Jurisprudence of BAIL

Authored by Amanda Ruth, law student from Government Law College Ernkula

Bail is a fundamental component of the criminal justice system. The jurisprudence of bail tries to strike a balance between two conflicting principles; Liberty and Security. A balancing approach is needed to protect the liberty of the accused while also protecting the collective interest and security of the society.

History of Bail

The origins of bail can be traced to clause 39 of Magna Carta which read: “No free men shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land”[1]

Meaning and Object

The term bail is derived from the French word ‘bailer’ which means ‘to deliver’ or ‘to give’. The Oxford Dictionary defines bail as “The temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.”[2]

The main object of bail is to ensure presence of accused before the court of law where he faces the trial and makes himself available to the court for serving the sentence if convicted. A person is thus entitled to be released on bail if there are reasonable grounds to believe that his presence can be ensured.

Why grant bail?

The criminal justice system works on the principle that an accused person has the right to be presumed innocent until proven guilty. Every individual has the right to freedom and personal liberty. This is enshrined under Article 21 of the Indian Constitution, which states that the life and personal liberty of a person cannot be deprived except by the procedures laid down by the law.

An accused person unless he is convicted of the crime, should be treated just like any other individual in a society. Putting him in jail makes him unable to attend to his daily works and support his family. We’ve also see how in many cases, the accused person turns out to be innocent, or is convicted of a lesser crime than he was charged with.

Thus, every individual including the accused person has the right to seek bail in order to get himself released from custody until and unless proven guilty by a court of law.

Bail in India

The provisions regarding the bail and bonds have been specified from section 436 to 450 of the Criminal Procedure Code,1973 (hereafter ‘the Code’) .The Code has classified offenses into two categories:

  1. Bailable offenses
  2. Non- bailable offenses

The first category includes offenses that are generally punishable by the court with less than three years of imprisonment. A person accused of such an offense is granted bail.

The second category includes offenses of a grievous nature, and is punishable with more than three years of imprisonment. In such cases, an accused person is not entitled to get bail. The granting of bail in such cases is as per the discretion of the Court. Section 437 of the Code states about the cases in which the bail may be taken in case of non-bailable offenses.

Section  436 A of the Code states that an under-trial prisoner other than one who is accused of criminal offences punishable with death or life imprisonment shall be released from detention if the person has been detained for one half of the maximum sentence provided for the offence committed by him.

When should bail not be granted?

The following principles emerge for grant or refusal of bail under Section 437 of the Code[3]

(i) Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it assigned by law is of extreme severity;

(ii) Bail should be refused when the Court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;

(iii) Bail should be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for he time being;

(iv) Bail should be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and

(v) Bail should be refused if the antecedents of a man who is applying for bail show a bad record, particularly a cored which suggests that he is likely to commit serious offences while on bail.

Anticipatory Bail

Anticipatory bail is the bail granted by the court to a person in anticipation of his arrest. When this bail is granted to a person, it ensures that in case the person is arrested in the near future, then such person shall be released on this anticipatory bail.

Three conditions need to be satisfied for a person to be granted such a bail under Section 438 of the Code:

  1. The accusation made shall be grave and serious
  2. Likelihood of the applicant to flee or abscond from justice
  3. When the accusation is made with the intention of humiliating or injuring the person by making him arrested through that accusation.

The Law Commission in its 48th Report stated that this provision should be used in extraordinary or exceptional cases only.


The area of bail jurisprudence is considered rather vague and ambiguous, lacking consistency. According to the reports by the Law Commission, a majority of imprisoned people awaiting trial are poor and illiterate. In India especially, the overcrowding in prisons poses a problem and in order to reduce this, it is necessary that the criminal law machinery must work properly. This could be achieved by not making unnecessary arrests, by conducting investigations in an expedited manner and by granting bail where reasonable grounds exist.

The bail jurisprudence in India needs to be revamped with stronger and effective reforms.

[1] https://www.salisburycathedral.org.uk/magna-carta-what-magna-carta/key-clauses-magna-carta Accessed 20th September 2020

[2] https://www.lexico.com/definition/bail Accessed 19th September 2020

[3] Sidharth Vashisth alias Manu Sharma v. State of Delhi, 2004 Cri LJ 684 at p. 688

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