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History and Meaning of Bail

Krishna Murari Yadav

Assistant Professor,
LAW CENTRE -1,FOL,
University of Delhi.

Previous Years Question Papers of LL.B, Faculty of Law, University of Delhi, Delhi

2017 Question 2 (a)

„Bail‟ remains undefined term in the Code of Criminal Procedure, 1973. Nowhere else has term
been statutorily defined? Discuss its meaning.

Answer
In the case of Moti Ram vs. State of M.P. (1978) Supreme Court observed that there is no
definition of bail in the Code, 1973 although offences are classified as bailable and non-
bailable. In the case of Vaman Narian Ghiya vs. State of Rajasthan (2008) Supreme Court
observed that “Bail” remains an undefined term in the Code, 1973. Nowhere else the term has
been statutorily defined.
History of Bail

To understand the meaning of bail, knowing of history of bail is sine qua non. The concept of
bail has a long history briefly set out in the publication on „Programme in Criminal Justice
Reform’. Early time bails were given to make free untried prisoners from disease-ridden jails
while they were waiting for the delayed trials conducted by travelling justices. Prisoners were
bailed, or delivered, to reputable third parties of their own choosing who accepted responsibility
for assuring their appearance at trial. If the accused did not appear, his bailor would stand trial
in his place.
Eventually it became the practice for property owners who accepted responsibility for accused
persons to forfeit money when their charges failed to appear for trial. From this grew the modern
practice of posting a money bond through a commercial bondsman who receives a cash premium
for his service, and usually demands some collateral as well. In the event of non-appearance the
bond is forfeited, after a grace period of a number of days during which the bondsman may
produce the accused in court.
In the Moti Ram Case history of „bail‟ discussed in „Programme in Criminal Justice Reform‟
were also used to understand „bail‟.

Etymology of ‘Bail’

Etymology of bail was discussed in Vaman Narian Ghiya vs. State of Rajasthan (Dec.12, 2008).
It was observed, “Etymologically, the „Bail‟ word is derived from an old French verb ‘bailer’
which means to „give‟ or „to deliver‟, although another view is that its derivation is from the
Latin term baiulare, meaning „to bear a burden‟. The dictionary meaning of the expression „bail‟
denotes a security for appearance of a prisoner for his release.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE -1, FOL, DU.
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Dictionary meaning of ‘Bail’

Although „Bail‟ has not been defined under any statutory law but this word has been defined in
several dictionaries. These are following-
(I) Webster’s Third Year International Dictionary: ― Bail means, “The process by which a
person is released from custody.”
(II) Encyclopaedia Britannica - Bail, procedure by which a judge or magistrate sets at liberty
one who has been arrested or imprisoned, upon receipt of security to ensure the released
prisoner‟s later appearance in court for further proceedings.
(III) Stroud's Judicial Dictionary - This dictionary spells out certain other details. It states:…
when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such
case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those
which have authority to bail him, which sureties are bound for him to the King's use in a certain
sums of money, or body for body, that he shall appear before the justices of goal delivery at the
next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed-that is to
say, set at liberty until the day appointed for his appearance.

Moti Ram v. State of M.P. (August 24, 1978)( Justice V.R. Krishnaiyer)
Supreme Court in this case extended the meaning of bail. It observed, “Bail covers both-release
on one’s own bond, with or without sureties.”
Vaman Narian Ghiya vs. State of Rajasthan (Dec.12, 2008).

Bail may be regarded as a mechanism whereby the State devolutes upon the community the
function of securing the presence of the prisoners, and at the same time involves participation of
the community in administration of justice.

Sanjay Chandra v. Central Bureau of Investigation – (Nov.2011)

Supreme Court in this case observed, “Bail may thus be regarded as a mechanism whereby the
State devolutes upon the community the function of securing the presence of the prisoners, and at
the same time involves participation of the community in administration of justice.” Bail is a
conditional liberty.
Effect of denial of bail

In the Moti Ram Case following effect of non-granting of bail were mentioned-

 though presumed innocent he is subjected to the psychological and physical deprivations

of jail life;
 he loses his job, if he has one, and is deprived of an opportunity to work to support
himself and his family with the result that burden of his detention falls heavily on the
innocent members of the family,
 he is prevented from contributing to the preparation of his defence; and
 the public exchequer has to bear the cost of maintaining him in the jail.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE -1, FOL, DU.
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American President Mr. Lyndon B. Johnson observed at the time of signing Bail Reforms Act,
1966 observed;
“He does not stay in jail because he is guilty.
He does not stay in jail because any sentence has been passed.
He does not stay in jail because he is any more likely to flee before trial.
He stays in jail for one reason only-because he is poor.”
In Moti Ram Case Supreme Court said that same treatment to mason and millionaire is
inherently illegal. Geographical discrimination is violation of right to equality.
In State of Kerala v. Raneef (Jan.3, 2011) Supreme Court observed that Article 21 must not be
denied.
Non- granting of bail when person is entitled to bail shall amount to wrongful confinement under
section 340 of IPC. If legal authority knowingly confines the person and reject bail in illegal
manner, he shall be punished under section 220 of IPC.

Krishna Murari Yadav, Assistant Professor, LAW CENTRE -1, FOL, DU.