Under CrPC, 1973, bail has not be defines anywhere, but what is the meaning of bailable offence and what all offences are non-bailable has been defined under section 2(a) CrPC which states that, “Bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense”[1]. Halsbury’s Laws of England highlights that “the effect of granting the bail is not to set the defendant free, but to release him from the custody of the law and to entrust him to the custody of his sureties who are bound to produce him to appear at 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 the law and he will be then imprisoned”.

Further, Sections 436 to 450 of the code elaborate on the provisions related to “Bail and Bonds”.  To secure his release, accused has to pay some security bond which is not mentioned in the Cr. PC. Therefore, the monetary cap on the bond is decided by the court. However, the Indian Courts have greater discretion. It is merely court discretion whether to release the person on bail or not and especially courts thinks a lot when the matter is of criminal nature which includes Murder charge. The concept of bail is also dealt with in section 167 termed as “Default Bail”.

In the State of Rajasthan vs. Balchand case, in this case pecuniary bail system was thought upon. In this case, the court gave judgment that bail should be given priority upon putting the person into the Jail.[2] Likewise, in Moti Ram vs. the State of M.P, case, the alleged person has to pay Rs.10,000 as security thereafter the case went for the appeal where Justice Iyer briefed about the grave effects of the pre-trail detention in Jail, that the innocent who is not yet proved guilty has to be in situation where both his physical and mental health will be affected because of environment of the Jail and how the life is there.[3]

In Hussainara Khatoon and Ors. vs. Home Secretary and Ors[4]. Since there is a lot of writ petition filed which made the court to address the issue and need of a speedy trial. It was observed that if people are not proven guilty then they would have to spend more time in the jail and this would clearly infringe his human rights and morality when he would be in the jail without conviction.


For an under-trial person, the importance of bail is a lot. Nevertheless, to get a bail for the person is more important when he is the only bread-earner in the family and he has the future of his family in front of him. The urge for bail gets even more important when we look at the consequences and their impact which is being faced by his family.

R.D. Upadhyay vs State Of A.P[5]., In the case court held that parents whose children are below the age of 6 years, then those children will be staying with their parents in the prison. Here only 6 years of age children are allowed because after that age there is a fear of the mental impact on the child if he will continue to live in such surroundings, therefore the court ordered to shift the child away from parents to some better facility once he is above the age of 6. This order is generally supported by the parents who are in tension of the health and education of their children and once they are into the jail while their under-trail they get separated from their child and then this trouble the well-being and upbringing of the child. 

When the parents are sent to the jail and are separated from their children, then this becomes a trouble point for the parents and they face this concern that what will happen to their children and who will take care of their children now. As a result, the child is being left alone, and thereafter their parents do not have any knowledge of what and where their children go. In many of the cases, when the poor parents by managing somehow get out of the on bail, they don’t know that where they should look for their children. No documents or any kind of information about such children are being maintained, neither in a lot of cases are these children in any kind of connection with their parents. It has also been observed that there is no regulation or any kind of policy which regulates that police takes some recourse and make sure that the child whose parents are in prison, they should be given in right hands who not only take care them physically but also helps them in upbringing mentally with good moral values.

Here are lot of NGOs which keeps on maintain a healthy connection between parents and children. It could be observed that certain rules and regulations need to be strictly followed while their parents are being arrested. The situation suggests that when parents whose child is above the age of 6, in that case, he has to intimidate about the arrest to the Child welfare centre or the state ministry for child welfare and about the status of the family financial condition and what help and support they require. Moreover, both the parents must be well informed about the children that who is taking care of them and also, they should at least be allowed to meet them frequently so that they can still feel a connect with them.

Talking about all the situations where the father who is the sole bread earner in the family is kept in jail, then it’s kind of problematic for the mother to take care of the child or vice-versa where even is father cannot alone take care of the child. In other words, there have been numerous studies which shows that when one of the parents is kept in jail then it’s become very difficult for the other one to take care of the child and give them those morals which both of them together have to give the child.

Also, children have to go through with mental trauma as being living away from their parents leaves them both mentally and physically affected. Their all the human rights, moral values and in total their upbringing as a good child is all kept at stake. If these children are not kept in healthy environment then it is likely a change than they will also start committing the crimes as this is they will learn from their environment and then society like they treated their parents will look them also with the same view as if they are also the future criminals.  The treatment of these children by others in society is altogether another problem that they face. There have been and American Study named as, “Incarcerated Mothers and Fathers: A Comparison of Risks for Children and Families[6]” which highlighted the circumstances, problems and risk which the children of such parents have to face.


  1. In order to save the parents of a child then just a mere suspension on them shall not be treated as a solid grounds for their arrest, there has to be further inquiry before arresting them. The benefits which are provided under the current system of bail provision are very clear that the liberty of the accused should not be deprived of their liberty, even for a short duration because liberty and freedom are precious components of the right to human dignity.
  2. Such scenario where various schemes which government operates for the development for rural and where loans are given to a farmer, so in those cases instead a portion of the fund going to the panchayat for developmental work that fund should be treated a bail security for those who are members of Panchayat or block. All of these amounts will somewhere will reduce the burden of overcrowding in jails.
  3. The attitude of jail authorities could be changed by setting up new jails which will somewhere prevent the cynical criminals to implement their deleterious effect on under-trial people.
  4. For under-trial people who have done petty crimes, they could be asked to place in some reformative homes and could be suggested to do some productive work such as community work until they are being released on bail. Such people could also be provided with education facilities who are illiterate.
  5. The existing problems in bail provisions in India have been addressed by the 268th Law Commission Report. The findings of the report state that race, gender, financial and social standing should not consider the granting bail. If the court believes that the person to whom bail is given will misuse his liberty and waste the court time by not coming on court dates regularly or will harm any other person outside, then court can take discretion to not grant him bail. But before the person is not proven guilty he should not be kept in jail as it also infringes his freedom of liberty and also is a kind of burden for the state to arrange the accommodation and food in the jail for him.

Author(s) Name: Kajal Tanwar (OP Jindal Global University, Sonipat)

[1] Section 2 in The Code Of Criminal Procedure, 1973

[2] State of Rajasthan, Jaipur vs Balchand, 1977 AIR 2447

[3] Moti Ram & Ors vs State Of M.P, 1978 AIR 1594

[4] Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, 1979 AIR 1369

[5] R.D. Upadhyay vs State Of A.P. & Ors


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