poor accused is fleeced of his money by
touts and professional sureties and sometimes has even to incur debts to make
payment to them for securing his release, in the other he is deprived of his liberty
without trial and conviction and this deeds to grave consequences.
149 Hussainara Khatoon v. Home Secretary, state of Bihar AIR 1979 SC 1360
171
Supra No. 61.
150 Report of the Expert Committee on Legal Aid, 1973.
151 AIR 1978 SC 1594

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 Genesis and Development of concept of Bail

CHAPTER-3
GLOBAL SEARCH OF HUMAN RIGHTS AND ITS IMPACT ON GRANT OF
BAIL IN INDIA:

CONCEPT AND MEANING OF HUMAN RIGHTS:

"Human rights" mean the rights relating to life, liberty, equality and dignity of the
individuals guaranteed by the Constitution or embodied in the International Covenants
and enforceable by Courts in India.152

Louis Henkin, a Professor and Western Scholar, defined Human Rights as "Claims
assented and recognized as of rights. Against society as represented by governments
and its officials."
In another definition, a Soviet International Legal Scholar, Vladmir Kudrygutse,
stated that human rights are "an opportunity guaranteed by the State to its citizens to
enjoy the societal benefits and values existing in the given society."
The concept of human rights, it has been argued, falls within the framework of
constitutional law and international law. For this purpose it has been identified to
“defend by institutionalized means the rights of human beings against abuses of power
committed by the organs of the State and at the same time to promote the
establishment of human living conditions and the multi-dimensional development of
human personality”.
A close look at the above definition shows that human rights represent claims which
individuals or groups make on the society. They include the right to freedom from
torture, the right to life, inhuman treatment, freedom from slavery and forced labour,
the right of liberty and security, freedom of movement and choice of residence, right
to fair trial, right to privacy, freedom of thought, conscience and religion, freedom of
opinion and expression, the right to marry and form a family, the right to participate in
one’s government either directly or indirectly or through freely elected
representatives, the right to nationality and equality before law. These rights cannot be
compromised universally.
Human rights are the birth rights of people the world over. Hence their fulfilment does
not lie in the reproduction of institutions of the advanced world, but on the

152 Protection of Human Rights Act. 1993, Sec. 2(d)

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 Genesis and Development of concept of Bail

consciousness in the developing world, to ensure the respect and protection of human
rights. This will forestall the ease in their denial as an incident of valid structural
change. The ambivalence of governments in the developing world especially has been
a glaring source of violations and abuse of rights inasmuch as covert tortures,
interrogations and detentions prevail in some States with penal prohibitions of human
rights violations.
In countries of this nature, international and foreign intervention or positive action has
never been always and readily possible because of the inability to establish most of
such cases.153
The irony of our times is that on the one hand we have a human rights jurisprudence
which has reached its peak of glory and on the other hand we see human rights
violations all around and this keeps happening in newer and newer forms—ethnic
conflicts, displacement from homeland, etc. to name a few.154
Though human rights are today better known and better respected and though
violations thereof are denounced even beyond the frontiers of the countries where
these occur, the performance in the implementation of the Human Rights Code has,
nevertheless, not been encouraging in many parts of the world, where it has acquired
only a theoretical legitimacy. The human rights movement needs to be activated and
made more intensive. Today, as never before, this movement needs all round support
of the free world, of lawyers and Judges and of enlightened citizens and human rights
activists.155 There is paramount need to arouse the human rights conscience of the
world. There is also the need to develop human rights jurisprudence. This must also
get ingrained in the administration of justice around the world, in particular when
dealing with the fundamental rights of a man.156

History of the human rights movement:

Though centuries ago there was in England the favourite Magna Carta (1215) and the
Petition of Rights (1688) and though we later on had the U.S. Declaration of
Independence (1776) followed by the Bill of Rights as also the French Declaration of
“the Rights of Man”, there was in no part of the world till then any declaration of
universal application indeed, hardly any mention of even human rights as such. But
153 AIR 2000 Journal Section 49, Pp. 49, 53.
154 AIR 2000 Journal Section 100, p 100.
155 AIR 1992 Journal Section 113, Pp. 113-115.
156 AIR 1992 Journal Section 113, p. 115.
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 Genesis and Development of concept of Bail

some describe these rights as the 20th century version of natural rights or the rights of
man. Be that as it may, over a century and half later and with the horrors and impact
of two world wars behind them, offending the conscience of man, the representatives
of the assembled nations met at San Francisco on 26th June, 1945 and adopted the
United Nations Charter which inter alia is declaration of faith “in fundamental human
rights, in the dignity and worth of the human person, in the equal rights of men and
women and of nations, large and small.157

On 24th October, 1945, the world at large witnessed the establishment of the United
Nations Organisation which on 10th December, 1948 adopted the Universal
Declaration of the Rights of Man. This was the first positive manifestation of
internationalization of human rights values. Soon thereafter followed the European
Convention of Human Rights, signed in November, 1950 and brought into force in
1953. this convention created bodies such as the European Commission and European
Court of Human Rights established in 1959.
The ever-expanding Code of Human Rights now includes also the rights to
international peace, the right to satisfactory environment, and the rights of ethnic,
religious and linguistic minorities. The history of the human rights movement is thus
of one achievement after another with every occasion a step forward towards the
ideal.
Human rights as a vibrant issue:
In the last 45 years human rights have become at least in the free world, a live and
vibrant issue. Various developments connected therewith are indeed, milestones on
the path of human progress. While there are certain necessities like food, water,
shelter, basic for sustaining life and saving it from hunger and destitution, disease and
despair and without which one cannot live, there are also certain fundamental values
and freedoms without which it would not be worth living. A human being is a live and
living creature and humanity is a live and living organism, united from within by
basic human rights inseparable from human dignity, liberty and freedom. Even in
Britain there has been a growing demand for a Bill of Rights to regulate and restrict
the sacrosanct sovereignty of its Parliament. Even Canada has in 1982 adopted a
Charter of Rights and Freedoms. There is also the African Charter of Human and

157 AIR 1992 Journal Section 113, p. 113.

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 Genesis and Development of concept of Bail

People’s Rights.

Worldwide acceptance of the ideology of human rights:

If there is one single ideology widely accepted round the world today, it is the concept
and ideology of Human Rights. Out of the traumatic experience and shock of the dark
days of the two world wars in the first half of this century, when human dignity stood
compromised as never before in human history, was born the human rights
movement.158

Human rights and criminal justice administration:

From point of view of criminal justice administration the essence of human rights is
enshrined in three great principles, under each of which may fall a number of
subprinciples. First in order is the principle of legality, which implies that substantive
norms relating to behaviour and sanctions as well as procedural norms are fixed by
predetermined laws. It further implies that persons subjected to the criminal process
shall be treated equally without regard to rank or wealth. The second is the principle
of due respect to the person involved in the criminal process, which implies that both
at the substantive as well as procedural levels regard must be paid to the dignity of the
accused, the victim as well as witness, etc. The third is the principle of equality of
criminal justice, which implies the compliance with certain minimum standards that
would be followed in various criminal process such as an independent and impartial
judiciary, trial in an open court, equal access to legal counsel and free legal aid to poor
litigants, knowledge about grounds of arrest and access to evidence, right to be
released on bail, speedy trial etc.
A man’s right to his liberty is the most sacred right for him and therefore, it should not
be restrained without the sanction of law. A fruitful and meaningful life presupposes
full of dignity, honour, health and welfare, in the modern philosophy. The treatment
of human being which offends human dignity, imposes avoidable torture and reduces
the man to the level of beast would certainly be arbitrary and is impossible as a code
of human conduct in all religions.181
Justice P.N. Bhagvati, Supreme Court of India in the “Seminar on Human Rights”
organised by I.L.A. Ailahabad submitted in his inaugural address that protection of

158 AIR 1992 Journal Section 113, p. 113.

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 Genesis and Development of concept of Bail

rights of man was deeply inserted in the Babylonian Laws, Assyrian Laws, Hittiti
Laws and Dharm of Vedic Time in India. Description of protection right was widely
and wisely discussed by Plato, Greek and Roman Philosophers. Their discussions
were based on religious foundation. Right to Vote, Right to Trade, Right of access to
justice to their citizen etc., were given by City of State of Greece.

Judicial evolution of human rights and friendly criminal justice administration:

Though the basic legal frame work for human rights within criminal justice
administration is provided by a wide range of legislative measures of diverse kinds,
but in recent times the judiciary. Particularly at the appellate level, has played a vital
role in not only vigorously enforcing human, rights measures but also giving creative
interpretations leading to broadening and evolving new concepts of human rights.
Such judicial role is a marked feature of the post-emergency period judicial process,
particularly emanating from the Supreme Court. In this vein it would be useful to refer
to certain judicial enunciations that go in to make the character of contemporary
criminal justice administration. Such enunciations relate to certain vital process of
criminal justice administration.

Humanization of criminal justice administration by apex court:

The deep-rooted malady of violation of Human Rights of the victim as well as the
accused has been brought to the notice of the Apex Court in piece-meal manner and
the apex court has also given appropriate directions to the Government for protection
of human rights of the aggrieved party in various judicial pronouncements. The apex
court cannot remain oblivious of the social needs and requirements for protection of
human rights of all concerned by restoring the credibility of the criminal justice
system. “It is really the poor, starved and mindless millions who need the Court’

1999 ALT Journal Section 11

181

protection for securing to themselves the enjoyment of Human Rights.159160

Limitations on the power of arrest:

159 Keshavanad Bharti v. State of Kerla, AIR 1973 SC 1461

160 Cri.L.J. Sec. 39, p. 41
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 Genesis and Development of concept of Bail

The Cr.P.C. confers fairly extensive powers of arrest mainly to the police, which
exercises powers of arrest in pursuance to a warrant, or as a part of general power
under sections 41, 42 and 151 of the Cri.P.C. often the conferment of such vide
powers becomes the cause for abuse and invasion of the liberties of citizens who
might become victims either because they dare to offend the authorities or because
their arrest can yield some monetary benefit or just because they are too those who
enjoys power. There are also techniques of screening arrest by either not recording
arrest or describing the deprivation of liberty merely as prolonged interrogation. An
arrested person has a right to consult his friend or relative or any other person who is
known to him. It is the duty of the police officer to inform any friend or relative of the
arrested persons of the fact of arrest and to make an entry in the diary about the name
of such relative or friend. The Supreme Court has cast an obligation on the Judicial
Magistrate to ascertain whether the entry in General Diary discloses the name of a
friend or relative of the arrested person.183

The Supreme Court in Joginder Kumar v. State of U.P.161 highly appreciated the
dynamics of misuse of the power to arrest this unusual case involved the arrest of an
active practicing lawyer, who still remains to be the primary agency that can challenge
the abuse of power of arrest. The circumstances of arrest are equally curious as the
lawyer concerned was called to the police station in connection with a case under
enquiry on 7.1.1994. On not receiving any satisfactory account of his where about the
family members of the detained lawyer preferred a petition before the Supreme Court
on 11.1.1994, and in compliance with the notice the lawyer was produced on
14.1.1994 before the Supreme Court. The police version was that during 7.1.1994 and
14.1.1994 the lawyer was not in detention at all, and was only helping the police in
detecting some cases. The Supreme Court had little difficulty in appreciating why
such situations of gross abuse arise and was quick to observe:

“The horizon of human rights is expanding. At the same time, the crime rate is also
increasing of late, this court has been receiving complaints about violations of human

161 (1994)4 SCC 260

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 Genesis and Development of concept of Bail

rights because of indiscriminate arrests. How are we to strike a balance between the
two?
A realistic approach should be made in this direction. The law of arrest is one of
balancing individual rights, liberties and privileges, on the one hand, and individual
duties, obligations and responsibilities on the other.” “No arrest can be made because
it is lawful for the police officer to do so. The existence of the power of arrest to one
thing. The justification for the exercise of it is quite another…. No arrest should be
made without a reasonable satisfaction reached after some investigation about the
genuiness and bonafides of a complaint and a reasonable belief both as to the person’s
complicity and even so as to the need to effect arrest. Denying a person his liberty is a
serious matter.”

Ensuring humane conditions of investigations:

The worst violations of human rights take place in the course of investigation, when
the police under pressure to secure the most clinching evidence often resort to
thirddegree methods and torture. Cases of police torture and custodial deaths are
increasingly coming to light now a days. Courts have not only exposed the seamier
side of police investigation process but have in several cases dished out exemplary
punishments to ensure humane conditions of investigation. In the case of a defective
investigation the Court has to be circumspect in evaluating the evidence and may have
to adopt an active and analytical role to ensure that truth is found by having recourse
to Section 311 Cr.P.C. or at a later stage also resorting to Section 391 Cr.P.C. instead
or throwing hands in the air in despair. It would not be right in acquitting an accused
person solely on account of the defect; to do so would tantamount to playing into the
hands of the Investigating Officer if the investigation is designedly defective.162

In Gauri Shankar Sharma v. State186 three members of the police force were charged
with custodial death in the course of a dacoity investigation. It was revealed that the
deceased was taken into custody without recording arrest in the general diary. On the
actual day of arrest, and this way the injuries given in the course of investigation were
shown to have been incurred in the pre-arrest period. A punitive strategy for dealing

162 Zahira Habibulla H. Sheikh v. State of Gujrat, 2004 Cr.L.J. 2050 at 2069-2070
186
1991 SCC (Cri.) 67
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 Genesis and Development of concept of Bail

with cases of gross abuse of investigation power may be an effective way of dealing
with offending officials, but that alone does not private adequate relief to one who
himself been victim of torture or abuse of power or has suffered the loss of life of a
bread earner or a near relative. The Supreme Court has responded to this felt need by
creating a constitutional right of compensation in all such situation where abuse of
power violates any of the fundamental rights of the citizen.

Restrictions on indiscriminate prosecution and fabrication of false evidence:

Though prosecution and investigation are the functions of two distinct wings of the
criminal justice administration often the investigating agency develops a commonality
of interest with the prosecution and, at times, resorts to foul and underhand means to
forge evidence to some how secure convictions. This tendency becomes most
pronounced in cases having political or communal overtones.

Dilwar Hussain v. State163 provides an apt example of the partisan role of

investigation and prosecution agencies. This case relates to the outbreak of communal
violence in Gujrat, in which 8 members of one community were allegedly killed by a
mob belonging to another community keeping in mind the sentiments of population,
strong punitive action was resorted to by arresting 2000 members of the mob.
Reacting to whole process of arrest, detention and prosecution, Justice R.M. Sahai
(Speaking for B.C. Ray and S.R. Pnadian, JJ.)
“Still sadder was the manner in which the machinery of law moved. From accusation
in the charge Sheet that accused were part of unlawful assembly of 1500 to 2000 the
number came down to 150 to 200 in evidence and the charge was framed against 63
under the TADA 1985 and various offences including Sec. 302 under IPC. Even from
them 56 were acquitted either because there was no evidence, and if there was
evidence against some, it was not sufficient to warrant their conviction. What an
affront to fundamental rights and human dignity. Liberty and freedom of these
persons were in chains for more than a year, for no reasons. One even died in
confinement.”

163 (1991) 1 SCC 253:

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 Genesis and Development of concept of Bail

Being aware of the investigating agencies’ undue interest in cooking-up evidence, the
court advises extreme caution in admitting any evidence that comes from tainted
sources. In a recent decision, Shivappa v. State of Karnataka,164 Justice Dr. A.S.
Anand declined to admit in evidence a confession under Sec. 164 Cr.P.C. mainly
because the facts in the case displayed a real possibility of police influence over the
Magistrate and absence of any assurance about the voluntariness of the confession.

Guideline in handcuffs by police:

The Supreme Court has given guidelines for using handcuffs by police and jail
officials in many decisions.165 ‘Handcuffs can be used by the escorting police party if,
he forms the opinion on the basis of antecedents that the accused is dangerous or
desperate or likely to break out of custody. The obligation cast on the escorting
authority is to record contemporaneously the reasons for handcuffing the accused and
intimate the Court which will ultimately decide the validity of using handcuffs on the
particular accused and give appropriate direction to the escorting police party. The
indifferent attitude of the Judicial Magistrate in overlooking the handcuffing of the
members of a tribal organisation was deprecated by the Apex Court. 166 The Supreme
Court has threatened to invoke contempt jurisdiction for non-enforcement of the
guideline of the Supreme Court with regard to handcuffing in a PIL instituted on the
basis of a letter written by Shri Kuldip Nayar.167168 With all humility it may be relevant
to point out that owing to lack of proper training, many Judges of subordinate
judiciary and most of the police officers of our country are not aware of the exact
guideline of the Supreme Court on the use of handcuffs.192

Prevention of abuse of process:

The Cr.P.C. provides or not for the inherent powers of the Courts, other than High
Court, the inherent powers of the Courts are not taken away by the Cr.P.C.. There is
nothing in Cr.P.C., to the effect that the inherent powers of the Criminal Courts are
taken away. Indeed, the Cr.P.C. or for that matter any other law cannot take away the

164 1994 (4) SCC 602

165 Prem Shankar Shukla v. Delhi Adminstration, AIR 1980 SC 1535:
166 Khedat Majdoor Chetna Sangath v. State of M.P., AIR 1995 SC 31.
167 Citizens for Democracy v. State of Assam, 1995 SCC (Cri) 600.
168 Cr L.J. (Journal Section) 39, p.41.
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 Genesis and Development of concept of Bail

inherent powers of the Courts. What is recognised in Section 482, Cr.P.C., inter alia,
is that the High Court has got inherent powers to prevent abuse of the process of any

Court. If, there is any abuse of process of any Court, the High Court’s power to
prevent the same has been recognised in this section. Even without such a provision
the High Court and the other Courts subordinate to the High Court, have got inherent
powers to prevent the abuse of the process of the Court.193

Disposal of criminal case within six months to avoid violation of human right of
speedy trial:
According to the Law Commission of India194 a criminal case should be disposed of
within six months from the date of filing police report or complaint. There may not be
a single criminal Court in the country where the human rights of the accused for
speedy trial have not been violated. The trial Judge is the lynch-tin of our judicial
system. In the words of Rescue Pound, men count more than machinery in
administration of justice. The Trial Judge who is shaky in professional understanding,
imperfect in moral resolution and unduly conciliatory in personality will inevitably be
overpowered and overborne by aggressive and strong- willed lawyers. Recalling the
tradition of efficient ICS Judges, the Law Commission has reiterated the need for
creation of Indian Judicial Service in order to attract talented bright young law
graduates in judiciary by all India competitive examination, train them and give them
pay scales and amenities of Indian Administration Service and promotional avenue up
to the highest. Court of the country.195

New rationalisation of a right to bail:

Right to bail is an important guarantee concerning the personal liberty of the accused.
The late seventies’ euphoria concerning this right has considerably died down in the
eighties and nineties in the wake of terrorism and new forms of criminality like dowry
violence, atrocities against SCs and STs and sexual crimes against women etc.
However, there have still been some leading judicial decisions in recent times that aim
at balancing the liberty of the accused with the prosecution interest of making the
accused available for investigation and trial.

1996 Cr L.J. (Journal Section) 26, p.38

193

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 Genesis and Development of concept of Bail

77th Report of the Law commission of India on Delay and Arrest in Trial Courts,(.1978), p.49.
194

14th Report of the Law commission of India on the Reform of Judical Adminstration, 1958, Vol II;
195

79th Report of Law Commission of India on delay and Arrears in High Courts and Appellate Courts,
1979.
In Hitendra Vishnu Thakur Vs. State of Maharashtra 169 the Supreme Court, while
construing sec. 20(4)(bb) of the TADA in the light of Sec.167 of the Cr.P.C., held:
“with the amendment of clause (b) of Sub-Sec. (4) of Sec. 20 of TADA read with the
proviso to sub-sec. (2) of section 167 of Cr.P.C. an indefeasible right to be enlarged
on bail accrues in favour of the accused if the police fails to complete the
investigation and put up a challan against him in accordance with law U/s. 173
Cr.P.C.”
The court also underscored that the court is under an obligation in such cases; to
decline police request for further remand in all cases where the assigned period has
expired and no formal extension of period is granted, and to inform the accused of his
right to bail and also enable him to file an application on that behalf.
The liberal bail right conferred even in TADA cases in Hitendra Vishnu Thakur case
has been reconsidered by the Full Bench in Sanjay Dutt Vs. State through CBI.170 The
judgement of Justice J.S. Verma, (Ahmadi, C.J., P.B. Sawant, B.P. Jeevan Reddy and
N.P. Singh, J.J. Concurring) has limited the import of Hitendra Vishnu Thakur case in
as much as the ‘indefeasible right’ of the accused to be released on bail is enforceable
by the accused only form the time of default till the filing of the challan and it does
not survive or remain enforceable on the challan being filed. According to this
decision for extension of the investigation period U/s. 20(4)(bb) no written notice
need be given to the accused, mere production at the time of fresh remand and
information to him about the proposal of extension is enough.

Limiting police remand:

Realising that the worst kind of human rights violations take place in the course of
police remand courts have been unduly sensitive to police request for remand. In CBI
v. Anupam J. Kulkarni’171 the Supreme Court refused to hand over the accused to the
police on remand after his initial custody in judicial remand. Giving reasons for such a

169 (1994) 4 SCC 602

170 (1993) 5 SCC 410
171 1992) 3 SCC 141.
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 Genesis and Development of concept of Bail

view Justice K. Jay Chand Reddy (A.M. Ahmadi, J (as he then was) concurring) laid
down:
“There cannot be any detention in police custody after the expiry of First 15 days even
in a case where some more offences either serious or otherwise committed by him in
the same transaction come to light at a later stage172"

Giving the reasons for such a rule the court observed that the proviso to Sec.167 is
explicit on this aspect. The detention in police custody is generally disfavoured by
law. The provisions of law lay down that such detention can be allowed only in
special circumstances and that can be only a remand granted by a Magistrate for
reasons judicially scrutinized and for such limited purposes as the necessities of the
case may require. The scheme of Sec. 167 is obvious and is intended to adopted by
some over. Zealous and unscrupulous police officers.173

Similarly, the Supreme Court in Union of India v. Thamisarasi174 disfavoured the

continued remand detention beyond the period of 90 days even in a case of arrest
under the NDPS Act 1985. The court ruled that the limitation witnessed in Sec. 37(i)
(b) of the NDPS Act applied only in case of bail on merits but in cases of bail on
default in filing complaint within the period specified 167(2) of the Cr.P.C.

Recognizing a pre-sentence hearing right:

Sentencing has remained the most neglected area of criminal justice administration.
However, there have been some welcome developments in this area in the recent
times. The first is recognizing the statutory right of pre-sentencing hearing and
elaborating its implication for the accused. Certain decisions of Chief Justice Ahmadi
handed down during 1989 to 1991 period are notable in this respect. In Allaudin Mian
v. State of Bihar (followed by Suryamaorthi v. Govindaswamy175, Justice A.M.
Ahmadi (as he then was) laid down.

172 Ibid.
173 CBI v.Anupam J. Kulkarni 1992 3 SCC 141 at 155.
174 (1995) 4 SCC 190
175 (1989) 3 SCC 24.
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 Genesis and Development of concept of Bail

“We think as a general rule the trial court should after recording the conviction
adjourn the matter to a future date and call upon both the prosecution as well as the
defence to place the relevant material before it and thereafter pronounce the sentence
to be imposed on the offender.
In Malkiat Singh v. State of Punjab176 Justice K. Ramaswamy reiterated the separate
hearing after an adjournment and also outlined the role of prosecution and defence in
the separate hearing. However, there are certain other decisions of the Supreme Court
such as Jumman Khan v. State of UP177 and Sevaka Perumal v. State of T.N.178that
find the same day sentence hearing as sufficient compliance with

176 (1991) 4 SCC 341:

177 (1991) 1 SCC 752
178 (1991) 3 SCC 471

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 Genesis and Development of concept of Bail

CHAPTER – 4

RECENT TREND OF SUPREME COURT AND HIGH

COURT ON BAIL

The Supreme Court has clearly observed that under Article 136 of the constitution, the
Supreme Court should not interfere with the orders granting or refusing bail or
anticipatory bail and that "these are matters in which the High Court should normally
become the final authority".

Under Sec. 438 and 439 of Cr. P.C. the High Courts have power to grand anticipatory
bail, regular bail and cancellation of bail respectively.

While granting bail, The Supreme Court and The High Courts have to consider the
nature and gravity of the circumstances in which the offence was committed, the
position and status of the accused with reference to the victim and witnesses, the
likelihood of the accused fleeing from justice, of repeating the offence, of
jeopardizing his own life being faced with a grim prospect of the possible conviction
in the case, of tempering with witnesses, the history of the case as well as of its
investigation and other relevant grounds.

There are some following significant judgments in which The Supreme Court and
Delhi High Court have given important guidelines regarding bails:

IN STATE v. CAPT. JAGJIT SINGH:

The considerations which normally weigh with the court in granting bail in
nonbailable offences have been explained by the apex court179 that the nature and
seriousness of the offence, the character of the evidence, circumstances which are
peculiar to the accused a reasonable possibility of the presence of the accused not
being secured at the trial, reasonable apprehension of witnesses being tampered with,
the larger interest of the public or the State and other similar factors which may be
relevant in the facts and circumstances of the case. While hearing an application for

179 AIR. 1962 Supreme Court, 253.

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 Genesis and Development of concept of Bail

cancellation of bail under Sub-section (2) of Section 439 of the Code, the Courts
generally do not examine the merits of the order granting bail. What is normally
relevant to be examined in such a proceeding is whether the accused is trying to
tamper with the evidence subsequent to his release on bail or has threatened the
witnesses or has committed any other offence while on bail or is trying to adopt
dilatory tactics resulting in delay of trial or has absconded or that the offence
committed by him has created serious law and order problem. The Court has to see as
to whether the accused has misused the privilege of bail granted to him. Only in
exceptional cases where the order granting bail is vitiated by any serious infirmity and
in the interest of justice it becomes necessary to interfere with the discretion exercised
in granting bail that the order would be interfered with on merits.

GURCHARAN SINGH AND OTHER V. STATE (DELHI

ADMINISTRATION):207

The Supreme Court held that the only question which the Sessions Judge was required
to consider at that stage was whether there was prima facie case made out, as alleged,
on the statements of the witnesses and on other materials. There appeared at least
nothing at that stage against the statement of A.S.I. Gopal Das who had made no
earlier contradictory statement. “The taint of unreliability could not be attached to his
statement even for the reason given by the learned Sessions Judge. Whether his
evidence will ultimately be held to be trustworthy will be an issue at the stage of trial.
In considering the question of bail of an accused in a non-bailable offence punishable
with death or imprisonment for life, it is necessary for the court to consider whether
the evidence disclose a prima facie case to warrant his detention in jail besides the
other relevant factors.

IN SINJAY VERMA v. STATE208:

Shows that the learned Judge relied on the observations of the Supreme Court to take
the view that economic offences are placed even at a higher pedestal than murder.
Bail was refused by the learned Judge mainly on the ground that the petitioner therein
was alleged to have stated that earlier also he used to help his father in the latter’s

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 Genesis and Development of concept of Bail

smuggling activities and was involved in the seizure of 120 foreign marked gold
biscuits and, therefore he was likely to indulge in offences of a similar nature if

207
Supra.
208
1991 JCC, Delhi High Court, 273
released on bail. In this context it should be mentioned that if the Legislature wanted
the Courts to treat economic offences differently from other offences in the matter of
granting bail, they could have made special provisions specifying additional
limitations on granting of bail as in the case of offences under the Narcotic Drugs and
Psychotropic Substances Act, 1985. In the absence of such special provisions the
general principles governing the grant of bail under Section 437 and Section 439 of
Criminal Procedure Code will apply even in a case involving an economic offence. It
is significant that even though additional limitations on grant of bail have not been
specified in legislations like the Customs Act and the Foreign Exchange Regulation
Act, considering the nature of the offences and in the interest of society and the State,
in addition to the provisions for sentence and penalty, provisions have been made
under Section 111 of the Customs Act and Section 63 of FERA for confiscation of the
goods/currency/security money/ property in respect of which the offence was
committed.

The legal position emerging from the above discussion can be summarised as follows:
a. Personal liberty is too precious a value of our Constitutional System recognised
under Article 21 that the crucial power to negate it is a great trust exercisable not
casually but judicially, with lively concern for the cost to the individual and the
community. Deprivation of personal freedom must be founded on the most serious
considerations relevant to the welfare objectives of society specified in the
Constitution.
b. As a presumably innocent person the accused person is entitled to freedom and
every opportunity to look after his own case and to establish his innocence. A man
on bail has a better chance to prepare and present his case than one remanded in
custody. An accused person who enjoys freedom is in a much better position to
look after his case and properly defend himself than if he were in custody. Hence
grant of bail is the rule and refusal is the exception.

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 Genesis and Development of concept of Bail

c. Bail is not to be withheld as a punishment. Even assuming that the accused is

prima facie guilty of a grave offence, bail cannot be refused in an indirect process
of punishing the accused person before he is convicte
d. Judges have to consider applications for bail keeping passions and pre judices
out of their decision

e. In which case bail should be granted and in which case it should be refused is a
matter of discretion subject only to the restrictions contained in Section 437(1) of
the Criminal Procedure Code. But the said discretion should be exercised
judiciously.

IN BINOY JACOB v. C.B.I.:209

It was also held there is no doubt that the investigating agency in its discretion has to
decide as to which accused is to be arrested and at what stage. The court, can,
however, ask the Investigating Agency in appropriate cases as to what is the reason
for not arresting the main accused. In case no satisfactory answer is given, the court
can taker into consideration this factor, amongst others, while considering the bail
application of the co-accused. In the country governed by rule of law the discretion of
the investigating agency does not mean whim, fancy or wholly arbitrary exercise of
discretion.

Delhi High Court has direct that the petitioner be released on bail on his furnishing
bonding the sum of Rs. 2 lakhs with one surety in the like amount to the satisfaction
of the Special court subject to the following conditions:
• The petitioner will not tamper with the evidence.
• He would join the investigation as and when required.
• The petitioner would not leave India except with the permission of the court.
• As and when the petitioner leaves Delhi he will inform the Investigation officer
as to the place of his visit and address there and the date of return.

SHRI K. CHANDRA v. STATE (THROUGH C.B.I.)210:

Usha Mehra, J. observed that the law of bails, has to dovetail two conflicting
demands, namely on one hand, the requirements of the society for being shielded from
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 Genesis and Development of concept of Bail

the hazards being exposed to the misadventures of a person alleged to have committed
a crime, and on the other, the fundamental canon of criminal jurisprudence, namely
the presumption of innocence of an accused till he is found guilty. In order to subserve
this object, the legislature has given direction/guidelines

209
1993 JCC 131, Delhi High Court
210
1993, JCC, Delhi High Court, 37.
for granting or refusing bail in addition the courts have evolved certain norms for the
proper exercise of such discretion. It is not a static law, it is growing. Its sources are
the winds of circumstances and consciousness of man.

It was held that we are following an accusatorial system under which a person is
supposed to be innocent until proved otherwise. The guilt is established only after
trial. Question is how an accused should be dealt with at the trial stage? Any
incarceration at the trial stage also brings about penal consequences to the detune. He
is deprived of his liberty, the family is deprived of his company as well as his income
in most cases. It brings the persons as well as his family in disrepute. Those in
employment have to face action which may lead to termination of service. On the
other hand, there are various other equally important considerations which heavily
weigh with courts in curtailing the liberty of an under―trial accused. Therefore, the
presumption of innocence till found guilty cannot be literally given effect to in
practice while dealing with cases of bail. The considerations which militate against
the right of an accused to get bail are many and in view of the varying facts and
circumstances of the cases, it is difficult to enumerate them. However, some of the
important and most commonly applicable considerations are:

a. Nature and gravity of the offence, the manner of its execution and the
circumstances in which it is committed;
b. Chances of the accused fleeing from justice;
c. Chances of tampering with evidence and influencing witnesses by the accused if
released on bail;
d. Bail is not to be withheld as a punishment. Even assuming that the accused is
prima facie guilty of a grave offence, bail cannot be refused in an indirect process
of punishing the accused person before he is convicted.

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 Genesis and Development of concept of Bail

e. Judges have to consider applications for bail keeping passions and pre judices
out of their decisions.
f. In which case bail should be granted and in which case it should be refused is a
matter of discretion subject only to the restrictions contained in Section 437(1) of

211
1995 JCC 12, Delhi High Court.
the Criminal Procedure Code. But the said discretion should be exercised
judiciously

Social aspiration that person accused of commission of heinous crimes should

not remain at large and to maintain faith and confidence of the public in the judicial
Out of several considerations which are to be weighed for purpose of grant or refusal
of bail two are uppermost. First, whether the accused will be available for trial and not
flee from justice. Second, that he will not influence witnesses and tamper with
evidence.

IN RUNU GHOSH v. STATE (C.B.I.): 212

It was held that at the stage of considering the application of the petitioner for the
grant of bail, the Court is not required to go into the detailed examination of evidence
and pre-judge the case and for that exhaustive exploitation of the merits of the case
are not required in the order. The Court before granting bail in cases involving
nonbailable offences, is to take into consideration matters such as the nature and
seriousness of the offence, the character of evidence, circumstances which are
peculiar to the accused, a reasonable possibility of the presence of the accused not
being secured at trial, reasonable apprehension of witnesses being tampered with, the
larger interest of the public or the State and similar other considerations. Bail should
normally not be withheld as a punishment if, after taking into consideration other
factors, the accused is entitled to the grant of bail. Bail and not jail is the normal rule.
The two paramount considerations, namely, likelihood of the accused fleeing from
justice and his tampering with prosecution evidence relate to ensuring fair trial of a
case in the course of justice. Due and proper weight should be bestowed on these two
factors apart from others. There cannot be a set formula in the matter of granting bail.

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 Genesis and Development of concept of Bail

The facts and circumstances of each case will govern the exercise of judicial
discretion in granting or cancelling the bail.

212
1996, JCC, Delhi High Court, 710.
IN SUNIL FULCHAND SHAH ETC. v. UNION OF INDIA AND ORS:180181
It was observed by the Supreme Court that bail and parole have different connotations
in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the
Code of Criminal Procedure contains elaborate provisions relating to grant of bail.
Bail is granted to a person who has been arrested in a non-bailable offence or has been
convicted of an offence after trial. The effect of granting bail is to release the accused
from internment though the Court would still retain constructive control over him
through the sureties. In case the accused is released on his own bond such constructive
control could still be exercised through the conditions of the bond secured from him.
The literal meaning of the word ‘Bail’ is surety. In Halsbury's Laws of England,214 the
following observation succinctly brings out the effect of bail:

“The effect of granting bail is not to set the defendant (accused) at liberty but to
release him from the custody of law and to entrust him to the custody of his sureties
who are bound to produce him to appear his trial at a specified time and place. The
sureties may seize their principal at any time and may discharge themselves by
handing him over to the custody of law and he will then be imprisoned.”

IN PRAHLAD SINGH BHATI v. N.C.T. DELHI & ANR.:182

It was observed by the Supreme Court that the Powers of the Magistrate, while
dealing with the applications for grant of bail, are regulated by the punishment
prescribed for the offence in which the bail is sought. Generally speaking if
punishment prescribed is for imprisonment for life and death penalty and the offence
is exclusively triable by the Court of Sessions. Magistrate has no jurisdiction to grant

180 2000 (1) JCC Supreme Court 328.

181 th Ed., Vol. 11, para 166.
182 2000 1(1) JCC Supreme Court 229.
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 Genesis and Development of concept of Bail

bail unless the matter is covered by the provisos attached to Section 437 of Cr.P.C.
The limitations circumscribing the jurisdiction of the Magistrate are evident and
apparent. Assumption of jurisdiction to entertain the application is distinguishable
from the exercise of the jurisdiction.

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
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 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 excepted, at the state, to have the evidence
establishing the guilt of the accused beyond reasonable doubt.

have completely ignored the basic principles governing the grant of bail. The
Magistrate referred to certain facts and the provisions of law which were not, in any
way, relevant for the purposes of deciding the application for bail in a case where
accused was charged with an offence punishable with death or imprisonment for life.
The mere initial grant of anticipatory bail for lesser offence, did not entitle the
respondent to insist for regular bail even if he was subsequently found to be involved
in the case of murder. Neither Section 437 (5) nor Section 439 (1) of Cr.P.C. was
attracted. There was no question of cancellation of bail earlier granted to the accused
for an offence punishable under Sections 498-A, 306 and 406 I.P.C. The Magistrate
committed a irregularity by holding that “I do not agree with the submission made by
the Ld. Prosecutor in as much as if we go by his submissions then the accused would
be liable for arrest every time the charge is altered or enhanced at any stage, which is
certainly not the spirit of law”. With the change of the nature of the offence, the

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 Genesis and Development of concept of Bail

accused becomes disentitled to the liberty granted to him in relation to a minor

offence, if the offence is altered for an aggravated crime. Instead of referring to the
grounds which entitled the respondent-accused the grant of bail, the Magistrate
adopted among approach to confer him benefit of liberty on allegedly finding that no
grounds were made out for cancellation of bail.
Despite the involvement of important questions of law, the High Court failed in its
obligation to adjudicate the pleas of law raised before it and dismissed the petition of
the appellant by a one sentence order. The orders of the Magistrate as also of the High
Court being contrary to law are liable to be set aside.

LALU PRASAD YADAV v. STATE OF JHARKHAND:216

The Supreme Court has been released the appellants on interim bail for six months on
their executing a bond with two solvent sureties each in a sum of rupees one lac to the
satisfaction of the trial court at Ranchi on the following conditions:

a. Appellant shall not directly or indirectly or through others make any inducement,
threat or promise to any person acquainted with the facts of the case so as to
dissuade him to disclose such facts to the Court or to any other authority:
b. he shall remain present before the Court on the date fixed for hearing of the case.
If he wants to remain absent then he shall take prior permission of the Court and in
case of unavoidable circumstances for remaining absent he shall immediately give
intimation to the appropriate Court (AHD) and also to the Superintendent,
C.B.I. and request that he may be permitted to be present through his counsel;
c. he will not dispute his identity as the accused in the case
d. he shall surrender his Passport if any (if not already surrendered) and in ease he
is not a holder of the same he shall swear to an affidavit. If he has already
surrendered before the designated Court that fact should also be supported by an
affidavit.
e. he shall not give for publicity his comments or opinion on the merits of the case
pending against him, except when he is required to state it in the Court concerned.
f. he shall desist from any euphoria demonstration for being bailed out in these
cases.

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 Genesis and Development of concept of Bail

216
2002, (1) JCC, Supreme Court, 258.
IN SMT. ANJANA BATHEJA AND ANR. v. C.B.I.:217

empowered to impose any kind of a condition upon the accused to ensure his presence
but to curtail or scuttle the liberty of other members of his family who are in no way
connected with the crime is to take away precious fundamental right of free
movement of an individual granted by the Constitution. This is nothing but a medieval
way of administering justice when family members used to be kept as hostages in lieu
of either release of their detained kith and kin or procure the surrender of the wanted
man.
IN CHAMAN LAL v. STATE OF U.P. AND ANR.:218
The Supreme Court said that even on a cursory perusal the High Court’s order shows
complete non-application of mind. Though Detailed examination of the evidence and
elaborate documentation of the merits of the case is to be avoided by the Courts while
passing orders on bail applications. Yet a Court dealing with the bail application
should be satisfied as to whether there is a prima facia case, but exhaustive
exploration of the merits of the case is not necessary. The Court dealing with the
application for bail is required to exercise its discretion in a judicious manner and not
as a matter of course.
There is a need to indicate in the order reasons for prima facie concluding why bail
was being granted particularly where an accused was charged of having committed a
serious offence. It is necessary for the courts dealing with application for bail to
consider among other circumstances, the following factors also before granting bail,
they are:
a. The nature of accusation and the severity of punishment in case of conviction and
the nature of supporting evidence;
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 Genesis and Development of concept of Bail

b. Reasonable apprehension of tampering of the witness or apprehension of threat to

the complainant;

217
2003, (3) JCC, Delhi High Court, 1433.
218
2004, (3) JCC, of Supreme Court, 1309.
THE SUPREME COURT IN KISHORI LAL v. RUPA & ORS.:219
The Court has held that the appellate Court is duty bound to objectively assess the
matter and to record reasons for the conclusion that the case warrants suspension of
execution of sentence and grant of bail. In the instant case, the only factor which
seems to have weighed with the High Court for directing suspension of sentence and
grant of bail is the absence of allegation of misuse of liberty during the earlier period
when the accused-respondents were on bail.

The mere fact that during the trial, they were granted bail and there was no allegation
of misuse of liberty, is really not of much significance. The effect of bail granted
during trial looses significance when on completion of trial, the accused persons have
been found guilty. The mere fact that during the period when the accused persons
were on bail during trial there was no misuse of liberties, does not per se warrant
suspension of execution of sentence and grant of bail. What really was necessary to be
considered by the High Court is whether reasons existed to suspend the execution of
sentence and thereafter grant bail. The High Court does not seem to have kept the
correct principle in view.

IN COURT ON ITS OWN MOTION v. CENTRAL BUREAU OF

INVESTIGATION:220
J.D. Kapoor, J. has observed that the liberty of a citizen is of paramount importance
and a constitutional guarantee and cannot be incised and therefore the police or
Investigating agencies should not remain under the impression that in every
cognizable and ‘non-bailable’ offence they should invariably arrest the offender.
Power to arrest is altogether different than the need for arrest. Unless a person is

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 Genesis and Development of concept of Bail

required for custodial interrogation and investigation cannot be completed without his
arrest, arrest may be necessary. In case investigation can be completed without his
arrest and he extends all kind of co-operation, he should not he arrested. No authority
howsoever powerful or mighty can be allowed to deny a person his liberty as it hits at
the very foundation of democratic structure.

219
2004, (3) JCC, Supreme Court, 1484.
220
2004 (1) JCC, Delhi High Court, 308.
Justice J.D. Kapoor has given some important directions for criminal courts:
a Whenever officer-in-charge of police station or investigating agency like CBI files a
chargesheet without arresting the accused during investigation and does not produce
the accused in custody as referred in Section 170 Cr.P.C. the Magistrate or the court
empowered to take cognizance or try the accused shall accept the chargesheet
forthwith and proceed according to the procedure laid down in Section 173 Cr.P.C.
and exercise the options available to it as discussed in this judgment. In such a case
the Magistrate or court shall invariably issue a process of summons and not warrant
of arrest.
b In case the court or Magistrate exercises the discretion of issuing warrant of arrest at
any stage including the stage while taking cognizance of the charge sheet, he or it
shall have to record the reasons in writing as contemplated under Section 87 Cr.P.C.
that the accused has either been absconding or shall not obey the summons or has
refused to appear despite proof of due service of summons upon him.
c Rejection of an application for exemption from personal appearance on any date of
hearing or even at first instance does not amount to non-appearance despite service
of summons or absconding or failure to obey summons and the court in such a case
shall not issue warrant of arrest and may either give direction to the accused to
appear or issue process of summons.

d That the Court shall always keep the mandatory provisions of Section 440 Cr.P.C. in
mind while fixing the amount of bail bond or surety bond which provides that the
amount of bond shall never be “excessive” amount and take into consideration the
financial condition, the nature of offence and other conditions, as “Excessive”

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amount of bond which a person is not in a position to furnish amounts to denial of

bail in a non-bailable offence and conversion of bailable offence into non-bailable
offence as the fundamental concept of granting bail on bond is security of
appearance of the accused person to answer the charges and face the trial Nothing
more nothing less.

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 Genesis and Development of concept of Bail

Principles that govern the grant or refusal of bail in other kinds of eases and shall be
followed in letter and spirit are as under:- a Bail should not be refused unless the
crime charged is of the highest magnitude and the punishment of it prescribed by law
is of extreme severity;
b Bail may be refused when the court may reasonably presume, some evidence
warranting that no amount of bail would secure the presence of the convict at the
stage of judgment;
c Bail may be refused if the course of justice would be thwarted by the person who
seeks the benignant jurisdiction of the Court to be freed for the time being;
d Bail may be refused if there is likelihood of the applicant interfering with
witnesses for the prosecution or otherwise polluting the process of justice: and
e Bail may be refused if the antecedents of a man who is applying for bail show a
bad record, particularly a record which suggests that he is likely to commit serious
offences while on bail.
f Similarly, the Court shall not while releasing a person on bail put any condition,
say in the form or deposit of extra amount or FDR etc. of any amount which is
beyond the conditions permissible under Section 439 Cr.P.C.

This Court has laid down aforesaid law in various cases decided from time to time for
the guidance and compliance of the subordinate courts but it is with great anguish and
pain that this Court observes that it has come across a large number of orders passed
by the subordinate courts in complete violation of the law laid down by this Court and
Supreme Court in many more other cases.
There is no gain saying the fact that the disobedience or disregard of the law laid
down by the High Court by the subordinate courts is not only against the very concept
of rule of law but also verges on contempt of court as subordinate courts are, by way
of constitutional provisions, bound by the decision of the local High Court as is every
court of the country including the High Courts, bound by the decisions of the
Supreme Court by virtue of provisions of Article 141 of the Constitution.

Chapter 5
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 Genesis and Development of concept of Bail

CONCLUSIONS AND SUGGESTIONS

Although our legislature has taken care that there should be no gap-holes into the
provisions of bail and great efforts have been made in the shape of statutory
provisions to protect the accused as well as the victim. Constitution of India
guarantees everyone a fair trial, and considers everyone innocent until proven guilty
in a court of law. However even though a person may not have yet been found guilty
by courts, law enforcement and jail personnel do treat the accused as though they are
guilty. The provisions of bail which are called statutory provisions here are encoded
in the code of criminal procedure which have been amended a few times are inchoate
and full of blanks. The discretion of the courts in matters of bail which we may call
free from any legislative control, is also having so elasticity despite the long list of
considerations or principles,, that it becomes difficult to rationalise the exercise of
discretion way or the other in any given case. Bail or the jail belongs to the opaque
areas of the criminal justice system and largely hinges on the hunch of the judges
which we may term as 'judicial discretion'.
A harmonious balance has to the struck between the needs of “social defence” and
“individual liberty. In our country, we follow the accusatorial system as per which the
state must establish the guilt of the accused by independent evidence and beyond any
reasonable doubt. The accused is presumed to be innocent until his guilt is proved
beyond any iota of doubt. But despite adopting of above mentioned accusatorial
system in our criminal justice system, a legal man can observe that this accusatorial
system seems to be in theory alone and that it has not been adopted in its spirit and
true sense. The law enforcement agencies and jail personnel treat the accused as
convicted person and flout their basic human as well as fundamental rights. In
addition to it, judges accept or refuse bail on irrelevant considerations as their
mentality is effected by the present complicated scenario of society. In the present
time, most of the persons are psychologically ill and the judges being human being
are no exceptions to it. The emphasis should be that while deciding the bail matters
judges should try not to mix their own nature with the case in hand. He should handle
the bail-matter on the sole statutory or judicial principles and leave aside the
psychological factor. Moreover, under section 436 and section 167 (2) of Cr.P.C.
proviso provide for mandatory release of an accused person. Under section 167

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 Genesis and Development of concept of Bail

Cr.P.C. when trial is not concluded within sixty/ninety days from the first date fixed
for taking evidence, the accused is to be released mandatorily on bail. But, there may
be some hapless person who are in custody and for whom none is there to appear or
apply for bail and become surety even after such period in such cases, the courts
themselves should take initiative in considering the grant of bail and should release
the accused persons on his personal bond in appropriate cases. Our statutory
provisions tend to favour the rich persons in the matter of bail. There may be cases
where bail is granted by the court, but the accused is unable to get himself enlarged on
bail due to inability to furnish sureties and his poverty. In such a case a rich person
has an advantage over a poor person despite the fact that in the preamble of our
constitution itself economic justice has been set as a constitutional Goal. Section
440(1) of Cr.P.C. prescribes that the amount of bond shall not be excessive. A poor
person may find it impossible to furnish the necessary security and remain in custody
although at the end he may be found innocent. For restraining the accused to flee from
the justice some other measures and techniques should be adopted by the judiciary
where the accused is too poor to find a surety. The legislature must frame more
stringent penal provisions for the accused who is absconder or who is declared as a
proclaimed offender so that he may not flee from the trial in case he is released on his
personal bond in stead on bail bonds. The experience of enlightened bail projects in
the U.S.A such as MANHATTAN BAIL PROJECT and like shows that even without
monetary bail it has been possible to secure the presence of the accused at the trial in
quite a large number of cases. Another evil of the bail system in our criminal justice
system is that either the poor accused has to fall back on touts and professional
sureties for providing bail or suffer pre-trial detention. In one case the poor accused is
fleeced of his moneys by touts and professional sureties and sometimes has even to
incur debts to make payment to them for securing his release. Every other feasible
method of pre-trial release should be exhausted before resorting to monetary bail. The
practice, which is none being followed in the U.S.A is that the accused should
ordinarily be released on order to appear or on his own recognizance unless it is
shown that there is substantial risk of non-appearance. If a magistrate is satisfied after
making enquiry into the condition and background of the accused that the accused has
his roots in the community and is not likely to abscond, he can safely release the
accused on order to appear or on his own recognizance. In many other respects too

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 Genesis and Development of concept of Bail

there are numerous lacunas in the statutory provisions of bail which should be
fulfilled by suitable amendments by the legislature. One point is that a magistrate
should be vested with a power to modify bail order or reduce its amount in the interest
of justice. Here it is also pertinent to mention that even if there are clear provisions in
the criminal code, these are not being used to its entirety, for example the officer-in-
charge of a police station seldom exercise his power to release an accused person on
bail in the case of non-bailable offences after his arrest when investigation is pending
and when the accused has not been produced before the magistrate. This way, the
police is also not using their powers to utmost extent despite there being clear
provisions u/s 437 Cr.P.C. in this regard.
In the end we may say that the legislature should scrutinise the judicial precedents,
law commission’s reports and should also not be hesitant to invite suggestions from
the members of the bench and bar and from the general public also before making the
necessary amendments in the law of bail.

The provision under article 21 of the constitution of India that, "No person shall be
deprived of his life and personal liberty except according to the procedure established
by law”, itself inherently contains the idea of “bail” to every person’ as the word
“person” includes a citizen as well a non-citizen. It also further means that the law
providing for granting or rejecting bail to a person should be fair as well as just.
However it is a matter of concern that while interpreting the article 21 of the
constitution of India the higher judiciary of our country seldom try to interfere the
broad echelons of the legislature in the form of declaring the bail provision as
insufficient or unconstitutional. Although our legislature is included in the term of
state, even then our judiciary refrain from such type of judicial activism.
If our supreme court and the High courts direct the legislature by adopting the weapon
of judicial activism in the form of liberally interpreting the article 21 for the proper
amendments of the provisions relating to bail then in our opinion this can not be
termed as “judicial over-reach” as the directions by the higher judiciary in that case,
can be said to be given for the protection of the fundamental rights under article 21 of
the under-trial imprisoned persons. For example, there is no provision in our Criminal
Codes whereby the magistrate can review the amount of bail-bond and its reduction
thereof, although it is not denied that the sessions courts and High courts are vested

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 Genesis and Development of concept of Bail

with such powers. But here, we have to evaluate the cumulative effect and should
consider the angle from the fundamental right under article 21 of the imprisoned
accused if the magistrate is invested with the powers to reduce the amount of bail
bonds then, the unnecessary time spent in applying to the sessions court or High court
is saved and the accused in jail may be in a position to be released in short time and
his hardships may be minimised.
Although our supreme court and High courts have taken a greet care of the
fundamental rights of the accused in custody, but the situation at grassroot level has
not changed considerably as the financially poor accused is unable to approach the
higher courts due to the paucity of funds, being unable to bear the burden of hefty fees
of high court and supreme court attorneys.
Furthermore, the courts other than high courts and supreme court do not observe the
rights of the 'accused in custody' from the angle of the breach of his fundamental right
rather the lower court judges are influenced by extraneous factors such as personality
of the advocate appearing for the accused in custody, psychological influence of
police and prosecution branch personnel's, his own family and social background. The
courts are obliged to consider the authoritative judgments/citations on bail matters
also, but in practice, it has been noticed in the lower strata of judiciary that most of
the courts are not inclined to look in to the authoritative citations on bail and whoever
(advocate) presents such citations on bail in favour of his case, most of the judges
look down upon him so as to discourage the lawyers from presenting such citations in
future. It means that many courts decide the bail-maters at their whim and caprices
and not on judicial prevents or constitutional norms.
In the present time, a great attention has been paid to the 'fundamental right to life and
personal liberty of persons' and especially the apex court and High Courts in India
have come forward and have scaled new rights for the protection of fundamental right
provided under article 21 of the constitution of India and thus opening new doors for
the under-trial prisoners giving new dimensions to the fundamental right to life and
personal liberty.
Although provisions have been made in the code of criminal procedure in regard to
bail of under-trial as well as the convicted persons, but these are not sufficient. For
filling this void, the apex court and our High Courts have been devising and

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establishing new norms and principles for the granting and rejection of bail to both
kinds of prisoners.
As mentioned earlier in this chapter, although the Higher judiciary try to follow the
judicial precedents relating to bail and apply the judicial principles, the provisions of
the code of criminal procedure along with the constitutional safeguards provided to
the under-trial and convicted persons and we may glance through the numerous
authorities/citations mentioned earlierly in this chapter. But, it is pertinent here that
the lower strata of the judiciary, it seems has forgotten the supreme law of the land
which is the constitution of India and seldom, it has come to our notice that we ever
hear any advocate appearing in any bail mater in the lower courts, who is arguing on
the lines of the constitutional provisions. It has been observed that the courts other
than the supreme court and high courts at many occasions do not apply the well
established judicial norms of bail while granting or rejecting bail and it seems that in
the economically backward states/ areas, the lower courts are either in the influence of
the police or under the indirect threat at to hardcore criminals and it has been almost
impossible to sub- serve the judicial norms of bail in these areas.
In addition to it the High Courts should also use it powers under article 227 of the
constitution of India which relates to the power of general superintendence and
control and give appropriate directions to the lower courts for the proper
implementation of the established judicial precedents by the lower courts.
At the end we may say that the trend of the supreme court and High Courts in
granting or rejecting bail to prisoners has considerably changed after the ninety’s
decade and are striving to maintain on equilibrium between the interest of the society
and the rights of the prisoners.

SUGGESTIONS AGAINST LEGISLATIVE LACUNAE:

Conditional bail for all offences:
Sub-section (3) of section 437 of Cr.P.C. confers power on the court to impose
conditions only if the offence is of the nature specified therein; section 439(1)(a) of
Cr.P.C. too refers to the nature of the offence as specified in section 437(3) of
Cr.P.C. It means that courts cannot impose conditions in case offences not covered
under section 437(3), nor is a police officer, though authorized to grant bail,
empowered to impose conditions. Such a restriction regarding imposition of

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 Genesis and Development of concept of Bail

conditions does not appear to be justified, as sometimes cases may arise which do not
fill under Section 437(3) but yet need imposition of suitable conditions when bail is
granted. In that sense, the position regarding conditional bail was more liberal before
the new Code, as conditions could be imposed in case of any non-bailable offence
according to the needs of the circumstances. On the other hand, section 437(3) of
Cr.P.C. implies that almost all offences are bailable -those punishable with
imprisonment of seven years or more, with conditions, and the rest, by converse
implication, without any condition - rendering the categorization of offences into
bailable and non-bailable irrational.

Provision for gap between acquittal and presentation of appeal against it:
Section 390 of Cr.P.C. provides that when an appeal is presented under section 378 of
Cr.P.C., i.e., an appeal from acquittal, the High Court may issue a warrant directing
that the accused be arrested and brought before it or any subordinate court, and the
court before which he is brought may commit him to prison pending the disposal of
the appeal or admit him to bail. The Code has not provided for any action being taken
in respect of an accused person, who is acquitted, during the interregnum between the
date of his acquittal and the date of presentation of appeal against the acquittal,
despite the risk of his absconding during such appeal. Bail-bond cannot be taken from
an acquitted person for securing his presence at the appellate stage since he cannot be
arrested and detained in custody, a pre-condition for release of a person on bail; with
respect to an acquitted person, the court is bound to direct that he be set at liberty,
vide section 354(1)(d). This gap need be suitably provided for.
Provision for anticipatory bail on issuance of non-bailable warrant in a bailable
offence:
Section 438 of Cr.P.C. benefits only persons accused of committing non-bailable
offences and cannot be invoked when arrest is apprehended on an accusation of
having committed a bailable offence and the court might have already issued a
nonbailable warrant, as a non-bailable warrant may be issued even in case of a
bailable offence, arrest and custody thereby becoming inevitable. There is no reason
as to why section 438 should not cover bailable offences as well.

Court of place of arrest to grant provisional bail only:

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 Genesis and Development of concept of Bail

Second proviso to sub-section (1) of section 81 of Cr.P.C. empowers the Chief

Judicial Magistrate and the Sessions Judge of the place of arrest to grant regular bail
in case of arrest for a non-bailable offence. It would be proper if this power were
limited to granting only temporary or provisional bail to enable the accused to appear
before the court having jurisdiction, which issued the warrant of arrest, and the matter
is then left to it.

Convicting court to grant bail also when revision is proposed:

Section 389 of Cr.P.C. implies that a convicted person must have a right to appeal. If
the sentence is not appealable or is amenable to revision only, the benefit of section
389 cannot be availed of. No appeal lies against a sentence of imprisonment for a
term not exceeding three months or of fine not exceeding two hundred rupees, or of
both such imprisonment and fine, vide section 376(b) of Cr.P.C. of the Code. A
convicting trial court sentencing an accused to imprisonment for three months or less
has no power to release him on bail, and he has necessarily to be sent to jail, and he
will have to remain in jail till he obtains an order for release on bail from a higher
court under revisional jurisdiction under section 397(1) of Cr.P.C. There seems to be
patent injustice based on period of imprisonment. Necessary legislative amendment is
needed in the Code either to empower convicting trial court to release an accused on
bail also when he intends to present a revision, or to make all sentences of
imprisonment appealable.

Magistrate of the first class be empowered to grant bail in an offence punishable

with imprisonment for life:

There is a legislative anomaly in the Code inasmuch as a Magistrate of the first class
is debarred from granting bail to a person accused of an offence punishable with
imprisonment for life (vide section 437(1)(i)), whereas he has been empowered to try
such offences, e.g., offences under section 326, section 377, section 394, section 409,
section 467, IPC, nay, he can authorize detention of such an accused in police or
judicial custody, grant compulsive bail under section 167(2) proviso, acquit or convict
the accused, or, if convicted, release him on bail under section 389(3). When a
Magistrate of the first class can do so many acts under the Code in an offence

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 Genesis and Development of concept of Bail

punishable with imprisonment for life, there is no reason as to why he cannot grant
bail to a person accused of such an offence.

Magistrate be expressly empowered to modify bail order or reduce bail amount:

Many Magistrates refuse to modify bail orders passed by them or reduce the bail
amount on the ground that there is no express provision in the Code and they have no
inherent powers. There is need for an amendment in the Code with a view to
expressly empower Magistrates to suitably modify a bail order or reduce the bail
amount in the interests of justice.

Provision for forfeiture of amount deposited when no bond is executed:

Section 445 of Cr.P.C. provides for deposit of cash in lieu of execution of a bond.
When no bond is executed, there is no provision for forfeiture of the amount
deposited. A suitable provision in this regard is needed.

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 Genesis and Development of concept of Bail

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2
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constitutional challenge". 2002 Cri. Law Journal / 216.
XII. Vaghela, Ramesh P. "Bail under sec. 167 (2) criminal procedure code – A study of case
law." 1996 (1) Guj. Law Reports Journal /1.
XIII. Wald., Pretrial Detention and ultimate freedom : A statistical study. N.Y. University aw
Review, June 635 (1964).
XIV. Wilgus., Arrest without a warrant, mich law review, 1924, 543.

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Genesis and Development of concept of Bail