RIGHT TO BAIL OF AN ACCUSED

A CRITIAL STUDY
It is obvious that it is desirable to release on bail as large a number of accused persons
as possible. This is a kind of platitude with which everyone agrees. The important
question is how to determine who can safely be released pending trial? What are
proper standards?
The present study looks at the mechanism of bail, bail setting standards and to extent
our bail system realizes the goal of equal justice.
Bail, being a procedural matter, can be understood only if looked at how it operates in
practice. Upon arrest release on bail is secured when the accused enters into a bail
bond which is a promise to forefeet a sum of money incase if he fails to appear for his
trial. Courts mechanically and as a matter of course insist upon production of sound
sureties who will stand bail for the accused and these sureties must again establish
their solvency to be able to pay up the amount of bail in case accused does not show
up fot the trial.
This instance upon monetary security and sureties make bail impossible for a large
number of defendants considering that 85% of our jail population comprises of poor
agricultural labour, tribals and illiterate people. But it serves as ends of those who can
afford to raise the bail amount. The inequality that thus results is a matter of shame of
our judiciary. Considering that bail right is one of the fundamental rights of an accuse
which sustains a number of rights like a right to legal aid, right to fair public trial etc.,
it deserves serious attention from all the quarters.
The study opens with the Chapter Introduction. It traces the concept of conferring
rights upon the accused and how it is intrinsically linked with the genesis and
evolution of the Human Rights movement.

Chapter 2 entitled The legal frame work of the rights lays down briefly the
various rights as enshrined in our Constitution and the Code of Criminal Procedure,
1973. it throws light upon the genesis of modern institution of bail as well as its
rationale and importance as a right of an accused.
Chapter 3 Rights of an accused at the time of arrest looks into the practical
components that go into the bail decision like the police records, the bailable or non
bailable character of the offence, sureties and their verification, the bail bond and so
on. Apart from making notes on parallel of police to bail conferred by the Code, also
studies why the police does not make the wide use of this power. Further it studies
Section 436 of the Criminal Procedure Code and devolves on the themes of Release
on Recognizance and the plight of undertrials held for bailable offences. Apart from
a doctrinaire discourse on Section 437 of the Criminal Procedure Code, it has also
been looked into factors contributive to the flowering of bail jurisprudence in the
Indian courts and our unsatisfactory remand law and procedure. It also studies the
wide and unfettered discretion in matters of bail conferred upon the higher judiciary.
Chapter 4 and Chapter 5 deal with Cancellation of Bail and Forfeiture of Bond
studies the procedure and practice relating to forefeiture.
Chapter 5 studies Anticipatory Bail, its purpose, utility and the current trends.
The last Chapter Conclusion and Suggestions contain some disquieting
conclusions and some near impossible suggestions with our decant criminal legal
system.

TABLE OF CONTENTS
Acknowledgement
Certificate
Preface
Table of contents
Abbreviation
List of Cases
.
Chapter-1
INTRODUCTION
1.1 History
1.1.a Greek Legal System
1.1.b The Roman Period
1.1.c During Christianity
1.2 Heritage of Common Law
1.3 Magna Carta
1.4 The American Revolution
1.5 Industrial Revolution
1.6 U.N. Charter
1.7 Factors Contributing
Chapter 2
THE LEGAL FRAMEWORK OF THE RIGHTS
2.1 Immunity from Retrospective Criminal Legislation
(Article 20)
2.1.a Protection against Double Jeopardy
2.1.b Protection against compelling self-incriminating
evidence

2.2 Right to Life and Personal Liberty (Article 21)

2.3 Right to be Informed of Grounds of Arrest (Article 22)
2.3.a Accused persons right to counsel
2.3.b Equal justice and free legal aid
2.3.c Right to be produced before a magistrate without delay
2.3.d Right of an accused to bail
Chapter 3
RIGHTS OF AN ACCUSED AT THE TIME OF ARREST
3.1 Police power to arrest
3.2 Parallel powers of bail given to the police
3.3 Officer-in charge of police station, Meaning
3.4 Power of police to grant bail in case of bailable offence
3.5 Bail under sec. 56, Cr. P.C
3.6 Person arrested not to be discharged simply
3.7 Release of bail by police in non-bailable offence
3.8 Offence subsequently becoming non bailable
3.9 Bail by police magistrate does not have jurisdiction to
order furnishing of fresh bail bond
3.10 Release of accused when evidence deficient
3.11 Arrest by private person and release on bail by police
3.12 Bail by any police officer
3.13 Police views
3.14 Fake encounter
3.15 Bail in bailable offences
3.16 In what cases bail to be taken (section 436)
3.16.a Bail right absolute
3.16.b Accused for the purpose of section 436
3.16.c Police bail in bailable offences
3.16.d Bail mandatory at any stage of court proceedings
3.16.e Bail must be unconditional

3.16.f Bond of accused and sureties

3.16.g Release on own recognizance
3.16.h Amount shall not be excessive
3.16.i Procedure when the accused fails to comply with
the conditions of the bail bond
3.16.j The plight of Undertrials held for bailable offences
3.17 Discretionary Bail In Non-Bailable Offences
3.17.a Definition of a Non-bailable Offence
3.17.b Legal framework of bail in non-bailable offences
3.17.c May be released on bail
3.17.d S. 437 applies to the Court of Magistrate alone
3.17.e Death or Imprisonment for Life
3.17.f Restricted bail to habitual offenders
3.17.g Exception for minors, women and sick persons
3.17.h Bail not to be refused on the ground of identification
Parade
3.17.i Whether express ban on release on bail in case of
any offence punishable with death is valid under Art. 21
3.17.j Section 437 (2): if there are no reasonable grounds
for believing
3.18 Greater Powers of the High Court and Court of Session
on Matters of Bail
Chapter - 4
CANCELLATION OF BAIL
4.1 Cancellation Of Bail In Bailable Offence
4.2 Cancellation Of Bail Granted Under Section 437
4.3 Power to cancel bail vested only in the court and not a
police officer.
4.4 Who can apply for cancellation
4.5 Application seeking cancellation must be on substantial

grounds.
4.6 Whether statutory bail granted u.s. 167 (2) ipso facto revocable
upon filling of charge sheet.
4.7 Unqualified discretion conferred upon the courts
4.8 Wider powers of superior courts in the matter of cancellation
Of Bail
Chapter - 5
BOND AND FOREFEITURE OF BOND
5.1 Bond of accused and sureties
5.2 Security
5.3 Pecuniary nature of bail bonds
5.4 Immediate release on executing the bond
5.5 Discharge of sureties
5.6 Forfeiture of bond
5.7 Forfeiture of bond
5.8 Scope of section. 446
5.9 No notice to show cause before passing order for
forfeiture of the bond but notice must to show cause
why penalty should not be paid
5.10 Court to be satisfied that the bond has been forfeited
5.11 Satisfaction to be recorded in writing
5.12 No opportunity to surety to produce the accused
5.13 Grounds for invoking section. 446, cr. P.c.
5.14 Death of the accused
5.15 Arrest of the accused in any other case
5.16 The court which may forfeit the bond
5.17 Enquiry
5.18 Cancellation of bail bond on forfeiture
5.19 Prevailing practices

5.20 Imprisonment of surety for breach of undertaking

Chapter - 6
ANTICIPATORY BAIL
6.1 Anticipatory bail: a misnomer
6.1.a Distinction between bail and anticipatory bail
6.2 Why anticipatory bail?
6.3 Position under the old code
6.4 The deliberations of the law commission
6.5 Scope of section. 438
6.6 Reasonable apprehension of arrest for a non-bailable offence
6.7 Wide discretion in granting anticipatory bail
6.8 Concurrent powers of the high court and the court of session
6.8.a Power conferred upon higher judiciary alone
6.8.b Concurrent jurisdiction
6.9 Imposition of conditions
6.10 Interim order and notice to public prosecutor
6.11 No blanket order of anticipatory bail
6.12 No anticipatory bail after arrest
6.13 Bail to be effective till the conclusion of the trial
6.14 Cancellation of anticipatory bail
6.15 Anticipatory bail in the absence of section. 438
6.16 Bail when proper
6.17 Bail when not proper
Chapter 7
CONCLUSIONS AND SUGGESTIONS

CHAPTER - 1

INTRODUCTION
The rights of an accused are basically part of human rights. The concept of conferring rights
upon an accused person is in intrinsically linked with the genesis and evolution of human
rights movement. That an accused person is today endowed with a number of constitutional
rights and protections in most of the countries of the world speaks of the advancement of law
vis a vis the advancement of civilization. Yet no intelligent understanding of the current
status of these rights can be had without restoring to their history.
The rights of an accused are basically part of human rights. What are human rights? Every
human being, in every society, is entitled to have basic autonomy and freedoms respected and
basic needs satisfied1. Literary they are the rights of humans. More, precisely they are the
rights one has, simply because one is a human being. It is widely believed that the concept
forming the bases of human rights are recent in origin. The contrary is true. In fact, it is an
old concept, as old as man2. Jack Donnelly offered the following definition:human rights,
droits de lhomme, derechos humanos, Menscherechte, the rights of man are literary the
rights that one has because one is human3.in a similar vein, Laurie Wiseberg opines,
Human rights are entitlements due to every man, woman and child because they are human
They are nonderogable rights: Their violation can never be justified, even by a state of
national emergency.4
The premise of current international law is that these rights are inherent in human person:
They are not given to people by State, and State cannot deprive people of their rights5.
Unfortunately, the gap between the noble ideals and the reality of substantive commitments
and entitlements has remained quite wide. Gross violation of human rights economic, social,
1 Louis Henkin ,Introduction in the International Bill of Rights ,Columbia
University Press,1981,p.15.
2 Maurice Cranston , What are Human Rights , Taplinger Publishing
Company,1973, p.36.
3 Jack Donnelly , Universal Human Rights in Theory and Practice, Cornell
University Press,2003, p.7.
4 Laurie S. Wiseberg ,Introductory Essay, In Edward Lawson ,Encyclopedia of
Human Rights, Taylor and Francis,1996,p.14.
5 Ibid

cultural, and political- are widespread, even in countries that are parties to international
human rights treaties.