AUTHOR: Aditya Krishna Gupta, a student of Guru Gobind Singh Indraprastha University, Dwarka Sector-14, New Delhi

Law ardently tenders justice, liberty, and freedom and dislodges social evils and impediments. 


As stated by John E.E.D. in his “Essays on Freedom and Power “, liberty is regarded as one of the most imperative and substantial requisites of a modern being. The growth of a civilization yields the notions of liberty and freedom. It forms the core foundation of an evolved society. Liberty as an expression can be construed as a person’s right not to get tethered to irrational controls and restrictions. Comprehensively, it can also be understood as a condition of being free from imprisonment, slavery, and forced labor. This precious thought of liberty is concomitant with maintaining a balance between law and order in society as both are extremely relevant for a peaceful community. Time and again, the law has categorized itself into civil and criminal with the ultimate objective of expanding its ambit and monitoring divergent acts and omissions. Where civil law is intellectualized about relationships between individuals, criminal law is a body that prescribes penalties for offenses, charges, apprehensions, etc. Eventually, the law has proven efficient in regulating human conduct. 

The bail system which is administered in courts provides for the betterment of the welfare of the society. This system as it operates today is a catalyst of natural justice and the very ethical notions of justice, equality, and equity. Bail is when a judge or magistrate releases a person who has been detained or arrested in exchange for security guaranteeing the person’s future attendance in court for additional procedures. Bail is based on the principle of protecting a detained person who might suffer due to under-trials, pending appeals, and conviction. In Satendra Kumar Antil v. CBI, 2022 SCC OnLine SC 825, the court held that the term “bail” has not been defined in the Code, though is used very often. A bail is nothing but a surety consisting of a personal bond from the indicted. It means the release of an accused person either by the orders of the Court or by the police or the Investigating Agency.

A bail is instituted by depositing a certain sum of money which could also comprise property before a court of law. Such an amount is determined not following any hard and fast rules but is entirely based on court discretion taking into consideration the nature of the crime, merits of the case and constitution, temper, and passion. The concept of bail underpins the idea of liberty and freedom as it is premised on the principle that bail is a rule and not an exception. Providing leeway to an accused person is much better than caging him behind bars as he would be in a stronger position to properly defend himself and look after his case than if he were in custody. Although there exist some offenses for which bail cannot be granted such are known as non-bailable offenses where bail is not regarded as a rule but rather a privilege. Any being apprehended for such a grave and serious offense cannot plead to be exempted on bail as a matter of right. 


Akin to other departments of law the unprecedented bail system since its inception has been an expedient factor in the effective administration of justice. It does require a commendation for it has widened up the scope of human rights and is understood as a right for averment of freedom against the State enforcing restraints. The concept of bail has its roots in medieval English and American jurisprudence. It emanates from 399 BC when Plato, the world’s earliest and perhaps the greatest philosopher endeavored to create a bond for the release of Socrates. Until the 13th century, the sheriff who was the representative of the British crown and law officer of the court had sole authority to dictate the rules governing the arrests, summoning, and release of suspects. With the induction of The Statute of Westminster in 1275, such discretionary power of sheriff was obviated. Foremost, the classification of bailable and non-bailable offenses was laid down omitting some offenses from the application of bail. Although the sheriff was not relieved of the duty of reckoning the amount of bail. The guidelines of the 1275 Statute were responded to with discontent as due to an insufficiency of funds they were never adequately executed. The contumacious behavior of sheriffs was another bone of contention. Despite the condition prevailed until some protesters petitioned against the court’s ruling leading to the enactment of the Petition of Right of 1628 by the British Parliament. The concerned petition lambasted the unlawful arrest made by the king which was contrary to the provisions of the Magna Carta and other laws regulating the arrests. The King indicted some persons ‘without any cause showed’. The act identified the unlawful detention of an accused and laid down that no one can be held for trial for unspecified accusations. In 1677, the Habeas Corpus Act was passed which dealt with the insurgent sheriffs, courts, and the King who were rigorously making efforts to jeopardize the writ of habeas corpus. The English Bill of Rights came in 1689 which safeguarded judges setting the bail and stated that the right of bail might get eluded in selected criminal cases for subserving the liberty of the subjects. The current practices regarding bail are regulated by the Bail Act of 1976 in England. It sets up bail as a general rule free of any exception but where the court would exercise its discretionary power to curtail the right of bail it ought to disclose reasons and grounds for refusal. The concept has never been new to Indians. Even Kautilya’s Arthashastra had mentioned abstaining from pre-trial detention which makes it quite discernible that bail was prevalent back then also. Bail was also a constituent of Mughal era laws and was known as ‘Muchalaka’ and ‘Zamanat’. 


Article 21 of the Indian Constitution is the arc of the covenant playing a significant and pivotal role in ensuring the right to life and personal liberty of every citizen of the country. These rights are inclusive of those accused of crimes. Though the right guaranteed under Article 21 is not absolute but is subject to some reasonable restrictions. The right to bail is also a pertinent area covered by the right to personal liberty. The Constitution taking into account the principles of Natural Justice endeavors that no prisoner is deprived of an opportunity to defend himself in the trial and preserve the principle of presumption of innocence which is the fundamental of criminal jurisprudence. 

The Code of Criminal Procedure, 1972 contours the provisions and regulations of bail law in India. Sections 436-450 particularly deal with the bail procedure and lay down the governing factors and processes. Additionally, section 482 recognizes the inherent powers of High Courts in passing such orders on the premise that it is expedient for the preservation of human liberty which is of constitutional value, and prevents abuse of the process to meet the ends of justice. The code provides a comprehensive view of the concept as it classifies bail into five types as follows: 

  1. Regular bail or ordinary bail is the one which the court orders for releasing a person in custody based on suspicion or accusation of committing an offense. 
  2. Anticipatory bail. Such can be sought under section 438 of the Code by an individual for safeguarding himself against accusations that he claims to be false or fabricated in cases of non-bailable offenses. 
  3. Interim bail is nothing but temporary bail which is granted for a short period during which the court can call for other documents for deciding on regular or anticipatory bail. 
  4. Default bail is allowed to the accused on the failure of the investigating agency to file the charging sheet against the accused before the court within the stipulated period. Usually, the court considers 60-90 days as a reasonable time limit. 
  5. Medical bail is the one granted on medical grounds and is solely based on court discretion. 

Criminal Courts in India are angles of liberty. Liberty, as embedded in the Code, has to be safeguarded and subserved. The rate of conviction in criminal cases is quite low in our country but it should be kept in mind that such factors must not weigh in the mind of the Court while dealing with a bail application. The discretionary powers must be handled with proper care and due diligence with the ultimate purpose of public welfare.


Prisons in our country are flooded by a burgeoning number of under-trial prisoners. Statistics have identified more than two-thirds of the total inmates of the prisons as under-trial prisoners. The majority of these constitute not only poor and illiterates but also women who may not be conversant with the system entirely. The current situation displays a mindset, a vestige of the colonial era. Unlawful and improper detention is an unscrupulous measure that attenuates the liberty and freedom of individuals. 

In the 41st Law Commission Report it was established that bail is a matter of right in bailable offenses but is a matter of discretion in non-bailable offenses. It also stated that bail must not be granted in matters having capital sentences and life imprisonment. At the same time, the report vested Session Courts and High Courts with wide discretionary powers to decide matters related to bail even in grave crimes. The repetitive judicial reiterations have made it clear that bail is a rule, not an exception as one can interpret in the case of Nikesh Tarachand Shah vs. Union of India,(2018) 11 SCC 1. 

In Nagendra Nath Chakravarti v. King Emperor, 1923 SCC OnLine Cal 318, it was held that the objective behind bail is to secure the attendance of an accused before the Hon’ble court of law for trial and should be granted considering the probability whether the accused would be able to appear to take his trial. 

It was observed by Hon’ble Justice Krishna Iyer in Gudikanti Narasimhulu v. State, (1978) 1 SCC 240, that the issue of bail is that of liberty, justice, public safety, and burden of the public treasury, all of which insist that a developed jurisprudence of bail is pertinent for a socially sensitized judicial process. 

In Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118, it was laid down by Justice Goswami that facts and circumstances of each case will regulate the exercise of judicial discretion in allowing or refusing a bail application because there is no inexorable formula or procedure in the matter of granting bail. 

In the recent matter of Satender Kumar Antil vs Central Bureau Of Investigation, 2021 SCC OnLine SC 922, the Supreme Court set out certain guidelines regulating the law of anticipatory bail in the country keeping in view the discretionary power of the courts. The Hon’ble Court has classified offenses for issuance of bail but has not fettered with the court powers as well as statutory provisions. Some requisite conditions have also been laid down corroborating the guidelines which state that bail must be allowed only if the accused person was not arrested during the investigation and he has cooperated throughout the investigation including appearing before the Investigating Officer whenever called. 

However, the latest 268th Report of the Law Commission has pointed out prejudicial practices in bail procedures where the rich and seminal people are exploiting the system while others are dragged behind bars. The report has recommended that the decision to bail should not be impacted by elements such as ethnicity, gender, race financial conditions, or social status. The Supreme Court has also observed poverty as one of the core reasons for the increasing numbers of under-trial prisoners and has regarded it as inconsistent with the notion of natural justice. 


  • THE UNITED STATES OF AMERICA: In America, time and again it has been upheld by judicial pronouncements that the discretion of courts in deciding bail applications is guided by the facts and circumstances of each case. The object of detention and imprisonment is to secure the appearance of the accused in the trial process and whether he should be granted bail or not entirely rests on the variety of circumstances which must be cumulatively studied by the court before giving the verdict. 
  • THE UNITED KINGDOM: The Bail Act of the United Kingdom aims to comprehensively deal with bails by following simple procedures. The Act keeps in knowledge clogging of prisons with pre-trial and under-trial prisoners, cases dealing with the issuance of warrants, providing bail both before and after conviction, the exercise of the power by the investigating agency and the court, violation of the bail conditions, right to get bail and execution of bond and sureties on the indubitable principle of presumption. 
  • CANADA: A person charged with a criminal offense has a prima facie right to bail. However, this right could be denied if the Court gets an apprehension that setting the indicted person free would be dangerous for public peace and tranquility. The reasons for denial can also be associated with the possibility of the accused skipping bail. 
  • NEW ZEALAND: A person arrested based on criminal accusations has a right to be released on bail subject to reasonable terms and conditions. Such discretion regarding whether bail should be allowed or not rests with the police until the court date. Further, the court will have the power to decide on subsequent bail applications. 
  • AUSTRALIA: The law of bail in Australia is akin to that of New Zealand and Canada. However, the law provides for express exceptions to the prima facie right to get bail. Cases especially serious, such as drug trafficking, and murder do not have provisions entitling the accused person the right irrespective of the facts and circumstances.


A perusal of numerous judgments, reports, and trends of different countries concludes that bail is a commitment under Article 21 promising a shelter to life and personal liberty against unlawful and arbitrary detention. Diverse developments over time have prompted the legislatures to frame laws, rules, and regulations for smoothing up the functioning of bail in courts. The power of granting bail is discretionary and must be practiced with extreme care and diligence considering the balance between both personal liberty and societal interests. Extreme steps must be taken to expand the ambit of bail throughout the country by spreading awareness. Sequestration of prejudicial factors is of utmost importance as it could impair the very pursuit of imparting equal justice in society. The nature and gravity of the offense must be analyzed. Apart from making amendments and improvements in bail law, the legislature and the judiciary must focus on avoiding delays in investigations and litigations which would further result in the waning down of under-trial prisoners. 

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