JAMIA MILLIA ISLAMIA

FACULTY OF LAW
B.A.L.LB

IV SEMESTER (REGULAR)

2ND YEAR

STUDENT ID: 20183052

ROLL NO. : 07

LAW AND POVERTY ASSIGNMENT

TOPIC: RIGHT TO BAIL

SUBMITTED TO: ASSISTANT PROFESSOR RASHEED C A

SUBMITTED BY: ADIBA KHAN

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TABLE OF CONTENT

1. ACKNOELEDGEMENT…………………………………………………...

…….2

2. INTRODUCTION………………………………………………………....

…….3

3. BAIL TO THE NON CITIZEN OF

FOREIGNERS………………………………………………..5

4. TYPES OF BAIL……………………………………………………...………..5

o Anticipatory bail

o Cash bail

o Surety Bond

o Property Bond

o Release on own personal citation

o Release on Citation

5. RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID- ARTICLES 21 AND 22

READ WITH ARTICLE 39A

………………………………………………………….6

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 6. PERSONAL LIBERTY AND THE INVESTIGATIONAL RIFHT OF

POLICE………………………………………………………………………8

7. STATE BANK OF U.P THROUGH CBI V. AMARPANI

TRIPATHI………………...9

8. CONCLUSION………………………..………………………………………10

ACKNOWLEDGEMENT

It is my imperative duty to thank the following people for the successful completion of my
assignment on the topic of ‘Right to Bail and its impact on Poor’.

Prof. Rasheed brings the clarity of the Topic and providing the sufficient material which
enables me to understand the topic clearly.
Also I am highly oblidge to him for providing the constant guidance in each stage of the
project.

Also I am thakful to E-Library provided by the Faculty which enables me to excess different
resourecs and help me to complete this assignment in such crucial time

ADIBA KHAN

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 RIGHT TO BAIL

INTRODUCTION
BAIL: “Bail” has been defined as:

“The process by which a person is released from custody”

-Webster's Third New International Dictionary

It denotes the provisional release of an accused in a criminal matter in which the court is yet to
announce a judgment. The expression 'bail' means a security deposited to appear before the court
for release. Originally, the word is derived from an old French verb ‘bailer’ who means ‘to give’
or ‘to deliver’.1 A ball is granted to an accused after presenting a bail bond to the court. The bail
bond is set by the court having jurisdiction over the prisoner. The security may be cash, the
papers giving title to property, or the bond of private persons of means or of a professional
bondsman or bonding company.2

In India the word bail has not been defined anywhere however in Cr.P.C defines Bailable and
Non-bailable offence which says that, “bailable offence” means an offence which is shown as bailable
in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-
bailable offence” means any other offence. 3 Section 436 to 450 of Cr.P.C does set out the provisions
for the grant of bail and bond in criminal cases but the amount of the security has not been

1
Types of bail in India and condition to grant a bail, available at:https://www.legalsarcasm.com/legal-notes/types-
of-bail-in-india-and-conditions-for-grant-of-bail/ (last visited on April 5, 2020).
2
Bail available at: https://legaldictionary.net/bail/ 2020(last visited April 5, 2020).
3
The Code of Criminal Procedure Act, 1973, s. 2.

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mentioned in Cr.P.C. Thus the amount of security is completely depends upon the discretion of
the Court.4

BAIL TO THE NON CITIZEN OF FOREIGNERS

THE Indian Legal system does not create any discrimination or differentiation between Indian
Nationals and foreign nationals when it comes to granting bail. The Indian Courts have in catena
of judgments rejected the "foreign national" plea and have allowed the bail applications of the
foreign nationals by imposing certain conditions in order to secure their presence during the
course of trial.

 “Law does not permit any differentiation between Indian Nationals and Foreign citizens in the
matter of granting bail. What is permissible is that, considering the facts and circumstances of
each case, the court can impose different conditions which are necessary to ensure that the
accused will be available for facing the trial. It cannot be said that an accused will not be
granted bail because he is a foreign national.”5

DIFFERENT TYPES OF BAILS:

• ANTICIPATORY BAIL: under Indian criminal law, there is a provision for anticipatory bail under
Section 438 of the Criminal Procedure Code. This provision allows a person to seek bail in
anticipation of an arrest on accusation of having committed a non-bailable offence

• CASH BAIL: in this type of bail, the accused have to pay the entire stipulated amount in cash or
by credit card. The amount required for issuing the bail depends upon the seriousness of the case.
A large amount will be set to give the bail if the crime is of serious nature. A large amount will
be set for bail so that the accused may reappear for hearings without escaping.

4
Types of Bail in India and Conditions for Grant for Bail available at: https://www.pathlegal.in/Laws-of-bail-in-
india--blog-2384379 (last visited April 7, 2020).

5
Bail, A Matter Of Right: Not To Be Denied On The Ground Of Nationality available at:
https://www.mondaq.com/india/Litigation-Mediation-Arbitration/272954/Bail-A-Matter-Of-Right-Not-To-Be-
Denied-On-The-Ground-Of-Nationality (last visited 5 April, 2020).

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 • SURETY BOND: this type of bond involves a friend or relative, with the help of a bail agent can
get a bail for the accused. If an accused is not able to pay a large amount in cash for the bail, a
bail agent from a surety company will promise to pay the entire amount of the bond to get bail
for the accused. If the accused not appears in the court, the bail agent has to pay the entire
amount promised for the bond. As in this surety bond a friend or relative is involved, the bond
agent believe that the accused will appear for the trial without fail.

• PROPERTY BOND: if the accused is not able to pay the bail amount in cash but one can obtain
the bail by showing their property in lieu of cash. The accused have to show an equal value of
property in exchange to the cash. But if the accused fails to appear before the court on the
stipulated date, the property kept as guarantee will be foreclosed by the court.

• RELEASE ON OWN PERSONAL RECOGNITION: a judge may allow an accused to be released on

personal recognizance. The crime committed by an accused may not be of serious nature or a
minor crime of non violent nature and the accused may be released from the jail on the promise
of the accused. In such cases there is no need to pay any amount for getting the bail. Also called
‘Own Personal Bond’.

• RELEASE ON CITATION: the officer may not arrest and book the offender. Simply the officer
sends a citation (cite out) that the offender should appear before the court. If the offender not
appear before the court on stipulated time, the offender than will be arrested.6

RIGHT TO BAIL AND RIGHT TO FREE LEGAL AID –

ARTICLES 21 AND 22 READ WITH ARTICLE 39A

In the case of State of Rajasthan v. Balchand7 the accused was convicted by the trial court. When
he went on the appeal the High Court acquitted him. The State went on appeal to the Hon’ble
Supreme Court under Art. Of the Constitution through a special leave petition. The accused as
directed to surrender by the court. He then filed for the bail. It was then for the first time the
6
Meaning And Types of Bail in India available at: https://www.lawprudentia.com/2019/08/meaning-and-types-of-
bail-in-india.html (last visited April 7, 2020).

7
AIR 1977 SC 2447.

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Justice Krishna Iyer raised his voice against this unfair system of bail administration. He said
that though while the system of pecuinary bsil has the tradition behind it, a time for rethinking
has come. He said that though while the system of pecuniary bail has a tradition behind it, a time
for rethinking has come. It was well be that in most cases an undertaking wouldd serve the
purpose.

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 Diceyian 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. However Maneka Gandhi v. Union of India8
marked a watershed in the history of constitutional law and Article 21 assumed a new dimension
wherein the Supreme Court for the first time took the view that Article 21 affords protection also
against legislation (and not just executive action) and no law can deprive a person of his/her life
or personal liberty unless it prescribes a procedure which is reasonable, fair and just it would be
for the court to determine whether the procedure is reasonable, fair and just ; if not, it would be
struck down as invalid.

In Hussainara Khatoon’s case the Apex Court, inter alia, observed that the undertrials
languishing in jail were in such a position presumably because no action application for bail had
been made on their behalf either because they were not aware of their right to obtain release on
bail or on account of their poverty they were unable to furnish bail. The present law of bail thus
operates on what has been described as a property oriented approach. Thus the need for a
comprehensive and dynamic legal service programme was left in order to revitalize the bail
system and make it equitably responsive to needs of poor prisoners and not just the rich.
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’s case this provision
does not carry with it the right to be provided the services of legal practitioners at state cost. Also

8
 AIR 1978 SC 597.

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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 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 Maharashtra9 and Hussainara Khatoon’s case 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 21.10

PERSONAL LIBERTY AND THE INVESTIGATIONAL RIFHT OF POLICE

In the case of Vaman Narain Ghiya v. State Of Rajasthan11, Hon’ble Supreme Court has held
that, Balance to be maintained between the personal liberty of the accused and the investigational
right of the police. An accused is not detained in custody with the object of punishing him on the
assumption of his guilt. Personal liberty is fundamental and can be circumscribed only by some
process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance
with the security of the community. A balance is required to be maintained between the personal
liberty of the accused and the investigational right of the police. It must result in minimum
interference with the personal liberty of the accused and the right of the police to investigate the
case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the
9
AIR 1978 SC 1548.
10
Right to bail as a Constitutional Right available at:http://www.goforthelaw.com/articles/fromlawstu/article10.htm
(last visited April 8, 2020).
11
 (2009) 2 SCC 281.

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society for being shielded from the hazards of being exposed to the misadventures of a person
alleged to have committed a crime; and on the other, the fundamental canon of criminal
jurisprudence viz. the presumption of innocence of an accused till he is found guilty.

Detailed discussion of the evidence and elaborate documentation of the merits is to be avoided
while considering an application for bail- While considering an application for bail, detailed
discussion of the evidence and elaborate documentation of the merits is to be avoided. This
requirement stems from the desirability that no party should have the impression that his case has
been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or
exhaustive exploration of the merits is not required.

State of U.P. Through C.B.I v. Amarmani Tripathi12

Factors to be considered while granting bail:  It is well settled that the matters to be considered
in an application for bail are (i) whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence; (ii) nature and gravity of the charge;(iii) severity of
the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if
released on bail; (v) character, behavior, means, position and standing of the accused; (vi)
likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being
tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail.

12
(2005) 8 SCC 21.

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CONCLUSION

Though the courts in some cases have tried to intervene and also have laid down certain
guidelines to be followed to grant a bail in fairly a manner but unfortunately nothing has been
done and the concept of Bail is still some how anti poor. There is also a strong need felt for
acomplete review of the bail system keeping in mind the socio-economic condition of the
majority of ourpopulation. While granting bail the court must also look at the socio-economic
plight of theaccused andmust also have a compassionate attitude towards them. A proper scrutiny
may be done to determinewhether the accused has his roots in the community which would deter
him from fleeing from the court.

Thus the law of bails must 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 sensitise 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.

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