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“There is no gain saying that the bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person.”

‘Bail is the rule and Jail is an Exception’, this canon of the criminal jurisprudence was laid down by the Supreme Court of India in its landmark judgement of State of Rajasthan V. Balchand alias Baliay[2], in the year of 1978. Justice Vaidyanathapuram Rama Krishna Iyer, who has many avant-grade verdicts to his name, precisely held in the foregoing case that: “The basic rule may perhaps be tersely put as bail, not jail.”[3] To base it, the honorable Justice emphasized on the rights guaranteed to an accused under the Constitution of India. Among these rights the most distinguished one is the right given under Article-21 of the Constitution. Detention of a person affects his right to life and liberty and the main objective of detention is to ensure easy availability of an accused for trial without any inconvenience. Thus, if it is ensured that the accused will be available when required for trial stage, detaining the person is not compulsory. Therefore, it was held that the courts, while interpreting the provisions of Code of Criminal Procedure (CrPC) concerned with the arrest of a person, must avoid detention unless it seems indispensable and should grant bail to the accused.


Under the Code of Criminal Procedure Code (CrPC), 1973 there are certain provisions given that provide statutory rights to a detained person or person who is apprehending detention. Among such rights, one right is known as ‘Bail’. The term bail has originated from a French verb – ‘Bailor’ which means “to give” or “to deliver” . In general, Bail means release on one’s own bond- with or without sureties.[4] The bail does not set an accused free rather it is a provisional release of a detained individual who is an accused of a crime and the judgement of his case is yet to come. A bail is always granted keeping in view the purpose behind the arrest which is to ensure the presence of an accused before court during trial without causing any trouble to the judicial proceedings. Hence, bail could be considered as a form of security deposited to appear before the court for release. ‘Innocent until proven guilty’ is the core principle of our justice delivery system and to strengthen this principle the rule of bail must be followed.

Granting of Bail

A person who is accused of a crime, has a right to apply for bail. The individual seeking bail can either go to the Sessions Court or the High Court. There is no rule that for filing a bail application an accused must reach the Session Court and after rejection of the plea move to the High Court. Rather, the person apprehending arrest or in custody may directly apply for bail in the respective High Court.

Section – 436 of CrPC provides that a person who is an accused of a Bailable offence under the Indian Penal Code (IPC), 1860 can be granted bail. Whereas, Section – 437 of the Code states that an individual who is an accused of a Non-Bailable offence under IPC does not have the right to bail. In the case of non-bailable offences, it is the Magistrate who has discretion to grant the bail which is mostly decided on the basis of facts and circumstances of the case. Since the courts have discretionary relief to grant bail for non-bailable offences, they have not followed a fixed pattern for allowing or disallowing bail over the years.

In case of bailable offences, bail is granted if:

1. The investigation is not completed within a prescribed time limit.

2. There is no reasonable ground for the court to believe that the accused has committed a non-bailable offence.

3. The trail is not completed within the time period of 60 days.

4. There is no reasonable ground for the court to believe that the accused is guilty, even after the trial is completed but the judgement is not pronounced yet.

Types of Bail

In India, the types of bail are majorly divided into 4 categories:

  • Regular Bail

Regular bail refers to that kind of bail which is granted to a person who has been arrested and is in the police custody or Judicial Custody. To grant a regular bail, the Sessions and High Courts consider several grounds such as- Seriousness of the offence, facts and circumstances of the case, nature of the evidence, status of the accused in reference to the victim and witnesses, possibility of him tampering the evidence and chances of the accused running away from the justice and repeating the same offence.

  • Anticipatory bail

It is a bail which is granted before the arrest or when someone apprehends arrest in any crime. Anticipatory bail is generally granted by the Sessions Court or High Court. Gravity of the offence, contribution of the accused and evidence against the accused are considered as deciding factors to grant an anticipatory bail. Conditions that have to be fulfilled to get bail are:

1. That whenever needed, the accused person will be available for investigation

2. That the person will not fly to another country with the permission of court

3. That the accused will not tamper the evidence and will not induce or threaten the witness in his case.

Right to liberty, Presumption of Innocence and Necessity are the reasons behind granting an Anticipatory bail to an accused.

  • Interim bail

Interim bail means the bail which is granted before the hearing for a grant of a regular bail or an anticipatory bail. It is granted for a short span of time.

  • Default bail

The default bail is granted as per the provision of Section 436A of CrPC which says, the accused who is under trial and is in judicial custody and has lived through half of the maximum punishment that was awarded for the offence, can be granted a default bail.


Human Rights Activism has evolved more over the years and at present while putting someone in jail requires understanding of an equilibrium between the liberty of the person who is being put into the jail and the interest of society. Therefore, to maintain such equilibrium between the two it is very much important to consider that until and unless there are strong grounds such as probability of an accused fleeing from the justice or chances of him tampering the evidence or threatening the witness or victim to the case, detention of an accused will lead to the infringement of his very fundamental right given to him under Article – 21 of the constitution i.e., right to life and personal liberty. Further, the application of Reformative theory of punishment is equally important to maintain the balance between two other theories of punishment namely- Deterrent theory and Punitive theory. The main objective of reformative theory is to reform an accused and keep him away from habituated criminals in jail who are considered varsities of crimes. The theory is based upon the notion that punishment should be more curative rather than a deterrent one. A crime is considered as a disease under this type of theory which cannot be cured by killing; rather, such disease can be cured with the help of medicine named, ‘process of reformation’ [5].

Moreover, in one of the landmark judgments of Supreme Court Arnesh Kumar V. State of Bihar[6], the apex court imposed several checks and balances on the powers of police before arrest and after arrest. The hon’ble Supreme Court directed to all the state governments across the country to instruct police officers not to arrest an accused without scrutinizing all the facts and circumstances of the case and shall conduct a preliminary inquiry before arrest.

Also, arrest brings so much humiliation along with it, curtails one’s freedom and leaves a scar on the character of an accused forever. A jailed defendant loses his job if he has one and is also prohibited from contributing to the preparation of his defense and this way, the burden of his detention falls on the innocent members of the family as well. Situation becomes even worse when the jailed person is the only breadwinner in the family and his imprisonment leads to unnecessary sufferings of his innocent dependents.


In recent times the erratic exercise of discretion of granting bail has become a serious blockade in achieving the ends of justice. Nowadays, it has become a cake walk for high profile and rich individuals to get bail if they have charges of any non-bailable offence against them. They are granted bail without considering the seriousness of the offence. On the other hand, the same is not the case with poor and underprivileged sections of the society. In most of the cases, a middle class or a poor person who is accused of an offence does not get bail even after fighting tooth and nail for it. Does justice also differentiate between rich and poor? Moreover, even the agencies dance on the whims and fancies of their political personalities and illegal detention of Advocate Sudha Bhardwaj, Dr. Kafeel Khan and many more are examples of such arbitrariness.

Inconsistency in bail orders

In today’s India, inconsistency in the bail orders given by the courts could be seen easily. The fourth pillar of the government, the mass media has the power to influence the minds of the general public but it is the TRP hunger that strikes so hard the media houses (be it electronic or print media) that they pre-judge by conducting media trials, parallel to the judicial trials. The guilt or innocence of an accused is decided by the media even before the judgement is pronounced. Unfortunately, such media trials can also make the district courts and sessions courts to reject the bail application which was quite apparent in the case of the Bollywood actress Rhea Chakraborty and now could be seen in the case of Comedian Munawar Farooqui who, along with four others was arrested by M.P Police from a café for hurting religious sentiments and whose bail was rejected by the session court in Indore without considering the principle of bail is rule jail is exception. Though the Supreme Court granted him interim bail later.

Right to life and personal liberty is the most precious right given under the constitution and as the guardian of the constitution, in the Arnab Goswami Case[7] SC quoted valuable lines for the law of bail that- “Even for one day, this precious right cannot be violated.” But in this case also, there were so many inconsistencies in the order of bail whether it’s about the High Court, Lower Court or different benches of the Supreme Court. Moreover, the bail orders in Chinmayanand Case[8], Kanhaiya Kumar Case[9] were so long whereas the jurisprudence of bail says that a bail order should be precise and merits of the case must not be discussed in bail order as it hinders the trial stage later.


Needless to say, that the courts have discretionary power to grant bail in non-bailable offences but such discretion should be exercised justly, reasonably, fairly and objectively as at present the prosecution agencies remain no stones unturned to oppose the bail application unnecessarily. It is need of the hour to balance the rights of an accused and victim so that getting bail on reasonable grounds would not a difficult task anymore because it is a well known fact that if a bail application for a non-bailable offence is rejected by the court on unreasonable grounds, then an accused will not have to live on the mercy of police, lawyers, judges or the procedure that hardly comes to an end.


1. Jeetendra V. State of Madhya Pradesh & Anr. Criminal Appeal No. 408 of 2020 [Arising out of SLP (Crl.) No. 10145 of 2019]

2. 1977 AIR 2447, 1978 SCR (1) 535

3. Amir Chand & Anr. V. The Crown 1950 CriLJ 480


5. -of-punishment.html

6. Criminal Appeal No. 1277 of 2014 [SLP (CRL) No. 9127 of 2013]

7. Arnab Manoranjan Goswami V. State of Maharashtra Criminal Appeal No. 742 of 2020 [Arising out of SLP (Crl) No. 5598 of 2020]

8. Swami Chinmayanand alias Krishna V. State of Uttar Pradesh Criminal Misc. Bail Application No.- 44814 of 2019

9. Kanhaiya Kumar V. State of NCT of Delhi W.P. (CRL) 558/2016 Crl. M.A. Nos. 3237/2016 & 3262/2016

By Prerna Jha

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