Bail Jurisprudence in India
- Lawttorney.ai
- 2 days ago
- 5 min read
Updated: 1 day ago
Introduction:
It is a fundamental Principle in our country that “Bail is Rule, Jail is the Exception”. It protects the rights of people accused of crimes while ensuring the safety and interests of society. Article 21 of the Indian Constitution (Protection of life and personal liberty) empowers the provisions of bail, which lay down that no one can be denied their freedom under the Constitution unless it is done in a fair and just manner.
The law (Code of Criminal Procedure (CrPC) or Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023) gives different ways to apply for bail:
Section 438 of CrPC (Equivalent to Section 482 of BNSS) for the Anticipatory Bail: If someone fears arrest for a non-bailable offence, they can ask the court for bail before getting arrested.
Section 167 of CrPC (Section 187(3) of BNSS): Default Bail or Statutory Bail: If the police don’t finish their investigation within the specified period (Around 60 to 90 days, depending on the case), the accused has the right to get bail. Under this Section, 60 days are provided for ordinary offences, and 90 days where the offence is punishable with death, life imprisonment, or imprisonment of not less than 10 years. This right is absolute once conditions are fulfilled.
Judges have the privileged power to decide whether to give bail or not. But this power must be used carefully and fairly. As Justice V.R. Krishna Iyer said, taking away someone’s freedom even for a short time should only be done for serious reasons that follow the Constitution.
Meaning Of Bail:
Black’s Law Dictionary Definition:
“Procure the release of a person from legal custody, by understanding that he/she shall appear at the time and place designated and submit himself/herself to the jurisdiction and judgment of the court”
Kinds of bail:
There are different kinds of bail under CRPC/BNSS :
Bail in Bailable Offence: Section 478 of BNSS (equivalent to CrPC Section 436)
Bail in Non-Bailable Offence: Section 480 BNSS (equivalent to CrPC Section 437).
Anticipatory Bail: Section 482 BNSS (equivalent to CrPC Section 438).
Ad-Interim Bail.
Default Bail: Section 187(3) BNSS.
Before 1994, there were some cases on Arbitrary Arrest, such as Joginder Kumar v. State of U.P. (1994), D.K. Basu v. The State of West Bengal (1997) and Arnesh Kumar Vs State of Bihar (2014).
Judicial Evolving in the Bail Procedures:
State of Rajasthan Versus Balchand 1977:
Justice Krishna Iyer, in his judgment, famously said that “Bail is the Rule and Jail is the exception”. The Case highlights that it violates Article 21, i.e. personal liberty and ensuring that detention should be the last resort.
Hussainara Khatoon Versus State of Bihar(1979):
The Supreme Court held that prisoners must be released on bail, those who are not on trial for years.
Sanjay Chandra Versus CBI (2011):
The Supreme Court held that even if the economic offence was committed, the deprivation of liberty cannot be ignored just because the accused committed a serious offence. Similarly, in the case of Arnesh Kumar versus State of Bihar(2014) held that avoid unnecessary arrest and the same will remain relevant in BNSS and ensure that pretrial Arrest should not be arbitrary.
High-Profile Bail Cases in India: Power, Discretion, and Special Provisions
Bail remains one of the most debated aspects of criminal jurisprudence in India, particularly in high-profile cases where allegations of misuse of power and judicial discretion often arise. The following cases illustrate how courts have approached bail applications in politically sensitive matters and under special legislation.
Allegations of Misuse of Power and Judicial Discretion
Arvind Kejriwal – Delhi Excise Case and Defamation
Delhi Chief Minister Arvind Kejriwal was granted bail in the excise policy case as well as in a defamation matter. On the other hand, his former deputy, Manish Sisodia, faced repeated challenges in securing bail. Sisodia’s petitions were initially rejected because he had tampered with evidence and the witnesses in the excise liquor scam. However, he was later granted bail, the development started a wider debate, with critics suggesting that political influence may have played a role in the outcome.
K. Kavitha – Anticipatory Bail in the Delhi Liquor Scam
K. Kavitha, who was a political leader involved in the liquor policy issues, invoked Section 438 of the CrPC to seek anticipatory bail. Her case highlighted the effective use of anticipatory bail provisions, particularly when political power is seen to be curtailed or under threat.
Satyendar Jain – Repeated Denial of Bail
Ex-Delhi Health Minister Satyendar Jain was arrested by the Enforcement Directorate (ED) on charges of money laundering. His multiple bail applications were rejected by both the trial court and the Delhi High Court. The courts stated that Satyendar Jain continued to use influence and could potentially interfere with the ongoing investigation, making him ineligible for release at that stage.
Bail under Special Provisions
Gurwinder Singh Versus State of Punjab (2024):
He was charged under the IPC, Arms Act, and the Unlawful Activities (Prevention) Act (UAPA). He’s bail pleas were rejected by both the NIA Special Court and the High Court. On subsequent appeal, the Supreme Court stated the principle that under UAPA, “jail is the rule and bail is the exception.” The Court held that Singh had failed the prima facie test of innocence, and therefore, his bail petition was dismissed.
Union of India v. K.A. Najeeb (2021):
In this landmark ruling, the Supreme Court made clear that the right to a speedy trial is under Article 21 of the Constitution. The accused under UAPA had been incarcerated for over five years without trial. The Court also stated that continued detention without progress in trial was unjust, and therefore granted him bail.
Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005):
Accused under the stringent MCOCA (Maharashtra Control of Organised Crime Act), Sharma was alleged to have helped officers involved in this organised crime. Despite the strict provisions under the law, the Supreme Court granted him bail, noting that no conviction was likely on the available evidence.
Conclusion
The fundamental idea of Bail is to safeguard liberty, a pillar of justice under Article 21 of the Constitution. However, the system has been repeatedly condemned for promoting the interests of the affluent and the influential, where bail is viewed as a chance to escape prison. Conversely, those from weaker sections of society are often refused bail even in minor offenses.
The judiciary is given the delicate task of ensuring the accused receive justice while at the same time protecting their basic rights. The courts are also endowed with the discretion to refuse bail when there is a clear likelihood of interference with evidence or influencing witnesses. For example, when the Union Minister P. Chidambaram was refused bail on such a basis initially. However, the Supreme Court later underscored that prolonged denial of bail would infringe upon his right to personal liberty and granted him relief.
Finally, bail is not intended to be an instrument of privilege but a protector of freedom. It is an indispensable part of our judicial system - one that must continue to adapt in order to find the appropriate balance between safeguarding society's interests and fulfilling the constitutional guarantee of freedom. Empower Your Legal Practice with AI – Join Our Free Webinar!
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