Supreme Court to scrutinize bail process


  • The Supreme Court has asked the directors of judicial academies and criminal courts across the country to look at the accused in criminal cases taking anticipatory bail from the Supreme Court or High Courts and use it to get regular bail from trial courts, taking advantage of the procedural labyrinth in criminal law.

Why such steps need to be taken?

  • This needs to be done to guard against such wily acts by persons trying to get the better of the law.
  • A Bench of Justices Ranjan Gogoi and Naveen Sinha recently came across the occurrence of accused approaching multiple forums to get bail in the case of a woman accused of abetment to suicide.

Modus operandi

  • The modus operandi are that the accused would approach the Supreme Court or the High Court concerned or even the sessions court for interim pre-arrest bail.
  • Once this gets procured, they surrender before the local trial court and use the interim order for protection against arrest from the higher court to flex their muscles before the trial judge to get regular bail.
  • The fallout is that in future, even if the higher court cancels or decides not to renew the interim bail, the accused would remain on bail on the strength of the trial court’s regular bail.

What is a Bill?

  • “Bail” is the release of a person who is under arrest or who has already appeared in court, in exchange for a promise to appear in court when scheduled.
  • When you’ve been arrested the Police have a discretion to grant you bail (“Police bail”) if they’re unable to bring you before you before a judge immediately (for example, if you’re arrested in the weekend).
  • When you first appear in court (whether or not you have been arrested), your lawyer or the Duty Solicitor will apply for bail (“court bail”) on your behalf.
  • The laws governing when you can and cannot be bailed are contained in the BAIL ACT 2000. That Act introduced some new restrictions on when bail can be granted to people charged with serious violent offences or with offending while on bail.

Meaning of Bail in India

  • According to Criminal Procedure Code, 1973, does not define bail, although the terms bailable offense and non-bailable offense have been defined in section 2(a) Cr.P.C. as follows: ”
  • Bailable offense means an offense which is shown as bailable in the First Schedule or which is made bailable by any other law for the time being enforce, and non-bailable offense means any other offense”.
  • That schedule refers to all the offenses under the Indian Penal Code and puts them into bailable and on bailable categories.
  • The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration.
  • However, it can be generally stated that all serious offenses, i.e. offenses punishable with imprisonment for three years or more have seen considered as non bailable offenses.
  • Further, Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases.
  • The amount of security that is to be paid by the accused to secure his release has not been mentioned in the Cr.P.C.
  • Thus, it is the discretion of the court to put a monetary cap on the bond

Court Bail

  • If you’ve been released on Police bail, you’ll need to apply to the court for bail when you first appear in court. When the Police don’t oppose the court granting bail, the decision to bail you is normally made by the Registrar, rather than by the judge.
  • If you’ve been arrested and the Police have refused to grant you bail, the issue will be decided by a judge. Similarly, if you’re appearing in court (whether or not you have been arrested) and the Police oppose bail, the issue is dealt with by the judge.
  • If you don’t have your own lawyer to apply to the judge on your behalf, make sure you speak to the Duty Solicitor at the court about applying for bail. The Duty Solicitor’s services are free. The Duty Solicitor will then formally ask the judge for bail.
  • You’re entitled to court bail as of right in certain cases. In other cases, whether or not you’re granted bail will depend on a number of factors.

Bail as of right?

If you’re charged with certain offences, you’ll get court bail as of right:

  •  offences that aren’t punishable by imprisonment
  • offences for which the maximum punishment is less than three years’ imprisonment (except if the offence is an assault on a child or a breach of a protection order under the Domestic Violence Act 1995)
  • a number of specific offences under the CRIMES ACT (these are mainly dishonesty offences or failing to provide the necessaries of life to people in your care. But this is subject to the rule that you are not bailable as of right if you have previously been convicted of an offence punishable by imprisonment and you are now being charged with an offence punishable by imprisonment.

Special bail rules for people under 20

  • If you’re under 20 and you’re appearing in the adult courts, the court must release you on bail if your case is remanded, including when you’re waiting for trial or sentencing.
  • But even if you’re under 20, you’ll be subject to the following special restrictions on when bail can be granted.

Refuse to give Bail- against the Fundamental Right

  • Article 21 of the Constitution provides us the right to life and liberty. Such right guarantees everyone in the territory of India, life with all the freedom to enjoy one’s life and liberty.
  • But, the refusal of the right to bail or demanding the amount that a person is unable to pay is said to be an infringement of article 21 of the Constitution.
  • (i) Bail is a fundamental right (ii) The norm is bail not jail (iii) Good reasons, with full explanation in writing must exist for denying bail. By following these norms, it can be said that if a person is denied the right to bail due to any reason, it is the infringement of his right to life and liberty.
  • A right to bail was not inserted as a right in the constitution of India, but it is quite implicit that it has been devolved as a right under Article 21 as a component of personal liberty.
  • But, the system of bail in India is a property-oriented approach, and it is erroneous on the part of anyone to think that if one has money he can flee from the justice system.
  • Thus, the focus of judicial discretion in bail should always be upon the aspects of personal liberty and equality of the individual provided under Articles 14,19 and 21 of the Constitution of India.

Special rules for violent offences and for people who’ve offended on bail

  • There are special restrictions on when you can be bailed if you’re charged with one of a number of serious violent offences and you already have convictions for one of those offences.
  • In these situations, the court Registrar can’t bail must be decided by a judge instead.
  • You’ll have to convince the judge that you should be bailed, otherwise you won’t get it.
  • In particular, you must satisfy the judge that you won’t commit any violent offences while you’re on bail if you’re released.
  • Similar restrictions apply if you’re charged with committing an offence when on bail or remanded at large, or if you have long lists of convictions and have in the past been convicted of committing an offence when on bail or remanded at large.
  • Again, you can be bailed only by a judge, and you bear the burden of convincing the judge that you should be bailed.
  • In particular, you must satisfy the judge that you won’t commit any violent offences while you’re on bail, nor burglary or any other serious property offence.

Bail Conditions

If the court grants you bail, you’ll be released on the condition that you return on the date of your next appearance, and subject also to other conditions that may be imposed, which commonly include:

  • having to live at a particular place
  • having no contact with victim
  • a curfew having to report to the Police while on bail. The court has no power to require a sum of money as a condition of bail.


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