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When can bail be claimed as a matter of right?


Intern, Legal Angles Patna

A brief history of Bail:

The term “bail” has its origin from an old French word baillier which means to provide and a Latin word bajulare denoting to bear a burden. The concept of bail was observed from the era when Plato created a bond for the release of Socrates. The present day bail system has taken its basis evolved from many British origin laws. During medieval era in England, the idea of implied bail came as a necessity to release the prisoners waiting for trial to get rid of diseased space. Later, the primary idea was associated with the personal liberty in the politico-legal system and thus by 1275, the Statute of Westminster was introduced to distinguish the offences as bailable and non-bailable.

Rationale behind bail:

The article 21 of the Indian Constitution guarantees its citizen a fundamental right to freedom which specifically states that “No one shall be deprived of life and personal liberty except according to the procedure established by law”. This right cannot be compromised until convicted and thus proven guilty. Similar contentions are being drawn from the Universal Declaration of Human Rights which talks about the rights of accused being equally significant to those of the victims.

Bail in Indian Jurisprudence:

Bail is nowhere defined in the Criminal Procedure Code but related terms like ‘bailable offence’ and ‘non-bailable offence’ have been defined in section 2(a) Cr.P.C. As per the Black’s Law Dictionary, bail is defined as “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 judgement of the court”.

In Kamlapati Trivedi v. State of West Bengal[1], SC defined 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” and In State of Rajasthan v. Balchand[2], the Supreme Court laid down that the basic rule is bail, not jail.

Bail as a matter of right:

The right to bail is a concomitant of the accusatorial system which advocates the right of bail which primarily enables an accused to stay out of jail until found by guilty by a trial.

With the incorporation of Section 167(2) in Cr.P.C. the investigating agencies are required to complete the job of investigation and file the charge-sheet within the time limit of either 60 or 90 days as the case may be. If not then the accused is entitled to be released on bail as it is implied in Article 21 that every accused has right to an expeditions disposable of his/her case. In the case ofUdayMohanlal Acharya v. State of Maharashtra[3], it was held that this right cannot be denied by anyone and In Achpal @ Ramswaroop& Another v. State of Rajasthan[4], the court held that prescribed time duration can not be extended.

Section 436 of Cr.P.C laid down several provisions for the grant of bail to any person accused of a bailable offence whether arrested or detained by police without warrant of arrest or appears or is brought before the Court of law. It is a matter of right if the offence is bailable and a matter of discretion if the offence is non bailable. Bail should not be granted by the magistrate if the offence is punishable with death or imprisonment for life and The Session Court and the High Court have broader discretion in granting bail, even if the offence is punishable with death or imprisonment for life.

The division bench of the High Court of madras has held that the essential distinction between a bailable and non bailable offence is that in bailable offences bail would be granted as a matter of right/course, if the arrested person agrees to furnish the bail, whereas in non bailable offences it is on the Court’s discretion whether to grant bail or not Though grant or denial of bail would obviously depend on the facts.

In Rajender Singh Sethia v. State[5], it was said that the final decision for a bail related matter should be based on the circumstances and facts of each case. The discretion should not be vague and arbitrary rather it ought to be based on the reasoned and well settled principles.

In Prahlad Singh Bhati v. NCT, Delhi[6], it was laid down that at the time of granting 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 accused’s presence at the trial, and similar other considerations.

In Ratan Singh Nihal Singh &Ors v. The State[7], the court opined 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”.

As per the facts of the case, Bail can be granted by Police, Executive Magistrate, Judicial Magistrate, Session Judge, High Court and Supreme Court.

However, according to the section 436 (2), if a person has violated the conditions of the bail bond earlier, the court may refuse to release him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for not appearing before the court in the proceedings against him. As it is very evident that provisions related to bail in case of non-bailable offences gives a discretionary power to the police and to the court. However the power is not without any restraint. Section 437 disallows to give bail under mentioned conditions - If it appears there is a reasonable ground for believing that he has committed an offence punishable with life imprisonment or death or If such offence is cognizable and the person has been previously been convicted of an offence with death or life imprisonment.

Provisions of Bail for an undertrial prisoner:

The word ‘Under-trial’ is used for an unconvicted prisoner who has been detained in prison during the period of investigation, inquiry or trial for the offence he/she is accused to have committed. According to a report[8], Sixty seven perent of the people in Indian jails are under-trials

National Crime Records Bureau of the Government of India has also stated that most of them are accused for very petty issues and the time spent by them in the prison are even more than the sentence of the crime accused. The reasons given for the umpteen number of under trials in the country are indiscriminate arrests, failure to pay Bail Bond/Surety, inadequate number of judges and prosecutors, lack of use of provisions, lack of sympathy by the administration, lacunae of Legal aid schemes and lack of coordination between the Centre, Judiciary & State Governments in solving the problems.

The legislature amended the Cr.P.C. in 2005 and introduced Section 436-A to release undertrial prisoners who serve half the maximum sentence in prison as a matter of right. Further, Section 436 of the CrPC was amended in 2005 to provide that if a person arrested for a bailable offence is not able to furnish bail within a week of arrest, he shall be presumed to be indigent, and shall be released on bond without sureties. The judiciary also takes into consideration the growing menace of undertrial numbers and in order to curb the same, In cases of Legal Aid Committee v. Union of India[9] and Shaheen Welfare Assn. v. Union of India[10], the Apex court have given periodical directions for one time release. In R.D. Upadhyay v. State of AP[11], the Supreme Court decided that the undertrial prisoners who charged with murder should be released on bail if their cases were pending for two years or more, and that persons charged with comparatively minor offences, such as theft, cheating, etc., should be released if they had been in prison for more than a year[12].

In Bhim Singh v. Union of India[13], the SC observed that all the previous decisions were one time and hence did not contribute much to tackle the issue and the poor implementation of amended Section 436-A also failed to help. So, by acknowledging the issue with Section 436-A, the Court directed the jurisdictional magistrate/ chief judicial magistrate/sessions judge to hold one sitting per week in each jail/prison for two months to identify undertrials eligible for bail under Section 436-A and to pass an appropriate order with respect to Section 436-A in the jail itself. In the year 2016, the Social Justice Bench of the Supreme Court prescribed guidelines and asked both the central and state government to work along for the problem in hand.

Keeping in mind the perils of Pandemic due to outbreak of COVID -19 , the Delhi High Court modified the bail orders passed by itself and courts subordinate to it doing away with the condition of furnishing surety bond & instead, allowing the under-trial prisoners to be released on their furnishing personal bond to the satisfaction of Superintendent of Jail.


The rights of accused are being stacked at the same position as of the victims. There are many provisions in the criminal justice system which provides the right to bail. As far as the issue of Under trial prisoners are concerned, initiatives to free those not accused of heinous offences on personal bail which is non-monetary need to be stepped up. Legal infrastructure and judicial authorities are equally significant in this regard. There is a need of collective efforts and better statutory provisions to be implemented to curb the issue in hand.

[1](1980) 2 SCC 91 [2](2010) 2 CriLR 1118 [3](2001) 5 SCC 453 [4](2019) 14 SCC 599 [5](1995) 34 DRJ 137 [6](2001) SC 1444 [7](1995) CriLJ 723 [8]Prison Statistics India 2015 report released by the National Crime Records Bureau (NCRB) in October 2016 [9](1994) 6 SCC 731 [10](1996) 2 SCC 616 [11](1996) 3 SCC 422 [12]Similar judgement passed by Delhi HC in the case of Shankra Vs. Delhi Adm. (1995 SCC OnLine Del 399) [13](2015) 13 SCC 603.

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