Bail is the interim release of an accused, upon receipt of any security which ensures the released prisoner’s appearance in the court later as and when required. It is more profound in criminal cases as civil ones are generally dealt with just the repayment of debt without imprisonment.

Though many factors play a role in the grant of bail like the quantum of the offence charged, probability of escape, etc., it is also dependant on the discretion of the judge. Herein, it is pertinent that the judicial trust is exercised duly as the constitution protects a person’s right to life and personal liberty under articles 19, 21, and 22.[1] There must be a lively concern to protect it and should only be eclipsed by a procedure established by law. The law is laid out to meet two very conflicting demands- Shielding the society from hazards of the misdemeanors of an accused on one hand, and the presumption of innocence until proven guilty on the other. Limitations on bail can only be applied on reasonable grounds. These are more than prima facie considerations and include the potential of the offender to make hay when temporarily set free.

Though bail is not explicitly defined in the Criminal Procedure Code, 1973, it is still governed by it. Also, the bailable and non -bailable offences are defined under section 2(a).  Section 436-450. There are three types of bail in India- Regular, interim, and anticipatory.

THE PROCEDURE FOR GRANTING BAIL                           

The accused can repeatedly apply for bail in case of rejection as there is no principle of res judicata while dealing with such applications.[2] There are certain conditions in which the release on bail is mandatory. Such conditions are when the arrestee is not accused of a non -bailable offence, when the investigation is not completed within the time prescribed, or when there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence.

In the case of non-bailable offences, it is the discretion of the court to grant or not grant bail to a person. This discretion has been restricted by adding a provision to Section 437(1) which states that a person who has been accused of offences punishable with death, life imprisonment, or imprisonment of seven years or more shall not be released on bail without a hearing to the Public Prosecutor.

Bail can even get cancelled in cases where the court feels that the accused may try to tamper with the evidence, or try to abscond, or forcibly prevent the search of places under his control. The cancellation in such cases seems to be just and reasonable.

For the release of an accused on bail, provisions have been made for the bond and surety. They are mentioned in sections 440-450 of the code. Section 440(1) states that the amount of every bond shall be fixed with due regard to the given case and should not be excessive.


 268th report of the Law Commission[3] highlights that more than half of the prison population is awaiting trial in India. Due to this inconsistency in the bail system, the jails are overcrowded beyond occupancy. This grim scenario is responsible for the deplorable hygiene of the jails. Unless there are grave apprehensions of fleeing or thwarting the process of justice, bail must be granted as a rule, not as an exception.[4]

The bail regime also seems to be unjust to the poor as the bail is granted on monetary assurance under section 437A of CrPC. The bail bonds can only be executed with sureties, even after an acquittal by a trial court.[5] This suggests the disparity which comes into play in granting bail. The refusal to grant bail solely on economical considerations violates the constitutional ethos. Other feasible methods must be devised to bridge this gap.

The court while construing article 21 of the constitution has held that legal aid to the poor is their fundamental right but even this basic right remains alien to them due to the lack of understanding of the tedious legal process.  Legal Services Authorities Act, 1987 mandates the access to legal aid on a uniform pattern. However, sometimes this is vitiated by the political considerations as briefless lawyers are appointed. This defeats the pious purpose of making justice accessible to the poor, rendering it a farce.

While granting bail in non-bailable offences, the court’s discretion is based on two grounds- a belief that the accused is not guilty, and the presumption that he/she is not likely to commit any mischief while on bail.[6] The second criterion is an arbitrary provision that requires scrutiny of application before the court. Rational judgment cannot be opined on the future acts of the accused and the denial of bail on this sole provision places an innocent at the mercy of a public prosecutor. It must be amended by linking the past conduct of the accused with the future probability of committing an offense to ensure that there is very little room for judicial flexibility.


The cumbersome process of the trial is unjust as a significant time period is spent by the accused languishing in jail even before conviction. The accused is even subjected to public condemnation during the period due to which he may feel marginalized even if acquitted at a later stage. The sole determinant of bail as of now is a surety that enables the rich to buy their freedom while the poor languish in the jails. The poor are declared to be indigent persons. There must be a liberal mechanism in place for release without monetary assurance at one’s cognizance by providing punishment for a violation instead.

When the adversary is the state itself, it becomes impractical for the defendant to contest a claim of arbitrary arrest. Certain statutes make it even harder to get bail as the offenses the person is charged with are grave in nature. However, just being led by the quantum of charges can jeopardize the basic principle of presumption of innocence until proven guilty. A fundamental change is required in the bail system to make it more accessible to the downtrodden sections of society. Law cannot be static and needs to stand the test of time. To do so, it is pertinent that a multidimensional approach is adopted to lay emphasis on rehabilitation and not retribution.[7] The stringent statutes only lead to the pricing out of the poor from the judicial system. After all,“ Laws too gentle are seldom obeyed and too severe are seldom executed.”

Author’s Name: Navya Bassi (National Law University, Odisha)

[1] Sudesh Kumar Sharma, ‘Dimensions Of Judicial Discretion In Bail Matters’ (1980) JSTOR accessed 16 October 2021

[2] RV Kelkar, Lectures On Criminal Procedure (K.N. Chandrasekharan, 6th edn, EBC 2011)

[3] Law Commission, Amendments To Criminal Procedure Code, 1973- Provisions Relating To Bail(Law Comm No 268, 2017)

[4] Lokendra Malik, Selected Writings of Justice HR Khanna (Universal Law Publishing 2014)

[5] Soibam Rocky Singh, ‘Inconsistencies in the Bail System’ The Hindu(Delhi, February 25 2019)

[6] Kartar Singh v State of Punjab[1994] SCC 569

[7] Feroz Pathan, ‘Bail Reforms in India: A clarion call’(The Daily Guardian, September 17,2020) <>

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