PROJECT REPORT

On
BAIL AND ITS PROCESSING UNDER CODE
CRIMINAL PROCEDURE,1973.

LEGAL INTERNSHIP PROGRAM

BY

D.SHIVANANDINI

17FLICHH010012

UNDER

NIRANJAN & ASSOCIATES

HIMATNAGAR
HYDERABAD

FACULTY GUIDE
Dr. Madhuri Irene

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 A REPORT
ON
BAIL AND ITS PROCESSING UNDER CODE
CRIMINAL PROCEDURE,1973.

BY
D.SHIVANANDINI
17FLICHHO10012

A REPORT SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENT

OF BBA.LLB (HONS.) PROGRAM OF ICFAI LAW SCHOOL, IFHE HYDERABAD .

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 ACKNOWLEDGEMENT

I wish to offer my earnest thanks to N.NAVEEN KUMAR Advocate (NIRANJAN &

ASSOCIATES) for the consistent guidance and enormous help and by providing me with the
case diaries and files which are very helpful in both understanding and executing this report.

My sincere thanks to Dr.A.V.Narasimha Rao, Director, Faculty of Law, IFHE for giving me
such an open door.

I would like to thank Dr. Madhuri Irene , Faculty of Law, IFHE. For directing me all
through the Internship program.

I would also like to thank all the staff at the place of NIRANJAN & ASSOCIATES office.

And furthermore I want to thank every one of the people who have helped me all through my
temporary position to finish my internship report.

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 TABLE OF CONTENTS

S.NO TOPIC PAGE NUMBER

1 ABSTACT………………………………………………………………………………5

2 INTRODUCTION………………………………………………………………….....6-7

3 HISTORY OF BAIL....................................................................................................

4 TYPES OF BAIL.........................................................................................................

5 BAIL UNDER CRIMINAL PROCEDURE CODE.................................................

6 BAILABLE OFFENCES……………………………………………………….

7 NON BAILABLE OFFENCES………………………………………………..

8 CANCELLATION OF BAIL……………………………………………………

9 NEED OF BAIL...........................................................................................................

10 LIST OF CASES...................................................................................................

11 CONCLUSION..............................................................................................................

12 SUGGESTIONS AND RECOMMENDATIONDS……………………………………...

13 REFERENCES………………………………………………………………….....….

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 THE FIRM

NIRANJAN & ASSOCIATES is a reputed firm and all the advocates practicing in this firm
are highly experienced. My project guide N. NAVEEN KUMAR has been practicing law as
profession for over 33 years and has created a great reputation as a renowned civil and
criminal Lawyer. He is highly experienced in the field of law and has filed numerous cases.

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 ABSTRACT

The primary object, to detain and arrest an accused person is to ensure his appearance at the
time of trial and to insure that if in case he/she is sentenced guilty he is available to receive
the consequence. A common question arises that if the presence of accused before the court
of law could reasonably be ensured without captivating him, it would be unjust and unfair to
deprive the accused of his liberty during the pendency of the criminal proceeding against
him. The release on bail is very important to an accused because the consequence of only pre-
trial detention are itself very critical as accused will be subjected to the psychological and
physical deprivation of jail life, the accused will lose his/her job, prevents him from
effectively contributing to the preparation of his defence and most importantly the burden of
detention frequently falls heavily on the innocent members of his family. The project briefly
tries to discuss about the effects of bail laws in India to subjects, by briefly emphasizing on
the history of bail system to the current prevailing practice in India and the practice and
procedure under criminal procedure code .

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 INTRODUCTION

Objectively analyzed the criminal jurisprudence adopted by India is a mere reflection of the
Victorian legacy left behind by the Britisher’s.1 The passage of time has only seen a few
amendments once in a while to satisfy pressure groups and vote banks. Probably no thought
has been given whether these legislations, which have existed for almost seven decades, have
taken into account the plight and the socio-economic conditions of 70% of the population of
this country which lives in utter poverty. India being a poverty stricken developing country
needed anything but a blind copy of the legislations prevalent in developed western countries.

The concept of bail, which is an integral part of the criminal jurisprudence, also suffers from
the above stated drawbacks. Bail is broadly used to refer to the release of a person charged
with an offence, on his providing a security that will ensure his presence before the court or
any other authority whenever required.

Traditionally, bail is some form of property deposited or pledged to a court to persuade it to

release a suspect from jail, on the understanding that the suspect will return for trial or forfeit
the bail (and possibly be brought up on charges of the crime of failure to appear). In some
cases bail money may be returned at the end of the trial, if all court appearances are made,
regardless of whether the person is found guilty or not guilty of the crime accused. If a
bondsman is used and a surety bond has been obtained, the fee for that bond is the fee for the
insurance policy purchased and is not refundable.

In some countries granting bail is common. Even in such countries, however, bail may not be
offered by some courts under some circumstances; for instance, if the accused is considered
likely not to appear for trial regardless of bail. Legislatures may also set out certain crimes to
be not bailable, such as capital crimes.

Research Methodology:

For this study ,only secondary sources-doctrinal research have been referred to ,secondary
sources includes books, articles and journal publications, various websites ,blogs and online
available materials have also been referred this study

1 Law lexicon by Ramanth Iyer, (3rd ed).

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Meaning of Bail:

Bail, in law, means procurement of release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to legal
authority.

According to Black's Law Dictionary2, what is contemplated by bail is to "procure the release
of a person from legal custody, by undertaking that he/she shall appear at the time and place
designated and submit him/herself to the jurisdiction and judgment of the court."

The surety is termed ‘bail’ because the person arrested or imprisoned is placed in the custody
of those (surety) who find themselves or become bailer for his due appearance when required.
Surety must be those persons who have authority to bail the arrested person to appear before
the court on a certain date. It is upon the bonds of those sureties that the person arrested or
imprisoned is bailed, i.e., set at liberty until the day appointed for his appearance. The effect
of granting bail is not to set the prisoner free from jail or custody, 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 in the court at a specified time and place.

Bail in India:

The term Bail is not defined in neither The Criminal Procedure Code nor the Indian Penal
Code.

Only the terms bailable and non bailable offences are defined in India. Section 2(a) of Crpc
coins bailable offence as an offence which is shown as bailable in the First schedule or which
is made Bailable by any other law and non bailable offence means any other offences.
Section 450 set out the provisions for the grant of bail and bonds in criminal cases. The
amount of security that is to be paid by the accused to secure his release has not been
mentioned in the Cr. P. C. Thus, it is the discretion of the court to put a monetary cap on the
bond. Shockingly, it has been seen that courts have not been touchy to the monetary situation
of the weaker segments of society. The preposterous and over the top sums requested by the
courts as bail bonds plainly demonstrate their insensitive mentality towards poor people.

2 Black's Law Dictionary 177 (4th ed.)

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 History of Bail
The concept of bail first shows its roots back in the 399 BC. It is said that it was Plato who
tried to create a bond for the release of Socrates. It is said that the modern Bail is originated
in England. Bail laws in the United States became out of a long history of English statutes
and strategies. Amid the provincial time frame, Americans depended on the bail structure that
had created in England many years prior. At the point when the settlers proclaimed freedom
in 1776, they never again depended on English law, however detailed their own approaches
which intently paralleled the English convention. In endeavoring to comprehend the
significance of the American protected bail arrangements and how they were planned to
supplement a bigger statutory bail structure, learning of the English framework and how it
was created.

Evolution:

There existed an idea of circuit courts amid the medieval circumstances in Britain. Judges
used to intermittently go on circuit to different parts of the nation to choose cases. The terms
Sessions and Quarter Sessions are subsequently gotten from the interims at which such courts
were held. In the in the interim, the under trials were kept in jail anticipating their trials.
These detainees were kept in exceptionally unhygienic and insensitive conditions this was
caused the spread of a considerable measure of illnesses. This fomented the under trials, who
were thus isolated from the blamed. This prompted their discharge on their securing a surety,
so it was guaranteed that the individual would show up on the selected date for hearing. On
the off chance that he didn't seem then his surety was held subject and was made to confront
trial. Gradually the idea of money related bail appeared and the said under trials was made a
request to give a financial security, which was at risk to get relinquished on non-appearance.
The first step was taken in granting rights to citizens. It said that no man could be taken or
imprisoned without being judged by his peers or the law of the land. A Magistrate shall
discharge prisoners from their Imprisonment taking their Recognizance, with one or more
Surety or Sureties, in any sum according to the Magistrate's discretion, unless it shall appear
that the Party is committed for such matter offenses for which by law the prisoner is not
bailable there are different grounds for refusing the right to bail depending on the type of
offence, for all imprison able offences the two basic grounds are as set and if the court is
satisfied that there are "substantial grounds for believing" that the defendant if released on
bail will commit an offence while on bail, bail may be refuse.
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 TYPES OF BAIL
Station Bail

When a Garda brings you into custody to a Garda station, the station may release you on bail
either with or without sureties. The amount of money specified in the bail bond is set by the
Garda in charge of the station. You must enter into a bond to appear before the District Court
on a specific date.

Court Bail

When you are brought before the District Court, the judge may either remand you in custody
or release you conditionally when you enter into a bail bond with or without surety. The
amount of money specified in the bail bond is set by the judge.

If you are granted bail you (or your surety) must pay into court at least one-third of the
amount of money promised in the bail bond. This money will be returned to you if you
appear in court as promised.

The Director of Public Prosecutions can appeal the decision to grant you bail or the
conditions of your bail to the High Court. If the District Court refuses bail, you will be
remanded in custody. You can appeal the decision to the High Court

High Court Bail

If you are charged with treason, war crimes, murder, attempt to murder, conspiracy to murder
or piracy and genocide, the District Court does not have the power to grant you bail. Certain
offences under the Offences Against the State Act, 1939 and the Official Secrets Act, 1963
also rule out the granting of bail in the District Court.

Anticipatory Bail:

When any person apprehends that there is a move to get him arrested on false or trump up
charges, or due to enmity with someone, or he fears that a false case is likely to be built up
against him, He has the privilege to move the court of Session or the High Court under area
438 of the code of Criminal Procedure for give of bail in case of his capture, and the court
may, on the off chance that it suppose fit, coordinate that in case of arrest, he should be
discharged on bail.

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Factors to determine the bail :

(1) Ability of the accused to give bail

(2) Nature of offense
(3) Penalty for the offense charged
(4) Character and reputation of the accused
(5) Health of the accused
(6) Character and strength of the evidence
(7) Probability of the accused appearing at trial
(8) Forfeiture of other bonds
(9) Whether the accused was a fugitive from justice when arrested

(10) That the accused is under bond for appearance at trial in other cases should
also be considered.

(11) Likeliness to flee

(12) Likely to interfere with evidence, witnesses or jurors

(13) Whether you have ever breached a bail bond before

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 BAIL UNDER CRIMINAL PROCEDURE CODE

Section 436 of the Code provides for release on bail in cases of bailable offenses. Section 436
provides that when person not accused of a non-bailable offense is arrested or detained he can
be detained as right to claim to be released on bail.

This section entitles a person other than the accused of a non-bailable offense to be released
on bail, it may be recalled that S. 50(2) makes it obligatory for a police officer arresting such
a person without a warrant to inform him his right to be released on bail.

Section 436 (1) of the Code signifies that release on bail is a matter of right, or in other
words, the officer-in-charge of a police station or any court does not have any discretion
whatsoever to deny bail in such cases. The word “ appear” in this sub- clause is wide enough
to include voluntary appearance of the person accused of an offense even where no summons
or warrant has been issued against him. There is nothing in S. 436 to exclude voluntary
appearance or to suggest that the appearance of the accused must be in the obedience of a
process issued by the court. The surrender and the physical presence of the accused with the
submission to the jurisdiction and order of the court is judicial custody, and the accused may
be granted bail and released from such custody.

The right to be released on bail under S. 436(1) cannot be nullified indirectly by fixing too
high amount of bond or bail-bond to be furnish by the person seeking bail. Section 440(1)
provides 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. Further S. 440(2) empowers the
High Court or the Court of Sessions may direct that the bail required by a police officer or
Magistrate be reduced.

Sub-section (2) of S. 436 makes a provision to effect that a person who absconds or has
broken the condition of his bail bond when released on bail is a bailable case on a previous
occasion, shall not as of right to be entitled to bail when brought before the court on any
subsequent date even though the offense may be bailable.

Of course, if facts are brought to the notice of the court which go to show that having regard
to the condition and background of the accused his previous record and the nature and
circumstances of the offense, there may be a substantial risk of his nonappearance at the trial,
as for example, where the accused is a notorious bad character or confirmed criminal or the
offense is serious the court may not release the accused on his personal bond and may insist
on bail with sureties. But in the majority of cases, considerations like family ties
and relationship, roots in the community, employment status etc. may prevail
with the court in releasing the accused on his personal bond and particularly in
cases where the offense is not grave and the accused is poor or belongs to a
weaker section of the community, release on personal bond could, as far as
possible, be preferred. But even while releasing the accused on personal bond it
is necessary to caution the court that the amount of the bond which it.

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Section 436A . Maximum period for which an under trial prisoner can be
detained :

The new provision Section 436A was introduced in order to solve the problems of ‘under
trials’ who were languishing in jails as they will now be given an opportunity to be set free
instead of endlessly waiting for their trial to take place. This move has been made due to a
faulty criminal justice system and provides a makeshift method of providing justice and relief
to under trial prisoners. This seems to suggest that the Legislature and the Government have
accepted the existence of the faulty system and their inability to do anything about it. For this
purpose section 436 A was inserted.

According to S. 436-A, a person who has undergone detention for a period extending upto
half of the maximum period of imprisonment imposed for a particular offense, shall be
released on her/his personal bond with or without sureties. The procedure provided is that the
Court has to hear the Public Prosecutor and give its decision with reasons in writing. The
Court may release the applicant, or if not satisfied may order for the continued detention of
the applicant. However, no prisoner can be detained for a period longer than the maximum
period of imprisonment provided. The exception to the section is that it is not applicable to
offenders who have been sentenced to death.

Moving onto the de-merits of the provisions itself, S. 436-A gives discretion to the Court to
set the prisoner free or to make him/her continue imprisonment. There is no mention of any
applications having to be filed under the section. The first part of the section states that any
prisoner who has served more than half the term of his/her imprisonment 'shall' be released.
However, the proviso puts a restriction on the mandatory provision by giving discretionary
powers to the courts. This raises questions regarding the implementation of the provision.
There is every chance that a prisoner may be sent back to jail to serve a period longer than the
half term of his/her sentence. Till the Judges give their written reasons for the same, one will
not know on what grounds a continuation of the term can be ordered as the section does not
provide any guidelines.
Section 437 of the Code provides for release on bail in cases of non-bailable offenses. In such
cases, bail is not a matter of right. Court has sufficient discretion to deny or to grant bail. First
Schedule to the Code provides the list of bailable and non-bailable offenses. Further cases
often arise under S. 437, where though the court regards the case as fit for the grant of bail, it
regards imposition of certain conditions as necessary in the circumstances.
To meet this need sub-section (3) of S. 437 provides:

When a person accused or suspected of the commission of an offense punishable with

imprisonment which may extend to seven years or more or of an offense under Chapter VI,
Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abatement of, or
conspiracy or attempt to commit, any such offense, is released on bail under subsection (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.

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It will be noticed that:

1) The power to impose conditions has been given to the court and not to any police officer.
2) The power to impose conditions can only be exercised.

i) Where the offence is punishable with the imprisonment which may extend to seven years
or more or

ii) Where the offence is one under Chapter VI (Offences against the State), Chapter XVI
(offences against the human body), or Chapter XVII (offences against the property) of I.P.C,
or

iii) Where the offence is one of the abetment of or conspiracy to or attempt to commit any
such offence as mentioned above in (i) and (ii).

Anticipatory bail

In simple terms "Anticipatory bail" means, "bail in anticipation of arrest". Anticipatory bail a
term not found in any Indian legislation refers to a pre-arrest order passed by a court that says
that in the event a person is arrested, he is to be granted bail.

Section 438 of Criminal Procedure Code states as follows;

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

2. When the High Court or the Court of Sessions 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 think fit, including(a) a condition that the person shall make himself available for
interrogation by a police officer as and when required; (b) 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; (c) a condition that the person shall not leave India without the previous
permission of the Court. (d)such other condition as may be imposed.

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
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custody of such officer to give bail, he shall be released on bail. 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.

It should be noted that where the High Court or Court of Sessions has not passed any interim
order under this section or has rejected the application for grant of anticipatory bail, it shall
be open to an officer in charge of a police station to arrest, without warrant the applicant on
the basis of the accusation apprehended in such application.

The anticipatory bail can not be granted after a Magistrate has issued warrant. The presence
of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the
application and passing of final order by the Court, if on an application made to it by the
Public Prosecutor, the Court considers such presence necessary in the interest of justice.

Anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of
that duration the Court granting anticipatory bail should leave it to the regular Court to deal
with the matter on an appreciation of evidence placed before it after the investigation has
made progress or the charge-sheet is submitted.
Anticipatory bail can not be granted in all cases as a matter of course. The exercise of power
has to be invoked in exceptional case only. While considering the prayer for grant of
anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should
be caused to the free and full investigation and there should be prevention of harassment and
unjustified detention of the accused.

Anticipatory bail can not be granted as a matter of right. Applicant can approach High Court
for grant of anticipatory bail even if his application is rejected by the Court of Sessions, but
not vice versa. Where a matter of dowry death is under investigation it is not prudent for High
Court to grant anticipatory bail. If the application for anticipatory bail is rejected the second
application is not barred.

An Anticipatory bail can be granted by:

It can be given when a person apprehends arrest for a non-bailable offence (refer to the First
Schedule of CrPC for the list of offences labelled thus). It is given in those circumstances

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when the court believes that there is a possibility that the accused has been falsely implicated
and that his freedom will not hamper the investigation of the crime. Having said that, bail
granted under s. 438 may be cancelled at any time if the investigation is hampered or if a
condition under the order is violated by the arrested person. It is important to note that the
attendance of the person apprehending arrest is compulsory at the final hearing.

An Anticipatory baile is not granted:

There are certain circumstances where applications for anticipatory bail are normally refused.
These include:
• For offences/contraventions under certain specific statutes like the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Defence of India Rules, 1971.
.The provisions of s. 438 are normally refused to those accused of particularly heinous
offences like murder and rape.

An Anticipatory Bail is obtained by:

One can avail the provisions of s. 438 by filing an application for the same in the High Court
or Sessions Court. If an application in the Sessions Court is rejected, the person may file the
same in the High Court, but not vice versa. The application may be preferred to the relevant
court in whose jurisdiction the accused was purported to commit the offence or the
jurisdiction in which the arrested person apprehends arrest.

Need for such a provision:

The main objective behind such a provision is to prevent those falsely implicated in criminal
cases to be subject to jail-time.
The main factors considered while granting prayers for anticipatory bail are that:

• The full and free investigation of the offence should not be hampered.
• The accused must not be subject to harassment and unjustified detention.

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 BAILABLE OFFENCES
When any person accused for a 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. In case of a bailable offence bail is a matter of right. If such officer
or Court, thinks it fit such person maybe released on a personal bond without sureties. In case
of bailable offence, one has to only file the bail bonds and no application is required. Bailable
offence means an offence which is made bailable by law for the time being in force. Bailable
offences are those offences in which the accused is having a matter of right to be released on
bail.

Following are the few bailable offences in India:

• IPC Section 144: Joining an unlawful assembly armed with any deadly weapon

• IPC Section 147: Rioting

• IPC Section 148: Rioting with carrying arms and deadly weapons.

• IPC Section 167: Public servant framing an incorrect document with intent to cause injury

• IPC Section 171: Bribery

• IPC Section 216: Harboring robbers and dacoits

• IPC Section 259: Having possession of counterfeit government stamp

• IPC Section 272: Adulterating food or drink intended for sale

• IPC Section 284: Dealing with any poisonous substance so as to endanger human life etc.

• IPC Section 285: Dealing with fire or any combustible matter so as to endanger human life
etc.

• IPC Section 304: Causing death by rash or negligent act

• IPC Section 312: Causing miscarriage

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• IPC Section 323: Voluntarily causing hurt

• IPC Section 324: Voluntarily causing hurt by dangerous weapons or means

• IPC Section 325: Voluntarily causing grievous hurt

• IPC Section 336: Doing any act which endangers human life or the personal safety of others

• IPC Section 337: Causing hurt by an act which endangers human life

• IPC Section 341: Wrongfully restraining any person

• IPC Section 342: Wrongfully confining any person

• IPC Section 356: Assault or criminal force in attempt to commit theft of property

• IPC Section 363: Kidnapping

• IPC Section 370: Buying or disposing of any person as a slave

• IPC Section 376: Intercourse by public servant with women in his custody

• IPC Section 385: Attempting to commit extortion

• IPC Section 417: Cheating

• IPC Section 447: Criminal trespass

• IPC Section 448: House trespass

• IPC Section 465: Forgery

• IPC Section 477: Falsification of accounts

• IPC Section 489: Possession of forged or counterfeit currency or bank notes

• IPC Section 500: Defamation

• IPC Section 504: Insult intended to provoke breach of the peace

• IPC Section 506: Criminal intimidation to cause death

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 NON BAILABLE OFFENCES
In case the court to grant or refuse bail and application has to be made in court to grant bail a
person is accused of a non-bailable offence it is a matter of discretion of.

1. When a person accused of or suspected of, the commission of any 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 other than the High Court or Court of Session, he may be released on
bail, but:

i. Such person shall not be 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) as
above, 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 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 he 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 non-bailable offence, but that there are sufficient grounds for further inquiry into
his guilt, the accused shall, subject to the provision of section 446-A 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.

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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 6,
Chapter 16 or Chapter 17 of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy
or attempt to commit, any such offence, is released on bail under sub-section (!), 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, in 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 if 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. 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 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.

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 CANCELLATION OF BAIL

An accused is free on bail as long as the same is not crossed out. The High Court or Court of
Session may coordinate that any individual who has been discharged on bail be arrested and
submit him to authority on an application moved by the complainant or the prosecution.

Factors for considering the cancellation of Anticipatory bail :

• The nature and gravity or seriousness of allegation as told by the applicant

• The predecessors of the candidate including the reality with reference to whether he
has, on conviction by a Court, already experienced detainment for a term in regard of
any cognizable offense;
• The conceivable object of the allegation to insult the reputation of the applicant by
having him arrested

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 NEED OF BAIL

Before actually determining the place of bail within human rights framework as conferred by
the Constitution, it is important to examine the object and meaning of bail, such that an
analysis of these fundamental objects and change therein may reveal a change. The object
detention of an accused person is primarily to secure her/his appearance at the time of trial
and is available to receive sentence, in case found guilty. If his/her presence at the trial could
be reasonably ensured other than by his arrest or detention, it would be unjust and unfair to
deprive the accused of his liberty during pendency of criminal proceedings.

Thus it is important to note the relevant provisions enshrined in the Universal Declaration of
Human Rights:-

Article 9- No one shall be subjected to arbitrary arrest, detention or exile.

Article 10- Everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.

Article 11(1)- Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the guarantees
necessary for his defense.

There are thus several reasons which have been enumerated as to why bail ought to be
allowed to prevent pre-trial detention.

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RIGHT TO BAIL AND ARTICLE 21'S RIGHT TO PERSONAL
LIBERTY
The right to bail is concomitant of the accusatorial system, which favors a bail
system that ordinarily enables a person to stay out of jail until a trial has found
him/her guilty. 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. The right of police to oppose bail, the absence of legal aid
for the poor and the right to speedy reduce to vanishing point the classification
of offences into bailable and non-bailable and make the prolonged incarceration
of the poor inevitable during the pendency of investigation by the police and
trial by a court.
The fact that under trials formed 80 percent of Bihar's prison population, their
period of imprisonment ranging from a few months to ten years; some cases
wherein the period of imprisonment of the under trials exceeded the period of
imprisonment prescribed for the offences they were charged with-
these appalling outrages were brought before the Supreme Court in
Hussainara Khatoon v. State of Bihar3
Justice Bhagwati found that these unfortunate under trials languished in prisons
not because they were guilty but because they were too poor to afford a bail.
In Mantoo Majumdar v. State of Bihar4
The Apex Court once again upheld the under trials 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. The court deplored the
delay in police investigation and the mechanical operation of the remand
process by the magistrates insensitive to the personal liberty of the under trials,
remanded by them to prison. The Court deplored the delay in police
investigation and the mechanical operation of the remand process by the
magistrates insensitive to the personal liberty of under trials, and the magistrate
failure to monitor the detention of the under trials remanded by them to prison.
The travails of illegal detainees languishing in prisons, who were uniformed, or
too poor to avail of, their right bail under section 167 Cr.P.C. was further
brought to light in letters written to Justice Bhagwati by the Hazaribagh Free

3 AIR 1979 SC 1360

4 AIR 1980 SC 846

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Legal Aid Committee in Veena Sethi v. State of Bihar5. The court recognized
the inequitable operation of the law and condemned it- "The rule of law does
not exist merely for those who have the means to fight for their rights and very
often for perpetuation of status quo... but it exist also for the poor and the
downtrodden... and it is solemn duty of the court to protect and uphold the basic
human rights of the weaker section of the society. Thus having discussed
various hardships of pre- trial detention caused, due to unaffordability of bail
and unawareness of their right to bail, to under trials and as such violation of
their right to personal liberty and speedy trial under Article 21 as well as the
obligation of the court to ensure such right. It becomes imperative to discuss the
right to bail and its nexus to the right of free legal aid to ensure the former under
the Constitution- in order to sensitize the rule of law of bail to the demands of
the majority of poor and to make human rights of the weaker sections a reality.

RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID : ARTICLES 21

AND 22 READ WITH ARTICLE 39A

Article 21 of the Constitution is said to enshrine the most important human rights in criminal
jurisprudence. The Supreme Court had for almost 27 years after the enactment of the
Constitution taken the view that this Article merely embodied a facet of the Dicey on concept
of the rule of law that no one can deprived of his life and personal liberty by the executive
action unsupported by law. If there was a law which provided some sort of procedure, it was
enough to deprive a person of his life and personal liberty.

In the Indian Constitution there is no specifically enumerated constitutional right to legal aid
for an accused person. Article 22(1) does provide that no person who is arrested shall be
denied the right to consult and to be defended by legal practitioner of his choice, but
according to the interpretation placed on this provision by the Supreme Court in Janardhan
Reddy v. State of Hyderabad 6. In this provision does not carry with it the right to be provided
the services of legal practitioners at state cost. Also Article 39-A introduced in 1976 enacts a
mandate that the state shall provide free legal service by suitable legislations or schemes or
any other way, to ensure that opportunities for justice are not denied to any citizen by reason
of economic or other disabilities - this however remains a Directive Principle of State Policy
which while laying down an obligation on the State does not lay down an obligation
5 (1982) 2 SCC 583
6 24 AIR 1951 SC 227

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enforceable in Court of law and does not confer a constitutional right on the accused to secure
free legal assistance.

However the Supreme Court filled up this constitutional gap through creative judicial
interpretation of Article 21 following Maneka Gandhi's case. The Supreme Court held in
M.H. Hoskot v. State of Maharashtra and Hussainara Khatoon's 7case that a procedure which
does not make legal services available to an accused person who is too poor to afford a
lawyer and who would, therefore go through the trial without legal assistance cannot be
regarded as reasonable, fair and just. It is essential ingredient of reasonable, fair and just
procedure guaranteed under Article 21 that a prisoner who is to seek his liberation through
the court process should have legal services made available to him.

The right to free legal assistance is an essential element of any reasonable, fair and just
procedure for a person accused of an offence and it must be held implicit in the guarantee of
Article 21.

Thus the Supreme Court spelt out the right to legal aid in criminal proceeding within the
language of Article 21 and held that this is....

"a constitutional right of every accused person who is unable to engage a lawyer and secure
legal services on account of reasons such as poverty, indigence or incommunicado situation
and the State is under a mandate to provide a lawyer to an accused person if the
circumstances of the case and the needs of justice so require, provided of course the accused
person does not object to the provision of such lawyer."

7AIR 1978 SC 1548

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 LIST OF CASES
Bail granted in non- bailable cases

Pittla Sanjeev V. The state of Telangana

Facts: This petition is filed by petitioner no 1 and 2 under section 439 of Cr.P.C praying the
court to release them under in the Cr no 85/2017 under section 306 of IPC.The complainant
alleges that her daughter was married to the accused about three years back and that they
have been blessed with one baby and the complainants daughter has complained about the
husband that he has abused her in filthy language. The accused has informed the complainant
that her daughter has consumed poison on 8-5-2017 and the accused has taken the victim to
the government hospital upon completion of treatment the accused took her to home and on
enquiry the complainants daughter has told them that she was abused by the accused in filthy
language and she then decided to die and consumed poison. The complainant’s daughter has
then been shifted to Narsingi private hospital and has died on 9/5/2017.

About the section:

The alleged offence is under section 306 of IPC. “ Abetment of suicide.—If any person
commits suicide, whoever abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten years, and shall also
be liable to fine.”

Contention of the Parties :

Accused: The accused contends that the accused is innocent and that they have not commited
any offence as alleged by the police and that a false case has been charged on them. The
accused states that there is a delay in lodging the complaint and no explanation is submitted
by the complainant as well and that the dying declaration of the victim is not recorded and
not mentioned that the filthy words used by the accused when abusing the complainants
daughter.

Complainant: The complainant contends that the accused has played a major role in their
daughters suicide as their daughter has complained that she was abused by the accused.

Judgement: The court has allowed this petition and has granted Bail for accused 1&2. They
are directed to be released on bail on executing their personal bond for Rs 20000.

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Analysis: Here in this present case we notice that the accused is married to the complainants daughter
and has a daughter with her. The accused has abused the complainants daughter in filthy language and
that she has committed suicide by consuming poison. She was pronounced dead the next day and thus
the accused was charged with appropriate section of abetment to suicide under sec 306 of IPC. The
grant of a bail is discretionary and is in the discretion of the Hon’ble judge. Here in this case the bail
has been granted as the accused were in remand and that the police has completed entire investigation
and only a charge sheet is yet to be filed. The Hon’ble judge thus has granted bail to the accused. The
nature of offence, health of accused, probability of accused appearing at trail, likeliness to flee,
intereference with evidence are some of the considerations taken by the court when it grants a Bail,
based on the above said factors a judge shall decide if a bail should be granted or refused.

The special powers of High court or Court of sessions regarding bail

Golla Komuraiah V. The state of Telangana represented by the police medak

Facts: The complainant complained stating that his yonger sister Laxmi was given in
marriage about 35 years back to the accused. The accused and Laxmi were blessed with
daughter Boodavva. On 23-3-2017 Golla Rajaiah informed the complainant that the accused
has quarrelled on a domestic issue and was aggravated and hit Laxmi on her head with stick
indiscriminately and that the complainants sister Lami was laying on ground with bleeding
injuries .She was shifted to govt Hospital immediately and was later when she was being
shifted to Gandhi hospital she has succumbed to the injuries and has lost her life and the
family members of Laxmi have found her dead body with bleeding injuries to the head in the
mortuary. The complainant stated that since 15 to 20 years of marriage the accused has been
suspecting the character of his sister and had already threathed to kill her keeping old issues
in mind.The accused beat the complainants sister indiscriminately and has caused death of the
complainants sister Laxmi.

About the section: section 439 in The Code Of Criminal Procedure, 1973.

Section 439 of Cr.P.C talks about the special powers of High court or Court of sessions regarding bail.

It states that the that any person accused of an offence and in custody be released on bail, and if the
offence is of the nature specified in subsection (3) of section 437, may impose any condition which it
considers necessary for the purposes mentioned in that sub- section. He can be released on a
condition. The court can order arrest against the person who is out on bail.

Section 302 IPC :302 talks of punishment for murder which is either Death penalty/ Life
imprisonment and liable to pay fine.

27 | P a g e
Contention of the Parties:

Accused: The accused contends that he is in no way concerned with the alleged offence and he was
falsely implicated in this case. The accused states that the death of Laxmi is not related to him and
that the story was made to intentionally harass him. The accused states that his wife Laxmi has gone
to toilet and has slipped and fallen in the morning hours. The accused alleges that he was not present
at that time and is no where connected to the said aligations. The accused states that he has no
intimation of the allegations made on him and that he came to know about them only after the police
had come to take him into the custody.

Complainant: The complainant contends that the accused has murdered his sister Laxmi and that he
has been suspsious of the diseased character since 15 years of the marriage.

Judgement: The Hon’ble Court has decided that the accused in this case shall be released on bail
executing a personal bond for Rs 20000 with two securities for the sum to be satisfied. The bail
granted in this case imposes a condition on accused that he shall attend the concurred police station
weekly twice on every Monday and Friday in between 10 am to 2 pm.

Analysis: Here in this case we notice that the accused was released on bail with a condition imposed
on him, that is to attend the concerned police station twice in a week Monday-Friday between 10 am –
2 pm. Here bail was granted on a discretionary basis although the case was under section 302; that is
murder. The judge can grant a bail even in cases of non-bailable offences on the grounds that 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.

Cancellation of bail

In Public Prosecutor v. George Williams 8

The Madras High Court pointed out five cases where a person granted bail may have the bail
cancelled and be recommitted to jail:

8 1951 Mad 1042

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(a)Where the person on bail, during the period of the bail, commits the very same offence for
which is being tried or has been convicted, and thereby proves his utter unfitness to be on
bail.

(b )If he hampers the investigation as will be the case if he, when on bail; forcibly prevents
the search of place under his control for the corpus delicti or other incriminating things.

(c)If he tampers with the evidence, as by intimidating the prosecution witness, interfering
with scene of the offence in order to remove traces or proofs of crime, etc.

(d)If he runs away to a foreign country, or goes underground, or beyond the control of his
sureties.

(e)If he commits acts of violence, in revenge, against the police and the prosecution
witnessed & those who have booked him or are trying to book him.

An overview of the following cases highlight the adverse condition of the poor with
regard to the unjust bail system in India.

In State of Rajasthan v Balchand 9

The accused was convicted by the trial court. When he went on appeal the High Court, it
acquitted him. The State went on appeal to the Hon'ble Supreme Court under Art. 136 of the
Constitution through a special leave petition. The accused was directed to surrender by the
court. He then filed for bail. It was then for the first time that Justice Krishna Iyer raised his
voice against this unfair system of bail administration. He said that though while the system
of pecuniary bail has a tradition behind it, a time for rethinking has come. It may well be that
in most cases an undertaking would serve the purpose.

In Moti Ram and Ors. v State of M.P 10

The accused who was a poor mason was convicted. The apex court had passed a sketchy
order, referring it to the Chief Judicial Magistrate to enlarge him on bail, without making any
specifications as to sureties, bonds etc. The CJM assumed full authority on the matter and

9 AIR 1977 SC 2447

10 AIR 1978 SC 1594

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fixed Rs. 10,000 as surety and bond and further refused to allow his brother to become a
surety as his property was in the adjoining village. MR went on appeal once more to the apex
court and Justice Krishna Iyer condemned the act of the CJM, and said that the judges should
be more inclined towards bail and not jail.

In Maneka Gandhi v Union of India 11

Justice Krishna Iyer once again spoke against the unfair system of bail that was prevailing in
India. No definition of bail has been given in the code, although the offences are classified as
bailable and non-bailable. Further Justice P.N.Bhagwati also spoke about how unfair and
discriminatory the bail system is when looked at from the economic criteria of a person this
discrimination arises even if the amount of bail fixed by the magistrates isn't high for some,
but 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 if it's a small amount.

Hussainara Khatoon and others v. Home Sec, State of Bihar12

the Court laid down the ratio that when the man is in jail for a period longer than the
sentence he is liable for then he should be released.

11 AIR 1978 SC 571

12 AIR 1979 SC 136

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 CONCLUSION
It is indisputable that an unnecessarily prolonged detention in prison of under trials before being
brought to trial is an affront to all civilized norms of human liberty and any meaningful concept of
individual liberty which forms the bedrock of a civilized legal system must view with distress patently
long periods of imprisonment before persons awaiting trial can receive the attention of the
administration of justice. Thus the law of bails must continue to allow for sufficient discretion, in all
cases, to prevent a miscarriage of justice and to give way to the humanization of criminal justice
system and to sensitize the same to the needs of those who must otherwise be condemned to languish
in prisons for no more fault other than their inability to pay for legal counsel to advise them on bail
matters or to furnish the bail amount itself.

It is absurd how the word “BAIL” is no where mentioned in the Criminal Procedure code (Cr.P.C)
and the Indian Penal Code (IPC). The Criminal Procedure Code, 1973 does not define bail, although
the terms bailable offence and non-bailable offence have been defined in section 2(a) Cr. P C. Every
person has a right to bail and its important that one must not confine a person and deprive his liberty.
Article 21, 22 and 39A provides for personal liberty ,right to bail and free legal aid

But it is to be taken into consideration that the accused that the accused has taken somebody else’s
right to live in case of a murder case. In such cases although the offence is termed as “non-bailable”
offence the accused can resort to a bail, in the above mentioned cases we have noticed that bail has
been served to all the accused person’s. The question of Rs 20000 being a hefty amount for a poor
person like the accused In the above cases shouldn’t be a concern, they are ready to pay 20000 for a
bail. This gives a presumption to a lot of people that even after committing grave offences they can
come out of the custody of the police and be like a regular citizen of the country living with free will.
This has to be changed, if justice should prevail.

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 SUGGESTIONS AND RECOMMENDATIONDS

The Supreme Court of India has clearly gone against the history and concept of bails. Further
the Supreme Court of India has gone against the recommendations contained in paragraph
39.9 of the 41st Report of Indian law Commission, as well as previous decisions of the
Supreme Court. I can understand the change in circumstances but those must have been
reflected in some study and some law that is not being brought before by the Apex Court. It is
very unfortunate to know that even the Apex Court of India is so ignorant and going with the
sentiments and against the logic.

In my opinion, right to bail, is certainly not a Fundamental/Basic Human Right else all
criminal/penal laws had to be enacted with an incorporation of a provision for bail, either
Anticipatory or Regular but there are certain laws those deny Anticipatory bail and those laws
have been held Constitutional and valid, Bail is certainly a statutory right. Till this aspect, the
law conforms to the very basic concept of bails and its history of origin. However, the
judgments of the Supreme Court in India deviate from the normal concept of bails and also
observations made in paragraph 39.9 of 41st Report of the Law Commission of India.

The basic consideration to grant a Regular bail, means the bail after arrest, requires a test as
explained in section 437 and 439 of the Code of Criminal Procedure of India to be passed by
the accused, primarily that the accused will not abscond or influence the trial; He will not
influence or threat the witnesses and that he will not commit the same crime while on bail.

Whereas, Anticipatory bail requires rather stronger case that also includes no prima facie case
against the accused and that he will not influence investigation. Thus the grant of
Anticipatory Bail is always on better footings than the grant of Regular Bail. Furthermore,
concept of the bail is to make sure, through security and surety that the accused will be
available to meet the penalty, in case he is held guilty. Further, it is a sacred principle of
criminal law that till one is proved and held guilty, he is considered to be innocent and the
burden is always upon the prosecution the charges. If it is so then it is purely out of logic to
put under trials in prison and to suffocate atmosphere of prisons. It is my considered opinion

32 | P a g e
that we people are easily swayed by allegations and without taking pain to reach a logical
conclusion start believing the accused a criminal.
Unfortunately, our judges are also the members of the same society, in which other people
live. They too are prone to same level of faulty faculties and thus passing judgments those, in
fact, go against the basic concepts of sociology of and law of crimes. Till the Judges give
their written reasons for the same, one will not know on what grounds a continuation of the
term can be ordered as the section does not provide any guidelines. I feel that the judges
needs to be considered keeping in view the basic concept of Criminal/Penal laws, history and
concept of bails and also the presumption of innocence in Criminal Trials.

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 REFERENCES
BOOKS:

Law lexicon by Ramanth Iyer, (3rd ed).

Black's Law Dictionary 177 (4th ed.)

Criminal Procedure by C.K. Takwani

The Code Of Criminal Procedure by Ratan Lal and Dheerajlal

Anticipatory Bail Law and Practice By Narayan Laxmanrao

WEBSITES:

http://www.legalserviceindia.com/articles/bail_poor.htm

http://www.mightylaws.in/283/preemption-cure-anticipatory-bail-section-438-
criminalprocedure-code 2

https://lawrato.com/indian-kanoon/criminal-law/crpc-438-section-438-of-the-
criminalprocedure-code-anticipatory-bail-568

https://www.lawctopus.com/academike/anticipatory-bail-india-critical-analysis/

ONLINE DATABASES:

SCC ONLINE

MANUPATRA

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