PRE-TRIAL JUSTICE SYSTEM IN INDIA: LAW OF BAIL 

By Trisha Shreyashi Mishra

PRE-TRIAL JUSTICE SYSTEM IN INDIA: LAW OF BAIL

The law of bail, like any other branch of law, has its own philosophy and occupies an important place in the administration of justice. The concept of bail plays a paramount role in any judicial system. It exists in order to balance the conflicting interests i.e. presumption of innocence in favour of the accused and state’s interest in public order and protection of integrity of the investigation.

History and Origin of bail

Bail can be traced back to 399 BC when Plato attempted to create a bond for the release of Socrates.[1] The modern system of bail, however, is claimed to have evolved from laws originating from the medieval ages in England. Bail in medieval period, was initially introduced in the circuit courts in Britain.

The judges used to go on circuit periodically to different parts of the country. The intervals at which such courts were held were termed as ‘sessions’ and ‘quarter sessions ’. The need for judges travelling to different parts of the country became necessary on account of the fact that the then prisoners and under trials were kept in such inhuman conditions which resulted in numerous deaths and epidemics which further created an inhabitable place which was then called as “prisons”. This became a motivating factor to the unprejudiced and broad minded people who pushed for under-trials to be released on temporary basis until their accusations were proved. This move led gradually led to the development of the cherished Magna Carta, The Statue of Westminster and other subsequent legislations.

Magna Carta , the great English Charter or the sanction of English freedom was conceded by King John in 1215 under the dangers of a common war. By proclaiming the sovereign to be dependent upon the standard of law and recording the freedoms held by “free men,” the Magna Carta gave the establishment to singular rights in Anglo-American statute. Clause 39 of Magna Carta reads as – “No free men shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land”.[2]  Magna Carta ensured that the right to fair trial and liberty citizens were granted to all, so that no person is imprisoned without being judged by the law of land.

The Statute of Westminster which came into being in the year 1275 provided for division of crimes as bailable and non-bailable offenses.[3] This statute laid down the preliminary basis for determining the decisions of bail matters by judges and officials. By classifying offences into different categories this statute assited the judges and officials into arriving at a just and proper decision by following the due process.

The Habeas Corpus Act 1679 was introduced to stop excessively long delays between custody and bail hearings, and the Bill of Rights 1689 introduced a principle of proportionality to bail by stating that ‘excessive bail ought not be required’.[4] This became a precursor of the Eighth Amendment to the US Constitution. The last major shift in bail legislation before the modern system was the Bail Act 1898. The Bail Act allowed judges to dispense with sureties in situations where they determined that requiring payments for bail would inhibit the course of justice. This largely benefitted many poorer criminals who would languish in jail for petty crimes just because they could not afford bail bonds.[5]

Evolution of Bail in India

The ethos and injunctions of ancient Hindu jurisprudence required an expedient disposal of disputes by the functionaries responsible for administration of justice. This gave rise to judicial interposition which was framed to ensure that an accused was not unnecessarily detained or incarcerated.

Probably the first recorded instance of bail in India was around 17th century when an Italian traveler Manucci, falsely accused of theft, was restored to his freedom by the Punjab ruler after furnishing the surety.[6] This was also probably the first instance where a person was released upon furnishing surety. Gradually, the practices of Britishers were recognized and common law system was adapted during the British Raj. The gradual control of East Indian Company over the Nizamat Adalats and Faujdari courts paved the gradual inroads of English criminal law in the Indian judicial system. The criminal courts used 2 forms of bail known as ‘Zamanat’ and ‘Muchalka’. The judicial release on surety was termed as ‘Zamanat’ whereas an obligatory, penal bond procured mandatorily was termed ‘Muchalka’.

In 1861, the first Code of Criminal Procedure statutorily transposed the British system of Bail in Indian Criminal Justice System. It was re – enacted later in 1872 & 1898 wherein the judicial magistrate or a sessions court were granted power to grant bail if the investigation related to crime was not completed within 24 hours.[7]

However, the genesis of the bail in its present form can be culled out from the discussions between Shri H.S Gour and Dr. Mian Sir Muhammad Shafi during Legislative Assembly Debates [February 12, 1923]. It was during this debate that these two leading authorities went into discussion on bail and the concept of ‘reasonableness’ in grant/ denial of bail under Indian Criminal Justice system.[8] It was observed that the scale of bail for the accused stands on two major principles:

  1. Presumption of innocence until the guilt is proved beyond reasonable doubt.
  2. Benefit of doubt to the accused

What is bail?

Simply put bail is a means to deliver an arrested person to his sureties, on their giving security for his appearance at the time and place as designated by the court granting bail. Halsbury’s Laws of England provides that bail in criminal proceedings means bail granted in or in connection with proceedings for an offence to a person accused or convicted. It further states that – “The effect of granting bail is not to set the defendant (accused) free, but to release him from custody of 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 then be imprisoned.”[9]

Bail is the right of a person arrested in case of a bailable offence, and this doctrine puts a protective check against arbitrary executive actions and prevents encroachment over an individual’s personal liberty. The present Code of Criminal Procedure which was introduce in the year 1973 carries three forms of bail which are as follows:

a. Default Bail

b. Anticipatory Bail

c. Regular Bail

Default Bail/ Statutory Bail

Default bail is to be granted if the investigation is not completed/police report is not filed within 60 or 90 days as the case may be. This provision was introduced to deter investigational and procedural delays and protect the right to personal liberty of the person, as guaranteed under Article 21 of the Constitution.

Section 167(2) makes it clear that that if the charge sheet of a case is not submitted within 60 days or 90 days (as the case maybe), the accused is entitled to bail.[10] Recently the Hon’ble Supreme Court in Bikramjit Singh Vs. State of Punjab, [(Criminal Appeal No. 667 of 2020)] clarified that right to default bail is not merely a statutory right but a fundamental right granted to an Accused under Article 21 of the Indian Constitution.

Anticipatory Bail

Though the Cr.P.C does not define Anticipatory bail, it is usually granted in anticipation/ apprehension of arrest. The High Court or the Court of Sessions is empowered to grant anticipatory bail. The  Hon’ble Supreme Court in in Gurbaksh Singh Sibbia Etc. vs State of Punjab, 9 April, 1980, laid down the groundwork by observing that the Courts, while deciding an application for Anticipatory Bail, must balance personal liberty of an accused and investigational powers of the police.

The proposal of anticipatory bail was first initiated by the joint select committee but was eventually referred back to Law commission for reconsideration. Law Commission in its 48th Report noted that at times, there are false and frivolous implications made against people merely to inflict harm and disgrace to their dignity and for purpose of getting them harassed by detention in jail for some days.[11] Anticipatory bail or Pre-Arrest bail u/s 438 Cr.P.C has been a viable solution to fair trial and has also prevented the misuse of criminal justice system.

Regular Bail

Regular bail is granted after arrest to ensure an accused in released from the custody of the police. Section 436 provides for bail in bailable offences [matter of right] and Section 437 provides for bail in non–bailable offences [matter of discretion]. Additionally, Section 439 gives unfettered discretion to the High Court or Court of Session to admit an accused person to bail. It is imperative to mention here that the discretion ought to be exercised judicially, subject to settled guidelines with due application of judicious mind.

The judicial discretion summarily stands on the cardinal principle that the accused is to be presumed innocent until proven guilty and several other factors like the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant jumping the bail, economic capability, flight risk, tampering the evidence, the larger interests of the public or the State etc.

Grant and refusal of bail

The grant or refusal of bail is subjected to prima facie satisfaction of the court that the accused has committed an offence. This is coupled with several factors such as severity of punishment, gravity of allegations, probability of tampering with evidence, absconding or committing offences, character, behavior, means, position and standing of the accused, and public interest. The courts weighs in all the factors while granting or refusing bail to an accused.

Madan Lokur J. (retd.) in the case of Dataram Singh Vs The State of Uttar Pradesh, (2018) 3 SCC 22 observed that the conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The 203rd report of Law Commission puts checks on the powers of the authorities to impose restrictions on the accused while enlarged on bail and argues that any bail condition must not unreasonably violate the rights guaranteed by the Constitution.[12]

Additionally, in cases of destitute or poor people, demand of sureties or bail amount should be liberally decided as they are economically incapable to either tamper evidences or influence witness, or abscond from the investigation. [13]

Law Commission Reports on bail

The 36th Report of Law Commission of India while discussing upon this matter, observes that one of the objects of bail is to secure attendance but other considerations of nature of accusation, evidence, punishment and independence of surety cannot be ruled out or ignored.[14]

The 41st Report of the Law Commission states that even in respect of graver offences, the Sessions Court and the High Court ought to exercise strict discretion in the manner of granting bail. .[15] This suggestion of the Law Commission has been taken into account while drafting the 1973 Code by adding it to it ‘operational aspects’ of the system of bail. The Commission did not accept the proposal that those who once had been accused of having committed serious offences punishable with death or imprisonment for life, if they are accused again of having committed any other serious offence, the grant of bail may be refused. 

The 78th Report of Law Commission further observed that the principle to guide the Court is the probability of the accused appearing to take his trial, and not his pre – supposed guilt or innocence.[16] And, even if the accused has been previously convicted there is no bar to grant bail on mere apprehension that the accused person is likely to abscond and misuse or abuse the privilege during bail.

Benjamin Cardozo, Former Associate Justice of the Supreme Court of the United States however, puts forth the authority of court to recognize and acknowledge grant of bail irrespective of previous criminal records, accusations and past convictions, subject to conditions. The aforementioned comment of Benjamin Cardozo has been reiterated by Krishna Iyer J. in Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240.

Bail during COVID–19

The present pandemic situation demands social distancing and superior hygiene which is an uphill task in the jail. Keeping in the mind the ever-increasing population of undertrials and prisoners in the Indian prisons, the Hon’ble Supreme Court passed an order dated 23.03.2020 directing all states to constitute a High-Powered Committee so as to decongest the prisons to contain the spread of coronavirus.[17] In accordance with the direction of the apex court, many states framed their own committees and based on the recommendations, many under-trial prisoners were let out on parole. However, recently many states have arrived at a decision to end the order granting parole to under trials. These views of have been criticized by many human rights activists etc.

Conclusion

From the above discussions it becomes clear that bail is granted at discretion of the court once the court is satisfied that the conditions imposed on the accused ensures that both the ends are met in interests of justice (even if the accused has a previous record). This approach has also been upheld by the apex courts in several landmark cases [18]

The guiding principle while granting bail, as evident from the judgments & discussions above is that bail is rule and jail is exception. This is by far the most logical and consistent adaptation of the principle of presumption of innocence during the pre-trial stage. This principle is enshrined in Article 11 (1) of the Universal Declaration of Human Rights, 1948 (UDHR), Article 6 (2) of the European Convention on Human Rights (hereinafter ECHR), Article 48 (1) of the Charter of Fundamental Rights of The European Union (hereinafter EU Charter) and Rule 111 of the United Nations Standard Minimum Rules for The Treatment of Prisoners also known as the Nelson Mandela Rules. This stance has been reiterated by the Law Commission of India, in its Report No. 268, in May 2017.[19]

Thus, the courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.  Bail is always the rule and its exception ought to be carved out with utmost judicial caution and self-restraint. Bail not only is a symbol of due process in our country but it also embarks and repudiate the concept of reformative criminal jurisprudence.


[1] William T. Braithwaite, An Introduction for Judges and Lawyers to Plato’s Apology of Socrates, 25 Loy. U. Chi. L. J. 507 (1994). Available at: http://lawecommons.luc.edu/luclj/vol25/iss4/4.

[2] Magna Carta, 1215 and beyond. Available at: https://www.nationalarchives.gov.uk/education/resources/magna-carta/.

[3] The Statute of Westminster, The First (1275). Available at: https://www.legislation.gov.uk/aep/Edw1/3/5/data.pdf.

[4] Habeas Corpus Act, 1679. Available at: https://www.legislation.gov.uk/aep/Cha2/31/2/data.pdf. See also, Bill of Rights, 1688. Available at: https://www.legislation.gov.uk/aep/WillandMarSess2/1/2/introduction.  

[5] F. Pollock & F. Maitland, The History of English Law (2d Ed. 1898).

[6] J.N. Sarkar, Mughal Administration in India ,108 (1920).

[7] Act of 1861. Available at: http://legislative.gov.in/sites/default/files/legislative_references/1861.pdf. See also, Code of 1898. Available at: http://www.bareactslive.com/LCR/LC037.HTM.

[8] Legislative assembly debates – Vol. III, no. 35, dated 12th Feb 1923.

[9] Halsbury’s Laws of England, Vol II para 166 ( 4th Edn., 1998)

[10] S. Kasi Vs. State, (AIR 2020 SC 2921)].

[11] Law Commission of India, 48th Report on CrPC, July 1972. Available at: https://lawcommissionofindia.nic.in/1-50/Report48.pdf.

[12] Law Commission of India, 203rd Report, December 2007. Available at: https://lawcommissionofindia.nic.in/reports/report203.pdf.

[13] [Moti Ram and Ors. v. State of Madhya Pradesh, (1978) 4 SCC 47, Hussainara Khatoon V. State of Bihar, 1979]

[14] Law Commission of India, 36th Report, December 1967. Available at: https://lawcommissionofindia.nic.in/1-50/Report36.pdf.

[15] Law Commission of India, 41st Report, September 1969. Available at: https://lawcommissionofindia.nic.in/1-50/Report36.pdf.

[16] Law Commission of India, 78th Report, February 1979. Available at: https://lawcommissionofindia.nic.in/51-100/Report78.pdf.

[17] Suo Motu Writ Petition (C) No. 1/2020 In Re: Contagion of COVID-19 19 Virus in Prisons. Available at: https://main.sci.gov.in/supremecourt/2020/9761/9761_2020_1_8_21570_Order_23-Mar-2020.pdf.

[18] Babu Singh And Others vs The State Of U.P, (1978)1 SCC 579; Bhadresh Bipinbhai Sheth V. State of Gujarat & Ors., (2016)1 SCC 152; Dataram Singh Vs The State Of Uttar Pradesh, supra; Sunil Rathi V. State of UP, 2004 (3) ACR 2545.

[19] Law Commission of India, Report No. 268, May 2017. Available at: https://lawcommissionofindia.nic.in/reports/Report268.pdf.


The author has interned with us for the month of October and is a 5th year law student from School of Law, KIIT University, Odisha. During the internship she has gained hands on experience in the domain of criminal and commercial law.

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