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The concept of bail forms a fundamental part of criminal jurisprudence in India and it is recognized in almost all parts of the world. A bail is a legal tool by which a person secures his release from detention by payment of a certain amount as a bail bond, with or without sureties. According to


The concept of bail forms a fundamental part of criminal jurisprudence in India and it is recognized in almost all parts of the world. A bail is a legal tool by which a person secures his release from detention by payment of a certain amount as a bail bond, with or without sureties. According to Wharton’s Law Lexicon, to grant bail means to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain.[1]


Bail does not fully set the accused free. Rather, it delivers his custody from jail to the surety (guarantor). It secures the attendance of the accused during the trial and at the time of the pronouncement of judgment. Bail jurisprudence aims to balance two competing but equally important interests: the personal liberty of the accused and societal interest. However, the court has to tread carefully as it has to ensure that by granting bail the accused will not abscond and cause more harm to society. An accused’s bail should not be refused merely to teach him a lesson. Punishment starts after an accused is convicted and held guilty of his crimes. Thus, it can be said that bail is a tool to protect the personal liberty of an individual as guaranteed under Article 21 of the Constitution.[2]


Though the term bail has been used many times in the Criminal Procedure Code (CrPC), it has not been defined anywhere. However, CrPC makes a distinction between bailable and non-bailable offenses. Bail is a matter of right in bailable offenses.[3] On the other hand, when a person is accused of non-bailable offenses, he cannot claim bail as a matter of right. It depends on the discretion of the court (Magistrate) whether to grant him bail or not.[4] Section 438 deals with anticipatory bail which provides bail to a person before arrest. Apart from CrPC, various other special laws have borrowed procedural mechanisms of bail like the Official Secrets Act, of 1923. Interim bail is also granted temporarily in certain conditions. In Sukhwant Singh v State of Punjab, the court held that the power to grant interim bail to a person pending final disposal of a bail application is inherent. It may be granted to protect a person’s reputation – a valuable facet of his right under Article 21.[5]

In the landmark case of State of Rajasthan v Balchand, Honorable Justice V.R. Krishnaiyer held that bail is the rule, and jail is the exception.[6] In State v Captain Jagjit Singh, the court held that while exercising its judicial discretion, the court must look into the nature, seriousness, and gravity of the offense.[7] In Gurcharan Singh v State (Delhi Administration), the court ruled that while deciding whether or not to grant bail in non-bailable offenses punishable with death or life imprisonment, it has to see whether a prima facie case is made out against the accused based on existing evidence, and other relevant materials such as the likelihood of the accused fleeing away from justice or tampering with prosecution evidence.[8] Thus, judicial discretion cannot be used arbitrarily and must be guided by reason.



It has been remarked by many Supreme Court and High Court judges that judges often deny bail due to mounting public pressure. In high-profile cases or any controversial or political cases wherein strong public opinion has already been formed against the accused, the lower court refuses to grant bail even if the accused is entitled to it, and leaves it to the High Court and Supreme Court to deal with. In such a case the human rights of the accused are grossly violated. Refusal of bail has grave consequences. Moreover, hardship in jail causes mental agony, coupled with psychological effects which can change a person forever.[9]


Under-trial prisoners are those persons who are accused of an offense(s) and are awaiting trials at different stages of the investigation, inquiry, appeal, and revision. Due to the inordinate delay in the trial, under-trial prisoners are rotting in jail for several years without getting bail. They are forced to serve punishment awaiting trial. Under-trial prisoners accused of minor offenses are not granted bail. Many of them serve an imprisonment of more than what is prescribed as the maximum sentence for the offense of which they are accused. This infringes on their fundamental right to liberty protected under Article 21[10] of the constitution. The court in Hussainara Khatoon v State of Bihar[11] held that the right to a speedy trial is an inherent part of Article 21[12] of the constitution. The State government cannot avoid its constitutional obligation of providing speedy trial on account of a lack of financial resources and administrative inability. The Law Commission[13] in its report laid down that concerning bail, the guarantee of speedy trial serves many objectives- protects against oppressive pre-trial detention; relieves the person accused of an offense of anxiety and public suspicion due to unresolved criminal charges, protects against the risk of loss of evidence, and enables such accused to defend himself.


As per the report of the Law Commission, the percentage of bail granted is quite low, merely 28% of the persons accused of an offense have been granted bail. As of December 31, 2022, a total of 4.32 crores cases are pending in district and subordinate courts. Further 69,000 cases are pending in the Supreme Court.[14] More than 33% of the total matters pending are bail petitions in the Supreme Court.[15] These figures indicate the tremendous pressure on the judiciary. The huge pendency of cases affects the role of the Supreme Court as the protector of personal liberty and fundamental rights. Due to systemic delays, the courts cannot entertain bail petitions as soon as possible, further adding to the pendency statistics.


The affluent sections of society easily secure bail. However, the illiterate, poor, and vulnerable sections are the ones who are at the most disadvantage. They are not aware of the rights guaranteed to them by the Constitution and granted under other laws. Those who know their rights cannot afford security or arrange sureties. The court in Moti Ram v State of M.P. remarked that judges should adopt a liberal approach and apply reasonable conditions in releasing poor, juveniles, infirm individuals, and women.[16] 


Many efforts have been taken by the judiciary to rectify the gaps in the bail system. The biggest challenge for the judicial system in this regard is the issue of the pendency of bail applications. The governments and High Courts together should devise mechanisms for regulating bail applications of convicts pending appeal. The Chief Justice of India D.Y. Chandrachud suggested that the Supreme Court should take at least ten bail applications daily, in addition to other assigned cases. Technology should be used to streamline the expeditious listing of cases without human interference.[17] While deciding bail applications the court should adopt a liberal approach and may take into consideration various factors such as if it is a single offense case, his bail application has been pending for more than ten years or has already served one-third of the sentence prescribed for the offense of which he is accused. The Union Government can also introduce separate laws for streamlining the grant of bail and set a timeline for the disposal of bail. High Courts can fix timelines for disposing of pending bail applications. More judges can be appointed which can lessen the burden on the judiciary.


Currently, the bail system in India is marred by a myriad of problems. The need of the hour is that all such issues should be tackled since the personal liberty of an individual is at stake.  The value of constitutionalism can not be upheld in a place where people spend their entire lifetime awaiting trial.

Author(s) Name: Apoorva (University of Delhi)


[1]J.J.S. Wharton, Wharton’s Law-lexicon: Forming An Epitome Of The Law Of England Bail (7th edition, Arkrose Press 1883)

[2] Constitution of India 1950, art 21

[3] Code of Criminal Procedure 1973, s 436

[4] Code of Criminal Procedure 1973, s 437

[5] Sukhwant Singh & Ors v State of Punjab, (2009) S.L.P. (Criminal) No. 3529/2009

[6] State of Rajasthan, Jaipur v Balchand @ Baliay (1977) AIR 2447

[7] State v Captain Jagjit Singh (1961) AIR 253

[8] Gurcharan Singh v State (Delhi Administration) (1978) AIR 179

[9] Moti Ram v State of M.P. (1978) AIR 1594

[10] Constitution of India 1950, art 21

[11] Hussainara Khatoon & Ors v Home Secretary, State Of Bihar (1979) AIR 1369

[12] Constitution of India 1950, art 21

[13] Law Commission of India, Amendments to Criminal Procedure Code, 1973 – Provisions Relating to Bail, (Law Com. No. 268, 2017), para 2.24

[14]‘ Nearly 5 Crore Pending Cases In Courts, Over 69,000 In Supreme Court’ (NDTV,  09 February 2023) <> accessed 24 February 2023

[15] Anurag Tiwary, ‘33% Cases Coming To Supreme Court Are Bail Applications; This Calls For Introspection: Justice SK Kaul’ (Live Law, 21 January 2023) <> accessed 24 February 2023

[16] Moti Ram v State of M.P. (1978) AIR 1594

[17] ‘Each Bench Will Hear 10 Bail Applications & Transfer Petitions Daily: CJI DY Chandrachud Reveals Full Court Meeting Decision’ (Live Law, 18 November 2022)

<> accessed 25 February 2023