102 Journal of the Indian Law Institute [Vol.

62: 1

BOOK REVIEW

TAKING BAIL SERIOUSLY: THE STATE OF BAIL JURISPRUDENCE IN

INDIA. By Salman Khurshid, Sidharth Luthra, Lokendra Malik and Shurti Bedi (2019)
Lexis Nexis, Gurgoan.Pp.xlii+467.Rs 995/-.
ANY SERIOUS student of the law and practice of bail jurisprudence in India shall
readily accept the following broad propositions. First, the law and practice of bail in
India is governed by legislative enactments. The result of a prayer of bail must therefore
depend upon a correct interpretation of the relevant provision of the statute applicable
to the case. It is further required to be appreciated that a very large and rich corpus of
case law or judicial precedents is readily available to enlighten the concerned court. Yet
there is not denying the fact that in actual practice the fate of a prayer for bail is
terribly uncertain and unpredictable. The approach to the question of grant of bail is
ad hoc, the manner of dealing with the relevant submissions is casual and the final
result is the hunch of the judge as rightly noticed by the apex court. It is undeniable
that the result for a prayer of bail involving same offences and identical fact situations
may differ substantially from judge to judge, court to court and region to region. The
resultant perception of arbitrariness or whimsical exercise of discretion in the matter,
calls for close introspection and clinical jurisprudential scrutiny.
Second, though there is no separate and exclusive bail legislation, the general law
applicable to a plea of bail is enshrined in the Code of Criminal Procedure, 1973. The
settled principles, which serve as a guideline to achieve a desirable degree of uniformity
in the legal response to grant of bail lose relevance because special penal laws which
we have in abundance, raise specific and additional road blocks in the grant of bail.
One may refer to the legislation enacted to prevent terrorism, TADA, POTA and
UAPA; Prevention of Money Laundering Act 2005 (PMLA); Scheduled caste and
Scheduled Tribes(Prevention of Atrocities) Act, 1989; Narcotic Drugs and Psychotropic
substances Act, 1985 (NDPS); Companies Act, 2013 (provisions relating to serious
fraud investigation office) and the like. These special enactments raise very high legal
barriers in the matter of grant of bail. Consequently the lack of uniformity in bail
jurisprudence becomes even graver.
Third, the declared judicial principle that bail not jail is the rule, though ceaselessly
chanted and reiterated has become an elusive goal.
Fourth, there is no reliable data enabling us to weigh as to whether the bail was rightly
granted in some cases and declined in others. Such date would be essential to critically
appreciate the efficacy of law and practice of bail in our judicial system. It is however
apposite to mention that the personal experience of any participant on either side of
the bar would reveal that there is no logical co-relation between the grant and refusal
of bail on the one hand and the final outcome of the trial for the offence alleged. Two
2020] Book Review 103

widely reported prosecutions can be readily recalled. A set of cases popularly named
as ‘2G scam’ were registered on the intervention of the apex court and were also
monitored by it. The cases involved allegation of corruption and other misconduct in
the matter of allocation of telecom licenses. Some accused were arrested in the course
of investigation while some others were not. After the presentation of the chargesheet,
the prayer for bail was vehemently opposed by the prosecution. Different accused
suffered incarceration ranging from nine months to one year and six months, before
their release on regular bail. Strangely enough the trial of the main 2G case ended in
acquittal, while in some other cases the accused were discharged at the stage of
consideration of charge. Similar high profile cases were registered for large scale
corruption and bungling in the matter of allocation of coal to different companies for
the purpose of utilization of the same in their own enterprises. While a large number
of cases have gone to trial a few have been finally decided. The coal scam cases were
also investigated by the CBI like the 2G scam cases, however the investigating agency
did not arrest any of the accused during the course of investigation and presented the
chargesheet while they were free citizens. They faced trial on grant of bail on their
appearance before the trial court. As many as seven cases ended in conviction, which
is the subject matter of appeal before the High Court of Delhi. An effective database
would help us in formulating just and fair guidelines in this very important area.
‘Taking Bail Seriously’ is a highly valuable addition to the literature in the area of bail
jurisprudence in the country. It is a very ambitious project where an attempt has been
made to examine and evaluate multiple dimensions of the bail jurisprudence in a single
volume. It is an enterprise wherein judges, practicing advocates, research scholars and
teachers have participated, which makes it formidable piece of work. There are 22
well-researched articles that deal with nearly all the aspects touching the question of
bail. Thus in a single volume we have the occasion to enrich ourselves from a brain
storming in depth analysis of bail jurisprudence in general on one hand and specific
issues relating to the question of bail on the other. The authors have also dealt with
treatment of foreign national prisoners in the matter of bail; transit bails and remand;
default bail; bail in terror offences and bail in economic offences like prevention of
money laundering. A short volume could not possibly answer all the questions that an
insightful reader may ask yet the work must be lauded as a handy reference book for
anyone confronted with a meaningful question on the subject. The volume is therefore
indispensible for the advocate, the judge, the academic dealing with criminal
jurisprudence and all others interested in the matter.
Before briefly touching upon the contents of the book, the foreword by Justice H.S.
Bedi, former judge Supreme Court of India, calls for a special mention. Besides
encapsulating very briefly the relevance of various questions, Justice Bedi has examined
the matter with a remarkable candour and in a truly realistic perspective. He has thus
kept in focus the ‘raw reality’ (an expression insightfully used by Late Justice Krishna
104 Journal of the Indian Law Institute [Vol. 62: 1

Iyer while grappling with the vexing question of Bail). Justice Bedi refers to a practice
by the high courts while dealing with murder appeals after a long delay of 15 or 20
years from the institution of the same. Sitting in the Supreme Court, it was noticed
that in number of such cases the high court had scaled down the offence from the
charge of murder (section 302 IPC) to culpable homicide not amounting to murder
(section 304 (I) and (II) with the unstated objective of doing effective justice and
avoiding the sending of the appellants back to jail after decades of the actual occurrence.
The judges of the Supreme Court while noticing the alteration of the conviction
under a lesser offence was not legally sustainable and was a ‘travesty of the law’, refrained
from interfering keeping the larger perspective of justice in focus. Justice Bedi also
rightly notices, “The lack of consistency in Bail Jurisprudence is the most vexing
question before the lawyers and judges alike.”
Rightly or wrongly while the volume in hand was in advance stage of preparation the
apex court decided the prayer of P. Chidambram, a senior advocate himself and a
former Finance Minister, for pre arrest bail, against the Petitioner in a case under
PMLA. The decision rendered by a bench comprising Justice R. Bhanumati and Justice
A.S. Bopanna generated a nationwide controversy. Expectedly the majority was critical
of the judgment as the propositions enunciated therein ran counter to many settled
judicial principles. The decision has directly cast a shadow on the present volume. In
the very first article by A.M. Singhvi, there are direct and indirect references to the
manner in which the enforcement directorate was able to effectively oppose the prayer
for bail by relying upon the sealed cover process. Salman Khurshid refers to the case
by discreetly calling it the ‘bail matter of a high profile political leader.’ Fortunately
Professor Upendra Baxi has devoted his entire article to various questions emanating
from the decision. He has rightly questioned the divorce between Constitution and
the statutory law regarding bail, as one of the unwarranted fallout of the decision.
Professor Baxi’s article is a must read for its enlightening focus on some basic and
critical questions. A mention may be made to an article by Khagesh Gautam and
Sebastian Lefrance, on a comparative survey of the law of bail in India and Canada.
The authors notice that both in Canada and also in United States Constitutions an
express basis has been laid down touching the question of bail.
Justice S.S. Saron in his very concise overview of bail jurisprudence has highlighted
decisions of the High Court of Punjab and Haryana linking the question of bail with
prolonged detention at the appellate stage. Shruti Bedi’s own contribution is a brief
and incisive evaluation of the judgment of the apex court in Nikesh Tarachand Shah v.
Union of India.1 She has effectively raised the question for need of constitutional review
of various legislative provisions placing a near embargo on the power of the court to
grant bail.

1 (2018) 11 SCC 1.
2020] Book Review 105

Majority of the contributions embark upon a general review of the bail jurisprudence,
hence, there is repetition, quite unavoidable in a scenario like this. The title of the
book ‘Taking Bail Seriously’ resoundingly echoes through majority of the articles. The
article on default bail by Monica Chaudhary though exhaustive confines the debate to
default bail made available to an accused upon the failure of the investigating agency
to complete the investigation and file the charge sheet within the statutory period
permissible under the law. It is time that the principle of default bail is extended to
inordinate delays in the conclusion of the trial. The acquittal of several accused under
stringent penal laws like the TADA/POTA or narcotic legislation after long
incarcerations of several years is legitimately a cause for huge embarrassment. It is
time that legislative provisions are inserted for grant of bail on ground of delay. A
specific reference may be made to a salutary provision for grant of such bail in magisterial
trials (section 437 (5) Cr PC) if the trial does not conclude within 60 days from the
commencement thereof. It is regrettable though that the provision is never observed
strictly and there is dearth of binding precedent. The articles shedding light on the
plight of the poor in the matter of bail effectively underline the truth that some citizens
are more equal than others under our legal system. Here again it is for the constitutional
courts to direct the courts below to play a proactive role in such cases. One fondly
recalls the landmark judgments rendered by Justice Iyer and others in the seventies in
this area.
The law and practice of arrest is an integral part of bail jurisprudence. Similarly the
manner in which orders of remand are passed mechanically also calls for brain storming
analysis. Both these aspects have been critically scrutinized by the authors. An important
omission in this regard is the failure to fully appreciate the effect of amendment of
section 41 Cr PC as also the insertion of section 41A in the code. The amended
section 41 provides for clear-cut guidelines on the power to arrest. It is often presumed
that the investigative function essentially encompasses the power to arrest, in every
cognizable case. The amended provision is a radical departure from this presumption
and recognizes the coexistence of the power to investigate without exercise of the
power of arrest. The amended provisions have been creatively interpreted in Arnesh
Kumar’s case. The apex court has prescribed that the arresting officer’s reasons recorded
as per the law have to be judicially examined by the area magistrate. The failure to do
so has been held to be actionable. This is a radical move forward in cases punishable
with imprisonment up to seven years. The question of arrest does not get settled and
rendered infructuous by the mere factum of arrest, it has to be subjected to judicial
audit. Similar audit must be provided in cases where the power of grant of remand is
exercised mechanically in violation of the law. As noticed by various authors the power
to grant remand continues to be exercised casually with little concern for the liberty of
the citizen. The words of Justice Y.B. Chandrachud in State of UP v. Ram Sagar Yadav,2

2 (1985) 1 SCC 552.

106 Journal of the Indian Law Institute [Vol. 62: 1

need to be recapitulated, “It is notorious that remand orders are often passed
mechanically without a proper application of mind. Perhaps, the magistrates are not
to blame because, heaps of such applications are required to be disposed of by them
before the regular work of the day begins”.
While the editors and the authors have done a commendable job, the subject is much
too vast for all the questions to be raised and answered in one single volume of less
than 500 pages. It is essential to carry out empirical studies of the process of grant of
bail in the magisterial court, court of sessions and the high court. It is the common
experience of every busy practioner that the presiding officers at the magisterial and
sessions court level exhibit extreme conservatism while exercising their discretion in
bail matters. Such is the level of hesitation that the power pertaining to grant of pre-
arrest bail is rarely exercised at the level of the sessions judge. The empirical studies
would provide reliable data to meet the flood of pending bail applications in the various
high courts and help in evolving a just, fair and equitable bail jurisprudence. It is
equally important to empower the Public Prosecutor to decide appropriate cases where
bail ought not to be opposed. It is equally desirable that the states formulate appropriate
guidelines to facilitate the process. Afterall the overcrowded jails are a perpetual challenge
to the system and ways and means must be found to keep the numbers of prisoners in
the jail within manageable limits.
R.S. Cheema*

* Senior Advocate, Supreme Court.