International Journal of Humanities Social Science and Management (IJHSSM)

Volume 4, Issue 2, Mar.-Apr., 2024, pp: 1426-1431 www.ijhssm.org

An Analytical Study of Bail Jurisprudence and the Discretionary

Power of Court Relating To Bail in India
Nishant Dixit &. Dr. Jyoti Yadav
LLM AMITY UNIVERSITY. ASSISTANT PROFESSOR , AMITY
LUCKNOW. UNIVERSITY , LUCKNOW

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Date of Submission: 04-04-2024 Date of Acceptance: 18-04-2024
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ABSTRACT interests in ensuring law enforcement and public

The concept of bail in India has evolved through safety.
judicial interpretations and legislative enactments, Through a comparative analysis of bail practices
leading to a complex jurisprudence surrounding its across different jurisdictions within India, the thesis
application and the discretionary powers vested in aims to identify trends, challenges, and potential
courts. This analytical study delves into the reforms in bail jurisprudence. It critically evaluates
intricacies of bail jurisprudence, examining the the effectiveness of bail conditions, pretrial
factors influencing the grant or denial of bail, the detention practices, and the role of judicial
role of judicial discretion, and the impact of discretion in promoting fairness, equity, and the rule
statutory provisions on bail decisions. of law.
The study employs a comparative approach,
analyzing landmark judgments and statutory I. INTRODUCTION
provisions to identify trends, inconsistencies, and Bail jurisprudence forms a crucial aspect of
areas of improvement in bail jurisprudence. It the Indian legal system, embodying principles that
explores the balance between individual liberty and balance the rights of the accused with the interests
societal interests, considering factors such as the of justice and society. This introduction aims to
nature of the offense, the likelihood of tampering define bail jurisprudence, highlight its significance
with evidence or witnesses, and the principles of in India's legal framework, and provide a brief
presumption of innocence and fair trial. explanation of the discretionary power of courts in
Furthermore, the study investigates the challenges granting bail.
faced by courts in exercising discretionary powers
related to bail, including judicial activism, judicial Definition of Bail Jurisprudence
restraint, and the need for consistency in bail orders. Bail jurisprudence refers to the body of
It also examines the role of bail jurisprudence in legal principles, rules, and precedents governing the
ensuring access to justice, particularly for release of an accused person from custody pending
marginalized and vulnerable populations.Through trial or investigation. It encompasses the rights of
critical analysis and case studies, this study aims to the accused to liberty, presumption of innocence,
contribute to the discourse on bail jurisprudence in and fair trial, while also considering the state's
India, offering insights and recommendations for interest in ensuring the administration of justice and
enhancing transparency, fairness, and consistency in preventing potential harm to society.
bail decisions while upholding constitutional In India, bail jurisprudence is primarily
principles and human rights. governed by the Code of Criminal Procedure, 1973
The study investigates the principles and criteria (CrPC), which lays down procedures and conditions
considered by courts when exercising their for granting bail. The legal landscape surrounding
discretion in bail matters, including factors such as bail is shaped by judicial interpretations, landmark
the nature and severity of the alleged offense, the judgments, and legislative amendments, reflecting a
likelihood of the accused absconding or tampering dynamic and evolving approach towards the grant or
with evidence, and the interests of justice. It delves denial of bail.
into the constitutional and legal framework
governing bail provisions, assessing the balance
between the rights of the accused and societal

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 International Journal of Humanities Social Science and Management (IJHSSM)
Volume 4, Issue 2, Mar.-Apr., 2024, pp: 1426-1431 www.ijhssm.org

Significance of Bail Jurisprudence in the Indian 2. Evidence and Prima Facie Case: The
Legal System strength of the evidence against the accused, along
The significance of bail jurisprudence in India with the existence of a prima facie case, influences
cannot be overstated, as it serves multiple purposes the grant of bail. Courts may assess the likelihood of
within the legal framework: conviction based on the available evidence before
1. Presumption of Innocence: Bail deciding on bail.
jurisprudence upholds the fundamental principle that 3. Flight Risk and Absconding: The
every person is presumed innocent until proven likelihood of the accused fleeing from justice or
guilty. Granting bail allows the accused to await tampering with evidence is a crucial factor. Courts
trial without undue deprivation of liberty, may impose conditions such as surrendering
reinforcing the presumption of innocence until guilt passports, providing sureties, or reporting to
is established beyond a reasonable doubt. authorities regularly to mitigate flight risks.
2. Protection of Rights: Bail jurisprudence 4. Criminal History and Recidivism: The
safeguards the constitutional rights of individuals, accused's past criminal record, including previous
including the right to liberty and due process. It convictions or pending cases, may impact bail
ensures that pre-trial detention is not arbitrary or decisions. Repeat offenders or those with a history
disproportionate to the alleged offense, promoting of absconding may face stricter bail conditions or
fairness and justice in the legal process. denial of bail.
3. Judicial Discretion: The discretionary 5. Victim's Rights and Public Safety:
power of courts in granting bail reflects the Courts also consider the rights of victims, especially
judiciary's role as a guardian of constitutional in cases involving serious offenses or violence.
values. Courts exercise this discretion based on Protecting public safety and preventing potential
various factors such as the nature of the offense, the harm to society are paramount considerations in bail
likelihood of absconding, the accused's criminal decisions.
record, and the interests of victims and society. 6. Special Circumstances: Circumstances
4. Prevention of Unnecessary such as medical conditions, age, family
Incarceration: Bail jurisprudence prevents the responsibilities, and cooperation with law
unnecessary incarceration of individuals who pose enforcement may be taken into account as
no flight risk or danger to society pending trial. It mitigating factors.
strikes a balance between protecting public safety This classification is based on the seriousness of the
and ensuring that the accused's rights are respected, offence as well as the severity of the penalty. In
thus avoiding undue hardship and disruption to their most cases, a bailable offence is considered less
lives. serious and grave than a non-bailable
5. Efficient Legal Process: By allowing the offence.1Offences are defined in the clause (a) of S.
accused to be released on bail, bail jurisprudence 2 of the Cr. P.C. as:
contributes to the efficient functioning of the legal “The terms "bailable offence" and "non-bailable
system. It reduces overcrowding in prisons, offence" refer to offences that are listed as bailable
minimizes delays in trial proceedings, and enables in the First Schedule or that are rendered bailable by
defendants to participate effectively in their defense. any other legislation in effect at the time; and "non-
bailable offence" refers to any other offence.;”
Discretionary Power of Courts in Granting Bail It's worth noting that every offence under the Indian
The discretionary power of courts in granting bail is Penal Code has been classified as bailable or non-
a core aspect of bail jurisprudence. This power bailable in the first portion of the first Schedule to
enables judges to assess each case individually and the Cr.P.C. to determine which offences are bailable
make informed decisions based on the specific and which are not. In the absence of such a
circumstances and merits of the case. The discretion statement under the parent Act, the basic guidelines
is exercised judiciously, taking into account various set forth in the second part of the first Schedule of
factors such as: the Cr. P.C. must be used to determine whether the
1. Nature and Gravity of the Offense: crime falls into the appropriate category. 2
Courts consider the seriousness of the alleged
offense, including whether it is non-bailable, 1
Asim Pandey, Law of Practice and Procedure,
cognizable, or compoundable. Offenses involving Second Edition, 2015, Lexis Nexis.
violence, economic crimes, or threats to national 2
United States of America 1789 (rev. 1992)".
security may warrant stricter scrutiny. www.constituteproject.org. Retrieved 25 August
2018.
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PRINCIPLES GOVERNING BAIL offence; and the character, means, and standing of
The following principles emerge for grant or refusal the accused4
of bail under section 437, CR.P.C.
1. Bail should not be denied unless the offence EXERCISE OF DISCRETION IN CRIMINAL
accused is of the most serious kind and the PROCEEDINGS
punishment imposed by the law is severe. In India, most penal laws provide for the
2. Bail shall be denied where the Court has highest sentence that a criminal court may impose,
reasonable grounds to believe that no amount of bail with just a few offences allowing for a minimum
will insure the convict's presence at the time of punishment. In the former cases, the court has broad
judgement. discretion to impose punishment, but when it comes
3. Bail shall be rejected if the person seeking the to sentencing, the court must apply the principle of
Court's benign authority to be freed for the time proportionality in prescribing liability based on the
being will obstruct the process of justice. culpability of each type of criminal conduct, as laid
4. Bail should be denied if there is a risk that the down by the Supreme Court in the case of State of
applicant may interfere with prosecution witnesses M.P. v. Munna Chaubey. This approach gives the
or otherwise taint the legal system. Judge considerable leeway in determining a
5. Bail should be denied if a man's antecedents sentence in each instance, presumably to enable for
reveal a criminal past, particularly one that indicates sentences that reflect more complex concerns of
he is likely to commit significant crimes while on responsibility prompted by the facts of each case. In
bail. essence, judges declare that the penalty should
always be proportional to the offence. 5
STATUTORY PROVISIONS REGARDING To be clear, Section 354(4) of the Criminal
'BAIL' AND JUDICIAL INTERPRETATIONS Procedure Code of 1973 says a court must record
1. Code of Criminal Procedure, 1861: Sections 216 the reason for awarding an imprisonment sentence
and 258 and sections 156 and 212 of the Code of less than three months if the conviction is for an
Criminal Procedure of 1861 were the first to include offence punishable by imprisonment for one year or
bail provisions. more, unless the sentence is for imprisonment until
2. Code of Criminal Procedure, 1872: Sections 128, the court rises or under the provisos of the code's
194, 204, 388, and 393 and sections 128 and 389 summary trial. In circumstances where the offence
were included in this code. is punished by a period of one year or more, this
3. Code of Criminal Procedure, 1898: The sub-section limits the court's discretionary
difference between bailable and non-bailable jurisdiction to impose a sentence of at least three
situations was likewise preserved by this legislation. months. The reasoning for this is because short-term
This code's section 496 dealt with bail in bailable detention does not always serve a constructive
cases, whereas section 497 dealt with bail in non- function.6
bailable cases.3 In a number of circumstances, the
pro visions sections 496 and 497 of the 1898 law JUDICIAL DISCRETION
were interpreted. The following are the principles The court power to grant or deny bail is to
that determine the granting of bail: Except for those be based on well-established criteria. In the 2G case,
accused with non-bailable offences, anybody can the prosecution did not object to the issuance of
request bail as a matter of right. release to five defendants, presumably because there
The courts had to consider the following factors was no fear that they might sway witnesses, tamper
when exercising their "discretionary power" to with evidence, or flee the country - the three
admit a person to bail: (/) the seriousness of the scenarios I described previously. In fact, the
charge; (/"/) the nature of the evidence; and (in) the prosecution should not have objected to any of those
severity of the punishment prescribed for the
4
"Pre-trial Court Appearances in a Criminal Case".
American Bar Association. Retrieved 18 July 2017.
5
Shalom, Alexander. "Bail Reform as a Mass
3
Helland, Eric; Tabarrok, Alexander (2004). "The Incarceration Reduction Technique". Rutgers Law
Fugitive: Evidence on Public versus Private Law Review 4 (2014): 921. InfoTrac LegalTrac. Web. 15
Enforcement from Bail Jumping". The Journal of March 2016.
6
Law and Economics. 47 (1): pp. 93–122. Park, Madison (29 August 2018). "California
doi:10.1086/378694. S2CID 10321131. Archived eliminates cash bail". CNN. Retrieved 1 January
from the original on 9 October 2007. 2020.
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Volume 4, Issue 2, Mar.-Apr., 2024, pp: 1426-1431 www.ijhssm.org

who applied for bail being granted: the distinction it 2. To examine the factors influencing the
sought to make between five-year and seven-year discretionary power of courts in granting or denying
terms, as well as between those charged in the main bail, including the nature of the offense, the
chargesheet and those charged in the supplementary accused's background, and public interest
chargesheet, is artificial and illogical. While the trial considerations.
judge is not obligated to give bail just because the 3. To assess the impact of bail decisions on
prosecution does not oppose it and must apply its the administration of justice, including case backlog,
mind independently, such discretion must be utilised trial delays, and the rights of the accused and
with caution. In my opinion, the trial judge made a victims.
significant error in refusing bail. The trial court's 4. To compare the bail practices and
decision to deny bail in the interest of providing a procedures in India with international standards and
secure atmosphere for the witnesses to testify is best practices, identifying areas for improvement.
unjustified. There should be a genuine fear of 5. To propose recommendations for
witnesses being intimidated. We must remember enhancing transparency, fairness, and efficiency in
that imprisoning someone takes away his liberty, the bail process, balancing the interests of justice
and there is no sufficient reward for the time spent and individual rights.
in prison if he is eventually exonerated.7
Bail denial should not be used as a form of HYPOTHESES:
punishment prior to conviction. Let us not forget 1. H1: The discretionary power of courts in
that unless guilt is proven, there remains a granting bail is influenced by factors such as the
presumption of innocent under criminal law. That seriousness of the offense, the accused's criminal
guilt must be established beyond a reasonable doubt. history, and the likelihood of flight.
Denial of bail also affects the right to a fair trial 2. H2: There is a correlation between the type
since the accused has very limited contact with his of offense (e.g., non-bailable vs. bailable) and the
attorneys, and that too in a tightly restricted likelihood of bail being granted by the courts.
environment. 3. H3: The interpretation and application of
As a result, adequate defence planning is bail provisions vary among different High Courts in
hampered. Justice Krishna Iyer put it this way: India, leading to inconsistencies in bail outcomes.
"...It's reasonable to believe that a guy on bail has a 4. H4: Public perception and media scrutiny
greater opportunity of preparing or presenting his play a significant role in shaping bail decisions,
case than one who is detained. Mechanical detention particularly in high-profile cases.
should be reduced if public justice is to be 5. H5: Reforms aimed at streamlining the bail
promoted." It appears that Indian courts have just process, such as electronic monitoring and pre-trial
recently grown more cautious in granting bail in services, can lead to improved outcomes in terms of
general, and notably in situations of white-collar trial efficiency and fairness.
crime. This is unfortunate, because the legal criteria
for granting bail remain unchanged. 8 RESEARCH METHODOLOGY TO BE OPTED
The present research work requires
STATEMENT OF PROBLEM theoretical study of the topic. The theoretical work
An Analytical Study Of Bill Jurisprudence And The will deal with judicial decisions relate to grant or
Discretionary Power Of Court Relating To Bail In refusal of bail. The study will include the
India comprehensive study through the libraries, journals,
Case laws and books. The entire study is concerned
OBJECTIVES OF STUDY to the analysis of bail provision in India. This study
1. To analyze the evolution of bail comprised doctrinal form of research. Doctrinal
jurisprudence in India, focusing on key legal research is done with help of primary sources
provisions and landmark judicial decisions. including Acts, legislation, bylaws, ordinances and
secondary sources are the various judgements
prounced by the Hon‟ble Supreme Court of India
7
Du kan løslades mod kaution". www.bt.dk (in and the other High Courts in India.
Danish). 1 February 2006. Retrieved 19 October
2021 SIGNIFICANCE OF STUDY
8
Corpus Juris Secundum, Vol. 27, p. 289 as referred In this research I would like to work out to
in Aero Trader [p] Ltd. V. Ravinder Kumar Suri, evaluate the existing provisions of bail. The basis on
(2004) 8 SCC 307 which bail is granted while exercising the judicial
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 International Journal of Humanities Social Science and Management (IJHSSM)
Volume 4, Issue 2, Mar.-Apr., 2024, pp: 1426-1431 www.ijhssm.org

discretion. Whenever an application for bail is made every individual citizen irrespective of caste, colour
to a court, the first question that it has to decide is or creed, a very humble effort has been made by the
whether the offence for which the accused is being author in this book to deal with the provisions and
prosecuted is baillable or otherwise. If the offence is procedure for the grant of bail as per the letter and
bailable, bail will be granted under Section 496 of spirit of the law of the land.9
the Code of Criminal Procedure (of 1898) P.V. Ramakrishna, described the right to
equivalent to Section 436 of Criminal Procedure liberty is one of the fundamental rights guaranteed
Code, 1973 without more ado; but if the offence is by the modern constitution of all the civilized
not bailable, further considerations will arise and the countries. The right is as well recognised in India as
Court will decide the question of grant of bail in the in other foreign countries and the constitution of
light of those further considerations such as, nature India contains detailed provisions relating to the
and seriousness of the offence, the character of the fundamental rights. Further the constitution reflects
evidence, circumstances which are peculiar to the the tendency of modern civilization to shift the
accused, a reasonable possibility of the presence of emphasis from the individual to the community and
the accused not being secured at the trial, reasonable at the same time it has struck a balance between
apprehension of witnesses being tampered with, the individual liberty and social control. It is in the
larger interests of the public or the State, and similar background of the constitution that the law relating
other considerations which arise when a court is to „bail‟ is being shaped and as such a brief survey
asked for bail in a non-bailable offence. It is clear of the fundamental rights has been made in the first
that an unnecessarily prolonged detention in prison chapter of his book. This book deals with the law of
of under trials is against the law and justice which is bail, bonds, arrest and custody at length. Bail is a
the main object of Indian constitution by declaring mechanism by which by which the adverse
in the preamble of the constitution, equal justice to consequences of delay before trial can be
every person, the law of bails should have too much minimised. Attention of the author unfold minutely
discretion in grant of bail and guidelines must be the minutely the nature of the law of bails, the
codified. The study is to contribute to literature on principles on which it is founded, and the practical
bail. Bail is a right and in the interest of liberty bail rules connected with its administration to facilitate
must be granted. There are stringent laws passed by the readers understand the basic nuances of the law.
parliament every alternate year which have been Most recent judicial decisions of Supreme Court and
denuded of the safeguards for innocent persons who High Courts have been added in good measure. 10
might be arrested on suspicion. Bail jurisprudence in India has been a
subject of significant scholarly and judicial
II. REVIEW OF LITERATURE discourse due to its crucial role in ensuring justice,
Janak Raj Jai in his book “Bail Law and protecting individual rights, and maintaining the
Procedures” discussed elaborately that it is a well integrity of the criminal justice system. This review
settled law, that grant of bail is a rule and refusal of of literature delves into key themes, perspectives,
the bail is an exception. Unfortunately, the letter and and debates surrounding bail laws and the
spirit of the law is not adhered to by most of the discretionary power of courts in India.
Courts in our country. Personal liberty of an Singh, in his work "Bail Law in India:
individual citizen and right to life under Article 21 Evolution and Challenges," traces the historical
of the Constitution is the most precious fundamental development of bail laws in India, from colonial-era
right which cannot be jeopardized by any agency or practices to post-independence statutory provisions.
institution whatsoever. A government founded on He discusses the evolution of bail jurisprudence
anything except liberty and justice cannot stand. All through landmark judgments and legislative
the wrecks on either side of the stream of time, all amendments, highlighting shifts in judicial
the wrecks of great cities and all the nations that approaches and interpretations.
have passed away–all are a warning that no nation Gupta and Sharma, in their article "A
founded upon injustice can stand. Personal liberty of Critique of Bail Jurisprudence in India," provide a
a citizen, therefore, is certainly deprived when the critical analysis of the legal framework governing
bail is refused. It is too precious a value of a bail, emphasizing inconsistencies, ambiguities, and
constitutional system recognized under Article 21 of
the Constitution. After all, personal liberty of an 9
Janak Raj Jai, Bail Law and Procedures, Universal
accused is fundamental, suffering lawful eclipse Law Publishing, 6 th edition, 2015.
only in terms of procedure established by law. 10
P.V. Ramakrishna, Law of Bails, Universal Law
Keeping in view the fundamental right of each and Publishing, Ninth Edition, 2016
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 International Journal of Humanities Social Science and Management (IJHSSM)
Volume 4, Issue 2, Mar.-Apr., 2024, pp: 1426-1431 www.ijhssm.org

lacunae that contribute to challenges in bail [6]. S.N. Mishra, the Code of Criminal Procedure,
adjudication. 1973, Central Law Publications, 20th-
Mishra, in "Judicial Discretion in Granting Edition (Rep.), 2017
Bail: A Comparative Analysis," compares the [7]. J.N. Pandey, Constitutional Law of India,
discretionary power of courts in granting bail across Publisher- Central Law Agency, 52th Edition,
different jurisdictions, including India. The study 2015
examines factors influencing judicial discretion, [8]. N.V. Paranjape, Criminal Procedure Code,
such as the nature of the offense, the accused's 1973, Publisher- Central Law Agency, 6th
background, and public interest considerations. Edition, 2017
Patel and Desai, in their study "Factors [9]. R. Lal & D.Lal, the Indian Penal Code, 1860,
Affecting Bail Decisions in Indian Courts," explore Publisher, Lexis Nexis, 35th- Edition, 2017
the role of various factors, including the accused's [10]. R.Lal & D. Lal, the Code of Criminal
criminal record, likelihood of tampering with Procedure 1973, Publisher, Lexis Nexis,
evidence, and societal impact of the alleged offense, 22nd- Edition, 2017
in shaping bail decisions by Indian courts. [11]. Y.H. Rao & Y. R. Rao, On Criminal Trial,
Verma et al., in "Bail and Case Disposal Publisher-N.M.Tripati, 4th Edition, 2011
Rates: An Empirical Analysis," analyze the [12]. R.N. Saxena, the Code of Criminal
correlation between bail grants/denials and case Procedure, 1973, Published by- Central Law
disposal rates in Indian courts. Their study reveals Agency, 4th Edition, 2017
insights into the efficiency and effectiveness of the [13]. A.R.Desai, Violation of Democratic Rights in
bail process in expediting trial proceedings and India, Popular Prakasan, 1986
reducing case backlog. [14]. B.L.Hensariya, Right to Life and Liberty,
Khan, in "Public Perception of Bail Under the Constitution, Lexis Nexis (Indai),
Decisions in India," investigates public perceptions 1993
and attitudes towards bail decisions, considering [15]. K.Krishnamurthy, Police Diaries, Statements,
factors such as fairness, transparency, and public Reports, Investigation and Arrest, 2nd
confidence in the judiciary. Edition, 1986
Sharma and Reddy, in "Challenges in Bail [16]. R.K. Narula, Jail or Bail, Himalaya
Adjudication: Perspectives from Legal Publishing House, 1979
Practitioners," highlight challenges faced by legal [17]. S.C. Khare, Human Rights and United
practitioners in navigating bail proceedings, Nations, Metropolitan Book Company, 1977
including procedural complexities, delays, and [18]. H.M. Seervai, Constitutional Law of India,
disparities in bail outcomes. Publisher- Universal Law Publishing: An
Sen, in "Towards Bail Reform: imprint of Lexis Nexis, Volume 3rd, Fourth
Recommendations for Enhancing Fairness and Edition, 2015
Efficiency," proposes reform measures to address
challenges in the bail system, such as standardizing
bail criteria, promoting alternative dispute resolution
mechanisms, and improving legal aid provisions for
indigent accused.

REFERENCES
[1]. D.D. Basu, Introduction to the Constitution of
India, Publisher, Lexis Nexis, 23rd- Edition
2018
[2]. Abhay, Duhan Prasad, Glossary of Criminal
Law, All India Reporter Pvt. Ltd- 2008
[3]. C.P. Arora, Criminal Major Acts, Universal
Law Publishers, First- Edition, 2015
[4]. A. Dhamija, Law of Bail, Bonds, Arrest and
Custody, Lexis Nexis Butterworths Wadhwa,
Nagpur, First Edition, 2009
[5]. R.V. Kelkar, Criminal Procedure Code,
Publisher Estern Book Company Sixth
Edition, 2014
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