• The Law Gazette

Bail or Jail: Jurisprudence of Bail

The Law of Bail is an integral component of the Criminal law procedure and the right to bail is subject to statutory stipulation. The Code of Criminal Procedure, 1973 seeks to liberalise the bail provisions.

The term bail has not been defined under Code of Criminal Procedure, 1973 although the terms ‘bailable offence’ and ‘non-bailable offence’ have been defined in section 2(a) Cr.P.C. Law lexicon has defined Bail as security for the appearance of the accused person on giving which he is released during a pending trial or investigation. The monetary value of the security, known also as the bail bond, is set by the court having jurisdiction over the prisoner.

The term “bail” is derived from the French verb baillier, which means ‘to give or deliver’. It is also related to the Latin word bajulare which means ‘to bear a burden’. The concept of bail can be traced back to 400 BC, when Plato tried to create a bond with the church, for the release of Socrates. The modern bail system evolved from a series of laws originating in the middle ages in England. 

In English common law, law of bail is mainly concerned with values of personal liberty. The Magna Carta of 1215 said that no man could be taken or imprisoned without being judged by his peers or the law of the land. Then, in 1275, the Statute of Westminster was enacted which divided offences as bailable and non-bailable.

In India, bail or release on personal recognizance is available as a right in bailable offences not punishable with death or life imprisonment and only to women and children in non-bailable offences punishable with death or life imprisonment.

In Kamlapati v. State of West Bengal, the Supreme Court defines bail as “a technique which is evolved for effecting the synthesis of two basic concepts of human value, viz., the right of an accused to enjoy his personal freedom and the public’s interest on which a person’s release is conditioned on the surety to produce the accused person in the Court to stand the trial.”


In criminal jurisprudence, Article 21 of the Constitution is said to enshrine the most important human right. It has been liberally interpreted to mean something more than merely human existence and includes the right to live with dignity and decency. In India, the judiciary has played a major role in recognizing the various rights as a part of Article 21.

Article 21 of the Constitution of India provides protection against arbitrary arrest or illegal detention. An arrest or detention is a serious restriction on personal freedom guaranteed by the Constitution. Meaning of arrest can be comprehended as to deprive a person of his liberty by legal authority. It is important to point out here that even if a person has been arrested by the authority of law, he has to be confined in custody for the necessary period of investigation of a crime or where there is a chance of him absconding or tampering the course of justice. However, in order to protect the liberty of a person, the Constitution of India provides that a person even during the investigation of the crime can be released on bail and he can enjoy his personal freedom. Therefore, bail is an important factor in preserving the personal liberty of an individual.

In State of Rajasthan v. Balchand, the Supreme Court laid down that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or repeating offences or intimidating witnesses and the like.

In Mantoo Majumdar v. State of Bihar, the Apex Court once again upheld the undertrials right to personal liberty and ordered the release of the petitioners on their own bond and without sureties as they had spent six years awaiting their trial, in prison.

Though bail can be granted in both categories of offences, the grant of bail in non-bailable offences is by way of concession to the accused which could be awarded by the court at its discretion in order to protect the ‘interest of justice’.

The ultimate decision in matters of bail is always taken on the circumstances and facts of each case. It is for this reason that the discretion is vested in courts in matters of bail. “Discretion” means ‘sound discretion guided by rule of law’. The exercise of discretion has to be based on well-settled principles and in a judicious manner. The said discretion must not completely ignore the black letter of the law. It should be used in the interest of justice.

In Hussainara Khatoon v. State of Bihar, Supreme Court vehemently criticised the mechanical approach of judges in the exercise of their discretion in bail proceedings and inter-alia, observed

"...The system of bail operates very harshly against the poor and it is only the non-poor who are able to take advantage of it by getting themselves released on bail".

In Prahlad Singh Bhati v. NCT, Delhi, the Apex Court laid down well-settled principles having regard to the circumstances of each case. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the character and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, and similar other considerations.

The court in State v. Veerapandy stated that if a prima facie case has been made out by the prosecution and if there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail pending disposal of the case; unless extraordinary circumstances intervene favouring the accused. While dealing with the issue of grant of bail in non-bailable offences, it has been held that a person is entitled to his liberty even in case he/she is accused of a Non-Bailable offence and the right of an accused person should not be dealt with by a court in a superficial manner.

In Ratan Singh Nihal Singh & Ors v. The State, it has also been the opinion of courts that since right to liberty is an imperative right of a person, an application seeking Bail should not be decided in a mechanical and perfunctory manner. In Kashmira Singh v. State of Punjab, Justice Bhagwati, reiterated the view that ‘‘It would be travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found to have not been committed by him. Can the courts ever compensate him for incarceration which is found to be unjustified.’’


Anticipatory bail is a kind of bail which is granted before the person is arrested for their release. It is only issued by the Sessions Court and High Court. Even in cases for grant of anticipatory bail, the court has laid down some guidelines. In Gurbaksh Singh Sibbia and Others versus State of Punjab, a five-judge Constitution bench of the Supreme Court in 1980 laid down some guidelines for the high courts and the subordinate courts to follow while dealing with pleas for grant of anticipatory bail.

It had ruled that courts should use their discretion in granting anticipatory bail more objectively, especially since higher courts can always overrule the lower court’s order in case they find that discretion has not been applied properly. Justice V.R. Krishna Iyer in Gudikanti Narasimhulu and Others versus Public Prosecutor, High Court of Andhra Pradesh, observed: “Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely binges on the hunch of the bench, otherwise called judicial discretion.” But, in the same judgment, Justice Iyer cautioned that “deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution”.


In September 2015, then Union law minister D.V. Sadananda Gowda had penned a note on the need for a ‘Bail Act’ for India, something similar to “provisions in the United Kingdom and other countries”. The Law Commission of India in its 268th report released in May 2017, which was on the subject of bail explains the extent of the problem as “Even with the adoption of an elaborate procedure by the judiciary to deal with matters regarding grant of bail, the system is somehow unable to meet the parameters of an archetypal system giving rise to the notion that the bail system is unpredictable.”


The process of granting or refusing bail serves the twin object of social defence and individual freedom. Bail is the discretion of the judge and not the right of the accused. But by judicial activism it has been implicit in Article 21 as a component of personal liberty. The Bail system in India suffers from property-oriented approach as only the non-poor who are able to take advantage of it by getting themselves released on bail".

The scope of judicial discretion is limited in a bailable offence. But when a person is accused of a non bailable offence, his bail leaves wider scope for judicial discretion. The aim of this judicial discretion should always be in consonance with the personal liberty and equality of the individual provided under Articles 14, 19 and 21 of the Constitution of India. Thus, it is the time for the Constitution bench of the Supreme Court to look upon the issues of bail and frames workable guidelines so as to check misuse of the discretion.


This blog has been authored by Md. Ali Imran who is a 4th Year B.A., LL.B. (Hons.) student at Jamia Millia Islamia University, New Delhi.